Sexual assault at work results in large damages payout8 February 2017 | Damages
In a trend reflecting community expectations about compensation to be awarded to victims of sexual harassment at work, a tribunal has ordered a hotel and its caretaker to pay $313,316.10 to a female worker who suffered PTSD and a depressive illness when the caretaker of the hotel sexually assaulted her.
Whether sexual assault took place “in the course” of employment
In August 2010, the claimant (who was 21 years of age at the time) commenced employment with a hotel as a guest service agent. Because of a lack of ongoing employment opportunities at the particular location where the claimant worked, the hotel agreed that she could relocate to one of its other venues in Brisbane.
In order to assist the claimant with the move to Brisbane the hotel offered her the opportunity to share a unit which was occupied by the caretaker of that hotel. That unit had two bedrooms, one of which was unoccupied and which was to be used by the claimant. The caretaker and the claimant agreed that they were comfortable sharing that unit together (which the hotel provided to both of them free of charge).
On 30 November 2010, the claimant took up accommodation in the unit. She went to sleep and woke up at 5am to find the caretaker naked in her bedroom. He touched her body and attempted to remove her underpants. The claimant asked him to stop and to leave the room and broke down crying. The caretaker left the room saying words to the effect of “I will get you changed”. He returned saying “This can be our little secret”.
As a result of this incident, the claimant suffered PTSD and severe depression. Her medical condition prevented her from returning to work until 2015.
The hotel argued that it was not vicariously liable for the caretaker’s conduct because:
- the conduct did not take place “in the course of work” as required by the Act given that the caretaker was not working at the time of the incident; and
- it was not a condition of the claimant’s employment to share the unit with the caretaker.
The Decision at Trial
The tribunal rejected the hotel’s arguments and found that:
- the incident occurred while the caretaker was on call and therefore working for the hotel;
- the claimant was very young at the time of the events and was immature and trusting;
- irrespective of whether it was a condition of the claimant’s contract of employment to stay in the accommodation that was provided for her, the claimant understood that it was a requirement that she live with the caretaker at that unit; were it not for her employment, the claimant would not have been in the unit at the time the sexual assault took place.
The tribunal also rejected the hotel’s argument that there was nothing it could have done to avoid the sexual assault from occurring. It found that at the very least, the hotel, being a publically listed company, should have had an anti-discrimination policy in place and an education program for its workers – which it did not have. Because of this, the hotel could not avoid responsibility for the unlawful acts of its caretaker.
The tribunal accepted medical evidence provided by the claimant regarding the extent of her psychiatric injury relating to her PTSD and depressive illness for which it awarded her $70,000 as compensation. It also awarded her $162,500 for past economic loss, $25,000 for future economic loss and interest on these amounts.
Implications for you
This decision is consistent with similar outcomes relating to sexual harassment claims in recent times and sends a clear message to employers to take reasonable steps to educate their staff about discrimination and sexual harassment in the workplace. Failure to do so will expose employers to vicariously liability for the unlawful conduct of their employees and expose them to large penalties.
Importantly, where there is a sufficient connection between discriminatory conduct and an employee’s employment, the courts and tribunals will rely on that connection in order to find that the unlawful conduct occurred at work - even if it seemingly took place in a private setting, or while an employee was not actively working at the time.
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