Work available. Must be open to sexual harassment. Apply within. Work available. Must be open to sexual harassment. Apply within.

Work available. Must be open to sexual harassment. Apply within.

12 December 2018 | Employment and Safety

A female employee has been awarded $10,000 for hurt, humiliation and distress after making a complaint about sexual harassment. The employee was advised by a staff member reviewing her complaint that unwanted attention should be expected in a male-dominated environment and suggested that the employee was being "overly sensitive".

In Issue

Whether an employer directly discriminated against an employee on the basis of her sex in relation to its response to a complaint of sexual harassment.

The Background

The employee (XVC) was working for Marriott Support Services (Marriott), which had been contracted by Lendlease to provide labour services at a railway level crossing removal.

XVC reported to her immediate manager that, during the course of her work at this site, an employee of another contractor on site had made comments of a sexual nature and comments about violence.

XVC’s complaint was referred to another Marriott employee, Joanne Baronessa. In responding to the complaint, it was alleged that Ms Baronessa said words to the effect:

“You are working in a man’s working environment and you need to expect that kind of unwanted attention”.

“You look tired, maybe you are perceiving it wrong. Maybe you are being overly sensitive”.

An email from Ms Baronessa also confirmed that when XVC asked about the complaint process, Ms Baronessa deflected and advised XVC to “calm down”. Marriott took no further action.

XVC was later dismissed, but as a result of Marriott losing the Lendlease contract.

XVC brought proceedings in the Victorian Civil and Administrative Tribunal (VCAT), alleging discrimination on the basis of her sex.

The Decision at Trial

VCAT was satisfied that Ms Baronessa had said the words attributed to her, and further found that the advice constituted unfavourable treatment because of XVC’s sex.

While Marriott argued that the treatment was not detrimental because it caused XVC no disadvantage, it was accepted by VCAT that humiliation and hurt feelings, as well as undermining her confidence in her judgment and her trust in her employer did in fact constitute a disadvantage. Marriott was found to be vicariously liable for the conduct of Ms Baronessa.

Assessing the monetary value of such hurt, humiliation and distress, VCAT awarded XVC $10,000.

Implications for you

It is important to remember that under anti-discrimination legislation, it is irrelevant as to whether a person is aware that their conduct is discriminatory and/or unfavourable. Neither is the person’s motive. This means that a comment, flippantly made or ill-considered, can have repercussions both the offender and the employer.

XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492

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Corrina Dowling

Corrina Dowling

Special Counsel