The Northern Territory Anti-Discrimination Commission has recently handed down a decision that has a number of lessons for employers. In this case, some of the conduct undertaken by the respondent employee was found to be sexual harassment of the complainant; some of the conduct was found to have no connection with the complainant’s employment; and the employer was found to be not liable due to the steps it had taken during the course of the employment.
There was a long history of conduct by the respondent employee which formed the basis of the Complainant’s application. The employer in this case was a department of the Northern Territory’s public service and it was the subject of allegations by the complainant that it was vicariously liable for the conduct of the respondent employee. The allegations made by the complainant in this case were:
- that the respondent employee had sexually harassed the complainant and that the employer was vicariously liable for that harassment;
- that the respondent employee had discriminated against the complainant on the basis of sex and that the employer was vicariously liable for that discrimination; and
- that the Complainant was vicariously liable for the victimisation.
In terms of the conduct that was complained of, there were a number of different types of conduct that the complainant alleged that she was subjected to:
It was alleged that throughout different periods across a 2 year span, the complainant was subjected to inappropriate touching by the respondent employee in the workplace. The touching was said to include touching her shoulders, head and hands. It was alleged that he would rub her shoulders and leave his hands on her whilst providing instruction, etc. The complainant alleged that the degree and intensity of the touching increased over time.
The Commission heard that the complainant was subjected to three particular emails which the complainant alleged constituted harassment against her. The first email, called ‘Interesting signs in the restroom’ contained sexualised material with offensive comments about women. The second email, titled ‘Work Truths’ did not contain sexualised content, but was nonetheless inappropriate for the workplace. The third email was called ‘How to speak to women and be politically correct’ also contained sexual content and was held to be inappropriate. Adding to the inappropriateness of this third email was that it was sent to two of the employer’s managers as well as a young female trainee. The copying of the young trainee was said to elevate the email’s inappropriateness.
There were then a number of other incidents that were the subject of complaint in this matter. What is clear from the evidence is that the complainant and the respondent employee had a ‘mentor/mentee’ type relationship, that they also smoked and drank coffee together at the workplace and that they had a number personal discussions (usually relating to the respondent employee’s personal issues). It is also apparent that at times the complainant provided the respondent employee with some comfort where he was suffering through those personal issues.
One of the events complained of involved the complainant coming home one night with her partner and her son to find the respondent employee naked and ‘passed out’ or asleep on her son’s bed, surrounded by ‘bodily fluids’ and with ‘empties’ lying about the room. It was also alleged that the respondent employee had used a new kitchen appliance as an ashtray.
The complainant alleged that when she saw the respondent employee lying on the bed, she directed her partner to take her son back to his place. Then, whilst she was beginning to call the police, the respondent employee came out of the bedroom partially clothed and tried to touch her, including asking for a hug and allegedly placing her hand on his penis. It was at that point that the complainant told the respondent employee that they would no longer be speaking and any non-work related interactions between them were at an end.
After this incident the respondent employee wrote a letter to the complainant asking why she was not communicating with him. The complainant responded with her reasons in a further letter. Following the incident, the complainant brought these letters to the attention of the employer. The complainant and respondent employee attended mediation as organised by the Employer.
There were then two further incidents (some 16 months apart) where the complainant found the respondent employee naked on her back verandah. Again, the complainant alleged that the respondent employee was either asleep or passed out on both occasions. Following the second ‘verandah’ incident, the respondent employee returned to the complainant’s house the following day and verbally abused her.
During the hearing, the Complainant took serious issue with the way that she perceived her employer had handled her allegations (the complaint was made well after most of these events had occurred). The Commission noted that it appeared that she sought to make out the worst of her employer at every possible opportunity in giving her evidence.
The Commission did go on to find that the respondent employee had engaged in ‘prohibited conduct’ in two respects, being the touching incidents and the inappropriate emails that were sent to the complainant. However, the other incidents that occurred at the complainant’s home were not found to be unwelcome conduct of a sexual nature in the workplace. In justifying that part of the decision, the Commission stated:
“…the matter falls down in regard to the nexus or link to work as all three incidents clearly did not occur at work. … there is not a direct link between events at work and the conduct at [the complainant’s] home. Whilst conduct may be seen by the general community as harassment and sexual harassment, it does not fit within the limited definition provided by the Act. None of the three incidents set out above fit within section 22 so therefore [the complainant] has not proven prohibited conduct by [the respondent employee] in regard to these events which occurred at her home. This does not take away from the severity of the impact of the conduct on [the complainant] even though it does not fit within the provisions of the Act.”
Having found that the respondent employee had engaged in prohibited conduct (in terms of the touching and the emails), the Commission turned to decide whether the employer was vicariously liable for that conduct.
The Commission found that the employer was not vicariously liable for the conduct of the respondent employee, as it had taken all reasonable steps to prevent the prohibited conduct from occurring in the workplace. To this effect, the Commission stated:
“I am satisfied that [the employer] … did take all reasonable steps to prevent [the respondent employee’s] prohibited conduct under the Act, by providing Ant-Discrimination training, the Harassment in the Workplace policy which was in place before [the conduct commenced], and then, once made aware of the general inappropriate conduct allegations, again took [the respondent employee] through the Policy, moved his desk and instituted limited monitoring, spoke to [the complainant] offered support and options and had them attend mediation in March 2005, as well as monitoring the situation and raising concerns again in February 2006.”
The Commission did take care to note that the policy was not a sexual harassment policy, but did not find against the employer for the lack of specificity in the policy in that regard.
Having found against the respondent employee in relation to the two instances of prohibited conduct, the Commission left it open to the parties to make submissions on orders.
Lessons for Employers
This case is a good example of how a Court or Tribunal will look at and assess particular incidents in cases of sexual harassment. Most notable for employers is the steps taken by the employer in this case and in particular, having an appropriate policy and training on that policy, and then being proactive in its steps to resolve the issues. Taking those steps, and having the appropriate documentation in place meant that the Commission was minded to make a favourable decision for the employer in terms of vicarious liability.
Chris Campbell, Partner
Disclaimer: The information contained this update is intended as a guide only. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this update, Aitken Legal does not accept liability for any errors it may contain. Liability limited by a scheme approved under professional standards legislation. Contact Aitken Legal here.