In the most recent case before the NSW Administrative Decisions Tribunal Cooper v. Western Area Local Health Network  NSWADT 39 (9 March 2012)
, a male health care worker, who was employed by the Western Area Local Health Network, was fined $10,000 for sexually harassing a colleague.
The employer, however, has escaped liability, and was not vicariously liable because it had taken the appropriate “reasonable steps” to educate the worker about sexual harassment, including the penalties for taking such action.
The case involved two colleagues who had worked together for 5 years and who had socialised outside work.
At the end of a staff training day in October 2010, the male employee gave his female colleague a folded piece of paper, which she said she would read later.
When she did read it, she said she felt “physically sick” and concerned enough about the further potential behaviour of her male colleague that she made a complaint to her local police station in Orange, in the state’s central western.
While the Tribunal said it was not necessary to record the content of the note in its decision, the Tribunal members said the note described, “a series of actions of a sexual nature proposed to be done by a male to a female“.
The note was unsigned and it was not obvious who had written it.
The female employee believed the note had been written by her male colleague and was directed at her.
The male employee argued that another person had written the note, however, the other employee was cleared of any possible breaches of the workplace Code of Conduct after investigation.
The ADT members said they were satisfied that the case met all the necessary tests to establish that sexual harassment had occurred (and the worker had breached s.22B of the Anti-Discrimination Act 1977) in providing the note to his colleague.
These tests, established in Sharma v. QSR Pty Ltd. t/as KFC Punchbowlinclude:
– proving that conduct of a sexual nature had occurred and been unwelcome,
– that the conduct related to the applicant, and
– that a reasonable person would have anticipated that the other person would have felt intimidated, offended or humiliated by the conduct.
In considering the employer’s liability, and whether it had authorised the employee to engage in the conduct in question, or failed to take all necessary steps to prevent the conduct – the ADT warned that it, “is not enough for an employer merely to institute policies – the policies need to be implemented and brought to the attention of the employees in a meaningful way“.
The Tribunal found that the steps taken by the employer in:
– regularly requiring employees to re-commit to the relevant Code of Conduct, and
– regularly attend training in bullying and harassment
“were sufficient, in the sense that all steps that could have been taken were in fact taken“.
It ordered the male employee to pay his colleague $10,000 in damages.
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