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Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Employer Liable Vicariously for Sexual Harassment of Employee

The Queensland Civil and Administrative Tribunal has found a Gold Coast resort vicariously liable for the sexual harassment of a female employee, further, that its mishandling of her complaint contributed to a psychiatric injury. [McCauley –v- Club Resort Holdings Pty Ltd (no 2) [2013] QCAR 243 (13 May 2013).

The Tribunal Member, Jeremy Gordon, found Club Resort Holdings Pty Ltd vicariously liable for a male Chef’s sexual harassment of the female Food and Beverage Attendant, who ran the buffet in the Kalinda Restaurant in the RACV Royal Pines Resort.

Member Gordon was particularly critical of the HR manager who mismanaged the Attendant’s allegations by failing to obtain a full account of events from her, and instead focusing on obtaining a statutory declaration from the Chef, making it almost impossible to test his version of events.

The Attendant alleged that during the Australian Ladies Masters Golf tournament over 3 days in early March 2010, the Chef sexually harassed her and discriminated against her based on her sex and age, by:

  • commenting that she smelt like “Old Spice” – a scent he associated with his grandfather and asking whether anyone else could smell it;
  • sniffing the air when in her vicinity, invading her personal space; and
  • referring to her as a cougar and making growling noises, including growling in her ear and around her neck.

The Attendant attempted to ignore the Chef, but she was unable to stop his actions.  The Attendant claimed she told him, “this kind of behaviour is unnatural Steve, I’m old enough to be your mother, this is disgusting“.

He replied: “you have nothing to be worried about, I’m a happily married man“.

After 3 days the Attendant told the Chef that he was an “arsehole” and that he should back off and “f@#k off“.  The Chef apologised, but did not stop his comments.

The resort’s investigation into the incidents concluded that the Attendant’s allegations were unfounded.

The Attendant went on leave for 3 months and made 2 WorkCover claims for permanent impairment caused by the sexual harassment and the Resort’s inadequate investigation.

The Attendant further alleged that the Resort victimised her in response to her complaint by:

  • failing to carry out an adequate investigation, and failing to find that her complaint was proven;
  • requiring her in June 2010 to conduct contract negotiations with the Resort’s HR Manager, despite her known lack of trust in the Manager;
  • disciplining her for talking to colleagues about the progress of her sexual harassment claim and for failing to perform her duties; and
  • subjecting her to unwarranted disciplinary action for failing to give 2 hours’ notice that she was taking sick leave as a result of experiencing a panic attack.

Member Gordon found that the Chef had subjected the Attendant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature, saying that a reasonable person would have anticipated the possibility that the Attendant would be offended or humiliated by the conduct.

He also found the Chef made the cougar and “Old Spice” references in response to the Attendant’s age (49 years of age).

Member Gordon said it was “very surprising” that the Resort failed to corroborate the Attendant’s allegations, especially given WorkCover’s later conclusion “without a doubt that the events alleged by [the attendant] did take place“, injuring her as a direct result.

He described as “extraordinary” the fact that the HR Manager failed to obtain a full version of the events from the Attendant’s point of view before asking the Chef to make a statutory declaration.   He said, “This error was compounded by the fact that [the Chef] was not interviewed again. This meant that his statutory declaration made on the day of that meeting stood as his statement in the investigation. The first time [the Attendant’s] allegations in full were put to [the Chef] was at the hearing before me“.

The Resort’s Employee Relations and Remuneration Manager concluded that while the Chef had made the Old Spice and cougars comments, he said “a reasonable person in similar circumstances would view the comments as light hearted and not derogatory“.
But Member Gordon found this conclusion was inadequate because the Resort failed to:

  • give the Manager a copy of an interview between the HR Manager and the Chef in March 2010, when he admitted telling the Attendant “you are a bit of a cougar“;
  • ensure the Attendant was interviewed by the investigator (she didn’t know one had been appointed); and
  • provide the Attendant an opportunity to comment on the Resort’s findings before she was told the result.

Further, 3 witnesses (including the HR Manager) who the Attendant alleged were present in the kitchen, including when she told the Chef to “f@#k off“, were not called to give evidence during the investigation.

Member Gordon found that the sexual harassment, discrimination and the mismanagement of the Attendant’s complaint contributed to and caused her to suffer from an adjustment disorder and depression, leaving her unable to work at the resort.

Member Gordon found that while the Resort had a Fair Treatment Policy, it was unable to provide details of training provided to its employees.   He described the Resort’s response to the Attendant’s sexual harassment complaint as “inept and unprofessional” and ordered it to pay her $35,490 in compensation for loss and damage, and ordered the Chef to pay her $4,500.

Brooke Pendlebury
Thursday, July 25, 2013
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