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Sexual harassment in the workplace

What is Sexual Harassment?

Section 28A (1) of the Sex Discrimination Act (CTH) 1984 (SDA) defines sexual harassment behaviour as:

(a) a person who makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

In circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Sexual Harassment in the Employment Context

Section 28B of the SDA makes it unlawful for an employer to sexually harass an employee or an employee to sexually harass a fellow employee.

Sexual harassment in employment by either fellow employees or the boss is considered to be unlawful discrimination.

Section 106 of the SDA imposes vicarious liability on employers for sexual harassment by one employee towards another. The employer is liable if they fail to take all reasonable steps to prevent the employee form doing the sexual harassment.

This means the employer could be held responsible for any remedy the employee may seek as a result of the sexual harassment by another employee.

Similar provisions are found in the Anti-Discrimination Act (NSW) 1977.

If you have sustained an injury either physical or psychological you can make a claim for workers compensation benefits under the NSW Workers Compensation Act 1987.

Complaint to the Australian Human Rights Commission

A complaint of sexual harassment in the workplace should be made to the Australian Human Rights Commission (AHRC) (within 12 months of the acts occurring). The AHRC has the power to investigate and conciliate any such complaint’s and make a determination as to whether the sexual harassment was unlawful discrimination in accordance with the Sex Discrimination Act.

Proceedings in the Federal Court

Once a complaint has been dealt with a party to the complaint may commence proceedings in the Federal Court (within 60 days of the decision by the AHRC). If the Federal Court is satisfied that unlawful discrimination has occurred, they can order an employer to pay compensation for any loss or damage suffered to the employee who has experienced sexually harassment.

Section 46PO of the AHRC Act allows the Federal Court to award damages for unlawful discrimination.

Compensation payable is for pain and suffering, distress and loss of income if any.

Such compensation historically has been of limited value however a recent decision by the Federal Court in Richardson v Oracle Corporation Australian Pty Ltd [2014] FCAFC 82 has significantly increased the damages awarded in workplace sexual harassment claims.

The ‘Oracle’ Case

Employees who have experiences of sexual assault and harassment in the workplace may be able to claim damages for embarrassment, loss of enjoyment of life, psychological injuries, and other forms of economic and non-economic loss.

In the breakthrough ‘Oracle’ case the applicant was sexually harassed by a co-worker for a period of 6 months. The human resources department investigated the allegation and found her claims to be true. Although, Oracle never took reasonable steps to stop the harassment after the initial investigation.

Eventually the applicant quit her job with Oracle. The applicant then made a formal complaint to the Australian Human Rights Commission for contravention of section 28B (2) of the Sexual Discrimination Act. Following which her case was referred to the Federal Court.

Initially the Federal Court was satisfied that there was unlawful discrimination towards the applicant and awarded $18,000 in general damages. In this judgement the employer was also found vicariously liable.

However, the applicant appealed the judgement and on appeal was awarded a total of $130,000 for general damages and economic loss.

The appeal case gave compensable weight to the ‘experience of hurt and humiliation of sexual harassment…and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct.’ For this the Court awarded the appellant $100,000.

The case also found that general damages could be awarded under tort, as was applied in the initial case, but statutory compensation could also be awarded under the Australian Human Rights Commission Act 1986 section 46PO(4)(d) which required the respondent to pay damages for any loss or damage suffered because of the conduct of the respondent.

The case also found that compensation could be awarded for economic loss. But for the sexual harassment by her co-worker the appellant would not have left her job at Oracle and sought a new job with a different company.

On appeal, the Court found a direct correlation between the sexual harassment and the applicant leaving Oracle. They compared her earnings at Oracle and her new job and found that over a 3 year period she had in fact lost money. The court awarded her $30,000 in compensation for economic loss.

This case recognised the long term negative effects that sexual harassment in the workplace can have on the victim, and that victims should be compensated adequately.

What do I do if I Believe I’ve been Sexually Harassed?

If you are being sexually assaulted or harassed in the workplace you must report it to your manager or human resources team. You should also keep any documents relating to the assault and or harassment.

You should record as much information as possible as it may help you down the track if your case is referred to court.

For instance, if the abuse is verbal it would be I your best interest to write a log of what is being said to you. If possible, record the body language of the person harassing you, if they are touching you, if they are insinuating anything with body language, if anyone is around, what you said, what you did, who you told, and what they did with the information.

It may be tedious and upsetting to record these things but it provides vital evidence that can be used to support your claim if your ever decide to take the matter further.

Being sexually assaulted or harassed at work is very emotionally taxing, for this reason it is important that you talk to people you can trust like your friends and family. However, if you are having trouble coping you should speak to your General Practitioner and make sure the complaint of sexual harassment is recorded in your Doctors notes.

If you do not feel like you can continue to work because of the assault or harassment it is important that you obtain a medical certificate from your GP. It is vital that the medical certificate details why you are having the time off work.

It is important to note that sexual assault and harassment is not normal and not tolerated under Australian law. If you require further information about your rights and entitlements, or bringing a claim you should consult an Accredited Lawyer.

What Should my Employer do?

If you have notified your manager or human resources team of the assault or harassment they should begin investigating your allegations.

Most workplaces should have policies and procedures in place to deal with this. However, if your workplace does not provide these to you it is important to ask them if they have a policy and if they can investigate your complaint.

If your employer fails to act reasonably on your allegations or fails to stop the harassment they may be found liable to pay compensation.

If you require any assistance, please contact us.

Garling & Co Lawyers

Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by New South Wales Law Society. He is admitted to practice in the Supreme Court of NSW and the High Court of Australia. Matthew is also a member of...
Ray H.
07:33 13 Jun 24
Matthew Garling and Team are kind, patient, polite, professional, empathetic and efficient. I was treated terribly by the at fault insurer. Garling and Co. had my back. Matthew gently and patiently... kept me up to speed on all the steps to go through. From my personal experience I recommend these guys. They are safe hands. Thank you team.read more
Jo L.
05:58 07 May 24
So very impressed with the professional team who looked after me throughout the last 4 and 1/2 years. A special mention to Kerry and Nathan who navigated each request to fight for my right to gain... access to further treatments and physio and to ensure medical treatment would be covered moving forward. I was so grateful I could hand it all over to you and not have to go through this very challenging time without your support.I thank you for the compassion you have provided to me, from the first contact with Matthew and Natasha, to finalisation with Kerry and Nathan.I highly recommend the team at Garling and Co for any third party compensation claims. You are in good hands with them all.read more
Linda O.
21:53 06 May 24
Emma, Rebecca and the team at Garling and Co have worked diligently throughout my workers compensation claim. The level of professionalism, support and communication has been faultless. Of particular... note has been the sensitivity displayed to me throughout the lengthy process. Worker’s compensation claims are complex and not easy to navigate, particularly when you are unwell. I do not hesitate to recommend Garling and Co to help you find a way through this otherwise unfathomable system.read more
Keith H.
20:51 23 Apr 24
After my case stalled with another firm, I decided to give Matthew Garling a call. He took my case and not only won, but achieved an outcome that far exceeded my expectations. This firm is the best... in the business in my opinion and I wouldn't hesitate to recommend them to anyone.read more
Anthony T.
00:50 16 Apr 24
Thank you Matthew and his team who guided me through the legal process, a truly positive experience with total professionalism.
Mikaele N.
03:01 15 Apr 24
Garling &Co Lawyers were awesome, I called every compensation law firm and was told that I couldn't claim for compensation.The whole experience and process was simple and stress free.Mr Matthew... Garling and Allison deserve an accolades for the very best in client service. I would highly recommend their service to anyone.read more
Tamara L.
02:10 15 Apr 24
I want to thank Garling & Co so much for all the help they have given me and helped with my claim. We got the win last week and it was the best news I have gotten considering how much my life has... been turned upside down the past 2 years. Emma and Rebecca have been incredible to work with and explained everything from the start even when I had hesitation to go ahead regarding how much everything would cost or how fair it could go or even if I had a chance, but they explained everything thoroughly, so I understood it all. Thank you for making this process seamlessly easy and helping me get the win it will make things a little easy for me that's for sure financial thank you for all your help I cannot recommend you and your services enough. Thank you again.read more
Sigrid W.
05:01 11 Apr 24
Utter professionalism from first phone call to final settlement. It was a pleasure to be represented by a firm that actually cares for their clients. From office staff, to paralegal and solicitor... Rebecca, Emma and Matthew thank you for your support and expertise throughout my claim. No wonder your firm has won many awards. I'm extremely happy with my outcome and can confidently recommend your firm.read more
BJ S.
01:09 09 Apr 24
Highly recommend Matthew & Allison at Garling and Co ! Quick response ! helpful every step of the way ! If you want the best compensation lawyer, Matthew @ Garling and co is the bestDoesn’t waste... time. Very informative ! excellent guidance! They get the job done ✅Website is perfect guide5 Star ⭐️ is not enoughI’m so grateful to Matthew, Allison and team for my outcome so far !Thank you 😊 Garling and co are awesome 👏 🤩read more
Jaimie K.
06:11 02 Apr 24
Have had a rollercoaster ride with Garling and Co over the several years we have been battling the system that injured workers are faced with. The wheels of progress are slow within this system.... However Garling and co have always stood by me. Calls are returned and matters are always followed up in a timely manner.read more
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Ray H.
07:33 13 Jun 24
Matthew Garling and Team are kind, patient, polite, professional, empathetic and efficient. I was treated terribly by the at fault insurer. Garling and Co. had my back. Matthew gently and patiently... kept me up to speed on all the steps to go through. From my personal experience I recommend these guys. They are safe hands. Thank you team.read more
Jo L.
05:58 07 May 24
So very impressed with the professional team who looked after me throughout the last 4 and 1/2 years. A special mention to Kerry and Nathan who navigated each request to fight for my right to gain... access to further treatments and physio and to ensure medical treatment would be covered moving forward. I was so grateful I could hand it all over to you and not have to go through this very challenging time without your support.I thank you for the compassion you have provided to me, from the first contact with Matthew and Natasha, to finalisation with Kerry and Nathan.I highly recommend the team at Garling and Co for any third party compensation claims. You are in good hands with them all.read more
Linda O.
21:53 06 May 24
Emma, Rebecca and the team at Garling and Co have worked diligently throughout my workers compensation claim. The level of professionalism, support and communication has been faultless. Of particular... note has been the sensitivity displayed to me throughout the lengthy process. Worker’s compensation claims are complex and not easy to navigate, particularly when you are unwell. I do not hesitate to recommend Garling and Co to help you find a way through this otherwise unfathomable system.read more
Keith H.
20:51 23 Apr 24
After my case stalled with another firm, I decided to give Matthew Garling a call. He took my case and not only won, but achieved an outcome that far exceeded my expectations. This firm is the best... in the business in my opinion and I wouldn't hesitate to recommend them to anyone.read more
Anthony T.
00:50 16 Apr 24
Thank you Matthew and his team who guided me through the legal process, a truly positive experience with total professionalism.
Mikaele N.
03:01 15 Apr 24
Garling &Co Lawyers were awesome, I called every compensation law firm and was told that I couldn't claim for compensation.The whole experience and process was simple and stress free.Mr Matthew... Garling and Allison deserve an accolades for the very best in client service. I would highly recommend their service to anyone.read more
Tamara L.
02:10 15 Apr 24
I want to thank Garling & Co so much for all the help they have given me and helped with my claim. We got the win last week and it was the best news I have gotten considering how much my life has... been turned upside down the past 2 years. Emma and Rebecca have been incredible to work with and explained everything from the start even when I had hesitation to go ahead regarding how much everything would cost or how fair it could go or even if I had a chance, but they explained everything thoroughly, so I understood it all. Thank you for making this process seamlessly easy and helping me get the win it will make things a little easy for me that's for sure financial thank you for all your help I cannot recommend you and your services enough. Thank you again.read more
Sigrid W.
05:01 11 Apr 24
Utter professionalism from first phone call to final settlement. It was a pleasure to be represented by a firm that actually cares for their clients. From office staff, to paralegal and solicitor... Rebecca, Emma and Matthew thank you for your support and expertise throughout my claim. No wonder your firm has won many awards. I'm extremely happy with my outcome and can confidently recommend your firm.read more
BJ S.
01:09 09 Apr 24
Highly recommend Matthew & Allison at Garling and Co ! Quick response ! helpful every step of the way ! If you want the best compensation lawyer, Matthew @ Garling and co is the bestDoesn’t waste... time. Very informative ! excellent guidance! They get the job done ✅Website is perfect guide5 Star ⭐️ is not enoughI’m so grateful to Matthew, Allison and team for my outcome so far !Thank you 😊 Garling and co are awesome 👏 🤩read more
Jaimie K.
06:11 02 Apr 24
Have had a rollercoaster ride with Garling and Co over the several years we have been battling the system that injured workers are faced with. The wheels of progress are slow within this system.... However Garling and co have always stood by me. Calls are returned and matters are always followed up in a timely manner.read more
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
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