A decision delivered by the Anti-Discrimination Tribunal of Tasmania (ADTA) has resulted in a complainant being awarded $45,000 against a former delivery driver that would frequently engage in conduct that constituted sexual harassment.
The background
On 30 December 2017, Lucy Orchard (Ms Orchard) lodged a complaint with the ADTA alleging that the respondent, Frayne Higgins (Mr Higgins) sexually harassed and victimised her pursuant to ss 17 and 18 of the Anti-Discrimination Act 1998 (TAS).
The crux of the allegations pertain to:
- Mr Higgins’ conduct toward Ms Orchard during the course of his work as a delivery driver retained by Toll Transport Pty Ltd which involved him frequently:
- calling Ms Orchard 'Juicy Lucy';
- walking behind the racks of the store Ms Orchard worked and subsequently popping up to scare her;
- asking her whether she had a boyfriend;
- engaging in sleazy, intimidating and favouring behaviour toward her;
- one occasion in July 2014, when Mr Higgins slapped Ms Orchard on the bottom absent her consent (July 2014 Incident); and
- Mr Higgins sending Ms Orchard a letter in the form of a concerns notice for her allegedly making defamatory imputations in relation to the July 2014 Incident (Defamation Letter).
(collectively, the Alleged Conduct).
In issue
- The core issue in the proceedings pertained to whether the Alleged Conduct occurred and constituted sexual harassment and victimisation.
The decision of ADTA
The Tribunal ordered Mr Higgins to pay Ms Orchard the sum of $45,000 comprising of compensation for the injury suffered by her and aggravated damages as a result of the Defamation Letter being sent to her. In arriving at this conclusion, the ADTA made the following findings:
- that Ms Orchard provided convincing evidence (which was also corroborated by others) of the behaviour that she was subjected to during the course of interactions with Mr Higgins;
- that Mr Higgins did not jump out behind shelves in order to intimidate and frighten Ms Orchard as the description of Mr Higgins being generally sleazy was not explained in a way that could allow the ADTA to reach the same view on an objective basis;
- the slapping of Ms Orchard’s buttocks constituted an unsolicited act of physical contact of a sexual nature given the part of her body that was touched;
- referring to Ms Orchard as 'Juicy Lucy' amounted to an unwelcome remark with sexual connotations;
- while questioning Ms Orchard’s relationship status would not necessarily fit within the definition of sexual harassment, it nonetheless formed part of the contextual material that enabled the ADTA to be satisfied that the conduct was of a sexual nature or constituted remarks with sexual connotations; and
- while the Defamation Letter did not constitute victimisation, it nonetheless was an aggravating feature that was directly related to Mr Higgins’ behaviour thereby aggravating his misconduct. As Mr Higgins himself admitted during cross-examination, it was disgraceful to send a letter to a woman demanding her to retract her complaint and pay $30,000 in circumstances where the allegation was true.
Implications for you
This case serves as an important reminder that even one incident involving conduct that constitutes sexual harassment can attract damages. Further, while a Tribunal or Court may consider that certain remarks made by a person do not ordinarily satisfy the statutory definition of sexual harassment, it nonetheless may be inclined to consider contextual factors to be comfortably satisfied that the conduct constituted behaviour that was sexual in nature or had sexual connotations.
Finally, a respondent’s attempt to take action namely by advancing a claim of defamation for conduct that did in fact occur can result in a finding for aggravated damages against that person. As always tread carefully when dealing with or responding to complaints of sexual harassment
