VCAT provides yet another example of its firm approach to sexual harassment claims

27 February 2020

A female employee was found to have been subjected to sexual harassment by a co-worker and subsequently discriminated and victimised against by her employer in the investigation process.

In issue

  • Whether the applicant had been subjected to sexual harassment.

The background

Ms Kumari, the Applicant, was employed as a production worker by a bread and pizza manufacturer (trading as) Della Rosa Fresh Foods.

On 11 August 2017 the Applicant complained to her manager that she had been sexually harassed by her co-worker, Mr Hussain.

In response, Della Rossa (among other things) directed the Applicant to take annual leave and proposed to transfer to a different role at another site.

The Applicant commenced proceedings alleging sexual harassment, discrimination and victimisation against Della Rossa under the Equal Opportunity Act 2010 (Act).

The decision

Sexual harassment claim

The Applicant alleged that when she spoke to Mr Hussain, he would look at her body (specifically, her breasts) rather than her eyes which made her feel uncomfortable. Mr Hussain denied the allegation.

In defending the allegation, counsel for Della Rosa argued that the conduct complained of was not 'conduct of a sexual nature' because it did not constitute any of the conduct prescribed by the Act.

The Tribunal emphatically rejected this argument, noting that the definition of sexual conduct is not limited to those matters listed. In any event, Mr Hussain’s conduct of looking at the Applicant’s breast area while speaking to her was clearly an act of a sexual nature and which was unwelcome conduct in the circumstances. The member noted that 'it should now be axiomatic' that this conduct amounted to unwelcome conduct of a sexual nature.

Discrimination claim

Following the complaint, the Applicant alleged that her manager said to her 'you are Indian, I don’t like Indians, they always cause problems'. The member held that it was more probable than not that these comments were made as alleged and that she was treated unfavourably because of the attribute (i.e. being Indian).

In relation to the investigation, the Tribunal also held that Della Rossa treated the Applicant unfavourably by requiring her to meet Della Rossa’s managing director at his office at another site which was an unfamiliar and formal setting. In contrast, Mr Hussain was permitted to meet the managing director in a room at his own workplace.

The Applicant was also directed to take a week’s annual leave following the complaint, which the Applicant alleged was on the basis of her gender, sex or race. While the Tribunal did not agree with this allegation, it was satisfied she was directed to take leave because she had made a complaint and this amounted to unfavourable treatment.

Finally, the Tribunal also held that Della Rossa treated the Applicant unfavourably by virtue of its decision to transfer her to another site on the basis that more women worked at the other site and the risk of further harassment would be reduced. This decision was because the Applicant is a woman and because she had complained about the sexual harassment.

Victimisation claim

The Tribunal held that Della Rossa had victimised the Applicant in contravention of s 104 on the following grounds:

  1. By directing the Applicant to take annual leave as a consequence of the complaint
  2. The proposed transfer to another site and the associated change of role would have resulted in less satisfying work (less supervisory responsibilities) for the Applicant.

Implications for you

An employer can be liable for the unlawful conduct engaged in by its employees. Further to that, the way in which an employer responds to an allegation of this nature will be closely scrutinised. Workplace investigations must be conducted fairly and in such a way as not to discriminate or victimise the complainant.

Kumari v Bervar Pty Ltd (Human Rights) [2019] VCAT 1654

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