Record high damages were awarded to an employee in a Sydney store after her boss sexually harassed and victimised her
Case name: Taylor v August and Pemberton Pty Ltd [2023] FCA 1313
In 2023 the Federal Court handed down a landmark decision awarding over $250,000 under the Sex Discrimination Act 1984 (Cth) to an employee who had been sexually harassed by her employer at work.
The case explores sexual harassment under the Sex Discrimination Act, and deals with gift-giving by a colleague, making comments about an employee’s body, declaring romantic feelings and inappropriate touching.
These proceedings took place before the positive duty laws under the Sexual Discrimination Act were made compulsory for all Australian businesses. However, this is a good case study for understanding how the environment of a workplace can contribute to a judge’s decision when awarding damages.
CASE BACKGROUND
The case, Taylor v August and Pemberton Pty Ltd [2023] FCA 1313, involved a Sydney Jeweller, its director and an employee.
Ms Taylor was employed by the trading company, Grew & Co, from January 2018 – April 2022. This is a small business that manufactures and sells jewellery.
Ms Taylor accused colleague and boss Mr Simon Grew of sexually harassing her, unwanted conduct, breach of contract and victimisation.
INCIDENT DESCRIPTION
During Ms Taylor’s tenure, she encountered unwelcome advances and inappropriate behaviour from her employer over a 22-month period.
Specific actions included:
- Slapping her buttocks as she walked through a doorway
- Giving gifts (19 in total), including necklaces and rings
- Making inappropriate comments about her appearance, face and body
- Mr Grew telling Ms Taylor twice that he had developed feelings for her, knowing she was not interested.
Following this second declaration of feelings, Ms Taylor took a period of leave from work.
In August 2020, Ms Taylor, accused Mr. Grew of sexual harassment in a formal letter through her lawyers. Mr Grew responded aggressively, demanding the return of gifts and accusing her of theft and threatening police involvement. Subsequently, Ms Taylor filed a formal complaint with the Australian Human Rights Commission, to which Mr Grew again responded aggressively. As a result of this, Ms Taylor developed psychiatric disorders including depression and anxiety.
LEGAL PROCEEDINGS AND DECISION
Ms Taylor pursued $250,000 in general damages for sexual harassment and an additional $50,000 for subsequent victimisation, citing Mr Grew’s aggressive response to her complaints as evidence of further mistreatment.
Legal proceedings determined that the actions of the accused constituted a breach of statutory obligations. The court emphasised the contextual nature of workplace behaviour and upheld Ms Taylor’s claims of harassment and victimisation.
It was concluded that the following conduct constituted sexual harassment:
- Slapping Ms Taylor on the buttocks
- Declaring feelings for Ms Taylor and trying to initiate an intimate relationship with her, despite it being unwelcome
- Giving gifts to Ms Taylor
- Repeating feelings for Ms Taylor, knowing that her original position had not changed
Ms Taylor’s boss and the company were also found to have victimised Ms Taylor after she made a complaint to the Australian Human Rights Commission.
OUTCOME
Grew & Co were ordered to pay a record amount of damages after it was found that Ms Taylor was sexually harassed and victimised by Mr Grew during her employment.
DAMAGES AWARDED
The Federal Court awarded Ms Taylor compensation of more than $268,230 including:
- General damages for sexual harassment: $140,000
- General damages for victimisation: $40,000
- Aggravated damages: $15,000
- Future out-of-pocket expenses: $3,000
- Future economic loss: $46,284
IMPLICATIONS FOR EMPLOYERS
The $15,000 awarded for aggravated damages stemmed from the employer’s inability to recognise or acknowledge the disrespectful environment that they had created for Ms Taylor.
Employers must prioritise proactive measures, including comprehensive policies and training initiatives, to safeguard workplace integrity and mitigate legal liabilities.
KEY LESSONS
- Employers who contravene their obligations under the Sex Discrimination Act may face significant consequences, including substantial financial penalties.
- The court is willing to award significant damages to successful applicants claiming that their employer has breached their obligations.
- This case emphasises the importance of employers having effective controls to eliminate sexual harassment, including a policies, training and reporting pathways.
- Conduct that may not be overtly sexual in nature, when taken together, may constitute sexual harassment.
- To avoid penalties, employers should proactively address sexual harassment risks, considering workplace culture, diversity, policies, training, support for women, wellbeing promotion, legal compliance, awareness promotion, accessible complaint pathways, thorough investigations and continuous improvement.
CONCLUSION
This was a landmark decision handed down by the Federal Court.
Notable elements of the case include:
- High Award of Damages: The significant sum awarded in general damages to Ms Taylor highlighted the severity of the harassment and its impact on her well-being. Such a substantial award set a new benchmark for damages in similar cases.
- Legal Precedent: The case contributed to the evolving legal landscape surrounding workplace harassment and discrimination. By addressing nuanced aspects of sexual harassment, such as the interpretation of certain behaviours and the employer’s liability, it provides valuable guidance for future legal proceedings.
- Emphasis on Employer Responsibility: The decision underscored the employer’s responsibility to create a safe and respectful work environment, free from harassment and discrimination. It served as a reminder to employers of the potential consequences of failing to address instances of workplace misconduct promptly and effectively.
The Court was not required to consider whether the employer breached the new positive duty in this case, because the conduct occurred before the SD Act reforms.
However, this case sets a new benchmark for general damages in similar cases moving forward. There is a trend toward increasing amounts of damages for victims, making it more crucial than ever that businesses of all sizes understand and abide by all 7 standards of the positive duty.
Reference
Details of this case are published by the Federal Court of Australia.
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