Small business found to breach positive duty for not taking reasonable measures to prevent sexual harassment

 

Case name: Oliver v Bassari (Human Rights) [2022] VCAT 329

 

In 2022, in a case before the Victorian Civil and Administrative Tribunal (VCAT), an employer faced legal consequences for failing to prevent sexual harassment in their workplace. 

They were ordered to pay $150,000 in general damages as they could not show that they had sufficiently taken ‘reasonable and proportionate measures’ to prevent harassment.

This case is a perfect example of why it’s important to actively prevent workplace sexual harassment and sex discrimination through regular and meaningful processes, and the consequences for not implementing these practices. 

 

CASE BACKGROUND

The case, Oliver v Bassari (Human Rights) [2022] VCAT 329, involved a Melbourne beauty therapist, a colleague, her manager and employer.

Ms Devorah Oliver, a beauty therapist, filed a complaint against a co-worker, Federico Catalfamo, for sexual harassment and also her office manager and employer (trading as Man Oh Man) for vicarious liability. 

 

INCIDENT DESCRIPTION

Ms Oliver alleged instances of sexual harassment by Catalfamo, which included inappropriate touching, suggestive comments and requests for sexual acts. Despite complaints to management, the harassment persisted, leading to her resignation in November 2018.

Ms Oliver alleged that not only did her employer and manager not do enough to prevent and address the behaviour, they encouraged the harassment.

 

LEGAL PROCEEDINGS AND DECISION

Ms Oliver pursued legal action under the Equal Opportunity Act 2010 (Vic), alleging the employer’s vicarious liability for Catalfamo’s actions. 

The employer claimed that they did have measures in place to prevent sexual harassment including:

  • An employee handbook which contained policies around sexual harassment 
  • A procedure of providing to all new employees with the handbook via email
  • This handbook was discussed in staff meetings
  • This handbook was available electronically to all staff

VCAT found in favour of Oliver, ruling that the employer failed to take reasonable precautions to prevent harassment. The tribunal rejected the employer’s defence, finding that the precautions taken by the employer, including making the Handbook available electronically and discussing it in staff meetings, were insufficient.

The employer and manager were not found to have encouraged the harassment.

Catalfamo admitted to engaging in unlawful conduct, which led to separate criminal proceedings.

 

OUTCOME

As a result of their employer’s negligence, the employer was ordered to pay Oliver $150,000 in general damages. 

 

IMPLICATIONS FOR EMPLOYERS

This decision underscores the financial repercussions of non-compliance with the positive duty outlined in the Sex Discrimination Act.

It’s clear from this case that employers need to be doing more than providing policies and handbooks in order to prevent sexual harassment in the workplace. 

Things that were notably missing from this workplace included:

  • a policy to manage unacceptable workplace behaviour
  • a procedure for managing complaints
  • training for its employees around workplace behaviour

KEY LESSONS

  • Employers must take action to prevent and respond to claims of sexual harassment.
  • The mere existence of policies is not enough. Employers must make sure their staff understand anti-harassment policies.
  • Regular training is crucial. Businesses need frequent refresher training sessions on harassment policies to maintain awareness and compliance.
  • Employers should proactively monitor the workplace for any signs of harassment and promptly address any breaches.
  • Employers must establish robust mechanisms for investigating and addressing harassment complaints.

Training and comprehension of policies are vital to fulfill the positive duty. Complaints should be taken seriously and addressed promptly to prevent escalation.

CONCLUSION

Oliver v Bassari serves as a reminder of the legal obligations placed on employers to prevent sexual harassment in the workplace. 

This case is interesting because, although it occurred before positive duty was legislated, it was still an expectation that the employer would and should take measures to prevent sexual harassment. 

Businesses who do not satisfy their positive duty obligations could face legal action and financial penalties. By understanding and adhering to the positive duty, businesses can create safer and more inclusive work environments while mitigating legal risks.

 

Reference

Details of this case are published by the Federal Court of Australia.

 

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