How not to deal with a Sexual Harassment complaint

At our Walking the Talk conference in April, we discussed the recent decision of Ruby Kerkofs v Mohammed Abdallah & Parker Manufactured Products Pty Ltd (Human Rights) [2019] VCAT 259.

In this case, the Victorian Civil and Administrative Tribunal (the VCAT) ordered that Mr Abdallah and Parker Manufactured Products Pty Ltd (the Employer) jointly pay Ms Kerkofs $130,000 by way of pain and suffering damages for sexual harassment. The VCAT further ordered that the Employer pay aggravated damages of $20,000 to Ms Kerkofs due to, among other things, failing to conduct any sort of investigation into Ms Kerkof's sexual harassment complaint.

While employers may be faced with vexatious complaints in the workplace that do not warrant an investigation, a complaint should not be dismissed without proper consideration and if need be, an investigation.

Facts

Ms Kerkofs worked at the Employer, a steel product manufacturer, for a very short period. She commenced employment on 4 May 2016, however, she left that employment on 16 May 2016 and did not return. Ms Kerkofs claims that during that short time that she worked with the Employer she was sexually harassed by Mr Abdallah. In summary, Ms Kerkofs alleged that:

• At her workplace, in an office within the factory, she was subjected to various instances of unwelcome conduct of a sexual nature by Mr Abdallah, including inappropriate nicknames, sexually inappropriate comments about her body and uninvited shoulder and neck massages from behind; and

• At Ms Kerkofs’ home on 16 May 2016, Mr Abdallah sexually harassed her while she was unwell, in her bed, after being driven home by Mr Abdallah (as he was directed to do so by his immediate superior), including inappropriate comments, kissing and touching.

On 19 May 2016, Ms Kerkofs called her manager to inform him that she had been sexually assaulted by Mr Abdallah. Ms Kerkofs also emailed a written complaint to the Director of the Employer which set out the alleged conduct.

The Employer did not conduct a proper or independent investigation into Ms Kerkofs’ complaint.

Ms Kerkofs claimed damages under the Equal Opportunity Act 2010 (Vic) (the EO Act) against Mr Abdallah in relation to this sexual harassment. Ms Kerkofs also claimed damages against the Employer under the vicarious liability provisions of the EO Act.

Further, at trial, the Employer, who was self-represented, asserted that it did undertake an investigation, however, decided that Ms Kerkofs’ complaint was baseless. It also embarked, on what the VCAT described as “a trenchant defence of” Mr Abdallah, which included an agreement that the Employer would indemnify Mr Abdallah in respect of all his costs and any award of damages in the matter.

Decision

The VCAT found, on the balance of probabilities, having regard to the conflicting evidence of the parties, that each of the acts of sexual harassment complained of by Ms Kerkofs was in fact committed by Mr Abdallah.

The VCAT further found that the Employer was vicariously liable for Mr Abdallah’s conduct, pursuant to section 109 of the EO Act. Although the Employer had a defence available to it pursuant to section 110 of the EO Act (to prove, on the balance of probabilities, that it took reasonable precautions to prevent Mr Abdallah from contravening the EO Act), at trial, the Directors of the Employer repeatedly submitted that it did not wish to rely upon any potential defences.

The VCAT ordered that Mr Abdallah and the Employer jointly pay the sum of $130,000 to Ms Kerkofs by way of pain and suffering damages. The VCAT also ordered that the Employer pay aggravated damages of $20,000 to Ms Kerkofs as a result of the Employer failing to conduct any sort of investigation into Ms Kerkof's complaint and due to the fact that it entered into an indeterminate arrangement with Mr Abdallah and admitted at trial that it had told Mr Abdallah it would indemnify him in respect of all his costs and any award of damages.

Take Home Messages

While the legislation in this case is specific to Victoria, it is important to note that there is similar legislation under national and state jurisdictions that would apply had this situation arose elsewhere in Australia.

If an employer fails to provide a safe workplace, or fails to take action in respect of misconduct or harassment, employees may feel so unsafe that they do not wish to come to work.

Unless an assessment has been made to determine that a complaint is vexatious, an employer should always investigate a matter raised by an employee, especially a complaint alleging sexual harassment against an employee.

We recommend employers implement an appropriate complaints handling procedure to effectively deal with complaints (whether they are vexatious or not) made against employees.