By Charles Power

As an employer, you will be liable for any acts of sexual harassment committed by your employees in the course of their employment, unless you can show you took reasonable steps to prevent the conduct.

However, these steps are not confined to steps taken prior to the incident and you must investigate any sexual harassment allegation properly if you want to avoid vicarious liability as an employer.

In a recent decision in the South Australian Employment Tribunal (SAET), Evans v Pasadena Foodland and Crugnale (2019), a supermarket and its head chef were ordered to jointly pay an employee $30,000 in compensation because the employer did not properly investigate a sexual harassment complaint.

Employer sees ‘nothing of concern’

The employee claimed the chef had deliberately brushed past behind her on three occasions in one day.

She said the chef pushed his body up against hers and glided the palm of his hand between her buttocks as he walked past.

The third time he did this, she said she could feel something hard press up against her, which she thought could have been a belt buckle, or his erection.

After she reported the incidents, the management reviewed the CCTV footage and decided they saw “nothing of concern”. The security footage was destroyed two weeks later.

Liability denied for ‘accidental’ touching

In the SAET hearing, both the employer and the chef denied that any sexual harassment had occurred and that the touching was nothing more than “accidental”.

The chef submitted that because of his larger build and the narrow workspaces, it was more likely for him to bump into the employee.

He contended that the employee could not have felt his erect penis, as it was not capable of extending past the girth of his stomach, nor was he wearing a belt, but rather pants fastened with a knotted cord.

The employer argued it had taken reasonable steps to prevent sexual harassment from occurring by:

• maintaining a workplace policy for the prevention and reporting of sexual harassment;
• ensuring the employee who had allegedly engaged in sexual harassment was aware of and understood that policy prior to employment; and
• investigating the complaint.

Insufficient training and late, inadequate investigation

SAET Deputy President Judge Leonie Farrell found that the employer had failed to properly train staff in relation to sexual harassment and the procedure by which complaints would be handled (which resulted in the employee in this case raising her complaint with multiple people).

Judge Farrell also found that the employer’s investigations were inadequate.

The employer only investigated the matter about one month after the incident, following an altercation between the chef and the employee.

The employer should have conducted a better, formal investigation more promptly and the matter should have been escalated to senior management, given the seriousness of the allegations.

The defects that were found with the investigations included:

• a proper statement was not taken from the complainant in a timely manner and in a private place (it was taken on the shop floor);
• the precise allegations were not put to the perpetrator and a statement was not obtained from him in a timely manner;
• other potential witnesses were not interviewed in a timely manner;
• the CCTV footage was not reviewed and shown to the parties – as a result it was deleted; and
• the outcome of the investigation was not reported to the parties in a clear and timely manner.

Judge Farrell also rejected the employer’s contention that the employee’s history of being late for work or warned about her performance negated or diminished the likelihood of her complaints being true.

The employee sought $150,000 in general damages, but Judge Farrell said this amount was excessive and “must be confined to the conduct on that day” as the sexual harassment was “not of the most serious kind nor did it continue over a period of time”.

The employer and chef were found jointly and severally liable for general damages including “psychological harm, suffering and hurt feelings” they had caused to the employee.

Judge Farrell ordered both parties to jointly pay the employee $30,000 in compensation.