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January 2021

Aggravated damages awarded in workplace sexual harassment case

Aggravated damages awarded in workplace sexual harassment case

The Case

Lucy Orchard v Frayne Higgins (2020)

Sanity employed Ms Orchard as a store manager in Tasmania. Ms Orchard claimed a Toll Transport courier, Mr Higgins, had sexually harassed her in the workplace by:

  • slapping her on the bottom;
  • calling her “Juicy Lucy” on six occasions; and
  • asking her about her relationship status on numerous occasions.

Ms Orchard complained to her manager. While Mr Higgins did not deny the incidents, no action was taken.

A Sanity area manager found out about the incidents and he commenced an investigation. However, when Ms Orchard received a phone call from Mr Higgins’s wife, she felt pressured to drop the matter.

Ms Orchard later received a letter from Mr Higgins that threatened to make a defamation claim against her. He asked that she retract the allegations, apologise and pay him $30,000. Ms Orchard thereafter resigned from her employment and lodged a claim in the Tasmanian Anti-Discrimination Tribunal (TAT).

The Verdict

The TAT found that Mr Higgins calling Ms Orchard “Juicy Lucy” was not overtly sexual on its own, but in conjunction with the bottom slapping and enquiries about her relationship status, it became sexual in nature and was unwelcome.

The TAT found that Mr Higgins’s threat of defamation was an aggravating factor.

The TAT found Mr Higgins had sexually harassed Ms Orchard and ordered him to pay her $45,000 ($25,000 of which was for aggravated damages).

The Lessons

Employers need to take all reasonable steps to prevent sexual harassment in the workplace. This includes:

  • having effective policies in place;
  • training workers in those policies;
  • promptly investigating claims; and
  • implementing appropriate steps where claims are proven.

In the case of contractors coming into the workplace, appropriate steps might include contacting the contracting organisation, making a complaint to management and arranging for an alternative contractor to be provided.

It is also important to remember that compensation can be substantially increased by aggravating factors, such as how the employer handles the complaints.

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