Pub­li­ca­tions

Sex­u­al Harass­ment case results in $100,000 award­ed in damages


In brief — GLSPLP (Human Rights) [2013] VCAT 221

A recent mat­ter before the Vic­to­ri­an Civ­il and Admin­is­tra­tive Tri­bunal (VCAT) has result­ed in a large award of dam­ages to a female grad­u­ate lawyer who was sex­u­al­ly harassed dur­ing her prac­ti­cal legal train­ing placement.


Background

VCAT sup­pressed the iden­ti­ties of the par­ties, refer­ring to the lawyer as Ms GLS and the employ­er as Mr PLP. GLS had com­menced her prac­ti­cal legal train­ing place­ment with PLP in May 2011 and the sex­u­al harass­ment start­ed soon after.

GLS alleged 14 inci­dents of sex­u­al harass­ment through­out the peri­od of employ­ment, these includ­ed: that PLP had repeat­ed­ly propo­si­tioned her for sex, made per­sis­tent sex­u­al com­ments and advances, engaged in unwel­come mas­sage and touch­ing, showed her a porno­graph­ic video of him­self hav­ing sex with a pros­ti­tute, ogled her breasts, attempt­ed to sex­u­al­ly touch her, and had sent her a pho­to of him­self naked.

The harass­ment cul­mi­nat­ed in PLP assault­ing GLS in a car park in July 2011 and sum­mar­i­ly dis­miss­ing her short­ly there­after. After GLS lodged her VCAT sex­u­al harass­ment appli­ca­tion, PLP attempt­ed to block her admis­sion as a lawyer claim­ing that she was not a fit and prop­er person.

The Decision

Was GLS an Employee?
The first thresh­old issue was whether GLS was an employ­ee and thus pro­tect­ed by the for­mer Equal Oppor­tu­ni­ty Act 1995 (VIC) from sex­u­al harassment.

Jus­tice Garde con­clud­ed GLS was an employ­ee because she was paid first­ly $50 then $100 per day to work with PLP. Her con­sid­er­able indus­try expe­ri­ence meant she was val­ue adding to the firm and PLP sum­mar­i­ly dis­missed her there­by show­ing he viewed her as an employ­ee. Fur­ther­more, her work was super­vised by PLP and she was put for­ward to clients as work­ing at the firm.

Sex­u­al Harassment
PLP gave evi­dence that at times the advances were wel­comed and that some alleged behav­iour did not occur. PLP had set up and used video and audio record­ing devices in his office and such record­ings were used as evi­dence in the mat­ter. Jus­tice Garde dis­ap­proved of these actions cit­ing PLP’s stand­ing as a lawyer and the con­se­quences if GLS had at some point con­sent­ed to any of the request­ed sex­u­al con­duct, i.e. that PLP would have record­ed the con­duct with­out her per­mis­sion for his own pri­vate view­ing later.

Jus­tice Garde found the exam­ples of sex­u­al harass­ment includ­ed con­ver­sa­tions secret­ly record­ed by PLP which showed he hound­ed and pres­sured” GLS for sex and sex­u­al favours. His Hon­our accept­ed GLS’s evi­dence as to her reac­tion to the advances and requests of PLP. Fur­ther the video and audio evi­dence sup­port­ed her evi­dence that the con­duct was not accept­ed. Jus­tice Garde accept­ed that 11 out of the 14 alleged inci­dents were sex­u­al harassment.

His Hon­our reject­ed PLP’s claim that GLS could have refused his phys­i­cal grop­ing and requests for sex with more force and at an ear­li­er time. Jus­tice Garde said the oblig­a­tions of employ­ers were clear;

If an employ­er does engage in the sex­u­al harass­ment of an employ­ee, it is not appro­pri­ate to crit­i­cise [the employ­ee] on the basis that she should have han­dled the sex­u­al harass­ment bet­ter or should have stormed out of the room or escaped from the harass­er ear­li­er. It is enough if the [principal’s] con­duct con­sti­tutes sex­u­al harass­ment under the Act,

Fur­ther­more, GLS was in a dif­fi­cult sit­u­a­tion as she was depen­dent on PLP to sign off on her prac­ti­cal legal train­ing place­ment and she was good friends with PLP’s part­ner.

The Dam­age
Evi­dence was tak­en from two psy­chol­o­gists who con­sid­ered GLS was suf­fer­ing from post trau­mat­ic stress dis­or­der and that the caus­es includ­ed; the sex­u­al harass­ment, inci­dent in the car park, an inci­dent where PLP tried to grab GLS’s breasts and the fact that she was not prac­tis­ing as a lawyer. His Hon­our concluded,

Her social and occu­pa­tion­al func­tion­ing is impaired. She suf­fers from embar­rass­ment, revul­sion, guilt, social with­draw­al, sleep dis­tur­bance and increased appetite.

On the basis of this evi­dence Jus­tice Garde ordered PLP pay $100,000 in dam­ages to GLS.