Compensation for Sexual Harassment and Sexual Assault at Work (NSW)

In New South Wales, the legislation related to sexual harassment is the Commonwealth Sex Discrimination Act 1984 and the NSW Anti-Discrimination Act 1977. These Acts define sexual harassment as the behaviour of a sexual nature that is not welcome and that would cause a reasonable person to feel offended, intimidated or humiliated. When sexual harassment and sexual assault occur in the workplace, the victim may be eligible for compensation. This article deals with compensation for sexual harassment and sexual assault in the workplace.

What is sexual harassment?

Some examples of sexual harassment that may occur at a workplace include:

• ogling;
• sexually suggestive comments or jokes; or
• unwanted questions or comments about a person’s personal life.

It is under this legislation that compensation for sexual harassment or sexual assault in the workplace can be claimed in New South Wales.

Sexual offences

The Crimes Act 1900  makes some more severe forms of sexual harassment a crime. These are:

• Sexual assault – This is defined by the Act in section 61l as sexual intercourse with another person without consent. In other jurisdictions this crime is called rape;
• Sexual touching – This is defined in section 61KC as non-consensual sexual touching and inciting of sexual touching; and
• Sexual acts – This is defined in section 61KE of the Crimes Act as a non-consensual sexual act that is carried out on the victim or a third person.

Effects of sexual harassment or sexual assault in the workplace

A victim of sexual harassment or sexual assault in the workplace can experience a range of impacts, including:

• Psychological disorders including anxiety and depression;
• Physiological effects including sleep disorders, weight fluctuations or nausea;
• Lowered self-esteem;
• Sexual dysfunction;
• Job-related losses such as a loss of satisfaction at work and decreased moral; and
• Economic losses from loss of earnings if they choose to leave the workplace where sexual harassment or sexual assault occurred.

Liability of workplaces

An employer in New South Wales must ensure it has taken reasonable steps to lessen the risk of sexual harassment in the work environment. If an employer cannot show it has taken such steps, then it can be found to be vicariously liable for the conduct of the employee who engages in sexual harassment or sexual assault.

In the case of Richardson v Oracle Corporation Australia Pty Ltd [2014], the court held that having policies, procedures and training in place is not sufficient. Rather, the employer needs to have an active interest in preventing sexual harassment and disciplining who engage in it. Employers should also make employees aware that it is against the law for them to sexually harass anyone at work and the legislation that applies.

For an employer to be liable the sexual assault or sexual harassment does not have to take place at the workplace’s offices. It can take place at a function related to work, such as workplace drinks at a bar or restaurant or on work-related trips.

Making a claim for compensation for sexual assault or sexual harassment at work in New South Wales

There are two different organisations through which you can pursue in New South Wales for making a compensation claim for sexual harassment or sexual assault at work. These are through the Australian Human Rights Commission or Anti-Discrimination New South Wales. The most suitable forum will depend on several things, including the type of claim you are making, the date or dates on which the relevant harassment or assault took place, the amount of compensation you are seeking, and the legislation upon which you would like to base you claim.

Should you have experienced a more severe form of sexual harassment, such as a sexual assault, you may also like to report the incident to the police so that they can consider laying criminal charges.

Some recent cases on compensation for sexual harassment or sexual assault in the workplace

The below court decisions discuss compensation for sexual harassment or sexual assault in the workplace.

Richardson v Oracle Corporation Australia Pty Ltd [2014]

In this case, Ms Richardson worked with the perpetrator of the sexual harassment, Mr Tucker, at Oracle Corporation in Sydney, New South Wales. The sexual harassment included repeated comments over a number of months that sometimes were made in front of colleagues and clients.

As a result of the conduct, Ms Richardson suffered a chronic adjustment order, anxiety and depression developed problems in her sexual relationship with her partner.

Ms Richardson was awarded a total of $130,000 in damages as compensation for sexual harassment. $100,000 of these damages was for the loss of enjoyment of life and mental illness and distress caused by the conduct and the remaining $30,000 were for the loss of income.

Hill v Hughes [2019] FCCA 1267

This case concerned sexual harassment in a small law firm just south of Bryon Bay in New South Wales. The principal of this firm, Mr Hughes, engaged in sexual harassment of the paralegal/trainee solicitor, Ms Hill. The harassment included the following conduct:

• Forced hugs;
• Entering the victim’s room on a work trip partially undressed;
• Several emails containing romantic suggestions; and
• Veiled threats that if she did not consent to be romantically or sexually involved with the principal, her job could be compromised.

The compensation for sexual harassment awarded was $170,000 in total, including $50,000 in aggravated damages.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.