Kim McLagan: Okay, Monnette, so now we’re onto our main topic, and it’s really topical. Obviously sexual harassment cases are really topical, but we’re talking about two different cases today which really illustrate how important it is for employers to eliminate sexual harassment. And that’s not just acting on a complaint after it’s made. It’s taking really positive steps to stop it before it even starts.

Monnette Samo: Yep.

Kim McLagan: And one of the most important ways they can do that is to A, have a really good sexual harassment policy,

Monnette Samo: Yep.

Kim McLagan: and not just sexual harassment, any form of harassment: bullying, discrimination.

Monnette Samo: Yep.

Kim McLagan: But not just have the policy, but really engage the staff in training on that policy

Monnette Samo: Yeah, that’s right.

Kim McLagan: because we’ll see in this first case, they had a policy, but they didn’t actually provide proper training. It was just an online module, so they had no idea if it was actually being ingested by the staff. So do you want to take us through that first case?

Monnette Samo: Yeah, so this was someone who worked at The Star Casino, and they were sexually harassed by a manager, both at work, but then also after hours at a birthday party. And so the manager had actually breached the sexual harassment policies in the past, and the employer knew that, but, anyhow, they continued to work and had done it again.

The employer did argue that they were not vicariously liable for his conduct at the birthday party, which is fine ’cause that didn’t occur in the course of work, but they also claimed that they actually had taken steps, or positive steps, to prevent the harassment, and that was simply by implementing policies,

Kim McLagan: Yeah.

Monnette Samo: and by having the training, and that was it.

Kim McLagan: Yeah.

Monnette Samo: So, like, sort of in that context, the Commissioner said that there was a heightened risk of him committing that sort of conduct again in the workplace, and so, yeah, the training methods were online where you could possibly skip material ’cause you want to sort of hurry that up and then just get back into work. So it was decided or held that it was a lack of engagement of a genuine training.

Kim McLagan: So even us in our little firm, and obviously we’ve got a strong workplace team, but Andrew provides our annual sexual harassment and discrimination training, and he makes it very clear, “This is what we expect of you. “This is the behavior we will not tolerate. “And if you do engage in this sort of behavior, “we have told you that it’s unlawful, “so therefore we will not protect you.”

Monnette Samo: Yeah.

Kim McLagan: “We will not be vicariously liable for your behavior “because we’ve made it very, very clear “that we won’t tolerate it.”

Monnette Samo: Yeah.

Kim McLagan: And so, in that case that you were just talking about, the casino and the manager were both jointly liable to pay her $50,000.

Monnette Samo: Yeah.

Kim McLagan: But then the manager himself was liable to pay personally nearly $78,000

Monnette Samo: Yeah, exactly.

Kim McLagan: for pain and suffering, general damages, and loss of earnings. So-

Monnette Samo: that’s pretty significant.

Kim McLagan: Pretty significant. And so we’ve got another case to compare which is Saunders and Jalliah Mining. It’s an unfair dismissal case. It’s not a sexual harassment case. But it’s the employer received a complaint about one of their staff using the two-way radio to make terrible comments and suggestions of a sexual nature. And so, following receipt of the complaint, they listened to the recordings, sent him a show cause,

Monnette Samo: Yep.

Kim McLagan: and his support person said, “Well, can he resign?” And they agreed to that. But then he brought an unfair dismissal claim which, to me, is bizarre, but, anyway. So they objected on the basis that he resigned, but that was overturned because it was still the employer’s own initiative. That’s all fine.

Monnette Samo: Yep.

Kim McLagan: But then, in terms of, was there a valid reason for the termination? His comments most certainly were. And was the termination lawful?

Monnette Samo: Yeah.

Kim McLagan: Because the employer, in this case, had provided very robust training, particularly around the use of the two-way radio only six months earlier, and that he was under no misapprehension that what he was doing was unlawful, then the termination was upheld as being a valid and fair termination.

Monnette Samo: And he also argued that because supervisors were present, and they looked like they were condoning the behavior, that it was okay for him.

Kim McLagan: Yeah.

Monnette Samo: He’s actually used that as an excuse. But, yeah, it was held that, no, it doesn’t matter who’s present, and also that was specified in the training materials and the policies for the employer, which was also good.

Kim McLagan: You have to be really careful with condonation? Supervisors really should, if they see any adverse behavior or misconduct, they really should be stepping up and addressing it immediately, but they were lucky in this case that that wasn’t an issue for them, and that was only because of the nature of the training that they’d provided.

Monnette Samo: Yeah. Yeah.

Kim McLagan: Okay, so now we’re going to move on to our case study.

Monnette Samo: So, “Noel’s behavior within his team was causing problems. “He spoke frankly and celebrated being anti woke. “Unfortunately, his language was frequently sexist and rude. “Janine, his boss was over it. “She emailed Noel and arranged a meeting with him. “She explained in the email she wanted to discuss “his manner and style with other staff “as well as concerns raised by the women he worked with.

“Noel attended the meeting with Dave, “a co-worker who shared a similar disposition to Noel, “and Janine felt a bit overwhelmed. “Noel went on the front foot and demanded examples. “All Janine could offer were complaints and impressions. “He got up to go, and Janine said for him to stay “and that she will review the complaints she has online “whilst he was there and take him through it. “Both he and Dave stormed out “and Noel went to his GP and got a certificate of capacity, “claiming psychological harm from the management process.”

Kim McLagan: Okay.

Monnette Samo: So the questions?

Kim McLagan: Yep.

Monnette Samo: All right. So, “Does Noel have a good workers’ compensation claim “and what defenses are there for the business?”

Kim McLagan: Okay, so the threshold for any psych, we’ll talk about psych claims in Victoria. So he must meet the threshold of having a mental injury which must cause significant behavioral, cognitive, or psychological dysfunction, and the injury must arise out or in the course of employment.

I doubt that he will meet the definition of mental injury given the nature of the beast and what happened, but, in any event, let’s just say the IME supports him and that he does. The company would have a good chance of defending it. It’s not ideal the way Janine wasn’t prepared for the meeting, but the good thing she did was he was able to bring a support person. So I assume she invited him to bring a support person.

Monnette Samo: Yeah.

Kim McLagan: And, oh, sorry, she also gave him a heads-up about the purpose of the meeting by telling him that she had received complaints and wanted to have talked to him about that. If she’d done neither of those things, definitely the claim would’ve succeeded, and the reasonable management action defense would’ve failed.

Monnette Samo: Yep.

Kim McLagan: What she should have done even better was instead of going through all the complaints with him or trying to, was just to say to him, “We’ve received these complaints. “This is the broad nature of the complaints. “We’re going to appoint an investigator.” That would’ve been a much better process.

Monnette Samo: Sure. “Noel’s comments were consistently sexualized in manner “but often not directed at any woman. “Is that a breach of law?”

Kim McLagan: Yes. It would meet the definition of misconduct, and he would’ve created a hostile workplace in that his behavior was repeated, it was unreasonable, it involved harassment, and it created a risk of causing psychological harm to the staff.

Monnette Samo: All right. “So Noel has specifically sent messages and emails “to two women he works with “which were vulgar and contained sexual jokes “and commented on their appearance. “He had not received any training “on sexual harassment and bullying. “Is his conduct constitute sexual harassment “and can he be disciplined?”

Kim McLagan: Yes, so it was unquestionably sexual harassment. And I think any claim for sexual harassment by those women would succeed against the business because they hadn’t, from what I can tell, provided any training to Noel, and so general damages alone would be upwards of $50,000 for them. In terms of being disciplined, it certainly provides a valid reason to terminate Noel. The failure to train would go to the question of whether or not it was unreasonable, the termination was unreasonable. I think the Fair Work Commission are being harder on employees for poor behavior. So I’m confident that his claim for unfair dismissal would be rejected.

Monnette Samo: Good. “Was his conduct a breach of safety law?”

Kim McLagan: Yes, definitely. So he was creating psychological hazards relating to sexual harassment and a hostile workplace. It was a breach by the company failing to provide a safe workplace, not having safe systems in place given their failure to train, lack of adequate supervision, and not managing his conduct immediately. So if serious harm had have eventuated from his conduct, that may result in a reckless endangerment charge, and Noel would also be at risk of a prosecution personally if the company were charged as well.

Monnette Samo: Wow. So, “Was his refusal to stay in counselling meeting “a breach of law, “and if so, how?” And, “Should Janine have said something to make that clear?”

Kim McLagan: Yes, so he failed to comply with a lawful and reasonable direction to stay in the meeting although Janine could have made that direction a little bit clearer. But also the fact that Dave, as his support person, potential breach as well, given that if he was involved in similar sort of conduct as Noel. So there you have it. That’s our first “Friday “Workplace Briefing”

Monnette Samo: Yeah. Together.

Kim McLagan: So I hope that was okay. I tend to ramble on a little bit, but… No. That was nice and informative as always.

Monnette Samo: Thanks, Kim.

Kim McLagan: Thanks everyone. Till next time.

Monnette Samo: Bye.