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Perspective

Employee receives $5,000 in aggravated damages due to insincere apology for sexual harassment

Aggravated damages may be awarded when a respondents conduct during a proceeding increases the hurt suffered by the complainant, if that conduct is unjustifiable, improper or disingenuous.

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An insincere apology may be described as unjustifiable, especially if there is no attempt to subsequently issue a full and proper apology.

In Yelda v SWC and VW [2021] NSWCATAD 107, an employee was awarded $5,000 in aggravated damages for the insincere apology she received from Vitality Works (VW) for its role in publishing a poster for her employer as part of a safety campaign, which pictured her pointing toward the slogan, “Feel great – lubricate!”.

VW was found guilty of sexual harassment for its role in the incident, late last year. Read our previous article discussing this finding, here.

VW attempted to minimise its role in the incident and trivialised what occurred by apologising for any “miscommunication” over the poster and admitted its apology was not for its failure in realising the sexual innuendo in the poster but rather for the employee’s discomfort. NCAT found this was unjustifiable, describing the apology as ‘minimal’ and full of ‘weasel words’.

The employee was awarded a further $195,000 to account for her associated psychological injury and lost earnings. NCAT calculated her loss and damages to be $320,000 but could only award her $200,000 due to a statutory cap.

Lessons

  • Conduct may be unjustifiable, improper or disingenuous even where there is no malicious intent.
  • Damages for breaches of anti-discrimination are subject to statutory caps in some jurisdictions. In NSW, the cap is $100,000 for each respondent. There is no cap in Victoria and Queensland.
  • Where breaches of anti-discrimination legislation cause or exacerbate an employee’s psychological injury, they may seek damages irrespective of whether they received workers compensation for the injury.
  • Receipt of workers compensation and Job Seeker payments will not preclude an employee’s ability to recover damages for lost earnings if they were unable to return to work. Lost earnings are calculated as the difference between payments received and that which would have been received had the employee continued working. In the above case, the employee would have received $243,280 in damages for lost earnings if it were not for the statutory cap.

Written by Nes Demir

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Our team are here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas or Kim McLagan.

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