An optometrist resigned her position stating it was impossible for her to continue working there claiming she had been severely traumatised as a result of being sexually harassed by the owner. Shortly thereafter the small business owner received a AHRC claim for sexual harassment from the employee’s lawyer including a compensation claim for $87,000.

Hunter Employee Relations represented the employer at the initial hearing before the Australian Human Rights Commission.

The employee outlined two instances of sexual harassment which included the owner getting changed in the office and a Christmas close down hug during which she claimed the owner had put his hand on her posterior. The owner acknowledged he had changed his trousers and shift in the office on one occasion as he has been in a hurry to go to a meeting but stated she had been facing the other way looking at her computer and there was no exposure. He denied placing his hand on her posterior while giving the employee a hug on Christmas Eve.

At the initial hearing the employee sounded distressed and cried a lot while presenting her side of the story stating she was still psychologically traumatised from the harassment. The employee’s lawyer placed a claim of $87,000 compensation on the employer or the matter would proceed to the Federal Court for full hearing.

After the AHRC hearing was adjourned we set to work to systematically dismantle her case. A number of key facts:

• The employer getting changed in the office took place 6 months before her resignation while the Christmas hug took place several months prior to that. She had never raised these issues until her resignation. Her resignation followed a counselling meeting following her being quite disrespectful towards the owner in front of a client. 

• The $87,000 claim included $160 for psychological counselling. 

• Given the level of psychological trauma claimed due resulting from those events the employee would not have waited that long to resign her employment. In the interim they had worked together in a cordial manner. Secondly, it is logical, given the level of trauma and compensation claimed, the employee would have received more than one psychological counselling session in the 9 months from the initial event to the date of the AHRC hearing. 

It was recommended to the owner that they make a small settlement offer of $1000 (the parties must be seen to make a genuine attempt to settle a matter) to which was attached a firm “see you in Court” notice if not accepted.

Neither the ex-employee or their lawyer were ever heard from again – and no Federal Court proceedings were initiated.

At a general level it is important to note in such cases what is more important is how the employee perceived the harassment behaviour towards them rather than how it was intended.

Additionally, in a small business environment, where there are often no witnesses, whose version of events will be believed. Managers should be careful not to take any action (even a compassionate hug or shoulder massage) that could be interpreted against them at a future date.

In this matter the employee’s case had a number of flaws. Where this is not always the case you will be negotiating a much higher settlement amount.

The employee incurred zero legal costs in this matter being represented by a ‘no-win no-fee’ lawyer.

Unfortunately, this happens. It was not the first such claim I had dealt with.

If you receive a legal letter or AHRC application from an employee it is vital that you seek professional assistance before you respond.

Employers are liable for the actions of their employees in sexual harassment actions. In my experience senior management is often the last to know when one employee is harassing another in the workplace. What is tragic is when they find out when they receive the legal claim letter with the employee’s AHRC application.

But it could have been prevented.

Educate your employees.

Put in place appropriate policies and procedures to try and prevent this from happening.

As a minimum employers should provide basic education to employees at all levels, a formal employer policy position and a mechanism for employees to lodge (and deal with) allegations internally - rather than finding out about an incident via a letter from an employee’s solicitor.

If you need assistance putting in place these steps, please get in touch.

Please let me know if you wish to receive the complimentary Hunter Employee Relations ‘Employer Guide to Bullying, Harassment & Discrimination in the Workplace’.

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Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance