No leniency for a small business that failed to provide training for its employees
Recently, a small business was ordered to pay one of its employees $150,000 in general damages.
The decision in Oliver v Bassari (Human Rights) [2022] VCAT 329 (28 March 2022), highlights, that employers must take action to prevent and respond to claims of sexual harassment and, any other form of unacceptable behaviour (e.g. bullying, discrimination) that may occur in the workplace.
Let’s take a look at what was alleged and what unfolded in the case of Oliver v Bassari.
What was alleged?
Ms Oliver was employed by ‘Man Oh Man’ (a beauty salon in Victoria).
It was alleged that Ms Oliver’s work colleague, Mr Catalfamo, sexually harassed her at the beauty salon for a period of about 11-months.
Mr Catalfamo made suggestive and inappropriate comments, he made jokes, enquired about and also made requests (all of a sexual nature). He touched Ms Oliver and there was also an incident of sexual assault.
Ms Oliver complained about Mr Catafamo’s behaviour on 2 separate occasions to the office manager/director, Ms Bassari (before the incident of sexual assault occurred).
Ms Oliver alleged that no action was taken to prevent the incident of sexual assault occurring following her complaints.
Ms Oliver brought a claim against the office manager and her employer. Ms Oliver alleged that the office manager assisted or, authorised the harassment and that the employer was vicariously liable for the conduct of Mr Catalfamo.
Both the office manager and the employer denied any wrongdoing but did not deny that the conduct occurred at the salon.
What did the Tribunal say?
The Tribunal (VCAT) found that in managing the complaints, the office manager ‘turned a blind eye and refused to consider’ the conduct and, in conversation with Mr Catalfamo, ‘…simply told him to keep his distance and to respect Ms Oliver.’
The employer did not provide any specific training for its employees in relation to sexual harassment.
The employer was vicariously liable and was ordered to pay Ms Oliver $150,000.00 in general damages.
No defence
The employer was unable to defend Ms Oliver’s claim because it did not:
- have a policy to manage unacceptable workplace behaviour
- a procedure for managing complaints
- provide training for its employees.
Take home message
Employers have a legal duty to inform/educate their people about their legal rights and obligations in relation to sexual harassment, discrimination and bullying in the workplace (unacceptable workplace behaviour).
Now is the time for Employers to take action.
The 3 critical things that will mitigate the risk of an incident of sexual harassment occurring in the workplace and also assist with defending a legal claim, if an incident were to occur are:
- a policy to manage unacceptable workplace behaviour (bullying, discrimination and sexual harassment); and
-
a procedure for reporting/managing complaints of unacceptable workplace behaviour; and
-
provide training at induction as well as compulsory ‘refresher training every
12-months, to ensure your compliance with bullying, discrimination and sexual harassment laws.
Do you need help?
Ulton’s HR Consulting Services can provide you with:
- a comprehensive policy to manage unacceptable workplace behaviour (bullying, discrimination and sexual harassment); and
- a procedure for managing/resolving complaints; and
- Respect @ work training and awareness for your people. Training that complies with your legal obligations and that ensures your people will walk away with a good understanding of:
- what constitutes unacceptable workplace behaviour (the various forms of bullying, discrimination and harassment are explained and put into context)
- what are the responsibilities of the employer, management and employees
- what the employer will do to prevent unacceptable behaviour from occurring in the workplace
- how to report incidents (complaints/grievances) of unacceptable behaviour
- how complaints/grievances of unacceptable behaviour will be managed and resolved.
Please contact, Christine Guy on (07) 4154 0413 or cguy@ulton.net
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