Australia Takes a Stand against Workplace Harassment

31 August 2017

Two recent cases in South Australia and New South Wales demonstrate the severity with which Australian courts and tribunals treat workplace harassment allegations.

Worker harassed over gynaecological condition

In this first case, the Federal Circuit Court found South Australia Police (“SAPOL”) to be in contravention of Section 35(1) of the Commonwealth Disability Discrimination Act 1992 (“the Act”) due to the mistreatment of a female employer because of her gynaecological disability.

The former SAPOL constable was diagnosed with endometriosis and severe dysmenorrhea in 2012 which required extended absences from the workplace. Between 2012 and 2014, supervisors within SAPOL allegedly asked the worker to explain her gynaecological condition – a tremendously inappropriate request considering the condition’s extremely personal nature, repeatedly questioned the legitimacy of her disability, requested a psychological examination despite the disability being physical, and placed her on non-operational duties, even though she was medically cleared for normal work. This is all in addition to being told that despite her symptoms she had to attend work, she was a burden to the force, and a woman who “needed to increase her pain threshold”.

The court found that together, this conduct constituted both harassment and indirect discrimination and hence, the employer was in breach of the Act.

Nevertheless, Justice Natalie Charlesworth was careful to stress that employers are not obliged to grant unpaid sick leave to workers.

The application has only been resolved in part.

Berry v State of South Australia [2017] FCA 702 (21 June 2017)

Harassed apprentice in position of little power

In the second case, New South Wales Civil and Administrative Tribunal found Aztec Hair & Beauty to be vicariously liable for its employee’s sexual harassment towards an apprentice hairdresser.

The apprentice hairdresser felt humiliated when his trainer in front of customers, likened their relationship to one of a “gay couple”, repeatedly used a ruler to slap him on the behind, and often asked him to be slapped back.

The apprentice demanded that the salon’s director put a stop to the sexual harassment, but he was instead greeted with the reasoning by the director that the apprentice and his colleagues were like racehorses because “they needed a pat on the bum to go faster”. The director then denied that the behaviour was even occurring and dismissed him, the tribunal finding Aztec Hair & Beauty to be in breach of the State Anti-Discrimination Act 1977.

Senior Member Scahill and General Member Newman found that the employer failed to take any preventative action to ensure its workplace was free of harassment, and ignored the fact that the worker was in a position of little power when exposed to such unwelcome conduct.

As a result of the sexual harassment and victimisation, the apprentice fears the industry and is no longer pursuing a career in hairdressing. Thus, he was awarded $10,000 for the trainer’s sexual harassment, $5,000 in general damages for the director’s sexual harassment and $15,000 for victimisation.

Kordas v Ruba & Jo Pty Ltd v/a Aztec Hair & Beauty [2017] NSWCATAC 156 (25 May 2017)