What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 16 – 22 January 2017

$313000 Damages for Sexual Assault of Hotel Employee in the Course of Work
The Queensland Civil and Administrative Tribunal has ordered a hotel chain to contribute $313,000 in damages after an employee alleged a colleague sexually assaulted her. At the suggestion of her employer, the employee had been residing free of charge in a two bedroom unit at a Brisbane hotel that was owned by her employer. Another employee, the night caretaker, occupied the second bedroom of the hotel unit. At 5:00am, on the first night of her accommodation in the unit, the employee awoke to find the night caretaker in her bedroom, naked. The caretaker touched her body including her upper thigh and groin and attempted to remove her underpants. The employee asked him to stop and to leave the room. She broke down crying. The caretaker left the room, saying words to the effect: “I’ll let you get changed”. He returned saying: “this can be our little secret”. This incident caused prolonged psychological stress to the employee, who suffered from nightmares, psychotic illusions of seeing the assailant, agoraphobia, need for help with the activities of daily living, anxiety, fear, panic attacks, poor sleep, depression, loss of confidence and trust, suicidal thoughts, attempted suicide, self-harming and drug and alcohol abuse. The employee was unable to return to work for 5 years.

QCAT member Ann Fitzpatrick held that the employer was jointly and severally liable for the assault as it occurred “in the course of work”. Ms Fitzgerald noted that an integral part of the caretaker’s work pursuant to his contract of service, was that he was required to be “available” or ready to respond to an issue between the hours of 10:00pm and 6:00am. On this basis, it was held that, at the time the assault was committed, the caretaker “was engaged in the duties required under his contract for services.” Accordingly, the employer was found to be vicariously liable for the assault. The hotel and the caretaker were jointly ordered to pay $313,000 in compensation for the assault.

Manager’s Failure to Follow Workplace Procedures for Managing a Complaint was a Valid Reason for Demotion
Scott Carter applied for an unfair dismissal remedy (in the case of Carter v MSS Security Pty Ltd [2017] FWC 82) against his former employer MSS Security Pty Ltd. Mr Carter was employed as a Site Manager at the Olympic Park Commonwealth Bank Branch. On 24 May 2016, an incident occurred between two guards under Mr Carter’s supervision, Karl and Milanka. Mr Carter claims that Milanka asked him to “talk” to Karl about some inappropriate language and jokes and complained that she had been subject to physical harassment. In response, Mr Carter counseled Karl. On 2 May 2016, Mr Carter received an email from his employer, demoting him from the position of Site Manger. The demotion of Mr Carter arose in circumstances where Mr Carter failed to follow company policies, failed to communicate and demonstrated an inability to fulfill the requirements of Site Manager. On 4 May 2016, Mr Carter informed his employer that he refused to accept the demotion. Mr Carter claims that he was constructively dismissed on 2 May 2016.

In his decision, Deputy President Lawrence noted, “demotion of an employee, where that demotion is provided for in the contract of employment or industrial instrument, cannot constitute, by itself, a dismissal.” Mr Carter’s contract provided for demotion by reason of performance or client request. In these circumstances, Deputy President Lawrence held that Mr Carter was demoted by reason of performance, as he failed to act in accordance with the employer’s EEO, Discrimination, Harassment and Bullying Policy. In particular, it was found that Mr Carter: failed to properly investigate the complaint by taking statements from Milanka, Karl and other employees; failed to refer the issue to a senior manager or HR Manager, in accordance with the “Step-by-step procedure” and failed to separate the workers over the Easter weekend in accordance with appropriate management practice. On this basis, Deputy Commissioner Lawrence noted that even if the finding were reached that Mr Carter had been dismissed, Mr Carter’s conduct would have provided his employer with a valid reason for dismissal.

Deputy President Lawrence concluded that Mr Carter had been demoted in accordance with his contract of employment. Accordingly the application for an unfair dismissal remedy was dismissed.