Employer who failed to investigate “threesome” proposition charged $9K

by Chloe Taylor12 Dec 2014
A Queensland woman has been awarded compensation of $9000 after she filed a sexual harassment claim against her manager, who asked her at a work Christmas party to engage in a threesome with another female.

The employee was also harassed and bullied by her manager at work, which the tribunal found had been “poorly investigated” by Queensland Health, the victim’s employer.
In the recently published decision, Queensland Civil and Administrative Tribunal member Ann Fitzpatrick said that the sexual harassment led to the victim developing a psychological injury.

The woman who suffered the harassment told the tribunal that her manager’s abusive and aggressive behaviour eventually led her to resign.

Although the allegation of the threesome proposition was denied by the accused, Fitzpatrick found that it had been made, accepting the evidence of the victim and her husband.

It was also found that the manager told the victim that she wanted to “experiment with people she knew”, despite the employee making it clear that she had no interest in engaging in sexual activity with her.

“I accept [the victim’s] evidence that she was offended and made to feel very uncomfortable,” said Fitzpatrick in announcing her findings.

She found on the same occasion the manager told the victim her breasts were nice and she wished she had breasts like hers, lifting her shirt to expose her own breasts.
On the drive back to work in the employee’s car, the manager told her: “I’m sitting in your leather seats with no undies on.’’

However, Fitzpatrick ruled that these were light-hearted comments made in a group context, and not sexual harassment.

Fitzpatrick rejected claims by Queensland Health that the victim had made the complaints in order to excuse and distract from her poor performance at work.

She awarded the victim compensation for her adjustment disorder and for embarrassment and humiliation.

Queensland Health reportedly said that it was committed to providing employees with a safe, secure and productive work environment, free from harassment.

The company also said that it had a zero tolerance approach to workplace harassment of any kind, which is outlined in its policy and code of conduct.

HC spoke to Patrizia Mercuri, partner in workplace relations and safety at Lander and Rogers law firm, about the case.

She outlined three key things employers should do when investigating claims of harassment at their workplace:
  1. Ensure that the person appointed to investigate the allegations has the appropriate skills and understands how to undertake a forensic analysis. 
  2. Ensure that an investigation plan is prepared at the outset, which clearly identifies the allegations, any witnesses and other evidence which may support or contradict the allegations.
  3. Ensure that all complaints are treated with an open mind - that is don't assume that because someone may be a poor performer or may currently be the subject of a performance management process, that there is therefore no basis to the allegations. 
 
Mercuri also outlined where the employer went wrong.

“I would suggest that there were a couple of issues with how the investigation was conducted in this particular case,” she told HC. “For example, the selection of the investigator being a person who arguably held some preconceived notions about the veracity of the complainant, and who also failed to interview all relevant witnesses.

Another issue was the characterisation of the evidence - that is witnesses who said they had not heard the alleged comments were taken to have said that the comments were not made. This led to a finding which ultimately was not upheld in the proceedings.”
 
 

COMMENTS

Most Read