Sexually harassed employees squeezing employers for more damages

by Ben Abbott12 Nov 2014
A leading workplace lawyer has claimed recent landmark decisions in sexual harassment cases are resulting in employees increasingly looking to make companies pay out in cash for harbouring such damaging behaviour.
Harmers Workplace Lawyers chairman Michael Harmer said that his firm has been engaged over the last 12 months in a number of sexual harassment matters involving CEOs and senior management of Australian businesses.
“We’ve been dealing with those matters in a way that doesn’t compromise the reputation of the business in questions, and there’s been some challenging work in that area over the last 12 months,” Michael Harmer said.
Recent decisions – such as the landmark Richardson v Oracle Corporation Pty Ltd this year – are expected to open the floodgates for employees who have been sexually harassed at work, but who were constrained by low damages payouts.
In Richardson v Oracle Corporation Pty Ltd, Harmers represented former Oracle IT exec Rebecca Richardson in the Federal Court after she endured harassment at the hands of a co-worker, winning her $130,000 plus costs on appeal.
An initial decision by the court had only awarded Richardson $18,000 plus costs, an amount that was described by the court on appeal as ‘manifestly inadequate’.
“It [the decision] has significantly raised the standard for damages in the whole area of sexual harassment and discrimination,” Michael Harmer said. “It has been an important step forward in that whole are of law in the country.”
The decision was followed by the Federal Court’s Vergara v Ewin decision, in which a victim of workplace sexual assault was awarded half a million dollars.
Harmer said the Richardson matter set the scene for much more significant damages awards in future and encouraged employees to pursue litigation.
“The area has been constrained by the compressed levels of damages, but there is the potential for increased activity and attention from clients,” Harmer said.
It is also expected to add a significant boost to the amounts for which corporate clients will need to settle out of court, to ward off potentially damaging litigation. The bulk of cases involving sexual harassment end up settling out of court.
Harmer said the Richardson v Oracle case also provided companies with a strong foundation for corporate governance and compliance in the harassment area.


  • by Bernie Althofer 13/11/2014 10:39:08 AM

    Decisions such as the one highlighted in this article increase the need for public and private sector organisations to be increasingly aware of the increased 'payouts' being made.

    Whilst the amount may vary from case to case, it does seem that the reported 'payout' does not represent the total overall costs incurred by all parties involved.

    These type of cases also highlight the need for organisational systems and processes to be regularly reviewed and assessed to determine whether or not they are working in the manner intended. It seems pointless having a well documented system or process in place when managers and workers are going off at a tangent or not acting in the manner required.

    Using performance management systems and processes to drive accountability and responsibility may be one way of encouraging managers and workers to be more proactive and to take preventive action when it comes to preventing, detecting, reporting and resolving the various types of counter productive workplace behaviours e.g. sexual harassment. A CEO should not be in a situation where they ask a middle manager what they have done or are doing to address sexual harassment, to be told "It's not my job."

  • by Bernie Althofer 13/11/2014 5:27:57 PM

    Maybe the headline should say "Courts recognising the impact of sexual harassment and responding appropriately".

    It might be the case that there is increased evidence being presented to show the physical and psychological and financial impacting on individuals and Courts, Commissions and Tribunals are making decisions and awarding payouts more in line with those impacts.

    It does seem that when a complainant engages a legal firm or has sufficient expertise to provide a more detailed case, the responses from Courts etc do take this into consideration, and as seen by the appeal in the case, some payouts are seen as inadequate. I suspect that one of the reasons why payouts might be increased is to send a deterrent message that sexual harassment is not acceptable, and that if individuals and organisations continue to permit it to occur, the 'penalties' imposed with reflect the seriousness of the behaviours.

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