Barry.Nilsson. Special Counsel Corrina Dowling discusses the decision in XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492, where a female employee was awarded $10,000 after making a sexual harassment complaint. A comment, flippantly made or ill-considered, can have repercussions both the offender and the employer, Corrina writes.
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A female employee has been awarded $10,000 for hurt, humiliation and distress after making a complaint about sexual harassment. The employee was advised by a staff member reviewing her complaint that unwanted attention should be expected in a male-dominated environment and suggested that the employee was being “overly sensitive”.
In Issue
Whether an employer directly discriminated against an employee on the basis of her sex in relation to its response to a complaint of sexual harassment.
The Background
The employee (XVC) was working for Marriott Support Services (Marriott), which had been contracted by Lendlease to provide labour services at a railway level crossing removal.
XVC reported to her immediate manager that, during the course of her work at this site, an employee of another contractor on site had made comments of a sexual nature and comments about violence.
XVC’s complaint was referred to another Marriott employee, Joanne Baronessa. In responding to the complaint, it was alleged that Ms Baronessa said words to the effect:
“You are working in a man’s working environment and you need to expect that kind of unwanted attention”.
“You look tired, maybe you are perceiving it wrong. Maybe you are being overly sensitive”.
An email from Ms Baronessa also confirmed that when XVC asked about the complaint process, Ms Baronessa deflected and advised XVC to “calm down”. Marriott took no further action.
XVC was later dismissed, but as a result of Marriott losing the Lendlease contract.
XVC brought proceedings in the Victorian Civil and Administrative Tribunal (VCAT), alleging discrimination on the basis of her sex.
The Decision at Trial
VCAT was satisfied that Ms Baronessa had said the words attributed to her, and further found that the advice constituted unfavourable treatment because of XVC’s sex.
While Marriott argued that the treatment was not detrimental because it caused XVC no disadvantage, it was accepted by VCAT that humiliation and hurt feelings, as well as undermining her confidence in her judgment and her trust in her employer did in fact constitute a disadvantage. Marriott was found to be vicariously liable for the conduct of Ms Baronessa.
Assessing the monetary value of such hurt, humiliation and distress, VCAT awarded XVC $10,000.
Implications
It is important to remember that under anti-discrimination legislation, it is irrelevant as to whether a person is aware that their conduct is discriminatory and/or unfavourable. Neither is the person’s motive. This means that a comment, flippantly made or ill-considered, can have repercussions both for the offender and the employer.
XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492
Corrina Dowling is a special counsel in the Insurance & Health team and is based in the Melbourne office. At Barry.Nilsson., Corrina specialises in employment practices liability (EPL) claims. Corrina has both in-house and private practice experience as an employment law and workplace relations lawyer. She has assisted her clients on a wide range of employment issues, including: Unfair dismissals, Restraints of trade, Bullying, Unlawful discrimination, Employment agreements, Transfers of business and redundancy, Adverse action (general protections applications), Award and agreement interpretation. Over the years Corrina’s clients have included small family owned businesses, multi-national corporations and not-for-profits, across multiple industries including retail, aged care, education, and government. Corrina has appeared in the Federal Court, Fair Work Commission, the Industrial Relations Court (SA), Australian Human Rights Commission, as well as other Tribunals. Corrina holds a Bachelor of Laws, Bachelor of Business, Graduate Certificate of Law and a Graduate Diploma in Legal Practice. Contact Corrina at [email protected] or connect via LinkedIn.
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