• Courts and tribunals across Australia are continuing to award higher “general damages” for sexual harassment claims than in the past.
• This Queensland Civil and Administrative Tribunal case shows that employers can be liable for significant sums even where the sexual harassment stems from a prank between colleagues who often engaged in banter and jokes.
In an unusual case of sexual harassment, a state school cleaner was awarded just over $156,000 in compensation, including $70,000 as “general damages” for non-economic loss to compensate the employee for pain, humiliation and suffering.
Mr Green worked for the State of Queensland as a cleaner in a state school. He was friends with two other employees — a groundsman named Mr Brooker and a cleaner named Ms Keating — and often engaged in jokes and banter with them. However, one particular prank pulled by Mr Brooker and Ms Keating (in retaliation for pranks Mr Green had previously played on them) turned sour, and led to Mr Green ceasing work and going on workers’ compensation.
The prank involved Mr Brooker and Ms Keating setting up the staff room so that it looked like the aftermath of a “sex romp”, placing a mattress, pillow, underwear, condoms filled with cream and empty wine bottles in the room. As a cleaner, it was Mr Green’s job to clean this up. He believed that an actual “sex romp” had occurred and, based on hints dropped by Ms Keating, he also believed that it involved two other school employees who were rumoured to be having an affair.
Mr Green was very concerned about the sex romp and the affair, and decided to speak to one of the employees he believed was involved. When Mr Brooker discovered that Mr Green planned to confront the other employee, he realised the prank had gone far enough and told Mr Green it had all just been a joke.
On hearing this, Mr Green fell to his knees. Whether he did so in distress or amusement was a matter of serious contention between the parties. After weighing the evidence of multiple witnesses, a Queensland Civil and Administrative Tribunal (Tribunal) accepted Mr Green’s evidence that he was angry and humiliated about the prank, rather than amused, and that he became progressively more angry and humiliated with the passage of time.
After a week off work due for school holidays, Mr Green reported the matter to the school and went to see his general practitioner, who identified an acute anxiety state and post-traumatic stress disorder (PTSD) caused by the prank. Mr Green made a claim for workers’ compensation and did not return to work.
Mr Green commenced proceedings claiming that the prank constituted sexual harassment under the Anti-Discrimination Act 1991 (Qld) (Act). He also alleged that Mr Brooker had victimised him after Mr Green lodged a complaint with the Tribunal, including by holding up a phone as if he was taking a photo and by laughing unpleasantly at Mr Green’s children at school.
The Tribunal’s compensation decision
The three respondents (the Department of Education and Training, Mr Brooker and Ms Keating) denied any liability under the Act. They did not believe Mr Green had genuinely suffered psychological consequences from the prank, and claimed that he had feigned or exaggerated his reaction in order to obtain compensation. Medical evidence submitted by the respondents suggested Mr Green was “malingering”.
On the whole, the Tribunal preferred Mr Green’s evidence, forming the view that while Mr Green had some histrionic personality traits and was prone to dramatic exaggeration (including doing acting work as an “extra”), he had genuinely suffered the psychological consequences he claimed. It was accepted that Mr Green had been unable to work and that he had been drinking more heavily as a result of the prank. The Tribunal also accepted that the acts of victimisation had occurred.
Both individual respondents were found liable and the Department was held to be vicariously liable (although the Tribunal decided Ms Keating was less culpable, and only required her to pay 50% of the total amount). The Department did not try to argue that it had taken all reasonable steps to prevent the conduct occurring and that it should not be held vicariously liable.
In deciding how much compensation to award Mr Green, the Tribunal highlighted that the type or seriousness of the conduct giving rise to Mr Green’s injury was not really relevant — rather, the effect on Mr Green was the key consideration. This meant that while offending incidents in other cases have been much more serious than the prank played on Mr Green (e.g. a person being sexually assaulted in her bedroom having been woken from sleep), the effect of the prank on Mr Green was just as debilitating and long-lasting.
The Tribunal gave consideration to cases in other courts such as the Federal Court of Australia, including the well-known decision of Richardson v Oracle Corporation Australia Pty Ltd which awarded the applicant $100,000 in general damages for sexual harassment. However, it was decided that the Tribunal should not suddenly increase awards simply because of that case (which is not binding on the Queensland Tribunal).
After carefully weighing a number of factors, Mr Green was awarded $70,000 in general damages. It was noted that this amount seemed to be in line with the amount that might be given for a similar personal injury in the workers’ compensation jurisdiction, which the Tribunal considered appropriate given that Mr Green had suffered a recognisable personal injury (not just distress or humiliation). Added to damages for economic and other loss, Mr Green’s total damages award was about $156,000.
Bottom line for employers
• Even where employees seem to have a friendly, playful, and bantering relationship with each other, pranks can lead to serious ramifications for the employer.
• An employee’s psychological response to an incident might seem strange, improbable, or something they should just “get over”, but this doesn’t prevent a court or tribunal from finding the response to be genuine.
• The severity of the offending conduct is not the basis on which the amount of damages will be decided— rather, it is the effect of the conduct and the injury suffered by the employee that the Tribunal seeks to compensate them for, and which will inform the amount of general damages awarded.