The recent decision in Richardson v Oracle Corporation Australia Pty Limited highlights the pitfalls for employers in the drafting and implementation of discrimination and harassment policies designed to limit liability.
In that case, the plaintiff was awarded $18,000 by way of compensation.
Comments of a Sexual Nature
Following a disagreement about certain aspects of the project that two employees, Mr Tucker and Ms Richardson, were working on together, Tucker began making comments of a sexual nature about the disagreement, to the effect that:
- they were married in a previous life;
- "I bet the sex was hot"
- “how do you think our marriage was”
- I think if I were drinking with you I would wind up in the corner with my arms around you kissing you.”
Richardson complained after enduring such offensive behaviour for several months. The resulting investigation concluded that Tucker had sexually harassed Richardson.
Policy and Training Failure leads to vicarious liability
Oracle always stood to be found vicariously liable unless it could show it took all reasonable steps to prevent the sexual harassment.
The court determined that the internal policies and training were inadequate. Although they said sexual harassment was against company policy, they did not state in clear terms:
- that sexual harassment is against the law, and the source of the legal authority; and
- that an employer could also be liable for sexual harassment, which would serve to emphasise the employer’s interest in ensuring compliance with its policy and warnings.
Lessons for employers
The importance of prevention, training and clearly defined policy expectations and procedures are critical for employers who wish to avoid the operational and reputational impost of such claims.