A sexual harassment claim against a male traffic controller has resulted in the Queensland Civil and Administrative Tribunal ordering the employee to pay over $100,000 in compensation, after the traffic controller’s conduct led his colleague to develop severe mental health issues.
The Tribunal found that the traffic controller sexually harassed his female colleague on a daily basis throughout his shifts with her, with almost every interaction between the pair resulting in an inappropriate comment on his part. Persistent personal comments and sexually themed questions by the traffic controller culminated in an incident that led the complainant to suffer an emotional breakdown and resign her employment.
The complainant subsequently made a complaint to her employer, prompting an investigation into the allegations. During the investigation, the traffic controller sought to defend his conduct by:
- relying on the fact that the complainant had, to an extent, participated in his banter; and
- alleging that the complainant was not the sole recipient of the types of comments and conduct under investigation (ie others in the workplace engaged in similar conduct without complaint).
The employer’s investigation upheld the complainant’s version of events.
The complainant brought a sexual harassment claim against the traffic controller, her employer and the principal at whose place of work the conduct occurred. Following negotiations with the employer and the principal, the complainant separately resolved her claims against those parties for an undisclosed sum, pursuant to confidential deeds of release. After the deeds of release were executed, the complainant discontinued her claims against her employer and the principal, but sought to continue her claim against the traffic controller.
What did the Tribunal find?
The Tribunal found that the separate deeds of release between the complainant and the employer and principal did not protect the traffic controller from individual action against him. The Tribunal found that the traffic controller’s behaviour constituted sexual harassment in that he had intended to offend and humiliate the complainant, and that a reasonable person would have foreseen the possibility of offence, humiliation or intimidation due to his conduct.
In finding against the traffic controller, the Tribunal considered the complainant’s conduct in alternately ignoring, playing along with and rejecting the traffic controller’s behaviour in an effort to control his behaviour. The Tribunal found that there was an inherent risk associated with this approach and that, in this case, the complainant’s tactic was unsuccessful because it was perceived by the traffic controller as encouragement. The Tribunal expressed the view that victims of sexual harassment should ideally make it clear to the perpetrator that the behaviour is unwelcome, and then make a complaint to management if the behaviour continues. However, the Tribunal conceded that such an approach is not always easily applied, particularly in male-dominated workplaces like the complainant’s workplace.
The Tribunal ordered that the traffic controller pay the complainant over $100,000 in compensation, less any amounts already paid to the complainant by the employer and principal.
Lessons for employers
This case serves as a reminder to employers of the significant awards of compensation that can be ordered under anti-discrimination legislation, including orders against individuals.
Employers should put in place mechanisms for employees and other workers to report inappropriate conduct, and seek to sensitively handle any reports received in a timely manner. All workers should receive training on appropriate workplace behaviour and applicable grievance and resolution processes at induction and periodically over time.