Collins v Smith [2015] VCAT 1992

In late 2015, the Victorian Civil and Administrative Tribunal (VCAT) found that a post office manager had sexually harassed a female employee on more than 30 occasions in a four-month period. The offending conduct included physical and verbal harassment, both in person and via text message. The final act which compelled Ms Collins to leave her employment was being likened to a Lamborghini sitting in a garage, which could not be driven.

Although a particularly egregious example of workplace harassment, it was the Tribunal’s award of damages to Ms Collins which is of most significance and has attracted attention.

Applying the principles regarding the award of general damages as set out by the Full Federal Court in the watershed 2014 decision of Richardson v Oracle [2014] FCAFC 82, the Tribunal awarded Ms Collins $332,280 in compensation, with $180,000 being general damages.

In making this significant award of damages, the Tribunal noted that community attitudes regarding the impact of sexual harassment have evolved to acknowledge the wide range of adverse consequences for victims of harassment, including loss of employment and career, severe psychological illness and relationship breakdown. The Tribunal also took account of Ms Collins’ ongoing attempts to seek treatment for her depressive illness and anxiety following the harassment, and alternative employment to mitigate her economic losses.

n order for $20,000 in aggravated damages was also made. In doing so, the Tribunal considered the direct supervisory role of Mr Smith in relation to Ms Collins, the prolonged period of harassment, and the fact that Mr Smith had repeatedly ignored Ms Collins’ requests to maintain a professional working relationship.

In light of recent developments in the awarding of damages, sexual harassment and discrimination claims may carry greater risk, particularly because the assessment of damages depends entirely on the impact of the conduct on the particular victim. 

To mitigate against this risk, it is essential that employers implement and maintain proactive equal opportunity policies and training procedures. Employers may avoid vicarious liability for sexual harassment or other forms of discrimination if it can be shown that they have taken all reasonable steps to prevent the unlawful behaviour.