Workplace sexual harassment: compensation on the rise

In March of 2021, thousands of Australian women and men took to the streets in cities across the country in the March4Justice. It was a watershed moment for public awareness of sexual harassment in Australia, and workplaces were on notice, from offices everywhere, right up to Parliament House.

Amid fierce public debate around the proposed solutions, there has been an upward trend in compensation awards in workplace sexual harassment matters.

Landmark legal ruling increases compensation for workplace harrassment

In 2014, the landmark decision in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 paved the way for increased compensation awards in sexual harassment matters. In awarding $100,000 in compensation for pain and suffering, the Court sought to align compensation with a level reflective of the growing public intolerance with respect to sexual harassment in the workplace.

Recently, Richardson has been relied on by Courts and Tribunals to award increased damages for pain and suffering, along with aggravated damages where the harassment is egregious in nature or the matter is defended in a way designed to intimidate, victimise or cause further harm to the victim.

In Hill v Hughes t/as Beesley and Hughes Lawyers [2019] FCCA 1267, which was upheld on appeal, the Court awarded damages of $120,000 for pain and suffering, and explicitly acknowledged the distinct shift in the way damages are now to be calculated.

Outrageous approach by perpetrator

In a scathing way, the Court awarded a further $50,000 for aggravated damages to address the outrageous approach taken by the perpetrator in defending the claim, including attempts to damage the victim’s reputation, conduct intended to deter her from pursuing her claim, and victim-blaming tactics.

The Industrial Court of Queensland in Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14 also recently upheld an appeal in a sexual harassment case, awarding a total of $130,000 for general and aggravated damages where, at first instance, only $30,000 in general damages and $5,000 in aggravated damages were awarded. Crucially, President Davis saw fit to denounce the prior “manifestly inadequate” awards ordered by the Queensland Industrial Relations Commission, proceeding to cite the awards in Oracle and Hughes as appropriate.

In the case of ZBL v Olivo (Human Rights) (Corrected) [2021] VCAT 850, general, special and aggravated damages to the tune of $150,810 were awarded, with the Tribunal accepting that prevailing community standards should result in significant awards of damages, relying on Oracle, Hughes, Golding and others in determining the award.

In Vitality Works Australia Pty Ltd v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210, which was upheld by the NSW Court of Appeal, the Tribunal awarded $200,000 for conduct of a sexual nature that involved a sexually suggestive poster which caused ridicule, humiliation and distress.

The emergence of a positive upward trend in the calculation of awards stretching past the $100,000 mark seen in Oracle suggests that Courts and Tribunals are willing to award:

• higher amounts in sexual harassment matters in order to reflect prevailing community standards; and
• aggravated damages in circumstances where the harassment exacerbates the hurt and injury suffered by the victim or where there is intimidatory behaviour during proceedings.

Importantly, as public intolerance with respect to workplace sexual harassment continues to grow in Australia, compensation awards should also increase to reflect the significant shift in community expectations.

Read More: [Opinion] Why change at the top will make women feel safer