Sole director of the Rivers Australia Chain and retail tycoon Philip Goodman was alleged to have sexually harassed a female worker. Sallyanne Robinson was employed at Rivers Hawthorn head office from September 2009 to July 2010, during this time Ms Robinson claimed that Mr Goodman patted her on the bottom, grabbed her breasts, required her to model underwear for him in private and was told to pretend to be his wife/girlfriend during product sample purchases (Herald Sun, 2011).

Sexual harassment can include inappropriate touching, requests for sexual favours, making comments or jokes of a sexually offensive nature, questions about a person’s sex life or comments on their physical appearance. Sexual harassment can be physical, verbal or written. It is not a defence to say that the conduct was intended as a joke as motive is irrelevant under equal opportunity law (Business Victoria, 2011).

In Victoria there are two key laws that provide workers with protection from sexual harassment. These are the Equal Opportunity Act 2010 (VIC) (EO Act) and the Sex Discrimination Act 1984 (CTH) (SDA Act)

Within the EO Act a person sexually harasses another person if he or she:[1]

(a)    Makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or

(b)   Engages in any other unwelcome conduct of a sexual nature in relation to the other person.

In circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

This definition is mirrored in the SDA Act.[2]

Employers have a duty to eliminate discrimination, sexual harassment and victimisation. The EO Act requires a person who has a duty under the act not to engage in discrimination, sexual harassment or victimisation, and must take ‘reasonable and proportionate’ measures to eliminate these activities occurring.[3]

Further to this the Occupational Health and Safety Act 2004 (Vic) (OHS Act) also requires employers to provide a safe and healthy workplace free from risk to health.[4] Where an employee is discriminated, harassed or victimised the employer may not be providing a safe and healthy workplace if the issues go un-addressed.

Organisations regularly have grievance procedures available for responding to matters of harassment or discrimination. If a worker is unsatisfied with an employer’s response they can apply for a remedy via the Equal Opportunity Commission of Victoria (EOCV), or if an application is made under the Sex Discrimination Act it is made to the Australian Human Rights Commission (AHRC), previously known as the Human Rights and Equal Opportunity Commission (HREOC).

Ms Robinson’s claim progressed through the AHRC to the Federal Court where Mr Goodman denied touching Ms Robinson’s breasts or bottom and denied he had requested her to model underwear in front of him. In a defence document Mr Goodman and Rivers alleged Ms Robinson had a history of bipolar behaviour, and that she suffered a range of ailments and conditions during her time with Rivers, including alcohol abuse.

Ms Robinson claimed she suffered post-traumatic stress disorder, depression and panic attacks, following the events and lodged a claim for Workers Compensation.

To claim for compensation under the Accident Compensation Act 1985 (Vic) a range of criteria must be met, including:

(a)    the worker must be employed within the state of Victoria;[5] and

(b)   The injury must arise out of or in the course of employment.[6]

A worker may not be entitled to compensation if their injury is a ‘recurrence, aggravation, acceleration, exacerbation or deterioration of any pre?existing injury or disease’.[7]

Ms Robinsons claim for compensation was initially rejected on the grounds that the allegations of bullying and harassment were unsubstantiated and that her condition was related to pre-existing mental illness. The decision was reversed when Ms Robinson initiated proceedings in the Magistrates Court to appeal and she was provided with a settlement.

Ms Robinsons legal representation, Nowicki Carbone, in a statement said ‘the firm was preparing to launch a common-law damages claim against Rivers on behalf of Ms Robinson, seeking an unspecified six-figure sum’. ‘We will be arguing that her post-traumatic stress disorder is a serious injury and was caused by the bullying and harassment of Philip Goodman and Rivers,’ Ms McInnes said (Sunday Herald Sun, 2011).

When claiming common law damages within the Sexual Discrimination Act in order to determine an amount the court must compare the position the complainant (Ms Robinson) ‘might have been in had the discriminatory conduct not taken place with the situation in which the complainant was placed by reason of the conduct of the respondent’ (Mr Goodman and Rivers). This approach has been followed in a number of cases[8] but was first discussed by Lockhart J in Hall v Sheiban.[9]

While employees have rights under three separate acts regarding harassment and discrimination, EO Act, OHS Act and SDA Act employers continue to become caught up in discriminatory acts. I believe workers are becoming more aware of their rights in the workplace and more confident in speaking up, as demonstrated through this case and the settlement of the Kristy Fraser-Kirk v David Jones matter, (Langes, 2010). The liability not only for an organisation and its reputation but for the individual involved in the matter can be quite large resulting in significant penalties.

Articles/Books/Reports

Business Victoria. (2011, August 8). Sexual Harassment. Retrieved May 19, 2012, from Workforce: http://www.business.vic.gov.au/BUSVIC/STANDARD/PC_50522.html

Herald Sun. (2011, November 5). Retail tycoon faces sex-harass claims. Retrieved May 21, 2012, from Herald Sun: http://www.heraldsun.com.au/ipad/retail-tycoon-faces-sex-harass-claims/story-fn6bfkm6-1226186201657

Langes. (2010, October 24). The significance of Fraser-Kirk v David Jones. Retrieved May 21, 2012, from Langes: http://www.langes.com.au/australian_regulatory_compliance/2010/10/24/the-significance-of-fraser-kirk-v-david-jones/

Sunday Herald Sun. (2011, November 13). Payout over tycoon sex assault claim. Retrieved May 19, 2012, from Herald Sun: http://www.heraldsun.com.au/news/more-news/payout-over-tycoon-sex-assault-claim/story-fn7x8me2-1226193561062

Case Law

Hall v Sheriban (1989) 20 FCR

Legislation

Accident Compensation Act 1985 (VIC)

Equal Opportunity Act 2010 (VIC)

Occupational Health and Safety Act 2004 (VIC)

Sex Discrimination Act 1984 (Commonwealth)

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