Recent case outlines importance for employers to recognise sexual harassment

Recently, in the Victorian Civil and Administrative Tribunal (the Tribunal), in Kerkofs v Abdallah (Human Rights) [2019] VCAT 259, Ms Kerkofs (the Applicant) was successful in her sexual harassment claim against Mr Abdallah (the First Respondent), both were employees of Parker Manufactured Products Pty Ltd (the Employer).

The Applicant claimed the First Respondent made ongoing sexual comments to her and gave her nicknames such as “sexy, honey, babe and sweetie”, during her employment.

On 16 May 2016 the First Respondent was directed by his immediate supervisor to take the Applicant home from work, as she was sick. The Applicant stated she was too ill to walk, and the First Respondent helped her inside her home. She alleged he got into bed with her whilst she was too unwell to move, touched her and he commented that she was “vulnerable” and making him “horny”.

The Tribunal accepted that the First Respondent, amongst other things;

  • engaged in unwelcome conduct of a sexual nature throughout the Applicant’s employment, including comments about her breast size, nicknames and a comment about her bottom when was leaning over;
  • engaged in unwelcome sexual conduct in the car, when she was ill and taken home from work; and
  • touched the Applicant’s breasts and nipples, kissed her and made sexual comments when she was ill on her bed.

The Employer was found vicariously liable for the First Respondent’s conduct. They initially argued that they had taken reasonable precautions to prevent the sexual harassment, but later intended to establish that the sexual harassment did not occur at all. Both defences failed.

The Employer was liable for $150 000 in damages. This case raises the risks faced by employers where they fail to manage sexual harassment complaints. Alison Freeman discusses common mistakes by Employers and how to manage sexual harassment in Demystifying sexual harassment at work – #MeToo and the law.

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