Balancing the Act: ADCQ newsletter -
Regular articles - Summer 2014
- 100,000 reasons to take sexual harassment seriously
- Real risk of legal costs where complaint is successful
- Cost saving approach to dealing with all complaints at once
100,000 reasons to take sexual harassment seriously
In a landmark judgment, the Full Court of the Federal Court of Australia found that general damages of $18,000 awarded to a victim of sexual harassment was manifestly inadequate and increased the amount awarded to $100,000.
In 2010 Ms Richardson commenced legal proceedings against her previous employer, Oracle Corporation Australia, alleging that she was subjected to a constant barrage of sexual harassment over six months by a colleague.
The Federal Court ruled that unlawful sexual harassment had occurred and found Ms Richardson's former employer, Oracle, vicariously liable under the Sex Discrimination Act 1984 (Cth). The company was ordered to pay Ms Richardson $18,000 as compensation for her pain, suffering and loss of enjoyment of life resulting from the harassment.
On appeal, the Full Court of the Federal Court found that the original compensation amount of $18,000 was manifestly inadequate, having regard to the amount of damage suffered and with reference to current community standards. This decision has set a new benchmark for compensation awarded to victims of sexual harassment in the workplace.
Under Queensland's Anti-Discrimination Act 1991 there is no monetary limit in compensation that can be awarded for loss or damage. Therefore this decision will have application in Queensland. The same principles should also apply for all types of discrimination (such as race, sexuality, impairment etc) as the case shows that the damages should properly reflect the level of harm done as assessed by today's community standards.
With this decision, the monetary risk to employers if they do not take action to prevent discrimination and sexual harassment has dramatically increased. Employers now have 100,000 reasons to take these issues seriously.
( Richardson v Oracle Corporation Australia Pty Ltd , FCAFC82, 15/7/14).
Real risk of legal costs where complaint is successful
In the case of Bell v State of Queensland  QCAT 495, the Queensland Civil and Administrative Tribunal (QCAT) looked at the issue of whether a successful complainant should be awarded costs despite QCAT generally being a 'no costs' jurisdiction.
The complainant was found to have been sexually harassed,causing her a psychological injury. She was awarded $9,000 after a five day hearing at which both parties were legally represented.
QCAT awarded the complainant costs because it was not in the interests of justice to allow the successful claim to be eroded by requiring Mrs Bell to bear the costs of representation which was reasonably necessary to achieve that outcome.
This case signals to employers that they need to be aware of the real risk of having to pay a complainant's legal costs on top of any damages awarded, if they are successful. This is especially where the case is long or complex enough for QCAT to allow legal representation.
Cost saving approach to dealing with all complaints at once
In MM v State of Queensland  QCAT 478, QCAT allowed the complainants to amend their complaints to add allegations of victimisation that occurred after they made complaints of impairment discrimination to the Anti-Discrimination Commission Qld (ADCQ). The tribunal also allowed them to add an additional respondent to the proceedings.
QCAT noted that the provisions relating to amendment and adding parties had themselves been amended in 2009 and were clearly intended to allow changes to a complaint in QCAT, even though the allegations were not part of the complaint to the ADCQ.
This approach will save time and costs to all parties. Complainants will be able to make sensible amendments to their complaint without having to start again in the ADCQ. Respondents will be able to answer all the allegations as part of one process in QCAT, rather than having to deal with related issues in both QCAT and ADCQ at the same time.
Training calendar January to June 2015
To find out about sessions available in your area:
- Access the January to June 2015 training calendar.
- Register for a session using the form for the appropriate venue.
- Call 1300 130 670 for more information.