In a recent decision the Victorian Civil and Administration Tribunal ordered Della Rosa Fresh Foods, a pizza and ready meal manufacturing company, to pay $53,200 to a former employee that it victimised by forcing her to take leave and change roles after she complained of sexual harassment by a colleague who stared at her breasts.
The Facts
The complainant employee was a supervisor at Della Rosa’s bakery site. She complained to a supervisor that a colleague, Mr Hussain who worked at the same location, was looking at her breasts rather than her face when speaking with her.
In an earlier decision the Tribunal rejected Della Rosa’s argument that the male worker’s conduct of staring at her breasts was not “conduct of a sexual nature”.
The complainant complained to her manager, who later said to her, “You are Indian, I don’t like Indians, they always cause problems.”
The manager informed the managing director what had occurred, and they agreed that the managing director would speak with both persons.
The complainant and Mr Hussain were treated very differently. The complainant was taken to see the managing director at his office at another Della Rosa site that was unfamiliar to her, whereas the managing director travelled to see Mr Hussain in his own workspace.
After speaking with Mr Hussain, the managing director formed the view that the complaint was unfounded.
The complainant was directed to take a week’s annual leave, even though she did not want to take leave. No such direction was given to Mr Hussain.
The managing director formed a view that the complainant should transfer from the bakery to another site, the “pizza topping site”, as there were mostly women working at that site.
Unfortunately, her manager forgot to tell her about the decision to transfer her until the day of her returning to work, and only sent a text message when she was driving to work and could not see the message.
When she arrived at work at the bakery her manager asked her why she wasn’t at the pizza topping site? Her manager told her to go to the other site. Then her car wouldn’t work, and she decided to go home.
The next day she went to the pizza topping site and was told she would not be starting as a supervisor at the site. She went home again and remained on leave for longer.
The next month the managing director agreed to meet with her again at the pizza topping site. He was not there when she arrived. She spoke with someone else, who repeated that she would not be starting as a supervisor at the site. She went home again and did not come back. Later Della Rosa terminated her employment.
The Tribunal found that Della Rosa contravened Victorian equal opportunity laws as follows:
- A fellow employee (Mr Hussain) engaged in sexual harassment when he looked at the complainant’s breasts rather than her face when he spoke to her.
- Her manager treated her unfavourably due to her race when he said to her, “You are Indian, I don’t like Indians, they always cause problems.”
- Her manager and the managing director directly discriminated against her because they treated her unfavourably due to her sex in their investigation of her complaint about the sexual harassment.
- Della Rosa victimised her by directing her to take annual leave, because that direction was made for the reason that she had made a complaint about sexual harassment.
- The decision to transfer her to a different workplace amounted to unfavourable treatment due to her sex, and because she had made a complaint.
- She was treated unfavourably by not informing her of her transfer to the different workplace until 5.30am on the morning of her return to work, and the treatment was because of her sex and race.
The Penalty Decision
In deciding on penalty, the Tribunal was concerned that:
- the Della Rosa managers had no appreciation that the conduct complained of by the complainant amounted to a contravention of equal opportunity laws; and
- there was a “high handed disregard” of Della Rosa’s obligations under equal opportunity law.
The Tribunal also observed that:
- Della Rosa gave no evidence in the hearing of, “…even the most basic workplace training in these matters having been conducted for employees and managers”;
- The initial contravention by Mr Hussain, “…could have been simply and effectively ameliorated, but was actually exacerbated” by the conduct of Della Rosa’s management; and
- Della Rosa’s “inappropriate and insensitive investigation significantly increased the impact on [the complainant]”.
The complainant was awarded $53,241, comprised of $38,000 for damages for contraventions and $15,200 for past loss of income.
Implications
Some implications for employers are:
- Managers and personnel should be appropriately trained and educated in the standards of equal opportunity law.
- Employers should not assume that their managers always have the skills to investigate and assess complaints of sexual harassment.
- Imposing leave or work transfers upon a complainant of sexual harassment could, depending upon the circumstances, amount to unlawful victimisation.
Employers should also be aware of amendments to Commonwealth sexual discrimination laws that commence on 13 December 2023 and introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sexual harassment, as far as possible.
*Kumari v Bervar Pty Ltd (Human Rights) [2023] VCAT 21 (9 January 2023)
Some more information is available here or you can book online for an initial no-obligation chat about reviewing an employment contract or contractor agreement.