Tribunal case studies

Sexual harassment in the area of employment

The complainant, a young woman of Hong Kong Chinese descent and a pastry chef by training, was in Australia on a working holiday. In March 2017, she commenced employment as a casual meatpacker with the first respondent (R1).

Around June 2017, the second respondent (R2), a male, commenced working for the R1. The complainant alleged a couple of days later, R2 started harassing her, repeatedly asking her if she loved him and stating that he loved her. He also poked her with his finger, and would often touch her arms, back, and shoulders.

At first, the complainant tried to ignore his approaches, thinking he would give up, but when his behaviour persisted, she told him to stop and to leave her alone. R2 apologised, saying he would stop, but his behaviour resumed a few days later and continued on an almost daily basis. The complainant did not report R2’s behaviour to management because she thought he would eventually stop. She was also fearful as to how her employer might respond.

One morning R2 approached the complainant from behind and poked her in the ribs. When she turned around to confront him, her left hand was pierced by the knife R2 was holding, cutting tendons in her index and middle fingers. The complainant underwent surgery and was advised that she needed to rest her hand for three months. This affected her ability to work and to carry out basic functions at home. The complainant lodged a workers’ compensation claim against R1.

In the complaint, the complainant alleged R1 was vicariously liable for the conduct of R2. During conciliation, the complainant appeared to have resolved her complaint against R2, whereby R2 agreed to pay her compensation. However, he subsequently failed to pay her and was unable to be contacted.

The Commissioner was unable to conciliate the complaint against R1, so referred the complaint to the State Administrative Tribunal, pursuant to s.93 of the Equal Opportunity Act 1984 (WA). The complainant was represented before the Tribunal by the Commission’s Senior Legal Officer. The Tribunal listed the complaint for mediation, at which the parties settled the matter. R1 agreed to pay the complainant $3,000, provide her with a statement of service, and arranged for her to access counselling through its employee assistance program, with the aid of a Cantonese interpreter. 


Sexual harassment in the area of employment

The complainant, a male, commenced employment as a food and beverage worker with the respondent (R1) in June 2017. The respondent operates several bars and food venues in Western Australia. The second respondent (R2), a female, was also employed by R1 as a food and beverage worker. The complainant and R2 were rostered to work together at one of R1’s venues.

The complainant alleged that in August 2017, he and R2 were working together when R2 began demonstrating how a previous manager would touch the area around her vagina to find out if there was money hidden in the pockets of her apron. As part of the demonstration, R2 grabbed the complainant’s penis through his pants. The complainant, although shocked, did not object to being touched by R2, as it had not happened before and it was part of her demonstration about the way her ‘boss’ used to touch her.

However, during August and September 2017, R2 grabbed the Applicant’s penis through his pants several more times. On each of these occasions, the complainant objected and asked R2 to stop. Following the last incident, the complainant reported what happened to his duty manager, who referred his grievance to R1’s HR manager. A couple of weeks later, the HR manager informed the complainant that R2 would be moved to a different shift after she returned from holidays, so they would not be working together.

In October 2017, R2 returned from holidays and commenced working the same shift as the complainant, as before. A few days later, the complainant learned from a co-worker he was rostered to work at another venue. The complainant had not been informed of this by R1. He asked the HR manager why he had been transferred. The manager informed him that after speaking with other employees, it was apparent the complainant wished to work in another venue, so it was easier to transfer him rather than R2. The complainant asked why he had not been consulted, to which the manager allegedly responded the employer does not consult first. The complainant was dismissed from his employment in early November for an unrelated incident.

The complainant lodged a complaint of sexual harassment against R1 and R2 with the Commission in November 2017. In the complaint, the complainant alleged R1 was vicariously liable for the conduct of R2. During conciliation, the complainant settled his complaint with R2, but not with R1, which denied it was vicariously liable for R2’s conduct, or that the complainant had been transferred because he had complained about the harassment.

The Commissioner referred the complaint against R1 to the State Administrative Tribunal, pursuant to s.93 of the Equal Opportunity Act 1984. The complainant was represented before the Tribunal by the Commission’s Senior Legal Officer. The Tribunal listed the complaint for mediation, at which the parties settled the matter. R1 agreed to pay the complainant $1,400 and provide him with a statement of service.