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Workplace jokes can sometimes be taken too far, becoming unwelcome conduct over time. Mr Matic, an Assistant Manager at a KFC store, was known for making dirty jokes at the workplace. These jokes were initially met with good humour, however became unwanted over time, even frightening to one young employee, Ms Sharma.
The inappropriate conduct engaged in by Mr Matic, who was almost twice Ms Sharma’s age, involved: an invitation to go skinny dipping with him at Bondi beach; pulling Ms Sharma along the ground by her leg at the KFC store; and later touching her leg while purring like a cat. The Tribunal found that these incidents amounted to both sexual harassment and direct sex discrimination.
However, the Tribunal found other incidents described by Ms Sharma lacked specificity and some evidence was found to be self serving and exaggerated.
The Tribunal found that the willing exchange of pornography between Mr Matic and Ms Sharma’s boyfriend was not conduct directed towards Ms Sharma and did not constitute sexual harassment, in the particular circumstances of this case.
The Tribunal observed that the sexual nature of Mr Matic’s conduct had become pervasive and that a hostile work environment existed for Ms Sharma. The Tribunal found that Ms Sharma’s employer had failed to take all reasonable steps to prevent the sexual harassment and sex discrimination. As such, her employer was found to be vicariously liable for the unlawful conduct of Mr Matic.
Ms Sharma was awarded $15,000 to compensate her for injury to her feelings and distress.
HR Tips
This case demonstrates the importance of employers taking all reasonable steps to prevent sexual harassment and sex discrimination in the workplace. For example by:
• having appropriate EEO and anti-discrimination policies, which are made known to all employees and are enforced;
• investigating any complaints of sexual harassment and sex discrimination in a prompt and thorough manner; and
• dealing appropriately with such complaints, dependent upon the findings of the investigation. .
SHARMA V QSR PTY LTD T/AS KFC PUNCHBOWL [2009] NSWADT 166
Kelly Godfrey
Special Counsel
Australian Business Lawyers
kelly.godfrey@ablawyers.com.au
NOTE: This is for information purposes only.
It does not purport to be comprehensive or to render legal advice.
