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"Shocking and serious" sex attack on younger worker costs employer over $300k

20 Feb 2017

"Shocking and serious" sex attack on younger worker costs employer over $300k

20 Feb 2017

A female hotel employee has won more than $300k from her former employer after a “shocking and serious” night-time sex assault by the night caretaker.
 
She was a vulnerable person as she was easily confused, according to the Tribunal that heard her case.

She was 21. The night caretaker – the attacker – was 70.

Both she and the attacker were sharing a hotel apartment at the suggestion of the company CEO and with the knowledge of the HR department.

The attacker (who was naked) crept from his bedroom into her room where she was asleep at 5 am in the morning and woke her up. He touched her body, her upper thigh, her groin and tried to remove her underwear. She told him to stop and leave.

He left the room. But he then came back, saying, “this can be our little secret”.

She did not later show for work and, within five to six weeks, the company terminated her employment. The attacker was fired the day after the incident, which took place on 1 December 2010.
 
Sadly, the attack was to derail her life and leave her with fearful mental scars. She was later diagnosed by two separate doctors as suffering from posttraumatic stress disorder and another depressive illness. She also developed a problem with alcohol abuse, anxiety, sleep problems, an inability to drive and a loss of personal interests. She was unable to work after the attack for about three years.
 
Legal matters
She later sought compensation from the employer, a publicly listed company, for the distress and economic loss caused by the attack. Employers can be held liable for the actions of their employees under a doctrine known as “vicarious liability”.

She sought findings from the legal system that the night caretaker’s behaviour toward her on 1 December 2010 was unlawful sexual harassment under the Anti-Discrimination Act 1991 and that the employer was liable for that harassment under s133 of that Act.
 
The employer denied that it was vicariously liable for the assault, arguing that it was not a condition of the employee’s job that he live in a unit of the hotel. It argued that the caretaker’s conduct occurred outside the course of his employment.

What the tribunal ruled
The Queensland Civil and Administrative Tribunal (QCAT) disagreed with the employer, and determined that:
  • the incident occurred in accommodation provided to the employee and arranged by the employer
  • the caretaker’s role required him to be available between the hours of 10 pm and 6 am
  • the services the caretaker provided during these hours were a necessary part of his duties.
It was also taken into account that the caretaker was required to be “sober and vigilant” and that the provision of accommodation was to enable him to perform his role.
 
QCAT also disagreed that the employer was unable to prevent the assault, noting that:
“At the very least one would expect a publicly listed company, such as the hotel, to have an antidiscrimination policy and an education program for its workers”.
 
QCAT found that it was irrelevant that the hotel could not know what the caretaker might do in his own home, as the unit was a place of work.
 
In its decision handed down in December 2016, the Tribunal was particularly critical of the employer for failing to have an anti-discrimination policy and education program in place, finding the hotel and an employee of the hotel jointly liable for the sexual assault of a female employee in 2010, awarding the employee more than $300,000 in damages.

What does this mean for employers?
This case expressly highlights the critical importance:
  • of employers having an anti-discrimination policy in place
  • for employees to be educated on the contents and relevant effects of the policy
  • that large organisations, particularly publicly listed, should have these processes and procedures in place.
The award of over $300,000 in damages acts as a reminder to employers that Tribunals and Courts are willing to award large sums in compensation, particularly after the landmark judgment handed down in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82.
In this case, QCAT also reinforced the position outlined in that decision relating to education and training on antidiscrimination policies, noting that:
 
“If the [employer] had taken steps to inform its workers of their legal obligations and to provide the education and training necessary to ensure compliance, then it may have avoided responsibility for the unlawful acts of its workers.”
 
Employers may also want to give careful thought to how they will accommodate workers if they need to do so. A risk assessment should be carried out and employers may want to give careful thought about the desirability or otherwise of housing members of opposite genders in the same unit taking into account such factors as the nature of the accommodation (e.g. large open dormitory hall vs small unit) and levels of oversight (e.g. staffed vs private).
STU v JKL (Qld) Pty Ltd and Ors [2017] QCAT 505 (6 December 2016)

As always, if there is any issue within your business that might give rise to a claim, early intervention is the best protection. Feel free to contact us on 1300 565 846 if this raises any questions.

Additional reporting by Jim Wilson (Workplace Info)

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