14 March 2019

Employer ordered to pay $150k for lack of investigation into sexual assault

A steel product manufacturer has been ordered to pay its former employee $130,000 for pain and suffering caused by sexual harassment experienced in the course of her employment (jointly with the perpetrator of the harassment). In addition to this, the company is to pay $20,000 to the employee in the form of aggravated damages.

Ms Kerkofs worked at Parker Manufactured Products Pty Ltd (PMP) in the office within the factory for only 12 days before she left and never returned. Ms Kerkofs claimed that she was sexually harassed by Mohammed Abdallah when he:

  • addressed her using nicknames such as ‘sexy’, ‘honey’, ‘baby’ and ‘sweetie’;
  • made sexual comments about her body and stared at her;
  • approached her from behind and gave her uninvited massages on the neck and shoulders; and
  • (and other male employees) rated her out of ten based on her appearance.

Additionally, Ms Kerkofs alleged she was sexually assaulted by Mr Abdallah when she became unwell at work and her manager asked Mr Abdallah to drive her home. When they arrived at her house, Mr Abdallah went inside with her and climbed into her bed. He then massaged her neck and breasts and made sexual advances towards her.

Ms Kerkofs had made complaints about the sexual harassment to various people, including her manager. She also complained about the sexual assault to one of the directors of PMP. PMP undertook an investigation of sorts into the complaint but decided it was baseless after using Google to conduct research about sexual assault and formed the view the allegations were false.

Since leaving PMP, Ms Kerkofs was diagnosed with an ongoing condition of post-traumatic stress disorder as a result of the sexual harassment she experienced. In addition to seeking general damages, Ms Kerkofs sought aggravated damages on the basis that PMP failed to conduct an impartial investigation and the arrangement between PMP and Mr Abdallah (PMP agreed to indemnify Mr Abdallah in respect of all costs and any award of damages in this case), as well as the ‘gruelling’ cross-examination of Ms Kerkofs.

Judge Harbison was satisfied that each of the acts complained of by Ms Kerkofs was committed by Mr Abdallah and PMP was held to be vicariously liable for that harassment. Judge Harbison found it ‘alarming’ that no proper and independent investigation was carried out by PMP. PMP and Mr Abdallah were unrepresented at the hearing and rather than relying on the defence that PMP had taken all reasonable precautions to prevent the alleged conduct occurring, PMP attempted to establish that the conduct alleged did not occur at all. PMP was clearly unable to do it.

This case highlights, yet again, the importance of employers taking complaints of this nature seriously and undertaking robust independent investigations. It also highlights the importance of seeking legal advice when defending any claim, as the way in which a case is conducted can have implications particularly for awards of aggravated damages.

Kerkofs v Abdallah (Human Rights) [2019] VCAT 259

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Karl advises his clients in adverse action claims at the Fair Work Commission, implementing and negotiating enterprise agreements, unfair...

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