Two sides to every story

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I recently read the case of Alexander v Cappello & Anor [2013] FCCA 860, where an employer told his employee that there were always “two sides to every story” when she complained about being sexually harassed.
The employee won more than $100,000 in damages when her employer sacked her for complaining about sexual harassment. The employee fell into psychiatric illness and drug abuse as a result of her treatment.
Federal Circuit Court Judge Rolf Driver found the employee’s supervisor “engaged in serious sexual harassment” of her in 2008. His Honour also found that the employer was vicariously liable because “nothing was done on the part of the business to either protect [the employee] from that harassment or to deal with the situation appropriately once it was brought to attention”.

The Employee’s evidence

Judge Driver accepted the employee’s evidence that her supervisor sexually harassed her almost immediately from the time that she commenced her employment.
The behaviour of her supervisor included asking for a massage, asking her to have sex with him in his car and rubbing menus on her backside. When the employee told the supervisor to that he was being inappropriate and questioned how he would feel if his wife or daughter were subjected to the same treatment, he responded that they were “good girls”.
In addition to advising the employee that there were “two sides to every story”, the employer, told the employee that “If you respect our friendship, you will not take this further. If you do, it will end up ugly for you.”
Judge Driver ordered the employer to pay the former employee $75,000 plus interest for failing to deal with the allegations appropriately when they were brought to his attention. A further $24,300 plus interest was awarded against the supervisor for sexual harassment.

Implications for employers

The above case sends a clear message to employers that complaints of this nature should not be ignored. Practically, employers should make sure that the following steps are implemented within their businesses:

  1. Employing managers and supervisors who have the ability to recognise unlawful behaviour and take all reasonable steps to respond to it appropriately;
  2. Have an anti-sexual harassment policy which includes consistent and clear reporting procedures;
  3. Ensure that adequate training is provided and that managers in particular understand their obligations and that an employer can be held vicariously liable for the actions of its employees;
  4. Have a sympathetic leadership team who make employees feel that they are not alone and that if a complaint is made, formally or informally it will be dealt with appropriately.

Most importantly, employers and employees should speak candidly and to some extent, frequently about these types of issues so that unwanted behaviour can be cut out before it spirals out of control or better still, prevented altogether. Please feel free to contact me if you have any questions.

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