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10 Common Mistakes With HR Investigations

Huge payout after ‘sex, lies and workplace bullying’

huge-payout-after-sx-lies-and-workplace-bullying-2

An employer has found out the hard way, the risks associated with failing to protect a worker from systematic workplace bullying and sexual harassment.

Rather than taking a worker’s complaint seriously, the employer failed to address issues which a Court later considered could have been avoided by “relatively simply means”.

In the end, the employer’s lesson was an expensive one.

Background

The former employee in question (Ms Trolan) had been employed by the employer (WD Gelle Insurance and Finance Brokers Pty Ltd) from 7 July 2008 until 12 December 2008 .

The former employee brought a legal claim[1] alleging negligence by her former employer and seeking damages for psychological injury.

The employee’s claim alleged that:

  • On numerous occasions during her employment, a director of her employer (Mr Gelle) engaged in sexual harassment, intimidation and workplace bullying against her
  • After ‘blowing the whistle’ about her treatment to another director (Mr Gelle’s wife), nothing was done to address or prevent the offending conduct
  • The offending conduct continued without reduction and Mr Gelle became increasingly more offensive to her, thereby causing her a psychological illness.

The employer denied the former employee’s allegations, as did Mr Gelle.

The court case

The claim was heard in the NSW District Court.

Employer’s duty of care

The Court restated the duty of care of employers with respect to workplace bullying and sexual harassment.

… the [employer] owed the [employee] a non-delegable duty to take reasonable care to avoid exposing her to an unnecessary risk of injury in the workplace.

… the scope or content of this duty required the [employer] to ensure the [employee] was not bullied, intimidated or sexually harassed in the workplace.

This is especially so once the [employee] made it known to her employer that she found such conduct repugnant and unwelcome.”

Offending conduct

The Court divided the offending conduct into 12 elements, some of which involved:

  • Mr Gelle positioning himself behind her whilst she was standing in the small kitchen area of the office and pressing his belly against her, and through his clothing, starting to press and rub his penis against her clothed buttocks or the small of her back
  • After calling her into his work area, Mr Gelle placing his hand up under her shirt, down her bra strap, and grabbing her breast
  • Mr Gelle making a gratuitous remark to her about the dress she was wearing, and suggesting that she should wear dresses more often to show off her legs
  • Mr Gelle frequently screaming and shouting at people in the office, at least several times per week, and including occasions when he also shouted at her
  • Mr Gelle making regular unwelcomed approaches (about two to three occasions per week) including an occasion when he placed his hand up the back of her dress and squeezed her on the bottom whilst she was preparing to leave the office at the end of a working day.

During the hearing the Court gave short shrift to the former employer’s claim that the former employee’s evidence was “unconvincing, contained inconsistencies and was unreliable”.

Instead, the Court observed that the former employee’s evidence was “entirely convincing” and “there was no cause for doubting her truthfulness.”

“Bombastic” and “argumentative”

In a scathing assessment of Mr Gelle’s evidence, the Court considered Mr Gelle “a bombastic witness” and “argumentative”.

The Court commented that Mr Gelle sought to “avoid answering questions that posed potential difficulty for him.”

The Court rejected the evidence of Mr Gelle’s denials that the conduct in question had ever occurred.

Condemningly, the presiding judge commented:

I find myself unable to accept any of Mr Gelle’s assertions where they sought to contradict the evidence of the plaintiff.

… Mr Gelle was an entirely unsatisfactory witness whose evidence should not be accepted on any matter in controversy between the parties.”

Instead, the Court accepted that each of the twelve elements of concerning conduct by Mr Gelle and the former employer in fact occurred as the former employee had alleged.

Impact of offending conduct

The Court considered that the former employee had suffered a “humiliating and systematic pattern of sexual harassment.”

The Court recognised that the cumulative effect of Mr Gelle’s unwelcomed conduct and her then employer’s failure to act to protect her by curtailing that behaviour had “a lasting and permanent deleterious effect on [her] ability to lead a normal life.”

In a sobering example of the extent of psychological injury that can be caused by harassment and bullying, the Court recounted that the former employee:

  • Had become agoraphobic
  • Suffered from post-traumatic stress disorder and depression
  • Suffered anxiety, and has a chronic adjustment and major depressive disorder
  • Had become socially withdrawn
  • Has difficulty sleeping, concentrating, with cognition and motivation problems
  • Now has a nihilistic perspective on life
  • Was in need of ongoing psychiatric treatment

The Court accepted that the former employee’s psychological illness had been:

  • Caused by Mr Gelle’s “offensive and sexually harassing behaviour”
  • Contributed to by his “bullying and intimidatory behaviour”
  • Materially contributed to by the former employer’s “apparent inaction” in response to her complaint

The verdict

The Court held that the former employer:

  • Failed to provide the former employee with a safe place of work
  • Failed to take reasonable steps to care for the plaintiff’s psychological wellbeing
  • Exposed the plaintiff to the peril of Mr Gelle’s continuing and repeated sexual harassment, bullying and intimidation

As a result the Court awarded $733,723 in damages to the former employee.

Lessons for employers

The profiled case demonstrates that a victim of workplace bullying or sexual harassment has hard-hitting legal options aside from specific anti-bullying and sex harassment legislation.

Significantly, this was not a case of an employee being subjected to years of bullying and harassment; rather the victim was employed for barely 6 months.

The psychological injury sustained is a vivid illustration of the impact of unchecked sexual harassment and workplace bullying on a victim’s psychological well-being.

Upon becoming aware of the offensive conduct to an employee, the employer must act to protect the victim from being further subjected to offending behaviour.

As the profiled case shows, employers who fail to respond to a report of workplace bullying or sexual harassment risk an expensive and embarrassing lesson.

[1] Trolan v WD Gelle Insurance and Finance Brokers Pty Ltd [2014] NSWDC 185 (4 November 2014)


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