Huge sex harassment payout warning for employers

An Adelaide woman has been awarded a compensation payout of $466,000 in one of the biggest penalties ever handed down for sexual harassment.

Federal Court judge John Mansfield yesterday ordered Employment Services Australia, part of Adelaide building company Hickinbotham Group, to make the payout to Malgorzata Poniatowska after two former colleagues sexually harassed her and the company failed to act on her claims.

While Hickinbotham said it was “extremely disappointed” with the decision and is set to appeal, Federal Sex Discrimination Commissioner Elizabeth Broderick told The Australian the decision was a warning to employers not to accept the behaviour.

The court found that the former sales consultant’s complaints about emails and text messages from two male colleagues were not properly addressed by the company.

Justice Mansfield also found that Hickinbotham had been dishonest in claiming that it sacked Poniatowska in early 2006 after three warning letters because of poor performance.

“Put bluntly, I find that none of those warning letters, or the suspension or termination of her employment were for her poor work performance… I find that there was a different, but consistent, motivation for those communications,” Justice Mansfield found.

“Ms Poniatowska was not treated as the victim of sexual harassment, but as a problem to be dealt with.”

Poniatowska told reporters outside the court that her case should provide an example to other victims of sexual harassment.

“I am very happy, not only for myself but for all people who have been harassed in the workplace and I would strongly recommend to them to stand up for their rights.”

It is believed the payout is the second largest in a sexual harassment case. In 2007, a Cairns woman was awarded a payout of $500,000 after being raped by a colleague.

Peter Vitale, SmartCompany legal writer and principal at CCI Lawyers, wrote extensively on that case and provided a list of lessons for employers to follow:

• Make sure you have a clear policy prohibiting sexual harassment and behaviour, such as the display of pornography.
• Educate employees about your policies regularly, including their rights to complain about unwelcome behaviour. Make sure the training is frequent enough to cover employees who have commenced in the previous 6-12 months.
• Educate employees about how to conduct themselves appropriately in circumstances where a complaint has been made involving employees currently in the workplace.
• Engage managers in special training to help them understand how to treat a complainant fairly but sympathetically and what kind of conduct might be viewed as victimisation.
• Don’t let your workplace get out of control. The courts are clearly signaling that they will not give any tolerance to employers merely because the behaviour is “part of the culture” or “no-one has taken offence before”.
• Don’t hesitate to discipline employees who breach the rules – zero tolerance is the best chance of defending a claim for vicarious liability.