Allegations of sexual assault in the workplace
06 Sep 2019
- Employment Law
In this article Emily Shoemark and Margaret Young outline the details of a recent case in which the Victorian Civil and Administrative Tribunal (VCAT) awarded a woman $150,000 in damages after being a victim of sexual harassment by a colleague – both in and out of the workplace – and the significance of this case for both employers and employees.
Kerkofs v Abdallah (Human Rights)  VCAT 259
The applicant in this case, Ms Kerkofs, worked for a steel product manufacturer. She’d only been employed for 12 days before leaving, claiming she had been sexually harassed and assaulted by a colleague, Mohammed Abdallah. The harassment included him using nicknames for her, such as ‘sexy’, ‘honey’, ‘baby’ and ‘sweetie’; making comments about her body, in particular about her breast and bottom size; and giving unwanted physical affection, including approaching her from behind and giving her neck and back massages.
The sexual harassment came to a peak when Mr Abdallah took advantage of Ms Kerkofs when she was ill. Mr Abdallah took her to her home and went inside with her. He then climbed into bed with her and proceeded to touch her breasts. Although Ms Kerkofs continued to say to Mr Abdallah that she felt sick and just wanted to sleep, he told her ‘you are so vulnerable, I could do anything to you right now’.
Ms Kerkofs did not return to work after these unwelcome sexual advances. Instead, she contacted her workplace, telling them about the incident and seeking immediate action.
The employer, Parker Manufactured Products Pty Ltd, claimed they investigated the incident but then decided that Ms Kerkofs’ claims were baseless after using Google to conduct research about what sexual assault was.
Once leaving the workplace, Ms Kerkofs was diagnosed with post-traumatic stress disorder as a result of the sexual harassment and assault she had experienced. She filed a claim for both general damages and aggravated damages because her employer failed to conduct a proper impartial investigation.
VCAT held that Mr Abdallah had committed the alleged acts of harassment and that the employer was vicariously liable for the harassment.
VCAT found it alarming that both the employer and accused appeared at Court without representation and that they attempted to say that the harassment did not occur and that they had attempted to prevent it. This resulted in the employer being ordered to pay aggravated damages.
This case outlines the importance of employers taking complaints by employees seriously by conducting independent and proper investigations and retaining a neutral position. The findings also outline the serious consequences of an employer not obtaining proper legal advice both about their obligations, but how to properly deal with any claim brought against it.