“Prevention is better than the cure” – Damages awards in discrimination and sexual harassment cases are now significantly higher than previously awarded

16 March 2016

In a recent decision of the Human Rights Division of the Victorian Civil and Administrative Tribunal (“VCAT”) handed down on 23 December 2015[1], Judge Jenkins, Vice President, made it clear that there has been a “gradual and ongoing reassessment of the approach to damages” in discrimination and sexual harassment cases, leading to more significant awards of damages being ordered by the Courts and VCAT.    In this particular case, Judge Jenkins awarded the Applicant, who had been sexually harassed over a significant period of time by her employer, damages in the amount of $332,280.00, broken down as follows:

  1.  $180,000.00 in general damages;
  2.  $20,000.00 in aggravated damages
  3.  $60,000.00 for past loss of earnings;
  4.  $60,000.00 for lost future earnings and superannuation; and
  5.  $12,280.00 for out of pocket expenses such as doctor’s fees.  

In addition, and although VCAT is generally a “no costs” jurisdiction, the Respondent was ordered to pay the Applicant’s costs of the proceeding from 16 January 2015 on a standard basis because of the way that the Respondent ran the case and because he unreasonably refused a reasonable settlement offer, which was significantly lower than the damages awarded in this case. 

Previously awards of damages in this area of litigation were low, inviting adverse commentary and often discouraging victims from bringing their cases.  The recent trend, however, is for the Courts and VCAT to take a more “equitable and expansive approach” and order damages akin to damages in personal injury cases, which can be in the hundreds of thousands of dollars.  The reason for this more expansive approach is community recognition that “the impact of even one serious incident of sexual harassment can have a devastating effect, both personally and professionally, upon a complainant” and to take into account the fact that the Equal Opportunity Act “is directed to protecting people from discrimination on the basis of various attributes … and from sexual harassment and victimisation.”

In light of these decisions, it is even more important for employer’s to protect themselves to the extent possible by:

  1. putting in place appropriate policies and procedures;
  2. training staff on what is and is not appropriate behaviour;
  3. actively monitoring the behaviour of employees to ensure that their workplace is free from discrimination and sexual harassment; and
  4. taking swift action where allegations of discrimination and/or sexual harassment are made.

Failure to do so may place an employer in “hot water” and at risk of a significant damages award against them.  As they say - prevention is better than the cure (or in this case the punishment).

 

[1] Collins v Smith (Human Rights) [2015] 1992; See: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2015/1992.html?stem=0&synonyms=0&query=title("2015%20VCAT%201992")