Summary
A production coordinator accused her manager of sexually harassing her throughout her six-month employment. She alleged that her manager tickled her and slapped her bottom whilst telling her that her bottom was too skinny. The production company immediately dismissed the manager but asked the production coordinator to keep her complaint confidential.
The production manager then resigned as she felt anxious when her co-workers asked her about the dismissal of the manager. The manager was rehired after one month of the production coordinator’s resignation. When the production company went into liquidation, the VCAT struck out the coordinator’s sexual harassment claim against the company. The production coordinator still pursued the manager and was awarded $10,000 in damages.
Slapping the buttocks or tickling are acts of physical intimacy, inappropriate in the workplace
A married 35-year-old woman who had been born in Hong Kong was hired as a production coordinator in August 2019. Her line manager and immediate supervisor was a male production manager who spoke the same Cantonese language as the production coordinator. They often spoke in Cantonese as the production coordinator found the production manager’s English difficult to understand.
First and second acts of sexual harassment, butt slapping
The manager slapped the production coordinator on her buttocks as she was standing next to him at his desk in September 2019. This was repeated in October 2019 when the coordinator was standing next to the manager who was then sitting at his desk. As she turned to leave, the manager slapped her buttocks.
Third act, butt slapping
In late October 2019, when the manager had just returned from a trip to China, the coordinator stood next to him as he sat at his desk. They were talking about and looking through the window at a container making a delivery of goods procured by the manger from China. The manager slapped the coordinator’s buttocks again.
Fourth act, touching the breast
Again, in late 2019 while they were reviewing a tote bag, the coordinator placed the bag on her left shoulder to check if the straps were long enough. The manager ran his hand down the side of the strap from her shoulder and he touched her left breast. The coordinator put the tote bag down immediately and stepped backward.
Fifth act, making comments about the coordinator’s body shape
In November 2019 the manager asked the coordinator why her upper body was so big but her bottom was so skinny and had no meat. The coordinator responded that she didn’t know why.
Sixth act, pulling coordinator toward him and tickling her
The manager instructed the coordinator to lock up and proposed to show her how to lock up. They both walked down to the front office, and as they were walking, the manager turned around, smiled and reached above the coordinator’s shoulder. He placed his arm around her neck and pulled her toward him. The coordinator resisted and pulled away from his grip. As the manager left, he tickled her waist.
Seventh act, offering to give the coordinator a massage
The next day, as the coordinator sat at her desk, the manager approached her asking what time she left the night before. The coordinator assumed he was referring to the time she left the office. The manager touched her right shoulder and said that she was very tense and her shoulder was very tight and then said he will give her a massage. The coordinator refused but politely said thank you.
Complaint to the head of the department
The coordinator made a complaint to the head of their department who then spoke to the owner of the company. The coordinator then attended her doctor and was given a certificate of capacity saying that she was unfit for work from 8-24 January 2020. The coordinator was asked to a meeting with the owner of the company who seemed shocked. The coordinator was informed that none of the CCTV cameras in the workplace worked. She was cautioned to keep her complaint confidential.
Manager summarily dismissed
Later that same day, the owner of the company called the coordinator to inform her that the manager had already been dismissed on the spot. The coordinator then agreed to return to work on the next working day.
Return to work and resignation
When the coordinator returned to work, her colleagues discussed the manager’s dismissal and the possible reasons for his dismissal. Anxious, the coordinator spoke with the Human Resources Manager about the sexual harassment and her WorkCover claim. The coordinator experienced increased stress and felt that the workplace was no longer safe for her to work. She resigned in January 2020.
Project manager rehired
A few weeks after the coordinator resigned, she discovered that the project manager was rehired by the company. The coordinator felt distressed because the project manager had gotten away with his sexual harassment and the coordinator who was the victim, had been rendered unable to return to work because of her emotional distress.
Complaint against the manager
The coordinator lodged a complaint with the police. The coordinator sought to lodge an application against the employer but the employer had gone into bankruptcy.
Denial by the manager
The manager denied having sexually harassed the coordinator. Instead, he said that he pitied the coordinator who had begged him for a job. The manager also claimed that she had kept the coordinator even when her work performance was poor. He had never sexually harassed the coordinator but mentored her.
He claimed that if he had touched the breast of the coordinator, it was unintentional as they were fitting a strapped purse at the time. He denied having ever made disparaging comments about the coordinator’s body or body shape. They were discussing fashion and how fashion trends affected the fit of clothes around the chest, waist and hip. And at any rate, the coordinator never gave the project manager any indication that his comments were unwelcome.
As for pulling the coordinator towards him, he claimed to have lost his balance after experiencing pain in his knee which he’d had surgery on previously. He only touched the coordinator’s shoulder so that he will not fall. It was not intentional.
As for offering the coordinator a massage, the project manager said that the coordinator had asked him to refer a masseuse because her shoulders were stiff and tense. The project manager told her that he knew a Thai lady but that her press was strong. The coordinator did not like a strong press kind of massage, so the project manage offered to give the coordinator a shoulder massage which the coordinator accepted with thanks.
The manager also said that the coordinator went with him to Costco and even used his credit card. They went in the manager’s car to the company Christmas dinner and to the team Christmas lunch. The coordinator asked the manager to go with her for a walk around a lake.
Had the coordinator been sexually harassed?
Unwelcomed conduct of a sexual nature
The Civil and Administrative Tribunal accepted the evidence of the coordinator that she had been slapped in the buttocks by the manager on three occasions. The coordinator was considerably younger and occupied a more junior role, and so the coordinator was in a vulnerable position. The physical contact initiated by the manager was not welcome even when the coordinator did not tell him to stop. She pushed away from the manager and tried to avoid being alone with the manager. The act of slapping the buttocks is a sexual conduct. Any reasonable person would have known that the coordinator would have been offended, humiliated, or intimidated.
Inappropriate comments that offended and humiliated
The comments made by the manager about the body shape of the coordinator were vulgar and inappropriate. Even if the manager had only meant that the coordinator would not qualify to be a suitable model, he could have done so using less personal language. The words he used had sexual innuendo or connotation. Any person in that same circumstance would have been offended, humiliated or intimidated.
Actions were an attempt to create physical intimacy
The Tribunal also believed and accepted the coordinator’s evidence that the manager pulled the coordinator toward him and tickled her waist as he left. Tickling is not a kind or friendly touch. It is an act designed to create physical intimacy and is an act of a sexual nature. The embrace and the tickling offended, humiliated and intimidated the coordinator.
Vulnerable position of the coordinator
The coordinator did not show how uncomfortable she felt at the unwelcome conduct. She only acted when the conduct escalated, and this triggered heightened stress for her that she could no longer tolerate the situation. When the coordinator complained to her employer, she merely wanted the unwelcome conduct to stop. She did not necessarily want the manager to be dismissed from his employment. The manager’s dismissal caused disruption in the workplace and this caused discomfort for the coordinator when her colleagues asked her why the manager had been dismissed.
Damages awarded due to suffering
The sexual harassment and the subsequent stress from the sudden dismissal of the manager caused mental health distress to the coordinator. She also felt stress not only because of the sexual harassment but also because she hesitated to report the harassing behavior out of fear that she would not be believed or that she would be blamed for any upset caused to the workplace.
The coordinator was awarded $10,000.00 in general damages. Because she resigned instead of giving her employer the opportunity to accommodate her, and because she refused to return to work despite her employer asking her to do so, the coordinator was not awarded the 47.5 weeks’ pay that she claimed.
Source:
Leung v Chung (Human Rights) [2022] VCAT 216 (30 March 2022) http://www.austlii.edu.au/cgi-bin/sign.cgi/au/cases/vic/VCAT/2022/216
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