Green v State of Queensland, Brooker and Keating [2017] QCAT 008

In a growing trend, sexual harassment claims are being brought under the Anti-Discrimination Act 1991 (Qld) (the “Act”) which is not restricted in proceedings or damages in the same manner as the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Member Gordon

The applicant sought compensation for being subjected to sexual harassment by two colleagues (the “respondents”) at a school. The applicant was a cleaner employed by the State of Queensland. In 2014, the respondents prepared the staff room to depict the aftermath of a sex romp involving two staff members at the school.

The applicant claimed that the preparation of the room, along with the conduct toward the applicant during the prank, and its disclosure to others, were intended to humiliate the applicant and therefore amounted to sexual harassment.

As a result, the applicant alleged he suffered a psychological injury. The applicant had complained to the Anti-Discrimination Commission Queensland but was then subject to victimisation by the male pranksters.

The respondents, including the prankster staff members and their employer, claimed that the applicant had feigned his reaction or at least grossly exaggerated any symptoms arising from the prank.

Legislation

Section 119 of the Act relevantly provides:

Sexual harassment happens if a person—

(c)  makes a remark with sexual connotations relating to the other person; or

(d)  engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—

(e)  with the intention of offending, humiliating or intimidating the other person; or

(f)  in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Liability

Member Gordon accepted three of the allegations amounted to sexual harassment; the preparation of the room; the handling of the underwear and the disclosure of the events to others, and reasoned as follows:

[120] It is submitted on behalf of the Respondents that setting up the scene in the staff room was not “unwelcome conduct” … I have found that until Mr Green realised that it was a prank, he did genuinely believe that he was having to clear up the aftermath of a sex romp including body fluids and that two staff members were having an affair …  It is my finding that he would have much preferred not to have had to clean up, and that he was genuinely upset and concerned about the affair and the use of school premises.

[136] … the plan was to create a realistic scene, which Mr Green would believe was real, and then to tell him that the scene was a prank, at which point he would be likely to be humiliated.

Member Gordon found that the invitation to the applicant to sniff the boxer shorts was unwelcomed conduct because:

[138] … Mr Green had no desire to sniff the boxer shorts.  It was conduct of a sexual nature because the boxer shorts had featured in the sex scene.  It was conduct in relation to Mr Green because he was directly invited to do something.  I also accept that it was an attempt to humiliate him because it was part of the overall plan to prank him and make the event as realistic as possible so that Mr Green would be humiliated.

Member Gordon did not accept that the applicant had exaggerated the injury.

As to whether the applicant was subject to victimisation, Member Gordon stated at [143] – [145] that the three victimisation incidents resulted in detriment pursuant to s 130 of the Act.

Member Gordon awarded the applicant compensation of $156,051.00:

Non-financial loss (pain, suffering, loss of enjoyment of life, offence, embarrassment, humiliation and intimidation) – $70,000

Interest at 2% on non-financial loss – $3,160

Past loss of earnings (calculated using gross figures and assuming it is subject to tax) – $17,430

Superannuation on the past loss of earnings – $1,656

Future loss of earnings (calculated using net figures and assuming it is not subject to tax) – $48,338

Superannuation on future loss of earnings – $5,467

Future cost of treatment – $10,000

In relation to non-financial loss, Member Gordon undertook a detailed analysis of Richardson v Oracle Corporation Australia Ltd [2104] FCAFC 82 and its subsequent application, together with Federal and State awards, including comparable common law and regulation damages [191] – [266]. Ultimately, Member Gordon found comfort in the Queensland awards for work related injuries (Karanfilov and Sapwell), although not compelled to follow, did so, and declined to make an award in line with Richardson.

The employer was found to be vicariously liable for the acts of the two employees and hence the judgment was awarded against the State of Queensland. However, the full judgment was also awarded against the male prankster because of his further acts of victimisation. As against the female prankster the judgment award was reduced by 50% because her acts were limited to the sex prank. The apportionment award was made under s.209 of the Act.

David Cormack – Brisbane Barrister & Mediator

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