A school cleaner has been awarded over $150,000 compensation for a “sex romp” prank played on him in his workplace. The State was found vicariously liable for the prank, which amounted to sexual harassment and victimisation.
A school cleaner was tricked by two colleagues into believing he was cleaning up after a sex romp in the school staffroom. The colleagues staged the room to look as though a romp had taken place, using props such as bedding, underwear and condoms filled with cream. The cleaner thought he had cleaned up bodily fluids, until two days later when he found out that it was a prank.
The cleaner, who lodged a complaint with the Queensland Anti-Discrimination Commission (QCAT), claimed to be deeply distressed and humiliated following the prank, and developed psychological problems as a result. He also claimed that he was victimised by his colleagues after making the complaint.
The State argued in its defence that the cleaner appeared happy to participate in the joke. However, QCAT Member Jeremy Gordon accepted that the cleaner pretended to go along with it to cope with his humiliation. Member Gordon rejected the perpetrators’ claims that they only wanted a laugh, and determined that the intention of the prank was to humiliate. He found the State vicariously liable for the acts, and ordered the two colleagues and the State pay compensation of $156,051 to the cleaner.
The finding demonstrates that behaviour only intended as a joke is not a valid defence – the test for liability comes down to whether a reasonable person would have been offended or humiliated, not whether the perpetrator thought the behaviour was offensive.
The State, as the employer, was held vicariously liable for the unlawful conduct of the perpetrators, because it did not take “all reasonable steps” to prevent it. Employers can successfully defend claims of vicarious liability if they have taken all reasonable steps to prevent the unlawful conduct in question. Having comprehensive policies, and implementing these through training, is critical for an employer to successfully defend such claims. A successful defence would mean that individuals are found liable for their unlawful behaviour, and not the employer.
The level of damages being awarded by the court for successful claims of sexual harassment are significantly higher than they were in recent times. This pattern will continue now that this precedent has been set.
3 facts about sexual harassment in the workplace:
- What constitutes sexual harassment in the workplace? Sexual harassment can take many different forms. Among suggestive comments, leering, and unwelcome touching, office ‘jokes’ or pranks can constitute sexual harassment. Employers can be held liable for this behaviour.
- Ensure that you have up-to-date and comprehensive policies on appropriate workplace behaviour, including sexual harassment and victimisation. It is essential that these policies are implemented through training. The training must clarify that the test for sexual harassment is how the victim perceived the behaviour of the perpetrator and whether this was reasonable, not whether the perpetrator intended to offend. Learn more about sexual harassment training modules, which aims to help change workplace behaviours, or assess your current risks with our best practice compliance framework.
- The cost of failing to implement a robust compliance plan for employers will be significant if there is an incident. Protect your organisation by being proactive, not reactive, when it comes to compliance.