A young woman was recently awarded over $300,000 after a hotel caretaker entered her bedroom at night while he was naked, touched her thigh and groin without consent and attempted to remove her underpants. The decision continues the recent trend for courts and tribunals to award substantial damages for sexual harassment and is a timely reminder for employers to take steps to prevent sexual harassment and discrimination in the workplace.
In STU v JKL (Qld) Pty Ltd and Ors  QCAT 505, the offender was engaged by the hotel as a night caretaker and was required to be available to perform certain duties between 10pm and 6am each night. He lived rent free in a two bedroom unit provided by the hotel in return for performing those services. The complainant was employed by an entity related to the hotel and took up a position within the hotel complex. As part of that position, she was provided with accommodation in the second bedroom of the caretaker’s unit. Following the caretaker’s conduct as described above, the complainant commenced proceedings against the caretaker and the hotel, on the basis that the hotel was vicariously liable for the caretaker’s conduct.
The Tribunal found the caretaker’s “sexual assault on the Applicant was serious and shocking” and that his conduct amounted to sexual harassment at law. The Tribunal also found the hotel vicariously liable for the caretaker’s conduct. In doing so, the Tribunal rejected the hotel’s argument that it should not be held vicariously liable for various reasons, including that:
- the caretaker’s conduct did not occur in the course of his work; and
- there was nothing the hotel could have done to avoid the event.
In rejecting those arguments, the Tribunal noted that the caretaker was working at the relevant time pursuant to his engagement by the hotel. The Tribunal noted that “it matters not if the sexual assault occurred in his private residence or anywhere else in The Hotel. The critical issue is that is occurred in the course of his work for The Hotel”. The argument that there was nothing the hotel could have done to prevent the assault was also rejected, with the Tribunal noting that “at the very least, one would expect a publically listed company to have an Anti-Discrimination Policy and an education program for its workers”.
The Tribunal accepted that the complainant suffered Post Traumatic Stress Disorder and a depressive illness following the assault, which rendered her unable to work for a number of years. The caretaker and the hotel were ordered to pay the complainant damages of $313,316 on a joint and several basis in connection with the caretaker’s unlawful conduct.
This decision should remind employers of the importance of taking active steps to manage discrimination risks in the workplace. This should include taking reasonable steps to prevent discrimination and sexual harassment at work so that vicarious liability claims can be defended.
We recommend that employers should, at a minimum:
- have discrimination policies in place that have been tailored to reflect Australian law;
- conduct regular employee training sessions in anti-discrimination law and the employer’s policies; and
- have an adequate complaint handling and investigation processes in place so that complaints can be managed in a timely and appropriate way.
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