The trainee, who was in her third year of training at the Monash Medical Centre in Melbourne, told the Tribunal that she had developed a supportive professional relationship with the neurosurgeon from around December 2004. He began inviting her into his private consultation rooms for extra tuition, although she did not take up any of those invitations until the night the harassment took place.
The trainee alleged that the neurosurgeon led her into his consulting rooms when he suddenly approached her from behind, embraced her and kissed her on the lips. He then put his hand on her breast, pinning her against a desk, and as she twisted to get out of his grasp, she saw his erect penis out of his fly. He then said to her “do you want to go down on this”. There were no witnesses to the incident.
The incident was investigated by the Hospital’s internal Human Resources department, which found that the complaint could not be established. The neurosurgeon argued that the trainee made up the allegation.
The judge who determined the case said “there is no question that, if the alleged harassment occurred as alleged, the incident would constitute sexual harassment in employment.”
The judge noted that as a civil case the alleged harassment must be proven on the balance of probabilities. The Judge concluded “it is more probable than not that the incident of sexual harassment occurred and that it occurred in the manner deposed to by the Complainant”, and that “her evidence had a ring of truth about it”.
The neurosurgeon was ordered to pay $100,000 to the trainee. The Medical Centre was not a party to the proceedings.
HR Tip: Although the employee in this case chose to take legal action against the surgeon directly it is important to note that employers can be held vicariously liable if their employees sexually harass another.
Employers should be aware that under federal anti-discrimination laws there is no cap on the maximum penalty that can be awarded against an employer for sexual harassment. To reduce the risk of a sexual harassment claim it is important that employers have a properly drafted EEO Policy in place which covers sexual harassment. It is also recommended that employers provide EEO training to employees and other workplace participants.
Sexual Harassment victim wins $100,000 in damages - To learn more about this author, visit Jason Donnelly's Website.
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Jason Donnelly
(Visit Jason's Website)
Since commencing with Australian Business
Lawyers in July 2000, Jason has provided
advice to employers in an array of
employment and industrial law matters.
Jason has also regularly represented the
interests of employers in proceedings
before the Federal Court of Australia, the
Industrial Relations Commission of New
South Wales, the Australian Industrial
Relations Commission, Local Courts and the
Chief Industrial Magistrates Court.
In recent years, Jason’s practice has
concentrated on industrial dispute work;
OH&S work; unfair dismissals; drafting and
negotiating industrial instruments; unfair
contract claims and underpayment claims
associated with breaches of industrial
instruments. Jason also has considerable
experience in providing employers with
strategic advice in the post WorkChoices
environment.
Much of Jason’s experience in employment
and industrial law has been gained in the
construction materials, manufacturing,
mining and transport industries.
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