General and aggravated damages award for sexual harassment and discrimination substantially increased on appeal

A ‘manifestly inadequate’ damages award has been overturned by the Industrial Court of Queensland and an employer ordered to pay nearly $160,000, in the highest general and aggravated damages award in Queensland for an employee subjected to sexual harassment and discrimination on the basis of sex under the Anti-Discrimination Act 1991.

Introduction

In Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14, an employer who claimed his sexual advances were ‘banter’, including forcing an employee to touch his genitals, offers of money in exchange for sexual favours and repeatedly requesting sex, has been ordered by the President of the Industrial Court to pay general and aggravated damages of $158,702.60. This decision has raised the bar on the level of compensation available in Queensland under the Anti-Discrimination Act 1991.

The decision at first instance

Ms Golding, who bore sole financial responsibility for her children and whose second language was English, had been desperately searching for a laundromat job when she finally obtained casual employment at The Laundry Chute Pty Ltd, owned and managed by Mr Ian Sippel.

Soon after her employment began, Ms Golding became the subject of unwelcome sexual advances. These included being forced to touch Ms Sippel’s genitals and a series of text messages where Mr Sippel made demands for sex in exchange for Ms Golding being provided work. When Ms Golding declined, she was denied work, jeopardising her ability to provide for her children.

After the Queensland Police advised her not to return to the workplace due to fears for her safety, Ms Golding pursued a claim under the Anti-Discrimination Act in the Queensland Industrial Relations Commission (QIRC), claiming that she had been sexually harassed by Mr Sippel and directly discriminated against when Mr Sippel denied her work for declining his offer for sex.

Finding in favour of Ms Golding at first instance, the Commissioner determined that Ms Golding:

• was sexually harassed, as Mr Sippel had engaged in a series of sexual behaviours towards Ms Golding in circumstances where a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated by that conduct
• was discriminated against on the basis of sex, as Mr Sippel’s conduct demonstrated that Ms Golding had been treated less favourably than another person who was not female.

The Commissioner awarded Ms Golding $50,000, including $15,960.75 for economic loss on the basis that, if not for the sexual harassment, Ms Golding would have remained employed for a further 12 months. The remainder of the award was made up $30,000 in general damages and $5,000 for aggravated damages.

Appeal to the Industrial Court of Queensland

Ms Golding appealed to the Industrial Court of Queensland against the quantum of compensation awarded. Justice Davis, President of the Industrial Court of Queensland, allowed the appeal and substantially increased the damages.

Justice Davis found that Ms Golding should have been awarded damages for economic loss on the basis that she remained unfit for work up to the hearing, as opposed to just for the period she ‘may have remained employed’, increasing the amount awarded from $15,960.75 to $28,702.60. The Court also increased the award for general and aggravated damages from $35,000 to $130,000 on the basis that the damages awarded had been ‘manifestly inadequate’. Mr Sippel’s conduct was extremely serious and Ms Golding was subjected to it over an extended period of time, resulting in a diagnosed medical injury that caused Ms Golding’s quality of life to suffer.

Conclusion

Following the Respect@Work recommendations, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 passed both houses of Parliament on 2 September 2021 and will amend the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth).

In the wake of these legislative reforms and of the approach, as shown in this case , now being taken by courts and commissions seeking to prevent and deter sexual harassment in the workplace, it is essential for employers to ensure that they are taking appropriate and necessary steps.

Our workplace relations and safety team can assist employers manage your response and discharge your legal obligations under workplace health and safety and discrimination laws should an instance of sexual harassment arise in your workplace. Our team is also able to assist in reviewing workplace systems, policies and training to ensure that you are meeting your duty to prevent sexual harassment in the workplace.

For further information on this topic, please contact a member of our Workplace Relations and Safety team.