Published 2 July 2016
The Northern Territory Anti-Discrimination Commission has found an employee liable for sex discrimination and sexual harassment in the workplace against a female colleague. The employer who the claim was also brought against was not found vicariously liable for the discrimination and harassment as they took reasonable steps to prevent this.
Mrs Smyth was an employee of the Northern Territory Treasury where she claimed to have been subject to sexual harassment and sex discrimination by another employee, Mr Kerr.
Mrs Smyth submitted that Mr Kerr was a “touchy feely” person and would place his hands on the shoulders of the female staff. Mrs Smyth stated that although she did not mind this to start with, the touching escalated and she began to feel uncomfortable and labelled the touching as unwelcome. In response, Mrs Smyth wrote Mr Kerr a letter asking him not to touch her.
Mrs Smyth submitted that she had received a number of text messages and phone calls from Mr Kerr, which were excessive and controlling. She gave evidence that in some situations she would receive 5 to 10 calls in a row and he would be angry when she did not answer.
Mrs Smyth submitted that Mr Kerr visited her house and engaged in inappropriate behaviour. In one such incident, Mrs Smyth stated that she found Mr Kerr, naked, in her son’s bed.
Mrs Smyth submitted that she had received a number of sexualised emails from Mr Kerr. She tendered into evidence three emails. These contained a combination of sexualised content, derogatory comments regarding women, and general content inappropriate in the workplace.
Mrs Smyth claimed Mr Kerr was directly liable for these actions, while their employer, Northern Territory Treasury, was vicariously liable.
The Commission found the touching of Mrs Smyth constituted sexual harassment in the workplace under s 22 of the Anti-Discrimination Act. The Commission believed that a reasonable person would have found the level of intimacy displayed by Mr Kerr to be inappropriate in the workplace, satisfying s 22(e) of the Act.
The Commission found the phone calls and texts from Mr Kerr to Mrs Smyth did not constitute sexual harassment in the workplace as per s 20 of the Anti-Discrimination Act. The Commission stated that because the calls were of a personal nature and tended to be out of business hours, the relationship between Mr Kerr and Mrs Smyth had evolved from work colleagues to “something more”.
The Commission found the incidents that occurred at Mrs Smyth’s home had no connection to the workplace and therefore sex discrimination and sexual harassment could not be proved under the Anti-Discrimination Act in relation to these actions.
The Commission found the emails sent by Mr Kerr constituted sexual harassment in the workplace under the Anti-Discrimination Act, as the Commission believed a reasonable person “would have anticipated the possibility that the other person would be offended by the content of these three emails.” Further, Mr Kerr was aware that the attention was unwelcome.
The Commission ruled that Mr Kerr was liable for sexual harassment towards Mrs Smyth.
The Commission ruled that the Northern Territory Treasury was not vicariously liable as they had taken reasonable steps to prevent Mr Kerr’s actions. This was evident through the provision of workplace training, anti-discrimination policies, monitoring of correspondence between Mrs Smyth and Mr Kerr, arranging mediation and moving Mr Kerr’s desk away from Mrs Smyth.
The parties were invited to make submissions on appropriate orders.