“Disgraceful” defamation letter aggravates sexual harassment damages

A third-party delivery driver has been ordered to pay a music store manager $45,000 in aggravated damages and compensation, for repeatedly engaging in sexual harassment and other inappropriate behaviour.

The manager, employed full-time at a Sanity retail business in Hobart, gave evidence to Tasmania’s Anti-Discrimination Tribunal that a delivery driver engaged by Toll Transport had, over a period of four years between 2013 and 2017, engaged in “sleazy, intimidating and favouring behaviour towards her” by:

  • Referring to her as “Juicy Lucy” on six occasions
  • Using the words “nice pants” and slapping her on the bottom (and instructing the manager not to inform her boss about the incident)
  • Repeatedly asking the manager about her relationship status

The Tribunal considered that the allegations were supported by compelling evidence and was “comfortably satisfied” that sexual harassment had occurred, contrary to section 17(2) of the Anti-Discrimination Act 1998 (Tas):

  • The respondent’s slapping of the complainant on the buttocks clearly constitutes an unsolicited act of physical contact of a sexual nature given the part of her body that was touched and in the context of the comments made about her clothing.
  • The Tribunal also finds that referring to the complainant as Juicy Lucy amounted to an unwelcome remark with sexual connotations.
  • Questioning the complainant about her boyfriend does not neatly fit within the definitions of sexual harassment contained in s.17(3). It is, however, part of the contextual material that enabled the Tribunal to be comfortably satisfied that the behaviour engaged in by the respondent towards the complainant was, in the case of the physical contact, of a sexual nature, or constituted remarks with sexual connotations.

The principal aggravating factor justifying the quantum of damages was a defamation letter the Toll driver had instructed his lawyers to send the manager that demanded she:

  • Provide a written apology to the driver, acknowledging the manager’s allegations were defamatory
  • Publicise the apology
  • Pay the driver the sum of $30,000

The Tribunal described this act as ‘disgraceful’, contributing significantly to the deterioration of the manager’s mental health (but falling short of a diagnosed mental health disorder).

Key Implications

The key lessons that can be distilled from this case are as follows:

  • Be wary of an oppositional or adversarial response to allegations of discrimination, particularly where this is unsupported by evidence or without a proper basis – doing so might work against your case, constitute victimisation and increase your legal exposure.
  • Industrial Courts and Tribunals have the flexibility to give significant awards of compensation, reflecting community expectations and the need to discourage unlawful sexual harassment.
  • Sexual harassment and discrimination laws apply to everyone that attends your workplace, including visitors and contractors. Workplace safety is everyone’s responsibility.

How we can help

For more information or guidance regarding any of the above, please do not hesitate to contact us.

Lucy Orchard v Frayne Higgins [2020] TASADT 11 (1 September 2020)

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