In this Full Bench decision of the Federal Court[1] , Ms Richardson (the appellant) was appealing the amount of monies she was awarded from the original judgement – $18,000 for pain and suffering, with no compensation for economic loss or costs.

This matter considered some 10 laws, 63 cases, and 15 publications to increase the appellant’s award to:

  • $100,000 for pain and suffering;
  • $30,000 for economic loss; plus
  • Yet to be determined legal costs.

These costs were awarded because of Oracle’s handling of the investigation which allowed for Their continued contact, [which] compounded Ms Richardson’s distress”.

Of further interest is that the courts found against the company, but did not impose any penalty on the perpetrator (the company already have given him a final warning, but failing to separate him from the complainant, Ms Richardson).

By way of background, the original court decision found that the applicant was subjected to a humiliating series of slurs, alternating with sexual advances, which built into a more or less constant barrage of sexual harassment.  The applicant described humiliation and slurs in front of other people and sexually motivated advances in more private settings.

The court rejected the Mr Tucker’s (the perpetrator) denials and his attempts to defend his conduct as unintended, misunderstood or innocuous, stating that:

“It was, I am satisfied, intended at least to demean Ms Richardson and perhaps to humiliate her.  Perhaps it was Mr Tucker’s way of attempting to get the upper hand in their disagreements, or before their colleagues and representatives of the ANZ Bank.  If so, it was an offensive way of doing so and ultimately cruel.  …  The explanations he proffered exposed clearly the falsity of his earlier denials to Oracle.  They were insufficient to excuse his conduct.  They afford no reason to question the elements and essentials of Ms Richardson’s complaints against him.”

The applicant eventually resigned and found employment elsewhere.

The Full Court rejected the original trial judge’s rejection of Ms Richardson’s complaints about Oracle’s investigation of Mr Tucker’s conduct and its aftermath.

“In substance, her complaint centred on an alleged need for a “formal complaint”; Oracle’s requirement that Ms Richardson continue to work with Mr Tucker while the investigation was carried out; restrictions on Ms Richardson discussing the matter with colleagues while the investigation was being carried out; and Ms Sampayo’s [HR] action in sending Mr Tucker’s apology to Ms Richardson.”

The reasoning behind the awarding of damages in this matter:

“The AHRC Act imposes no statutory restriction on the quantum of damages awards for sexual harassment.  Rather, the power conferred on the court by s 46PO(4)(d) to award damages is broad, limited only by need for such damages to be by way of compensation for the loss and damage suffered by victim because of the unlawful conduct.’

“As I noted, in Tan v Xenos (No 3) the Victorian tribunal awarded the victim of sexual harassment $100,000.  I have also referred to the following court awards: in Willett v Victoria the victim received $250,000; in Swan v Monash Law Book Co-operative the victim received $300,000; in Nikolich the victim received $80,000; and in Walker v Citigroup the victim received $100,000.  Bearing in mind the nature of the injuries in each case, their severity and when the relevant awards were made, these cases give some guidance as to the level of damages that, having regard to the general standards prevailing in the community, would compensate Ms Richardson for the loss and damage of the kind she suffered because of Mr Tucker’s conduct.’ 

“…in Ms Richardson’s case that, judged by prevailing community standards, is disproportionately low having regard to the loss and damage she suffered.  As noted earlier, the general range of general damages in respect of pain and suffering and loss of enjoyment of life caused by sex discrimination has scarcely altered since 2000 and does not reflect the shift in the community’s estimation of the value to be placed on these matters.  The range has remained unchanged, notwithstanding that the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct.  Indeed the range has remained fixed despite changing views of what might be “sums which are generally felt to be excessive”: Hall v A & A Sheiban at 256.  In that case, in addition to cautioning against such excessive sums, Wilcox J (at 256) implored that while:

…damages for… injury to feelings, distress, humiliation and the effect on the claimant’s relationships with other people are not susceptible of mathematical calculation … [t]o ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit injustice upon a complainant by failing to grant relief in respect of a proved item of damage.’ 

I agree.  While the sum of $18,000 was not out of step with past awards in cases of this kind, this amount was nonetheless manifestly inadequate.  It was out of step with the general standards prevailing in the community regarding the monetary value of the loss and damage of the kind Ms Richardson sustained.  In my view the appeal should succeed on this ground and an award of $100,000 general damages should be substituted for the award of $18,000.  The amount of $100,000 includes compensation for the injury that the sexual harassment caused to Ms Richardson’s sexual relationship with her then partner…”

[1] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (15 July 2014)

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
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Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.