All News tagged: Sexual Assault by Boss

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Photographs of woman at work led to compensable injury

Photographs of woman at work led to compensable injury

by Kate Denning Google+

Reasonable Management Action Qld – Reasonable Management Action Taken in a Reasonable Way – Workers Compensation Lawyers for Employers – Suing an Employer for Sexual Assault – Sexual Assault by Boss

Case note: Waugh v Simon Blackwood (Workers’ Compensation Regulator) & State of Queensland [2015] ICQ 028

The Facts

Ms Astrid Waugh (Appellant) brought a claim for workers’ compensation for psychiatric injuries arising in the course of her employment with the State Library of Queensland (SLQ).

The Appellant’s co-worker, Mr Bruce McGregor (McGregor), took covert photographs of the Appellant and a number of other people, using SLQ electronic devices.  The equipment was confiscated from McGregor and 2,500 images were found on the confiscated devices. A number of the images focused on the chest area of female employees of the SLQ.

The Appellant only became aware of the photographs in March 2013, after hearing rumours about McGregor’s actions. The Appellant approached a work colleague, who followed up with management about her concerns. The Appellant asked to see the images after a meeting with management on 2 May 2013. The Appellant said she was told that the images would be provided. A week later, the Appellant says that she was told, ‘Oh Astrid, your head is not even in most of them’.

The images were posted to the Appellant on 17 May 2013. This was after the SLQ undertook a consultation process, which included obtaining legal advice. The Appellant complained that management had ‘brushed her off’.

The Proceedings

The Appellant suffered a psychiatric injury. She made successful application to WorkCover Queensland for workers’ compensation benefits. The SLQ appealed the decision to accept the claim. The Workers’ Compensation Regulator upheld the SLQ’s appeal. The Appellant appealed to the Queensland Industrial Relations Commission (Commission). The Commission refused her appeal.

The Appellant appealed to the Industrial Court of Queensland (Court).

Her appeal challenged these findings of the Commission:

  1. That the injury did not arise out of, or in the course of, the Appellant’s employment as ‘the workplace was merely the background or setting in which the inappropriate behaviour took place’.
  2. The significant contributing factor to the injury was the taking of the photographs and not the Appellant’s employment.
  3. The manner in which the SLQ dealt with the issue was reasonable management action taken in a reasonable way.

The Judgment

In a judgment delivered on 8 October 2015, President Justice Martin allowed the appeal, finding:

  1. There was a delay in advising the Appellant of the existence of the photographs. That delay had some effect upon the Appellant.
  2. The fact that the photographs were taken in the workplace was integral to the development of the psychiatric injury. This was supported by unchallenged psychiatric evidence. This was a case in which the employment was more than just the setting in which the inappropriate behaviour took place. The effect of the behaviour and the intensity of the impact it had was magnified by the fact that it occurred in the workplace.
  3. The actions of the SLQ fell short of ‘reasonable management action’.

Considerations

The Court acknowledged that the circumstances of this case would test the best intentioned employer. However, it also highlighted some shortcomings of the SLQ, which the Court found were not dealt with by the Commission, including:

  1. The delay in advising the Appellant of the photographs and the nature of the photographs.
  2. The fact that the SLQ did not say anything to the Appellant until she approached another employee about the matter.
  3. The lack of any disciplinary action or sanction on McGregor.
  4. Allowing McGregor to resign.
  5. The tone of correspondence advising staff of McGregor’s resignation, which could be reasonably seen to be, if not supporting McGregor, a benign acceptance of his conduct.
  6. Failing to report the incident to a relevant authority.

It’s easy to imagine similar criticisms being made of an employer in say, a bullying case. This case will be of interest to those working in management, employment law or human resources. It highlights the fragility of these situations and the need for businesses to be aware of what could fall short of ‘reasonable management action’ in a workers’ compensation claim.

BOOK A FREE CONSULTATION for advice and information about a workers’ compensation matter, by calling (07) 3067 3025 or contact us online.

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Kate DenningPhotographs of woman at work led to compensable injury
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Worker awarded >$600k for sexual assault by manager

Case note: Moon v Whitehead [2015] ACTCA 17

Sexual Assault by Boss – Compensation for Sexual Assault – Compensation for Stress – Compensation for Mental Illness

Facts

Ms Sharon Whitehead, aged 39 (Whitehead) brought a claim for damages for trespass to the person against her supervisor at the Child Support Agency, Mr Michael Moon, aged 47 (Moon).  Whitehead alleged that she was sexually assaulted by Moon in a serviced apartment, while the pair were visiting Sydney for a work conference.

Whitehead’s claim for workers’ compensation benefits was rejected, so she pursued Moon personally.  The Supreme Court of the Australian Capital Territory (ACT) applied New South Wales law in deciding the case.

When Whitehead and Moon visited Sydney in 2007, a two bedroom, two bathroom apartment was booked, with Whitehead’s agreement.  On their first night in Sydney, the pair went out for coffee and visited three sex shops.  They then returned to the apartment separately.

When Whitehead returned to the apartment, she heard Moon’s shower running.  She decided to have a shower in her own bathroom.  While she was in the shower, Moon came in and asked if she needed help with the soap.  She told him to get out.  After she finished, she walked past his room in her pyjamas and he was naked on his bed.  Moon later entered her room, when she was in bed and her lights were out.  She asked him to leave.  He refused to leave until she kissed him.  She did so and intercourse followed.

Moon defended the claim on the basis that he had a physical relationship with Whitehead prior to the date of the alleged assault and that she had “frequently requested and/or consented to him [sic] contacting her person”.  The pair had previously engaged in sexual activity but not intercourse.

Following the incident, Whitehead suffered significant bleeding and pain.  She subsequently suffered a psychiatric illness and became suicidal.

It was Whitehead’s case that she had made known to Moon that she was not consenting to sexual intercourse, but that she stopped protesting when he did not desist because she was scared of him and concerned about any impact rejecting the appellant would have on her employment.

She was awarded $678,000 by the Supreme Court of the ACT.  Moon appealed to the Court of Appeal, on liability and quantum.

Issue

Moon set out a number of grounds of appeal.  However, the judgment concentrated on the question of consent.  Moon submitted that it was necessary for the state of mind of both participants to be taken into account, in determining the issue of consent.  The award by the Master for aggravated damages was also in issue.

Findings

In a judgment delivered on 22 May 2015, the ACT Court of Appeal found as follows:

  1. The real issue was a narrow one – whether Whitehead had consented to engaging in sexual conduct.
  2. There was ample evidence for the Master to find that Whitehead had not consented to intercourse.
  3. The test put forward by Moon for considering the question of consent was not supported by any authorities.
  4. A defence of ‘innocent mistake’ was irreconcilable with an intentional tort such as battery.
  5. The appeal was upheld in respect of the award for aggravated damages because Whitehead had not sought aggravated damages in final submissions at the hearing.  The damages award was reduced to $668,000.

Considerations

This case will be of particular interest to those working in the area of employment law.  It highlights a view taken by the ACT Courts that, despite a plaintiff’s actions, there is no substitute for consent and that consent should be clearly given.

BOOK A FREE CONSULTATION for advice and information about a workers’ compensation matter or sexual assault by calling (07) 3067 3025 or contact us online.

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Kate DenningWorker awarded >$600k for sexual assault by manager
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