Although decided in 2000, the Federal Court case of Gilroy v Angelov[1] still contains pertinent rules for employers to consider upon receipt of a complaint of sexual harassment. While vicarious liability may be a tricky area for employer’s to fully understand, it is essential that they realise courts can and will hold them responsible for adverse actions against employees in the workplace, especially when the employer has carried out a half-hearted HR investigation, or even worse, not carried one out at all.
1. Treat a report/complaint/comment seriously
Ms Gilroy, on repeated occasions, told her employer of her discomfort and mistrust of her co-worker, Branko Angelov. Understandably she was embarrassed and ashamed of his behavior toward her, so while she was never explicit in her complaints to her boss – something was clearly amiss. To her detriment, these complaints were treated with contempt – her boss instead preferring to believe that his “mate” would not behave in such a way.
2. Failing to investigate is costly
During the court proceedings, the employer attempted to rely on a defence under the Sex Discrimination Act[2] arguing they had taken all reasonable steps to prevent the employee [Angelov] from doing the prescribed acts. Ultimately the court disagreed, as it was clear from conflicting statements and intentionally misleading evidence that the employer had never taken the allegations seriously in the first place. This failure ultimately cost the employer $24,000 + costs.
What should you take away?
The above two points alone demonstrate the necessity of thorough and rigorous HR investigation protocols in modern workplaces.
Undertaking a proper workplace investigation will determine whether a complaint can be substantiated or not.
If an employer does not conduct an workplace investigation it will have little prospect of avoiding vicarious liability for an employee’s sexual harassment.
In this case, if employer had undertaken a thorough HR investigation, vicarious liability may not have been found by the court, thus it could have saved itself having to pay out $24,000 in compensation.
[1] Gilroy v Angelov [2000] FCA 1775 (8 December 2000)
[2] (Cth) 1984 s 106(2)
