What happens when an employee is sexually harassed by someone who doesn’t even work for their company?
There are clear protocols in place when accusations of sexual harassment are made in the workplace, but what happens when the alleged perpetrator isn’t even an employee of the company?
Well, as the Anti-Discrimination Tribunal of Tasmania recently ruled, these actions still have consequences.
A female assistant manager at a retail store in Hobart, Tasmania told the tribunal that in 2014 a courier driver contracted by a third-party transport company made a comment about the pants she was wearing and then came behind the service counter and slapped her on the bottom “quite hard” as she was bent over inspecting the package that he’d just delivered.
When she told the driver this behaviour was inappropriate, he allegedly said, “Whoops, don’t tell your boss I did that” while laughing.
She also claimed the driver would act in a “seedy” and “sleazy” manner towards her such as calling her “Juicy Lucy”, engaging in “intimidating and favouring behaviour towards her”, asking her about her relationship status and jumping out from behind shelves to scare her. If the assistant wasn’t working, the driver is said to have enquired as to her whereabouts.
The assistant manager told a colleague about the bottom slapping incident on the day it occurred, as well as her partner and friends.
The next day, the driver returned to the retail store and jokingly asked her, “Have you told your boss yet?” The store manager overheard this conversation and asked her about what happened.
Apparently, the store manager became angry upon hearing about the incident and “[had] words with [the courier]” explaining that this kind of behaviour was unacceptable. The driver allegedly laughed while the manager reprimanded him but did not deny the claims made against him.
The Tribunal’s records state that the driver denies these allegations and that he regarded the assistant manager as “easygoing” and would therefore be more likely to speak with her.
However, as he was paid per item he delivered he said he didn’t have time to stick around in store for “idle chit chat”. He also suggested it was another driver, from a separate company, who referred to the assistant manager as “Juicy Lucy”.
Actions come back to bite
After the bottom slap and stern words between the store manager and driver, it seemed the issue died down. However, in 2017 – three years after the initial incident – a visit from an area manager reignited the issue.
The area manager asked the assistant manager if it was common for courier drivers to go behind the counter and asked if she knew of the driver (the one who called her ‘Juicy Lucy’), to which she said, “Yeah, he’s a bit of a creep because he slapped me on the bum”.
This remark led the area manager to contact the transport company and ask for an investigation into the issue. The assistant manager was not made aware that such an investigation was taking place and told her colleagues she was “very distressed by this and distraught that it has escalated beyond the comment she’d made within the store”.
A former colleague of the assistant manager told the tribunal that the assistant manager was upset and confused as to why the incident had dragged on for so long.
The driver was temporarily stood down with pay while the investigation took place. This is where things became even more uncomfortable for the assistant manager.
Another employee said the driver’s wife called the store, attempting to speak with the assistant manager, and that “the tone of the call was not pleasant”.
The assistant manager was upset that the investigation took place without her knowledge. She asked for the allegation to be withdrawn because she didn’t feel safe and didn’t want to be thought of as a “trouble maker”. The retail store complied with the assistant manager’s wishes, however she left the organisation soon after.
Letter of discrimination
The matter would have likely ended had the driver not made the situation worse by filing a letter of discrimination against the assistant manager – even though the complaint had been revoked.
In it, the driver’s lawyer stated that the ‘defamatory’ remarks – such as that he cannot be trusted around women and makes sexual advances upon them – caused “shame and embarrassment within his personal and business relations” and damaged his relationship with his family and colleagues.
The driver also claimed economic loss. The transport company would no longer allow him to deliver items to that particular retail store – which equated to around 30-40 cartons each week – which, his lawyer claims, meant he was losing approximately $2,080 each year.
Taking his age into account, his lawyers estimated that he could have been delivering to this particular retail store for another 15 years, meaning his total loss of earnings was around $30,000.
The letter ended by saying “we demand that in 28 days of this letter you”:
- Deliver a written apology, which retracts your statement and your defamatory imputation; and acknowledges that your statement and defamatory imputation therein are untrue.
- Pay the driver $30,000 for the economic loss he’s suffered
The assistant manager was upset and angry at the letter’s attempts to intimidate her, so she decided to file a claim with the Tasmanian Anti-Discrimination Tribunal.
Tribunal sides with assistant manager
The tribunal member presiding over the case, Kate Cuthbertson, found there was enough evidence to support the assistant manager’s claims of the bottom slapping and asking her about her relationship status on more than one occasion.
However, Cutherbertson also said she didn’t think the nickname “Juicy Lucy” was “overtly sexual” but agreed that it constituted unwelcome remarks when considered alongside the other information.
“The conduct caused distress and humiliation to the complainant, but did not result in a serious psychiatric illness or ongoing psychological distress,” she added.
However, Cutherbertson noted the act of sending the defamation letter had a profound impact on the assistant manager.
“As the [courier] himself conceded in cross-examination, it is disgraceful to send a letter to a young woman demanding she retract her complaint, apologise and pay $30,000 in circumstances where the allegation was true,” says Cutherbertson.
The tribunal ordered the courier to pay $20,000 in aggravated damages to the assistant store manager as well as $25,000 in compensation for “injury incurred as a consequence” of his sexual harassment.
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