Unwanted attention, unwanted trouble

Alice DeBoos, a partner in the employee relations division of Sydney law firm Middletons, says this is very much a standard sexual harassment case. “It’s not an uncommon scenario with two senior people where there’s banter that one takes as being of a sexual nature designed to intimidate and offend and the other sees it in what can loosely be described as harmless banter”.

But she says the critical part of the case does not rest on what was actually said. Rather, it is more about whether Richardson could prove her career was damaged when she lodged the complaint. “The real issue for Oracle is not necessarily the seriousness of the actual sexual harassment but whether or not she was damaged in her employment because of the complaint she made,’’ DeBoos says.

“She alleges she was demoted from her position and she is claiming compensation in relation to loss of earnings and the detriment she suffered in relation

to her employment. And that’s where the big money will come in for Oracle. That cost her money and employment opportunities.”

In a normal court case, a person making a claim would have to prove their allegation. That means all the other side has to do is destroy its case with a strong defence.

But the onus changes in a sex discrimination case such as the Oracle matter. “In a sex discrimination [case], there is a greater onus on the company. There is a reverse onus so that Oracle will have to positively establish there were other reasons for her demotion other than her complaint of sexual harassment.”

Under the Sex Discrimination Act, the person making the allegation cannot go to court straight away. There has to be an investigation and documentation has to be provided. Then the matter goes to a conciliation hearing where the parties are brought together to try to settle the matter.

“As a general rule, lawyers are not allowed at the conciliation conference,’’ DeBoos says.

But if it is not settled at conciliation, the applicant then has the option to go to court. This was obviously what happened in the Oracle case. That in itself is unusual because, as DeBoos says, most cases are resolved during conciliation.

“If she gets over the line and the court agrees she suffered sexual harassment, the company will have to prove it took all reasonable steps to prevent [discrimination]. One of those reasonable steps will be that they trained personnel, including this fellow [Tucker], that they had grievance policies and procedures in place to deal with these sorts of complaints, and that they took adequate steps to deal with the grievance when it was first made.”

Under the law, companies like Oracle can negate vicarious liability by saying they took these “reasonable steps” as required in the Act, to stop the harassment from happening.

But it’s not a get out of jail card. More than likely, the company will still have to pay some sort of compensation if the court finds there was harassment. Still, the amount of money might not be as high if they can prove they had taken these “reasonable steps”.

“Quite often what happens is that companies say when it gets to a hearing that we took all reasonable steps to deal with this bloke and he still carried on in this way so we are washing our hands of him,’’ DeBoos says.

“In those cases, the court will find there will be individual liability. But it is extremely rare, in fact I can’t think of a case where it happened, that a company completely negates vicarious liability. It’s extremely rare that they would be able to absolve themselves of any liability whatsoever. It’s unlikely they let the company off the hook entirely.

“It is reasonably common to have individual liability as well as some liability on the part of the company. The judgment would read that the person might have to pay a greater percentage than the company.”

So how much money would the applicant get?

“Generally speaking, it would involve some monetary payment to the applicant. That would be prepared in a deed of release that would usually have terms of confidentiality attached to it. In my experience, monetary settlements are reasonably low in this jurisdiction except where the person involved was highly remunerated.”

But to reduce the liability, she says, the company has to do more than show it had a policy. It would have to show that there was training and that the perpetrator had been spoken to.