A recent decision of the Human Rights Review Tribunal highlights that employees can be personally sued for sexually harassing other employees in the workplace. Whilst these types of claims are typically brought against the employer of the offending employee, in BGH (the employee was granted name suppression) v Tarun Kumar, Kumar was ordered to pay compensation of $29 000 directly to BGH for the humiliation and distress she was found to have suffered as a result of his actions, and damages of $2720 for pecuniary loss.
The remedies awarded are arguably at the low end of the scale given the facts of the case. BGH was the only female employee at Viti Panel and Paint Limited (“Viti”). Kumar was a close family friend of the owner of the business and considerably more senior than her. BGH claimed that she had been sexually harassed by Kumar over a period of two years, culminating in an incident in which he peeped at her through a hole in the toilet cubicle wall. She did not return to work after this and was unemployed for a period of 9 months.
The conduct complained of included commenting on BGH’s clothes and appearance, her marital status and making comments like “you look pretty today” and calling her “Princess”. Kumar also sang Hindi love songs in BGH’s presence, sent inappropriate text messages such as “why u driving baby” and a video depicting a waitress displaying a menu on her bare buttocks, and touched her shoulder and encroached on her personal space.
In addition to the peeping incident, there was another incident of a more serious nature involving Kumar pushing a ring onto BGH’s finger and then touching her shoulder, waist, thigh and the side of her buttock. When she brushed him off he said words to the effect “who do you think you are, a princess” and “my wife is more beautiful than you”.
BGH reported the “ring” incident to Viti but no action was taken other than that she received text with ”I’m sorry” from Kumar. In relation to the toilet peeping incident, this was also reported to her employer, again with no action being taken other that the hole in the toilet wall being fixed.
The Human Rights Review Tribunal found that it was more probable than not that these incidences had occurred as described by BGH, finding that she was a credible witness, and Kumar less so.
It upheld the claims of sexual harassment finding that the day-to-day behaviour such as the singing and comments about BGH’s appearance was at the less serious end of the scale, but that the touching and peeping incidences were significant. The Tribunal found that the peeping incident was particularly humiliating given the expectation of privacy and the power imbalance in the relationship. It accepted that these two incidents were the final straw which led to BGH’s resignation.
In relation to remedies BGH sought $25160, being the income she had lost during the period she was unemployed. Whilst accepting that the sexual harassment had led to her resignation, the Tribunal awarded just the equivalent of four weeks wages indicating that BGH’s failure to mitigate her loss was a key factor in the exercise of its discretion.
With regard to the award of $29 000 for humiliation and distress, the Tribunal noted that in sexual harassment cases the award should be “genuinely compensatory and not minimal”. The Tribunal highlighted the repetitive nature of the offending, BGH’s age and vulnerability, and the intense psychological impact on her because of the indignity of being watched in the toilet.
Interestingly, BGH originally filed a personal grievance against Viti in the Employment Relations Authority, but the company was subsequently liquidated leaving BGH unable to effectively pursue the claim in this forum. Instead, therefore, BGH made a claim to the Human Rights Review Tribunal against both Kumar and Viti alleging that Kumar had sexually harassed her and that Viti was also vicariously liable for Kumar’s conduct towards her. BGH sought and was granted the leave of the High Court to include Viti in the proceedings despite the company being in liquidation, but the liquidator subsequently removed Viti from the company’s register.
BGH could have potentially applied to have Viti reinstated to the Companies Register but for pragmatic reasons chose not to, instead pursuing the claim against Kumar alone. It is unclear from the decision whether the company’s liquidation was for the purpose of avoiding claims being made against it, but had the claim progressed it is quite likely that Viti would have been found to have failed to take all reasonably practicable steps to prevent the conduct occurring and therefore liable for Kumar’s actions.
Regardless, BGH demonstrated considerable tenacity in pursuing her claim against Kumar despite aa considerable number of hurdles being put in her way. The confirmation that perpetrators of sexual harassment can be sued personally is an important finding and significantly increases the level of personal responsibility that these offenders will be required to take for their own actions.
This article was originally published in The Post
