Applicant Alleges Sexual Harassment Against Respondent
ZBL v Olivo (Human Rights) [2021] VCAT 850 (2 August 2021)
The Applicant claims that the Respondent sexually harassed her. The Respondent failed to be cooperative with the proceedings. The Court, in deciding whether or not to hold the Respondent liable, was guided by the Equal Opportunity Act 2010.
Facts:
The Applicant was employed as a bartender in Bistrot and the Respondent was the assistant manager therein. The Applicant claims that the Respondent sexually harassed the Applicant, in breach of s 93(2)(a) of the EO Act, whilst both were employees of Bloomingdales Fine Foods Pty Ltd trading as Bistrot D’Orsay (the Bistrot). The applicant seeks general damages for pain and suffering and emotional harm, special damages for consequential loss of income, aggravated damages for the Respondent’s conduct in this proceeding, and costs.
The Respondent failed to attend Directions Hearings on 16 March 2021 and 22 June 2021 and failed to comply with Orders of the Tribunal to file documents, without providing any reason or excuse. In light of this, the Applicant applied for a determination of the proceeding in her favour under s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
Issue:
Whether or not the Respondent should be liable for violation of the VCAT Act.
Applicable law:
Victorian Civil and Administrative Tribunal Act 1998 ss 78(1) - provides that if a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding without any or reasonable excuse, the Tribunal may determine the proceeding in favour of the Applicant and make any appropriate orders.
Equal Opportunity Act 2010 ss 93(1), 125(a)(ii) - prohibits sexual harassment by employers and employees.
Analysis:
A person sexually harasses another person if that person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in any other unwelcome conduct of a sexual nature in relation to that person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
The Applicant gave comprehensive evidence in a very frank and credible manner, without apparent exaggeration or embellishment. The Applicant did not at any time welcome or consent to the Respondent’s sexual intercourse with her. Furthermore, she did not welcome, condone or consent to having her drinks apparently spiked and/or being plied with alcohol to the extent that she was unable to physically or mentally resist the Respondent’s sexual advances.
Conclusion:
The Court found that the Respondent, Matthieu Olivo, contravened s 78(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). The Tribunal determined the proceeding in favour of the Applicant, under s 78(2)(b)(i) of the VCAT Act. The Tribunal found the Respondent in contravention of Part 6 of the EO Act and liable to pay to the Applicant , within 28 days, compensation for the injury, loss and damage suffered in the amount of $150,810.00. The Respondent, Matthieu Olivo, is to pay the Applicant’s costs of the proceeding, in accordance with the County Court Scale on a standard basis, excluding costs referable to the Applicant’s claim initially made against Bloomingdale Fine Foods Pty Ltd trading as Bistrot D’Orsay, such costs to be assessed by the Costs Court in default of agreement.
