Australian Human Rights Commission Case Study 2022

Running Head: CASE STUDY
CASE STUDY
Name of the Student
Name of the University
Author’s Note

1CASE STUDY
Issue:
The issue in the case is whether VBH is liable for workplace harassment.
Rules:
Workplace harassment is humiliating or threatening other person or persons at work. The
Australian Human Rights Commission (AHRC) recognizes the equal rights of all the workers to
work in a free environment. The free environment means the the work environment should be
free from all bullying and harassment. Section 789 FD of the Fair Work Amendment Act 2013
(Cth) explains bullying as the unreasonable behavior to continuously involve the other person
endangering his or her health and safety. Any kind of yelling, screaming, psychological
harassment, offensive language, intimidation, suppression of ideas and so on involve the act of
bullying.
Harassment is explained in a number of legislations as explained under following heads:
 Sex Discrimination Act 1984, section 28 A explains sexual harassment as the
unwelcomes behavior of one person towards another in a workplace as an exchange or
favors, resulting in offending, humiliating or intimidating the victim. Such acts can be
subtle rather than being expressive and explicit in nature1.
 Racial Discrimination Act 1975 section 18 C explains that no person is allowed to behave
in an offensive manner based on racial discrimination. Offensive manner of behavior
includes offense, insult, humiliation, discrimination and intimidation based on race, caste,
color, creed or ethnic origin.
1 STU vs. JKL (Qld) Pty Ltd [2016] QCAT 505

2CASE STUDY
 Disability Discrimination Act 1992 section 25 states that no employee should be
discriminated on the basis of disability.
 Age Discrimination Act 2004 prohibits any person to discriminate another person on the
basis of age and factors of age during the course of employment, while seeking
employment and during of course of recruitment as well. In a recent case law2 it has been
held that the culture fir of the new generation with aspect that of age is nothing but
gender biasness. However, the concept of culture fit in itself is not discriminatory but the
assumptions made to ensure the person is culturally fit should not be discriminatory
based on age, caste, culture, creed, sex, race, disability and so on. However, there are
certain reasonable restrictions or exceptions like superannuation, insurance and credit,
taxation, migration and citizenship, pensions and health allowances, some health
programs, youth wages or industrial agreements and award compliance and most
importantly positive discrimination.
In a case tried in Queensland Civil and Administrative Tribunal Decision in20173, it was held
by the court that the prank involving the offensive language or things shall be amounting to
sexual harassment. In case the cleaner at school was pranked with a condom filled with fluid, the
prank was held offensive and sexually harassing for the cleaner. Any gesture with middle finger,
pretending to take photographs and videos of the people without their permission shall amount to
harassment and hence, the suit can be instituted against them.
In Federal Court’s Landmark Judgment4, it was held that any offensive act amount to
disrespect and humiliation towards the other person shall amount to sexual harassment. Further
2 McEvoy vs. Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273
3 Green vs. The State of Queensland [2017] QCAT 008

3CASE STUDY
in a case where the employee was accused of sexually harassing the trainee5, it was held that
patting, slapping, touching, or any advancements made to the trainee while confined in personal
space shall amount to sexual harassment. It shall also include any sexual conversation with the
trainee or any other fellow colleagues while at work.
In another case where texting sexually explicit images or conversation is regarded as
sexual harassment6, it was held by the court that if the person does not accept the content of the
message and it continues to irritate him or her in spite of denying the acceptance of such explicit
conversation, the communication shall amount to sexual harassment7.
One of the major defenses to such instances is the defense of positive discrimination. But
the idea of positive discrimination has developed when the idea to bring the equals together and
the unequals together was established. In other words. Every person shall be treated equally. But
equals and unequals cannot be treated equally. Like in education, there are certain
discriminations because the class of people who have not been able to grasp ultimate facilities
cannot be assessed with the ones who had access to all the facilities. In a recent case law8, it was
held by the court that the purpose of the anti-discriminatory laws is to promote substantive
4 Richardson vs. Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
5 Mr. Vincent Wilson vs. Anglo Coal (Moranbah North Management) Pty Ltd. T/A Anglo American [2017] FWC
4386
6 Jay Higgins vs. Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC 6137
7 Nunan vs. Aaction traffic Services Pty Ltd [2013] QCAT 565
8 Macca vs. Australian Capital Territory represented by Emergency Services Agency (Discrimination) [2017] ACAT
101

4CASE STUDY
equality or redress and remove disadvantages in various aspects of life, recruitment being one of
them.
Application:
In the given scenario, the motive of the VBH as corporate mission is young, free hot. In
this very instance, it can be observed that the motive of the corporation is bias and discriminatory
in nature.
In the second scenario, Sandy’s thought that Betty was young and hot, expresses her
motive for recruiting Betty. Her sole idea of marketing and sales is not the skill of the employees
but the looks of them. Such an approach is discriminatory in nature.
In the third scenario, when Sandy asked Roxy the details about age and kids and Roxy
refused to answer, Sandy should not have been biased over such nature. Her biasness shows that
she was discriminatory in recruiting her employees which is in violation of the Anti-
Discrimination laws of Australia.
In the fourth scenario, Mark’s remarks about Betty being hot and would like to wear
bikini as good as her and other remarks were intimidating and humiliating for her amounting to
sexual harassment and violation of anti-discriminatory laws of Australia.
In next scenario, Sandy’s comment about Roxy being leather skinned though made in
humiliation but it was made while the maker of the statement was intoxicated. Intoxication may
be explained as a defense but it may not completely eradicate the liability. It may reduce the
liability to an extent.

5CASE STUDY
In next scenario, Sandy’s advice to betty to be flattered about Mark’s messages was
explicitly harassing because, being the employer, Sandy had the duty to control such behaviors in
the workplace by implementing certain anti-discrimination policies, instead she was herself seen
encouraging such behavior.
Applying the anti-discriminatory laws and assessing the corporate mission of the
company, it can be explained that firstly the mission of the corporation in itself is discriminatory.
Secondly, the policies of the company is not at par with the anti-discrimination laws and hence,
she may be held liable for not introducing such policies for the protection of their employees.
Thirdly, being the employer, when betty came for the relief, she, instead of taking up the matter
as per the provisions of law, she encouraged Betty to contribute to the sexual advances of Mark
which clearly made her humiliated and was unwelcomed.
Conclusion:
It can be concluded that VBH and its staff members shall be liable for the claim of
discrimination and sexual harassment at workplace.
Recommendation:
Workplace harassment is humiliating or threatening other person or persons at work. The
Australian Human Rights Commission (AHRC) recognizes the equal rights of all the workers to
work in a free environment. The free environment means the the work environment should be
free from all bullying and harassment. Any kind of yelling, screaming, psychological
harassment, offensive language, intimidation, suppression of ideas and so on involve the act of
bullying.

6CASE STUDY
It can be recommended for VBH to refer the matter to conciliation and immediately
provide a written apology to Betty’s father and Roxy who have been discriminated by Sandy and
other staff members. In a case where a man was repeatedly sexually harassed at his workplace9, a
written apology was demanded and immediate implementation of anti-discriminatory policies by
the company to protect employees against such incidents. Similarly, referring to such cases and
the outcomes, it can be recommended that the parties shall agree to conciliate and the employer
along with the staff members should provide a written apology to the victims and subsequently
implement zero-tolerance policies in workplace with respect to sexual harassment, other
harassments, bullying, and discrimination at workplace so that every employee is protected
against such incidents.
9 "Sexual Harassment Case Studies", Qhrc.Qld.Gov.Au (Webpage, 2019)
<https://www.qhrc.qld.gov.au/resources/case-studies/sexual-harassment-case-studies>

7CASE STUDY
BIBLIOGRAPHY:
Case Laws:
STU vs. JKL (Qld) Pty Ltd [2016] QCAT 505
McEvoy vs. Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273
Green vs. The State of Queensland [2017] QCAT 008
Richardson vs. Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Mr. Vincent Wilson vs. Anglo Coal (Moranbah North Management) Pty Ltd. T/A Anglo
American [2017] FWC 4386
Nunan vs. Aaction traffic Services Pty Ltd [2013] QCAT 565
Jay Higgins vs. Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC 6137
Macca vs. Australian Capital Territory represented by Emergency Services Agency
(Discrimination) [2017] ACAT 101
Legislations:
Australian Human Rights Commission (AHRC)
Fair Work Amendment Act 2013 (Cth)
Sex Discrimination Act 1984
Racial Discrimination Act 1975
Disability Discrimination Act 1992

8CASE STUDY
Age Discrimination Act 2004
Websites:
"Sexual Harassment Case Studies", Qhrc.Qld.Gov.Au (Webpage, 2019)
<https://www.qhrc.qld.gov.au/resources/case-studies/sexual-harassment-case-studies>