By MDC Legal
A female hotel employee in Queensland has been awarded $313,000 in damages for sexual harassment and assault she was subjected to in her bed by the hotel caretaker. The case rings a warning to employers that they need to take reasonable steps to prevent employees engaging in or being exposed to such conduct.
QCAT Member Ann Fitzpatrick found that the caretaker’s behaviour constituted sexual assault and a breach of the Anti-Discrimination Act 1991, because the caretaker subjected the applicant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature with her, and “A reasonable person would have anticipated the possibility that the applicant would be offended, humiliated or intimidated by the conduct”.
The applicant and the caretaker resided in hotel-provided employee accommodation. At 5AM on 1 December 2010, the applicant awoke to find the caretaker in her bedroom, naked and standing over her. He touched her body including her upper thigh and groin and attempted to remove her underpants. The applicant asked him to stop and to leave the room, and broke down crying. Before leaving, the caretaker said: “I’ll let you get changed”. He then returned and said: “this can be our little secret”. At the time of the assault, the applicant was 21 years of age, and the caretaker was 70.
One of the main issues in dispute was the vicarious liability of the hotel. The applicant submitted that the hotel was liable because: the sexual assault occurred during the caretaker’s on-call period, in the course of his work for the hotel, at his place of work, and the applicant was staying in the unit provided for employees; but for her employment, she would not have been in the unit at the time the sexual assault took place.
The hotel contended that the applicant was merely a “guest” of the caretaker. Member Fitzpatrick rejected the respondents’ submissions and found that there was “no evidence that the caretaker actively extended a personal invitation to the applicant to live in the unit, as one would normally do with a guest”, and ultimately, because the caretaker and the applicant resided in hotel-provided employee accommodation, this constituted a place of work.
The tribunal found that the hotel was vicariously liable for the caretaker’s actions. In its defence, the hotel submitted that there was “nothing it could have done” to avoid the assault. Member Fitzpatrick rejected that as a defence. It was “beside the point” that the hotel did not know what the caretaker might or might not do in his own home: the unit was also a place of work, and the hotel had not taken any steps to inform its employees of their legal obligations and provide training on anti-discrimination.
The applicant gave evidence of her psychiatric injuries as a result of the assault, including PTSD and a depressive illness, which rendered her unfit for further work until mid-2015. The tribunal heard evidence from two medical experts.
The respondents submitted that the applicant had not been truthful in her evidence in relation to her suffering. In a bid to attack her credibility and downplay the effects of the caretaker’s sexual assault, the respondents relied on medical evidence of the applicant’s complex personal history relating to past mental conditions, recreational drug use, and an assault by a former boyfriend. However, Member Fitzpatrick rejected the claims that adverse findings should be made about the applicant’s credibility to reduce her compensation: “I do not think the Applicant had the guile or wit to engineer her claim in the way asserted”. The applicant’s assault was “serious and shocking” and resulted in four years of “severe and prolonged … [and] distressing” symptoms.
Read the full case here: STU v JKL (Qld) Pty Ltd and Ors  QCAT 505
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