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Damages awarded in sexual harassment cases need ‘sensible review’
A report into the state of sexual harassment in Australia has recommended further review of the damages awarded. Speaking to Lawyers Weekly, a Shine Lawyers solicitor working in employment law breaks down why damages are “ripe for a more sensible review”.
Naomi Neilson
As it stands, victims in sexual harassment cases typically receive less damages awarded than those pursuing other causes of action, such as defamation. Reviewing the damages was one recommendation from the annual Respect@Work report, which seeks to recover Australia’s “disappointingly slow” response to the rise of sexual harassment incidents.
Speaking to The Lawyers Weekly Show, the special counsel and practice leader for Shine Lawyers, Samantha Mangwana, said it’s an area “ripe for a more sensible review”.
“It is the case that there aren’t necessarily that many useful authorities about the scale of damages that should be awarded in different harassment situations,” Ms Mangwana said.
“What we as a firm are finding, pretty routinely now, is that when we settle cases, we are settling for awards which are significantly higher than the reported cases in the area. That is a recognition that damages in the authorities are currently too low. These cases are settled confidentially, in the expectation that if the right case goes forward, those awards should be made much, much higher.”
Most commonly, Shine Lawyers said it is settling cases of workplace sexual harassment for sums of money. It is influenced by how severe the conduct was and the impacts.
The recommendation could go a long way in motivating victims to come forward with their workplace sexual harassment cases. Having an appropriate level of damages for victims could be helpful in addressing the staggering number of incidents.
For Shine, the damages have also extended to other factors, which are “really important” for victims when coming forward. This includes an apology from the company for allowing the conduct to take place or on the way the investigation was dealt with. It can also include a request to review policies and training centres to prevent it from happening again.
“These really go to what individuals’ motives are coming forward,” Ms Mangwana said.
Ms Mangwana added these changes can only happen by keeping the reality of workplace sexual harassment cases front and centre of public attention. She said that, in many ways, Australia has a disappointing pace of change compared to other jurisdictions, such as the US or the UK: “We haven’t seen the impact in terms of tackling harassment here.”
The Respect@Work report is “very valuable” and is a useful tool for governments to then consider taking forward the recommendations to address its “disappointing” reaction.
“Things like reviewing the scale of damages that are awarded and also potentially review what happens with non-disclosure agreements, and whether the regulation around those [needs] to change in the longer term [will need to be considered],” Ms Mangwana said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
