Call free on
1300 575 394
Get a quote

'Juicy Lucy' bum slap costs courier $45K

A women has been awarded $45k after being s*xually harassed in her workplace
Return to previous page

'Juicy Lucy' bum slap costs courier $45K

21 October 2020

By Mike Toten

A woman who was s*xually harassed by a delivery driver visiting her workplace has been awarded a payout of $45,000. The case is notable because the amount included $20,000 for aggravated damages, awarded mainly because the driver sent her a letter threatening defamation proceedings against her for having allegedly complained about him (she hadn’t).




Facts of case

The driver, while visiting the woman’s workplace (a retail store) in 2014, had walked behind the counter and slapped her on the backside. During other visits, he several times called her “Juicy Lucy” and repeatedly asked her about her relationship status. When, after the backside slap, she said “you can’t do that”, he laughed and said “don’t tell your boss”. She later mentioned the incident to a co-worker, a friend and her boyfriend, but not her manager.

The next day, he called again and asked her if she had told her boss. The store manager overheard and asked her what happened, so she told her. She told the driver not to behave like that, but the driver did not appear to take it seriously.

The woman told the Tasmanian Anti-Discrimination Tribunal that the driver’s conduct towards her was generally “sleazy” and made her feel very uncomfortable and intimidated. There was evidence that he also contrived to deal with her instead of other staff, and often asked where she was if he did not see her in the store.

About three years after the slapping incident, her employer’s area manager visited the store and asked if couriers went behind the counter. He asked the woman if she knew the driver in question, and she related the slapping incident and described him as a “creep”. Without her knowledge, her employer then asked the driver’s employer to investigate his conduct. A result of that was that the driver’s wife made a phone call to the store demanding to speak to her – the driver claimed that she did so on her own initiative.

The woman then asked her employer to drop the case. But later, a letter from the driver’s solicitor arrived, threatening defamation proceedings against her and demanding an apology and retraction and payment of $30,000. Believing this was intended to intimidate her, she sought medical advice, was diagnosed with symptoms of anxiety, stress and depression, prescribed antidepressants and left her job a few months later.

The driver’s employer stood him down, but later reinstated him, although it didn't allow him to make deliveries to the woman’s workplace. He was later dismissed, one of the reasons being that he contacted the woman (via the defamation letter) after his employer directed him to have no contact with her.

The driver denied all allegations made against him and claimed that there may have been collusion between the woman, her employer and his employer in order to arrange to terminate his employment, as his employer was shedding staff at the time.


Decision

The tribunal found the woman’s claims of what happened to be credible, and largely corroborated by others at the workplace.

Its specific findings were:
  • Calling her “Juicy Lucy” was not overtly s*xual on its own, but in the context it occurred it had s*xual connotations.
  • The letter threatening defamation was not intimidation, but it aggravated the situation and the degree of the driver’s misconduct.
  • That letter made untrue allegations, but issued threats and demanded payment from the employee. It aggravated the situation but did not amount to victimisation (see below).
  • Overall, the driver’s conduct amounted to s*xual harassment.
  • A claim of victimisation was not made out, because legislation requires it to have occurred as a result of a person making or intending to make a complaint of discrimination. The woman did not do the latter, she described the driver’s conduct to other people, and her employer chose to escalate the matter without her knowledge or permission.

The tribunal awarded damages against the driver totalling $45,000, of which $20,000 was for aggravated damages caused by his defamation letter and $25,000 for injury.

The bottom line: It is relatively rare for aggravated damages to be awarded in equal opportunity/discrimination/harassment decisions. In this case, it occurred because the harasser threatened the employee with defamation proceedings and demanded payment after he wrongly assumed she had made a complaint against him. The complaint was made by her employer without her knowledge after she had requested that the matter not be pursued.

A lesson for employers is that, if an employer chooses to make a complaint of discrimination against one of its employees by a third party, it should discuss the matter with the employee first and only pursue the complaint with the employee’s knowledge and permission to do so – and of course, provide support to the employee in the process.

This case also shows that unlawful s*xual harassment can occur if an employee of one organisation harasses the employee of another one at one of their workplaces. Two employers then became involved in trying to resolve the matter, which made it very complicated.


Read the judgment

Orchard v Higgins [2020] TASADT 11, 1 September 2020

Sign up to get the latest news and updates

Like what you’re hearing?

With plans available from just $58 per week, now is an excellent time to join Workplace Assured.

PROTECTION
REASSURANCE
GUIDANCE