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Collins v Smith (VCAT) – December 2015

About the intervention

This was a case of sexual harassment in the workplace by an employer. VCAT made a finding on 10 July 2015 that the employee’s complaint of sexual harassment by her employer was proven in contravention of ss 92 and 93 of the Equal Opportunity Act 2010.

On the question of compensation, the employer raised the issue of whether worker’s compensation legislation fetters the power of VCAT to award compensation under s 125(a)(ii) of the Equal Opportunity Act.

The Commission intervened in the matter as party to the proceedings on the question of compensation. The Commission’s submissions focused on the principles of statutory construction of the Equal Opportunity Act, the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013. Based on those principles, the Commission contended that the legal regimes are not inconsistent and can operate harmoniously. As such, the Commission submitted the worker’s compensation legislation does not fetter the power of VCAT to award compensation for contraventions of the Equal Opportunity Act.

The Commission also made submissions on the applicable principles to take into consideration when making an award for compensation for sexual harassment under the Equal Opportunity Act, including when determining general damages consideration of the standards prevailing in the community with respect to loss of enjoyment of life and the experience of pain and suffering.

VCAT ordered the employer pay the employee compensation in the aggregate sum of $332,280 comprising of general damages of $180,000, aggravated damages of $20,000, past and future loss of earnings and superannuation of $120,000, and out of pocket expenses $12,280. He was also ordered to pay the employee’s costs.

The matter was heard before Vice-President Judge Pamela Jenkins.

The Commission’s submissions are attached.

The decisions of VCAT on the contravention (10 July 2015) and the compensation (23 December 2015) are also attached below.

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