Suburban beauty salon, Man Oh Man, has been penalised $150,000 for failing their positive duty to provide appropriate sexual harassment training and properly managing a sexual harassment claim. This VCAT judgement coincides with the current public spotlight on sexual harassment within the workplace, recent changes to the Fair Work Act (FWA) and predicted employment law changes. 

In Oliver v Bassari (2022) VCAT 329, a co-worker sexually harassed his colleague while working at the employer’s beauty salon. The conduct included numerous inappropriate actions, such as:

• making suggestive comments, jokes and sexual noises 
• making comments about the applicant’s breasts 
• enquiring about the applicant’s sex life 
• slapping the applicant’s bottom 
• attempting to embrace the applicant

This culminated into a sexual assault when the co-worker shoved his face between the victim’s breasts, moving is head from left to right. 

Prior to this assault, the employee had complained to her manager about her co-workers conduct on two separate occasions, describing the incidents in detail. Despite this, no real action was taken to prevent further sexualised conduct after the complaints were made. 

What was the finding?  

This claim was brought under the Equal Employment Opportunity (Vic) before VCAT, who needed to determine whether the employer was legally responsible, a.k.a. vicarious liability, for the co-worker’s actions because of the failure to: 

• investigate the complaints, 
• issue warnings and imposed disciplinary measures against the co-worker, 
• provide training on sexual harassment, 
• ensure staff accessed, read and understood the company’s sexual harassment policy, and monitor compliance with the policy. 

VCAT found that the company did not provide any specific sexual harassment training beyond a simple handbook available online, that they had failed to investigate CCTV footage that would have shown the harassment, and that they did not take any real corrective action until the sexual assault took place. Consequently, VCAT held the employer responsible and penalised Man Oh Man $150,000. 

Changes to employment law 

In March 2020, the Australian Human Rights Commission published its Respect@Work Report, making 55 recommendations to prevent and address sexual harassment in the workplace. As a result of this, the government adopted six of the 55 recommendations of the Respect@Work report In September 2021 by introducing the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.   

Unfortunately, these changes were not focused on promoting a culture of prevention, but brought an expansion of reactive protections, which clarified and extended the definition and scope of sexual harassment. 

However, the Attorney-General’s Department published a consultation paper in February 2022 on further recommendations. One of the most important recommendations put forward was amending the Sex Discrimination Act to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible.

Introducing this positive duty would create consistency between the SDA and the positive duty that already exists under Work Health & Safety laws to eliminate or minimise risks to health and safety in the workplace. 

Important lessons for businesses 

This case demonstrates that, besides this being absolutely improper behaviour in the workplace, it is unacceptable for an organisation to have a laissez-fair approach to sexual harassment.

According to the national survey on sexual harassment in the workplace by the Australian Human Rights Commission, 39 percent of women and 26 percent of men have experienced sexual harassment at work between 2013 – 2018.

It is the employer’s responsibility to provide a work environment that is safe and without risk to the health of their employees, so far as is reasonably practicable. As shown in this case, employers will be held legally responsible for acts of discrimination or sexual harassment by their employees if they occur in the workplace or in connection with a person's employment.

Consequently, every business should ensure that they have current policies and a complaints procedure, which need to be reviewed periodically. They should also ensure that they provide their employees with adequate training on sexual harassment and understand the business’ policies surrounding such conduct. Any complaints made should be treated seriously and handled in accordance with the complaints procedure.

An employer that complies with all of the above is more likely to be able to demonstrate that they have fulfilled their positive duty to provide a safe workplace and have taken all reasonable steps to prevent sexual harassment at work. 

This case was an example of a small business incurring a significant cost of $150k for not fulfilling its obligations with regards to sexual harassment. Employers who are not proactive in this area risk serious financial consequences and reputational risk to their business.  

Support for your business 



Our Workplace Relations consultants can provide your organisation with current training on a broad range of workplace behaviour matters, including:

• sexual harassment 
• Bullying and harassment 
• Annual refresher training for staff 
• Annual refresher training for supervisors and managers 

We also provide fit-for-purpose polices that support this training, protecting your staff as well as your business. 

For more information, contact Bayside Group’s Workplace Relations team today.