In Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 (‘the Mathews Case’) Kate Mathews worked for just under two years as a labourer for Winslow Constructors, commencing her employment in August 2008. During her term of employment, Ms Mathews was subjected to daily sexual abuse of a shocking nature, which has left her with mental health implications that are expected to last her lifetime. The Supreme Court, in awarding Ms Mathews over $1.3 million in damages, issued a warning to all employers about the importance of providing a safe work environment.
The abuse
Ms Mathews was the victim of systemic abuse and harassment that occurred almost daily, with examples of bullying including being called “spastic, bimbo… useless” and having a trench she had dug get dirt kicked back into it with the comment that she had “missed a spot”. Sexual harassment was also a staple feature of Ms Mathew’s employment, with both physical and verbal harassment coming in a constant barrage. From having her bottom slapped by a subcontractor, to a rape threat from a co-worker who told Ms Mathews that he was “going to follow you home, rip your clothes off and rape you” among a plethora of lewd comments and graphic suggestions, Ms Mathews could take no more and resigned in 2010. Ms Mathews visited a number of medical professionals including doctors, psychologists and psychiatrists and was diagnosed with suffering from a major depressive disorder, significant chronic post- traumatic stress disorder and Bipolar caused by the treatment she received during her employment. In addition Ms Mathews suffered from a jaw injury caused by constant grinding of her teeth. Medical practitioners gave evidence that she would be required to be monitored by a psychiatrist for the reminder of her lifetime and she was unlikely to ever work again.
The response to complaints
Ms Mathews understandably didn’t feel that she could report the behaviour to her foreman, as he was one of the men participating in the abuse. When she filed a complaint to her area manager instead, she was told “leave it with me”, though nothing ever eventuated from the complaint. Upon calling a colleague that she understood to be her HR contact regarding the rape threat, Ms Mathews was told to come to his house to have a drink and talk about it. She received an abusive anonymous phone call shortly thereafter.
The Employer’s liability
Initially, Winslow Constructors denied liability, instead alleging contributory negligence. On the fifth day of the trial however that allegation was dropped, with Winslow accepting the claim of negligence. This left only the quantum of costs to be decided by Justice Forrest.
Video evidence
Winslow led video evidence in the form of three separate recordings that purported to show a discrepancy in Ms Mathews’ testimony. The recordings, in which Ms Mathews can be seen smiling whilst walking with her mother and spending extended periods in her garden, were given no weight by Justice Forrest. It was held that nothing could be inferred from the covert recording of three disparate instances, and that great care needed to be exercised in trying to draw any conclusions as to the visual depiction of a claimant’s mental state without correlating evidence from expert witnesses.
Damages
Justice Forrest found that Ms Mathews suffered chronic psychiatric injuries that have and will continue to diminish her quality of life. He also found that the injury to her jaw she suffered as a result of excessive grinding was caused by the stress and psychological damage of her ordeal. It was determined that Ms Mathews had no capacity to work, and will in all likelihood never work again. Damages were assessed as over $1.3 million, being $380,000 general damages as compensation for her psychiatric trauma and jaw injury, along with $283,942 for past economic loss and $696,085 for loss of future earning capacity until the retirement age of 65.
Implications for employers
The Mathews Case highlights the importance of providing a safe work environment, as well as treating complaints about harassment and bullying seriously. Employers should have policies in place to codify standards of acceptable behaviour and explain the process for complaints. In serious circumstances, employers might consider the appointment of an external investigator to handle complaints impartially.
For further information or any queries in relation to sexual harassment and bullying claims please contact Michael Bishop or Amelita Hensman of our office.
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