Sexual harassment in the workplace: claiming against the individual

In a recent decision by the Human Rights Review Tribunal, BGH v Kumar, the plaintiff took legal action against an employee in their personal capacity for sexual harassment endured during employment for a period of around 2 years. This decision is significant as cases such as this are not common in New Zealand, as it is much more common to pursue claims against an employer. This case is a salient reminder that individual employees may be sued personally for sexual harassment under the Human Rights Act (“HRA”).

 

BGH v Kumar [2024] HRRT 2

 

Background

BGH was the only female employee at Viti Panel and Paint Limited (“VPPL”), and Tarun Kumar was the second in charge at VPPL. Mr Kumar was also a close family friend of the owner of VPPL. BGH claimed that she was sexually harassed by Mr Kumar over a period of two years, and that the final incident of him peeping at her through a hole in the toilet wall was the catalyst for her resignation at VPPL. Mr Kumar denied any sexual harassment, including the peeping incident.

BGH started working for VPPL part time in November 2014 and commenced full time work in August 2016. In total, five or six men worked at VPPL, including Mr Prasad, who was the former employee who had alerted BGH to the hole in the toilet wall.

BGH initially raised a personal grievance claim against VPPL, but this was not resolved at mediation, and VPPL was subsequently liquidated. In January 2019, BGH filed a claim against Mr Kumar, alleging that Mr Kumar sexually harassed her, in breach of section 62(2) of the HRA. Mr Kumar denied sexually harassing BGH, and he denied many of the behaviours alleged by BGH. He also believed that the behaviour that did take place had been taken out of context by BGH.

Under section 62(2) of the HRA, it is unlawful (whether by the use of language, visual material or by physical behaviour of a sexual nature) to subject any other person to behaviour that is unwelcome or offensive to that person (whether or not that is conveyed); and that is either repeated or of such a significant nature, that it has a detrimental effect on that person.

BGH claimed that she had been subjected to day-to-day harassment of a sexual nature from the start of her employment in November 2014, such as:

• comments on BGH’s clothes and appearance, her marital status (being single), and statements such as “you look very pretty today”;
• singing Hindi love songs in BGH’s presence;
• sending BGH a video which depicted a waitress displaying a menu on her bare buttocks; and
• touching BGH on her shoulder and encroaching on her personal space.

In addition, two serious incidents were described by BGH. She claimed that on 2 November 2016, Mr Kumar entered her office while she was on the phone, that he pushed a ring onto her finger, and then touched her shoulder and waist, her thigh and the side of her buttock (“the Office Incident”). BGH reported the incident to Mr Maharaj, who said he would speak to Mr Kumar. That evening, Mr Kumar texted BGH – “I’m sorry”, and Mr Maharaj then introduced a rule that no employees were allowed in BGH’s office while she was in there.

On 14 November 2016, BGH said she received a phone call from Mr Prasad, who alerted BGH that there was a hole in the wall between the storeroom and the toilet, and that Mr Kumar had watched BGH when she was in the toilet. On 15 November 2016, BGH went to the toilet and checked if Mr Kumar was peeping through the hole. BGH claimed that she saw Mr Kumar through the peep hole and immediately confronted Mr Kumar, but he denied looking through the hole.

Mr Kumar denied any behaviour of a sexual nature, and he maintained that while some of the alleged behaviour occurred, they were taken out of context and were not of a sexual nature. However, he accepted that:

• he sang Hindi love songs at work and sometimes he would sing songs that were on the radio, but he maintained that the songs were not sung to BGH;
• he sent BGH a video which depicted a waitress displaying a menu on her buttocks, and shared it in the office and laughed with his colleagues about it while BGH was in her office;
• he only touched BGH on her shoulder in November 2016, and sent her a text that evening apologising for this.

 

Findings

After considering the evidence given in person (including cross-examination), the Tribunal found that it was more probable than not that the behaviour which BGH alleged against Mr Kumar had occurred. BGH’s evidence was found to be more plausible than Mr Kumar’s evidence, and she was found to have presented her evidence in a consistent manner. By contrast, Mr Kumar’s evidence was found to be, at times, implausible, confusing, difficult to follow and exhibited multiple inconsistencies, both with his own earlier evidence and with his own witness, Mr Maharaj.

In respect of the Office Incident, the Tribunal preferred BGH’s evidence, as this was found to be more credible. By contrast, Mr Kumar gave confusing and unclear evidence about this incident in his cross-examination. The Tribunal noted that his evidence was difficult to understand. In respect of the peeping incident, the Tribunal preferred BGH’s evidence that Mr Kumar did look through the hole in the toilet while she was in the toilet, and when she confronted him, Mr Kumar shouted at her in front of the other employees, denied looking through the hole, told her she was not a “good girl”, and that the hole had been there a long time.

During the hearing, Mr Kumar admitted that he knew about the hole, but denied looking through it. Overall, his evidence on this was less compelling and straightforward than BGH’s account. Mr Kumar denied that he could have been outside as he was not wet at the time, and given it was raining on the day, he said he would have had to walk in the rain to access the peep hole. However, after considering the floorplan of VPPL, the Tribunal accepted that it was a relatively short walk and easy access to the storage unit (where the peep hole could be accessed).

By contrast, the Tribunal found that the actions of BGH after the incident were consistent with someone who had been embarrassed and humiliated after finding out that someone had been looking at them in the toilet. She attempted to get evidence of Mr Kumar peeping, then angrily confronted him, told her employer about it, left work early that day, and never returned to work again – giving no notice and initially ignoring phone calls from VPPL. BGH also went through with reporting her concerns to the Police. While Mr Kumar drew attention to the fact that the Police did not lay any charges against him, the Tribunal noted that the criminal standard of proof was different from the civil standard, and that the Tribunal was required to undertake its own consideration of the evidence put before the Tribunal.

 

Were Mr Kumar’s actions of a sexual nature?

The Tribunal observed that an assessment of whether the behaviour in question is of a sexual nature is an objective test, and that the intention of the defendant was irrelevant when considering whether behaviour was of a sexual nature or not.

The Tribunal considered that comments about BGH’s appearance and her clothing, the singing of Hindi love songs around her, sending her a video of a waitress with a menu on her buttocks, the repeated touching of BGH’s shoulder, and encroaching on her space were all of a sexual nature when considered in context. The Tribunal also observed that the behaviour had been repeated over almost 2 years, and there had been a power imbalance between BGH and Mr Kumar within the workplace. The Tribunal also held that the Office Incident, the multiple touches of BGH’s body in the office, and the peeping incident were conduct of a sexual nature, and the peeping conduct was found to be particularly humiliating, given the expectations of privacy in a toilet.

 

Was the behaviour unwelcome or offensive?

The Tribunal noted that the test for whether conduct was unwelcome or offensive is a subjective one, seen from BGH’s perspective. Further, BGH was not required to prove that Mr Kumar knew or intended that the conduct would be unwelcome or offensive. If BGH found the behaviour to be unwelcome or offensive, that is determinative.

BGH gave clear and compelling evidence that she found all of Mr Kumar’s behaviour to be unwelcome and offensive. While she acknowledged that she did brush off some of the comments and did not challenge them initially, that was because although they were unwelcome, she needed her employment to provide for herself. The Tribunal recognised that just because someone did not object to the behaviour at the time, it does not mean they did not find that behaviour unwelcome. The Tribunal accepted that she was upset by the behaviour, and when the conduct escalated in November 2016, she had raised her concerns to VPPL and to the Police, and she ultimately left her employment due to the impact that it had on her.

 

Was the behaviour repeated or of such significance that they had detrimental effects?

The Tribunal accepted that detrimental effects may include the detriment of having to work in a hostile work environment, in a demeaning atmosphere created by unwelcome sexual conduct, and may include losses of self-esteem and loss of trust in employment. The Tribunal was satisfied that the behaviours in question were either repeated and of such significant nature (in relation to the peeping incident) and they have had detrimental effects on BGH in her employment.

The Tribunal held that all necessary elements to prove a claim of sexual harassment (under section 62(2) of the HRA) had been established. In other words, the Tribunal found that Mr Kumar subjected BGH to language, visual materials and physical behaviour of a sexual nature, which were both unwelcome and offensive. Such behaviours had been repeated and of such a significant nature that they had detrimental effects on BGH in respect of her employment (which BGH felt compelled to walk away from). Mr Kumar was found to have breached section 62(2) of the HRA.

 

Remedies awarded

BGH sought payment of $25,160.00 as damages for loss of income over 37 weeks ($680 per week). The Tribunal noted that it was not appropriate to award the full amount BGH has sought, as there was little evidence regarding the attempts she had made to obtain alternative employment. BGH was only awarded compensation for the loss of four weeks’ income – $2,720.

BGH claimed $35,000 as compensation for humiliation, loss of dignity and injury to feelings, and BGH gave evidence that she was embarrassed and humiliated by Mr Kumar’s conduct, and that she felt she could no longer return to her work at VPPL. BGH gave evidence that she feared being humiliated again, so she resigned and reported the incident to the Police. The Tribunal observed that the “loss of dignity that occurs when being watched in the toilet cannot be over-stated”, and that BGH had suffered humiliation and injury to feelings due to the repeated and unwelcome behaviour of a sexual nature for almost two years. The Tribunal accepted that BGH underwent counselling sessions and a GP appointment to deal with the impact that she had to endure. Ultimately, the Tribunal considered that $29,000 would be appropriate to compensate BGH.

 

Conclusion

This is an interesting case as it serves as a reminder that employees have additional avenues for compensation for sexual harassment from the offending individual personally. The Tribunal clearly set out the elements of the offence that need to be met under s 62(2) of the HRA.

 

 

If you have any queries, the team at Jennifer Mills & Associates is always happy to assist. Please do not hesitate to contact Jennifer Mills at jennifer@jennifermills.co.nz