An employee engaged by the Queensland State Government as a cleaner has been awarded over $150,000 in compensation after he developed psychological problems as a result of a humiliating workplace prank. This amount is to be paid by the perpetrators of the stunt as well as the State itself, who was found vicariously liable for the acts of the employees.

Harmless Workplace Prank?

The cleaner was forced to tidy up a room which had been set up to appear like the aftermath of a ‘sex romp’ between two teachers of a school the cleaner was working at, including the strategic placement of a mattress, sheets, underwear, empty wine bottles and condoms filled with cream.

The cleaner developed psychological problems from this event, as he believed he was cleaning up bodily fluids, was jokingly accused of being responsible for the mess himself, and was dared to sniff the boxer shorts which formed part of the scene. He claimed that he was unable to sleep after the revelation two days later that it had been a prank, and by the time the case was heard in the Commission, had developed anxiety, depression and PTSD symptoms.

In return, the Queensland Government argued that the cleaner had exaggerated his reaction, pretending to be overly upset and humiliated in order to file a workers compensation claim.

The Reaction of a Reasonable Person

The employee made a complaint of sexual harassment to the Queensland Anti-Discrimination Commission, the decision of which was handed down in early January. The Commission found that the sexually explicit prank had been designed to embarrass the cleaner, and that it was obvious to a reasonable person that the victim would suffer humiliation. A key element was that the act was “intended to humiliate [the cleaner], or would reasonably have that effect.”

The Commission also accepted that the cleaner’s initial reaction to finding out it had been a joke was “his way of attempting to cope with the humiliation” and did not act to reduce the impact of the prank in any way, which it determined was “very significant”.

The Applicable Law

While this case was an unusual example of such behaviour, sexual harassment is unlawful under anti-discrimination law, and in relation to Queensland, the prank contravened the “engaging in unwelcome conduct of a sexual nature” and “making remarks with sexual connotations” elements of sexual harassment under the Anti-Discrimination Act 1991 (QLD).

Employers should ensure that they have a sexual harassment policy in place, perhaps as part of a broader bullying and discrimination policy suite, to ensure that such behaviour is clearly condemned by the business. Employers should also encourage employees who feel as though they have been subject to sexual harassment to make a complaint as soon as possible. The offering of training on what constitutes sexual harassment will help employees understand what is and is not unacceptable behaviour, including actions which are intended as a harmless ‘prank’.

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