‘Playful’ waiter guilty of sexual harassment
A “joker” waiter who struck a fellow member of staff on the backside with plastic bags has been found guilty of sexual harassment.
As a result, the Fourways restaurant group was ordered to pay $3,500 in damages over its lax response to the incident, which senior management spokesman Dale Butler called “political correctness gone mad”.
Although the Human Rights Commission (HRC) found that the prank was on the lower end of the scale, a tribunal ruled that the restaurant's failure to address the woman's complaint had “heavily compounded” her anger.
She took her case to the HRC after Fourways failed to act on her written complaint about the October 8, 2013 incident.
The complainant, who worked at Café 4, took offence over what a waiter, Peter Kovacs, described as playful physical humour.
Calling himself a joker who was popular with other staff, Mr Kovacs told the tribunal that there had been no sexual intent to his actions, which he said had been typical conduct in Europe.
“Once Peter gave me his side of the story, that sort of deflated the whole thing for me a little bit,” the general manager, Andreas Detzer, told the tribunal.
“How can the flicking of a bag be a sexual harassment case?”
The tribunal heard that Mr Kovacs, who ordinarily worked at the Fourways Restaurant, had been assigned to Café 4 on the day in questions.
Feeling that the complainant was upset and gloomy, he initially blocked her from getting to her counter, tapped her on the head, then flicked the plastic bag at her backside, during which she shouted at him.
Although the waiter denied the first two actions, the tribunal accepted the woman's evidence, also finding that the complainant had made it clear that she did not appreciate the behaviour.
Mr Kovacs denied striking the woman in the rear, although he accepted that the bags could have struck her there.
He told the tribunal that he had read the company's staff handbook, which prohibited sexual harassment, six years earlier when he had been hired.
After a “brief orientation meeting”, he had received no further training.
The HRC heard that the woman's manager, who heard her complaint that same day, did not view the incident as particularly serious. She complained that evening to Mr Detzer.
The general manager said he would check that day's camera footage, but it had been lost by the time he looked a week later.
The woman reported the incident to human resources the next day, subsequently putting her complaint in writing, but the company failed to act, only taking statements after the human rights complaint was filed.
Although the tribunal found that “in the context of sexual harassment cases, the incident is not on the serious end of the spectrum”, and that Mr Kovacs's first actions merely constituted “minor unwelcome physical harassment”, his actions with the bags amounted to sexual harassment that “undermined the complainant's dignity in the workplace”.
In an “emotive” submission, Mr Butler insisted to the HRC that there was zero tolerance for sexual harassment in the workplace.
However, the HRC found the delays, plus the ultimate failure of Fourways to follow its own policies, “damning” — ordering the company to pay $3,500 in damages to the complainant, and Mr Kovacs to pay $500.
The tribunal also recommended the company adopt a more rigorous policy, including staff training and posting its key policies in the workplace.
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