Recent significant changes relating to employee’s harrasment at work have been introduced. The amount and rate of changes has resulted in many workplaces being uncertain about roles, obligations and what constitutes sexual harassment.
What is workplace sexual harassment?
The meaning of workplace sexual harassment is contained at Section 28A of the Sex Discrimination Act 1984 (Cth):
28A (1) For the purposes of this Act, a person sexually harasses another person (the person harassed) if:
- (a) The person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- (b) Engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
In circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.
“Conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. A single incidence of behaviour or conduct of a sexual nature can amount to sexual harassment, regardless of intent.
If the conduct or behaviour occurs in the workplace, connected to work, then the conduct is workplace sexual harassment. This includes while the worker is on a scheduled or authorised break, in the workplace or main place of work, off-site training or conferences, during travel to or from work or work-related appointments or events at after-hours events arranged or supported by the employer, or any other work social or networking events arranged or supported by an employer.
Due to the scope of when and where workplace sexual harassment may occur, it is critical to understand the responsibilities and obligations of everyone associated with the workplace.
Workplace obligations
The law prohibits sexual harassment in the workplace, which is considered serious misconduct and if substantiated can be a valid reason for dismissal. The commencement of the Anti-Discrimination and Human Rights Amendment (Respect at Work) Act 2022 (Cth) in December 2022, created a new positive duty on employers to eliminate workplace sex discrimination and harassment in the workplace.
Employer’s new positive duties under Respect at Work legislation shifts the focus of employers’ responsibilities and obligations to proactively eliminating sex discrimination and harassment through prevention. A 12 month transition period for employers to implement changes to comply with their positive duty ended in December 2023 when new powers were conferred on the Australian Human Rights Commission to regulate and enforce Respect at Work obligations. This means that the obligations and responsibilities regarding preventing and addressing sexual harassment in the workplace are as follows:
- Employers – must do everything they reasonably can to make sure that the workplace is safe. This includes taking all reasonable action to prevent and address workplace sexual harassment including training, risk assessment, and reviewing policies and procedures to ensure they comply and satisfy their positive duty to prevent sexual harassment and keep all people in their workplace safe from sexual harassment as much as possible.
- Decision makers – managers and supervisors must exercise due diligence to ensure that workplace prevention and response policies and procedures are compliant, including ensuring that risk assessments, and training are completed, and complaints are addressed and investigated efficiently, fairly, sensitively.
- Workers – have a responsibility for their own health and safety in the workplace and not negatively impacting the health and safety of others. This includes not engaging in sexual harassment, reporting sexual harassment, assessing, and identifying reporting potential and existing hazards, and complying with reasonable directions.
- Others in the workplace – such as customers, clients, suppliers, patients, and members of the public are also responsible for their own health and safety, not negatively impacting on the health and safety of others, not sexually harassing others and following reasonable instructions relating to health and safety.
Consequences
Sexual harassment in the workplace is a health and safety risk that can have serious and lasting consequences to the individual harassed, work relationships and office morale. An employer is required to reasonably, and proportionately prevent and address sexual harassment including properly investigating complaints and taking disciplinary action against workers that are found to have engaged in sexual harassment; up to and including dismissal from employment.
Businesses face significant implications including vicarious liability for sexual harassment in their workplace, with significant penalties also applicable where an employer has failed to reasonably comply with their positive duty to prevent workplace sexual harassment, including liability for uncapped loss or damage arising from sexual harassment; reputational damage to their business; and civil penalties including fines of up to $16,500.00 for individuals and $82,500.00 for organisations. Where an employer terminates the employee for sexual harassment and has not fulfilled their positive duty this potentially could be raised as grounds for an unfair dismissal claim.
Summary
Workplace sexual harassment is everyone’s responsibility however the employer has a primary duty to ensure that its workers are protected from sexual harassment and that any complaints about sexual harassment are addressed appropriately. This includes preventing sexual harassment by educating and training decision makers and workers on what comprises workplace sexual harassment and how complaints of sexual harassment will be addressed. To fully satisfy their positive duty and minimise rise, employers and decision makers must ensure that strategies to prevent and address sexual harassment by and of others in the workplace are implemented and followed.
This information is general in nature and not legal advice. Should you need advice specific to sexual harassment in the workplace, we recommend that you seek legal advice at your earliest opportunity.