Given the shocking prevalence of sexual harassment in the workplace, it is essential that employers are aware of how to manage a sexual harassment complaint. Indeed, a 2018 national survey on sexual harassment found that 23% of women and 16% of men in the Australian workforce had experienced some form of workplace sexual harassment.
What is sexual harassment?
Sexual harassment is defined as any conduct of a sexual nature that could reasonably be expected to offend, humiliate or intimidate a person.
What are some examples of conduct considered to be sexual harassment?
Sexual harassment may include behaviours such as inappropriate physical contact, sexually explicit comments, or openly displaying pornographic materials.
Does my workplace need to have a sexual harassment policy in place?
It has been held that employers must inform their workers of their legal obligations and provide the education and training necessary to ensure compliance with sexual harassment laws. For this reason, it is essential that employers, particularly large organisations, have a robust sexual harassment policy in place that is clearly communicated to employees.
What are the possible ramifications of failing to adequately deal with a sexual harassment complaint?
The key laws prohibiting sexual harassment are contained in the Fair Work Act 2009 (Cth) and anti-discrimination laws such as the Sex Discrimination Act 1984 (Cth). Cases brought by employees under these laws have sometimes resulted in substantial damages being awarded against employers for failing to make sufficient efforts to stop sexual harassment from occurring. For example, under section 106 of the Sex Discrimination Act, employers may be vicariously liable for one employee harassing another, meaning the employer will be seen as responsible for the conduct of the offending employee. Accessorial liability may also arise where senior employees were aware, or should have been aware, that there was a real possibility of sexual harassment occurring but failed to take reasonable steps to prevent it.
What should a sexual harassment policy contain?
An effective policy should clearly define sexual harassment and identify what types of conduct are unacceptable. It should also make clear what the ramifications are for breach of the policy and set out a clear process for making a complaint.
How should a sexual harassment complaints process work?
Research shows that fewer than 1 in 5 people lodge a formal report or complaint after experiencing sexual harassment. For this reason, it is particularly important that employers make the complaints process as transparent and accessible as possible. Employers should make it clear how a complaint may be initiated, who the complaint can be reported to, what steps will be taken once a complaint has been made. Given the damage that a sexual harassment complaint can do to an employer’s image, it is generally preferable for employers to deal with complaints promptly and confidentially.
If a complaint is made, do I need to investigate it?
Failure to investigate a complaint may expose an organisation to liability for breach of their duty of care to their employees.
What is the correct way to conduct an investigation?
The investigative process should allow both parties to have an opportunity to communicate their perspective and should be conducted under strict confidentiality. It will also be important to ensure the person undertaking the investigation is impartial and appropriately trained. It may often be best practice to acquire the services of an external investigator.
Is sexual harassment a ground for dismissal?
If it is concluded that an employee has engaged in sexual harassment, it may be a legitimate reason for dismissal. Caution must be exercised though, as a wrongful decision to dismiss someone on the basis of a sexual harassment accusation may be just as damaging as a failure to respond at all.
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More information
Join our Andreyev Lawyers team as we answer your FAQs about Bullying and Harassment in the workplace. To read the transcript, click here.
The information in this post is current at the date of editing – 20 November 2024