Given the shocking prevalence of sexual harassment in the workplace, it is essential that employers are aware of how to manage sexual harassment claims. In 2018 a 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. Sexual harassment may include behaviours such as inappropriate physical contact, sexually explicit comments, or openly displaying pornographic materials.
The key laws prohibiting sexual harassment in are contained in anti-discrimination laws and the Fair Work Act 2009 (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 1984 (Cth) 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. To avoid liability, employers should firstly ensure they have a sexual harassment policy in place.
Sexual harassment policy
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.
An effective policy should clearly define sexual harassment as any conduct of a sexual nature that could reasonably be expected to offend, humiliate or intimidate a person. It should also make clear what the ramifications are for breach of the policy and set out a clear process for making a complaint.
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.
Failure to investigate a complaint may expose an organisation to liability for breach of their duty of care to their employees. The investigative process should allow both parties to have an opportunity to communicate their perspective and 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.
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.
Employers must treat sexual harassment claims with the utmost importance. With this in mind we advise that all employers implement an effective sexual harassment policy and train their employees accordingly. If your employee has made a complaint or if you would like help implementing a sexual harassment policy, please do not hesitate to contact us on 02 9331 0266.
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.