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22 Jun 2022

Senior Associate, Gemma Wheeler-Carver, in our Employment team reflects on legislative changes designed to minimise sexual harassment in the workplace. 

Recap on Sexual Harassment and changes to the law

Our Employment law team reflects on legislative changes designed to minimise sexual harassment in the workplace.

Among other significant events in 2021 was the commencement the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), known as the Respect@Work legislation, that clarified and expanded the operation of the existing laws and amended the Australian Human Rights Commission Act 1986 (Cth), the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth).

Further to this, the Workplace Health and Safety Act 2020 (WA) (WHS Act) has now commenced, which creates a duty for a person conducting a business or undertaking (PCBU) to eliminate or manage hazards and risks to the health and safety of workers, which would extend to the prevention of sexual harassment in the workplace.

What is Sexual Harassment? 

Sexual harassment is considered:

  • Conduct of a sexual nature;
  • That is unwelcome; and
  • Makes a person feel offended, humiliated and/or intimidated.

The test is objective that is whether a reasonable person in the circumstances would anticipate that reaction.

Unlike bullying, which generally requires multiple incidents or a pattern of behaviour, even a once off act can be considered sexual harassment.

Examples of behaviour that may be considered sexual harassment include:

Unwelcome touching

Unnecessary familiarity eg brushing up against someone

Starring or leering

Intrusive questions about a person’s private life or body

Suggestive comments or jokes

Insults or taunts based on sex  

Unwanted invitations to go on dates

Sexually explicit physical contact

Requests for sex

Sexually explicit emails or SMS text msgs

Key legislative changes from the respect@work act

Fair Work Act 2009 (Cth)

 “Stop Orders” (previously limited to bullying and harassment) have been expanded to allow the order to be made to stop sexual harassment in the workplace.  A stop order compels the respondent to cease the behaviour towards the applicant and will often require an employer to put in place policies or other steps to minimise the risk of ongoing harassment..

In addition, engaging in sexual harassment is now explicitly included as a valid reason for dismissal. As with all decisions to terminate employment, it is important that employers comply with any relevant legislation, Award and/or employment contract and have processes in place to minimise the risks of a claim related to wrongful termination. This will usually include an investigation process, reasonable opportunity to respond, considering options to allow for improvement or minimisation (if appropriate) and appropriate notice and documenting of the process.

Sex Discrimination Act 1984 (Cth)

This legislation now makes it expressly clear that it is unlawful to harass someone on the ground of their sex as well to sexually harass a person in the context of their employment. Victimisation of a person on the basis that they have the ability to or have made a complaint under this legislation, or have assisted as a witness or otherwise in relation to a complaint, is also unlawful. The legislation also prohibits a person from assisting another person in sexual harassment.

The changes also expand the definition of worker in line with federal workplace health and safety legislation so that intern, volunteer and self-employed workers are protected from harassment.

Australian Human Rights Commission Act 1986 (Cth)

The time to lodge a complaint to the AHR Commission has been extended from 6 months to 24 months. Importantly, the complaint cannot be terminated once filed.

Workplace Health and Safety Act 2020 (WA)

The Respect@Work amendment legislation does not amend the WHS Act, however, it is important to know that a PCBU has a primary duty to ensure the safety of workers at work in the business or undertaking and others who may be affected by the carrying out of work such as a visitor.

While the WHS Act does not define sexual harassment as a workplace risk, it is evident that sexual harassment can cause both physical and psychological harm to a person. Therefore, like any other WHS duty a PCBU, such as an employer, has a positive duty to eliminate or minimise the risk of sexual harassment at the workplace, so far as is reasonably practicable.

A breach of the WHS Act attracts hefty fines and even jail time for the most serious breaches. More information can be found here: [link to article]

Legal Action – the upward trend in compensation and damages

It is important that employers have a strategy in place in promoting a workplace free of sexual harassment and adopt policies and procedures. The seriousness and the cost of sexual harassment in the workplace is increasing and is reflected in recent litigation demonstrating the upward trend in compensation and damages.

Further, a claim may trigger a WHS investigation and prosecution under the WHS Act.

Although the person that engages in sexual harassment is primarily responsible, a business or employer (or PCBU) can also be held responsible for sexual harassment by their employees or agents.

Due to the seriousness of sexual harassment allegations, businesses at minimum should adopt a Code of Conduct that addresses the current legal requirements that prohibit bullying, sexual harassment, sexual assault, and workplace discrimination.

Recent cases include:

CASE

Compensation

Hugh’s t/a Beesly and Hugh Lawyers v Hill [2020] FCAFC 123

 

$170,000 TOTAL, being:

$120,000 for general damages

$50,000 for aggravated damages.

Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14

$158, 702.60 TOTAL, being:

$130,000 for general and aggravated damages $28,702.50 for loss of income

Vitality Works Australia Pty Ltd v Yelda (No2) [2021] NSWCA 147

Assessed at $318,280 however, due to statutory cap on damages of $200,000, each party was ordered to pay $100,000 each in addition to appeal costs.

How can HHG support your business?

Here at HHG, we have a specialised employment team that can assist in drafting or reviewing policies and procedures that specifically address sexual harassment in the workplace (and other workplace policies). We also provide timely and practical advice should a complaint be made, as well as assisting with investigations and responding to claims.

Our team is highly skilled and experienced in advising on all aspects of Employment Law. Contact us today if you need advice or representation in this area. 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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