This is the second instalment of a two-part series which canvasses workplace sexual harassment, who is most at risk and what Australian employers do to address sexual harassment in the workplace and limit their liability.
Part 1 covered how workplace sexual harassment is defined and provided an overview of the relevant legislation and highlighted who was most at risk of being sexually harassed in the workplace.
In addition to an employer’s potential obligations and liability for sexual harassment under the SD Act or AD Act, employers may also have obligations under the FW Act or state/territory industrial relations legislative regimes, workplace health and safety laws, and at common law.
While the FW Act does not expressly prohibit sexual harassment in the workplace, it does operate to enable fairness at work, protect against unfair treatment and discrimination, and provides accessible and effective procedures to resolve grievances. Specifically, the FW Act provides recourse for a dismissal or another form of adverse action being taken on the grounds of sex. State-based industrial relations laws generally afford the same protections.
Workplace health and safety (WHS) laws, such as the Work Health and Safety Act 2011 (Cth), and its state and territory equivalents, impose a positive duty on employers to eliminate or manage hazards and risks to a worker’s health. This includes physical health, and therefore captures the potential injuries associated with workplace sexual harassment or assault.
Employees who experience sexual harassment in the workplace may be entitled to monetary compensation. Various court decisions regarding workplace sexual harassment have also clarified employer responsibilities. Specifically, employers can be held jointly liable for employees’ acts of discrimination, must provide adequate training and information on policies and procedures regarding workplace sexual harassment, and must follow workplace procedures correctly when an employee makes a complaint about workplace sexual harassment.
Clearly, there a number of legally binding obligations that employers must follow in responding to workplace sexual harassment. Rather than maintain reactive procedures, however, ‘best practice’ requires that employers seek to implement proactive measures with the aim of preventing workplace sexual harassment in the first place.
In its Report, the Commission recommended implementing a new framework that is victim-centred, practical, adaptable for businesses of all sizes and in all industries and designed to minimise harm to workers. It outlines specific actions in seven domains, namely:
Measures including training, developing policies and procedures, critiquing whether unconscious bias influences employment decisions, ensuring appropriate complaints and grievances processes, conducting investigations and providing bystander training were also recommended. Importantly, when investigating sexual harassment allegations, employers should invite all parties, including the alleged perpetrator, to express their view of events, for the purpose of affording natural justice to all persons involved.
Therefore, in order to effectively prevent and respond to workplace sexual harassment, employers should ensure their policies and procedures not only comply with relevant legislative requirements, but also embed the recommended approaches outlined above.
Workplace sexual harassment can have serious consequences for individuals and organisations. A proactive approach to prevent and respond to workplace sexual harassment is required in order to protect potential victims and to mitigate risk to an employer’s workplace. This approach embeds existing legal frameworks with recommended approaches to ensure best-practice.
To ensure your organisation is one that engages in best-practice, get in touch with the team at Gadens for assistance with:
Everyone has a role to play in creating a safe workplace for all workplace participants.
Gadens can assist employers by investigating allegations of sexual harassment, as well as any other employment related issues. To see how Gadens may be able to assist, please contact our team of Employment Advisory specialists.
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Jonathon Hadley, Partner
 See Richardson v Oracle Corporation Australia Pty Ltd & Anor (2014) 312 ALR 285; Hughes t/as Beesley and Hughes Lawyers v Hill (2020) 382 ALR 23; Kerkofs v Abdallah (Human Rights)  VCAT 259; Workers’ Compensation and Rehabilitation Act 2003 (Qld); Australian Human Rights Commission Act 1986 (Cth).
 NSW Breeding & Racing Stables Pty Ltd v V  NSWCA 114.
 Shellharbour Gold Club Ltd v Wheeler and Ors  NSWSC 224.
 Hindi v Chief Executive, Office of Local Government  NSWCATOD 134.