This week, the Government released ‘A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’. The Roadmap for Respect responds to all 55 of the Australian Human Rights Commission’s recommendations outlined in the Respect@Work report. In responding to this challenging issue, the Government has taken the approach to either agree in full, in principal or in part to the recommendations, or to simply ‘note’ them where they are directed to governments or organisations other than the Australian government, or where the government is able to achieve the intent of the recommendations through other means.
What is sexual harassment?
A number of high-profile sexual assault and harassment claims have been dominating the media headlines across Australia in recent months. Drawing attention to this crucial issue is a reminder for employers to have appropriate policies and procedures in place to deal with allegations of sexual harassment in the workplace. The Sex Discrimination Act 1984 (Cth) describes sexual harassment as any unwanted or unwelcome sexual behaviours, where a reasonable person, would have felt humiliated, offended or intimidated. This means, even if the conduct was intended innocently, or there was a belief there was a mutual attraction, if the other party found the conduct offensive or undesirable, it may constitute sexual harassment. Common examples can include but are not limited to:
- unwelcome touching;
- staring;
- suggestive comments or jokes;
- intrusive questions about someone’s sex life or body;
- emailing inappropriate or explicit images to work colleagues; or
- displaying images of a sexual nature around the workplace.
What is vicarious liability?
Employers can be held legally responsible for sexual harassment in the workplace, this is known as vicarious liability. An employer may not be held liable for such incidents, however, if they are able to demonstrate they have taken all reasonable steps to prevent the conduct occurring in the workplace. For example, in the Von Schoeler v Boral Timber[1], the employer was found to be vicariously liable and ordered to pay damages to a female employee, on the basis that they had not taken all reasonable steps to prevent the sexual harassment from occurring. In the Federal Court decision, the employer argued that as they had a “Working with Respect” policy and had provided refresher training on sexual harassment before the incident occurred, and they had taken all reasonable steps. The Court, however, disagreed with this argument finding the training provided to employees only defined what sexual harassment was and did not inform employees that sexual harassment is unlawful. Additionally, the Court found the employer’s “Working with Respect” policy failed to state employees would be subject to disciplinary action if they were found to have engaged in sexual harassment activity.
What should employers do if an employee makes a complaint of sexual harassment?
All employers should have a sexual harassment policy in place, that outlines the complaints and disciplinary process for managing sexual harassment complaints in the workplace. Ideally, a business should have a dedicated “Sexual Harassment Officer”, as the first point of call for an employee to make a sexual harassment complaint. Alternatively, if the business is not able to have a dedicated Sexual Harassment Officer, the Human Resources department or the relevant manager, can be responsible for receiving such complaints.
If an employee or relevant third party complains of sexual harassment, it should be taken very seriously, and a formal investigation should be carried out. The investigation process should involve:
- obtaining clear details regarding the alleged incident or incidents;
- interviewing the individuals and any witnesses involved; and
- reviewing any relevant evidence that support or deny the allegation, such as CCTV footage.
It is crucial to maintain procedural fairness during the investigation process. In some cases, it may not be appropriate for employers to conduct the investigation themselves. In such instances, employers should consider engaging an independent third party to carry out the process. Conducting a procedurally fair investigation may also assist employers in any subsequent claims that may arise. For more information on how CCIWA can assist you with an investigation, please contact the Employee Relations Advice Centre on 08 9365 7660.
How can employers prevent sexual harassment occurring in the workplace?
There are a number of steps employers should take to prevent sexual harassment in the workplace. These include, but are not limited to;
- having a sound sexual harassment policy in place, and:
- clearly communicating to employees what sexual harassment is;
- how, and to who, they can make a complaint; and
- what the potential consequences are for breaching the policy.
- conducting training sessions for new and existing employees on the policy;
- ensuring managers are trained in how to handle complaints of sexual harassment; and
- swiftly investigating any claims of sexual harassment.
Any changes to the company sexual harassment policy should be communicated to all employees and relevant parties.
If your business does not currently have a sexual harassment policy in place, or you need assistance developing sexual harassment training, contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com
[1] Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13