Sexual harassment and obligations of employers – Part 2

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.  

What are the obligations or liabilities of employers in relation to workplace sexual harassment?

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.[1] Various court decisions regarding workplace sexual harassment have also clarified employer responsibilities. Specifically, employers can be held jointly liable for employees’ acts of discrimination,[2] must provide adequate training and information on policies and procedures regarding workplace sexual harassment,[3] and must follow workplace procedures correctly when an employee makes a complaint about workplace sexual harassment.[4]

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.

What does ‘best practice’ look like in workplaces?

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:

• Leadership: developing and displaying strong leadership contributes to workplace cultures that prevent sexual harassment.
• Risk assessment and transparency: by being transparent and learning from past experiences, organisations can improve their understanding of sexual harassment and encourage continuous improvement.
• Culture: building a culture of trust and respect that not only minimises the risk of sexual harassment, but also results in any incidences being dealt with in a way that minimises harm to workers.
• Knowledge: workplace education and training are necessary to demonstrate the organisation’s commitment to preventing workplace sexual harassment and initiates change by developing an understanding of expected workplace behaviours and processes.
• Support: employees should be supported prior, during and after making a report of sexual harassment.
• Reporting: removing barriers to reporting and making the process more accessible allows workers to make reports of workplace sexual harassment, and further, assists employers in addressing them.
• Measuring: collecting and interpreting data at both a workplace and industry-level improves understandings of the scope and nature of workplace sexual harassment.

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.

Key takeaways

• Workplace sexual harassment can have detrimental psychological, economic, reputational and legal consequences for individuals and organisations.
• Some workplaces and workers are more at risk of experiencing workplace sexual harassment.
• Employers can be held jointly liable for the misconduct of employees.
• Employers are obligated to respond to allegations of sexual harassment in the workplace.
• Employers should adopt a proactive approach in order to prevent and respond to workplace sexual harassment.
• There is likely to be significant legislative and regulatory reform over the next few years with respect to workplace sexual harassment.

Conclusion

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:

• workplace investigations;
• reviewing or drafting policies and procedures; and/or
• providing training regarding workplace sexual harassment.

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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Authored by:

Jonathon Hadley, Partner

[1] 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) [2019] VCAT 259; Workers’ Compensation and Rehabilitation Act 2003 (Qld); Australian Human Rights Commission Act 1986 (Cth).

[2] NSW Breeding & Racing Stables Pty Ltd v V [2005] NSWCA 114.

[3] Shellharbour Gold Club Ltd v Wheeler and Ors [1999] NSWSC 224.

[4] Hindi v Chief Executive, Office of Local Government [2016] NSWCATOD 134.