Sexual Harassment

Sexual harassment, as defined under state specific anti-discrimination laws or falling under sex discrimination, is unwanted or unwelcome sexual advances, requests for sexual favours or conduct of a sexual nature in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated this behaviour to cause offense, humiliation or intimidation.

A person who sexually harasses someone else is primarily responsible for their behaviour. However, in many cases, employers can also be held responsible for sexual harassment by their employees under the principle of ‘vicarious liability’. Employers have a responsibility to take all reasonable steps to prevent sexual harassment in employment, such as implementing a sexual harassment policy and providing training or information on sexual harassment.

What defines sexual harassment?

Sexual harassment can take various forms. It can involve:

  • unwelcome touching, hugging or kissing;
  • staring or leering;
  • suggestive comments or jokes;
  • sexually explicit pictures, screen savers or posters;
  • unwanted invitations to go out on dates or requests for sex;
  • intrusive questions about an employee’s private life or body;
  • unnecessary familiarity;
  • insults or taunts based on your sex;
  • sexually explicit emails or SMS messages;
  • accessing sexually explicit internet sites;
  • behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

Sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated. However, if this consent is withdrawn or no longer invited and mutual, such as one employee wanted the relationship to end and the other party does not agree, this may constitute sexual harassment.

Sexual harassment constitutes sex discrimination (Birch v Wesco Electrics (1966) Pty Ltd (2012) 218 IR 67 [81]; Aldridge v Booth (1988) ALR 1 [16]-[17]), as the employee has been treated less favourably than colleagues of the opposite sex in being sexually harassed.

What can I do if I feel I am being sexually harassed?

If an employee feels as though they are being sexually harassed or they witness sexual harassment or sexual culture in the workplace, the first step is reporting and complaining about this conduct to the Company’s management. Reporting and complaining about this behaviour through the Company’s internal channels is the safest first step. This allows the Company to rectify and take action in order to stop the harassment.

If an employee feels as though the Company has not effectively dealt with their complaint, the employee can take the matter externally. External bodies include the Fair Work Commission, anti-discrimination boards, civil and administrative tribunals and commissions.

Where can I lodge a Sexual Harassment complaint?

In all states, employees can lodge an application to the Fair Work Commission or the Australian Human Rights Commission. There are however strict rules about where employees can apply and they do depend on the employees’ unique circumstances and what Australian state the harassment occurred in.

In Victoria specifically, employees can lodge an application to the Victorian Equal Opportunity Commission or have the matter referred to the Victorian Civil and Administrative Tribunal.

qIn New South Wales, employees can lodge an application to the Anti-Discrimination Board New South Wales (ADBNSW) or have the matter referred to the New South Wales Civil and Administrative Tribunal.

In Queensland, employees can lodge an application to the Queensland Human Rights Commission or have the matter referred to the Queensland Industrial Relations Commission.

In the Northern Territory, employees can lodge an application to the Northern Territory Anti-Discrimination Commission or have the matter referred to the Northern Territory Civil and Administrative Tribunal.

In Western Australia, employees can lodge an application to the Western Australia Equal Opportunity Commission or have the matter referred to the The State Administrative Tribunal (SAT) in Western Australia.

In South Australia, employees can lodge an application to the South Australia Equal Opportunity Commission or have the matter referred to the South Australian Civil and Administrative Tribunal.

In the Australian Capital Territory, employees can lodge an application to the Australian Capital Territory Human Rights Commission or have the matter referred to the Australian Capital Territory Civil and Administrative Tribunal.

In Tasmania, employees can lodge an application to the Tasmanian Equal Opportunity Commission or have the matter referred to the Anti-Discrimination Tribunal.

Aforementioned, it is very important to seek advice before lodging any sort of application to any board, commission or tribunal as there are specific rules that must be adhered to.

Remedies

If an employer can successfully prove that an employer is liable for sexual harassment on behalf of their employees and they have not taken all reasonable steps to prevent sexual harassment taking place or appropriate steps to rectify and deal with the harassment, the employee is entitled to remedies.

Remedies available vary in the different jurisdictions but can include financial and non-financial loss. An employee may be entitled to compensation for hurt, humiliation and distress where there is a casual connection between the employers’ liability and the loss suffered by the employee. Compensation in this form is referred to as general damages. An employee may also request a formal apology or request the Company to review sexual harassment policies and procedures in place as well as conduct training and information sessions on these policies and procedures.

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