Sexual Harassment in the Workplace and the Employer’s Obligation to Investigate
Sexual harassment is a common workplace hazard that can impact an employee’s physical, psychological and emotional safety and wellbeing, and cause ongoing psychological or physical harm. Women, migrants, culturally and linguistically diverse people, people with disability, First Nations people, and members of the LGBTQIA+ community are at higher risk of experiencing sexual harassment in the workplace. Younger employees aged between 18 and 29 are also at a disproportionately high risk of experiencing sexual harassment.
If an employee experiences sexual harassment, it can impact their employment and their relationships within the workplace and can cause isolation and social withdrawal. Such conduct can impact work productivity, attendance and work, and diminish feelings of safety and security in the workplace.
Employers have a duty of care to protect employees from risks to their health and safety in the workplace and have a legal obligation under the Occupational Health and Safety Act 2004 (Vic) to eliminate or reduce foreseeable risks of harm so far as reasonably practicable.
Employers have a positive duty to take proactive and meaningful steps to prevent sexual harassment in the workplace and provide and maintain a safe working environment which does not pose a risk to an employee’s health. In addition, employees also have an obligation to take reasonable care of their own health and safety, as well as the health and safety of others in the workplace who may be affected by their acts or omissions.
What is Sexual Harassment
The Sex Discrimination Act 1984 (Cth) (the Act) defines sexual harassment as any person making ‘an unwelcome sexual advance, or an unwelcome request for sexual favours’ towards another person or engaging ‘in other unwelcome conduct of a sexual nature’ towards a person.
The Fair Work Act 2009 (Cth) (the FWA) states that the above definition of sexual harassment applies to any conduct which occurs in a workplace towards an employee or person engaged within the workplace. The FWA states that conduct only needs to occur once to be considered sexual harassment, and that repeated and continuous sexual harassment can also constitute bullying.
When considering whether a person’s conduct amounts to sexual harassment, the assessment is whether a reasonable person in the circumstances would anticipate or expect that the person being harassed would feel offended, humiliated or intimated by the conduct. The Act also states that the unique circumstances of the person being harassed also need to be considered, when determining whether conduct amounts to sexual harassment.
This includes:
- Their sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin.
- The relationship between the harassed person and the harasser.
- Whether the harassed person is a person with disability; or
- Any other relevant circumstances.
Conduct which constitutes sexual harassment includes:
- Unwelcome and inappropriate physical contact, including sexually explicit physical contact.
- Staring, leering, following, watching or loitering.
- Suggestive and intrusive questions, comments and jokes.
- Sexually explicit pictures and photos on public display or sent via SMS, email or across social media.
- Sexually explicit phone calls, SMS, emails, comments on social media, or voice messages.
- Sexual gestures and inappropriate exposure of the body.
- Repeated invitations to go on a date.
- Requests for sex.
- Actual or attempted rape or sexual assault; and
- Sharing or threatening to share intimate images or film without consent.
Investigating Allegations of Sexual Harassment
Employers have a duty to their employees to ensure they provide a safe environment where they are free from being exposed to or subjected to sexual harassment. The FWA prohibits any person from engaging in sexual harassment towards an employee and such conduct can be considered serious misconduct and is a valid reason for dismissal. In addition, an employer can be held vicariously viable if an employee engages in conduct which constitutes sexual harassment, and that conduct occurs in connection with their duties.
Key points for any investigation:
- It is important that organisations take allegations of sexual harassment seriously and conduct a thorough investigation into the allegations to determine whether the conduct occurred.
- Employers should respond to allegations of sexual harassment and reported risks quickly and effectively.
- Investigations should be undertaken as soon as practicable after an allegation has been reported to determine what has occurred, what needs to happen to stop further incidents occurring, and to make recommendations and findings in relation to the allegation.
- Investigations should be undertaken by experienced and impartial investigators with expert knowledge on workplace misconduct.
- An employer should ensure that an investigator has access to all relevant evidence to allow a robust and through investigation to occur.
- The complainant, respondent and witnesses need to be made aware that an investigation is being undertaken and they may be required to participate in an interview.
- Employers should take on board the findings and recommendations made by an Investigator to ensure that they have met their legal obligations and are compliant with legislative requirements.
How can Safe Space Legal Help?
The team at Safe Space Legal have extensive experience working with employers to investigation misconduct allegations in the workplace. We work with employers across Australia to ensure they are meeting their legal health and safety obligations and frequently conduct independent safeguarding investigations.
Safe Space Legal provides the following services:
- Drafting legally sound policies, procedures, and codes of conduct.
- Conducting root cause and gap analysis.
- Delivering training to workplaces to ensure they are aware of their legal obligations.
- Conducting safeguarding investigations which are compliant with relevant state and territory legislation and regulations.
- Ensuring that complaints handling and reporting processes are compliant with legal obligations.
- Assistance and support to respond to allegations of workplace misconduct.
- Provide sound legal advice on risk mitigation.
Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.