Can Valentine’s Day become a Workplace issue in 2026

Can Valentine’s Day become a Workplace issue in 2026 – A day for the expreesion of love and affection or a potential for sexual harassment?

There may be a belief held by some employees and organisations that Valentine’s Day, including expressions or declaration of affection for a colleague, provide a is an exception.

If the behaviour of an employee towards another is deemed to constitute sexual harassment it could also be deemed to constitute serious misconduct.

To fully understand this we must understand the definition of sexual harassment and how sexual harassment relates to the definition of serious misconduct.

Can Valentine’s Day become a Workplace issue in 2026 – Meaning of sexual harassment at law

Section   28A of the Sex Discrimination Act 1984 .

 (1)  For the purposes of this Act, a person sexually harasses another person (the person harassed ) if:

(a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

 (b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A)  For the purposes of subsection   (1), the circumstances to be taken into account include, but are not limited to, the following:

(a)  the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b)  the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c)  any disability of the person harassed; (d)  any other relevant circumstance.

(2)  In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

It is important to note that serious misconduct can provide a valid reason for summary or instant dismissal.

Can Valentine’s Day become a Workplace issue in 2026 – The question of serious misconduct

At 1.07 in the Fair Work Regulations 2009, Sexual harassment is listed As being serious misconduct at (2) (c) and (4) (c).

The Fair Work Act 2009 – SECT 527D states that;

Prohibiting sexual harassment in connection with work

 (1)  A person (the first person ) must not sexually harass another person (the second person ) who is:

 (a)  a worker in a business or undertaking; or

 (b)  seeking to become a worker in a particular business or undertaking; or

 (c)  a person conducting a business or undertaking;

The definition applied to sexually harass under the Fair Work Act is

“sexually harass” has the meaning given by section   28A of the Sex Discrimination Act 1984 .

Can Valentine’s Day become a Workplace issue in 2026 – the positive duty for employers

With the introduction of the Positive Duty on employers to take all reasonable and proportionate measures to eliminate as far as possible Sex Discrimination including Sexual Harassment in the workplace following the publication of the Australian Human Rights Commission Respect@work report 2020  In Australia, as of December 2022, organisations have a legal “positive duty” under the Sex Discrimination Act 1984 to proactively prevent, rather than merely react to, workplace sexual harassment, sex discrimination, and related misconduct.

This includes being mindful that employee behaviour on Valentine’s Day and in the workplace in general does not become a sexual harassment issue.

Common examples of sexual harassment on Valentine’s Day

• Asking a co-worker for a date/drinks etc after being previously refused
• Giving unwanted gifts as an enticement, often after being previously refused
• Unwanted or non-consensual touching as an expression of affection on Valentine’s Day.  Valentine’s Day does not equal a free pass for this type of behaviour
• Inappropriate sexualised behaviour outside of the workplace, https://awpti.com.au/sexual-harassment-out-of-office-behaviour/more details in this article

Can Valentine’s Day become a Workplace issue in 2026 – Advice for employers

Ensure that your organisation has;

1. Policies in place that clearly outline the behavioural expectations of the organisation, including the expectations during out of office events
2. Training that supports the policy and clearly outlines;

• • The definition and examples of sexual harassment
  • That sexual harassment is unlawful
  • What to do if a person is subjected to or witnesses sexual harassment in the workplace

In addition it is important to have;

1. A trusted reporting mechanism that allows employees to report sexual harassment with confidence and confidentiality
2. A timely and professional investigation mechanism to deal with complaints
3. HR staff trained in best practise investigation process is or a fully qualified and experienced external investigator on speed dial

Sexual harassment out of office behaviour – How can AWPTI help

AWPTI can provide you with

• Sexual harassment training to ensure you protect your employees and satisfy your duty of care including the positive duty to take all reasonable steps to eliminate sexual harassment in the workplace – details here
• Professional and comprehansive investigation services – https://awpti.com.au/workplace-investigations/
• The best investigation traniing  available on the market today – learn more

Please contact me via enquiries@awpti.com.au or our contact page if you would like to organise a course for your organisation or you would like to join an upcoming open course.

If you are a HR consultant conducting workplace investigations this course is essentially important for your business or career development

Please feel free to see what past participants have said about the courses – details here