Sexual harassment unfair dismissal

Risk Management Sexual Harassment

Risk Management Sexual harassment,  It is vitally important as part of your organisation’s risk management strategy to ensure you do all you can to minimize or eliminate sexual harassment in the workplace, training is a key component

Sexual harassment can occur in a number of ways in a workplace for example;

  • Between co-workers in general
  • Where there is a power imbalance between the perpetrator and the victim. This can be as a result of the perpetrator’s more senior position in the organisation or an age difference between the perpetrator and the victim or even the length of service with perpetrators being in the organisation for much longer than the victim.
  • At events such as work trips or conferences and festive season functions.
  • Where perpetrators are considered to be generally well liked or high performers and are protected by the organisation
  • Social media, emails, phone calls and text messages

The AWPTI Respect@Work/Positive Duty Understanding Workplace Sexual Harassment training courses have been disigned to assist employers and employees to understand their responsibilities and for employers as part of taking all reasonable and proportionate measures to eliminate as far as possible sexual harassment in the workplace. Details here

With respect to power imbalances it is important that all your employees know what sexual harassment is, that is unlawful, that the person’s position within an organisation does not relieve them of their responsibilities to comply with sexual harassment guidelines and the behavioral expectations of your organisation. The duty not to engage in sexual harassment is not diminished by the fact that a person is a high performer or is generally well liked within the organisation. Businesses and employers must have a zero tolerance policy to sexual harassment it should never be tolerated.

In relation to conferences and festive season functions, things to consider are where will the functions will be held, how long they will go, what will be the start and finish times, will there be any regulation or restriction on the consumption of alcohol, who will oversight this, Have you done any training or provided employees with any guidance as to the behavioural expectations at the function.

The AWPTI Respect@Work/Positive Duty/Understanding Workplace Sexual Harassment  program has been designed so that employers can clearly outline the behavioral expectations at all times – details here

The Law

Sexual harassment is defined under the Sex Discrimination Act 1984 – Sect 28a

A person sexually harasses another person (the person harassed ) if:

  • the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • 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.

As a result of changes to laws relating to sexual harassment and sex discrimination it has become imperative that organisations to ensure that all of their staff receive training on what sexual harassment and sex discrimination are, that they are unlawful and what do you if an employee is subjected to or witnesses sexual harassment and sex discrimination in the workplace.

The changes to the law created the new Positive Duty – On 25 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 was passed into Law.

The Act implements the recommendations from the AHRC 2020 Respect@Work report. It will significantly strengthen Australia’s regulatory framework in respect of sex discrimination, and in particular, sexual harassment.

The Act amends the Sex Discrimination Act 1984 (Cth) by introducing a new Positive Duty for all employers to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, unlawful sex discrimination, including sexual harassment, sex-based harassment, hostile work environments and victimisation.

The positive duty shifts the burden from individuals making complaints to employers taking proactive and preventative action.

From 12 December 2023, the Australian Human Rights Commission (AHRC) can inquire into compliance with the new positive duty. If non-compliance is reasonably suspected, the AHRC can issue a compliance notice and apply to the Federal Court for orders to direct compliance with the notice. For more details about compliance obligations click here

Having training in place is not only important for an employer to satisfy with a positive duty under sex discrimination and sexual harassment laws but also the general duty of care to take all reasonable steps to ensure that nothing in the workplace could cause an employee to suffer an injury or illness, courts and tribunals have found that workplace sexual harassment, bullying, general harassment and discrimination can lead to psychological injuries and illnesses such as stress anxiety depression, PTSD and in the worst cases suicide.

It is highly recommended that all employers have training in place for all their employees that outlines the behavioral expectations at conferences, work tips and Christmas functions and clearly outlines that the Christmas function is part of the workplace and that the rules applying to sexual harassment apply equally during any conference Christmas or end of year function. This program has been developed to assist click here

It is highly recommended that all employers have training in place for all their employees that outlines the behavioral expectations at conference and Christmas functions and clearly outlines that the Christmas function is part of the workplace and that the rules applying to sexual harassment apply equally during any conference Christmas or end of year function. This program has been developed to assist click here

Don’t take the risk of your business failing to satisfy your duty of care.

Risk Management training – Advice for employers

Assess potential risks

Assessments can be made by reviewing past incidents or past complaints or by looking at what’s happening in the world, for example what incidents of sexual harassment are being reported in the media and is our organisation in danger of this happening here.

What incidents of sexual harassment are being reported in the media or by the Australian Human Rights Commission.

The question is simple in what areas is our organisation vulnerable?

You can also conduct feedback surveys amongst your employees to see how they feel about the climate and culture in your organisation.

An area of coneren when it comes to sexual harassment are conferences, work trips and the festive season is the mixture of the workplace and alcohol. This can be the traditional Christmas party, Christmas Lunches, after work drinks just prior to a holiday break or shut down or any other get together relating to the festive season.

It is important to understand that all of these events can be classed as an extension of the workplace which means that employees are bound by the behavioral expectations of the workplace under normal circumstances but also that employers are bound by their duty of care.

Risk Management Festive Season – Advice for employers

Planning

Plan ahead consider where how to minimise risk, for functions will they be held, how long they will go, what will be the start and finish times, will there be any regulation or restriction on the consumption of alcohol, who will oversight this, Have you done any training (see below) or provided employees with any guidance as to the behavioral expectations at the function.

Incident Response

If an incident occurs or is reported take action immediately. Obtain as much detail of the incident the persons involved and any witnesses.

Investigations into incidents involving festive season activities and alcohol are very complex and I caution against taking them too lightly. My advice if you need help contact me as soon as possible.

It is important both for the welfare of the person subjected to inappropriate behaviour and also for the organisation to take action quickly.

It is much better to take proactive action to instigate an investigation then wait until you receive letters from lawyers demanding compensation or some sort of settlement.

This is where complaint management, initial response and workplace investigation training becomes very important – Details here.

Sexual Harassment Training

Ensure that you have training clearly defines what sexual harassment is, what bullying and harassment are, what discrimination is, that they are all unlawful and what to do if a person is subjected to or witnesses sexual harassment, bullying and harassment, discrimination.

It is important that any training also emphasises that sexual harassment and discrimination will also not be tolerated.

The AWPTI Respect@Work/Positive Duty/Understanding Workplace Sexual Harassment  program has been designed so that employers can clearly outline the behavioral expectations in all areas – Details here.

There are programs designed for employees and extended program for Managers which includes what Managers should do if complaints of sexual harassment are reported to them or they even suspect it is occurring in the workplace. There is a program for individuals who have engaged in sexual harassment where the determination is that remedial action is the best course and we also have the programs available on video or on a slideshow presentation that can be included in your learning management system.