Sexual Harassment Who decides
Sexual Harassment Who decides – When a complaint of sexual harassment is made and a workplace investigation is being conducted important decisions have to to be made including;
- Is the behaviour being complained about sexual harassment?
- Is it a breach of company policy, Code of Conduct or the law?
- What to do next?
Sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. It can be physical, verbal or written.
Conducting a workplace investigation into sexual harassment complaints is a complex and often time difficult process, it needs to be handled in a thorough and professional manner. When managing or investigating a complaint of Sexual harassment in the workplace it is important for employers, HR professionals and managers to understand how sexual harassment can be defined, it is;
- Defined only by law?
- Defined by professionals, lawyers, investigators?
- In the eye of the beholder?
- What is the evidence?
Who decides what sexual harassment in the workplace is:
- The Law – Human Rights Commission & The Fair Work Commission with the new Stop Sexual Harassment orders
- HR Professionals and lawyers – They look at what is defined at law and then reference it to your company Code of Conduct and policies, such as the behaviour policy.
- The Victim – it is about how the victim felt in relation to the actions of the perpetrator
- What other evidence is there?
The Law – Meaning of Sexual Harassment – 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.
Sexual harassment as defined by the Australian Human Right Commission is considered to have occurred in the workplace when it happens:
- at work
- at work-related events
- between people sharing the same workplace
- between colleagues outside of work
The Sex Discrimination Act also covers ‘work related’ sexual harassment*, which can take place,
- At the location of someone working remotely who is harassed by email, on a social networking site, or by mobile phone
- On work-related trips (such as training and, conferences or in hotels, cars or on trains etc)
- At work-related social events (such as work lunches, office parties, at bars and restaurants)
- In classroom or training facilities or in the workplaces of interns, trainees and apprentices
- In educational institutions and inter-school activities (sexual harassment can be perpetrated by students over the age of 16 or by staff)
- In shops, restaurants, or anywhere that goods and services are provided (sexual harassment can be perpetrated by customers towards staff or by staff towards customers)
The Professionals definition;
HR Professionals, investigators and lawyers will understand what the law defines as sexual harassment but will them look at the company or organisations;
- Code of Conduct
- Workplace behavioural polices
- Employee handbook or similar
- Statement of ethics or acceptable behaviours or similar
- They will them apply this to the behaviour.
The Victim;
The definition of the victim is about how the person felt when subjected to the behaviour;
- In general
- At the time
- After the event
- And how the behaviour affected them.
Advice for employers and HR professionals
- Start with the definition provided by the victim
- Consider ALL the evidence from the complainant, witnesses and the respondent
- Apply the alleged behaviour of the perpetrator to the company policy or Code of Conduct, was there a breach?
- Apply the alleged behaviour of the perpetrator to the law, did the perpetrator engage in unlawful sexual harassment?
- Understand the components of sexual harassment and apply them to the alleged behaviour
Components of sexual harassment. It is:
Deliberate – Where the perpetrator knowingly behaves in a sexually harassing manner towards the victim. In my experience most if not all perpetrators that I have investigated knew what they were doing.
Offensive – Where the person subjected to the actions of the perpetrator is offended by those actions.
Unwanted – Where the actions of the perpetrator are unwanted by the co-worker whether or not the perpetrator intended to sexually harass, or the
co-worker was not actually offended.
Sexual harassment may be deliberate, offensive or unwanted. The sexual harassment can be each of those categories or a combination of one, more or all.
When reviewing a complaint it is also extremely important to consider the sexual harassment continuum (see below)
Sexual harassment can often be seen as being a continuum there the perpetrator increases the sexually harassing behaviour if the victim does not object or report the behaviour.
It’s like “testing the water”.
The continuum starts with low level activity and works upward. In many cases the perpetrator may ignore subtle or non-subtle signs from the victim that the behaviour is offensive or unwanted. Note the continuum is not an exact science.
The continuum in action:
- Non sexual comments or questions
- Sexual comments or questions
- Non sexual touching
- Sexualised touching
- Requests for dates or sex
- Veiled threats
- Intimidation
- Overt threats
- Assault
Is is extremely important to note that no adverse inference or assumptions or determination should be made as to where a person draws the line on the continuum or makes a report. Everyone is different. There are many reasons why reports are not made or are delayed, fear, embarrassment, not knowing how or where to report to name a few.
You should never dismiss a complaint on the basis of a late or delayed report without fully investigation the circumstances. You should never dismiss a complaint on the basis of your personal opinion of when the report was made. I have reinvestigated matters where the initial investigator dismissed a complaint that was not reported until it reached intimidation level because in the opinion of the investigator ‘it couldn’t have been that serious or it would have been reported earlier.”
Help for employers – Sexual Harassment Who decides
Not sure what to do – AWPTI can help. We have a number of training options (click the link for details) – sexual harassment investigation training course –
AWPTI currently offers these courses as part of our Live by Request Training series, this means that we will conduct the training at a time/date to suit you and anyone can book in you don’t have to be part of an organisation with multiple attendees. Training is conducted via Zoom or MS Teams.
In light of the and the Respect@Work: Sexual Harassment National Inquiry Report (2020) and changes to the Fair Work Act it is vitally important that when complaints of sexual harassment are made that employers get it right the first time every time.
FWC sexual harassment ‘stop orders’ – to give workers access to a fast, low cost, informal mechanism to deal with complaints. Changes to the Fair Work Act will enable the FWC to make an order to stop sexual harassment in the workplace, as part of the FWC’s existing anti-bullying jurisdiction. As with a bullying order, the orders are intended to prevent the risk of future harm.
Sexual harassment can be a valid reason for dismissal – the amendments make it clear that sexual harassment can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable. This follows on from recent changes to include sexual harassment in the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 (Cth).
On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was enacted.
For assistance with outsourced investigations or investigation training Australian Workplace Training and Investigation is happy to help – https://awpti.com.au/ or contact us at enquiries@awpti.com.au
AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations
