Workplace Sexual Harassment case
Workplace Sexual Harassment case – This article illustrates is something I often encounter in sexual harassment investigations into where the respondent a Seven network journalist claimed that his behaviour was not sexual harassment or that the behavior was not serious misconduct – link to article
This often is a result of the respondent not understanding the definition of sexual harassment & the definition of serious misconduct as it relates to sexual harassment.
Meaning of Sexual Harassment – The Law – Sex Discrimination Act 1984 – Sect 28a
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.
An important element of this definition that must be remembered is the last sentence, the anticipated possibility that the person harassed would be offended, humiliated or intimidated. Therefore it can be argued that intent is irrelevant it is the outcome that matters
In relation to serious misconduct, the Fair Work regulations has included sexual harassment at regulation 1.07,
Fair Work Regulations 2009 – Reg 1.07 Meaning of serious misconduct
(3) For sub regulation (1), conduct that is serious misconduct includes each of the following:
(iv) sexual harassment;
For the definition of sexual harassment under the Regulations, refer to section 28A of the Sex Discrimination Act.
It is vitally important for all employees to fully understand the definitions & under the new positive duty employers must ensure that their employees understand what is sexual harassment, that it is unlawful & what to do if an employee is subjected to or witnesses worplace sexual harassment.
This can be done in 2 ways – 1 have a policy which clearly outlines the points above and 2 have training that supports the policy & is conducted on a regular basis. Recently there have been a number of high profile cases involving workplace sexual harassment, don’t take the risk of your organisation being next.
If you require assistance with training, please contact me, I have a number of program options for employees and managers. The sessions last approximately 60 minutes and cover all of the important points.
The sessions can be provided in person or remotely via Zoom or Teams, I also have video versions – details here
The programs are live by request which means they can be conducted at a time/date to suit you depending on availability & are charged at a flat rate with no limit on attendees.
Please contact me for more details – phil@awpti.com.au or www.awpti.com.au