Sexual harassment in the workplace

by | Aug 3, 2020 | Blog

In the wake of a recent inquiry into the actions of former High Court Justice Dyson Heydon, it is important for employees and employers to consider the prevalence and impact of sexual harassment in the workplace. The Australian Human Rights Commission, in their recent inquiry “Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces” (“the Inquiry”) published in March 2020 stated that:

Workplace sexual harassment is prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces. Australians, across the country, are suffering the financial, social, emotional, physical, and psychological harm associated with sexual harassment. This is particularly so for women.

This behaviour also represents a very real financial impost to the economy through lost productivity, staff turnover and other associated impacts.[1]

Sex Discrimination Commissioner and Australian Human Rights Commissioner Kate Jenkins stated that almost two in five women (39%) and just over one in four men have experienced sexual harassment in the workplace in the past five years. It is also noted that Aboriginal and Torres Strait Islander people were more likely to have experienced workplace sexual harassment than people who are non-Indigenous (53% and 32% respectively).[2]

When considering the legal side of this area, sexual harassment is illegal. This is noted in the Sex Discrimination Act 1984 (Cth) (“Sex Discrimination Act”) and the Anti-Discrimination Act 1991 (Qld). In understanding what sexual harassment is, under the Sex Discrimination Act at section 28A, sexual harassment can simply be defined as:

  • any unwelcome sexual advance;
  • unwelcome request for sexual favours; or
  • other unwelcome conduct of a sexual nature in relation to the person harassed[3]

If a reasonable person, having regard to the circumstances, would have foreseen the possibility of the harassed person feeling offended, humiliated or intimidated, then they are in breach of the Sex Discrimination Act.

In preventing sexual harassment, employers have a duty under the Work Health and Safety Act 2011 (Qld) (“WHS Act”)to provide a safe workplace for their employees. This includes providing a workplace that is free from sexual harassment. Employees are also not excepted from this, as the WHS Act also places a duty on an employee that their acts or omissions do not adversely affect the health and safety of other persons.[4]

In order to provide a safe workplace and mitigate any instances of sexual harassment, there are a number of things that can be implemented by an employer. Firstly, an employer must consider preventative measures such as training, policies and procedures and a functional complaints process. It is also important to have appropriate remedial action should sexual harassment occur. It is imperative that business have an effective model in place to prevent losses to the business, especially if those businesses are located in remote areas.[5] If the model in place is not sufficient, a business may be found vicariously liable for their employee’s acts or omissions.[6]

If this article has raised any concerns for you or your organisation please do not hesitate to contact either John Hayward or Kate Smith on (07) 4046 1124, for advice specific to your circumstances. 

This article has been prepared with the assistance of Ruby Hedrick, law graduate. 

[1] Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, March 2020) 15.

[2] Ibid 3.

[3] Ibid 17.

[4] Work Health and Safety Act 2011 (Qld).

[5] Shiels v James and Lipman Pty Ltd [2000] FWCA 2.

[6] Coyne v P&O Ports [2000] VCAT 657.

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