What is sexual harassment?
Sexual harassment is unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, where that reaction is reasonable in the circumstances.
Sexual harassment can take various forms. It can include unwelcome hugging, kissing or other types of inappropriate physical contact, staring or leering, intrusive questions about your private life or physical appearance, unwanted invitations to go out on dates, requests for sex, or sexually explicit emails, calls, text messages or online interactions.
Such behaviour does not have to be directed specifically at you. Sexual harassment includes behaviour that makes the environment you are working in uncomfortable or threatening in a sexually hostile way, such as sexually offensive pictures or a culture of suggestive comments or jokes.
Workplace sexual harassment can happen during working hours, at work-related activities such as training courses, conferences, trips and work-related social activities. It might come from other workers, your supervisor or manager, or from your customers or clients.
It has become the key goal of decision makers for many organisations and businesses to help in preventing sexual harassment and defend employees from these charges.
Protections under the Fair Work Act
The laws to stop sexual harassment under the Fair Work Act only apply to certain workers in Australia. A worker includes:
- an employee
- a contractor or subcontractor
- an outworker
- an apprentice or a trainee
- an intern
- a student gaining work experience
- some volunteers.
The Fair Work Commission (FWC) is the national workplace relations tribunal that deals with applications to stop sexual harassment at work under the Fair Work Act. Eligible workers who believe they’ve been sexually harassed at work can make these applications from 11 November 2021.
Below is a case study of how not having an adequate sexual harassment policy as a business owner can go terribly wrong and also how not following it or ensuring your employees are educated in it can harm a business.
In the case of Evans v Pasadena Foodland and Crugnale (2019), an Australian supermarket and one of its employees were ordered to pay another employee an amount of $30,000 in compensation simply because the case of sexual harassment that was brought to the owner’s attention was not investigated properly. What’s most important in this case is that the employer was held vicariously liable for the incident because of their negligence in not only investigating the matter but also in ensuring that their sexual harassment policy was clearly understood by their employees.
When the incident was reported to the management by the complaining employee, CCTV footage was reviewed and the employer made a judgement that nothing of concern was noticed. Of course, the accused employee (a chef) insisted that the touching (of another employee in the supermarket) was completely accidental and denied any sexual harassment.
The employer insisted that they had taken all reasonable and relevant steps to prevent sexual harassment in their business by ensuring that:
- They had a workplace policy in place that prevented sexual harassment and provided for reporting sexual harassment
- They had ensured that the employee who was accused of sexual harassment was aware of and understood the policy prior to them being employed
- They correctly and properly investigated the complaint
When finalising judgement on the matter, the judge in the case ruled that the employer had firstly failed to follow their own sexual harassment policy. He also judged that they had failed to properly train their staff with regards to the business’ sexual harassment policy and sexual harassment in general and had not explained properly how a complaint of this matter would be handled. The judge also ruled that the employees investigations were inadequate and tardy in relation to when the incident occurred.
What Should Employers Do?
Hopefully, this case study demonstrates how important it is to create a working environment that is free from sexual harassment, that all staff are treated with respect and dignity, that they provide employees with an effective procedure for complaints and that all complaints are treated with sensitivity, fairness and in a confidential manner. As an employer you need to provide your employees with support and confidentiality in the event of anything like this occurring at your workplace. Putting up examples of relevant sexual harassment cases which are relevant to your specific work environment will assist in promoting awareness.
Tips you as an employer can use:
- Present the sexual harassment policy to all staff at a meeting with everyone present (if you need a policy or an updated policy then please reach out)
- Executives or Senior management should endorse the policy and emphasise that staff should adhere to the policy
- Email copies to employees, put a copy on the intranet and display the policy on notice boards and add to the company manual
- Provide all new staff members with a copy and present it to staff during induction
- Ask all staff to sign a copy of the policy acknowledging they have received and understood it
Here are some more Case Examples of Sexual Harassment
Aleksovski v Australia Asia Aerospace Pty Ltd  FMCA 81
Ms Aleksovski was subjected to repeated forceful requests from a co-worker to spend time alone together ‘at his place’. She was awarded compensation totalling $7,500. Source: https://www.austlii.edu.au/au/cases/cth/FMCA/2002/81.html
Bishop v Takla  FMCA 74
Ms Bishop was subjected to a range of unwanted sexual harassment, including sexual remarks and physical contact; she suffered post-traumatic stress disorder as a result of the harassment. She was awarded compensation totalling $24,386.40. Source: https://www.austlii.edu.au/au/cases/cth/FMCA/2004/74.html
Lee v Smith (No 2)  FMCA 1092
It was found that the Applicant had been subjected to sexual harassment in the form of rape, as well as sexual discrimination and victimisation. She was awarded $392,422.32 in damages. Source: https://www.austlii.edu.au/au/cases/cth/FMCA/2007/1092.html
How Fresh HR Insights Can Help
Sexual harassment can affect your company’s public image. With the waves created on social media in recent months about sexual abuse, this problem has become a very high profile in the media. Fresh HR Insights is aware of the need for companies to now re-evaluate harassment policies and re-introduce training in an attempt to prevent and avoid sexual harassment in any business.
We are able to assist you with renewed and updated harassment policies, helping create awareness in the workplace. A written policy is insufficient on its own and it should be implemented clearly and thoroughly through communication and education of staff. If you are concerned that your current policy is insufficient or would just like to get some advice, please don’t hesitate to contact us.
Related Tag: Business Human Resources