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Why is sexual harassment in the workplace a huge problem?

Every employee in Australia should be able to go to work and be treated with respect and dignity. If you an employer and don’t provide a safe work environment that is free from sexual harassment you could be fined up to $66,000 and be liable for damages. The mental health impacts of sexual harassment on workers can be significant, and you could be responsible for loss of income, medical expenses and pain and suffering caused.

What Sexual Harassment? 

Sexual harassment is unwelcome conduct of a sexual nature of which a reasonable person would deem the person being harassed would be offended, humiliated, or intimidated as a result. 

What conduct is sexual harassment? 

Sexual Harassment includes: 

  • Inappropriate staring or loitering. 
  • Unwelcome touching. 
  • Suggestive comments, jokes, insults, or taunts based on sex or sexual gestures. 
  • Using suggestive or sexualised nicknames for another. 
  • Persistent unwanted invitations to go out on dates. 
  • Intrusive questions or comments about a person’s private life or body. 
  • Displaying material of a sexual nature in the workplace. 
  • Communicating sexually explicit material in person or through phone calls, online interaction, email, social media, or text messages. 

The intention of the alleged harasser is not considered as to whether the conduct constitutes harassment. 

What is Sexual Harassment in the workplace?

Sexual harassment in the workplace occurs within your normal work environment. 

Is Sexual Harassment in the workplace a serious problem?

Yes. An employer can be fined up to $66,000 and could also be liable for the actions of their employees, even in instances that occur outside the workplace, if there is a causal link between the employer and the harassment. 

Who is responsible for sexual harassment?

The person who sexually harasses another individual is primarily responsible. However, in most cases, the employer will also be liable under the concept of vicarious liability. To limit their liability, employers will need to show they took all reasonable steps to prevent the harassment from occurring. Reasonable steps could be developing strong sexual harassment policies, regular workplace training, detailed workplace investigations following allegations of harassment and dedicated staff available to hear complaints. To be effective, the policies must be implemented and followed up with ongoing training, communication, and reinforcement. The team of experienced employment lawyers at Fourtree Lawyers are ready to help you with all these policies and processes so you can rest assured you and your staff are aware of important Work Health and Safety legislation and requirements with respect to sexual harassment.   

Who can make a workplace sexual harassment claim? 

All workers (employees, contractors, work experience students and volunteers), future workers, prospective employees or any person conducting a business or undertaking can make a sexual harassment claim against your business. 

A claim can be made for workplace sexual harassment if someone in the workplace has acted in a sexually inappropriate way towards another member of staff. A claim may be made if this is a one-off incident and does not need to be a consistent issue for the claim to be made.

How can sexual harassment in the workplace be resolved? 

Claims for sexual harassment may be made to either the Australian Human Rights Commission (AHRC) or the Fair Work Commission (FWC). Complaints to the AHRC will be investigated, and the parties can participate in the conciliation process. If the matter cannot be resolved, you can take the matter to a Federal Court. 

Following the amendments to the Fair Work Act 2009, the FWC now has the jurisdiction to arbitrate claims for sexual harassment. The advantage of claims commenced in the FWC is that employers are required to respond to the claim within seven days, and the matter will then be set down for conciliation. The FWC will deal with the matter more efficiently than the AHRC, as the process will mirror the existing general protections process. The FWC has the power to implement a stop sexual harassment order, compensation for loss of wages or an order for a person to complete an action that is reasonable to remedy any loss or damage suffered. 

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Why do employers have to be concerned about Sexual Harassment in their Workplace?

Employers have a positive duty under the Sex Discrimination Act 1984 and Work Health and Safety Act 2011 to create a safe workplace for all employees by eliminating or minimising the risks to health and safety, including workplace sexual harassment. This imposes a legal obligation for employers to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work.

How can I stop my employees from engaging in sexual harassment in my workplace?

Employers can assist in preventing instances of workplace sexual harassment through:

  • Creating a safe physical and online working environment,
  • Provide regular information, instruction, training, and support about the importance of preventing and addressing sexual harassment in the workplace,
  • Addressing unwanted or offensive behaviour as soon as it arises, and
  • Encouraging employees to report all instances of sexual harassment and ensure there is an effective complaints procedure.

What are the penalties for allowing sexual harassment in the workplace?

The maximum penalty for businesses that fail to take reasonable steps to prevent sexual harassment in the workplace is $66,000 and for an individual it is $132,000.

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What can I do if I am sexually harassed at work?

Under the Sex Discrimination Act 1984, your employers are required by federal legislation to create a safe workplace for their employees, including incidents concerning workplace sexual harassment. 

If you have experienced an issue of workplace sexual harassment, you may lodge a complaint with your workplace, by applying to the FWC or AHRC.

The team at Fourtree Lawyers understands this can be a confronting time when assistance is required to get through this arduous process. Our team at Fourtree Lawyers have extensive experience in dealing with claims of sexual harassment and would be more than happy to assist with filing applications in the FWC or AHRC on your behalf. 

Please contact our office on 1300 529 444 to discuss your matter further with one of our lawyers. 

We are here to help

Our solicitors specialise in Employment Law and represent clients throughout the Hunter, Newcastle, Sydney and across the Central Coast. We have the experience to guide you through often complex workplace issues from beginning to end to ensure you get you the best possible outcome.

If you have a workplace issue or dispute, contact one of our employment law specialists on 1300 529 444 or submit a contact form to arrange a case assessment with one of our solicitors today.




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