The Sex Discrimination Commissioner’s Respect@Work Report recommended legislative changes to ensure employees can effectively address sexual harassment in the workplace. Some of the Report’s recommendations were implemented in the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Amendment Act), which took effect on 11 September 2021.
The Fair Work Commission (FWC) has handed down several decisions since March 2022 in its expanded jurisdiction, which give guidance on the new legislative.
What is sexual harassment?
Sexual harassment is any unwelcome conduct of a sexual nature to another person, where a reasonable person would expect the possibility that the other person might be offended, humiliated or intimidated. It includes making a statement of a sexual nature to, or in front of, another person.
Sexual harassment can cause serious psychological and physical harm. As such, employers must ensure that it does not occur in order to provide a safe workplace for all employees.
Sexual harassment stop orders
The FWC now has the power to make sexual harassment ‘stop orders’, as part of its existing anti-bullying jurisdiction. Not all workplaces are covered by the legislation, and it is important to seek legal advice if you are considering applying for a sexual harassment ‘stop order’.
The orders are intended to reduce the risk of future harm. Several recent cases have demonstrated that, even where it has been accepted that workplace sexual harassment did occur, the FWC will not make a ‘stop order’ where either the harasser or the victim are no longer employed at the workplace (that is, where there is no risk of future harassment at work).
The sexual harassment must occur at work in order to be covered by the Respect at Work Amendment Act, however in the recent case of Application by Ranmeet Kaur [2022] FWC 487, the definition of ‘at work’ included the work carpark, the manager’s car and a phone call which included ‘work related matters’. It is clear that ‘at work’ can extend to work related interactions outside of the workplace.
Serious Misconduct
In addition, sexual harassment has been included in the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 (Cth). Sexual harassment at work will now expressly constitute a valid reason for dismissing an employee. The FWC can take sexual harassment at work into consideration in deciding whether a dismissal was harsh, unjust or unreasonable in any unfair dismissal proceedings brought by a harasser who has been dismissed.
Key Takeaways
Employers have an obligation to provide a safe workplace for all employees. This includes ensuring that sexual harassment does not occur at work or in work related interactions outside the workplace. Employers should be proactive in developing clear policies and workplace culture, and in treating all employee complaints seriously. Sexual harassment can constitute a valid reason for dismissing an employee and a defence against an unfair dismissal claim. The FWC can make a ‘stop order’ in respect to sexual harassment if there is a risk that the harassment will continue.
