Sexual Harassment in the workplace – What employers need to know

Employment Law: 04 October 2024

Author: Bianca Mazzarella - Our People

The last few months has seen a spike in queries relating to sexual harassment in the workplace, illustrating that despite numerous #MeToo campaigns many employees are still not able to go to work without having to deal with sexually charged “jokes”, unwanted touching or worse…

Duty on Employers

All businesses have a positive duty to eliminate (as far as reasonably practicable) sexual harassment in the workplace.

Following the sexual harassment provisions introduced in March 2023, the protections extend to sexual harassment “in connection with work”, which is wider than the previous requirement of the sexual harassment having to occur “at work”. This includes conduct by a third party (i.e customer/client) to an employee if it occurs in connection with work.

If sexual harassment occurs in connection with work, employers can also be held to be vicariously liable for such conduct if it can be shown that they did not take all reasonable steps to prevent sexual harassment in the workplace.

Tips for employers to prevent sexual harassment in the workplace and to avoid vicarious liability

• Train all employees in relation to what does and does not constitute sexual harassment in connection with work and how to handle such unacceptable behaviour;
• Have clear and accessible workplace policies which contain a separate section in relation to sexual harassment and reporting processes;
• Ensure where sexual harassment is reported, independent workplace investigations are conducted and appropriate action is taken which may include providing an employee with a warning or termination of employment; and
• Senior management should address sexual harassment and promotion of positive workplace culture as a regular item for discussion at meetings.

Final Comments

The Fair Work Commission can make orders to stop sexual harassment in the workplace and to conciliate or (if consented to by both parties) arbitrate such a dispute. If arbitration is not consented to the applicant may proceed to Court, whereby the Court is empowered to make awards and orders requiring the respondent to redress any loss or damage suffered by the applicant. Therefore, it is important to ensure that businesses have adopted all measures to address sexual harassment in a preemptive and proactive manner.

Bianca Mazzarella is Special Counsel at Aitken Partners with a focus on employment law who is experienced in conducting workplace investigations and can be contacted atbmazzarella@aitken.com.au or 8600 6093 in relation to any employment or workplace queries.