In this Employment Update we consider the National guidance material on Preventing Workplace Sexual Harassment (‘the Guide’) recently released by Safe Work Australia.  We will also reflect on the Australian Human Rights Commission’s (‘AHRC’) most recent survey on sexual harassment in Australia, Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces (the 2018 National Survey).  To complete this Update on sexual harassment we will provide a case study of an unusual complaint of sexual harassment in the workplace.

Sexual harassment in the workplace has serious implications for employers and for the welfare of workers. The Guide is based on Model Work Health and Safety laws and provides useful information for employers on how to prevent sexual harassment in the workplace and how to respond to reports of workplace sexual harassment.

Who is affected by sexual harassment?

The 2018 National Survey highlighted that 72% of Australians have been sexually harassed at some point in their life.  In the 12 months preceding the 2018 survey, 23% of women and 16% of men had experienced sexual harassment at work and in the preceding five years, 39% of women and 26% of men had experienced workplace sexual harassment.

Interestingly, the 2018 National Survey also revealed that 40% of workplace sexual harassment incidents were witnessed, and in 69% witnesses did not intervene.

What are sexual harassment laws?

Sexual harassment is covered by the Sex Discrimination Act 1984 (Cth), as well as state and territory anti-discrimination laws.  The Fair Work Act 2009 (Cth) also provides protections against workplace discrimination and bullying.  Employer duties, obligations and responsibilities concerning sexual harassment stem from work, health and safety laws that are generally based on the Model Work Health and Safety Act.

What is sexual harassment?

The Guide provides a national definition of ‘sexual harassment’:

“Sexual harassment is any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated”.

It should be noted that this definition may differ in wording but is generally consistent in meaning with the definition of ‘sexual harassment’ in the various state and territory anti-discrimination legislation.

Importantly, sexual harassment is not always a repeated or continuous act – it can be a one-off incident – unlike workplace bullying, which is requires repeated behaviour.

Where can sexual harassment happen?

The Guide provides an important reminder that sexual harassment can occur in a variety of settings such as:

• At the usual workplace
• Remote workplace (including working from home)
• Work undertaken at a different location (such as at a client’s home)
• Work-related activities (such as conferences, training, work trips, work-related corporate events or hosting a work-related social event – Christmas party)
• By phone, email or online

Who can perpetrate sexual harassment?

The Guide identifies that sexual harassment perpetrators may be workers or third-parties to the workplace.   The range of possible perpetrators include:

• Co-workers
• Supervisors
• Managers
• Board members
• Clients
• Customers
• Patients
• Subcontractors
• Members of the public

The Guide uses the term ‘third-party sexual harassment’ when sexual harassment contemplated in the context of a non-worker.  For example, a delivery person visiting the workplace making inappropriate sexual comments to the receptionist.

Safe Work Australia acknowledges that third-party sexual harassment may be difficult to control but points out that steps should be taken to eliminate or minimise the risks so far as is reasonably practicable.

What does sexual harassment look like?

Sexual harassment is not always obvious, repetitive or continuous, and unlike bullying, sexual harassment may be a one-off incident.

The Guide sets out examples of what sexual harassment may look like, which includes:

• unwelcome touching, hugging, cornering or kissing
• inappropriate staring or leering
• suggestive comments or jokes
• using suggestive or sexualised nicknames for co-workers
• sexually explicit pictures, posters or gifts
• circulating sexually explicit material
• persistent unwanted invitations to go out on dates
• requests or pressure for sex
• intrusive questions or comments about a person’s private life or body
• unnecessary familiarity, such as deliberately brushing up against a person
• insults or taunts based on sex
• sexual gestures or indecent exposure
• following, watching or loitering nearby another person
• sexually explicit or indecent physical contact
• sexually explicit or indecent emails, phone calls, text messages or online interactions
• repeated or inappropriate advances online
• threatening to share intimate images or film without consent, and
• actual or attempted rape or sexual assault

How to manage the risks of sexual harassment?

The Guide focuses on the need to do whatever is reasonably practicable to eliminate or minimise the risk of sexual harassment in the workplace.   Most employers will already be familiar with the following risk management process suggested by Safe Work Australia:

• identifying hazards (includes useful tips about how to gather information)
• assessing the associated risks
• implementing control measures to eliminate or minimise risks, and
• regularly review the control measures (to ensure measures remain effective).

Eliminating or minimising third-party sexual harassment

The Guide provides useful insight into ways to eliminate or minimise the risk of third-party sexual harassment by:

• examining the existing control measures in your health and safety management system to prevent sexual harassment and considering how to introduce improvements
• providing a safe physical and online work environment
• providing safe work systems and procedures for your workers
• implementing workplace behaviour policies and practices that promote respectful and inclusive workplace culture from all levels of worker
• putting measures in place to prevent third-party sexual harassment from customers, clients and members of the public
• addressing unwanted or offensive behaviour early
• encouraging workers to report sexual harassment and providing safe, confidential and clear avenues to do so, including anonymous reporting
• responding to reports of sexual harassment in a way that focuses on supporting the worker and is sensitive to any trauma to minimise further risk to health and safety
• applying appropriate consequences for sexual harassment misconduct, such disciplinary action consistent with other workplace misconduct, and accountability for managers to create a safe and respectful workplace free from sexual harassment
• using information, instruction, training and supervision to support the overall prevention strategy
• using recruitment and promotion strategies that create a diverse workforce, and
• monitoring and reviewing the effectiveness of control measures.

The Guide also discusses how you have to weigh up the circumstances to determine what are the best measures to put in place to eliminate / minimise the risk of sexual harassment.  These include considering:

• the likelihood of workers and other people at the workplace being exposed to sexual harassment
• the degree of harm that might result e.g. sexual harassment can result in serious psychological injuries or involve physical assault
• what you know about how to eliminate or minimise the risk of sexual harassment e.g. providing private and secure change rooms
• availability and suitability of ways to eliminate or minimise the risk, and
• costs associated with the available ways of eliminating or minimising the risk.

Workplace policies and procedures

The Guide reminds employers of the important of workplace policies which can assist in setting “clear expectations about behaviours at the workplace and during work-related activities”.  Policies can also be used as an educational tool for workers, supervisors and managers.

The Guide recommends that workplace policies should provide workers with “a range of accessible and user-friendly options to address unwanted or offensive behaviour early”.   They should also outline the process of reporting; how a complaint may be addressed and when an external (independent third-party) may be required to investigate a complaint.

Workplace training

The Guide reminds employers of the obligation to provide workers with the “necessary information, instruction, training and supervision to support the overall prevention of workplace sexual harassment”.  Workplace training may include methods in dealing with difficult co-workers, customers or clients.

Importantly, the Guide recommends that training should provide workers, supervisors and managers with how to respond if they experience or witness workplace sexual harassment which is referred to as ‘bystander-intervention training’.

Case study – workplace sexual harassment

The case Green v State of Queensland, Brooker and Keating (‘the Green case’) is a perfect example of how sexual harassment may not be readily detected; cause significant injury to a worker and stem from a culture of workplace jokes, banter and pranks.

In this case, a school cleaner was subjected to a workplace prank by the school’s groundsman and the cleaning supervisor.  These two employees planned and prepared the staff room to appear as though it was the aftermath of a sex romp.  The sex romp was then attributed to two employees rumoured to be having an affair.

The cleaning supervisor in preparation of the scene purchased some ladies’ underwear and brought in some empty wine bottles.  In addition to purchasing a packet of condoms, the groundsman:

… took a mattress, a pillow and bedclothes from the sick room and placed them on the kitchenette floor. He squirted some cream into the two condoms which he had purchased. He placed one on the ground in the kitchenette area of the room near the mattress and one on a table. He placed the brassiere on the table and the ladies boxer shorts over the back of a chair. He placed a number of empty beer cans and empty beer and wine bottles around. He discharged a number of party poppers around and dropped some of the contents of a packet of chips on the floor.

The pranksters told the cleaner two days after the incident, when there was growing concern that the cleaner was going to confront the two employees’ allegedly having an affair about the incident.  The disclosure of the prank, transformed the cleaner’s mild concern about the events into anger and humiliation.  The cleaner’s anger and humiliation deepened when he realised the “fact of the prank upon him had become generally known amongst the school staff and even by staff at the local shop”.

The school and the prankster co-workers where dismissive of the cleaner’s reaction, claiming that his reaction was ‘feigned’ and ‘grossly exaggerated’ the symptoms arising from the prank.  The Queensland Civil and Administrative Tribunal (‘QCAT’) however found in favour of the cleaner’s treating psychologist, that ultimately the symptoms were genuine.

QCAT determined that the school was vicariously liable for the actions of the groundsman and cleaning supervisor and ordered total compensation of $156,051.   Due to the groundsman’s additional acts of victimisation against the cleaner after the cleaner made a complaint of sexual harassment, full judgment was also awarded against the groundsman.  Judgment award against the cleaning supervisor on the other hand was reduced by 50% because the supervisor’s acts were limited to the ‘sex romp’ prank.

Employer’s should take note of the Green case as a complaint was made for psychiatric injury as a result of sexual harassment under the Anti-Discrimination Act 1991 (Qld), rather than a claim under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).  The result being, an award of compensation inclusive of non-economic loss.

The Green case is a reminder to employers about the need to properly educate all workers and the risks associated with a culture of workplace pranks.  Workplace policies are an essential means to communicate expected standards of behaviour in the workplace.

The following policies are important in preventing and managing workplace sexual harassment:

• Workplace Health and Safety Policy
• Workplace Bullying Policy
• Anti-Discrimination and Harassment Policy (including sexual harassment)
• Grievance Handling Procedure

Aitken Legal recommends that employers ensure that reasonable steps such as adequate workplace policies and training in relation to those policies, have been taken to prevent and manage workplace sexual harassment.  In the event a complaint of sexual harassment is made, employers should also consider whether it is appropriate to engage an independent investigator to investigate the complaint.

Contact one of Aitken Legal’s experienced employment lawyers if you require a workplace policy; assistance with training or require an independent investigation of a workplace complaint.