Earlier in June, the Australian Human Rights Commission (AHRC) announced it would be conducting a 12-month investigation into sexual harassment in the workplace.

The Issue

The AHRC defines sexual harassment as any unwelcome conduct of a sexual nature that a reasonable person would anticipate to be offensive, humiliating or intimidating. Examples of sexual harassment include sexually suggestive comments or jokes, intrusive questions, unwelcome physical contact and sexually explicit communication via phone, text, email or social media.

The Law

In addition to the potentially severe emotional and financial impact it can have on its victims, sexual harassment is explicitly outlawed under the Sex Discrimination Act 1984. Given the potential risk to the health and safety of those who encounter sexual harassment at work, there may also be legal implications under the applicable WHS (OHS). If, as a result of making a sexual harassment claim that same employee was treated adversely, they could also potentially make a claim for Adverse Action under the Fair Work Act 2009.

Preventative measures

1) Have a clear workplace policy on sexual harassment: This policy should define sexual harassment, outline the process involved once a complaint is made, and notify workers of the consequences of breaching the policy. The PIAA HR Advisory Service has sample policies available for members.

2) Train all staff on this policy: A policy is only useful if people know it exists. Once the policy is developed, hold a training session with all staff to outline the key components of the policy.

3) Review your workplace culture: Sexual harassment is only able to fester and thrive when culture allows it. Directors, managers and senior staff have a responsibility to lead by example in ensuring sexual harassment has no place in their workplace.

Responding to an allegation of sexual harassment

If an employee makes a sexual harassment complaint it must be addressed immediately and investigated thoroughly. If you feel as though you do not have the capacity or resources to conduct the investigation yourself, contact the PIAA HR Advisory Service.

Otherwise, an investigation should resemble the following:

• Interview the complainant.
• Interview the accused.
• Interview all key witnesses.
• Mediate a meeting between the complainant and the accused if such a meeting would not be too traumatic or sensitive.
• Make an objective decision. The final decision must be based on facts, not personal attitudes or relationships. Weigh up the evidence. Objectivity is essential.

If the allegations are substantiated the employer will have to consider what action to take to appropriately address the misconduct, this may include termination of the accused’s employment. In some cases you may need to seek legal advice if serious disciplinary action such as termination is warranted or if an employee threatens legal action.

Regardless of whether the incident of harassment is reported by the victim or a witness to the incident, it needs to be treated as serious and appropriately addressed by the employer.

For more information on Sexual Harassment contact the PIAA HR Advisory Service on 1800 835 167 or email [email protected]