Workplace Sexual Harassment

What is sexual harassment?

Sexual harassment in the workplace occurs when a person makes an unwelcome sexual advance or an unwelcome request for sexual favours to another person or engages in any other unwelcome conduct of a sexual nature in relation to another person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would feel offended, humiliated or intimidated.

Conduct of a sexual nature includes subjecting a person to any act of physical intimacy, making any remark or statement with sexual connotations to a person orally or in writing or about a person in their presence or making any gesture, action or comment of a sexual nature. For example, sexually explicit emails, phone calls or text messages from a manager to an employee.

Sexual harassment at work is against the law and can also constitute a form of workplace bullying and unlawful discrimination. Your employer is liable for sexual harassment committed by an employee, a prospective employee, an agent of the business or a third party unless they can prove all reasonable steps were taken to prevent sexual harassment from occurring.

Employers have a positive duty to take reasonable measures to eliminate, as far as possible, unlawful sex discrimination and harassment in the workplace. Essentially, all employers must be proactive in eliminating or managing hazards and risks to an employee, including sexual harassment. This may include introducing a sexual harassment policy or offering training to employees.

What can I do about sexual harassment at work?

Unlike workplace bullying claims, where repeated incidents are required, a workplace sexual harassment claim can be made following a one-off incident.

There are several ways to make a claim for sexual harassment in Australia.

An employee often has the option of making a claim under Victorian anti-discrimination legislation to the Victorian Equal Opportunity and Human Rights Commission or, alternatively, under Commonwealth legislation to the Australian Human Rights Commission.

From March 2023, the Fair Work Commission can also issue stop sexual harassment orders against perpetrators of workplace sexual harassment and award compensation to victims. Stop sexual harassment orders can only be made by employees still connected to the workplace. For those who are no longer at the workplace in question, you may be able to ask the Fair Work Commission to deal with the dispute or make a general protections application.

The best way to attend to sexual harassment is to address the situation early. Keep detailed notes, be aware of your workplace policies and procedures that deal with occupational health and safety and harassment and make a complaint, preferably in writing. Employees who make a complaint about an employment issue are protected against adverse action under the Fair Work Act 2009.

The lawyers at Jewell Hancock Employment Lawyers have successfully made dozens of sexual harassment claims over the years. Given the competing jurisdictions, it is always best to obtain sound legal advice before making any claim. Unfortunately, it is not always possible to discontinue a claim made in the wrong jurisdiction and file a new claim in the correct one. For further information about the most appropriate claim to make, please get in touch.