Managing Sexual Harassment in the Workplace

In 2021, the spotlight will remain on sexual harassment and the need
to eliminate it from the workplace. Employers play a vital role in
eradicating sexual harassment at work.
What Is Sexual Harassment?
The Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act
1977 (NSW) prohibit sexual harassment in the following areas of
public life.
• In the course of employment;
• In the course of obtaining goods and services, for example, from
shops, medical services, government services, etc;
• In the course of obtaining an education in public school, college
or university;
• In the course of renting accommodation of any kind;
• In the course of buying or selling real estate;
• In the course of participating in sports; and
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• In the course of administration of New South Wales laws and
What Constitutes Sexual Harassment?
Sexual harassment is when a person makes an unwanted sexual
advance or an unwelcome request for sexual favours or any other
unwelcome conduct of a sexual nature to another person in
circumstances where a reasonable person in the circumstances would
have anticipated the possibility that the second person would feel
offended, humiliated or intimated.
It is important to note that a behaviour can constitute harassment in
circumstances where the harasser may not believe the conduct to be
offensive, humiliating or intimidating. Sexual harassment is any
conduct which a reasonable person in the circumstances of the
recipient would anticipate being offensive, humiliating or
There are various behaviours that can constitute sexual harassment,
including but not limited to:
• Staring or leering in a sexual manner;
• Making sexually suggestive comments or jokes;
• Inappropriate advances of an employee on social networking
• Intrusive questions about a person’s private life or physical
• Sexual or physical contact, including stroking, touching, slapping,
kissing, hugging, massaging, etc;
• Disseminating sexual materials, e.g., placing a sexual photo on a
noticeboard or via email;
• Repeated unwanted sexual invitations;
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• Initiating ceremonies involving unwelcome sexually related
behaviours; and
• Sexual assault or indecent assault (also crimes under the Crimes
Act 1900 (NSW)).
There has been a significant increase in the damages awarded for
sexual harassment reflecting the change in community standards and
expectations. The landmark 2014 decision in Richardson v Oracle
Corporation Australia Plt Ltd [2014], where the plaintiff was awarded
$130,000 in damages for sexual harassment, was significant for
rejecting the notion of a ‘permissible range’ of damages.
A sexual harassment complaint may be made against individuals and
their employers. Employers are not automatically liable for their
employees’ sexual harassment conduct. However, an employer must
show they have taken all reasonable steps to minimise the risk of
sexual harassment in the workplace to avoid being held vicariously
liable for an employee’s conduct.
What Must Employers Do
Policies are important. “The significance of effective policies and
training includes that they deter unwanted discrimination and sexual
harassment”: Von Schoeler v Allen Taylor and Company Ltd t/a Boral
Timber (No 2) [2020] FCAFC 13. But policies are only the start of all
reasonable steps. Relying on the mere existence of a policy will not be
good enough: Menere v Poolrite Equipment Pty Ltd and Anor (2012)
QCAT 505.
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Training is the next obvious step. Employers need an education
program: STU v JKL (Qld) Pty Ltd and Ors [2017] QCAT 505. As
identified by the Full Court in Von Schoeler, a relevant factor in
determining whether reasonable steps were taken is the conformity
of training and policies with the Australian Human Rights Commission
guidelines on Effectively Preventing and Responding To Sexual
Harassment. Importantly, policy and training are just the beginning.
Past cases have given us good indicators on what are reasonable steps.
These cases and their lessons include:
• The mere presence of management in the workplace is not itself
a disincentive to misconduct: Gilroy v Angelo [2000] FCA 1775,
but appropriate supervision is an important step to ensure no
inappropriate behaviour and culture.
• The policy should also tell employees of personal consequences
of their conduct, including criminal: Richardson v Oracle
Corporation Australia Pty Limited [2013] FCA 102, as a means to
deter inappropriate behaviours.
• Education and training should be broader in scope and
encompass training employees on how to manage an
uncomfortable situation: Menere v Poolrite Equipment Pty Ltd.
[2012] QCAT 252, thereby giving them the tools to protect their
safety and to speak up.
• ‘Tool box talk’ sessions, reminders and distribution of
information leaflets are “all the right things” to do: Murugesu v
Australian Postal Corporation & Anor [2015] FCCA 2852 and
Howard v Geradin Pty Ltd [2004] VCAT 1518, as merely having
annual training may not impart the seriousness of the topic.
Policies should be “periodically reinforced”: Von Schoeler.
• Any policy needs to be supported by an effective complaint
management system, with a real and reasonable opportunity for
workers to raise complaints: Gilroy v Angelov [2000] FCA1775.
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• Employers need to actively engage with any complaint received
and not ignore or treat the complaint with scepticism: Murugesu
v Australian Postal Corporation [2015] FCCA 2852; Webb v State
of Queensland [2006] QADT 8. How employers respond to
complaints impacts on the confidence of the workforce to report
inappropriate behaviours.
• Employers need to act on informal reports of offending
behaviour (including what is anonymous or confidential): Webb
v State of Queensland [2006] QADT 8, as this demonstrates it
takes the eradication of sexual harassment seriously.
• Employers must take risk management actions immediately
once aware of a complaint: Smyth V Northern Territory Treasury
& Anor [2016] NTADComm 1, as ensuring worker safety is
Keep A Record
It is important to keep a record of sexual harassment particularly when
it occurs in the workplace, including, the date the incident occurred,
who the harasser was, what words or actions were said/undertaken
and the names and details of any persons who witnessed the conduct.
What If The Organisation Ignores My Complaint?
If sexual harassment occurs and you have reported it to the relevant
organisation or authority and your report is not addressed to your
satisfaction, you may make a complaint to the Anti-Discrimination
Board of NSW. The complaint must be in writing and made within 12
months of the conduct occurring.
Alternatively, you may make a complaint to the Australian Human
Rights Commission (AHRC). You may only make a complaint to either
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the state authority or the federal authority, not both. A complaint to
the AHRC must be made in writing.
It is always a good idea to obtain legal advice to ascertain whether a
complaint at the state or federal level is more appropriate.
Practical Steps
Recent events have helped educate the public regarding sexual
harassment and emboldened people to act if they have been
subjected to sexual harassment.
Here are some steps to address the issue:
Educate yourself and your employees about what constitutes sexual
harassment and the legislation that makes it unlawful to sexually
harass anyone in the workplace. The AHRC and the AntiDiscrimination Board of NSW’s websites provide excellent tools and
materials to assist.
Implement a system to induct new employees and continuously reeducate existing employees about what constitutes sexual
harassment, and that it is unlawful.
Act when a complaint of sexual harassment is made. Investigate the
complaint, and support the employee who has made the complaint
and the employee who the complaint is made about.
Ensure that any investigation is impartial and fair, and provides
procedural fairness to everyone involved.
RN LEGAL has assisted many clients with employment-related
matters. RN LEGAL has the experience, expertise, and resources to
help you with your employment-related matter.