Published September 2021
In March 2020, the Sex Discrimination Commissioner published a Respect@Work report that implemented a number of recommendations to prevent and report sexual harassment. From this report, six of these recommendations were considered by the Government to create the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth).
Fast forward to August 2021 and the Respect at Work Bill was passed. It aims to recognise and prevent sexual assault, harassment and discrimination in the workplace and classifies sexual harassment as a form of conduct that can be considered a valid reason to dismiss an employee.
The Fair Work Regulations 2009 have also been amended to include sexual harassment in the meaning of ‘serious misconduct’.
WHAT IS SEXUAL HARASSMENT?
The definition of sexual harassment is found in the Sex Discrimination Act 1984, and is where a person:
makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; OR
engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Examples include:
Staring or leering;
‘Chatting up’ a co-worker, visitor or supplier;
Suggestive comments, jokes, names, taunts or inappropriate questions of a sexual nature (for example, about an individuals’ personal life, sexual preferences or body, or saying “hey sexy”);
Making unwanted remarks/requests for dates, favours, intimacy, sex or similar;
Sending unsolicited messages, emails, photos, notes or similar, of a sexual nature;
Physically working within another individuals’ personal space or brushing up against them;
Making unwanted or unsolicited sexual contact of any kind.
The intention of the individual who is making the comment or doing the action is not relevant. It comes down to whether the other person subject to the behaviour has been offended, humiliated or intimidated.
WHAT DOES THIS MEAN FOR BUSINESSES?
Before this change was announced, it was unclear to employers if dismissal was a reasonable option if this type of behaviour was found in the workplace.
The amendments made to the Fair Work Regulations 2009 now make it clear to employers that if someone is found to have committed sexual harassment in the workplace (through the appropriate steps and process), then the conduct falls within the definition of serious misconduct and summary dismissal (dismissal without notice, AKA instant dismissal) can be considered.
It should be noted that this does not mean that sexual harassment will always lead to a summary or instant dismissal. The circumstances should be considered in their entirety before a decision is made.
WHAT SHOULD BUSINESSES DO NOW?
To ensure both businesses and employees are protected, we encourage all businesses to:
Review and update their existing employment contracts, bullying & harassment policies, and other related procedures to ensure they are in line with these new changes.
Talk to the team at Edwards HR about tailoring a company policy and training session for your team.
Take positive steps to eliminate sexual harassment in the workplace. For example, regularly training your employees about acceptable workplace conduct, regularly completing refreshers with your team on your bullying and harassment policies, and informing team members about how to report concerns.
Take appropriate steps to ensure that your employees are protected, such as promptly addressing and/or investigating issues and taking appropriate action where necessary.
