People Matters, November 2020

AMIC has recently received calls from members seeking advice in relation to sexual harassment that had occurred in their workplaces.

We are proud to say that both owners took the complaint seriously and responded quickly and appropriately.

Sexual harassment can occur with the opposite or the same sex. It may be instigated by either gender but overall, the majority of perpetrators are male.

The legal test for sexual harassment in the federal Sex Discrimination Act has three essential elements:

 

  1. The Behaviour is Unwelcome.

This means how the conduct in question was perceived and experienced by the recipient rather than the intention behind it. It might not be repeated or continuous unwelcome behaviour, it may be a one-off incident.

A person does not need to verbalise displeasure for the conduct to be unwelcome. As ways of expressing that the behaviour is unwelcome are:

  • The victim moves to another work area,
  • The victim may turn away from the person harassing them,
  • The victim may start working beside a colleague they trust,
  • They may mention the incidents in a guarded manner,
  • They may ask to not work with the person harassing them,
  • You may notice an increase in leave,
  • You may notice a change in their personality such as they become withdrawn, timid, and so on, or
  • They may simply resign without explanation.
  1. It must be of a sexual nature
  • Staring, leering or unwelcome touching
  • Suggestive comments or jokes
  • Unwanted invitations to go out on dates or requests for sex
  • Intrusive questions about a person’s private life or body
  • Unnecessary familiarity, such as deliberately brushing up against a person
  • Emailing pornography or rude jokes
  • Displaying images of a sexual nature around the workplace,
  • Communicating content of a sexual nature through social media or text messages.
  1. It must be such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated.

The reasonableness part of the legal test for sexual harassment requires consideration of the following question: would a hypothetical “reasonable person” feel that the complainant’s reaction to the behaviour was understandable in the circumstances?

Sexual Harassment and Criminal conduct

Although the Sex Discrimination Act makes sexual harassment a civil not criminal offence, some types of harassment may also be offences under the criminal law.

These include:

  • Physical molestation or assault,
  • Indecent exposure,
  • Sexual assault,
  • Stalking,
  • Obscene communications such as telephone calls and letters.

If an employee sees any act of harassment, they should where possible intervene to precent the incident continuing. Whether they can do so depends on the situation. What they must do though is report the harassment to the owner of the business or a person in charge so the issue may be dealt with immediately.

If you have any questions on sexual harassment or need advice on how to deal with an issue of sexual harassment please call Steve Caslick on 02 9086 2212 or [email protected]

You may also want to visit the AMIC members portal and listen to the webinar on Conduct and Performance for advice on how to conduct an investigation.