Sexual Harassment disputes in the Commission and the new laws

As per our previous legal alerts on 13 December 2022 and 30 March 2023, the new laws with respect to sexual harassment are now in place.

Recent disputes in the Fair Work Commission (the Commission) have tested the new provisions in the Fair Work Act 2009 (Cth) (FW Act) that prohibit sexual harassment in connection with work. We provide a summary of these disputes below.

Lindsay Swift v Highland Pine Products Pty Ltd [2023] FWC 1997 (10 August 2023)

A former employee lodged an unfair dismissal claim in the Commission following the termination of his employment for serious misconduct. The nature of the alleged misconduct was sexual harassment and a failure to communicate respectfully and appropriately with work colleagues. Ultimately, the Commission upheld the dismissal but held that the employer should have done more to prevent sexual harassment in the workplace.

Background

The employee was employed as an electrician. During the course of his employment, he allegedly engaged in sexual harassment behaviour over a period of time towards other employees which included, making sexual jokes and comments, showing female employees inappropriate photos of a sexual nature, telling other employees about his sex life, regularly swearing and yelling in the workplace, and acting in an intimidating behaviour.

The employee admitted to some of the allegations but argued that the comments he made were reciprocated and conventional conversations in the workplace. He was sacked for serious misconduct.

Decision

The Commission held that the employee did engage in conduct of a sexual nature. The Commission noted that the witnesses confirmed they were uncomfortable with the way the employee interacted with them, including the way he looked at them. The conduct was ‘unwelcome,’ such that a ‘reasonable person would have anticipated the possibility that each of these employees would be offended, humiliated, or intimidated.’

The employee argued that employees swearing and yelling in the workplace was common. The Commission held that it is irrelevant to the issue of sexual harassment and emphasised that sexual harassment conduct may be sexual in nature even if the person engaging in the conduct has no sexual interest in the person towards whom it is directed.

The Commission determined that the dismissal was not unfair, unjust or unreasonable. The employee’s conduct occurred on an ongoing basis over a period of years and to consider this amounted to consensual conduct lacked insight – employees have a reasonable expectation that they will be safe.

Even though the employer had a policy which required employees to report misconduct, the workplace culture did not encourage employees to report inappropriate behaviour. Accordingly, the Commission expressed observations to the effect that the employer would need to do more to meet its duty to prevent sexual harassment in the workplace to meet its legal obligations under the relevant legislation. This included providing a training for managers and employees and the notion that only ‘formal’ complaints could be acted on in relation to sexual harassment.

Application by AB [2023] FWC 2183 (30 August 2023)

A stop sexual harassment order was recently issued by the Commission in relation to a dispute concerning an inappropriate video recording of the Applicant in circulation. The Applicant made an application in the Commission to deal with a sexual harassment dispute by making a stop sexual harassment order and by otherwise dealing with the dispute.

Under the new sexual harassment laws, s 527J of the FW Act empowers the Commission to issue stop sexual harassment orders if the Commission is satisfied that the aggrieved person has been sexually harassed by one or more persons and there is a risk that the aggrieved person will continue to be sexually harassed. The Commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the aggrieved person from being sexually harassed.

In this dispute, the Commission issued a stop sexual harassment order requiring the Respondent to delete copies of an inappropriate video of the Applicant and to prohibit any discussion of that video in future.

Implications for employers

The Commission’s decisions in the above disputes reiterate the need to take proactive steps to meet the positive duty to take reasonable and proportionate measures to prevent sexual harassment, sex-discrimination, and victimisation. A policy together with other measures should be considered, implemented and reviewed for its effectiveness as part of the employer’s undertaking.

EMA Legal can assist employers with the development of policy and strategies, including the training and development for managers and senior leaders to appropriately deal with and manage sexual harassment in connection with work.