Sexual Harassment at Work


Let’s just set the record straight – sexual harassment is against the law. It’s that simple.

Often there is a perception that incidents of sexual harassment at work are ‘part of the job’ or work culture, and that nothing can be done.

This is not the case – Under Fair Work legislation, employers must provide a working environment that is safe and without a culture of behaviour that is uncomfortable, threatening and inappropriate.

The Sex Discrimination Act 1984 (Cth) prohibits sexual harassment in the workplace, and sexual harassment is also covered by Work, Health and Safety (‘WHS’) laws as a workplace hazard known to cause psychological and physical harm.

In every industry and at every level, sexual harassment at work is unlawful and harmful to workers.

It is often an abuse of power and is enabled by systemic risk factors including low diversity, isolated or remote work and poor workplace culture.

From the outset, we ought to be clear that if you experience or witness sexual harassment at work, you can seek support from your employer or report it – formally, informally, or anonymously.


What is Sexual Harassment?


Section 28A of the Sex Discrimination Act 1984 (Cth) (‘the Act’) defines sexual harassment as any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Sexual harassment can take many forms, including:

  • inappropriate and unwelcome hugging,
  • kissing or other types of inappropriate physical contact,
  • staring or leering,
  • intrusive questions about your private life or physical appearance,
  • unwanted invitations for dates,
  • requests for sex,
  • sexually explicit communications (e.g., emails, calls, text messages), or
  • unnecessary familiarity (e.g., deliberately brushing up against you).

Such behaviour does not have to be directed specifically at you.

Sexual harassment includes behaviour that makes the environment you are working in uncomfortable or threatening in a sexually hostile way, such as sexually offensive pictures or a culture of suggestive comments or jokes.

Sexual harassment at work can happen during working hours, or at work-related activities, such as training courses, conferences, trips and other work-related social activities.

It might come from other workers, your supervisor or manager, or your customers or clients.

Some forms of sexual harassment may be criminal acts, such as:

  • indecent exposure,
  • stalking,
  • sexual assault, or
  • obscene or threatening communications (e.g., phone calls, emails and social media posts).

These matters should be referred to the police.


What to do if Sexually Harassed at Work?


Sexual harassment can cause psychological and physical harm and it should not be ignored.

Your employer should provide you with information and support on how to respond if sexual harassment is directed at you, what you should do if you witness it and how to report it.

Given that our experiences of sexual harassment, and how we respond to it, may differ significantly, largely due to the varying nature of each incident, you may consider one or more of the following in the circumstances:


Explain your objection to the behaviour


If it is safe and you feel comfortable to do so, tell the offending person that you object to their behaviour and ask that it stop.

It may be possible for you to resolve the problem yourself by highlighting that the behaviour is inappropriate and makes you feel uncomfortable or unsafe.

There may be some instances where the offending person does not realise the effect their behaviour is having on you or others, and your feedback may allow them to change their actions.

If they respond negatively to your feedback, you should make a confidential report of the incident to the appropriate person within your organisation.


Remove yourself from the situation


If the situation is unsafe, you should remove yourself, such as retreating to a safe location, asking the harasser to leave the work area or disconnecting the harasser from a phone call.

In some circumstances, you may have the right to refuse to carry out or stop unsafe work, but the risk must be serious and imminent.

If you stop work because it is unsafe, you must tell your employer as soon as possible and be available for other suitable work.


Consider seeking other support


At the time of the incident, you might like to seek support from other workers, other people nearby or security personnel.

After the time of the incident, it may be necessary for you to seek counselling support from a colleague, helpline, counselling service, legal service or employee representative.


Report the behaviour


After the incident, you should report what transpired to a supervisor, human resources area or the person designated by your organisation.

Reporting unwanted or offensive behaviour early is often an effective way to make the sexual harassment stop.

Your employer should have workplace policies or procedures in place on how to report sexual harassment (including reporting confidentially or anonymously) and how reports will be dealt with.


Keep a record


It may be prudent to keep a record of what happened, when and where it happened, who was involved and anything else you think may be important.

You might like to do this as soon after the incident as possible so that the events are clear in your mind. This record may be used to help assess the harassing behaviour and to support your version of events.

It is important to remember that you have a right to feel safe at work.

It is illegal for you to be disadvantaged because you have reported sexual harassment at work; if you are, your employer may have a case to answer with the Fair Work Ombudsman.

If you are dismissed for making a report of sexual harassment within the workplace, you may have a claim for unfair dismissal. You should seek urgent legal advice if this is the case.


Witnessing Sexual Harassment at Work


If you see sexual harassment at work or hear about it, you may choose to do one or more of the following:

  1. If you feel safe and comfortable doing so, tell the other person that you object to their behaviour and ask that it stop.
  2. Talk to the person experiencing harassment. One of the best things you can do is to listen and ask them what support they need. You can also help them find information so they can decide what to do next.
  3. You should report sexual harassment to a supervisor, human resources area or the person designated by your organisation, while also considering any privacy concerns of the person you are reporting on behalf of.
  4. Talk to your employer or your representatives about a sexual harassment policy, prominently displaying and communicating the policy in your workplace, raising awareness about sexual harassment and providing training to all workers.

You may need to adapt what action you take depending on the situation. The focus should always be on your safety and the safety of the person who is being harassed.

Depending on your role in the organisation, you may have a duty to report sexual harassment and check that processes are being followed.


Accused of Sexual Harassment at Work


An accusation of sexual harassment at work can be upsetting and come as a surprise, but it is important to be open to feedback from your peers.

If the complaint is such that your behaviour is called into question, you should be prepared to change that behaviour.

Any accusation of sexual harassment should be taken seriously, and you should be open and transparent in dealing with your employer about allegations of sexual harassment at work.

You should remember that while at work, you have a duty to take reasonable care that your acts or omissions do not adversely affect the health and safety of co-workers.

This means not acting in a manner that would constitute sexual harassment and complying with any reasonable health and safety instructions, policies, incident reporting and management processes your employer has on workplace sexual harassment.

If you have been accused of sexual harassment, your employer must have WHS policies and procedures on incident reporting and management processes that maintain confidentiality and privacy to protect all parties from victimisation, such as bullying, intimidation or retaliation.

It is important to be aware that employers may dismiss employees found to have engaged in sexual harassment, given the Fair Work Act 2009 (Cth) categorises it as ‘serious misconduct’.


Falsely Accused of Sexual Harassment at Work


Whilst sexual harassment does occur, so too do false accusations of sexual harassment at work.

If you believe you have been unfairly or falsely accused of sexual harassment, getting expert advice can be crucial to understanding your rights and responsibilities.

It may also assist you in exercising your options and defending your interests.


Sexual Harassment Support Services


If you are unable to resolve the issue within the workplace WHS frameworks, you can make a complaint to the Australian Human Rights Commission or your relevant state and territory anti-discrimination body.

We are able to assist you with applications to the Commission.

Alternatively, you may wish to raise the issue with your relevant state and territory WHS regulator to investigate if a business is meeting its obligations to provide a safe working environment that is without risk to health and safety.

You can also contact your WHS regulator if you feel you have been discriminated against for raising a health and safety issue with your employer.


Contact Us


For more information, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.

Read more about our Employment Law services here.

Related Blog – What is a General Protections Claim?

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