Sexual Harassment: an Employer’s Responsibility

Sexual harassment is covered under Division 3 Part II of the Sex Discrimination Act 1984 (‘the Act’). Section 28A of the Act defines sexual harassment very broadly, providing that a person sexually harasses another person if: a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature, 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 intimated.

Section 28B(1) provides that it is unlawful for a person to sexually harass their own employee or a person seeking to become an employee. In this way, sexual harassment is an employer’s responsibility.

Section 28B(2) provides that it is unlawful for an employee to sexually harass a fellow employee or a person seeking to become a fellow employee. This is relevant to employers because section 106(1)(b) of the Act provides that where an employee of a person does, in connection with their employment, an act that is unlawful under Division 3 Part II, the Act applies in relation to that person as if that person had also done the act. Practically speaking, this means that an employer will be held to be vicariously liable for any acts amounting to sexual harassment carried out by their employees.

Importantly, under section 106(2) of the Act an employer can escape vicarious liability if they can establish that they took all reasonable steps to prevent the employee from doing the acts amounting to sexual harassment. Accordingly, it is recommended that employers have established policies and procedures in place to prevent sexual harassment in the workplace. For example, employers may:

  • implement and enforce a workplace policy prohibiting sexual harassment;
  • educate employees about what sexual harassment is;
  • inform employees of the consequences of sexual harassment;
  • be attentive for early indicators of sexual harassment; and
  • treat any allegation of sexual harassment seriously and appropriately.

Parental Leave for Casual Employees

For casual employees the unpredictability of their employment can be a major source of stress as often casual employees miss out on many of the entitlements that full-time and part-time employees enjoy. For many, this concern is further exacerbated when they learn that they are about to become a parent. It should therefore be of …
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New bullying jurisdiction faces interesting challenge

The new anti-bullying jurisdiction was introduced to the Fair Work Commission on 1 January 2014. This means that employees may bring bullying complaints to the Fair Work Commission. Employers then respond, and the Commission then ‘deals’ with the complaint. This is likely to be in the form of a conference before a Commissioner, but may …
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