Workplace harassment is prohibited by anti-discrimination legislation in all states and territories.

A common form of harassment is sexual harassment, which occurs when a person is subjected to any unwanted or uninvited sexual behaviour that is offensive, intimidating or humiliating. Sexual harassment can include the following types of behaviour:

  • unwanted physical contact of a sexual nature;
  • unwanted sexual advances or requests for sexual favours;
  • unwelcome remarks or statements with sexual connotations;
  • any unwelcome gesture, action or comment of a sexual nature;
  • staring or leering at someone in a sexual manner;
  • unwanted sexual or physical contact, e.g. kissing, inappropriate touching or hugging; intrusive questions about someone’s sexual activity; and
  • repeated invitations of a sexual nature when similar invitations have previously been refused by that person.

A worker affected by harassment in the workplace may seek compensation by making a complaint to an external body, such as the Australian Human Rights Commission or a state tribunal. The matter could also be investigated by the relevant safety regulator, which could prosecute your business.

The courts will look at how the recipient perceived the behaviour, not at how the behaviour was intended to be received. For example, if the person initiating the behaviour intended it to be a joke, this will be considered irrelevant by a court. However, behaviour will only be considered sexual harassment if a reasonable person would have anticipated that the recipient would be offended or humiliated by the conduct.

This means that a person cannot be guilty of sexual harassment if the other person overreacts to a comment or gesture that most people would regard as non-offensive.

Inappropriate conduct

You should not allow inappropriate conduct, such as sexist jokes, to occur in the workplace. Do not rationalise offensive behaviour on the basis that “most people think it’s funny” or “it has always been this way”.

Business-owners are expected to be proactive in eliminating offensive behaviour, and creating a workplace where everyone is free from comments and gestures that make them feel uncomfortable. The line between appropriate and inappropriate behaviour is not always easy to discern. It is better to err on the side of caution and stop any behaviour in the workplace that might cause offence.

In some cases, sexual harassment may be a criminal offence. This includes making obscene phone calls, sending emails or letters in the mail, as well as indecent exposure, stalking, sexual assault, and rape.

To help prevent harassment from occurring in your workplace, you can:

  • encourage respectful and courteous behaviour in the workplace;
  • educate everyone in the workplace about harassment, including sexual harassment;
  • put a workplace policy in place that prohibits workplace harassment;
  • implement training and education in the policy;
  • ensure the policy is enforced; and
  • review the policy regularly to ensure it remains effective.

You will also need to respond promptly to any evidence of inappropriate behaviour. Treat complaints seriously, and deal with them confidentially. This should include a follow-up review to ensure the wellbeing of the parties involved and to provide support.

Supervisors and managers need to be trained in how to recognise and respond to harassment, and encourage them to address problem behaviour promptly, whether or not a formal complaint has been made.

If one of your workers makes a complaint of harassment, ensure that you take the complaint seriously and do not victimise the complaining worker.

Victimisation

If one of your workers makes a complaint of discrimination, make sure that you take the complaint seriously and that you, or others such as the person being complained about, do not victimise the worker making the complaint.

Victimisation occurs when a person treats a worker unfairly because the worker made a complaint or supported another person making a complaint regarding bullying, harassment or discrimination.

Victimisation is conduct that makes a worker to feel uncomfortable, isolated, unwelcome, intimidated or insecure.

Victimisation is unlawful and is taken very seriously by the courts.

If one of your workers makes a successful workplace discrimination claim, your organisation may be held liable, even if you did not engage in the discrimination. This is known as vicarious liability.

Vicarious liability is the responsibility an employer has for the actions of its workers during work hours or in other work-related circumstances. If these actions are found to be unlawful, both the employer and the worker may be held responsible.

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Top stories for Workplace Harassment

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