Proactive employer commended by the Fair Work Commission for taking a stand against sexual harassment

Manager not unfairly dismissed

In a recent unfair dismissal decision, the Fair Work Commission has commended an employer who took proactive steps to ensure its staff were not subject to sexual harassment.

After becoming aware of allegations of unwelcome conduct of a sexual nature by a manager, the employer sought to identify further victims and conducted an investigation. The investigation substantiated 19 allegations of sexual harassment and bullying by the manager. The allegations included the manager sending unsolicited photographs of himself in his underwear to co-workers and to one co-worker, over 70 unsolicited text messages in the early hours of the morning. The manager’s employment was subsequently terminated.

Dismissing the manager’s unfair dismissal claim, Deputy President Binet commented that the manager’s evidence revealed a pattern of “befriending much younger female subordinates and then progressively sending more frequent and increasingly less appropriate messages…” Importantly, the Deputy President also commented that the employer could “not be criticised for endeavouring to identify other affected employees…” in order to comply with its obligations.

Australia leading the charge in addressing workplace sexual harassment

In other recent news, Sex Discrimination Commissioner, Kate Jenkins and Minister for Women, Kelly O’Dwyer have announced a national inquiry into sexual harassment in Australian workplaces. The inquiry is to be conducted by the Australian Human Rights Commission (‘AHRC‘) and will be the first of its kind anywhere in the world.

The 12-month inquiry is set to speak with individuals and organisations from all over Australia in order to determine the drivers of sexual harassment in the workplace, the effects of technology and social media, and the adequacy of the existing legal framework. The inquiry will also draw on economic modelling to give a better sense of how this is effecting Australian workplaces and the economy, and will outline practical recommendations to employers.

Workplace sexual harassment on the rise

The AHRC is also currently conducting the fourth national survey into workplace sexual harassment, with results expected to be released in August 2018.

Commissioner Jenkins said early indications show rates have increased significantly since the last survey in 2012, highlighting why a national inquiry is necessary.

This is a worrying trend. Obviously, personal and career consequences of workplace sexual harassment are detrimental, however, the organisational impacts can also be substantial, including reduced productivity, high staff turnover, absenteeism, compensation claims and early retirement.

Practical lessons

It is not acceptable for employers to neglect taking practical and proactive steps to seek to eliminate sexual harassment in the workplace.

Employers should have workplace policies in place which govern acceptable standards of behaviour in the workplace and, which contain a mechanism to encourage employees to report incidents of sexual harassment. It is also important that staff can readily access such policies. Failure to have these arrangements in place could result in adverse consequences, including significant orders for compensation to victims.

If your business requires workplace policies (including covering sexual harassment) or would like its current policies reviewed, please contact our Employment, Safety and Migration team.

This article was written by Serpil Bilgic, Lawyer – Commercial.