There has been a noticeable increase in the number of
allegations of sexual harassment over the past 12 months. This
trend, commonly attributed to the publicity surrounding the
David Jones/McInnes/Fraser-Kirk case in 2010, has been
reported by employment lawyers generally, and has also been
noticeable in our practice.
Employers need to be aware that the risk of sexual
harassment or discrimination claims has increased
The issue doesn't have to be about 'mega-dollar
claims' to be a significant risk. In many instances, the
employer receiving a complaint of sexual harassment has never had
to field such an issue before, and is starting from scratch on the
necessary steps and the various risks which arise. Each situation
is different and requires very careful handling, as the employer is
at risk of a discrimination claim by the person claiming to have
been harassed, but at the same time may face unfair dismissal
proceedings or other claims in relation to the discipline, or
termination of the employment, of the alleged offender.
What constitutes "fair process" as well as
"adequate investigation" will differ depending on the
circumstances (including the gravity of what is alleged to have
happened, situation in the workplace, seniority of the employees
involved, evidence available etc) but the matters to be considered
avoiding prejudgment (in either direction)
obtaining and working with reliable evidence, not rumour or
putting allegations to the alleged offender and getting his/her
response and evidence from other staff who may have witnessed the
conduct at issue
giving appropriate support to the complainant and offender and
making suitable arrangements regarding ongoing relations in the
approaching things efficiently and practically (an employer is
not required to act as if it is a court of law) and being seen to
maintaining an appropriate level of confidentiality and
addressing workplace gossip.
Of course, prevention is better than cure. What can you
do in advance to minimise the chances of sexual harassment
Have up to date policies on discrimination, equal employment
opportunity, harassment and grievance handling, which are
periodically refreshed for staff and which provide a reference
Ensure that managerial and supervisory staff are well aware of
their obligations to deal with any harassing or potentially
harassing conduct so as to intervene to stop problematic conduct
before it causes a complaint.
Provide training periodically to refresh these issues for
Ensure that management is seen to abide by and enforce
policies, so that employees expect that offensive behaviour will
not be tolerated, and that complaints will be promptly and
adequately dealt with.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).