Work banter and close working relationships are important
ingredients in a successful workplace. Like any day of the year,
Valentine's Day is a day to enhance cordial working relations
or ruin them and create liability for the employer and perhaps some
of its staff.
On a day like Valentine's Day, it is perhaps prudent to
remember that stepping over the line can constitute sexual
harassment and sexual discrimination.
Sexual harassment occurs when one person makes an unwelcome
sexual advance or an unwelcome request for sexual favours, or
engages in unwelcome conduct of a sexual nature where a reasonable
person would have anticipated the possibility that the object of
the approach would be offended, humiliated or intimidated.
Clearly this definition may include acts such as unwelcome
hugging and touching, and an unwelcome Valentine. It is not always
clear when the line has been crossed, but leaders of organisations
must set the right example and exercise prudence and control.
The fact is sexual harassment and sexual discrimination will
usually fall upon the financial shoulders of the employer. In the
recent case of Menere v Poolrite Equipment Pty Ltd 
QCAT 252, an employer was found not to be liable for the sexual
harassment undertaken by one of its staff. In that case, the
employer was found to have taken all reasonable steps to educate
its staff, including providing a handbook containing guidance about
how staff should manage the situation when they receive unwanted
attention and through training courses. The employer had done more
than 'merely have a policy in place'. This case is a rare
exception to the general practice of courts and tribunals.
What to do?
Lead by example by not encouraging or inferring conduct or
making statements of a sexual nature.
Have an easy and effective complaints procedure so that alleged
victims of unwelcome advances or other such conduct have a
navigable process to follow in raising concerns.
Act swiftly and seriously.
Ensure there are alternative contacts in the employer's
policy and procedures manual, which are not limited to one gender
should a staff member be uncomfortable speaking with the designated
Allow for mechanisms for staff to raise concerns when they are
worried about an incident but it is not serious enough for a
So by all means be enthusiastic, warm and engaging with staff
and colleagues - just don't cross the line this Valentines
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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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.
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