Australia: Sexual harassment: what constitutes sexual conduct?

Key Points:

Conduct that is unwanted, offensive, humiliating or intimidating may nevertheless not constitute sexual harassment if the conduct is not sexual in nature.

For a sexual harassment claim by an employee against an employer to succeed a number of elements need to be satisfied. An employer faced with such a claim should consider each element in determining how strong its defence is and what its approach to the claim should be, because a case that is strong in many respects may fail completely because one element is not satisfied.

One element often overlooked by employers is that the unwelcome conduct alleged by the employee must be considered by the Court or Tribunal to be sexual in nature. A sexual harassment claim could be successfully defended if it can be shown that the conduct, regardless of whether it was welcome or not, was not sexual in nature. A recent decision of the Equal Opportunity Tribunal of South Australia dealt with this issue and came up with some interesting conclusions.

What was the case about?

In Ramstrom v Baldino [2013] SAEOT 14 the Tribunal was considering a claim made by a Magistrates' clerk employed by the South Australian Courts Administration Authority against a former Magistrate.

The clerk alleged that she had been subjected to sexual harassment while she was employed by the Authority and working for the Magistrate before his retirement.

What was alleged?

The clerk's evidence was that the Magistrate, while they were travelling on circuit, made sexual advances towards her in various forms, including inviting her:

  • to eat lunch and dinner with him;
  • to come to his room for drinks after dinner; and
  • to go swimming in the hotel swimming pool in her underwear.

Some of the alleged conduct appeared to be corroborated by contemporaneous statements made to other witnesses and also by statements made by the Magistrate himself. In particular the Magistrate admitted that he had asked the complainant to dinner and then had invited her to join him for drinks after dinner in his room.

The Magistrate admitted (in response to the allegation that he had suggested that the complainant take off her top and swing it around above her head) that he had asked her whether she was an Adelaide United Football Club supporter and whether she was one of the supporters that swung their tops around above their head. The Magistrate also agreed that when the complainant had commented that she did not know that the hotel had a pool and had not brought her bathers with her, he had told her that she could swim in "knickers and a t-shirt".

There were other allegations made by the complainant which were largely denied by the Magistrate, however the Magistrate did admit to saying to the complainant "you need a spanking" when she made a mistake in Court.

What did the Tribunal find regarding the allegations of sexual harassment?

The Tribunal found that some of the conduct did occur but that it was not sexual in nature.

For example, the Tribunal found that the comment about the complainant taking off her top and swinging it over her head was made, but was made in the context of the discussion of practices of football supporters of the Adelaide United Football Club, and was not sexual in nature. Similarly the Tribunal found that the comment in relation to swimming in her underwear was not sexual in nature.

The Tribunal also found that the invitations to have lunch and dinner with the Magistrate and to have a drink after dinner in his room were not conduct that was sexual in nature and did not constitute sexual harassment. The Tribunal found that a reasonable person could not have anticipated that the complainant might have been offended, humiliated or intimidated by the invitations and therefore they could not constitute conduct of a sexual nature that constituted sexual harassment.

In relation to the comment regarding "spanking", the Tribunal held that, in the context of the relationship between the complainant and respondent, the comment was inappropriate but did not amount to sexual harassment because a reasonable person would not have anticipated that the complainant would be offended, humiliated or intimidated by the comment which was "clearly intended to be lighthearted".

These findings were made despite the fact that, in response to the complainant raising these issues with the Authority, the Authority assigned the next two circuits to another Magistrate seemingly on the basis that the Authority considered the Magistrate's conduct to be inappropriate. There was no evidence however, that the Authority considered the conduct to constitute sexual harassment.

It should be noted that the Tribunal's decision has been appealed, but the appeal has not yet been heard or determined.

What are the implications of the Tribunal's finding for employers?

This decision highlights that the issue of whether conduct is of a sexual nature is not always clear-cut and needs to be considered as part of any claim made against an employer for sexual harassment. Conduct that is unwanted, offensive, humiliating or intimidating may nevertheless not constitute sexual harassment if the conduct is not sexual in nature.

While the Tribunal's findings on this issue in this case were unusual (and may well be overturned on appeal) the case does highlight that conduct may be viewed from a range of perspectives and an employer faced with such a claim should not just assume that the alleged conduct is sexual in nature just because the employee alleges it is.

When faced with such a claim an employer should seek advice on the claim as soon as possible to enable it to consider any defences and arguments open to it.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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