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 [2012] 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 complaints officer(s).
  • Allow for mechanisms for staff to raise concerns when they are worried about an incident but it is not serious enough for a 'formal complaint'.

So by all means be enthusiastic, warm and engaging with staff and colleagues - just don't cross the line this Valentines Day.

© DLA Piper

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 this publication.

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