As from 10 July 2021, amendments to the Fair Work Regulations have had the effect of explicitly categorising sexual harassment as "serious misconduct" for the purposes of the unfair dismissal laws. Other defined pre-existing grounds included theft, fraud or assault.
This amendment was in response to The Respect @ Work Report and associated recommendations by Sex Discrimination Commissioner Kate Jenkins. The amendment is designed to reflect and signal that sexual harassment is a serious matter and assist employers in being able to quickly remove perpetrators of sexual harassment from the workplace. A number of employer groups had publicly agitated for this amendment on the basis that previously there may have a degree of uncertainty on the part of employers regarding whether sexual harassment fell within the general concept of serious misconduct. The amendment should therefore provide greater clarity for employers as well as enhancing workplace safety.
Employers should be aware though that they will still need to comply with the rules of procedural fairness when undertaking the termination of an employee who is said to have engaged in sexual harassment. This includes:
- undertaking a thorough investigation;
- putting the allegations in writing to the employee;
- giving the employee adequate time and opportunity to consider the allegations;
- allowing the employee to respond to the allegations in a meeting with the employer;
- allowing the employee to have a support person present at such meeting.
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.