Lauren Gerondakis, lawyer, Gordon Legal. Photo: supplied
Sexual harassment is a pervasive issue in Australian workplaces. Research conducted by the Australian Human Rights Commission in 2022 revealed that approximately one in three workers had experienced sexual harassment at work in the preceding five years.
Sexual harassment in the workplace is both unacceptable and unlawful. Perpetrators of sexual harassment can be held legally accountable for their actions. Furthermore, employers have obligations to prevent sexual harassment from occurring and must appropriately address complaints or reports of alleged sexual harassment.
Victim-survivors of sexual harassment and those who report it have the right to stand up against and call out this behaviour.
What is sexual harassment?
Sexual harassment is any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature. It must be reasonably expected that the conduct may offend, humiliate or intimidate the recipient.
Courts and other relevant jurisdictions across Australia have interpreted sexual harassment broadly. Examples of what may constitute sexual harassment include inappropriate touching, sexualised comments or gestures. However, sexual harassment can take many forms, and the specific circumstances in which conduct occurs are often relevant.
Sexual harassment may take the form of an isolated incident, or a pattern of behaviour.
The impacts of sexual harassment for victim-survivors are significant and can persist long after the harassment has stopped. Victim-survivors of sexual harassment often report feeling unsafe in their workplaces, suffering psychological harm or sustaining interruptions to their careers as a result.
Legal avenues to address sexual harassment
There are various state and federal laws that prohibit workplace sexual harassment.
If a person is experiencing ongoing sexual harassment in their workplace, they can apply to the Fair Work Commission for a stop sexual harassment order and seek practical remedies to prevent the harassment from continuing.
Perpetrators of sexual harassment can be held legally liable for their actions. Additionally, employers may be found to be vicariously liable, meaning that they are also held responsible for a perpetrator’s actions where those actions have occurred in the course of or in connection with their employment.
Victim-survivors of sexual harassment may be able to seek a range of different outcomes, known as remedies. Possible remedies include compensation for financial loss arising from the harassment, such as lost wages or associated medical expenses. A court or tribunal may also award a form of compensation known as general damages, which contemplates a victim-survivor’s hurt, humiliation and distress.
It is important to be aware of the relevant limitation periods for making a civil sexual harassment claim. Under the Victorian Equal Opportunity Act, an application must be made within 12 months of the date that the last incident of sexual harassment occurred, whilst under the Federal Sex Discrimination Act and Fair Work Act, an application must be made within 24 months. If an application is made after 12 or 24 months respectively, the relevant commission or tribunal has the discretion to reject an application.
Employers’ obligations to prevent workplace sexual harassment
Employers must take proactive steps to prevent sexual harassment and other forms of discrimination in the workplace. This is known as an employer’s ‘positive duty’.
Such measures may include implementing policies, procedures or training.
If a worker is concerned that their employer is not taking positive steps to eliminate sexual harassment or discrimination in the workplace, they can report an employer to the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission. These commissions have the power to investigate non-compliance with the positive duty obligations and to legally enforce compliance.
Calling out sexual harassment in the workplace
Victim-survivors and witnesses to sexual harassment have the right to complain. They also have the right to expect that employers will respond appropriately by taking meaningful steps to investigate and ensure the safety of their workers.
Employers are prohibited from victimising or taking adverse action against a person who has complained about sexual harassment. For example, an employer must not terminate a person’s employment, cut their pay or hours of work, demote them or subject them to bullying or harassment because they have made a complaint.
How you can seek help
If you have experienced sexual harassment or you are concerned about sexual harassment in your workplace, you can contact the ANMF for support.
The ANMF can arrange a referral to Gordon Legal for advice and representation in relation to sexual harassment, discrimination and related matters. The lawyers at Gordon Legal can advise you of your legal options and support you through the process of making a legal claim.
If your employment has been terminated, you should contact the ANMF to request a referral to Gordon Legal as soon as possible. Whilst there are various jurisdictions that prohibit an employer from terminating a person’s employment following a complaint about sexual harassment, it is important to note that termination claims under the Fair Work Act have a strict 21-day limitation period. It is critical that you seek legal advice straight away, to maximise and preserve your legal options.
If you have experienced sexual assault or have been the victim of any other criminal behaviour, you can also report the matter to police.
The Nursing and Midwifery Health Program (nmhp.org.au) provides free and confidential counselling and support services to nurses and midwives in Victoria.
