In late 2021, amendments to the Fair Work Act 2009 took effect which provide that sexual harassment at work is a form of serious misconduct and can be a valid reason for dismissal. An employee who has committed serious misconduct can be dismissed without notice. It is essential however that the proper process is followed.
What should an employer do now if they receive a complaint of sexual harassment?
A person sexually harasses another person if they:
- make an unwelcome sexual advance
- make an unwelcome request for sexual favours
- engage in other unwelcome conduct of a sexual nature,
where it is reasonable to expect that there is a possibility that the person being harassed would be offended, humiliated or intimidated by the behaviour.
“Conduct of a sexual nature” covers a wide range of conduct from subjecting a co-worker to sexually explicit pictures, jokes, or material; using suggestive or sexualised nicknames; unwelcome touching; unnecessary familiarity, sexual gestures, following or watching a person, to explicit or indecent physical conduct or sexual assault.
First, ensure the safety of those concerned. If anyone is in immediate danger call 000. Find out some important key facts. How recent are the alleged incidents? What conduct is alleged to have occurred? Who is involved? Is the conduct continuing and does any action need to be taken to prevent it?
The complainant may be willing to resolve the matter if it is not serious, through an approach to the alleged harasser, or intervention by a supervisor or manager.
It is important to note however that some forms of sexual harassment may be criminal offences – such as a sexual act with a person under the employee’s care (such as a school student, disability services client or patient) and stalking and intimidation.
Can the employee be dismissed?
In most cases, dismissing an employee summarily on the ground of serious misconduct without taking reasonable steps to investigate the allegations of misconduct and give the employee a fair chance of answering them, will mean the decision is unfair and could be challenged in the Fair Work Commission.[1] Even a small business employer must believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.[2]
Sexual harassment investigations
If you decide to investigate a complaint of sexual harassment, you will need to draft allegations of misconduct based on the complaint and provide them to the alleged harasser.
An independent, skilled and unbiased investigator to investigate the allegations is essential. This may mean using an external investigator who has experience in investigating sexual harassment. Sexual harassment investigations are often complicated, owing to the nature of the evidence, the fact that harassment often occurs “after hours” and with alcohol involved, and possible trauma to the victim and witnesses. Harassment may intersect with other forms of discrimination or adverse treatment.
Procedural fairness applies to all stages of a misconduct investigation. This means:
- The alleged harasser must be told what is alleged against him/her
- The alleged harasser must have a fair opportunity to respond to the allegations
- The investigator and decision maker must be unbiased.
Findings
The civil standard of proof is applied when making findings of fact. This is also referred to as “the balance of probabilities”. The investigator must ask – is it more probable than not that the alleged conduct occurred? The more serious the allegation, the stronger the evidence needed to prove it.
At the conclusion of the investigation the investigator provides a report with findings of fact and conclusions as to whether the allegations of sexual harassment are substantiated.
If the allegations are substantiated, the employer must decide what action to take, which may include dismissal.
The investigation may uncover other factors which require action such as a culture which tolerates sexual harassment in the workplace.
If the allegations are not substantiated, for example due to lack of evidence, there may still be a risk of sexual harassment or unacceptable conduct which is a work health and safety hazard and which the employer must try to remove or minimise. This may even help the employer to prevent sexual harassment from occurring in the first place.
Christa Ludlow is a lawyer with over 20 years’ experience in employment law and administrative law, and a qualified workplace investigator, coach and mediator. She is a Principal Consultant with WEIR Consulting. Christa can be contacted here.
WEIR consultants have extensive experience in investigating sexual harassment. We also conduct workplace culture reviews and provide workplace training on best practice in preventing and responding to sexual harassment at work.
[1] Miller v University of New South Wales [2003] FCAFC 180 (14 August 2003) at para. 64. See also Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267 (12 June 1996).
[2] Small Business Fair Dismissal Code.