A series of high-profile claims of sexual assault, harassment and sexist workplace culture has placed a spotlight on the issue across Australia. Is your policy and approach up to scratch?
If you manage staff, getting ahead of sexual harassment issues in the workplace is critical.
It does not matter how conduct is intended, if a reasonable person could consider it sexual harassment, it is. And the conduct doesn't need to be specifically directed at the employee to qualify.
It comes down to a piece of legislation called the Sex Discrimination Act 1984. The Act defines sexual harassment as “any unwanted or unwelcome sexual conduct, where a reasonable person would have felt harassed, offended, humiliated or intimidated."
"Marissa has a casual job as a Kitchen Hand in a hotel. The Head Chef has posters of topless women pinned all over the kitchen sink area. As everyone has the right to feel comfortable at work, the posters are inappropriate for the workplace. The employer should have had them removed, as pinned up, they contribute to a sexually hostile work environment."
Australian Human Rights Commission, 2002.
Making sure you're on top of the issue means, not just reducing your liability, but creating a positive, supportive and welcoming workplace for all staff.
One of the first and most fundamental steps is developing and implementing a Sexual Harassment Policy. A Sexual Harassment Policy should contain:
- a definition of sexual harassment;
- the company’s complaints procedure; and
- the consequences of a policy breach.
Employers should ensure there is an effective and safe way for employees to make a complaint and ideally there should be one or more dedicated ‘Complaints Officers’ within the business. Typically, this role sits within the Human Resources team, however, managers can also take on this role.
Employees should receive regular training and education on sexual harassment and the Company Policy. This training should be part of new employees’ onboarding as well as regularly provided throughout employment. Any updates or changes to the Policy should be clearly communicated to all employees, as well as any other parties required to comply with the policy. This may include contractors and suppliers. Any managers or supervisors that are involved in the recruitment or termination process need to have a thorough understanding of the Policy.
It is important to note that employers are legally responsible for acts of sexual harassment that occur in relation to the workplace. This is called vicarious liability.
You need to investigate any claim of sexual harassment in the workplace as a priority, in compliance with any existing company policies and procedures on handling complaints of sexual harassment.
In general, start by getting the specific details of the alleged sexual harassment from the complainant - including the times, dates and sequence of events. Make sure all details of the complaint are documented thoroughly.
Once a formal complaint is made, we recommend you engage an independent body to conduct a formal investigation. This will help ensure procedural fairness is maintained throughout the investigation and avoid any potential conflict of interest. It can also help manage relationships with the staff involved.
Depending on the circumstances, it may be appropriate to suspend the subject of the complaint with pay until the investigation is complete.
The accused staff member should be given an opportunity to respond to the allegations and you should give genuine consideration to their response before making any decision.
We also recommend you encourage the complainant to seek support from an Employee Assistance Program or medical practitioner during the investigation.
Sexual harassment is a very serious offence. Although the Sex Discrimination Act makes sexual harassment a civil, not criminal offence, some types of harassment may also be offences under criminal law. In cases of serious sexual harassment or assault, encourage the complainant to contact police and we recommend you contact a lawyer for advice.
For information on how to handle staff sexual harassment claims, stay CCIWA’s Employee Relations Centre on 9365 7660.
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