Sexual Harassment in the Workplace (WA)
Sexual harassment of an employee or colleague is unlawful and a form of discrimination. Each Australian state has its own laws regarding what constitutes sexual harassment in the workplace. Put broadly, sexual harassment may be defined as an unwelcome sexual advance or unwelcome conduct of a sexual nature which a reasonable person would recognise as offensive, humiliating or intimidating.
What is sexual harassment?
Sexual harassment can be limited to one incident or may be repeated, and it does not have to be deliberate.
The Australian Human Rights Commission (AHRC) has published the ‘Sexual Harassment: A Code of Practice’ to assist employers to identify and respond to sexual harassment in the workplace. The AHRC considers sexual harassment to include:
- unwelcome, unnecessary and/or unsolicited physical touching;
- staring or leering
- jokes, insults, taunts and comments that are sexually suggestive;
- unwelcome requests to see someone outside of work, specifically to go out on dates;
- requesting or asking for sex;
- sending pornographic or rude content by email, text message or other methods of communication;
- sending sexually explicit messages by electronic communication;
- sexually explicit physical contact
- asking intrusive questions about someone’s body or private life;
- displaying content that is of a sexual nature, such as posters, magazines or screen savers.
Complaining about sexual harassment in the workplace
A person who believes that they have been subject to sexual harassment may make a complaint under the Sex Discrimination Act 1984. The complaint must first be made to the AHRC. The AHRC is an independent third party which investigates complaints about discrimination and human rights breaches, including workplace sexual harassment.
AHRC will investigate the complaint and, where appropriate, bring the parties together to conciliate the complaint. Should conciliation fail to resolve the complaint, the AHRC may terminate the complaint and allow the complainant to refer the matter to the jurisdiction of the Federal Circuit Court of Australia or Federal Court of Australia.
Alternatively, a person may make a complaint to the Western Australian Equal Opportunity Commission (EOC) under the Equal Opportunity Act 1984. The EOC can hold a conciliation, and where there is no resolution, the matter may be referred to the State Administrative Tribunal.
A sexual harassment complaint that arises out of an incident in a workplace is made against the employer. This is because the employer has an obligation to provide a workplace that is free of sexual harassment. Where sexual harassment has occurred, the employer can be held vicariously liable meaning they are legally responsible for acts of discrimination or harassment that occur in the workplace.
If a person brings a complaint about sexual harassment to the Federal Circuit Court or the Federal Court of Australia, the complaint may be accompanied by a claim for compensation. The court can award, amongst other things, compensation, or damages, for loss of past and future earnings, out of pocket expenses and aggravated damages.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.