Sexual harrassment in the workplace under the microscope

The #MeToo movement has continued to expose the frequency of sexual harassment that occurs and continues to occur against women on a global level. Sexual harassment continues to be front and centre as a growing number of victims have come forward with their own #MeToo experiences.

In this week’s article we consider the continued effect of the #MeToo movement on Australian workplaces, the legal definition of sexual harassment and an employer’s responsibilities in relation to sexual harassment in the workplace. Most importantly, we consider what steps employers should be taking within their business to reduce the risks in this area. We also examine a recent decision which demonstrate the changing attitude of the Fair Work Commission towards sexual harassment in the workplace.

Legal Definition of Sexual Harassment

By its legal definition, sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

The Sexual Discrimination Act 1984 (Cth) (“SDA”) provides that unwelcome sexual harassment is unlawful. It is also unlawful for a person to be victimised for making, or proposing to make, a complaint of sexual harassment.

Examples of sexually harassing behaviour may include, but are not limited to:

• Unwelcome touching;
• Staring or leering;
• Suggestive comments or jokes;
• Sexually explicit pictures;
• Unwanted invitations to go out on dates;
• Intrusive questions about a person’s private life or body;
• Sexually explicit emails or text messages; and
• Unnecessary familiarity, such as deliberately brushing up against a person.

A working environment or workplace culture that is sexually hostile will amount to unlawful sexual harassment. Previous case law has indicated that a potentially hostile environment may include displays of obscene and pornographic material, sexual banter, crude conversation or innuendo and offensive jokes.

In many cases, employers and/or others within the business may be held liable under the SDA for acts of sexual harassment conducted by their employees or agents. However, employers are able to limit their liability if they are able to demonstrate that the business has taken “reasonable steps” to prevent sexual harassment occurring within the working environment.

Cultural Change in Attitude

Sexual harassment in Australian workplaces has been a consistent issue to which employers must pay particular attention, regardless of their size or industry in which they operate. It is clear from a number of recent decisions that the #MeToo movement has gained traction in Australian courts and tribunals, including in the Fair Work Commission.

In addition, the Australian Human Rights Commission (“AHRC”) has launched a 12-month national inquiry into sexual harassment in Australian workplaces. The inquiry will consider the economic impact of sexual harassment, the drivers of these behaviours and the adequacy of the existing legal framework. The inquiry will also make recommendations to address sexual harassment in Australian workplaces.

The AHRC also released results from a recently conducted national survey on sexual harassment in the workplace. Concerningly, the survey found that one in three workers in Australia had stated they had been sexually harassed at work in the last five years which is a significant increase from a survey conducted in 2012. The survey also highlighted the fact that almost half of those individuals who did make a formal complaint to their employer said that nothing had changed in their organisation as a result of the complaint. This statistic has been further highlighted by the Transport Workers Union who recently notified the Sex Discrimination Commissioner of the results from a cabin crew survey. This survey found that 65% of cabin crew who said they have been sexually harassed at work, were either unsatisfied with how their employer handled the matter, or were too afraid to report it to their employer.

Relevant Decision

A recent decision of the Fair Work Commission (“FWC”) demonstrates that the effect of the #MeToo movement is being considered within the Australian jurisdiction and there is now a higher standard of what is considered acceptable and appropriate behaviour in the workplace.

In the decision of Carmelo Sapienza v Cash in Transit Pty Ltd T/A Secure Cash [2018] FWC 607, Mr Sapienza’s employment was terminated after complaints were received regarding inappropriate sexual behaviour by Mr Sapienza when visiting client’s premises. In particular, the complaints related to a client’s premises (which was a women’s retail store) where Mr Sapienza made young female employees feel uncomfortable. His behaviour included, but was not limited to:

•  Hugging two female employees 30 years his junior;
• Saying words to the effect “when will you be leaving your boyfriend so we can run away together?”
• Telling staff, they had missed his birthday and asking, “where is my kiss?” whilst leaning over the counter and putting his cheek up to the girls’ faces; and
• Asking an 18-year-old employee for her telephone number and stating that he had dated girls of her age.

Mr Sapienza denied some of the allegations but had accepted that he may have asked the female employees for a kiss but this was due to his “cheeky” nature and tendency to joke around. Mr Sapienza’s explanation for his conduct was that, as an Italian, he was accustom to affectionate gestures and that he also hugged staff at other client’s premises. He believed the physical encounters were consensual and friendly, and had he thought otherwise, it would have ceased immediately.

As a result of the termination of his employment, Mr Sapienza filed an unfair dismissal application with the Fair Work Commission. Deputy President Bull was of the view that the admission by Mr Sapienza that he did hug and ask for a kiss from women as young as 18 years was sufficient to substantiate that the employer had a valid reason to terminate his employment. Despite Mr Sapienza’s explanation for his conduct, DP Bull found Mr Sapienza’s actions to be “improper, unprofessional and naïve, to say the least”.

The FWC also noted that Mr Sapienza was not provided an opportunity to respond to the reasons for the termination and that he was summarily terminated without even a verbal conversation by his employer. As such, it was found that the process was seriously lacking in procedural fairness. Nevertheless, and surprisingly, DP Bull held that in view of Mr Sapienza’s admission in respect to his conduct with the young female staff, that the dismissal was not harsh, unjust or unreasonable and dismissed the application.

Whilst this decision provides encouragement for employers to act firmly when dealing with sexual harassment in the workplace, employers should not rely on this decision to cut corners when terminating employees. Procedural fairness is a factor that the FWC must consider when determining unfair dismissal applications. There has been a number of decisions where the FWC has found that there is valid reason for dismissal, however ultimately determined the termination of employment to be unfair because of the process followed by the employer was inadequate.

Employers’ Vicarious Liability

Sexual harassment may present a serious issue for employers for a number of reasons because, among other things, such conduct increases health and safety risks, damages workplace culture and productivity and can result in significant reputational harm to the business. In addition, section 106 of the SDA provides that employers will be held vicariously liable for the conduct of their employees if that conduct is connected to the employment or occurs during the course of employment. Accordingly, if employers are found to be vicariously liable for the unlawful actions of their personnel they may be subject to significant Court orders for damages, pecuniary penalties and adverse findings or declarations.

However, employers will not be held vicariously liable under subsection 106(2) of the SDA if they can demonstrate that they took “all reasonable steps” to prevent the harassment. However, the onus rests on the employer to demonstrate they did in fact take all reasonable steps in this regard.

Lessons for Employers

As demonstrated above, employers have significant responsibilities in relation to sexual harassment or misconduct of a sexual nature. To this end, there are a number of strategies employers should implement in their business to assist in addressing unacceptable behaviour and/or conduct in the workplace.

• Implement workplace policies in order to communicate the expected standards, behaviour and conduct of employees in your organisation and clearly state the consequences of breaching the policy. The workplace policies should include a sexual harassment policy which refers to the relevant legislation, explains what sexual harassment is and clearly states that it is unlawful. In addition, there should be a clear complaints and investigation policy that the Company applies. Importantly, the complaints policy should clearly explain appropriate reporting mechanisms and ways employees may make complaints.
• Implement a code of conduct – a well written code of conduct clarifies the business’ mission, values and principles and sets the benchmark against which an individual and the organisation can be measured. It serves as a valuable reference as to the ethics required by all employees in the business.
• Provide training for employees on sexual harassment and appropriate workplace behaviour and refer to the business’ workplace policies. In addition, train your staff not to be “bystanders” when they witness inappropriate behaviour by training them to appropriately respond and deal with inappropriate behaviour in the workplace.
• Ensure employee complaints relating to harassment are taken seriously and investigated properly. It is best to undertake an external and independent investigation and seek appropriate legal advice as required. Ensure the investigation process and the findings/outcome is well documented.
• Ensure managers lead by example in demonstrating appropriate and respectful behaviour as well as responding promptly to complaints or reports of poor behaviours. To ensure this occurs, provide appropriate management training to your managers, supervisors and leadership teams.
• Consider risk factors such as social functions, the interplay of alcohol, travelling remotely and social apps where people can act recklessly. Identify risk situations for your business and educate employees of the company’s expectations in such situations.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law matter, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.