Fostering respect in the workplace is a crucial part of running a successful business. But this isn’t always as simple as it sounds!
Building a respectful workplace culture can be hard work - and tackling the problem of sexual harassment at work is a key component of this.
During the past several years, sexual harassment and misconduct in the workplace have become front-page headlines. A recent wave of concerning news stories have shone a light on the problem of sexual harassment across Australia, including in Parliament House.
Sexual harassment is disturbingly common in the Australian workplace. A 2018 report by the Australian Human Rights Commission found that, over a five-year period, 39 percent of women and 26 percent of men had experienced sexual harassment in the workplace. Indigenous women, women living with disabilities, and those of diverse sexual orientations were found to be particularly at risk of sexual harassment.
The pervasiveness of sexual harassment in Australian workplaces has been increasingly recognised in recent years with some steps being taken to address this issue.
Published in 2020, the Respect@Work: Sexual Harassment National Inquiry Report found that “workplace sexual harassment in Australian workplaces is both prevalent and pervasive, and that the current legal and regulatory system is insufficient to effectively deal with it.”
In response to the findings of the report, the Federal Government introduced a series of reforms last year, amending the Sex Discrimination Act, the Fair Work Act and The Australian Human Rights Commission Act. These reforms, based upon recommendations provided by the Sex Discrimination Commissioner, make sexual harassment a fireable offence, allow employees a longer period to report sexual harassment (24 months, as opposed to 6 months), and more explicitly emphasises that “harassing a person on the basis of sex is prohibited.”
With amendments to the Fair Work Act, the Fair Work Commission can now issue prevention orders to businesses and individuals, where it is satisfied that sexual harassment has occurred, and that there is a risk of further harassment in the future.
Importantly, the reforms have also established a broader “definition of what constitutes work and by whom, meaning more vulnerable workers will be covered, as well as people working from home.”
This reform represents a major change to previous legislation and, in an interview with The Drum, Sex Discrimination Commissioner Kate Jenkins noted her report had found some “employers were trying to prove someone wasn't at work when they were harassed.”
Sexual Harassment ‘Out of the Office’
Other recent developments are worth taking note of.
A key takeaway from a recent Fair Work Commission ruling was that workplace sexual harassment can indeed occur ‘outside the office’.
This relates to an unfair dismissal claim filed by an employee after he was accused of inappropriately touching one female colleague and verbally abusing another.
These incidents took place at a pub, following a compulsory ‘offsite development day’ for 160 employees of a major corporation. Following the development training, a networking event had been organised by the company at a nearby pub.
After consuming around 10 standard drinks at this event, it was alleged that, in two separate incidents, the male employee inappropriately touched one female colleague and verbally abused another. After the allegations were reported and investigated by the company, the employee was terminated – ending a career of 35 years.
In his appeal to the FWC, the applicant argued the incidents had occurred outside of working hours, and that he did not have a direct working relationship with either of the female employees.
Ultimately, the appeal was dismissed due to the nature of the event; which was deemed as having “occurred on the border between a work-related event and private activities”. The FWC ruled the termination was valid as the company’s sexual harassment policy applied when the employee was at work or representing the company.
For both employees and businesses, there are major lessons here concerning sexual harassment and mutual respect in ‘out of office’ contexts.
Employees must be aware that their responsibilities of mutual respect towards colleagues do not end when they leave the office. Behaviour constituting sexual harassment (whether it occurs during work hours or at a work-related event) can lead to termination.
For employers, decisions about work events need to be carefully considered. In her ruling on the unfair dismissal case, FWC Deputy President Melanie Binet was highly critical of the company’s choice of venue and its decision to provide employees with “…unrestricted access to alcohol for more than two hours”.
What should businesses take away from this?
One of the key takeaways from these recent developments is that, as a business owner/manager, you need to be proactive in minimising the risk of sexual harassment, whether it occurs inside or outside of the office.
It is strongly recommended that your business regularly review and update your policies on sexual harassment in the workplace (taking into account recent reforms and developments) and then clearly communicate them to your workforce.
With the definition of ‘workplace’ now expanded, employers and employees need to be aware of their individual behaviour and responsibilities in interacting with other members of the workforce outside of the office.
NEED FURTHER SUPPORT?
Akyra can help your business to assist and support all your questions and concerns related to respect in the workplace including sexual harassment.
Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
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