Punters beware!

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Punters beware!

Ms Weiss, a worker at a communications firm, was sexually harassed at a workplace function by a male co-worker – Mr Ledowski – who pulled her towards him and asked her to go out with him.

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Ms Weiss, a worker at a communications firm, was sexually harassed at a workplace function by a male co-worker – Mr Ledowski – who pulled her towards him and asked her to go out with him. Six months later, at a second work function, another co-worker, Mr Crisp, asked her if he could sleep in her bed and repeatedly referred to the size of his penis. He and Mr Ledowski attempted to kiss Ms Weiss, while a third employee, Mr Gould, asked her to have a naked spa with him.

Ms Weiss rejected the sexual advances of all three men and complained to her company manager that evening. He responded by telling her that she would have to put up with her male colleagues’ behaviour because ‘it goes with the territory’.

The next day Ms Weiss’s boyfriend, angered by reports of the incidents, telephoned Mr Crisp and threatened him with physical violence. Ms Weiss was subsequently advised to apologise to Mr Crisp, which she did.

In this real-life case, Ms Weiss gave evidence to the Human Rights and Equal Opportunity Commission that she was victimised and harassed from that point onwards. She said her work performance was criticised (even though her performances remained the same) and that she received her work bonus two months later than everyone else.

She also told the Commission that she was later harassed by male clients. She was informed that this had occurred because her male colleagues had encouraged the male clients to harass her, telling them that she ‘slept with the managers’. Ms Weiss immediately went on leave, claiming she could no longer work with her male colleagues.

Ms Weiss told her human resources manager of the harassment incidents. In response, she was informed that her co-workers denied they had done anything wrong. When she tried to take the matter further, the company offered her either $20,000 if she left the company, or $15,000 if she stayed but moved to another position.

When Ms Weiss declined these offers and lodged a complaint under the federal Sex Discrimination Act 1984, the matter was settled prior to conciliation, with the company paying Ms Weiss over $20,000 in damages and providing her with a work reference.

WorkplaceInfo does not want to put a dampener on the parties and social functions that offices around the country will be enjoying this afternoon in celebration of the Melbourne Cup, but it is a timely occasion to remind readers of the seriousness of sexual harassment in the workplace. And of the way that cases can spiral out of control for months if they are not dealt with quickly and appropriately, affecting workplace morale and people’s careers.

Sexual harassment is unlawful under federal anti-discrimination legislation and, as this case shows, employers can be exposed to potentially costly legal proceedings and negative publicity if they have a workplace without proper guidelines for appropriate behaviour, or a system for dealing expediently with instances of sexual harassment if they occur.

The Human Rights and Equal Opportunity Commission defines sexual harassment as ‘an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, and where that reaction is reasonable in the circumstances’.

Sexual harassing behaviour can range from actions which would also be an offence under criminal law (physical assault, indecent exposure, sexual assault, stalking or obscene communications) to ‘behaviour which creates a sexually permeated or hostile working environment’. HREOC also recognises a third form of sexual harassment – that which is accompanied by a direct or implied threat, benefit or promise. Usually committed by someone in a position of authority over the victim, this type of sexual harassment is sometimes termed ‘quid pro quo’ harassment or ‘sexual blackmail’ – because failure to comply with the harasser’s demands could lead to disadvantages in the employment or career prospects of the victim.

 Since 1994, complaints of sexual harassment have comprised more than half of all complaints under the Sex Discrimination Act 1984. Sexual harassment can be in breach of occupation health and safety legislation, and employers can be found to have ‘vicarious liability’ for the behaviour of employees. Employers can even be held responsible for sexual harassment carried out by sales people, contractors, commission workers and other agents acting on behalf their company – even sexual harassment carried out by a job applicant.

Employers can be held vicariously liable for their employee’s behaviour if it is found that they not taken ‘reasonable steps’ to prevent discrimination and harassment in the workplace, as well as in work-sponsored environments, including seminars, conferences and work functions.

HREOC guidelines state that ‘reasonable steps’ could include the following:

  • having a written and well-circulated policy prohibiting workplace harassment;
  • ensuring proper training for all staff about sexual harassment;
  • establishing and implementing effective complaint procedures;
  • treating all complaints seriously and investigating them promptly;
  • ensuring appropriate action is taken to address and resolve complaints; and
  • monitoring the workplace environment and culture.

A clear and widely promoted sexual harassment policy can also help protect employers from subsequent unfair dismissal claims, as the following case of a Westpac employee demonstrates.

The bank employee was dismissed over a single incident that occurred at a workplace party: he had ‘goosed’ a female co-worker whilst she was taking a photograph. The harasser subsequently lodged an unfair dismissal case, claiming he had been denied substantive and procedural fairness.

The Chief Justice of the Industrial Relations Court upheld the dismissal, saying that the allegations had been adequately and appropriately investigated. He concluded that dismissal was the only available option, given that the specialised nature of the harasser’s skills meant that a transfer was not possible, and that the seriousness of the behaviour amounted to a criminal offence.

A significant aspect of the case was the fact that the bank had widely promoted its sexual harassment policy, which had effectively put employees ‘on notice’. Westpac had made it very clear that sexual harassment was a breach of company policy and that it would not be tolerated.

The HREOC website has a number of resources relating to sexual harassment, including a guide to the Acts, a ‘Sexual harassment Code of Practice’, and an ‘Employers Page’, outlining rights and responsibilities.

 

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