Reasonable steps needed to prevent harassment

Cases

Reasonable steps needed to prevent harassment

An employer can avoid liability under the sexual harassment laws for the unlawful acts of an employee if it can be shown that the employer took reasonable steps to prevent the harassment occurring.

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An employer can avoid liability under the sexual harassment laws for the unlawful acts of an employee if it can be shown that the employer took reasonable steps to prevent the harassment occurring.

A recent decision of the Human Rights and Equal Opportunity Commission (HREOC) has given guidance as to some of the measures which can constitute reasonable steps. In Dippert v Luxford and Vrachnas Betabake Pty Ltd [1996] HREOCA 19 (18 July 1996), the complainant alleged that another employee had made numerous sexual comments, gestures, innuendoes and suggestions to her. The complainant felt that she was unable to complain to her supervisor because the supervisor had previously breached another employee’s confidence.

After putting up with the offending behaviour over a period of time, the complainant’s health began to suffer, she took time off work on stress leave, resigned and then filed a complaint with HREOC.

HREOC found that the alleged sexual harassment did in fact take place.

HREOC then looked at whether the employer had taken reasonable steps to prevent the harassment. HREOC said that there were a number of issues to consider in this regard, including:

  • the steps taken to ensure the workplace was a harassment free environment;
  • the nature of the company’s policies, if any, on sexual harassment;
  • the information and training provided to staff on these issues;
  • the degree of actual supervision on the shop floor;
  • the structures put in place for dealing with complaints about sexual harassment;
  • the actions taken by the manager once he became apprised of the situation; and,
  • the general culture of the workplace.
What steps were taken?

The manager gave evidence that it was well known that offensive behaviour was not acceptable. He said that from time to time staff were gathered together and reminded that no unseemly behaviour would be tolerated, and it was expressly stated that bad language was never allowed (interestingly, the harassing employee used swear words when giving evidence before HREOC).

On the other hand, there was no written policy on sexual harassment -- the manager said that this was because a number of employees did not speak English and even those that could did not read the notice boards. No evidence was given of any training programs for staff specifically dealing with sexual harassment, nor of any general education on the issue.

HREOC stated that the most significant determinant of whether the employer had taken reasonable steps was what the manager did when he was finally made aware of the situation.

HREOC found that the manager had not spoken to the offending employee individually, but had had a meeting with a number of other employees collectively. The manager claimed that they had all denied knowledge of the problem and so he had decided to do nothing further about the matter.

HREOC found that the manager’s manner of investigating and responding to the complaint was not appropriate to the proper resolution of the dispute. Consequently, the employer was found not to have taken the required reasonable steps, and was thus held jointly liable with the offending employee to pay the complainant $24,508 damages.

 
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