There has been an explicit prohibition on sexual harassment in the workplace for almost 40 years since the introduction of the Commonwealth Sex Discrimination Act in 1984. So, it is profoundly disappointing that it still is a feature of some workplaces.
Eliminating sexual harassment (and other forms of harassment, discrimination and bullying) requires a serious commitment. That commitment begins with the implementation of a clear code of conduct which sets out the acceptable standard of behaviour in the workplace and the conduct which will not be tolerated.
But workplace policies are not enough. They must also be supported by:
- regular training so that all staff members are aware of the policies and know how they apply to them; and
- a fair and transparent investigation and complaints procedure which is applied consistently and without bias;
- serious consequences for those found to have perpetrated sexual harassment or failed to act in respect to any complaint of sexual harassment.
Staff Training
Training staff must empower those who have experienced or witnessed harassment to report the issue promptly to those in charge.
Stopping unwanted behaviour should not fall to the victim alone.
Employees should be encouraged to report unwanted conduct irrespective of whether the person making the report was the victim of unwanted behaviour, the person witnessing such behaviour or just a person that hears about it after it occurs.
Staff should be taught what their responsibilities are. They need to know what to do if something happens to them but also what is expected of them if they are told of (or learn about) unwanted behaviour.
Investigating Complaints
Any procedures to investigate complaints must be independent of those involved in the alleged conduct. Both the accused and the accuser must have the ability to put forward any facts or materials and their submissions must be properly considered.
For small workplaces, or those without a dedicated HR team, it can often be best to outsource the investigation process to a third party or seek specialist advice on how to conduct a workplace investigation.
Take Matters Seriously
The policies prohibiting harassment must also be applied (and be seen to be applied) without exception. That is, all matters must be taken seriously and where necessary, they must be properly investigated with consequences for those who engage in sexual harassment.
Employees must feel their concerns will be treated seriously, otherwise they will not feel empowered to report their concerns and unlawful behaviours will be allowed to flourish unchecked.
Critically, this means that senior staff must act when they learn of instances of sexual harassment and they must make it their business to know what is going on in their workplaces or with their team members.
When I carry out workplace investigations for clients, it is often striking to find that many senior employees know of the alleged conduct, or have at least heard rumours about it, but elect to ignore those matters because “no formal written complaint was made”. I regularly find that victims are directed to put their complaint “in writing” before anything serious is done. Unfortunately, this attitude ignores an employer’s overarching legislative obligation to ensure a safe workplace and it allows appalling behaviour to go unchecked. All too often it leaves the most vulnerable employees without critical support.
Senior staff must investigate matters properly as soon as they learn something untoward may have gone on. This obligation applies whether or not they have a complaint in writing.
On the flip side, there are workplaces where senior staff are completely oblivious to what has occurred amongst their employees. Having an open-door policy and remaining accessible to staff members is an important way to ensure you know what is going on and can prevent unwanted behaviours from developing. Employees must feel comfortable enough to come forward and report their concerns to you without fear of being ignored, belittled, or victimized.
Eliminating sexual harassment in the workplace requires a serious effort, but the strategies above work. All it takes is employers who are committed to prioritising a safe workplace above all else.
For more information contact Leonie Kyriacou on l.kyriacou@pigott.com.au
This article is intended to provide general information in summary form on a legal topic, current at the time of publication. The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.
© Pigott Stinson 2021