Ask an Employment Lawyer is a series by Recruitment Marketing Magazine with Jonathan Mamaril, Director for NB Lawyers – Lawyers for Employers. If you’re a talent leader or HR professional subscribed to RMM, ask any talent engagement, employment law or workplace-related question and have it answered in this series. In this instalment, Jonathan shares advice for organisations that have been relying heavily on JobKeeper before the program reaches its end.
With the backdrop of a number of sexual harassment claims currently in the news cycle and potentially plenty more, the issue of sexual harassment (and to some extent bullying) is now at the forefront. As such, a number of clients have sought advice in defending against liability and sexual harassment claims.
From the outset, a sexual harassment claim must be handled with proper care and attention – organisations should have a policy or process to deal with such claims. Failing this, the attention of the people managers in the business such as HR and People and Culture must be informed and if need be seek legal advice at the earliest opportunity.
Here are the major steps employment lawyers take when employers seek advice.
1. Investigating the claim
Once a sexual harassment claim is received it is important to thoroughly and properly investigate the claim. There are a number of issues to consider:
- What are the details of the claim?
- Who is the person that should be investigating the claim?
- What policies or procedures will need to be adhered to (if any)?
- Who are the parties to the claim?
- What background information is required?
- Who will be interviewed?
- What will the parties be asked in the interview?
- What are the findings?
Organisations’ workplace investigations must be capable of being relied upon for any future actions. There is also the element of a conflict of interest which requires further thought regarding the consequences of any real or perceived conflict. The workplace investigation report itself also requires analysis.
2. Ascertaining harassment
Anti-discrimination laws broadly define sexual harassment. In practical terms, it includes:
- Unwanted sexual advances
- Unwelcome conduct of a sexual nature
- Unwelcome requests for sexual favours
When advising employers as to whether conduct is sexual harassment there are three main elements:
- Is the unwelcome conduct of a sexual nature;
- which makes a person feel offended, humiliated or intimidated; and
- is a form of sex discrimination.
Sexual harassment is not interactions, flirtation or friendship which is mutual or consensual. However, where the “line” is drawn can be difficult to ascertain.
Conduct can be found to be sexual harassment if a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated by the conduct.
Examples of sexual harassment include, but are not limited to:
- unwelcome physical contact such as pinching, touching, grabbing, kissing or hugging;
- staring or leering at a person or parts of their body and/or making suggestive comments about their body or appearance;
- sexual jokes or comments, sexually explicit emails, texts and/or conversations;
- requests for sexual favours;
- persistent requests to go out, when they are refused;
- displays of offensive material such as posters, screen savers, internet material etc. and/or accessing or downloading sexually explicit material from the internet; and
- intrusive questions or insinuation about a person’s private life.
3. Assessing potential risks and liability
Employers can be held liable for acts of sexual harassment committed by employees. Defending a claim will be determined on whether all reasonable steps were taken to prevent the sexual harassment. Some of the elements that may be considered include:
- whether the employer has a written sexual harassment policy;
- whether sufficient training on the sexual harassment policy was undertaken;
- whether the employee knew about the sexual harassment policy?
- whether the sexual harassment policy contains sufficient details including, a description of unlawful sexual harassment, disciplinary action that may be enacted if the policy is breached and details regarding the procedure for making complaints and reports about policy breaches;
- the steps taken by the employer after it became aware of alleged sexual harassment.
The major claims that can be formed from a sexual harassment complaint are:
- an anti-discrimination complaint under state or federal jurisdiction
- a General Protections claim
- dispute under a relevant industrial instrument
Of course, there may be other trigger events that lead to a workers compensation claim or unfair dismissal claim.
4. Potential resolutions
There is a myriad of ways a complaint around sexual harassment can be resolved. There are of course many more steps than the above however here are some resolutions that may be considered:
- disciplinary action be it a warning, demotion or after a show cause process, termination of employment
- increased supervision / monitoring
- mediation
- training/further training
- counselling
- formal apology
- communication of policies to workforce.
Do you have a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*.
*This series may be limited. Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.
Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.