​Advice from Paul O’Halloran – Partner at Colin Biggers & Paisley

We invited Workplace Relations Lawyer, Paul O’Hallaran, to present to some of our Engineering clients on what he considers “the biggest HR issue in the World at the moment” – Sexual Harassment.

While often a confronting topic to tackle, Paul has kindly highlighted some key considerations for employers. In an effort to create better awareness, and prevention, of sexual harassment, we wanted to share Paul’s advice with our network:

Paul  commenced his presentation on sexual harassment in the Workplace by posing  the question, would the following action be considered sexual harassment?

• Saying to a colleague "you look hot";

• Visibly eyeing someone up and down;

• Viewing porn on your computer visible to others;

• Talking about your sex life in the lunchroom;

• Sending explicit text messages to a colleague;

• Coming up behind a colleague and rubbing their shoulders in a suggestive manner.

He then advised that to amount to sexual harassment, comments or actions must be unwelcome and of a sexual nature. It must be conduct that a reasonable person considers would offend, humiliate or intimidate. It’s important to remember sexual harassment is not just limited to physical contact. Harassment can occur in a number of ways including with words or images via text messages, emails etc.

In Australia, judicial expectations requiring corporate compliance were articulated in the watershed decision  in Richardson v Oracle Corporation Australia Pty Ltd. In this case, the Full Court of the Federal Court awarded $130,000 in damages to a female employee for sexual harassment, finding the employer vicariously liable for the actions of one of its male employees. Comments made by the harasser included:

• "Gosh, Rebecca, you and I fight so much ... I think we must have been married in our last life";

• "So, Rebecca, how do you think our marriage was? I bet the sex was hot";

• "We should go away for a dirty weekend sometime";

• "I love your legs in that skirt. I'm going to be thinking about them wrapped around me all day long".

The damages awarded in Oracle are no longer the high watermark. More recently in Collins v Smith, the Victorian Civil and Administrative Tribunal almost tripled the amount awarding a complainant over $330,000 in damages for proven sexual harassment.

Failure to manage complaints poses a significant corporate governance risk for employers. This is due in large part to the reputational damage caused by such claims, and the fact that employers can be held vicariously liable for acts of sexual harassment committed by employees, unless all reasonable preventative steps are taken by employers.  

There is absolutely no doubt judges are willing to award large sums of money to employees subject to proven sexual harassment at work in order to send the message that sexual harassment must be eliminated from the workplace. It is therefore essential that employers make sexual harassment training and compliance a mandatory component of corporate governance practices this year and into the future.

My advice to businesses

To reduce the risk of employees being sexually harassed and employers being held vicariously liable for  sexual harassment I strongly encourage employers to take the following steps now:

• have an up to date sexual harassment policy compliant with the judicial expectations emerging from the case law;

• ensure detailed face-to-face or interactive webinar training is conducted for all employees preferably bi-annually or at minimum once a year; 

• Educate senior executives and Board members of the legal and reputational risks of sexual harassment and the need for vigilant compliance;

• undertake prompt, transparent and appropriate investigations into allegations using qualified and experienced investigators in order to identify and resolve complaints.

For more advice on sexual harassment, or other workplace relations matters, Paul can be contacted directly at Paul.Ohalloran@cbp.com.au.