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Sexual Harassment (A Code in Practice) - Guidelines for small business

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Sexual Harassment
(A Code in Practice)

6. Guidelines for small business

6.1 General principles

There is no exemption in the Sex Discrimination Act for small
business.

Employers in all small businesses, whatever the size, may be
vicariously liable for acts of sexual harassment committed by employees
unless all reasonable steps were taken to prevent it occurring.

Recent case law suggests that even very small businesses will
need to have a written policy on sexual harassment to demonstrate that
all reasonable steps were taken to prevent harassment occurring. However,
this need only be a simple written policy effectively communicated to
all staff.

The policy should include:

  • a definition of sexual harassment;
  • a statement that sexual harassment will not be tolerated in the workplace;
  • how sexual harassment complaints will be dealt with;
  • sanctions that will attach to sexual harassment if it occurs; and
  • contact numbers for external complaints agencies such as HREOC.

To implement the policy, management must ensure that all employees
are aware of the policy and understand it. In a small business this can
be done by orally informing and regularly reminding each employee about
the policy.

Small business enterprises are encouraged, where necessary,
to adapt particular recommendations in this Code according to their needs,
circumstances and resources. However, many of the recommendations contained
in this Code can and should be adopted by businesses of all sizes.

6.2 Explanatory notes

6.2.1 Small business

A significant number of sexual harassment complaints received
by HREOC involve small businesses. Employers should be aware of the potential
for sexual harassment to occur in the context of close working relationships
where staff are on familiar terms with one another and should take appropriate
precautions to avoid this risk.

Policies

It is recommended that small businesses have a written policy on sexual harassment.

The employer should ensure that all employees are aware of
the sexual harassment policy and that sexual harassment is unlawful. This
can be done by, for example, orally informing all employees of the policy,
displaying the policy on notice boards, distributing brochures and displaying
posters on sexual harassment. Training for general and supervisory staff
should incorporate information on sexual harassment.

Complaints

Owners and employers in small business should nominate themselves
or a responsible senior employee as a sexual harassment complaints officer.
This person should be provided with any training or resources offered
by employer organisations, small business associations, industry associations,
HREOC or State orTerritory anti-discrimination agencies. The general principles
that apply to informal and formal complaint procedures outlined in Chapter
5 should be observed.

Assistance with sexual harassment issues for small business

If it is difficult or impractical for a small business to develop
its own policy, employer organisations, small business associations, industry
associations or State or Territory anti-discrimination agencies may be
able to assist. Some organisations will be able to provide a generic model
sexual harassment policy or examples of policies which can be adapted
for use in the enterprise.

Small businesses in a particular industry sector may wish to
consider developing a joint policy for implementation throughout the industry.
Interested businesses should approach the relevant industry association
for assistance in co-ordinating the process.

Brochures, posters and other educational material on sexual
harassment can be obtained from HREOC, State or Territory anti-discrimination
agencies and/or relevant unions and employer organisations.

If assistance is required to deal with a complaint, advice
should be obtained from employer organisations, small business associations,
industry associations, HREOC or State or Territory anti-discrimination
agencies.33

6.2.2 Very small business

Policies

The case law suggests that even very small businesses
should have a simple written sexual harassment policy.34

In very small businesses where the owner or employer has direct
contact with all employees and is responsible for overseeing all aspects
of daily operations, steps to address sexual harassment and implement
the sexual harassment policy may include:

  • orally informing all employees that sexual harassment will not be tolerated under any circumstances and that disciplinary action will be taken against an employee who sexually harasses a co-worker, client or customer, contractor or other workplace participant;
  • providing all staff with brochures and displaying information on noticeboards
    regarding sexual harassment;35
  • informing new staff that it is a condition of their employment that they do not sexually harass a co-worker, client or customer, contractor or other workplace participant; and
  • keeping a diary note, which may later be useful as evidence, when staff are informed of the employer's policy on sexual harassment and when information is displayed and updated.
Complaints

Employees in very small business should be advised to make
a complaint to the owners or employer if they are subjected to sexual
harassment. The general principles that apply to informal and formal complaint
procedures outlined in Chapter 5 should be observed.

Employees should be advised that they also have the right to
approach their union, HREOC or their State or Territory anti-discrimination
agency.

Assistance with sexual harassment issues for very small business

If the owner or employer requires assistance to deal with a
complaint, they should contact employer organisations, small business
associations, industry associations, HREOC or their State or Territory
anti-discrimination agency for advice.

Owners or employers in very small business are encouraged to
attend relevant seminars or training sessions run by employer organisations,
small business associations, industry associations, HREOC or their State
or Territory anti-discrimination agency.

Owners or employers in very small business are encouraged
to obtain any available resources on discrimination, harassment and their
legal responsibilities from employer organisations, small business associations,
industry associations, HREOC or their State or Territory anti-discrimination
agency.

Case example: Small business

A
woman was employed in a photographic laboratory by the respondent
company. She alleged that she was sexually harassed by her supervisor
and that the behaviour also constituted sex discrimination for which
the company was liable.

The respondent company argued
that it took reasonable steps to prevent sexual harassment, pointing
to the general instructions given to new employees to treat others
with courtesy and respect.

Federal Magistrate Driver found
that sex discrimination had occurred, and that the company was liable.
He said:

[t]he [Sex Discrimination
Act] does not distinguish between large and small employers, in
terms of [the meaning of "reasonable steps"] ...however, it would
be unrealistic to expect all employers, regardless of size, to
adhere to a common standard of preventative measures. ["Reasonable
steps"] has been interpreted in Australia as requiring the employer
to take some steps, the precise nature of which will be different
according to the circumstances of the employer. Thus, large corporations
will be expected to do more than small businesses in order to
be held to have acted reasonably.

In this case, the steps that had been taken
were, even for a small business, found to be "insufficient and ineffective".

Cooke v Plauen Holdings [2001] FMCA 91

Another case, Gilroy v Angelov36 , below, demonstrates the importance of a written policy, even for
small business. Note that a written policy still needs to be implemented
effectively, through communication to all employees, for employers to
feel confident that they will not be vicariously liable for employees'
harassing behaviour.

Case example: Small business

A
woman made a sexual harassment complaint against a male co-worker
in a small cleaning business. She told her employer about the harassment
but it continued.

Since her employer had actual
knowledge of the harassment, it was not necessary for the court
to determine whether all reasonable steps had been taken. However,
Justice Wilcox made important comments indicating what a small business
must do to establish that it took all reasonable steps to prevent
harassment. He said:

[i]t may be more difficult
for a small employer, with few employees, to put into place a
satisfactory sexual harassment regime than for a large employer
with skilled human resources personnel and formal training procedures.
But the Act does not distinguish between large and small employers,
and the decided cases show that many sexual harassment claims
concern small businesses, often with only a handful of employees.
A damages award against such an employer may have devastating
financial consequences; so there is every reason for such an employer
to be careful to prevent claims arising
.

Justice Wilcox said that there
was a "simple procedure" that would go "a long way" towards allowing
a small business employer to argue that all reasonable steps had
been taken to prevent sexual harassment. This was:

...to prepare a brief document
pointing out the nature of sexual harassment, the sanctions that
attach to it and the course that ought to be followed by any employee
who feels sexually harassed. ...[S]uch a document could be provided
to each employee on recruitment, as a matter of routine and before
there was, or could be, any suggestion that the employee had done
anything wrong or was the victim of inappropriate conduct.

Gilroy v Angelov (2001) 181 ALR 57

Footnotes

33. Contacts for
complaints assistance from HREOC and State and Territory anti-discrimination
agencies are at Appendix B.
34. See Gilroy v Angelov (2000)
181 ALR 57, case study at pages 53-54. See discussion above at 4.2.2 on
developing such a policy.
35. These may be obtained from HREOC.
See contact details at Appendix B.
36. See Gilroy v Angelov (2000)
181 ALR 57; see case study on pages 53-54.


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Last updated:
24 March 2004.