Skip to main content

Sexual Harassment (A Code in Practice) - Other duties of employers

Back to Table of Contents

Sexual Harassment
(A Code in Practice)

8. Other duties of employers

8.1 General principles

Defamation

Defamation laws protect a person's reputation. It is not defamatory to confront an alleged harasser in private with a claim of sexual harassment, or to make an individual complaint of sexual harassment to someone who has a legitimate and genuine interest in knowing about the incident, such as a manager, sexual harassment contact officer, complaints officer or counsellor, so long as the complaint is made in good faith.

The Sex Discrimination Act protects from civil legal action people who provide information or evidence to HREOC if, by providing the information, they have caused injury or damage to another. This includes injury or damage to reputation.

Managers, sexual harassment contact officers, complaints officers and counsellors should maintain confidentiality at all times. Information concerning the complaint should only be discussed with other authorised personnel involved in the particular case.

Termination of employment

If an employee is dismissed because of sexual harassment, the dismissal must be consistent with the obligations in the Workplace Relations Act 1996 (Cth) (the Workplace Relations Act) and State and Territory laws in relation to termination of employment. The Workplace Relations Act entitles many employees to protection against unfair or unlawful dismissal. Any dismissal should also comply with the terms of any relevant award or enterprise agreement.

Occupational health and safety

Sexual harassment in some cases can be a breach of an employer's common law duty to take reasonable care for the health and safety of employees.

Sexual harassment can also be a breach of occupational health and safety legislation.

8.2 Explanatory notes

8.2.1 Defamation

Defamation is an issue that often arises in sexual harassment complaints because of the potential damage that can be inflicted to a person's character, reputation and standing. You may find that an individual is reluctant to pursue a complaint because they have unfounded fears of being sued. Alternatively, an alleged harasser who claims to have been falsely or vexatiously accused of sexual harassment may indicate that they intend to commence an action for defamation. However, the application of defamation law in the context of sexual harassment allegations is limited.

Each Australian State and Territory has its own defamation laws, with a mixture of legislation and case law applying.

Protection of the parties

Defamation is the publication or making of a statement about someone, which lowers their reputation with people or leads other people to avoid or shun them. Everyone involved in communicating a defamatory statement is liable, including those who repeat its publication. For a statement to be defamatory it may either be intentional or negligent. Examples would include spreading a story about an alleged harasser, either orally or by email, around the workplace, or by carelessly leaving a file containing such information where inappropriate people could read it. However it is not defamatory for a person with a complaint of sexual harassment to confront the alleged harasser directly and in private, or to send them a private letter outlining the offensive behaviour, as this does not damage their reputation with others.

Nor will it be defamatory for an individual to make a complaint to a person who has a legitimate and genuine interest in knowing about the incident, such as a sexual harassment contact officer, a complaints officer or management. As long as the complaint is made in good faith through the proper channels it is unlikely to be defamatory.

This protection will be lost if an individual makes a complaint in bad faith without genuinely believing it to be true, is motivated by malice or indiscriminately broadcasts the allegations.

People making sexual harassment complaints or providing information to HREOC are protected from civil actions, including defamation, under s111 of the Sex Discrimination Act.

The parties to a complaint should be warned of the legal risks associated with disclosing the allegations or counter-allegations generally. They should be advised to maintain confidentiality and to discuss the complaint only with those who have official responsibility for dealing with it.

Protection of designated personnel

Anyone with a recognised genuine interest in the resolution or investigation of a complaint of sexual harassment (either informal or formal) is protected by the defence of qualified privilege.

Statements which would ordinarily be defamatory may be made by a person in the performance of a moral, social or legal duty to another person who has a corresponding duty to receive that information. As sexual harassment is unlawful, a person who is responsible for dealing with complaints can discuss the allegations where it is required for the performance of their duty.

Employers can protect their line managers and other staff likely to receive complaints of sexual harassment from allegations of defamation by formally appointing and training them as sexual harassment complaints or contact officers. In that way, the employer will not only have good processes in place for dealing with sexual harassment complaints, but the officers will be more likely to attract the defence of qualified privilege.

Managers, sexual harassment contact officers, investigation officers and counsellors should maintain confidentiality at all times. Information concerning the complaint should only be discussed with other authorised personnel involved in the particular case.

8.2.2 Termination of employment

Prior to terminating the employment of an employee in connection with harassment allegations, it is important to have a good understanding of the relevant legislation in respect of termination, as well as employers' obligations in regard to process. At a federal level, termination of employment is covered by the Workplace Relations Act. However, most States have their own legislation that may also be applicable.42 Both federal and State legislation make unfair dismissal - the "harsh, unjust or unreasonable" dismissal of an employee - unlawful. Any dismissal should also comply with the terms of any relevant award or enterprise agreement.

This is a complicated area of the law and it is beyond the scope of this publication to provide a guide to termination and the relevant federal and State legislation. However a check-list is provided below of some of the standards of procedural fairness that all employers should follow when considering terminating an employee's employment (as well as following their own policies on termination).

  • If the termination is for a reason other than serious misconduct (see the discussion of serious misconduct below), the employee should be warned and counselled about the issue in accordance with law and practice.
  • An investigation should be conducted by the employer concerning the allegations and written notice of the allegations given to the employee.
  • The employee should be interviewed before the decision to terminate is made. The employee should be given reasonable notice of the interview and it should be made clear to them in advance that:
    • termination is under consideration and that the outcome of the interview could be termination; and
    • they should have a witness of their choosing present with them at the interview.
  • At the interview, the employee should be given full opportunity to:
    • reply to any reasons/accusations put;
    • be heard about any matters the employer should be aware of when deciding whether to dismiss the employee; and
    • be heard about whether they should be terminated, if the employer finds the allegations against the employee are true.
  • The employer should carefully consider all matters raised by the employee at the interview, prior to making a decision to dismiss the employee. The employer should keep careful notes of each step in the process.
  • If an employer wishes to terminate the services of an employee, the employer must give the employee notice of their termination, or payment in lieu of notice, as well as all other applicable payments such as outstanding wages, pro-rata annual leave and, in some cases, long service leave.

The legislation recognises there are some instances where it would be inappropriate for an employer to give notice or pay in lieu of notice upon termination. This is what is known as "summary" or instant dismissal, and occurs in the case of serious and wilful misconduct by an employee. If the termination is for reasons of serious misconduct and the employer gives no notice, there is a reverse onus of proof in subsequent proceedings. This means that the employer would have to prove the fairness of the termination, rather than the employee having to prove that it was unfair as in other unfair dismissal matters. If there is some doubt in the employer's mind that the misconduct was not serious and wilful, the employer should give consideration to a payment in lieu of notice.

Summarily dismissing an employee is a serious step for an employer to take. It is still essential for an employer to investigate all issues thoroughly, and to give the employee a chance to respond to allegations before making the decision to terminate. If the need arises, an employer can suspend the employee on full pay until the facts have been established and a decision made. If, after carefully investigating a situation, an employer decides to summarily dismiss an employee, there is still a requirement to make all applicable payments such as outstanding wages, pro-rata annual leave and, in some cases, long service leave to the employee.

Following these guidelines will not prevent an employee from commencing an unfair dismissal application in the Australian Industrial Relations Commission (AIRC), or other relevant State tribunals, but will put an employer in a better position to defend a claim. Each case is considered by the AIRC or State tribunal on its individual merits. It is recommended therefore that employers seek their own independent advice prior to terminating an employee's employment.

Case example: Termination of employment

An employee was dismissed on the grounds of misconduct after making phone calls of a sexual nature to a woman whilst at work. The employee also made phone calls of a sexual nature to a work contact both during and out of work hours. The woman receiving the phone calls complained about the nature of the phone calls and that she had not provided the employee with her home telephone number.

The employee lodged proceedings in the Australian Industrial Relations Commission alleging that his dismissal was harsh, unjust or unreasonable. The Commissioner stated that:

...objectively such behaviour amounted to sexual harassment, was unprofessional, was contrary to the interests of his employer, was embarrassing to his employer, had potential to reflect badly on the reputation and effective functioning of his employer."

He held that the misconduct in itself was a valid reason for termination of his employment and found that the dismissal was not harsh, unjust or unreasonable. The Commissioner noted that "the Commission should have regard to the fact that (he) has shown no remorse for his actions."

Vaticano v Commonwealth Services Delivery Agency
Australian Industrial Relations Commission No. 40187 of 1997 Print P9223.

Case example: Termination of employment

An employee was summarily dismissed for using company records to telephone women staff at home. He was reinstated and compensated because the employer had not observed procedural fairness in the process of dismissing him. The employer had failed to communicate the specific allegations to the employee, had not given him an adequate warning over this particular incident (although he had received a prior warning for using computer records to contact a female passenger), and had never made it clear that misconduct of this nature would amount to a breach of company policy warranting dismissal.

Haines v Qantas Airways Ltd
Australian Industrial Relations Commission No. NI 663 of 1994
8.2.3 Occupational health and safety

Employers have a common law duty to take reasonable care for the health and safety of their employees.43 This common law duty is reinforced by occupational health and safety legislation in all Australian jurisdictions.

An employer can be liable for foreseeable injuries which could have been prevented by taking the necessary precautions. As there is considerable evidence documenting the extent and effects of sexual harassment in the workplace, it has been argued that the duty to take reasonable care imposes a positive obligation on employers to reduce the risk of it occurring.

A work environment in which an employee is subject to unwanted sexual advances, unwelcome requests for sexual favours, other unwelcome conduct of a sexual nature, or forms of sex-based harassment, is not one in which an employer has taken reasonable care for the health and safety of its employees. A work environment or a system of work that gives rise to this type of conduct is not a healthy and safe work environment or system of work...An employer could be regarded as not having acted reasonably to prevent a foreseeable risk if practicable precautions are not taken to eliminate or minimize sexual harassment in the workplace.44

Failure to fulfil the duty of care can amount to a breach of the employment contract as well as negligence on the part of the employer. This means that an employee who has been harmed could bring an action against their employer in contract or tort.

Footnotes

42. Victoria, Australian Capital Territory and Northern Territory do not have their own legislation, but are covered by the Workplace Relations Act 1996 (Cth).
43. Note that this is a complex area of law and it is beyond the scope of this publication to address occupational health and safety issues in any detail. Employers should seek independent legal advice on these issues.
44. Therese MacDermott "The Duty to Provide a Harassment-Free Work Environment" (1995) 37(4) Journal of Industrial Relations 495 at 505-506.


<< Back || Next >>

 

Last updated: 24 March 2004.