The Fair Work Commission (FWC) has highlighted the importance of fostering a workplace culture that encourages the reporting of sexual harassment incidents as part of the positive duty to prevent sexual harassment in the workplace, finding that an employer needs to do more to meet this duty.
In a recent Unfair Dismissal matter before the FWC, the FWC upheld the decision of an employer to terminate an employee who had a pattern of repeated and inappropriate behaviour towards other employees, including conduct of a sexual nature.
The employee electrician was employed for approximately 3 years. During that time, allegations surfaced against the employee regarding his failure to communicate respectfully and appropriately with work colleagues, and that he made comments of a sexual nature. When asked to respond to the allegations, the employee stated that sexually inappropriate comments were “commonplace” at work and questioned why the matters were not raised with him at the time of the alleged incidents.
The employer subsequently launched a formal investigation, which revealed a pattern of repeated and inappropriate behaviour of a sexual nature. Following the investigation, the employer dismissed the employee.
The FWC found that the employee sexually harassed his co-workers through his comments and that a reasonable person would anticipate the possibility that the comments would cause a co-worker to be offended. The FWC dismissed the employee’s claims that the comments were made consensually as part of common workplace chatter.
Although the FWC upheld the dismissal, the FWC also directed comments at the employer saying that the matter had uncovered a workplace culture that did not encourage reporting, with employees trying to manage matters on their own. The FWC said that this allowed inappropriate behaviour to go unchecked for lengthy periods of time, increasing the risk of harm to employees. It was stated that the employer would need to do more to meet its duty to prevent workplace sexual harassment in the future, including conducting a program of training for managers and employees.
The case provides useful guidance for employers on how to meet their new positive duty, including:
Ensure that you have a sexual harassment policy: Employers should ensure that they have a sexual harassment policy in place and that they conduct training in such policies.
Have a reporting procedure: Have a procedure in place for employers to report incidents involving sexual harassment and inform and train employees in the procedure.
‘Speak up’ culture: Encourage employees to come forward with complaints or concerns relating to sexual harassment in the workplace.
Workplace ‘chatter’: If employers are aware of inappropriate comments being made in the workplace, they should take appropriate steps to address this.