May 18, 2019
In our experience, most sexual harassment claims are not what you’d expect. More often than not, there hasn’t been any instance of blatant groping or blazen propositions, but only more subtle conduct, such as an inappropriate joke or holding a gaze to the point of awkwardness. The common forum seems to be after work drinks or business social events, where inhibitions are lacking. Dare we also say that, in most cases we have dealt with, the complainant is also unusually highly sensitive, often because of some unrelated experience. However, no matter how trivial a claim may seem, or how innocent the conduct complained of actually is, these claims can have disastrous consequences for employees and employers.
Sexual harassment is defined widely under both the NSW and federal regimes, to cover not only unwelcome sexual advances or requests for sexual favours, but also other ‘unwelcome conduct of a sexual nature … in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or offended’. Possibility is a very wide term, as opposed to probability, for example, and therefore stretches the bounds in terms of the types of conduct that might be caught. Some examples of the circumstances that may be considered in applying the test include the sex, age, marital status and religious beliefs of the complainant, and even the relationship they have with their accused, plus other “relevant factors”, so you can see how, in practice, even if someone who is unusually sensitive complains about an innocent joke, it could pass the test.
When most people think about sexual harassment, they imagine the high profile cases direct on point seeking vast amounts of compensation, a la David Jones. In reality though, sexual harassment is more often the silent killer of employment and even careers. Because of the public nature of these cases and sensitivities involved, we find that most complaints remain at the workplace level. While this is great for both parties, given their privacy is generally upheld, it can actually be detrimental for the accused, for example if they are a high-powered executive with a career on the line, and there are several reasons why…
From the employer’s perspective, they have a legal obligation to uphold the laws prohibiting sexual harassment. They also have a legal obligation to ensure the health and safety of employees in the workplace. Delving a little deeper into relevance, there are also the new anti-bullying measures in place in the Fair Work Act, and the common law duties they have to employees that exist independently of legislation or employment contracts, such as the duty to act reasonably towards the employee and the duty not to conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee. A finding against the employer on any one of these grounds following a claim that was progressed could result in a sizeable compensation payout to the complainant employee,a workers’ compensation claim, anti-bullying orders that result in the forced disruption and restructure of their operations or even a constructive dismissal claim. At its most basic level, it all means money, and therefore the employer business is at serious risk.
The natural step, therefore, is for the employer to rely on the common employment contract term enabling instant dismissal for serious misconduct. Unless the employee is prepared to fight, which might involve some level of publicity, or at least a publicly-available record of any proceedings, they will usually walk away with their tail between their legs. In the more serious cases, the employer may also refuse to even provide the employee with a statement of service, and may tell any subsequent prospective employer calling for a reference about the matter. In the more serious and genuine cases, this would be almost always be justified, but in most cases, it isn’t, given that an innocent (albeit perhaps inappropriate) joke with no malice can effectively ruin someone’s life. If the employee is prepared to fight, more often than not they would succeed in these more innocent cases, but there’s the catch 22: by the time they’ve done this, for example through an unfair dismissal claim, there’s no chance reinstatement would be ordered, as the relationship between the employer and employee has been well and truly destroyed, and the prospects of reinstatement will be even less if the complainant still works there. If reinstatement is ordered and the complainant still works there, or even if not, the employer might naturally look to progressively getting rid of the employee anyway in order to cut liabilities. Either way, you can assume the prospects of partnership are gone, and there might come a point in time where the employee must look elsewhere for employment. It is here they will struggle as, even though they may have cleared their name, with such information in the public domain, most will follow the adage ‘where there’s smoke, there’s fire’.
In light of the above, in practice, the best outcome is a negotiated payout in exchange for mutual releases, confidentiality, non-disparagement and a reference. However, these days employers are reluctant to give descriptive references, owing to claims like this, so the employee would be doing well to just get a statement of service: a simple, objective, matter-of-fact statement to the effect that the employee was employed over a certain period of time in a certain position. Other employers, and lawyers, know what that means, especially when a high-level and perhaps even decorated executive comes to an interview with that in circumstances where the immediately previous employer is not available to provide a verbal reference.
Overall, it can be pretty grim for an employee, but the employer loses out as well, as in most cases, the employee was employed in the first place because of their talent and contribution to the business. The employer then has to try to find someone to fill that void, and often pay to bring them up to speed, while business productivity slows in the meantime. So, how can it be avoided? Apart from employees drinking less and thinking smarter (which obviously can’t be guaranteed), employers should put some effort into creating an environment where the situation can’t arise, and where the boundaries are known and clear. For example, think carefully about the particular workplace, employees and culture, and get a sexual harassment policy published. Conduct employee training on it. If overly sensitive, overly boisterous or ridiculously good looking new talent is hired, update it accordingly and make the changes known. It could save a lot of money, anguish and heartache.
As always, you are welcome to contact us about these or other issues.