Achieving Justice Through Conciliation After Workplace Sexual Harassment
The Synopsis
Enterprise Legal recently acted for an employee who was sexually harassed by a senior employee in the workplace. The sexual harassment occurred via email communications with between the senior employee and another workplace, with our client’s employer failing to take any meaningful action before or after the harassment occurred. EL assisted the employee to resolve the matter via mediation in the Australian Human Rights Commission.
Setting the Scene
Our client became aware of an email between their immediate supervisor a Director of another business, the contents of which contained derogatory and sexist remarks about them. One of our client’s Directors was also copied into the email chain, but no action was taken.
Some months later, our client became aware of more emails between her immediate supervisor and the same business, the contents of which had escalated significantly and were increasingly offensive and derogatory. The emails were reported to the Directors of our client’s employer, who promised to investigate and take immediate action but after months of little to no progress (despite continued assurances) our client engaged EL to step in.
The Game Plan
At EL, our strategy is tailored to the specific facts and circumstances and can evolve over time – predominantly this will be based on our client’s goals, taking into account their legal position.
In this instance, the fact that the sexual harassment was in written form meant our client had an extremely strong legal position, so the strategy turned on what outcome our client was seeking. Initially our client just wanted to return to a safe workplace, free from any risk this might happen again – we invited the employer to meet with us and our client to freely discuss how that might be achieved however that invitation was declined and the employer failed to take any meaningful steps to resolve our client’s complaint.
In a bid to force the employer to face the issues at hand, we filed a complaint on our client’s behalf with the Australian Human Rights Commission. The complaint was made against the individuals and both businesses, all of whom were then directed to attend mediation.
The Resolution
In the lead-up to mediation it became clear that returning to the same workplace would not be viable, so our client’s attention turned to holding the parties accountable for their conduct and allowance of it to occur, forcing them to properly understand how their conduct had impacted our client.
This was achieved through a significant financial settlement and a mutual release from employment, in order to allow our client to secure alternative employment in a safe workplace. This was achieved at mediation, with our client commenting afterwards that they would finally be able to sleep again and was excited to move forward and pursue other opportunities.
The Legal Issues
The complaint was brought pursuant to the Sex Discrimination Act 1984 (Cth). Under that legislation, the perpetrator is liable for their actions however:
- employers may be vicariously liable for the acts of their employees, with an exemption being available only if the employer has in place appropriate policies, procedures and training to eliminate or reduce the risk of such conduct occurring; and
- other parties may have ancillary liability if they permitted or encouraged the conduct to occur.
In this instance, the complaint was brought against the perpetrator, their employer, the other business and the respective individuals involved in the email trails.
Key Takeaways
There are a number of things that can be taken from this matter, but to our minds the key points are:
- for employers, it is absolutely critical that appropriate policies and procedures are put in place to eliminate conduct of this kind occurring in the workplace – there is the legal liability side of things, but primarily there is simply no place for conduct of this type in the workplace and employees should know that this type of conduct is not tolerated in your workplace and should have clear direction about what actions will be taken if they are subject to or witness conduct of this nature; and
- for employees, conduct of this kind is not ‘normal’ nor is it accepted in a modern workplace. Your employers must have policies and procedures in place to limit this type of conduct occurring and to inform you of what you can do in the unfortunate instance you are subjected to or witness behaviour of this kind and you have rights to hold them to account if they do not.
