‍Content warning: this article contains descriptions of sexual harassment and sexual assault

In the recent case Oliver v Bassari 2022, an employee was found to have contravened section 93 of the Equal Opportunity Act 2010 (Vic) (EO Act) by sexually harassing the Applicant, who was employed at the same place of work.

What is sexual harassment?

Before we begin it may be beneficial to glance over the definition of sexual harassment. A person sexually harasses another person if they:

• Make an unwelcome sexual advance

• Make an unwelcome request for sexual favours

• Engage in other unwelcome conduct of a sexual nature.

The general background of this case is that:

• A female employee was sexually harassed by a male employee whilst working together at a beauty salon

• Complaints were made to the Employer and were not properly acted on

• The Female employee was then sexually assaulted by the male employee

• The Employer was found to be vicariously liable and ordered to pay $150,000 in damages

So where did the employer go wrong? Let’s break it down:

Part 1: Lack of HR Documentation

It is essential that all employers take reasonable steps to ensure that their employees understand their obligations through effective policies and training. The employer did not have the HR infrastructure in place to ensure all employees were clear on what sexual harassment is and the severity of the issue.

The employer stated that they had an employee handbook that mentioned sexual harassment, but it was unclear as to when and if the handbook had been issued to the accused as there was no digital record of it being sent.

Lessons: It is simply not enough to have a policy in place, we recommend that employees are provided such policies at the commencement of their employment and that the policy is annually re-issued and signed off to document that they have in fact read and understood the information.  This can be also further delivered during monthly toolbox talks and employee meetings where the employer can choose a topic from the handbook to go more in-depth as well as to clarify any areas of concern.

Part 2: Failure to Investigate

It is also important that employers have a clearly documented internal complaints procedure that is confidential, accessible and the employees feel safe to use, this is to ensure that any issues and complaints can be addressed in a timely manner.

In this case, when the employee came to the employer with allegations of sexual harassment (allegations can be reported either in written form or verbally), the employer did not conduct any form of further investigation to substate the allegations.

Lessons: The employer failed to do the following to investigate the allegations and misconduct, deal with and document and of the disciplinary process. As we say time and time again, document, document, document, we cannot stress this enough! Along with failing to implement workplace policies, ensure employees receive, read and understand policies.  Regular training, toolbox talks, and documented meetings are essential.

Need help managing a tough situation – or want to find out more about our Employee Handbooks?? Contact us today - hello@hrdynamics.com.au or call us at 0438 735 926

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Article by Cameron Agius