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Published: 14 February 2019
Author: Creon Coolahan
Victorian workplaces are regulated by both State and Federal anti-discrimination laws which are designed to prevent sexual harassment occurring and ensuring that victims have avenues for obtaining compensation from perpetrators and, in some instances, their employers and other entities.
For the purposes of the Equal Opportunity Act 2010 (Vic), a person sexually harasses another person if the first person:
(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or
(b) engages in any other unwelcome conduct of a sexual nature in relation to the other person – in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
The Act goes on to define “conduct of a sexual nature” to include:
(a) subjecting a person to any act of physical intimacy;
(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;
(c) making any gesture, action or comment of a sexual nature in a person's presence.
The Act also defines a number of areas and contexts within Victorian society where sexual harassment is prohibited, including:
Practical examples of sexual harassment include unwanted touching, jokes of a sexual nature, unwelcome comments about a person’s sexuality or sexual activities, the display of pornographic material in the workplace, and comments directed a person their physical appearance.
In the context of sexual harassment in the area of employment, the Act imposes liability on both the perpetrator of the sexual harassment and also his/her employer if sexual harassment does occur. An employer will evade liability for the sexual harassment of an employee only if the employer can prove, on the balance of probabilities (i.e. that is more likely than not) that it took reasonable precautions to prevent its employee from breaching the Act by engaging in sexual harassment.
Reasonable precautions might include regular training of employees in what conduct constitutes sexual harassment, what conduct is acceptable in the workplace, and taking steps to investigate and appropriately deter and/or punish sexual harassment when it is observed or reported.
Even though an employer might be able to show that reasonable precautions have been taken, an employee will be personally liable if he or she has engaged in sexual harassment.
As well as making a complaint to their employer in accordance with any policies the employer might have in relation to the reporting and investigation of sexual harassment and/or employee misconduct, employees should also give consideration to seeking legal advice regarding the following potential avenues of redress and compensation:
1) A complaint to the Victorian Equal Opportunity and Human Rights Commission of sexual harassment, and issuing proceedings in the Victorian Civil and Administrative Tribunal if the Commission is unable to resolve the complaint satisfactorily;
2) A complaint to the police regarding sexual harassment of a type that may also constitute a criminal offence (such as stalking, using a carriage service to menace harass or offend, assault, indecent assault, or sexual assault for example), which may give rise to an Application for Assistance to the Victims of Crime Assistance Tribunal and/or an application for a compensation Order under the Sentencing Act 1991;
3) A WorkCover or ComCare claim for worker’s compensation benefits such as weekly payments of compensation, medical expenses and impairment benefits;
4) A Common Law damages claim against the employer for negligence and/or against the employee who engaged in the sexual harassment for assault and/or battery.
Not all of the above avenues are available to a victim of sexual harassment in Victoria, and most of the avenues interact with each other in some way which prevents the victim from accessing similar compensation twice. Other avenues are also potentially available under Federal anti-discrimination laws.
If you have been the victim of sexual harassment in your workplace don’t hesitate to contact our experienced team of personal injury litigation and employment lawyers.
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