How Should Employers Deal with Sexual Harassment Complaints?

This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.

Introduction 

The Australian Human Rights Commission’s most recent national survey on sexual harassment in Australian workplaces reveals that during 2017-2022, about 1 in 3 people (33%) were sexually harassed at work (41% of women and 26% of men).[1]

With sexual harassment being this common in Australian workplaces, most employers likely will, at some point, receive a complaint about sexual harassment from a worker.  

It is important to take such complaints seriously and investigate them in a timely manner. Ignoring or mishandling a worker’s sexual harassment complaint could increase an employer’s liability and lead to lengthy and costly legal disputes. 

This factsheet aims to provide practical information to employers, particularly small businesses, who often do not have the resources to employ dedicated human resources professionals, on effectively responding to and dealing with workers’ complaints of sexual harassment. 

Employer’s legal obligations 

An employer will be treated as legally responsible for sexual harassment done by its employees if the employer cannot show that it took all reasonable steps to prevent the sexual harassment from happening.[2]

As of 13 December 2022, employers also have a legal positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment in the workplace.[3]

‘Positive duty’ means employers must be proactive in preventing workplace sexual harassment before it happens, rather than simply reacting after it has happened.

What do the above legal obligations mean in practice? How can employers show that they took ‘all reasonable steps’ and ‘reasonable and proportionate measures’? 

The below is a guide on what practical things an employer should do when preventing and dealing with sexual harassment in the workplace. 

 #1: Have a clear and thorough sexual harassment policy 

A strong sexual harassment policy must define what sexual harassment is and give examples of behaviour that will be treated as workplace sexual harassment, including relevant, industry-specific examples that could arise in your working environment. Examples include: 

• Physical touching 

• Verbal comments including jokes and intrusive personal questions  

• Inappropriate emails and text messages 

• For more examples, see our ‘Sexual Harassment at Work’ factsheet’

The policy should state that sexual harassment is against the law, which may make employers vicariously liable, and refer to the relevant federal and state laws.[4]

The policy should make clear that the workplace has zero tolerance for sexual harassment and any breach of the policy will have serious consequences like disciplinary action or termination of employment.

The policy should also set out an internal complaints process which clearly outlines: 

• How to make complaints or reports about workplace sexual harassment (eg in writing) 

• Who or where to make complaints (particularly if complaints are about an employee’s direct supervisor or line manager) 

• How the workplace will keep a record of the complaint and maintain the privacy of the parties involved 

• How complaints will be actioned and/or investigated 

• How much time the process may take 

• Potential outcomes of a complaint 

• What parties can do if they are not satisfied with an outcome 

Lastly, the sexual harassment policy should be communicated and made accessible to all staff, so they are aware of it throughout the course of their employment. Employers often communicate workplace policies to new employees as part of the orientation and onboarding process, but it is important to regularly remind staff of these policies and where to access them. 

#2: Provide regular, mandatory sexual harassment training  

It is important for employers to provide practical sexual harassment training to all staff. The training should aim to teach staff to: 

• Recognise and report sexual harassment 

• Understand what is and isn’t appropriate workplace behaviour 

• Learn about recent legislative changes 

 Staff in management and leadership positions should further be trained to understand their obligations, especially in relation to: 

• Employers’ positive duty to eliminate sexual harassment 

• Sexual harassment as a WHS issue that can affect workers’ health 

• Creating and setting an example of a safe and respectful workplace  

Training sessions should be regular, so staff are aware and up to date with changes to sexual harassment laws and obligations. Training needs to be meaningful and industry-specific. For example, fast ‘tick and flick’ style multiple-choice online training exercises have been held by the Courts to be inadequate to meet an employer’s legal obligation in this area. 

#3: Listen to the worker making the complaint and take it seriously 

If you receive a complaint about sexual harassment from a worker, it is important to give the worker a chance to speak and be heard. Depending on the seriousness of the complaint, it may be appropriate to help a worker access support services like Employee Assistance Programs, 1800RESPECT and/or SafeWork SA. 

After giving the worker time to process the situation, arrange a further time to consult with the worker to get more information about the incident(s) and their options to resolve the matter. Remember to offer the worker a support person in these meetings. In the meantime, it may be appropriate to check in with the worker to see if they need any accommodations eg taking personal leave, working from home or any other measures for them to feel safe and supported in the workplace. 

Do NOT ignore or brush off a worker’s complaint about sexual harassment. Unfortunately, we often see situations where employers have told workers things like, “It was just a joke, he didn’t mean any harm” or “It’s just how the industry is, you either have to toughen up or you won’t last much longer”. Minimising a worker’s complaint about sexual harassment or treating it lightly could lead to the worker making a legal claim against you. 

#4: Investigate the complaint in a timely manner 

Investigate the complaint as soon as practicable. Depending on the size of your business and its resources, it may be more appropriate for an impartial third party to carry out the investigation. 

The investigation should be transparent, confidential and fair. Keep the involved parties updated on what information is required from them, how long the process will take and where the investigation is up to. 

After getting information from the worker making the complaint (the complainant), let them know that you will next notify the person whom they are complaining about (alleged perpetrator) so they can have an opportunity to respond (in the interest of fairness).  

Review the information provided by both parties and check if further information is required to support the claims made. Then, assess all information and determine if, on balance, the allegations are likely to have (or have not) occurred.  

#5: Decide on an appropriate and reasonable outcome 

Depending on the allegations, outcome of the investigation and your consultation with the complainant regarding potential ways to resolve the complaint, decide on an appropriate and reasonable outcome.  

Potential outcomes can include: 

• Facilitating a meeting between the parties, with the parties’ consent, to resolve any miscommunication or misunderstanding that may have led to the incident (for minor complaints) 

• Facilitating a meeting between the parties, with the parties’ consent, so the alleged perpetrator can make a formal apology and commit to undergo further training 

• A formal warning to the alleged perpetrator  

• Disciplinary action for the alleged perpetrator  

• Termination for serious misconduct 

• Recrediting the complainant for any leave taken 

IMPORTANT: It is essential that you obtain independent advice to ensure the outcome is suitable for the specific circumstances of the complaint. 

#6: Review existing policies and provide a refresher  

Even after a complaint has been dealt with, it may be useful to review the existing sexual harassment policy and training session to see if anything could be improved or changed, particularly in light of the recent complaint. 

Once amended, it should be circulated to all staff so they are aware of any chances. It may also be appropriate to provide a sexual harassment training refresher session. 

If you have any questions or would like to enquire about what kind of training the WWCSA offers, speak to one of our Training Officers on 08 8410 6499 or training@wwc.org.au.  

[1] The Australian Human Rights Commission

[2] Sex Discrimination Act 1984 (Cth) s 106 (‘SDA’).

[3] SDA s 47c. 

[4] SDA s 28B and Equal Opportunity Act 1984 (SA) s 87.