Sexual harassment is a problem that has been highlighted in Australian media in recent years, with high-profile cases leading to penalties and reputations damaged.
In a short decision on 12 May 2022, Commissioner McKinnon of the Fair Work Commission dismissed an application for an order to stop bullying and sexual harassment as she could not make an order in circumstances where the applicant was no longer a ‘worker’ nor ‘at work’ in the business of Rio Tinto, and there was no reasonable prospect of the applicant undertaking any further work in, or for, the business.
Notwithstanding that the application was dismissed, Commissioner McKinnon observed that “[the applicant] does appear to have been exposed to conduct of a sexual nature while at work for Rio Tinto that could readily be described as sexual harassment. To the extent that it has not done so already, Rio Tinto should properly investigate the incident recorded on CCTV footage on 11 July 2017 and take appropriate action in line with its obligations under work health and safety legislation.”
The comment from the Commissioner serves as a reminder to employers of their work health and safety obligations in the context of sexual harassment allegations, which:
- are not relieved by reason of the complainant ceasing to work for the employer;
- should be addressed swiftly to reduce the risks of behaviour continuing or escalating; and
- may, in some circumstances, require an employer to take action or investigate where no formal complaint has been made, particularly where the behaviour has implications for the health and safety of other employees.
Sexual harassment is a serious issue that can have a negative impact on the victim, the employer, and other workplace participants. Victims can suffer physical and psychological trauma, and may be left with little choice but to leave their job. Failing to deal with allegations of sexual harassment or change workplace culture that makes such harassment permissible or excusable, contributes to toxic work environments, high turnover, and low staff morale.
Employers are responsible for creating a safe and healthy work environment, which includes preventing and addressing any instances of sexual harassment.
As people become less tolerant of this issue occurring in the workplace, companies will face increasing pressure to ensure they are meeting their obligations.