The interpretation of what constitutes sexual harassment is complex and most often is dependant a victim’s subjective stance rather than an absolute solicitors legal interpretation. What might be considered as serious by one person might be consider mere banter from the perspective of another. According to the Fair Work Act 2009, sexual harassment is defined as “unwelcome sexual behaviour that is offensive, humiliating or intimidating.” When an individual determines another person’s conduct is offensive or humiliating they should notify the individual that their conduct is offensive to them. If the conduct continues they should notify that individual’s supervisor in their presence or when the perpetrator is their supervisor they should notify them in the presence of a union official or other competent official. If the conduct continues after that point, the victim should consult or instruct an employment law solicitor who can assist in making a claim for compensation based on sexual harassment to Australia’s Human Rights Commission. The employer can be held responsible for acts committed by other employees when they failed to take action to adequately protect a victim from unlawful behaviour. It is important to understand that victims of sexual harassment could be either male or female and the offender male or female. Unwanted and unlawful conduct by members of the same sex is considered by law the same and either can result in legal action by a sexual harassment solicitor.
Behaviour that justifies a solicitor’s compensation claim for sexual harassment might come in numerous forms that not only pertains to brazen physical contact that is unwanted such as fondling or touching, but could include any of the following:
There are two main types of sexual harassment both of which are unlawful and can give rise to a solicitor making a complaint to the Human Rights Commission and a subsequent application to a court of law for a damages award. The courts have not imposed a definitive standard of what is and what is not offensive behaviour but have made the test subjective which means that it is the victim who decides whether particular behaviour or conduct which has the potential to be offensive does actually offend the sensibilities of the person at whom it is aimed. If the victim is offended and rejects such behaviour which is repeated then that is sufficient to ground a claim for compensation in a court of law. An employer may be held responsible for the behaviour of co-worker, line managers, managers, directors and executives. If you need legal advice or representation, you should contact our sexual harassment solicitors as soon as possible – time is of the essence and time limits apply :-
Unwelcome behaviour based on gender:-
The definition of harassment in this case relies on unlawful, unwarranted and unwelcome behaviour that is engaged in by a third party with “the intent or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.” In the case of an allegation of sex harassment the behaviour does not necessarily need to be of a sexual nature but can refer to all aspects of bullying provided that the unpleasant behaviour is based solely on the victims gender.
Unwelcome sexual behaviour or sexual conduct:-
The behaviour envisaged under this section involves all types of conduct based on sex including physical, verbal and non-verbal behaviour which is carried out with the intention or with the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. This type of sexual harassment may also constitute a serious criminal offence of sexual assault.
The courts have not imposed a definitive standard of what is and what is not offensive behaviour but have made the test subjective which means that it is the victim who decides whether particular behaviour or conduct which has the potential to be offensive does actually offend the sensibilities of the person at whom it is aimed. If the victim is offended and rejects such behaviour which is repeated then that is sufficient to ground a claim for compensation in a court of law. An employer may be held responsible for the behaviour of co-worker, line managers, managers, directors and executives. These issues are complex and technical and you should take legal advice from a sex discrimination solicitor at the first opportunity
Examples of sex harassment within the workplace include demeaning or offensive remarks about the victims appearance or looks, indecent comments suggestive of sex, enquiries or suggestion about the victims sexual proclivities or habits, demands for sexual favours including intercourse and actual touching of the body or in more serious cases fondling of private parts both of which may be criminal offences carrying a sentence of imprisonment. The perpetrator cannot hide behind any excuses and cannot dismiss the allegations as mere ‘banter’ or ‘a bit of fun’ or ‘a joke’. An employer may be held liable for the behaviour of the victims co-workers even if the unlawful behaviour took place out of office hours and away from the place of work provided that the incident has some connection with the employment or the workplace.
It is in the best interest of employers to have a written policy forbidding sexual harassment in the workplace or during work related functions. That policy should be placed on information boards and frequently addressed during information meetings. Sexual harassment should not be allowed to continue in the workplace once a supervisor has been made aware of the situation. When rumours of such conduct exist an employer should investigate immediately or risk a decline in production due to lower moral. Management and staff should be trained or at the very minimum briefed on the resolution of particular situations that foster or allow sexual harassment, such as some of those listed above. Early warnings to perpetrator of misconduct can prevent further occurrence and the likely outcome, which is lower moral and unnecessary compensation claims.
Our employment law solicitors might handle your claim of sexual harassment for compensation utilising the no win no fee scheme, depending on the circumstances involved. When it becomes necessary to consult an expert lawyer for free advice with no additional obligation just call the free helpline.
