• About
• Complaints
• Aboriginal & Torres
  Strait Islander
  Social Justice
• Age
  Discrimination
• Disability
  Rights
• Human
  Rights
• Race
  Discrimination
• Sex
  Discrimination
• Education
• Legal
  Research &
  Resources

Change font size:

Sex Discrimination navigation

• About Sex Discrimination
• Lodge a Sex Discrimination complaint
• Media Releases
• Speeches
• Listening Tour
• It's About Time Project
• Publications
  • Gender equality: What matters to Australian women and men (2008)
  • Get the facts, know your rights (2006)
  • Guide to Sex Discrimination
  • It's About Time: Work and family paper (2007)
  • Young Women
  • Archive
• Workplace Issues
  • Exemptions under SDA
  • Harsh realities
  • Paid Maternity Leave
  • Pregnancy Guidelines
  • Sexual Harrassment in the Workplace
• Submissions
• Links
  

Back to Table of Contents

A Bad Business
(Review of sexual harassment in employment complaints 2002)

Part C: Findings

4. The nature of harassment

The majority of reported sexual harassment was targeted at women, involved multiple forms of harassing behaviour and occurred on more than one occasion. In over one in five cases, the harassment continued for more than 12 months. Verbal harassment was often a precursor to physical forms of harassment.

4.1 Gendered nature of harassment

The sexual harassment that is reported to HREOC is gendered. The majority (86 per cent) of complaints involved a man sexually harassing a woman (131 complaints). Women harassing men was a rare occurrence (three per cent or five complaints), while same sex harassment was also infrequent (one per cent for males, or two complaints and two per cent for females which was three complaints). Seven per cent of complaints (10 complaints) involved men and women harassing women, while one per cent of complaints (one complaint) involved men and women harassing a man.

4.2 Type of harassment complained about

While some complainants detailed only one type of harassing behaviour, most complaints involved a number of categories of harassing behaviours. [20] Verbal harassment is most prevalent, however this form of harassment was often a precursor to physical harassment. As such, verbal harassment may be an early warning of other forms of harassment.

Verbal harassment represented 36 per cent of all harassment and occurred in 71 per cent of complaints. Physical intimacy was the next most frequently complained of form of harassment and occurred in more than one in three complaints. [21] Sexual physical behaviour represented 12 per cent of the harassment complained about and occurred in 23 per cent of complaints. [22] Some of the general bullying behaviour reported was in response to complainants reporting the harassment within the workplace.

Complaints involving a particular behaviour

Note: the proportion adds to more than 100 per cent as most complaints involved a number of categories of harassing behaviour.

4.3 Duration of harassment

Sexual harassment does not have to be repeated or continuous to be unlawful. The legislation is drafted in the singular (for example, “an unwelcome sexual advance” and “an unwelcome request for sexual favours”). This is supported by the case law. [23]

Of the 136 complaints from which the duration of the sexual harassment could be discerned, 24 cases or 18 per cent reported sexual harassment constituted by a single incident. Harassment that continued over a significant period was the most prevalent, with 22 per cent of harassment continuing for more than 12 months. Twenty-one per cent of harassment occurred over one to three months. The longest period of harassment recorded was 156 months (13 years), however the complainant first complained about the behaviour 140 months after it had commenced.

Duration of harassment

5. Characteristics of complainants and individual respondents

The data show that the overwhelming majority of those who reported sexual harassment were women, and that they were reporting harassment by men. Complainants were on average 12 years younger than individual respondents. Three quarters of individual respondents were aged over 30 years while over half of complainants were 30 years or less. However, the data on age of complainants and respondents should be used with caution given the small number of complaints where this information was available. Individuals who reported sexual harassment were more likely to be Australian born, to have Australian born parents and to speak English at home compared to the general population.

5.1 Sex of complainants and individual respondents

Complainants

Of the 152 complaints of sexual harassment in employment, 95 per cent of the complainants were female.

Individual respondents

Of the 152 complaints of sexual harassment in employment, 88 per cent of the individual respondents were male, five per cent were female and seven per cent involved both male and female respondents.

5.2 Age of complainants and individual respondents

Complainants

Of the 152 complaints analysed, 66 contained information about the complainant’s age.[24] The following data are based on those 66 complaints.

The youngest complainant was aged 15 years at the time that the harassment occurred and the oldest complainant was aged 58 years at the time the harassment occurred. The average age (mean), median age (the middle value of the range) and the mode (most common age) for complainants were all similar at 30 years, 29 and 29 respectively. Fifty-eight per cent of complainants were aged 15-30 years.

Younger people are overrepresented in the complaints data compared to the Australian labour force. For example, eight per cent of the labour force are aged 15-19 years, while 26 per cent of complainants are aged 15-20 years. [25] Similarly 43 per cent of the labour force was aged 15-34 years old, while 58 per cent of complainants were aged 15-30 years. [26]

Age of complainants

Individual respondents

The individual respondent’s age was contained in the complaint file in 21 cases. [27] In an additional 19 cases, while the age of the respondent was not provided, it was possible to infer from the information contained in the file, whether the respondent was older or younger than the complainant. [28]

The youngest respondent was aged 20 years and the oldest respondent aged 69 years. The average age (mean) and median age (the middle value of the range) of respondents were similar at 42 years and 41 years respectively. The modes (most common age) were 30, 42, 48, 56 and 69 years. This reflects the relatively even spread of respondents’ ages across the range 20 to 69 years. Seventy-five per cent of respondents whose age was known were over 30 years.

Age of respondents

Comparison

The average age of respondents was 12 years older than that of complainants.

More limited data were available that directly compared the ages for the individual respondent and complainant within a complaint.

There were only 13 complaints where the ages of both parties were explicitly provided. Of these 13, there were two cases of the respondent being younger than the complainant, one by seven years and the other by 18 years. In both cases the complainant was female and the respondent male. Of the 11 cases where the respondent was older than the complainant, the age difference ranged from 2 years to 54 years. In 10 of these 11 cases, the complainant was female and the respondent male while in one case the complainant was male and the respondent was female. It should be noted, however, that in complaints of sexual harassment where the complainant is relatively young, and/or the age difference between the complainant and respondent is significant, the ages of both are more likely to be provided. This may be due to the fact that a significant age gap between the complainant and respondent increases the severity of the alleged harassment. [29] As such, caution is needed in extrapolating from these data.

Of the additional 19 complaints where a difference in the ages between complainants and respondents could be discerned, the respondents were older than the complainants in 16 cases. Of these 16 cases, in all but one, the respondent was male and the complainant female. In the other case, the complainant was male and the respondent was female. Of the three cases where the respondent was younger than the complainant, all three respondents were male and all three complainants were female.

5.3 Ethnicity of complainants

Country of birth

Australian-born complainants are overrepresented in the complaints data. Of the two-thirds of complaints (100 complaints) where country of birth was provided 83 per cent of complainants were Australian born. Two complainants (two per cent) identified themselves as Aboriginal. In June 2000, 76 per cent of the Australian population was Australian born. [30]

Parents’ country of birth

Complainants with at least one parent born overseas are underrepresented in the complaints data. Of the 70 complaints where parents’ country of birth was provided, 45 complainants (64 per cent) stated that their mother was Australian born, and 47 complainants (67 per cent) stated that their father was Australian born. Fifteen (18 per cent) of Australian born complainants had at least one parent born overseas. In contrast, in 1996 27 per cent of persons born in Australia had at least one overseas-born parent. [31]

Language spoken at home

Individuals from a non-English speaking background are underrepresented in the complaints population. Of the 70 complaints where this information was provided, there were only seven complaints (10 per cent) where a language other than English was spoken at the complainant’s home. The languages other than English were French, Italian, Hindi, Pidgin, Spanish, Arabic and Greek. In 2001, 16 per cent of the Australian population spoke a language other than English at home. [32]

6. Complainants’ employment

Reported harassment tended to occur in the first few months of a complainant’s employment, involved harassment by a more senior person in the workplace and was targeted at particular occupations. Most complainants had resigned or been dismissed at the time the complaint was made to HREOC.

6.1 Employment status of complainants at time of harassment

Of the 143 complaints where employment status was able to be determined, the majority of complainants were employed full-time (58 per cent). [33] Of the remainder, 27 per cent were classified as casuals, nine per cent were part-time and six per cent were on a fixed term contract. It is difficult to draw conclusions on the basis of these data. In particular, a comparison cannot be made with Australian Bureau of Statistics (ABS) data as the complainants have not been classified consistently with ABS recorded data. [34]

6.2 Length of complainants' employment at first incidence of harassment

Reported harassment is far more likely to occur early on in a complainant’s employment. Amongst the 121 cases where this could be determined, 72 per cent of complainants reported that the harassment occurred in the first 12 months of the complainant’s employment, with 11 per cent reporting that it occurred in the second year and 17 per cent reporting that it occurred in the third year or later. [35] In just over half of the complaints, the first incidence of reported harassment occurred within the first four months of the complainant’s employment.

Length of complainant's employment at first incidence of harassment

6.3 Employment status of complainants at time complaint made to HREOC

The data on complainants’ employment status provide an indication of the disruption to the workforce caused by incidences of sexual harassment and of the inherent costs for the employer such as employee absenteeism and employee turnover.

Seventy-seven per cent of all complainants were no longer actively working for the organisation where the alleged harassment occurred, having either left their employer, or taken leave. [36]

Almost half (45 per cent) of the complainants had resigned from their employment at the time of making a complaint to HREOC. Nineteen per cent of complainants had been dismissed from their employment. The high percentage (67 per cent) of complainants who left their position in connection with the reported sexual harassment suggest staff turnover is one direct cost that is borne by employers.

Even amongst the small proportion of complainants who were still with the same employer, the reported sexual harassment affected staff productivity. For example, of the 17 per cent of complainants (26 complainants) who were still with the same employer at the time of making a complaint to HREOC, 14 (54 per cent) were absent from work receiving workers’ compensation, one (four per cent) was absent from work on leave without pay and sick leave, two (eight per cent) had transferred to another area with the same employer and one (four per cent) had changed shifts.

It should be noted that information about the employment status of individual respondents was generally not available on the face of the complaint file. See also section 8.3 for disciplinary outcomes for individual respondents.

Employment status of complainant at time complaint made to HREOC

6.4 Complainants’ occupation

Of the 146 complainants whose occupation was known, approximately half (51 per cent) were employed in four occupational groups: clerical, hospitality, shop assistant and labourer. [37]

Almost one in four complainants were employed in clerical work, including as secretaries, administrative assistants, office administrators, clerks, clerical administrators, personal assistants and receptionists. Twelve per cent of complainants were employed in the hospitality area, in positions such as bartenders, waitresses, kitchen hands, restaurant managers and chefs. The next most common grouping was shop assistant or sales assistant which accounted for nine per cent of complainants. Seven per cent of complainants were labourers, packers and stockpersons.

The occupational categories of clerical, sales and service workers are overrepresented in the complaints data. These occupations accounted for 31 per cent of the Australian workforce [38] compared to 45 per cent of complainants. However, given that the majority (95 per cent) of complainants were women, the complaints figures are likely to reflect the gender segregated nature of the Australian workforce and the concentration of women in these occupations. Fifty-one per cent of all women employees were employed as clerical, sales and service workers in their main job. [39] The greater proportion of women who work as clerical, sales and service workers equates to greater incidence of harassment being reported in these occupations given that women are far more likely to report sexual harassment than men.

6.5 Employment relationship of individual respondents to complainants

The data reflect an imbalance in power relations between the individual respondent and complainant, with 60 per cent of 161 respondents in a more senior position in the workplace relative to the complainant. [40] Just over one third (34 per cent) of respondents were co-workers of the complainant.

Employment relationship of respondent(s) to complainant

Note: Occasionally more than one respondent per complaint

7. Characteristics of workplaces

The data show that sexual harassment remains a problem across employer types, regardless of employer size, industry and location.

7.1 Employer size

The size of the employer or workplace where the sexual harassment occurred could be discerned from 135 of the 152 complaints analysed. Complaints of sexual harassment were more likely to emanate from small businesses according to HREOC’s sample of complaints.

In addition, in comparison to the proportion of the Australian population employed in small, medium and large businesses, complaints from employees working in small businesses appear slightly overrepresented and complaints from employees in large businesses are slightly underrepresented. However, it should be noted that the ABS classifies small business as employers with 1-19 employees, while for the purposes of this review a small employer was defined as one with 1-24 employees. This difference in classification may explain the slight overrepresentation of small business in this review.

7.2 Gender balance of workplaces

For 55 complaints it was possible to establish that the complainant’s workplace was dominated by one sex. Ninety-one per cent of these workplaces were male dominated. [43] These sexual harassment complaints may reflect male exclusion of women from their traditional employment domain. However, it is not possible to draw conclusions with any confidence from such a small sample. Ninety-seven complaints were not classified.

7.3 Industry classification

Complaints were analysed and the industry of the employer classified according to the Australian and New Zealand Standard Industrial Classification (ANZIC). As the employer was identified and the type of business generally described in each complaint, it was possible to extrapolate the main industry in which the employer was based from the material in the complaint file. The industry could not be determined in four complaints due to the limited material in the file about the employer. [44]

The most frequently occurring industry was the Property and Business Services industry (14 per cent), followed by Retail Trade (13 per cent), Accommodation, Cafes and Restaurants (12 per cent), Manufacturing (11 per cent), Wholesale Trade (seven per cent), and Transport and Storage (seven per cent).

Communication Services and Accommodation, Cafes and Restaurants were both significantly overrepresented amongst complaints, with the level of complaints being 2.9 and 2.4 times respectively greater a proportion of complaints compared to their contribution to total employment. The workforces in these industries are dominated by women. Other industries that were overrepresented included Wholesale Trade, Transport and Storage, Property and Business Services, Government Administration and Defence, and Cultural and Recreational Services. Education, Health and Community Services [45] and Agriculture, Forestry and Fishing were amongst those industries that were underrepresented amongst complaints. It should be remembered that these figures do not reflect the level of sexual harassment occurring in each of these industries, but rather the level of harassment that has been reported to HREOC.

7.4 Location of workplaces

The location of the workplace where the harassment occurred could be determined for 150 of the complaint files.

Nearly half of the sexual harassment complaints occurred in NSW workplaces. However, the fact that complaints of sexual harassment may also be made to State and Territory organisations under State and Territory legislation means that the data are not very informative on the distribution of reported harassment across Australia.

Two-thirds of the reported harassment occurred in workplaces located in cities including capital cities and major regional cities, 31 per cent occurred in rural areas and three per cent was in remote rural areas.

8. Workplace responses to harassment

The majority of harassment complaints had been reported within workplaces, to people in a management or supervisory role, shortly after the harassment had occurred. Most small businesses did not have a sexual harassment policy. While a significant number of large and medium-sized businesses did have a sexual harassment policy, this was not always implemented.

8.1 Reporting harassment in the workplace

Reporting of harassment via internal mechanisms

In 130 complaints it was clear whether or not the harassment had been reported via internal mechanisms. Amongst these complaints, 78 per cent of complainants (102 complainants) had reported the harassment internally.

Time between harassment and reporting

Of the 102 complainants who reported the harassment internally, the period of time elapsing between the first incidence of harassment and the reporting of it could only be discerned from 86 complaint files. Almost three quarters of these complainants reported the harassment within three months. Forty per cent of complainants (34 complainants) reported the harassment immediately.

Time period from first incidence of harassment to report

Person to whom harassment was reported

The complaints data reveal that complainants took their concerns to a variety of officers or agencies. [46]

Seventy-seven per cent of reporting of harassment was to people in a management or supervisory role. This indicates an expectation by complainants that senior people within an organisation would address complaints of sexual harassment. However since complaints were subsequently made to HREOC in these cases, this also indicates that these managers and supervisors were unable to resolve the complaints in these cases. This has significant implications for business – indicating a need for managers and supervisors to be prepared and able to handle complaints of sexual harassment.

The level of reporting to harassment officers is surprisingly low (four per cent). There are a range of possible explanations for this, including that most organisations do not have a harassment officer; that harassment officers were better able to resolve complaints and thus these complaints did not come to HREOC; or that employees were not making full use of harassment officers. It is not possible to determine which of these reasons apply from the available data.

8.2 Sexual harassment policies

Existence of a sexual harassment policy

Of the 152 complaints analysed, 125 (82 per cent) indicated whether there was a policy on harassment in existence within the workplace or not. Of these respondent employers, 62 per cent indicated that they had a sexual harassment policy in existence.

Implementation of a sexual harassment policy

Implementation of a sexual harassment policy may include training of staff and management; display or publication of the policy on billboards, websites or other prominent positions; induction training and reference to sexual harassment policies in performance management systems. While 62 per cent of respondent employers for whom this information was available had a policy in place, just over one in four (27 per cent) of those respondent employers had not fully implemented their policies. This included not promoting the policy, not including the policy in induction training and/or no recent training of managers about the policy.

The majority of complaints involved employers who had not implemented sexual harassment policies fully or at all. Amongst all 152 complaints analysed, only 36 per cent (54 of 152 complaints) involved an employer who had a sexual harassment policy that had been fully implemented. [48] Half of the employers either did not have a policy or had not implemented the policy. This suggests there is significant scope for employers to improve their preventative measures in relation to sexual harassment.

Relationship between size of employer and existence and implementation of a sexual harassment policy

The existence and implementation of a sexual harassment policy was more common amongst larger business. Eighty-six per cent of large employers, 69 per cent of medium-sized employers and 10 per cent of small employers had a sexual harassment policy. Amongst those organisations that had a sexual harassment policy, 88 per cent of large employers, 50 per cent of medium-sized employers and 33 per cent of small employers had implemented the policy.

At first glance these figures suggest that the existence of a sexual harassment policy has not helped larger organisations to reduce the level of sexual harassment complaints in their workplaces given that the proportion of complaints that HREOC received from large businesses is similar to the proportion of the workforce that is employed by large businesses. [49] However, this does not take account of the fact that the existence of a policy may increase awareness of the option of lodging a complaint with HREOC. In addition, since conciliated complaints are agreements between the parties to a complaint and not a determination that harassment has actually occurred, this paper is not able to conclusively consider the extent to which employers were vicariously liable for the harassment. The existence of a sexual harassment policy may be used in litigation by larger employers to establish that they had met their duty to their employees and taken all reasonable steps to prevent the harassment from occurring.

HREOC has recommended that small businesses have a written policy on sexual harassment in its publication Sexual Harassment: A Code of Practice, [50] and that either the owner of the small business or a responsible senior employee be nominated as a sexual harassment complaints officer. This person should be provided with any training or resources offered by employer organisations, small business associations, industry associations, HREOC or State or Territory anti-discrimination agencies. The facts that in the complaints to HREOC, only one in 10 small employers had a sexual harassment policy and of these only one in three had implemented the policy suggest that small businesses, in particular, need to focus on implementing preventative strategies in order to avoid vicarious liability. [51]

8.3 How harassment was dealt with in the workplace

Informal or formal internal complaint process

The existence of a formal or informal internal complaints process could be determined in 116 of the 152 complaints. Of this 116, a formal or informal internal complaints process existed in 76 per cent of cases. There was no internal complaints process in 23 per cent of cases. [52]

It is surprising that the proportion of complaints from organisations with an internal complaints process is so high. Insufficient information is available on organisations’ complaints processes to be able to determine the reasons for these results. In addition, it is difficult to draw conclusions from these data without knowing the proportion of all workplaces which have an internal complaints process.

Possible explanations for complaints proceeding to HREOC despite the existence of an internal complaints process include that the complaint handling processes, where they exist, are not well implemented or that the existence of a complaints process raises employees’ awareness of the HREOC complaint functions and expectations of satisfactory outcomes.

Workplace response

Complaints of sexual harassment were investigated by the employer in 62 per cent of the 111 cases where this information could be determined. [53]

Disciplinary proceedings took place in 34 per cent of those 111 cases (that is, in 38 cases). In 65 per cent of cases (72 cases), disciplinary proceedings did not occur. There was one case (one per cent) where the occurrence of disciplinary proceedings was disputed between the parties to the complaint.

The most common disciplinary proceedings were transferring the individual respondent (18 per cent), counselling the individual respondent (15 per cent), giving an oral warning to the respondent (12 per cent), giving a written warning to the respondent (12 per cent), and resignation of the respondent (12 per cent). [54] The individual respondent was dismissed in two cases (six per cent) and had to undertake training in one case (three per cent).[55] These figures do not indicate the effectiveness of the disciplinary proceedings in changing the individual respondent’s behaviour or acting as a disincentive for others.

Given that there was only one case where an alleged harasser was required to undertake training as a result of disciplinary proceedings, it would appear that there is scope for increased use of training in response to complaints of sexual harassment, particularly as a means of preventing reoccurrences of this behaviour. However, warnings and counselling may serve as a sufficient indicator that the particular behaviour is not acceptable in the workplace.

One in four complaints were alleged to have been ignored within workplaces amongst the 67 complaints where this could be determined.

Satisfaction with the workplace process

Ninety-nine per cent of complainants were not satisfied with the workplace process for handling sexual harassment complaints amongst the 70 complaints where this could be determined. [56] Obviously, this is consistent with the expectation that only those complainants who were not satisfied with how the complaint was handled within the workplace would proceed to lodge a complaint with HREOC. It underlines the importance of not just having an internal complaints process, but also ensuring that the process is operating well and meeting the expectations of staff.

9. Outcomes of complaints

Almost all complainants sought financial compensation for the harassment they had experienced and more than one in two sought an apology. A conciliation conference was held in over half the complaints, with just over two out of three of these cases settling as a result.

The most common ground for HREOC terminating a complaint was that there was no reasonable prospect of settlement. Very few complaints proceeded to litigation. [57]

9.1 Remedies sought by complainants

Where the remedies sought by the complainant were specified, 93 per cent sought financial compensation, 59 per cent sought an apology, 38 per cent sought the introduction or enforcement of preventative strategies, 11 per cent sought the provision of a reference or work statement and six per cent sought the dismissal or demotion of the harasser. [58] The average amount of financial compensation sought by complainants was approximately $45,000.

9.2 Outcome of complaints

Conciliation conferences were held in 87 cases to attempt settlement of the complaints. Sixty-one complaints (70 per cent) settled as a consequence of those 87 conciliation conferences.

Of the 152 complaints reviewed, 61 complaints (40 per cent) settled via a conciliation conference, 49 complaints (32 per cent) were terminated, four complaints (three per cent) were administratively closed, 12 complaints (eight per cent) were withdrawn and 26 complaints (17 per cent) settled privately.

9.3 Termination of complaints

Of the 49 complaints that were terminated by HREOC, 92 per cent were terminated on the ground that there was no reasonable prospect of settlement. This means that just under one in three of all complaints made (152 complaints) were terminated because the parties could not reach agreement.

Complaints were also terminated because HREOC considered that the behaviour was not unlawful (six per cent); or the complaint was lacking in substance (two per cent)

Amongst the 49 terminated complaints, 26 were terminated after a conciliation conference was held and 23 were terminated without a conciliation conference taking place.

9.4 Financial compensation arising from settlement

The amount of financial compensation received by complainants varied widely, from a minimum of $500 to a maximum of $200,000. The median financial payment obtained by sexual harassment in employment complainants in 2002 was $6,250. [59] This amount is slightly above the median financial payment obtained at conciliation of all complaints under the Sex Discrimination Act in 2001, which was $5,000. [60] Sixty-four per cent of sexual harassment in employment complainants received less than $10,000 compensation at settlement.

Financial compensation from settlement

9.5 Who paid the compensation

As noted above at Section 2, employers have a legal responsibility to take “all reasonable steps” to prevent sexual harassment occurring in their workplace. A detailed breakdown of compensation paid by employers versus individuals is not available. In most cases, however, compensation was paid by the employer rather than the individual alleged harasser.

In those cases where both the employer and the alleged harasser agreed to pay compensation, the employer generally paid a greater amount of compensation than the individual. For example, amounts paid included $500 by the alleged harasser and $9,500 by the employer; $5,000 by the alleged harasser and $10,000 by the employer; and $3,000 by the alleged harasser and $2,216 by the employer.

It is important to note that compensation by the employer arising from conciliation does not necessarily represent an admission that harassment has occurred. There are many reasons why an employer may choose to pay compensation including a desire to avoid litigation and publicity of the case, to settle the dispute more quickly or to minimise workplace disruption.

9.6 Relationship between financial compensation and age of complainant

There was significant variation in the median financial compensation received by complainants of different ages. [61] In particular, the median amount received by complainants aged 31-40 years was significantly higher than for other age groups.

It is not possible from the available data to explain the difference between the levels of financial compensation received by age. However, the most likely explanation is that the settlement was calculated by reference to the wage or salary of the complainant and thus reflects differences in seniority within the workplace and salary levels of different aged complainants. On a similar line, some of the difference may also relate to whether the person paying the compensation was an individual or an employer. [65]

9.7 Time taken to finalise complaints

The average time taken from receipt of the complaint by HREOC to finalisation (whether settled through a conciliation conference or privately, terminated or withdrawn) was 7.6 months. [66] For individual complaints, this ranged from less than one week [67] to 29 months. [68] The median time taken to finalise the 152 complaints was seven months, while the mode (most common time) was nine months. Forty-three per cent of complaints were finalised in six months or less from the date of receipt, while 12 per cent of complaints took more than 12 months to be finalised.

9.8 Litigation

Of the 152 complaint files analysed, 17 complainants (11 per cent) pursued their terminated complaints by making an application to either the Federal Magistrates Court or the Federal Court of Australia claiming unlawful discrimination.

Twelve of these cases did not proceed to hearing: six were settled, five were discontinued by the complainant and one was vacated. Of the remainder, one is yet to be heard, [69] three were dismissed, [70] and one complaint was substantiated. [71] In the three applications dismissed, two were dismissed with no orders made for costs. [72] The other application was dismissed with the applicant ordered to pay the respondent’s costs. [73] In the substantiated complaint, the applicant was awarded damages in the sum of $10,000 plus interest from the date of filing the application to the date of judgment and exemplary damages in the sum of $7,500. Payment of these damages was to be shared between the employer and the individual harasser.

Footnotes

20. There were 299 incidences of the various types of harassment recorded for the 152 complaints.
21. Physical intimacy includes conduct such as giving a complainant a shoulder massage, touching a complainant’s thigh while sitting together, deliberately brushing up against a complainant’s body, hugging, touching a complainant’s face or hair and trying to hold a complainant's hand.
22. Sexual physical behaviour is physical behaviour of a more sexual nature than that which has been defined as physical intimacy. It includes kissing or attempting to kiss a complainant, touching a complainant’s breasts or bottom and sexual assault.
23. “It is also clear that sexual harassment constituted by conduct of a sexual nature can be the result of a single act or single incident”: Johanson v Blackledge Meats [2001] FMCA 6 citing Hall & Ors v A. A. Sheiban Pty Ltd & Ors (1989) EOC 92-250 and Leslie v Graham unreported, HREOC, 21 July 2000.
24. Complainants are not required to give their age to HREOC. However, a voluntary survey asking demographic questions is provided to complainants when they first lodge their complaints. One of the questions on a later version of this survey asks the complainant’s age. Not all complainants in this sample returned this survey. However, the age of the complainant can sometimes be discovered in the body of the complaint file.
25. ABS 6203.0 Labour Force Australia: August 2002 Commonwealth of Australia Canberra 2002, p23.
26. ABS 6203.0 Labour Force Australia: August 2002 Commonwealth of Australia Canberra 2002, p23.
27. Respondents are not required to provide demographic information such as age to HREOC. However, the age of the respondent can sometimes be discovered in the information on the complaint file. In one of the 21 cases, age was provided as an age range and so has not been included in calculations of the average age.
28. In some of these cases, the complainant stated that the respondent was younger or older than the complainant.
29. See, for example, Straney v Brady (1994) EOC 92-584"… the sense of oppressive authority that often lies at the heart of allegations of sexual harassment is more likely to be imparted in the context of a close employment relationship where there is a wide disparity in ages between the older and younger employee" and Elliot v Nanda [1999] EOC 92-989 “The conduct is made worse by the age disparity between the parties...”
30. Australian Historical Population Statistics – on AusStats (3105.0.65.001) and Migration, Australia (3412.0) in ABS 1301.0 Year Book Australia 2003 Commonwealth of Australia Canberra 2003, p132.
31. ABS data available on request, 1996 Census of Population and Housing in ABS 1301.0 Year Book Australia 2003 Commonwealth of Australia Canberra 2003, pp132-133.
32. ABS data available on request, 2001 Census of Population and Housing in ABS 1301.0 Year Book Australia 2003 Commonwealth of Australia Canberra 2003, pp145-146.
33. Not all complainants stated their employment status in their complaint form, nor responded to the demographic survey. Also, where employment status was provided by the complainant, it sometimes differed from the employment status described by the respondent. In these cases, it was usually the respondent’s description that has been used in the analysis. Occasionally the complainant’s work status could be inferred from the nature of the work undertaken by the complainant, the hours worked and the industry classification. Seven complainants were on probation when the harassment occurred.
34. In order to compare the complaints data with ABS statistics it would be necessary to know whether the casual and fixed term contract complainants worked full-time or part-time, and whether the complainants who worked part-time and full-time were permanent employees, casuals, or worked on contract.
35. There were 123 complaint files containing information on the period of employment from when the complainant commenced employment to when the first incidence of harassment occurred. One complaint where harassment occurred during the job selection process and one complaint where the harassment occurred immediately after the new owner of the small business started have been excluded from the calculations included here. Where the harassment occurred immediately upon the complainant’s commencement of employment a value of zero was given.
36. Note that this calculation includes 16 per cent of complainants (24 complainants) whose employment status was not known. Of the 128 complainants whose employment status was known, 91 per cent were no longer actively working for the organisation where the harassment occurred.
37. These data are taken from the complainant’s and respondent’s descriptions of the position occupied by the complainant at the time of the harassment.
38. ABS 6203.0 Labour Force Australia: August 2002 ABS Canberra 2002, p46.
39. ABS 6203.0 Labour Force Australia: August 2002 ABS Canberra 2002, p46.
40. Note that there were occasionally more than one respondent per complaint.
41. Excludes persons employed by public trading and general government entities, and by businesses in the Agriculture, Fishing and Forestry industries.
42. Small Business in Australia 2001 (1321.0) in ABS 1301.0 Year Book Australia 2003 Commonwealth of Australia Canberra 2003, p412. Note that Small Business in Australia is a biennial publication, with the next edition featuring 2003 data due for release in 2004.
43. A number of complainants explicitly stated that they worked in a workplace dominated by one sex (predominantly male-dominated). It was also possible to infer the gender balance of some complainants’ workplaces in a limited number of cases. This inference is based on the complainant’s description of the workplace, the complainant’s description of co-workers and the industry the complainant worked in.
44. These complaints have been classified as unknown and complaints in each industry have been calculated as a proportion of all 152 complaints.
45. Section 13(2) of the Sex Discrimination Act provides that sexual harassment committed by an employee of a State or an instrumentality of a State is not covered by the Act. These complaints are dealt with by the relevant State or Territory organisations. Given the high levels of State provision of Education, Health and Community Services these occupations will always be underrepresented in complaints to HREOC.
46. Note that some complainants reported harassment to more than one reportee.
47. Note that this was the classification used by the complainants. It has been included in this category with other forms of senior management as it could not be classified as an individual or direct manager.
48. An additional two cases have not been included as question of whether the sexual harassment policy had been implemented was in dispute between the parties.
49. See Section 7.1.
50. Human Rights and Equal Opportunity Commission Sexual Harassment: A Code of Practice HREOC Sydney 1997, pp21-22. This is also supported by the case law. In the case of Gilroy v Angelov [2000] FCA 1775, Justice Wilcox said that the development of a brief document that pointed out what sexual harassment is, sanctions attached to it and what an employee can do if they are harassed would help an employer in a small business make out a defence to vicarious liability.
51. The obligation on small businesses to take reasonable steps to prevent sexual harassment is supported by the case law. “It may be more difficult for a small employer, with few employees, to put in place a satisfactory sexual harassment regime than for a larger employer with skilled human resources personnel and formal training procedures. But the [Sex Discrimination] Act does not distinguish between large and small employers, and the decided cases show that many sexual harassment claims concern small business, often with only a handful of employees”: Gilroy v Angelov [2000] FCA 1775 at [100].
52. There was one case where the existence of an internal complaints process was disputed between the parties.
53. This could not be determined in 41 cases.
54. Note that some respondents were disciplined in more than one way.
55. Other types of disciplinary proceedings included demotion (nine per cent), salary increment delayed (three per cent) and probation period extended (three per cent). The type of disciplinary proceedings were not known in nine cases.
56. The alleged harasser was dismissed by the employer in the one complaint where the complainant was satisfied with the workplace process. The complainant pursued a complaint with HREOC against the alleged harasser which went to conciliation. The outcome of the conciliation was an apology from the alleged harasser (no compensation was sought).
57. See Section 9.8.
58. The remedy sought by the complainant was unknown or not stated in 29 complaints.
59. A median rather than average measurement gives a clearer picture of the financial compensation that complainants received, as an average can be skewed by one or two extreme financial payments linked to specific individual circumstances.
60. Human Rights and Equal Opportunity Commission Review of Changes to the Administration of Federal Anti-Discrimination Law: Reflections on the initial period of operation of the Human Rights Legislation Amendment Act (No.1) 1999 (Cth) Commonwealth of Australia Sydney 2002, p11.
61. The complainant’s age was provided in 66 complaints.
62. A median rather than average measurement gives a clearer picture of the financial compensation that complainants received, as an average can be skewed by one or two extreme financial payments linked to specific individual circumstances.
63. Note that a payment of $200,000 was made to a 34 year old woman. As this payment is significantly higher than most other compensation payments it does skew the results for this age group slightly. Removing this payment from the calculation results in an average payment of $23,125 for 31-40 year old complainants, which is still significantly higher than other age groups.
64. Excluding the payment of $200,000 from the calculation results in a median payment of $22,500 for 31-40 year old complainants.
65. A detailed breakdown of compensation paid by employers versus individuals is not available. See Section 9.5 for further discussion of payment by employers versus individuals.
66. For all complaints to HREOC in 2001-2002, 88 per cent of matters were finalised within 12 months from the date of receipt and the average time from receipt to finalisation of a complaint was seven months. Human Rights and Equal Opportunity Commission Annual Report 2001-2002 HREOC Sydney 2002, p40.
67. The complaint was withdrawn within six days of its receipt.
68. The complaint settled at a conciliation conference with the employer agreeing to pay the complainant $30,000 in full and final settlement of the complaint.
69. The case was listed for a directions hearing on 29 October 2003.
70. Maurmo v The House of the Bride & Ianotti unreported Federal Magistrates Service 4 March 2003, Fox v Gay & Boyd Hotel, unreported Federal Magistrates Service 6 August 2003 and Daley v Barrington & Wright & NSW Greyhound Breeders, Owners and Trainers Association [2003] FMCA 93.
71. Font v Paspaley Pearls & Ors [2002] FMCA 142.
72. Maurmo v The House of the Bride & Ianotti unreported Federal Magistrates Service 4 March 2003 and Fox v Gay & Boyd Hotel unreported Federal Magistrates Service 6 August 2003.
73. Daley v Barrington & Wright & NSW Greyhound Breeders, Owners and Trainers Association [2003] FMCA 93.
74. Font v Paspaley Pearls & Ors [2002] FMCA 142.

---

<< Back || Next >>

 

Last updated: 12 November 2003

Footer information

• Accessibility
• Help
• About the site
• Disclaimer
• Copyright
• Privacy
• Sitemap
• Feedback
• Contact us

Copyright © Human Rights and Equal Opportunity Commission