A Bad Business - Part B: The Complaints Process

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

Part B: The Complaints Process

2. The legal definition of sexual harassment

Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, where a reasonable person would anticipate that reaction in the circumstances. [11] The Sex Discrimination Act defines the nature and circumstances in which sexual harassment is unlawful. [12]

The legal test for sexual harassment in the Sex Discrimination Act has three essential elements:

• the behaviour must be unwelcome;
• it must be of a sexual nature; and
• it must be such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated or intimidated.

In Aldridge v Booth , Justice Spender of the Federal Court said that “unwelcome” means

… that the advance, request or conduct was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive. [13]

The intention or motive of an alleged harasser is not relevant when determining whether the behaviour was unwelcome. Sexual harassment focuses on how the conduct in question was perceived and experienced by the recipient rather than the intention behind it. It is irrelevant that the behaviour may not offend others or has been an accepted feature of the work environment in the past. [14]

A complaint of sexual harassment will not be dismissed just because the person subjected to the behaviour did not directly inform the harasser that it was unwelcome. However, there does need to be some indication from the person's conduct or surrounding circumstances that the behaviour was in fact unwelcome. The case law takes into account the reasons why someone may feel unable to confront a harasser directly.

Sexual interaction or flirtation which is based on mutual attraction or friendship is not sexual harassment because it is not unwelcome. If the behaviour is consensual and reciprocated it will not be unlawful. However, consent or participation which is obtained by fear, intimidation, threats or coercion does not mitigate a complaint of sexual harassment.

Examples of sexually harassing behaviour include:

• unwelcome touching;
• staring or leering;
• suggestive comments or jokes;
• sexually explicit pictures or posters;
• unwanted invitations to go out on dates;
• requests for sex;
• intrusive questions about a person's private life or body;
• unnecessary familiarity, such as deliberately brushing up against a person;
• insults or taunts based on sex; and
• sexually explicit emails or SMS text messages.

A working environment or workplace culture that is sexually permeated or hostile will also amount to unlawful sexual harassment. Some of the factors which may indicate a potentially hostile environment include the display of obscene or pornographic materials, general sexual banter, crude conversation or innuendo and offensive jokes.

The Sex Discrimination Act makes such conduct unlawful in the following areas of public life:

• employment situations;
• bodies or authorities responsible for occupational qualifications;
• registered organisations such as unions;
• employment agencies;
• educational institutions;
• the provision of goods, services and accommodation;
• the disposal or acquisition of land;
• club membership; and

• the administration of Commonwealth laws or programs. [15]

It is also unlawful, under section 94 of the Sex Discrimination Act, for a person to be victimised for making, or proposing to make, a complaint of sexual harassment to HREOC. This section also protects people giving information relating to a complaint.

Section 106 of the Sex Discrimination Act makes an employer vicariously liable for acts of sexual harassment committed by employees or agents in connection with their duties unless the employer can demonstrate that “all reasonable steps” were taken to prevent sexual harassment occurring. This requires employers to implement precautions to minimise the risk of unlawful behaviour occurring in the workplace. The case law suggests that:

• “reasonable steps” must be active, preventative measures;
• the obligation to prove that “all reasonable steps” were taken rests with the employer; and

• lack of awareness that the harassment was occurring is not a defence for employers. [16]

Individuals and employers can also be held personally liable under section 105 of the Sex Discrimination Act if they “caused, instructed, induced, aided or permitted” an individual to commit an unlawful act. [17] There is no defence available for this type of liability.

An organisation can be held liable under section 105 even if there was no legal relationship between the parties, such as that of employer/employee or principal/agent. However, an organisation must at least have been aware of the situation in order to be liable. In effect, a person can be held liable under section 105 if they were aware that sexual harassment was occurring but permitted (or actively assisted) it to continue.

3. Overview of HREOC's complaint handling function

HREOC is empowered under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to investigate complaints under federal human rights and anti-discrimination legislation, including the Sex Discrimination Act, and to attempt to resolve complaints by conciliation where this is considered appropriate. HREOC has the power to compel the production of information and documents and to convene compulsory conciliation conferences. [18] HREOC does not determine whether or not there has been sexual harassment under the Sex Discrimination Act. This is a matter for the Courts, on application by the complainant, if the complaint is terminated.

There are two types of parties to a complaint: the complainant and the respondent. The complainant is the person who lodges the complaint with HREOC, and must generally be a person who has been personally affected by the alleged discrimination. [19] In the case of sexual harassment, this will be the person who is claiming to have been harassed or victimised. The respondent is the party against whom the complaint has been lodged. There may be more than one respondent to a complaint. In the case of sexual harassment, the respondent is generally the individual or individuals whom it is alleged committed the harassment and/or the complainant's employer who may be vicariously liable for individuals' harassing behaviour.

Complaints are handled by HREOC according to the circumstances and evidence available taking care to meet the requirements of natural justice and procedural fairness. The following diagram sets out the complaint handling process.

Complaints made under the Sex Discrimination Act which have substance and are within jurisdiction are investigated, with most progressing to a conciliation conference. Conciliation can also occur through holding a tele-conference or negotiating through a conciliator.

The conciliation conference is a meeting that gives the parties the opportunity to hold a frank discussion about the complaint, in an attempt to resolve the matter through negotiation. The conference gives the parties the chance to settle a matter on their terms. The conciliation conference is not a public hearing, a court of law or a tribunal. As such, the parties attending do not have to prove or disprove the complaint.

The conciliator's role is a neutral one, conducting the conference in a fair and impartial manner, giving each party an opportunity to present their point of view and assisting them in resolving the complaint. The conciliator may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the parties to reach an agreement. The conciliator is not an advocate for either party. His or her role is to keep the parties in the conference focused on the issues raised under the law and to help resolve the matter.

The settlements that have been agreed upon by parties in conferences conducted by HREOC are wide and varied. Outcomes depend on how the complainant is seeking to resolve the complaint and what the respondent is prepared to offer.

Complaints of unlawful discrimination that cannot be resolved by conciliation or are considered inappropriate for conciliation are terminated by the President of HREOC. Grounds for termination include that there is no reasonable prospect of settlement, that the behaviour is not unlawful or that the complaint was lacking in substance. Complaints may also be finalised as an “administrative closure” which means that either the complainant was not an aggrieved party to the harassment; that the complaint was against a State Government instrumentality over which HREOC has no jurisdiction or that the complaint had been actioned by a State or Territory anti discrimination agency and therefore could not be considered by HREOC. As noted in the diagram above, the grounds for termination are likely to vary depending on the stage at which the complaint has been terminated. For example, early finalisation of a complaint is likely to be due to a determination by HREOC that HREOC does not have jurisdiction or that the alleged conduct was not unlawful. Termination after conciliation has been attempted is more likely to be on the ground of there being no reasonable prospect of settlement.

When a complaint under the Sex Discrimination Act has been terminated, the complainant may then make an application to the Federal Court of Australia or Federal Magistrates Court to hear and determine the allegations.

Footnotes

11. “The conduct will amount to harassment if it occurs in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated”: Font v Paspaley Pearls & Ors 02] FMCA 142 at [134]. Section 28A of the Sex Discrimination Act defines sexual harassment. Section 28B provides the circumstances under which such behaviour is unlawful in the area of employment. em> Aldridge v Booth 88) 80 ALR 1 at 5. In Hall & Ors v A. A. Sheiban Pty Ltd & Ors 92-250 at 77, 399 Justice Lockhart stated that “In principle, advances by an employer, particularly if there is a series of them, all of which may have been tolerated by an employee out of sympathy or out of lack of choice, and each of which or all of which may have been tolerated by the majority of women, may nevertheless contravene Section 28 if they otherwise ‘vex and annoy' so as to amount to sexual harassment.” 28B-L. ldridge Aldridge v Booth 92-222 at 77, 091 Justice Spender summed up these requirements: “It is noted that … it is for an employer or principal to establish all reasonable steps to be taken by that employer or principal to prevent the acts constituting the unlawful conduct. The discharge of this onus, of course, depends on the particular circumstances of a case, but it is seriously to be doubted that it can be discharged in circumstances of mere ignorance or inactivity.” opinion, a person can, for the purposes of s105, permit another person to do an act which is unlawful, such as discriminate against a woman on the grounds of her sex, if, before the unlawful act occurs, the permitter knowingly place the victim of the unlawful conduct in a situation where there is a real, and something more than a remote, possibility that the unlawful conduct would occur.” Elliot v Elliot v Nanda & the Commonwealth of Australia at [163]. , Human Rights Human Rights and Equal Opportunity Commission Act 1986 e="19" id= 19. In certain circumstances another person can make a complaint on behalf of individuals or groups who cannot make a complaint themselves. A complaint may also be made by one affected person on behalf of a group of people, such as a group of workers or residents.

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Last updated: 12 November 2003