Workplace harassment

Every employee in Queensland has workplace rights that are protected by legislation. These rights cover a broad range of areas, including pay, conditions, and workplace safety. One of these rights is for employees to be able to work in workplaces that are free from harassment, discrimination, and bullying.

Workplace harassment can take many forms and can have serious effects on the mental and physical health of employees. Employers who do not take action against workplace harassment can also face serious consequences including harsh penalties.

Keep reading to learn more about workplace harassment, and what you can do about it.

What is workplace harassment?

A person is subjected to “workplace harassment” if they are subjected to behaviour by another person, who may be an employer or co-worker, that:

  • is unwelcome and uninvited;
  • the person considers to be offensive, insulting, intimidating, humiliating or; and
  • a reasonable person would consider to be offensive, insulting, intimidating, humiliating.

Harassment laws are contained in a range of legislation This publication will examine the three most common types of workplace harassment — sexual, racial and disabilityharassment.

Sexual harassment

Sexual harassment is a type of sex discrimination under the Sex Discrimination Act 1984 (Cth). It is defined as the unwelcome conduct of a sexual nature, which can include a sexual advance, a request for sexual favours, or a statement of a sexual nature to (or in the presence of) a person. This conduct can include:

  • unwelcome touching;
  • staring or leering;
  • suggestive comments or jokes;
  • sexually explicit communication such as images, emails or online messages;
  • intrusive questions about a person’s private life or body; and/or
  • insults or taunts based on sex.

Sexual harassment is prohibited on work premises but also in other work-related settings such as on work trips, and at conferences, training events and office parties. Employers may be vicariously liable for the behaviour of their staff at work social functions.

Sexual harassment laws also extend to protect people such as clients, customers, or any other people in the course of providing goods, services and facilities.

workplace harassment

Harassment on the ground of sex

Harassment on the ground of sex is defined specifically as unwelcome conduct of a seriously demeaning nature toward a person because of:

  • the sex of the person; or
  • a characteristic that applies generally (or is generally imputed) to someone of the sex of the person.

In applying the “reasonable person test” to a claim of sexual harassment, factors that may be considered include:

  • the age, sex, sexual orientation, gender identity, intersex status, relationship status, religion, race, colour, or national or ethnic origin, of the person harassed;
  • the relationship between the person harassed and the person who engaged in the conduct;
  • any disability of the person harassed;
  • any power imbalance in the relationship between the person harassed and the person who engaged in the conduct;
  • the seriousness of the conduct; and/or
  • whether the conduct has been repeated.

Racial harassment

The Racial Discrimination Act 1975 (Cth) prohibits offensive conduct because of someone’s race, colour, or national or ethnic origin. The conduct is unlawful if it is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate. Examples of racial harassment include:

  • derogatory remarks about a person’s skin colour, appearance or ethnic culture;
  • insults and racist jokes;
  • display of racially offensive or degrading material such as negative stereotypes; and/or
  • mocking an accent or deliberately mispronouncing a name.

Disability harassment

The Disability Discrimination Act 1992 (Cth) prohibits workplace harassment on the basis of a person’s disability. Disability harassment is any action that causes a person with a disability to feel humiliated, offended or intimidated because of their disability. Examples include:

  • insults and name-calling;
  • offensive jokes and comments;
  • deliberately placing adaptation equipment out of reach;
  • invasion of personal space; and
  • intrusive questioning about the disability.

What is not workplace harassment?

Reasonable management actions from an employer are not considered workplace harassment. Such actions include:

  • managing an employee’s performance;
  • issuing reasonable and lawful instructions;
  • providing constructive criticism; and
  • investigating a disciplinary matter.

Workplace bullying

Workplace bullying and workplace harassment are different behaviours but are sometimes confused. Workplace bullying involves repeated and prolonged behaviour that could (or does) cause humiliation, offence or intimidation. Workplace harassment is also unwanted behaviour that is likely to offend, humiliate or intimidate, but it is based on personal attributes, and the behaviour does not have to be repeated or continuous.

Consequences of harassment

Victims of workplace harassment can experience a range of negative impacts, including mental and physical illness, career interruption, and reduced earning capacity.

Employers who engage in workplace harassment (or allow it to occur) may be forced to pay compensation, and/or apologise, to the victim.

An employee who engages in sexual harassment may be sacked. Amendments made to the Sex Discrimination Act 1984 (Cth) in 2021 confirmed that sexual harassment in the workplace is a form of serious misconduct and as such, a valid reason for termination of employment.

Some types of harassment may also be offences under criminal law, for example, sexual assault, indecent exposure, or obscene communications.

What can employers do about harassment?

Employers should create and foster a workplace culture where harassment is not tolerated, by taking a proactive and preventative approach. There should also be adequate and frequent training of all staff on workplace harassment, as well as a clear and efficient complaints process under which harassment complaints are dealt with promptly, seriously and appropriately.

In some circumstances, an employer may be held vicariously liable for harassment by an employee in the course of employment, unless the employer has taken all reasonable steps to prevent the harassment.

What can employees do about harassment?

Any worker subject to harassment should attempt to resolve the complaint with their workplace before taking legal action. Most workplaces have an informal or formal process for dealing with harassment.

The worker should keep records of harassment incidents including dates, times and witnesses, as well as records of who they spoke to about the harassment (such as a manager or supervisor, health and safety representative or union representative) and when they spoke to them. They should also detail what actions they have or have not taken to resolve the complaint.

If the complaint cannot be resolved internally, it can be referred to an agency such as an employees’ union, the Queensland Human Rights Commission, the Australian Human Rights Commission, or the Fair Work Commission.

For when you need help

Harassment can have a serious effect on both employees and employers. It is important that the parties know what their rights and responsibilities are.

If you are an employee who has been harassed at work, or an employer dealing with a harassment complaint, contact Gibbs Wright Litigation Lawyers today to speak to a workplace lawyer for a free and confidential initial consultation.

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