With the upcoming legislative changes on 6th March 2023, a sexual harassment complaint in your inbox is a real possibility you might have to deal with.
First, let’s bring you up to speed with the changes.
On 6th March 2023, the Fair Work Act 2009 will expressly “prohibit” sexual harassment in connection with work. The new provisions will enable harassed workers, unions and the Fair Work Ombudsman to obtain compensation, financial penalties and other orders against perpetrators of sexual harassment and businesses that do not take reasonable steps to guard against the risk of sexual harassment.
How do I implement this change?
- Conduct a risk assessment to identify where sexual harassment is most likely to occur.
- Review your policies on sexual harassment, bullying and sex-based discrimination to ensure they align to the new changes to the legislation – remember to to define the hostile environment terminology and describe what your business is doing to proactively prevent discrimination and harassment.
- Ensure managers and workers receive refresher training on the expected standards of behaviour.
- Ensure investigation processes are set up, robust and compliant.
The Respect at Work amendments also introduces a definition of sexual harassment into the Fair Work Act that all employers must be aware of.
A person sexually harasses another person if they:
- make an unwelcome sexual advance
- make an unwelcome request for sexual favours
- engage in other unwelcome conduct of a sexual nature.
For a person to have sexually harassed someone, it has to be reasonable to expect that in the situation, there’s a possibility that their behaviour would offend, humiliate or intimidate the other person.
How should complaints be handled?
Complaints should be treated with the importance, sensitivity and urgency they deserve and in accordance with your complaints handling and sexual harassment policies. Steps to handling the complaint will include:
- Interviewing the complainant to obtain a formal statement. Ask the complainant what resolution they are seeking and what assistance and support can be provided throughout the complaint resolution process.
- Interviewing witnesses, if any.
- Interviewing the respondent/perpetrator; (offering assistance to the respondent too).
- Analysing and determining whether the evidence substantiates the complaint.
- Commencing a disciplinary process where the complaint has been substantiated by the evidence and upholding all standards of procedural fairness.
- Advising the complainant of the outcome (within the bounds of confidentiality of all parties to the process).
- Ensuring that in the complainant’s eyes, their complaint has been resolved or if there is anything further you need to put in place to resolve the complaint.
There are multiple aspects of Fair Work legislation in play when managing a complaint of sexual harassment. Missing any of these steps could lead to further claims and challenges, such as a stop sexual harassment complaint being made to Fair Work, the lodgment of a general protections claim or an unfair dismissal claim to name a few.
Will you need help managing a complaint if one is in your inbox?
If you need assistance to:
- understand the legislation
- identify what practices you need to implement or change
- update your policies, procedures and employment documentation; or
- manage a sexual harassment complaint
reach out to us at Business 360 for assistance. Call us on 1300 287 360 or email info@business360.au. If you prefer a confidential discussion with one of our directors, click or scan below to book a time to discuss your needs.
