Sexual Harassment Update

Reminder – what is sexual harassment?

Sexual harassment refers to an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature in circumstances where a reasonable person would consider that the person harassed would be offended, humiliated or intimidated. It is unlawful for any workplace participant (i.e., an employer, employee, contractor or a partner in a partnership) to engage in sexual harassment with another workplace participant in the workplace.

Conduct of a sexual nature can include physical touching, the making of sexually suggestive comments or jokes, and the sending of sexually explicit images via electronic media. In determining whether sexual harassment has taken place, the personal backgrounds and relationship between the parties as well as any other relevant circumstances are considered.

Employers should note that sexual harassment can be overt, subtle or covert.

To determine if sexual harassment has occurred, we recommend that employers conduct a thorough workplace investigation. However, we caution against an investigation that is fast-tracked.

In the matter of Daniel Matthews v Qantas Airways Limited [2022] FWC 654, the investigator failed to consider the inconsistencies in a complaint leading to negative findings being made against the employer in an unfair dismissal claim.

Background

Mr Matthews, the Applicant, was providing training on basic aviation first aid. During the training session, the Complainant claimed that Mr Matthews stared into her eyes for ‘probably about 10 seconds’, before his eyes moved to her ‘chest area’ for 10-20 seconds. The Complainant claimed that Mr Matthews then said words to the effect of, ‘You can look into a person’s eyes to see if they are responsive,’ before laughing and continuing, ‘And then you may have noticed that I was deliberately staring at [the Complainant’s] chest to see if she was breathing.

The complainant was embarrassed and complained about the comment. Qantas, the employer then commenced a workplace investigation. The allegations were found to be substantiated and the applicant’s employment was terminated. The applicant then lodged a claim for unfair dismissal.

Decision

The matter came before the Fair Work Commission (FWC). It was found that there was no valid reason for the dismissal as the conduct did not amount to sexual harassment and appeared to be a huge “misunderstanding”.

The basis for this decision was that the FWC found inconsistencies with the complainant’s version of events from the time the initial complaint was made to when the FWC then considered the evidence during cross examination.

Key learning points

Sexual harassment allegations should be thoroughly investigated and preferably by an outside investigator. The process must be meticulous and must consider the contextual background.

Article prepared by:

Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal

Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal