Despite decades of effort and improvement in Australian workplace legislation and culture, sexual harassment is, unfortunately, still a real and prevalent issue, mostly recently for a former High Court justice. This case highlights the link between power imbalances and harassment behaviour. 

In 2018, the Australian Human Resources Commission published a national survey which found that one in three people experienced sexual harassment in the workplace. The likelihood of victimisation increases for people who are female, aged 18-29, not cisgendered or heterosexual, Aboriginal or Torres Strait Islander, or have a disability. These are all qualities that are recognised by most workplace equal opportunity and anti-discrimination policies, demonstrating the importance of promoting and ensuring workplace equality overall as a means of preventing sexual harassment. Workplaces need to ensure that their policies on equality include these intersectional issues, so that increased likelihood is balanced by comprehensive and specific protections.

The link between inequality and sexual harassment

A recently published study by the Victorian Legal Services Commission indicated that an average of 2 out of 3 female and 1 in 10 male legal practitioners had experienced sexual harassment in their workplaces. The study also found that power imbalances were a key ingredient for instances of sexual harassment for the legal professional, again placing equality at the heart of the issue.

What can your leaders do to prevent sexual harassment?

Industries built around professional services and hierarchical workplace dynamics take note: your people are more likely to experience harassment from senior members of your profession. However, these dynamics can also present opportunities for your senior team members to provide cultural leadership, by representing and committing to a zero tolerance attitude towards sexual harassment. Prevention is better than cure, and it is crucial for workplaces to provide the right support, education and development of team members at all levels so they can manage their own behaviour, understand the realities of sexual harassment, and fulfil their role in creating a culture which leaves no room for predatory behaviour. 

What can everyone do to prevent sexual harassment?

The AHRC’s national survey also identified a decrease in reporting of sexual harassment incidents by witnesses and reporting by less than a quarter of complainants. Here is another opportunity for workplaces to ensure their complaint processes include protections for reporters, in particular by ensuring complete confidentiality. Complaint processes should also recognise and preserve the distinction between taking a complaint seriously and supporting a complainant and failing to afford the accused person with full procedural fairness.

Preventing sexual harassment in the workplace starts with a culture of equality, built on strong policies, processes and leadership. Employees have the power both to report harassment when they see it, and to use their own conduct to demonstrate to offenders what is not acceptable. If your workplace would benefit from better insight into your existing workplace culture, refreshed policies or training for your cultural leaders, WISE Workplace can assist. Contact us on 1300 580 685 to talk about your needs.

The FWC recently found SA CARE’s dismissal of a casual disability care worker to be unfair and ordered compensation.

The employee in question was warned off tube-feeding clients due to her lack of certification. In response, she advised that she had been signed off on two appropriate training courses, had experience providing gastronomic care at another facility and had been approved by Disability SA. She believed she had been approved to provide that care.

Two days later, the employee was called without warning into a disciplinary meeting with HR where her lack of certification and other qualifications were discussed again.

The HR officer stepped out of the disciplinary meeting for five minutes.

On return, the officer handed the employee a summary dismissal letter which recorded that the employee had received an opportunity to respond to a serious misconduct allegation. the letter terminated her employment with immediate effect.

FWC’s Deputy President Anderson stated the “shocked” care worker was then “escorted off the premises in the knowledge and view of clients and staff, causing them further distress.”

FWC Findings

Ordinarily, an employee performing a medical procedure on a client, knowing they lacked the required certification would justify summary dismissal. Anderson acknowledges the care worker’s assumptions can be reasonably criticised, but also found that the “unique circumstances of this matter” with factors that significantly “mitigate the seriousness of the conduct.”

Anderson found the lack of notice and the timing of only 48 hours between the instruction and the disciplinary procedure to be harsh and unfair. The process also had only superficial procedural fairness, since the employee’s ability to respond was limited and she was not fully warned of the risks to her employment or afforded the right to support during the process.  Anderson also found that the urgent treatment of the matter was unnecessary. 

Anderson awarded the care worker four weeks compensation minus 25% for misconduct with SA CARE paying over $5830.74 in compensation. If you would like to read more about this case, please see: Chioma Okoye v SACARE Supported Acomodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020).

Reliable solidarity in the face of covid-19:

We take the health and wellbeing of our people, clients and the broader community seriously. Our risk management team are meeting daily to ensure our continued service, support and protection to our clients, team and community.

We are acting in line with government guidelines and have taken additional steps to minimise risk of infection and impact on our community. We will evaluate and act on updates and changes to the COVID-19 situation as they occur, modifying our approach as necessary.