Personal law update
Sexual harassment is unwelcome sexual behaviour where the victim feels offended, intimidated or humiliated, and it was reasonable in the circumstances for them to feel that way.
For more information contact: Julia Adlem on 8410 9494 or send an email via this form.
Sexual harassment is unlawful under the Sexual Discrimination Act 1984 (Cth) and the Equal Opportunity Act 1984 (SA). It can also create general liability for perpetrators at common law.
Sexual harassment is not limited to physical forms of sexually harassing conduct (unwelcome touching, hugging, cornering, kissing or unnecessary familiarity); it also includes non-physical types of sexual harassment, (suggestive comments or jokes, staring or leering, sexually explicit emails or SMS messages).
Sexual harassment is about how people view the behaviour (from the point of view of the one feeling harassed) not how it is intended. Statistics will tell us that sexual harassment in the workplace predominantly affects women under the age of 45 and is perpetrated by co-workers.
Less than one third of the sexual harassment experienced is formally reported to either employers or external agencies. The reasons for not reporting the harassment predominantly fall into three categories:
(i) Lack of faith in the formal complaints mechanism;
(ii) Belief that the experience was not serious enough to warrant reporting; and or
(iii) The victim dealing with the problem themselves.
Due to public awareness, nearly all complaints to external authorities (including government bodies and the court system) are now followed through effectively and result in practical resolution of problems.
Resolutions can range from attendance to educational programs and financial penalties, to compensation for victims.
A lawyer can assist you in getting a resolution through the court system. Recently, the District Court of South Australia held in D’Andrea v Studio Silva Photography Pty Ltd that an employer who persistently made unwanted sexual advances towards an employee, breached the term of mutual trust and confidence implicit in the employee’s contract.
The court heard of a number of allegations made against a fellow employee, including sexually suggestive remarks and inappropriate physical contact – all of which occurred in just the two weeks that the victim had been in the job. The court unanimously found the offences proven against the fellow employee, and further found that the employer had constructively dismissed the victim because of the harassment.
Accordingly, the Court awarded $22,164 for injury to feelings and lost wages against the company to the victim.
Sexual harassment is a serious issue and should not be ignored. Not only will coming forward and getting a resolution make you happier in the workplace, it will dissuade perpetrators from doing it again and protect potential future victims. So please don’t stand by and be a silent victim.
DISCLAIMER: this newsletter is not intended as legal advice; no reliance is to be placed hereon.