Warning: This article contains details about sexual harassment which may be upsetting for some readers. Reader discretion is advised.
The Fair Work Commission has delivered its determination of a Stop Sexual Harassment Application, declining to make an order because it was not satisfied there was a continued risk of harassment.
In issue
- Whether the claimant was sexually harassed by a co-worker and, if so, whether she was at risk of continued sexual harassment, so as to justify a stop sexual harassment order being made against both her employer and the co-worker under section 527F of the Fair Work Act 2009 (Act).
The background
In September 2023, the applicant witnessed a co-worker making an allegedly sexist remark. As a result, the claimant lodged a stop sexual harassment application in the Fair Work Commission (FWC) (Application).
The co-worker, in his response to the Application, accepted he had made the sexist remark and, although he said it was not directed at the claimant, expressed remorse as to his behaviour and the impact on the claimant.
The employer indicated that they had directed the co-worker to stay away from the claimant and not involve himself in her work, and that the co-worker had complied with that direction.
The decision
The FWC noted that it can only issue a stop sexual harassment order if it is satisfied both that:
- the aggrieved person has been sexually harassed in contravention of the Act; and
- that there is a risk that the person will continue to be sexually harassed (see s 527J(1)(b)).
Deputy President Colman held that on the evidence of the parties, he was not satisfied that there was a risk that the claimant would continue to be sexually harassed given that the co-worker had expressed remorse and had complied with the employer’s direction to stay away from the claimant.
On that basis, the FWC determined that 'the requirement of s 527J(1)(b)(ii) was not established and that [the FWC] therefore had no power to issue a stop order'.
Implications for you
This decision highlights the importance of a claimant proving not only that sexual harassment occurred, but, crucially, that there is a risk of continued harassment to warrant a stop order. The FWC will only make a ‘stop harassment order’ under the Act when there is a risk of potential future harassment based on an objective analysis of the facts.
Employers need to ensure they take active steps immediately after they become aware of such instances of harassment in the workplace to avoid further liability – for instance, by separating employees and ensuring that contact between them is eliminated or at least minimised.
