Warning: This article contains details about sexual harassment which may be upsetting for some readers. Reader discretion is advised.
A recent case in the Magistrates’ Court of Victoria has found two companies did not have adequate sexual harassment policies to ensure, as far as reasonably practicable, that the risk of psychological injury to staff was reduced.
The companies were found guilty of criminal offences under the Occupational Health & Safety Act 2004 (Vic) with fines totalling $250,000.
Under the Occupational Health and Safety Act 2004 (Vic) (OH&S Act), employers have duties to provide and ensure, as far as reasonably practicable, a safe working environment that is without risks to health and to ensure a workplace under its control is safe and without risks to health.
When these duties come to mind, they are traditionally associated with potential physical injuries and matters such as ensuring that plant is safe, that employees are adequately trained and/or that there is a safe system of work in place for the task being undertaken by an employee.
Although there has been no change to the relevant provisions of the OH&S Act, the scope of the duty is broadening in practical terms. There is an upward trend of prosecutions against companies that fail to adequately control the risks to psychological health (as opposed to physical health) within Victorian workplaces.
Sexual harassment in the workplace & offences under the OH&S Act
On 26 October 2023, Victorian companies Whitelom Investments Pty Ltd (in liquidation) and Whitelom Pty Ltd (in liquidation) (together, Whitelom Entities) were sentenced in the Magistrates’ Court of Victoria in respect of criminal offences under section 21(1)1 and section 262 of the OH&S Act in connection with the risk that staff may sustain psychological injuries as a result of sexual harassment by a person in the position of management. Staff of Whitelom Entities were sexually harassed by a person in a management position. The Court found that it was reasonably practicable to reduce the risks of psychological injury to employees who had experienced sexual harassment in the workplace by providing them with a procedure to report incidents of sexual harassment to a person other than to a manager. That procedure was not in place and the Whitelom Entities were guilty of the offences.
The Whitelom Entities pleaded guilty, were convicted of the offences, and were sentenced to pay fines collectively totalling $250,0003 plus WorkSafe Victoria’s costs. The quantum of the fines, which are uninsurable at law,4 are an indication as to how seriously the Courts will treat the risk of psychological injury in the workplace.
Following the impact of COVID lockdowns and the psychological effects of extended periods of working from home on some workers, it is important to understand and remember that the duty to provide and ensure a safe working environment extends to safeguarding against not only physical, but also psychological, risks insofar as reasonably practicable as many employers continue to adopt flexible working arrangements.
1 In respect of Whitelom Investments Pty Ltd (in liquidation).
2 In respect of Whitelom Pty Ltd (in liquidation).
3 Whitelom Investments Pty Ltd (in liquidation) was sentenced to pay $110,000 for a breach of section 21(1) of the OH&S Act plus costs of $4,360.33. Whitelom Pty Ltd (in liquidation) was sentenced to pay $140,000 for a breach of section 26 of the OH&S Act plus costs of $4,360.33.
4 Section 148A & 148B of the OH&S Act.