Part 2 – Serious Misconduct

The Government recognised the importance of ensuring that employers are clearly empowered to dismiss perpetrators of sexual harassment when appropriate.

To support this, the Government amended section 387 of the Fair Work Act 2009 (Cth) to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal when determining whether a dismissal was harsh, unjust or unreasonable.

The definition of “Serious Misconduct” in the Fair Work Regulations 2009 was also amended to include reference to sexual harassment.

The inclusion of a specific and express reference to sexual harassment in the definition of “Serious Misconduct” clarifies that this type of behaviour within the workplace will justify summary dismissal (that is, dismissal without notice).

Warren Power v Lyndons Pty Ltd T/A Lyndons

[2023] FWC 1060 (5 May 2023)

▪ It was alleged Mr Power had said words “I’ll f### you in the a###” or “s### my d###” towards an employee (The Words).

▪ Mr Power denied using The Words and gave evidence that swearing was common in the workplace.

Warren Power v Lyndons Pty Ltd T/A Lyndons

[2023] FWC 1060 (5 May 2023)

▪ The witnesses were all very clear that the Words were used, that they were used by Mr Power and that they were directed specifically at his colleague.

▪ "Whilst swearing in the workplace may or may not be commonplace, the Words used by [Mr Power] went far beyond simply swearing in the workplace and fall squarely within the definition of serious misconduct as prescribed by the Fair Work Regulations.

▪

"Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome and such conduct opens the [employer] to a failure of its duty to provide a safe place of work for its employees."

Part 3: Express provision relating to sexual harassment in the Fair Work Act 2009 – 6 March 2023

▪ On 6 March 2023, an express prohibition on sexual harassment commenced under the Fair Work Act 2009

▪ A contravention will attract penalties in the same manner as the general protections jurisdiction and the employee will be entitled to seek damages.

▪ An employer will be vicariously liable for the contravening conduct unless it can demonstrate it took all reasonable steps to prevent it.

▪ An aggrieved person, or their industrial association, can make an application to the Fair Work Commission for a “stop sexual harassment order” or request the Commission to otherwise deal with the dispute.

▪ In considering the terms of an order, the Commission must also take into account any other matters that the Commission considers to be relevant to an application for an order to stop sexual harassment.

▪ Without limiting the matters that might be considered in this context, the circumstances of the parties, the history and nature of the work and work relationships and the utility of any orders that might be made would be relevant considerations.

▪ This might include:

• the applicant being on leave from the workplace;

• that the individual(s) involved in the behaviour are no longer in the workplace;

• changes in the work environment;

• initiatives put in place by the employer such as policies and procedures to reduce the risk of sexual harassment;

• any other developments in the workplace;

▪ The aggrieved person will have a period of 24 months after the alleged contravention to file the application, but only in relation to conduct that occurs after 6 March 2023.

▪ If the application is not resolved through conciliation, the parties can consent to arbitration by the FWC. The FWC will be empowered to make orders for compensation, lost remuneration, and/or an order requiring a person to perform any reasonable act, or carry out any reasonable course of conduct, to redress the loss or damage suffered.

▪ If the parties do not consent to arbitration by the FWC, the applicant can make a court application and also seek penalties of up to 60 penalty units.

▪ The amount of compensation which can be claimed by an applicant is unlimited. Additionally, from March 2023, civil penalties of up to $16,500 for individuals and $82,500 for companies can be applied.

▪ The Fair Work Ombudsman is also empowered to prosecute contraventions.

Part 4: Applications and Orders

▪ To apply to the Fair Work Commission to stop sexual harassment at work, a person must be:

• a worker and

• working in a constitutionally covered business and

• still connected to the workplace where the conduct occurred.

▪ The sexual harassment must have occurred when the worker was at work. A worker can be at work even when they’re working away from the work premises.

▪ A worker could be sexually harassed by another worker or by another person when they are at work (for example, by a customer or client of the employer or principal, a supplier of the employer or business or a visitor to the worker’s place of work).

▪ For sexual harassment disputes involving conduct that occurred or began on or after 6 March 2023, an application to deal with a sexual harassment dispute can be made under new Part 3-5A of the Fair Work Act. Part 3-5A allows a person to apply to the Commission for orders to stop sexual harassment in connection with work, and/or for the Commission to start to deal with the sexual harassment dispute (other than by arbitration).

▪ The new sexual harassment provisions and the process for making a sexual harassment dispute application are explained in the Sexual Harassment Disputes Benchbook.

▪ When considering the terms of an order to prevent further sexual harassment at work, the Commission must, to the extent that it is aware, take into account:

• any final or interim outcomes arising out of an investigation into the matter that is being undertaken by another person or body

• any procedures available to the worker to resolve grievances or disputes

• any final or interim outcomes arising out of any procedures available to the worker for resolving grievances or disputes, and

• any matters that the Commission considers relevant.

▪ By taking into account these factors, the Commission can frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, to ensure consistency with those actions.