Employer Falls Short of Their Positive Duty Obligations in Prevention of Sexual Harassment

In a recent unfair dismissal case, Lindsay Swift v Highland Pine Products Pty Ltd [2023] FWC 1997 (10 August 2023) the practices of employer Highland Pine Products Pty Ltd (Highland Pines), were put under the microscope. While the termination of the employee stood, Fair Work Commissioner McKinnon found gaping holes in the practices of Highland Pine when they were reviewed against the positive duty requirements imposed on employers to prevent sexual harassment.

Commissioner McKinnon warned a mindset of only investigating or acting on alleged sexual misconduct after a formal complaint is made, falls way short of what is required under Sex Discrimination Act 1984. It was clear through evidence presented that the former employee’s inappropriate and crude behaviour had gone unchecked for years and the workplace culture did not support or encourage reporting. As a result, Commissioner McKinnon suggested the employer review their practices and look to introduce a program of training for managers and employees.

The warning from Commissioner McKinnon is a timely reminder for businesses of all sizes from big business to sole traders to conduct a health check, identify any areas of risk and proactively put in place preventative measures to reduce the risk of sexual harassment in the workplace or in connection to work, extending the employers duty beyond the brick and mortar of the workplace.

Prevention is key 

The changes to legislation in December 2022 impose employers with the obligation of taking all reasonable and proportionate measures to eliminate sexual harassment in the workplace or in connection with work. The message from Commissioner McKinnon to Highland Pines was clear, prevention is key. Acting after the fact is simply not good enough, nor is a set and forget policy. Employers today are being asked to shift their focus to proactive measures instead of being reactive.

What is to be considered ‘reasonable’ may depend on many factors including, but not limited to:

• the size and structure of the business
• availability and access to resources
• any history of sexual harassment and gender hostility
• any other relevant factor which may include geographic isolation, location possible live-in situations.

Steps employers may consider taking in preventing sexual harassment:

• Get high level management support and encourage appropriate conduct by managers.
• Develop and implement a sexual harassment policy that makes it clear that sexual harassment will not be tolerated.
• Provide regular training and information on sexual harassment to employees and management, don’t set and forget.
• Create a positive workplace environment and ensure the business is clear on how they will deal with sexual harassment if it was to occur.

If you need help in understanding more about your positive duty or need help in developing a strategy in preventing sexual harassment in your workplace, please reach out to the Workplace Relations and Legal Team on (02) 6175 5900.