A Bad Business - Part B: The Complaints Process

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A Bad Business

(Review of sexual harassment in employment complaints 2002)

Part B: The Complaints Process

2.
The legal definition of sexual harassment

Sexual harassment is an unwelcome
sexual advance, unwelcome request for sexual favours or other unwelcome
conduct of a sexual nature which makes a person feel offended, humiliated
or intimidated, where a reasonable person would anticipate that reaction
in the circumstances. [11] The Sex Discrimination
Act defines the nature and circumstances in which sexual harassment
is unlawful. [12]

The legal test for sexual harassment
in the Sex Discrimination Act has three essential elements:

In Aldridge v Booth, Justice
Spender of the Federal Court said that “unwelcome” means

… that the advance, request
or conduct was not solicited or invited by the employee, and the employee
regarded the conduct as undesirable or offensive. [13]

The intention or motive of an alleged
harasser is not relevant when determining whether the behaviour was
unwelcome. Sexual harassment focuses on how the conduct in question
was perceived and experienced by the recipient rather than the intention
behind it. It is irrelevant that the behaviour may not offend others
or has been an accepted feature of the work environment in the past. [14]

A complaint of sexual harassment will
not be dismissed just because the person subjected to the behaviour
did not directly inform the harasser that it was unwelcome. However,
there does need to be some indication from the person’s conduct
or surrounding circumstances that the behaviour was in fact unwelcome.
The case law takes into account the reasons why someone may feel unable
to confront a harasser directly.

Sexual interaction or flirtation which
is based on mutual attraction or friendship is not sexual harassment
because it is not unwelcome. If the behaviour is consensual and reciprocated
it will not be unlawful. However, consent or participation which is
obtained by fear, intimidation, threats or coercion does not mitigate
a complaint of sexual harassment.

Examples of sexually harassing behaviour
include:

A working environment or workplace
culture that is sexually permeated or hostile will also amount to unlawful
sexual harassment. Some of the factors which may indicate a potentially
hostile environment include the display of obscene or pornographic materials,
general sexual banter, crude conversation or innuendo and offensive
jokes.

The Sex Discrimination Act makes such
conduct unlawful in the following areas of public life:

It is also unlawful, under section
94 of the Sex Discrimination Act, for a person to be victimised for
making, or proposing to make, a complaint of sexual harassment to HREOC.
This section also protects people giving information relating to a complaint.

Section 106 of the Sex Discrimination
Act makes an employer vicariously liable for acts of sexual harassment
committed by employees or agents in connection with their duties unless
the employer can demonstrate that “all reasonable steps”
were taken to prevent sexual harassment occurring. This requires employers
to implement precautions to minimise the risk of unlawful behaviour
occurring in the workplace. The case law suggests that:

Individuals and employers can also
be held personally liable under section 105 of the Sex Discrimination
Act if they “caused, instructed, induced, aided or permitted”
an individual to commit an unlawful act. [17] There is no defence available for this type of liability.

An organisation can be held liable
under section 105 even if there was no legal relationship between the
parties, such as that of employer/employee or principal/agent. However,
an organisation must at least have been aware of the situation in order
to be liable. In effect, a person can be held liable under section 105
if they were aware that sexual harassment was occurring but permitted
(or actively assisted) it to continue.

3. Overview of HREOC’s complaint
handling function

HREOC is empowered under the Human
Rights and Equal Opportunity Commission Act 1986 (Cth) to investigate
complaints under federal human rights and anti-discrimination legislation,
including the Sex Discrimination Act, and to attempt to resolve complaints
by conciliation where this is considered appropriate. HREOC has the
power to compel the production of information and documents and to convene
compulsory conciliation conferences. [18] HREOC does
not determine whether or not there has been sexual harassment under
the Sex Discrimination Act. This is a matter for the Courts, on application
by the complainant, if the complaint is terminated.

There are two types of parties to
a complaint: the complainant and the respondent. The complainant is
the person who lodges the complaint with HREOC, and must generally be
a person who has been personally affected by the alleged discrimination. [19] In the case of sexual harassment, this will
be the person who is claiming to have been harassed or victimised. The
respondent is the party against whom the complaint has been lodged.
There may be more than one respondent to a complaint. In the case of
sexual harassment, the respondent is generally the individual or individuals
whom it is alleged committed the harassment and/or the complainant’s
employer who may be vicariously liable for individuals’ harassing
behaviour.

Complaints are handled by HREOC according
to the circumstances and evidence available taking care to meet the
requirements of natural justice and procedural fairness. The following
diagram sets out the complaint handling process.

Complaints made under the Sex
Discrimination Act which have substance and are within jurisdiction
are investigated, with most progressing to a conciliation conference.
Conciliation can also occur through holding a tele-conference or negotiating
through a conciliator.

The conciliation conference is a meeting
that gives the parties the opportunity to hold a frank discussion about
the complaint, in an attempt to resolve the matter through negotiation.
The conference gives the parties the chance to settle a matter on their
terms. The conciliation conference is not a public hearing, a court
of law or a tribunal. As such, the parties attending do not have to
prove or disprove the complaint.

The conciliator’s role is a
neutral one, conducting the conference in a fair and impartial manner,
giving each party an opportunity to present their point of view and
assisting them in resolving the complaint. The conciliator may make
suggestions for terms of settlement, give expert advice on likely settlement
terms, and may actively encourage the parties to reach an agreement.
The conciliator is not an advocate for either party. His or her role
is to keep the parties in the conference focused on the issues raised
under the law and to help resolve the matter.

The settlements that have been agreed
upon by parties in conferences conducted by HREOC are wide and varied.
Outcomes depend on how the complainant is seeking to resolve the complaint
and what the respondent is prepared to offer.

Complaints of unlawful discrimination
that cannot be resolved by conciliation or are considered inappropriate
for conciliation are terminated by the President of HREOC. Grounds for
termination include that there is no reasonable prospect of settlement,
that the behaviour is not unlawful or that the complaint was lacking
in substance. Complaints may also be finalised as an “administrative
closure” which means that either the complainant was not an aggrieved
party to the harassment; that the complaint was against a State Government
instrumentality over which HREOC has no jurisdiction or that the complaint
had been actioned by a State or Territory anti discrimination agency
and therefore could not be considered by HREOC. As noted in the diagram
above, the grounds for termination are likely to vary depending on the
stage at which the complaint has been terminated. For example, early
finalisation of a complaint is likely to be due to a determination by
HREOC that HREOC does not have jurisdiction or that the alleged conduct
was not unlawful. Termination after conciliation has been attempted
is more likely to be on the ground of there being no reasonable prospect
of settlement.

When a complaint under the Sex Discrimination
Act has been terminated, the complainant may then make an application
to the Federal Court of Australia or Federal Magistrates Court to hear
and determine the allegations.

Footnotes

11.
“The conduct will amount to harassment if it occurs in circumstances
in which a reasonable person would have anticipated that the person
harassed would be offended, humiliated or intimidated”: Font
v Paspaley Pearls & Ors [2002] FMCA 142 at [134].

12. Section 28A of the Sex Discrimination Act defines
sexual harassment. Section 28B provides the circumstances under which
such behaviour is unlawful in the area of employment.

13. Aldridge v Booth (1988) 80 ALR 1 at 5.

14. In Hall & Ors v A. A. Sheiban Pty Ltd &
Ors (1989) EOC 92-250 at 77, 399 Justice Lockhart stated that “In
principle, advances by an employer, particularly if there is a series
of them, all of which may have been tolerated by an employee out of
sympathy or out of lack of choice, and each of which or all of which
may have been tolerated by the majority of women, may nevertheless contravene
Section 28 if they otherwise ‘vex and annoy’ so as to amount
to sexual harassment.”

15. Section 28B-L.

16. In Aldridge v Booth (1988) EOC 92-222
at 77, 091 Justice Spender summed up these requirements: “It is
noted that … it is for an employer or principal to establish all
reasonable steps to be taken by that employer or principal to prevent
the acts constituting the unlawful conduct. The discharge of this onus,
of course, depends on the particular circumstances of a case, but it
is seriously to be doubted that it can be discharged in circumstances
of mere ignorance or inactivity.”

17. “In my opinion, a person can, for the purposes
of s105, permit another person to do an act which is unlawful, such
as discriminate against a woman on the grounds of her sex, if, before
the unlawful act occurs, the permitter knowingly place the victim of
the unlawful conduct in a situation where there is a real, and something
more than a remote, possibility that the unlawful conduct would occur.” Elliot v Nanda & the Commonwealth of Australia [2001] FCA
418 at [163].

18. Section 46PK, Human Rights and Equal Opportunity
Commission Act 1986 (Cth).

19. In certain circumstances another person can make
a complaint on behalf of individuals or groups who cannot make a complaint
themselves. A complaint may also be made by one affected person on behalf
of a group of people, such as a group of workers or residents.

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Last
updated: 12 November 2003