1. Sexual harassment allegations
1. Sexual harassment allegations
In Australia, different laws define the term sexual harassment. The term sexual harassment is often used in workplaces to refer to unwelcome sexual advances or behaviours that cause offence, humiliation or intimidation, in circumstances where such a reaction would occur to a reasonable person as a possible response.
The idea that a sexual harassment complaint could be false or unfair is a difficult topic for many people. Sexual harassment allegations have profound implications for individuals no matter their setting. Whether you are an executive or employee in the private sector, a public sector worker, or a university student, the stakes are high when facing an allegation of this kind.
If you are the subject of a sexual harassment allegation you believe to be false, wrong, or unfair, you will clearly want to clear your name and defend your reputation in the strongest terms.
In Australia, sexual harassment can constitute serious misconduct. In some cases, it can also constitute criminal offending. The thought that such serious allegations can occur – and yet be wrong – makes people uncomfortable. For this reason, anybody facing a sexual harassment allegation can face a real disadvantage. Yet, you can overcome it.
It is important to understand what ‘sexual harassment’ can be and also how false or unfair allegations can arise.
Key Points:
- Serious misconduct: Sexual harassment in the workplace can be considered serious misconduct.
- Duty to eliminate: Employers in Australia have a positive duty to eliminate, as far as possible, discrimination, sexual harassment, and sex-based harassment in connection with work.
Key Questions:
What is considered sexual harassment?
Seeing examples of what may be sexual harassment assist to illustrate the types of behaviours intended to fall within the meaning of ‘sexual harassment’. Examples of sexual harassment are given in the Anti-Discrimination Act 1991 (Qld), which includes:
- physical contact such as patting, pinching or touching in a sexual way;
- unnecessary familiarity such as deliberately brushing against a person;
- sexual propositions;
- unwelcome and uncalled for remarks or insinuations about a person’s sex or private life;
- suggestive comments about a person’s appearance or body;
- offensive telephone calls of a sexual nature; and,
- indecent exposure.
The above illustrates that sexual harassment can be perpetrated in a variety of ways.
What is not considered sexual harassment?
Acts that occur within a consensual relationship and with consent are generally not regarded as ‘sexual harassment’. Nor is conduct that is otherwise invited, mutual, or reciprocated. However, every situation requires consideration of the individual circumstances.
A sexual harassment complaint may be made wrongly or unfairly due to a misunderstanding about the context of a person’s conduct, or because in the absence of such context, innocuous events may be construed as sexual harassment. While there are many instances where there are disputes about what actually was said or the importance of some broader context that is relevant to what may have occurred, sometimes there is simply no room for interpretation.
Who can be liable for sexual harassment?
Under the Sex Discrimination Act 1984 (Cth), sexual harassment in the workplace is unlawful. Sexual harassment may be committed by the owner of a business, managers, fellow employees, contractors, or people seeking to hold one of those positions.
So, if a person sexually harasses another person they may face and be liable under civil claims beyond facing disciplinary processes. For example, a person who alleges they were sexually harassed may file a claim with the Australian Human Rights Commission. Some serious instances of sexual harassment may also lead to criminal complaints, such as where a sexual assault or indecent exposure occurs.
Employers may be also be liable for sexual harassment that occurs in a workplace unless they have taken all reasonable steps to prevent it. The duties on employers – and the consequences of breaches – create powerful incentives to ensure that their workplace has appropriate policies and procedures in place to eliminate sexual harassment, as well as to act appropriately in response to any sexual harassment allegation.
Must employers try to prevent harassment?
The Sex Discrimination Act 1984 (Cth) makes clear that an employer or person conducting a business or undertaking must take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct, including sexual harassment.
Numerous work health and safety laws across Australia impose duties on people conducting a business or undertaking to manage psychosocial risks. Sexual harassment poses a psychosocial risk that employers ought to eliminate or minimise.
Civil claims and enforcement action can follow for employers who fail to uphold their duties.
2. Responding to false allegations
2. Responding to false allegations
Why false sexual harassment allegations may arise
Sexual harassment does occur. So do complaints of sexual harassment that are false or unfair.
It is not always a case of the accuser lying about events. People can wrongly label something as “sexual harassment”. The context of an event or action may be misunderstood. However, malicious complaints are possible.
The case of Wong v Su [2001] FMCA 108 provides one example of an untrue sexual harassment allegation. In that case, the court found that the allegations were false and motivated by the breakdown of a personal and financial relationship. Each situation requires consideration of the individual circumstances.
An employer can dismiss an employee for making deliberately false allegations in the workplace. However, there are risks for employers and others in taking action against people who raise complaints about being sexually harassed. Such action can easily appear to be victimisation, which gives rise to further risks.
People can often feel an allegation is ‘unfair’ based on their intention behind the words or acts said to have offended, humiliated or intimidated someone. Such issues are complex and can sometimes betray a lack of understanding about the way sexual harassment is defined in Australia. It highlights why before responding to a sexual harassment allegation, it is prudent to seek legal advice as early as possible.
There is no ‘template’ response to sexual harassment allegations
If you have been falsely or unfairly accused of sexual harassment, understanding your response options at an early time can be critical. Sometimes, people take a position early only to realise, sooner or later, it may not have been in their best interests. They may then want to change course. It is not always possible to do so.
Responding to an unfair or false sexual harassment allegation effectively requires understanding your rights, the allegations, and the best strategies for your situation. There is no ‘one-size-fits-all’ approach to responding to sexual harassment complaints, particularly concerning allegations that are false or unfair.
There are a number of options to consider:
1. Obtaining advice
When an employee is notified they have been accused of sexual harassment they are often directed to keep the matter confidential. The isolation people may feel can leave them uncertain of the way forward. In such moments, getting advice and guidance from an experienced lawyer is prudent, particularly when the stakes are high.
Experience shows that executives and employees sometimes delay getting legal advice (if at all). It can be due to fears or concerns that don’t actually reflect their own interests. Such concerns can impact their decision to seek expert assistance from an employment lawyer. It is an important issue because it is surprising how often employers fail to:
- afford procedural fairness;
- comply with their own policies and procedures; or
- consider relevant information.
By the time the person accused of sexual harassment has the opportunity to respond, it can feel like so much has happened or time has passed that a fair outcome is not possible. Yet advice and guidance can help you to better understand your options. Moreover, it can help you to tip the scales back in your favour.
2. Challenging the process
Challenging the process refers to raising issues that go to matters of procedural fairness.
A workplace may be subject to rules about how a complaint or grievance is to be managed. For example, it may be from particular laws, industrial instruments, employment contracts, or internal policies and procedures. An employer who fails to follow these in issuing an opportunity to respond notice may open up a basis to challenge the process. There can sometimes be sound reason to argue that procedural fairness has not been afforded in such circumstances. Flawed processes may be subject to injunctions to preserve the status quo, withdrawn, or set aside.
3. Challenging the allegations
Beyond any procedural flaws, if you feel you have been falsely or unfairly accused of sexual harassment, it is almost inevitable that you will want to challenge the allegations.
Challenging allegations requires a focus on two issues: credibility and reliability. In essence, credibility concerns honesty whereas reliability concerns accuracy. An allegation may be honestly raised but it may depend on a person who is mistaken or otherwise wrong.
One of the important tasks in challenging an allegation is to identify, as early as possible, the relevant information or evidence that may show an allegation to lack credibility or be otherwise unreliable. The reason it is important to do so as early as possible is to ensure relevant witnesses are interviewed while matters are fresh in their mind, or to prevent other
evidence being lost or destroyed.
4. Negotiating a settlement
For an employee facing a sexual harassment allegation, often the aim of ‘without prejudice’ negotiations is to resolve all disputes quickly and without any admission of wrongdoing. It can see an employee reach a commercial settlement with their employer, affording the employee the resources, time, and space to pursue other opportunities.
The benefit of negotiated resolutions
When faced with an unjust situation, it is understandable why you may wish to be vindicated. We all like to be right. However, contested disciplinary processes create real risks for both employers and employees. Sometimes after working through both the risks and rewards of different options, reaching a negotiated settlement to a dispute can start to look attractive to both sides – it’s the bird in the hand instead of the two in the bush.
Sometimes, an employer is motivated to end a dispute about contested allegations or disciplinary process on confidential terms. While not a ‘win’, it can give an employee facing disputed allegations or disciplinary action an ‘exit lane’ away from a protracted fight. Where appropriate, such settlements can afford reputational protections and commercial terms that make it financially viable for the departing employee to exit the workplace.
Initiating confidential ‘without prejudice’ negotiations with an employer is something generally undertaken by a lawyer on behalf of an employee. Power imbalances may otherwise impede discussions between the employer and employee, particularly at a time when an employee is facing a disciplinary process that may result in their dismissal.
Confidential settlements are not always possible for sexual harassment
With sexual harassment allegations, whether such negotiations are appropriate must always needs to be assessed on a case-by-case basis. While confidential negotiations and settlements are not always possible or appropriate for issues of this nature, their use as a complementary strategy in trying to resolve disputes in appropriate cases can see quick resolutions to situations that may otherwise take months to resolve through litigation. Handled incorrectly, allegations of contractual breaches, or worse, can be made.
Seeking to reach a mutual agreement or negotiated settlement generally requires a clear understanding of your legal rights, obligations and options. Agreements of this kind often involve certain guarantees, indemnities or waivers, which can have real consequences when breached. Again, this highlights why it is prudent for ‘without prejudice’ negotiations to be handled with care and with the benefit of legal advice.
3. Key elements of effective responses
3. Key elements of effective responses
Following a sexual harassment allegation, you may face a workplace investigation, be called to a disciplinary meeting, or be issued a ‘show cause’ letter. Using your opportunities to respond effectively is crucial, particularly when facing a sexual harassment allegation you believe to be false or unfair. It requires care to ensure that your response addresses all the allegations or purported findings and presents your side of the story clearly and convincingly.
- Understand the allegations
- Seek advice and guidance
- Gather evidence
- Prepare your response
- Review, edit and submit
1. Understand the allegations
- Understand all the allegations made against you.
- Note the deadlines and the specific instructions for responding.
It can be a source of disagreement whether an employer provides an employee with witness statement or other evidence. Disputes about these issues can arise during a workplace investigation or upon an opportunity to respond letter issuing. The resolution of such disputes is not always easy. Procedural fairness depends on all the circumstances, including the relevant laws and policies.
2. Seek advice and guidance
- Consider consulting with a lawyer or a union representative.
- Professional support can provide valuable advice on how to frame your response and ensure that your rights are protected throughout the process.
Dismissal from a workplace can have far-reaching consequences. It can impact your reputation, livelihood, and financial security. For this reason, it is prudent for people to get legal advice before settling on how to respond.
Tailoring every response to the specific circumstances of the case is always necessary. An experienced lawyer can draw on their knowledge of the law and past cases that may have involved similar issues. This bank of knowledge can make a crucial difference to the ultimate outcome.
3. Gather evidence
- Collect any evidence that supports your case.
- Directions given by an employer complicate gathering evidence
When given a notice inviting you to respond, you may face some hurdles in gathering evidence. For example, suspension from work impedes access to information. Also, it is common for employers to direct employees to keep disciplinary processes confidential. So, it may not be so simple to speak to your colleagues. As such, gathering the available evidence can seem easier in theory than it is in practice.
To gather relevant evidence, it is necessary to know what rights and options you may have to get it. Moreover, it is critical to know what obligations exist for employers to consider it.
Evidence relevant to a response may go beyond simply addressing the allegation. It can also relate to evidence by experts, such as doctors, psychologists, or counsellors. Understanding how evidence may be relevant is not always obvious. The legal issues associated with certain forms of evidence can also be complex.
Employers are not expected to have the skills of police or lawyers in dealing with evidence. That said, if you understand the reasonable expectations they must meet, it can help you frame your response.
4. Prepare your response
- Address each allegation individually.
- Provide a clear and concise explanation or rebuttal for each point.
You may have many choices when deciding how best to address an opportunity to respond notice. However, the situation is likely unfamiliar, involves short timeframes, and is often stressful. In such circumstances, people do not always consider their rights and true options. It is why seeking advice and guidance is a critical step if you are given an opportunity to respond notice at work.
Narrowing the points in dispute can be a source of strength. Yet, it may also be necessary to raise new issues. Sometimes, many things contributed to the issues raised by an employer. Such issues may be personal to the employee, or an external factor that needs consideration.
Identifying what is accepted or rejected is an essential step when responding. Balancing strong challenges with reasonable concessions can be difficult. Decisions of this nature are best made against the applicable legal principles and with the benefit of professional support.
5. Review, edit and submit
- Ensure your response is clear, concise, and free of any emotional language.
- Follow the instructions provided in the opportunity to respond notice.
It is necessary to respond calmly and purposefully. This means taking account of the issues at stake and the dangers of any missteps. A calm and purposeful response will look different to different people.
People can underestimate how much work it takes to respond to allegations, particularly unfair or false sexual harassment allegations. When something is unfamiliar, having realistic expectations can be difficult. This is particularly so when you feel the situation is unfair or unreasonable and are unsure what the outcome will be.
Even with a perfectly rational response, an unfair decision may result. It may be disappointing, even devastating. Getting appropriate legal support can make a real difference. Other supports include employee assistance programs (EAP), doctors, and counsellors. Defending your rights and advancing your interests is possible with a proper strategy.
4. The role of a lawyer in responding
4. The role of a lawyer in responding
Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact unfair disciplinary action or dismissal can have on a person. This firm helps to defend executives and employees who face an unfair situation at work and wish to act against it.
Facing a sexual harassment allegation at work is a serious matter that can have significant consequences on your employment and professional reputation. While it may be tempting to handle the response independently, hiring a lawyer to assist you in responding may be a prudent decision for several reasons.
1. Legal expertise and knowledge
A lawyer brings extensive knowledge of employment law and the legal frameworks governing workplace investigations and disciplinary processes, including with respect to sexual harassment allegations. This expertise can help you understand your rights and your employer’s obligations, ensuring that your response is both legally sound and strategically effective.
2. Tailored and strategic responses
Lawyers are skilled in crafting tailored responses. They can highlight procedural flaws, present mitigating factors, and provide evidence that supports your case. Their ability to structure a compelling argument can significantly enhance the persuasiveness of your response, potentially preventing disciplinary action.
3. Navigating complex issues
The legal implications of disciplinary processes can be complex. A lawyer can help you navigate this terrain, advising on the strengths and weaknesses of different courses of action. This includes understanding the potential outcomes, knowing when to negotiate for a settlement, and recognising when to escalate the matter to a legal tribunal if necessary.
4. Profesional communication
Facing allegations or adverse findings at work is inherently stressful. The potential threat to your livelihood can be overwhelming. A lawyer can alleviate some of this stress by handling communications with your employer, advising you on your rights, and providing a clear path forward. They ensure that your response is professional, respectful, and focused on resolving the issue constructively.