Have you been unfairly accused of sexual harassment? You have options.

The definition of sexual harassment in Australia

Across Australia, there are different laws that define the term sexual harassment.

One definition of ‘sexual harassment’, found in section 28A(1) of the Sex Discrimination Act 1984 (Cth), states:

Meaning of sexual harassment

1. For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
   1. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
   2. engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

   in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

It requires an assessment of all relevant circumstances, including the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed. It also requires consideration of the relationship between the person allegedly harassed and the person who is accused of making the advance or request or who engaged in the conduct.

Under the Sex Discrimination Act 1984 (Cth), the meaning of “conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Examples of 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.

Examples of what is not 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.

Liability for sexual harassment in Australia

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. Under amendments in 2011, it is also unlawful for a person to sexually harass another person in the course of providing or seeking, or offering to provide or receive, goods, services, or facilities. This amendment increased the scope of how sexual harassment may occur in the workplace.

So, if a person sexually harasses another person, they may face and be liable under civil claims. For example, a person who alleges they were sexually harassed may file a claim in 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 vicariously liable for sexual harassment that occurs in a workplace unless they have taken “all reasonable steps” to prevent it. This is because the Sex Discrimination Act 1984 (Cth), as well as other sexual harassment laws across states and territories in Australia, contains laws making employers vicariously liable. In some instances, employers who turn a ‘blind eye’ to sexual harassment can be held directly liable for it occurring. The duties of employers – and consequences – create powerful incentives to ensure that their workplace has appropriate policies and procedures in place to eliminate sexual harassment risks, as well as to act appropriately in response to any sexual harassment allegation.

The positive duty on employers

Section 47B of 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. This includes sexual harassment.

It means there is a positive duty on employers to eliminate, as far as possible, unlawful behaviour, such as:

• discrimination on the ground of sex;
• sexual harassment;
• sex-based harassment;
• a hostile work environment on the ground of sex; and,
• acts of victimisation.

Beyond the Sex Discrimination Act 1984 (Cth), there are now numerous work health and safety laws across Australia that 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.

Workplace investigations serve a number of purposes

The essential function of a workplace investigation is to find the truth based on a fair examination of the evidence. Workplace investigations enable employers to understand the facts and identify the issues relevant to resolving allegations or disputes. They typically involve an examination of an allegation of wrongdoing that may lead to disciplinary action.

Employers are often balancing a number of interests in commencing a workplace investigation.

For an employer, a workplace investigation can serve the following purposes:

1. Enforce workplace standards
2. Comply with legal obligations
3. Minimise legal risks

1. Enforce workplace standards

Most workplaces have policies and procedures that set expectations about behavioural standards for the workplace. Such policies and procedures may not just set standards for how employees must conduct themselves but also how employers will respond to alleged or suspected contraventions of them. Policies and procedures guide the resolution of concerns, complaints and grievances. They may specify when a workplace investigation is necessary.

2. Comply with legal obligations

There are many legal obligations that individuals, businesses and organisations owe under various laws. For instance, some allegations may trigger mandatory reporting obligations to law enforcement agencies, work health and safety regulators, professional or industry bodies, or insurers. Failure to comply with legal obligations can obviously carry legal consequences.

3. Minimise legal risks

Every business has an interest in providing a safe workplace and managing reputational risks, as well as advancing its productivity, profitability, and goals. A workplace investigation that is conducted properly contributes to all of those ends. If handled poorly, not only are those interests put at risk, legal and regulatory action may follow.

A workplace investigation may not just involve a question of disciplinary action for a respondent. Concurrent actions can be raised by a person who feels aggrieved in a number of ways:

• adverse action claims;
• anti-discrimination claims;
• breach of contract claims;
• human rights complaints;
• work health and safety complaints.

An investigation into a complaint or grievance may therefore form part of the risk-management strategies of an employer. However, unfair workplace investigations themselves create legal risks. Any investigation at work that is unfair creates risks for employers and exposes them to successful legal claims.

The four types of workplace investigations

For an employer, there are essentially four different types of workplace investigations:

1. Preliminary investigations
2. Internal investigations
3. Guided investigations
4. External (independent) investigations

Preliminary investigations

A preliminary enquiry or preliminary investigation often arises in response to vague, uncertain or inadequate information. It may relate to suspected wrongdoing such as fraud against the company, or misuse of confidential information. A business or organisation may undertake a preliminary enquiry or investigation in order to protect its interests and decide what response, if any, is warranted in the circumstances. Such preliminary investigations are aimed at identifying the issues, rather than putting allegations to a respondent.

Internal investigations

Many larger businesses and organisations have internal managers, dedicated human resources professionals and in-house counsel that have the expertise to conduct complex investigations into serious allegations. Having large internal resources to draw upon often means a procedurally fair investigation can take place, often within tight timeframes.

Guided investigations

A guided investigation is one where a business or enterprise seeks to conduct an internal investigation but in doing so obtains external guidance, often from a law firm or investigation agency. The benefit of a guided investigation is it matches the advantages of an internal investigation while minimising the risk that it will not withstand review by a court or tribunal.

External (independent) investigations

An external, independent investigation allows a business or organisation to have allegations or issues investigated impartially, so as to allow a procedurally fair process to occur. Such investigations are often appropriate for serious allegations of wrongdoing and, in particular, when managers are implicated. A thorough and independent investigation allows decision-makers to understand the allegations investigated, evidence obtained and findings made, so as to make decisions based on those matters.

Employee rights in a workplace investigation

Employees facing workplace investigations have a number of rights or are owed a number of obligations by their employer. Commonly, employee rights in investigations include:

• Procedural fairness
• Confidentiality rights
• Legal or union representation
• Privilege against self-incrimination
• Reasonable accommodations
• Work health and safety rights

Understanding these rights can be important in navigating any workplace investigation.

Responding to a workplace investigation

A workplace investigation presents both risks and opportunities. For the respondent, the main risk is facing potential findings that may have reputational, professional, and financial consequences. However, workplace investigations also present an opportunity to ‘clear your name’ and move forward.

If you need to respond to a workplace investigation, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

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 an allegation, grievance, or complaint in the workplace can have on the person facing it. This firm defends executives and employees who face investigations and wish to put their best foot forward.

Challenging unfair workplace investigations

It is not uncommon for people to have misgivings about the fairness of a workplace investigation they may be subject to, yet still ‘hope for the best’ in the belief that it may be held against them if they challenge issues during the investigation. While this is an understandable thought, it can backfire. Failing to make a timely objection to something may be taken into account as being the product of disappointment with the process only in the aftermath.

Deciding to raise objections to aspects (or the entirety) of a workplace investigation requires careful consideration. However, where the concern relates to something that may adversely affect the conclusions reached by an investigator, it can be important to consider what impact it may have on the ultimate outcomes. Examples of instances where an investigation may be challenged include the following:

• Bias or perceptions of bias on the part of the investigator;
• Investigators acting inconsistently with the law or procedures relevant to the particular investigation;
• Allegations that are general, vague or do not disclose their basis; and,
• Failure to disclose key evidence or give notice about possible adverse findings.

Generally, though not always, the longer a process goes on the harder it is to seek alterations to it. For that reason, anybody who holds concerns about the fairness of an investigation into workplace bullying allegations ought to seek advice from an experienced employment lawyer at the earliest opportunity.

A show cause letter provides an opportunity to respond

In workplaces, the purpose of a show cause letter is to afford an employee an opportunity to respond to proposed disciplinary action by their employer. It is particularly important when termination of employment is a possibility.

In Australia, if an employer fails to give an employee a chance to respond to proposed disciplinary action, their decision may be reversed, and compensation ordered.

The Fair Work Act 2009 (Cth) covers most employees in Australia. Under section 387(c) of the Fair Work Act, failing to give an employee an opportunity to respond may see a dismissal labelled harsh, unjust or unreasonable. The law states:

387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) …

(b) …

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and …

The Small Business Fair Dismissal Code also refers to giving employees an opportunity to respond to the reason or reasons for dismissal before the employee is dismissed.

A template for show cause letters

While show cause letters will vary according to the circumstances, typically they should contain the following information:

• The potential disciplinary action (such as termination) that may result if the employee does not ‘show cause’;
• Adequate particulars of the alleged underperformance, misconduct, or other issue giving rise to the potential disciplinary action. This may necessitate identifying the dates, times, places, and people relevant to the allegation;
• Reference to, or disclosure of, the evidence relied on by the employer that is sufficient to allow a fair opportunity to respond;
• Any relevant workplace history or background (i.e., previous warnings) the employer may take into account when deciding the outcome; and,
• Information about how the employee is to respond, as well as any other rules (such as confidentiality) that may apply to the process.

In essence, a show cause letter must outline sufficient information to put the employee on notice about the issues that may be relied upon by the employer as a valid reason for termination.

Response options following a show cause letter

If you have received a show cause letter, it is important to look ahead and consider the question ‘what may happen next’? Understanding the options available when responding to a show cause letter can help people to adapt their response to their goals. Response options to a show cause notice include:

• Obtaining advice and guidance
• Challenging the process
• Challenging the allegations
• Initiating ‘without prejudice’ negotiations
• Arguing for lesser consequences

If you need to respond to a show cause notice, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. If you receive a show cause letter, it is critical to seize the opportunity to put forward a compelling and convincing response to it.

Why you should avoid template responses

The primary objective of a response to a show cause letter is to persuade. More specifically, to persuade the employer to a particular outcome. This is best achieved by responses that are tailored to the specific circumstances. As such, if you need to respond to a show cause letter, it makes sense to avoid template responses in favour of one that is individualised. However, while emphasis may be placed on tailored responses, it is possible to identify common threads amongst effective responses. This includes:

• Why the message must be clear
• How allegations and issues are addressed
• What makes for a compelling response
• How the response is concluded

There are no shortcuts in how to respond effectively to a show cause letter. It takes proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies. No generic template or response created by artificial intelligence will likely cut it.