Stop Sexual Harassment Orders - FWC provides some clarity

As we have discussed in previous Edge updates, sexual harassment claims are becoming increasingly common in workplaces across Australia.

As a result, as a part of the Government response to the Jenkins Respect@Work Report, recent amendments to the Fair Work Act 2009 (Cth) extended the powers of FWC to allow for ‘stop sexual harassment’ orders, similar to the anti-bullying orders already in place.

The FWC power to make these orders was recently looked at for the first time in Application by Ranmeet Kaur [2022] FWC 487. In this case, FWC refused to exercise its discretion to make an order to stop sexual harassment and bullying from continuing. It was not disputed that the applicant had been sexually harassed in her employment, however, by the time she made the application, she had quit her job with the employer. As the employment relationship had ended, the sexual harassment and bullying would not persist.

Although FWC rejected the application, it gave clarity as to when it will grant orders in favour of sexual harassment applications.

Basis for an application

Employees are entitled to make a stop sexual harassment application in FWC when they reasonably believe that they have experienced sexual harassment. This case confirmed that for a belief to be ‘reasonable’ it must be one that is “actually and genuinely held” and that “there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd.”

It is also clear that the applicant must still be an employee at the workplace in order for FWC to have jurisdiction.

Substantiating a sexual harassment claim

FWC confirmed that the following 3 elements are required to substantiate a sexual harassment claim:

1. whether there was a sexual advance;

2. whether this sexual advance was unwelcome; and

3. whether a reasonable person would have anticipated the possibility that a person allegedly harassed would be offended, humiliated or intimidated by the conduct.

The applicant must also prove that they sexual harassment occurred ‘at work’. In this instance, the applicant was found to be harassed ‘at work’:

• in the workplace car park during a lunch break;

• in the manager’s car while driving the applicant to work; and

• on a phone call to the applicant about ‘work related matters’.

This is a clear example of how far ‘at work’ is interpreted and does not necessarily have to have occurred where the work is undertaken.

Key takeaways

Employers should:

• be taking active steps to ensure all complaints of sexual harassment are taken seriously and responded to adequately; and

• make sure employees are aware of what constitutes sexual harassment, including that ‘at work’ has a broader definition than you might think.

If you are interested in learning more about investigating sexual harassment in your workplace, and learning what you can put in place to help prevent it, click this link to sign up for our upcoming training on this issue.

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