Understanding the extent of Sexual Harassment in 2021

The landmark NSW Court of Appeal decision of Vitality Works v Yelda has been flooding legal commentary particularly around the topics of:

1. $100K damages (statutory monetary limit) against the employer;

2. $95K damages (statutory monetary limit) against the advertising consultant responsible for creating a poster with a picture of an employee with the now infamous slogan “Feel great –lubricate”;

3. $300K+ quantum of loss for the employee; and

4. $5K aggravated damages for the advertising consultant for a ‘less than genuine apology’.

All of that is interesting, but not what we, at Edge Legal, think is the really important part of the decision. The really important part of the decision is the clear confirmation by an appeal court that even horseplay (or whatever else you want to call it‘banter’, ‘office fun’, 'joking’ etc)in 2021 is capable of being found to be “unwelcome conduct of a sexual nature” and therefore capable of meeting one of the critical elements of sexual harassment.There is no requirement for an explicit sexual message.

The Court of Appeal clearly adopted what the Respect@Work study in 2020 had already found.That is, things like double entendres whilst ‘acceptable’ in the early 2000s are no longer acceptable in 2021 and have been permitted to have gone unchecked for too long.

But all of this creates a conundrum for the modern workplace –how do we prevent, manage and stop behaviours that many of those in the workplace have either been allowed to continue with impunity for all of the careers or simply ‘gotten away with it’ because no one told them to stop doing it?

Simple.Have a genuine discussion with your employees or have someone train them about what is and what is no longer acceptable.This requires a genuine open conversation where all topics are put ‘on the table’.Now is not the time to be coy.You can’t establish a proper ‘line in the sand’ if you can’t talk about it.Workplace education is not meant to be a ‘guessing game’ where some people hold the understanding of what might be infringing behaviour and don’t want to, or won’t, tell the others because “they should already know what they can and can’t do”.Everyone has a role in creating safe and respectful behaviours for the workplace.

What will be your organisation’s explanation of what sexual harassment means in your workplace?