Sexual Harassment: What to do when the victim is the accused

Sexual harassment in the workplace is on the rise in Australia, according to recent research, but the untold story is one of people who have been wrongly accused of this unwanted, unlawful behaviour by a colleague or staff member under their charge.

Accusations of sexual harassment can have devastating fallout.

Being fired under such ignominious circumstances and/or having one’s reputation tainted not only affects future employment prospects but can cause breakdowns in personal relationships and social networks, as well as psychological trauma with possible physical symptoms.

Chesworth has extensive legal experience and knowledge in the specialised area of Worker’s Compensation Law and has been assisting injured workers for 18 years, representing her clients in all WorkCover and District Court proceedings in relation to their Workers’ Compensation Claims.

“We now have multi-generational, multi-cultural workplaces where values and norms can differ dramatically,” she says.

“Behaviours that one person may see as reasonable and acceptable others may not.

“Some people are innately tactile and may not realise touching – however innocuous or well meant – could offend others. Or that their natural sense of humour and banter may not be received well by those around them.”

Figures released in September by the Australian Human Rights Commission (AHRC) – a survey of 10,000 people undertaken by Roy Morgan Research – found one in three people have been targeted in the past five years for sexual harassment in the workplace.

The research showed only a fraction of victims report it for fear they won’t be believed or that it’s easier to stay quiet.

Sex Discrimination Commissioner Kate Jenkins said the results revealed that formal reporting of workplace sexual harassment continues to be low, with only 17 per cent of people making a report or complaint.

Sexual harassment is defined by the AHRC as “unwelcome sexual conduct that makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances.

“In employment it is unlawful under the Sex Discrimination Act 1984 (Cth). Sexual harassment is prohibited in almost every employment situation and relationship.

“For example [it is prohibited] at the workplace during working hours, at work-related activities such as training courses, conferences, field trips, work functions and office Christmas parties. It is also prohibited between almost all workplace participants.”

By law, when an employee reports a claim of sexual harassment, their employer is obliged to investigate.

Normally that responsibility falls on the Human Resources department, but some companies will choose to bring in a lawyer or consultant as well, or instead, because of concerns about impartiality.

“This is also fairly standard if the accused is a senior manager because of the difficulty internal managers will have in doing a solid investigation,” says Chesworth.

“Depending on the seriousness of the accusation, a company may suspend the accused person from work until the investigation is complete.

“It is important that all companies have meaningful procedures and policies in place.

“The policies and procedure should reflect the type of culture that the employer wants to promote in the workplace and are not just symbolic.”

Chesworth says companies should make sexual harassment training mandatory at all levels.

“The training should focus on fostering a healthy workplace culture that includes bystander training,” she says.

“Bystander training teaches employees how to respond to inappropriate conduct when they see it.”

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