Bullying and Sexual Harassment in the workplace are illegal in Western Australia.
It is unlawful to treat a person less favourably on the basis of attributes such as a person’s gender; sexual orientation; race; disability or age.
If you feel you are being bullied, or have experienced sexual harassment in the workplace and your employer is not responding appropriately to your complaints, you should seek legal advice from an expert Compensation Lawyer today.
Bullying is when an individual or group of individuals repeatedly behave unreasonably towards a worker and that behaviour creates a risk to health and safety.
Bullying includes a range of behaviours such as:
Sexual harassment is when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to a person.
This occurs in circumstances where it is possible that the person harassed would be offended, humiliated or intimidated. Sexual harassment can be subtle and implicit rather than explicit.
The following behaviours are examples of sexual harassment in the workplace:
Any employee in Western Australia may seek compensation for workplace sexual harassment under a range of workplace laws. This article aims to help provide some information about these laws and outline the different avenues available.
It is important to note this article does not provide legal advice. It is for information purposes only. If you need legal advice, please contact an experienced workplace lawyer.
Sexual harassment is against the law. There is a number of applicable laws in which an employee may find fair redress in WA. These include:
Sexual Harassment Applicable Workplace Laws:
Included below is more information about each of these workplace laws, and how they apply to sexual harassment claims. It is important you contact an experienced workplace lawyer, at the earliest opportunity, to receive accurate legal advice on a specific case.
The Workers’ Compensation and Injury Management Act 1981 (WA) is applicable if the sexually harassing behaviour causes an injury or disease arising out of, or in the course of employment.
The Australian Human Rights Commission provided the following examples of sexually harassing behaviour:
All employers in Western Australia are required to have workers’ compensation insurance. If a worker is subjected to sexual harassment and as a result becomes unwell and not able to work, and/or incurs expenses for medical treatment, then the worker is entitled to make a claim. A claim form can be downloaded from the Workcover website.
If your claim is pended or declined by the workers’ compensation insurer a worker can make an application for Conciliation with Workcover. WorkCover WA is the government agency responsible for the workers’ compensation and injury management system in Western Australia. Conciliation involves parties in dispute coming to their own agreement, with the assistance of an independent Conciliation Officer from the Workers’ Compensation Conciliation Service.
A Conciliation application can be found by clicking on this link.
To make a claim for sexual harassment under the Equal Opportunity Act 1984 (WA) a worker must establish they were subjected to:
The worker must also establish that they had reasonable grounds for believing that in rejecting the advances or conduct they would be disadvantaged in their employment, or in fact were disadvantaged. Sexual harassment does not need to be repeated or continuous, it can involve a single incident.
The Equal Opportunity Commission WA has stated that sexual harassment can take many forms including, but not limited to:
The Commissioner for Equal Opportunity established the Equal Opportunity Commission to investigate and conciliate complaints lodged by people who have been sexually harassed in the workplace. If the complaint is not resolved at the conciliation stage the Commissioner has the authority to refer the matter to the Tribunal.
If the complaint is referred to the Tribunal and after the enquiry, the Tribunal determines that the complaint is made out the Tribunal has the power to order the respondent to pay to the complainant damages not exceeding $40,000.00 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct.
A complaint form can be found by clicking on this link.
Under the Occupational Safety and Health Act 1984 an employer shall, where practicable, provide and maintain a working environment in which workers are not exposed to hazards. A hazard is defined as anything that may result in injury or harm to the health of a person.
The Occupational Safety and Health Act 1984 (OSH Act) is enforced by the WorkSafe Western Australia Commissioner (WorkSafe Commissioner). WorkSafe requires the worker to have exhausted all avenues to stop the activities (sexual harassment) complained of and will only investigate if the activities continue. The Worksafe Inspector will only investigate whether the employer has met its obligations under the Act and will not become involved in the specific details of the activities complained of.
Making a Complaint
To make a complaint click on this link
Sexual assault and sexual abuse under the Western Australian Criminal Code are criminal offences. In some cases sexual harassment may be sufficiently severe or pervasive that it will constitute a crime. For example, if the unwanted behaviour includes physical contact that is sexual in nature it would be sexual assault and is a criminal offence.
In Western Australia, sexual assault and sexual abuse are crimes against the state. If you report the incident to the police and make a formal statement, you are a witness to a crime. The police or the Director of Public Prosecutions decide whether to prosecute based on your statement and any other evidence you may produce. You can make a formal or informal report to the police.
Report sexual assault matters to your local police station or call police on 131 444. The Sex Assault Squad can be contacted on (08) 9428 1600 or by email.
The Fair Work Act 2009 (Cth) defines bullying as repeated and unreasonable behaviour directed towards a worker or a group of workers and that behaviour creates a risk to health and safety.
In Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 the Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were:
“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.
All workers who work in a constitutionally covered business can apply to the Fair Work Commission for an order to stop bullying.
A constitutionally covered business is any corporation which has employees. It does not include sole traders, partnerships and some state government employees.
The Fair Work Commission is Australia’s national workplace relations tribunal. One of the Commission’s powers on an application by a worker who is being bullied in the workplace is to make an order to stop the bullying. The Commission does not have the authority to order payment of compensation or damages to a worker.
An application to stop bullying can be found by clicking this link
The Sex Discrimination Act 1984 makes sexual harassment against the law in the workplace. The Sex Discrimination Act 1984 also covers you if you are sexually harassed when you are purchasing or providing goods or a service or when you are studying at a school, college or university.
The Australian Human Rights Commission provided the following examples of sexually harassing behaviour:
The Australian Human Rights Commission has statutory responsibilities under the Sex Discrimination Act 1984. The Commission has the authority to investigate and conciliate complaints of sexual harassment. The Commission is not a court. If your complaint is not able to be resolved at conciliation your complaint will be terminated. If your complaint is terminated, you may be able to take your complaint to the Federal Circuit Court or the Federal Court of Australia. The Federal Circuit Court or the Federal Court of Australia has the authority to order payment of compensation.
Information can be obtained by clicking on this link.
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If you are being sexually harassed or bullied at work and your employer is not responding appropriately to your complaints, you should seek legal advice.
Your employer may be liable to pay compensation under the West Australian workers’ compensation act and damages under the West Australian Equal Opportunities Act.
Perth City Legal provide accurate, practical legal advice in Western Australia. Contact us today, for a confidential, free initial consultation.
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