Safety poster becomes costly reminder that horseplay can still amount to sexual harassment

Independent contractor and workplace consultant, Vitality Works Australia Pty Ltd (Vitality Works), and NSW government-owned corporation Sydney Water (Sydney Water), have each been held jointly liable for sexual harassment after displaying a ‘sexually suggestive’ poster aimed at promoting work health and safety.

The poster itself was designed by Vitality Works as part of a “safe spine” campaign, and depicted a smiling Sydney Water employee with an overlayed caption, ‘Feel great – lubricate!’. While the employee had agreed to having her picture taken, she had not agreed to the caption used.

With changes to Commonwealth sexual harassment laws having taken effect in September, the ruling serves as a timely reminder of employer’s obligations to ensure the workplace is free from sexual harassment.

The fact circumstances of the case

In 2019, the NSW Civil and Administrative Tribunal heard that the employee had ‘nearly collapsed’ when she first saw the poster outside of the male bathrooms at her workplace. It later ordered that she receive $200,000 in damages, finding that both Sydney Water and Vitality Works had engaged in sexual harassment, breaching s.22B of the Anti-Discrimination Act 1977 (NSW) (amongst other things).

Vitality Works sought to challenge the decision this year, alleging it was not responsible for any sexual harassment, because it was a ‘third party’ and was not responsible for the publishing or display of the poster; it had merely designed it. It further sought to argue that the image displayed on the poster was not ‘sexually explicit’ and so could not meet the legislation’s definition of ‘conduct of a sexual nature’.

However, the NSW Court of Appeal unanimously dismissed Vitality Works’ appeal on all grounds. In fact, it was quite critical of the arguments made. Instead, the Court noted that the sexualisation of women in the workplace is not always ‘explicit’ and that such an argument ‘overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries.’

The Court also emphasised the established principle that sexual harassment can include sexually suggestive jokes and comments, including those with a “double meaning”. The concept should not be read down or limited, and so called ‘horseplay’ (as Vitality Works referred to it) was not excluded.

The decision significantly expands the scope of liability in relation to sexual harassment claims and is consistent with a growing trend of awareness and heightened responsibility and liability for employers.

New sexual harassment laws

In the wake of the #MeToo and other similar movements, courts and tribunals have begun taking a more generous approach when awarding damages to employees who have fallen victim of sexual harassment or sexual discrimination. For example, a Queensland Commissioner recently set aside an award of $35,000 for a laundry worker who had been sexually harassed in the workplace, determining the more appropriate award for general and aggravated damages was $130,000 having regard to her ‘torment’[1].

Further, following the parliamentary enquiries into workplace sexual harassment, and the introduction of the Respect at Work provisions into the Fair Work Act 2009 (Cth) and federal anti-discrimination legislation, there has been a shift in dialogue confirming the position that sexual harassment is not only a discrimination issue, but also, an important work health and safety issue which employers have an obligation to prevent against.

Specifically, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Act) commenced on 11 September 2021. The Respect at Work Act:

• expands the application of the Sex Discrimination Act 1984 (Cth) to interns, volunteers and self employed workers;
• prohibits sex-based harassment;
• extends the timeframe for a person to make a complaint of sexual harassment to the Australian Human Rights Commission (from 6 months to 24 months);
• expands the anti-bullying jurisdiction of the Fair Work Commission to cover sexual harassment meaning the Fair Work Commission can issue a “stop sexual harassment order”; and
• amends the Fair Work Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable. The definition of ‘serious misconduct’ in the Fair Work Regulations has also been amended to include sexual harassment.

Sexual harassment is a complex and sensitive matter for many employers to manage. However, the recent changes in the law and the Vitality Works case is an important and timely reminder that:

• sexual harassment need not be explicit – innuendo or ‘horseplay’ is sufficient;
• intent is not necessary for a person or business’ actions to amount to sexual harassment; and
• contractors can be found liable for sexual harassment – even when the harassment occurs outside of the workplace.

Practical tips for employers

In the current climate, now is the opportune time for employers to take stock of their business and practices, and to ensure they are cognisant of and adhering to increasing obligations to protect against sexual harassment in the workplace. Employers should:

• implement, or review and update policies and procedures as they relate to discrimination and harassment at work – this includes by having in place support mechanisms for complainants, and putting in place practices for how to conduct a procedurally fair, and sensitive investigation into allegations of sexual harassment or misconduct, as well as appropriate disciplinary and other procedures;
• implement or review training programs and consider refreshed training on acceptable workplace behaviours;
• implement or review internal complaints procedures to ensure there is a clear process in place for sexual harassment and sex-based harassment complaints to be dealt with appropriately and promptly, and that records are kept appropriately; and
• consider other measures, practices and policies aimed at preventing sexual harassment from occurring in the first instance – some employers have introduced body alarms, while others have launched education campaigns.

Knowing how to deal with allegations of sexual harassment is an acquired skill. NRA Legal’s Workplace Investigations Masterclass has been developed by our team of workplace relations experts to be a hands-on introduction or refresher on conducting procedurally fair workplace investigations. The next masterclass will take place online on 23 September 2021, with tickets available here.

If you need assistance to proactively manage sexual harassment in your business or otherwise to respond to a complaint of sexual harassment, please contact NRA Legal for a confidential discussion on 1800 572 679.

[1] Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14 (6 August 2021)

By Sarah Morison and Lindsay Carroll, NRA Legal