How to avoid liability for sexual harassment

How to avoid liability for sexual harassment

Sexual harassment is once again becoming a hot topic due to some dramatic and well publicised sexual harassment claims in the last few months. At the same time, courts are beginning to impose much higher penalties for sexual harassment. Elizabeth Ticehurst discusses how organisations can avoid liability for sexual harassment committed by employees.

Special Counsel, Tax

KPMG Australia

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Hands in the air

These kind of claims inevitably attract high publicity, and have the potential to cause serious damage to organisations and individuals who are implicated. However a recent decision by the Northern Territory Anti-Discrimination Commission (NTADComm) provides a useful guide for employers on how to avoid liability for sexual harassment committed by their employees.

In Mrs Linda Smyth v Northern Territory Treasury and Mr Doug Kerr [2016] NTADComm 1, the Commission found that a male employee of the Northern Territory Treasury sexually harassed a female colleague at work by touching her inappropriately and sending her offensive e-mails. Mrs Smyth claimed that the NT Treasury was vicariously liable for this harassment, as Mr Kerr had harassed her at work.

The Commission found, however, that the Treasury had taken 'all reasonable steps' to prevent Mr Kerr from harassing Mrs Smyth. They had done this by:

  • having a policy on harassment in the workplace (albeit not a policy that specifically defined sexual harassment)
  • training employees in the policy
  • meeting with Mrs Smyth and offering support
  • giving specific training to Mr Kerr in the requirements of the policy, after a complaint was raised by Mrs Smyth
  • monitoring Mr Kerr in the workplace and moving him to a different desk
  • conducting a mediation.

The Commission noted that Treasury had taken these steps even in the face of Mrs Smyth’s insistence that she would deal with the matter herself and did not want to make a complaint.

The case demonstrates how important it is for employers to implement an appropriate policy on conduct in the workplace, and to take prompt action to address any potential issues of non-compliance.

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