Sexual Harassment and Assault at Work

Workplace health and safety in Australia has fundamentally shifted. Beyond merely responding to incidents, organisations are now legally mandated to proactively prevent sexual harassment and other forms of unlawful conduct. For corporate leaders, managers, and HR professionals, understanding the nuances of this environment is not just a matter of compliance, but a cornerstone of building a safe, respectful, and productive culture.

This article will clarify the critical distinctions between sexual harassment and sexual assault, outline the available legal pathways, and explore the practical implications of an employer’s ‘positive duty‘ through a contemporary Australian case study.

What is the difference between sexual harassment and sexual assault?

Distinguishing between sexual harassment and sexual assault can be complex, as a single course of conduct may unfortunately involve elements of both. The key differences lie in their legal definitions, the forums where they are addressed, and the potential outcomes for the individuals and companies involved.

Sexual Harassment: A Workplace Issue

The Australian Human Rights Commission reports that one in three people have experienced sexual harassment at work in the last five years. Legally, sexual harassment is defined as any unwelcome sexual advance, request for sexual favours, or other unwelcome conduct of a sexual nature that a reasonable person would anticipate could make the person being harassed feel offended, humiliated, or intimidated.

Key characteristics include:

• The conduct is unwelcome.
• The perpetrator’s intention is irrelevant. The impact on the recipient is what matters.
• It can be a single incident or a repeated pattern of behaviour.
• It can be verbal (e.g., derogatory comments, sexual jokes), written (e.g., emails, texts), or physical (e.g., unwelcome touching).

Sexual harassment in the workplace is unlawful.

Typically, matters of sexual harassment are handled through civil channels like the Fair Work Commission or the Australian Human Rights Commission. The primary remedies in these forums are non-criminal and aim for resolution, which can include financial compensation for the affected employee, mandated workplace policy changes, and formal apologies.

Sexual Assault: A Criminal Offence

Sexual assault is fundamentally a criminal matter. It is defined as any sexual act performed on another person without their consent, often involving force, threats, or intimidation. This includes actions ranging from unwanted sexual touching to rape.

Unlike sexual harassment, which is primarily dealt with in a workplace relations context, sexual assault is prosecuted by the police. The process involves a police investigation, and if the perpetrator is found guilty in a criminal court, the consequences can include a criminal record and imprisonment. The standard of proof required is “beyond a reasonable doubt,” which is significantly higher than the “balance of probabilities” standard used in civil matters.

While a victim of sexual assault can also pursue a separate civil claim for damages (e.g., for psychological injury), the primary pathway is through the criminal justice system.

Read More: How We Can Help You: Sexual Harassment Claims

Case Study: Taylor v August & Pemberton Pty Ltd [2023] FCA 1313

In this late 2023 case, Ms. Taylor, an employee at the Sydney jeweller Grew & Co, brought a claim against her employer and its director, Mr. Grew. The court heard that over a period of years, Ms. Taylor was subjected to a pattern of unwelcome conduct from Mr. Grew.

This conduct was not a single, overt act but a series of actions that, when combined, constituted sexual harassment. It included:

• Giving Ms. Taylor 19 gifts, including jewellery such as necklaces and rings.
• Making inappropriate comments about her appearance, face, and body.
• Twice declaring he had romantic feelings for her, despite knowing she was not interested.
• In one instance, slapping her on the buttocks as she walked through a doorway.

The Response and a Claim of Victimisation

After the second time Mr. Grew declared his feelings, Ms. Taylor took leave. Through her lawyers, she sent a formal letter complaining of sexual harassment. The court found Mr. Grew’s response was aggressive; he demanded she return the gifts and threatened police involvement. This response led Ms. Taylor to lodge a formal complaint with the Australian Human Rights Commission, which in turn led to a claim of victimisation in addition to the sexual harassment.

The court found that as a direct result of the harassment and subsequent victimisation, Ms. Taylor developed serious psychiatric disorders, including depression and anxiety.

The Court’s Finding and its Implications

The Federal Court found emphatically in Ms. Taylor’s favour. It ruled that Mr. Grew’s actions, including the gift-giving and declarations of feelings, were not harmless but constituted unlawful sexual harassment under the Sex Discrimination Act.

Crucially, the court also found that the company was vicariously liable for the conduct and that Mr. Grew’s aggressive response after the complaint constituted unlawful victimisation.

The court awarded Ms. Taylor over $268,000 in damages, broken down as follows:

• $140,000 for general damages (pain and suffering) for the sexual harassment.
• $40,000 for general damages for the victimisation.
• $15,000 in aggravated damages, awarded specifically because the employer failed to recognise or acknowledge the disrespectful environment they had created.
• Further amounts for future economic loss and expenses.

This case is a stark reminder for all employers that:

1. Harassment is contextual: A series of actions that may seem minor in isolation can collectively create an intimidating and offensive environment.
2. The response to a complaint is critical: A poor or aggressive response can lead to a separate, successful claim for victimisation, significantly increasing liability.
3. Courts are awarding higher damages: The substantial sum reflects a shift in community standards and the courts’ willingness to award significant damages for the severe impact of harassment and psychological injury. This underscores the financial and reputational necessity of proactive prevention.

What are my Employer’s Obligations?

Under the Respect@Work legislative reforms, every employer in Australia has a positive duty to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination, and victimisation as far as possible.

This proactive duty means shifting from a reactive model (acting after a complaint) to a preventative one. This includes:

• Strong Leadership and Culture: Ensuring senior leaders champion and model respectful behaviour.
• Effective Policies and Training: Implementing robust policies and delivering regular, interactive training that is tailored to your workplace risks.
• Conducting Risk Assessments: Proactively identifying and controlling for psychosocial hazards that could lead to harassment.
• Secure and Responsive Reporting: Establishing multiple, clear, and confidential avenues for employees to raise concerns, and ensuring those concerns are addressed promptly and fairly.

By embedding these practices, organisations not only meet their legal obligations but also foster a culture of safety and respect that is essential for attracting and retaining talent in today’s corporate world. If you find yourself in a situation involving potential harassment or are concerned about your workplace’s procedures, understanding these rights and obligations is the first step toward effective action.

Everyone should feel safe at work. AWDR provide expert, experienced representation for employees only in these matters. We understand the difficulties and emotional undertaking of standing up against sexual harassment. For a confidential free initial conversation, please call us anytime on 1800 333 666.