Legal Feature

respect@work

Think about this scenario. A casual dental assistant working her first day at a dental practice complains that when she and the dentist she works with were alone, he stood very close to her, touching her arm while asking her intrusive questions about her personal life. What would you do? What policies do you have in place to deal with this scenario?

BY JENNY EDINGER SPECIAL COUNSEL

This scenario is not fictitious and as you would be aware complaints about sexual harassment at work have been highly publicised in the media over the last few years. The #MeToo movement has heralded a world-wide groundswell of condemnation of workplace sexual harassment. In Western Australia, the WA Parliament is currently conducting an inquiry into sexual harassment against women in the FIFO mining industry. In the federal sphere, following on from a report by Commonwealth Sex Discrimination Commissioner, Kat Jenkins (colloquially known as the ‘Respect@Work Report’ (Report), the Commonwealth Parliament has passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill). Recognising the difficulties faced by complaints the Bill has introduced amendments to the Sex Discrimination Act 1984 (SD Act) including: • expanding the scope of the SD Act by adopting the concepts of “worker” and “person conducting a business and undertaking” with the result that paid workers such as contractors and unpaid workers such as students will be covered by the SD Act; • introducing a new form of unlawful conduct under the

SD Act called “sex-based harassment” which means unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in

which, a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated; • extending the limitation period for making a complaint from six months to 24 months; • clarifying that a complaint of victimisation can form the basis of a civil action for unlawful discrimination; and • prohibiting a person from instructing, inducing, aiding, or permitting another person in engaging in sexual harassment or sex-based harassment which will deem a person who is accessorily liable to have engaged in the same conduct as the harasser; These changes will apply to dental practices in both the federal and state industrial relations systems. For employers in the federal system (dental practices that are operated by a trading Company) there are changes to the Fair Work Act 2009 (Cth) (FW Act) including: • creating the ability for the Fair Work Commission to make anti-harassment orders giving complainants access to a low-cost jurisdiction to apply for an order to stop sexual harassment in the workplace; • clarifying that sexual harassment is a valid reason for a dismissal; and • allowing access to a minimum compassionate leave entitlement of two days’ paid leave (unpaid for casuals) for employees who suffer a miscarriage (or their spouse or de facto partner does).

LEGAL FEATURE

Employers Vicariously Liable

Employers should be aware that not only is sexual harassment in the workplace unlawful but as a general principle, employers are vicariously liable for the acts of their employees. –Workplace occupational health and safety regulators are moving towards characterising sexual harassment as an OHS risk, with the result that perpetrators and employers can be liable for fines if there is a successful prosecution. What can you do as an employer to reduce the risk that you or your practice are not vicariously liable for sexual harassment in your workplace? Ensure that you have a comprehensive code of conduct and a sexual harassment policy as well as complaint procedures in place. Ensure that all employees are aware of the expected behaviours at work and what they can do if they have concerns. Get advice if you receive a complaint from an employee, contractor or patient and ensure that the issue is promptly dealt with. Finally, be aware that sexual harassment and sex-based harassment is more likely to flourish in permissive workplace cultures that accept disrespectful behaviour. In short, lead from the front and be a role model of respect@work.

© Panetta McGrath Lawyers 2021. This information is intended as a general overview and discussion of the subjects dealt with. The information provided is not intended to be, and should not be used as, a substitute for taking legal advice in any specific information. Panetta McGrath is not responsible for any actions taken on the basis of this information.

If you would like to know more about how your business can manage risk and introduce greater certainty into your employment arrangements, please contact our Employment and Workplace Relations team on (08) 9321 0522.