Legal: Hug or harassment: workplace conduct under the lens amid intention for further reform
Queensland Teachers' Journal, Vol 127 No 6, 12 August 2022, page no. 25
All members are entitled to safe workplaces, free from harassment and discrimination. A recent sexual harassment case highlights the difference Respect@Work reforms could make.
A sexual harassment complaint was made by a PhD student, against her university academic principal supervisor. The New South Wales Civil and Administrative Tribunal was required to consider whether the Associate Professor’s conduct amounted to sexual harassment (Vafa v Holdsworth; Vafa v University of Newcastle [2022] NSWCATAD 163).
The PhD student made a number of allegations against the Associate Professor, including that he:
- hugged and kissed her on each cheek in greetings and farewells
- at times touched her arms and shoulders, poked her in the arm, and rubbed her back and buttocks
- insisted that they share accommodation during a research trip to Ireland, interacted with her on Facebook and Facebook Messenger, and told another student that “my wife would have killed me” had she been aware of their accommodation arrangements.
To count as “sexual harassment” under the NSW legislation, the Associate Professor’s conduct not only needed to have been unwelcome by the student, but also be something that was objectively “sexual” in nature. A similar requirement applies in Queensland (Anti-Discrimination Act 1991 (Qld) s 119(d)).
Despite being unwelcome, the tribunal dismissed certain allegations on the basis that they were not, objectively, sexual in nature.
The hugging was “undoubtedly inappropriate” and “arguably patronising”. But without more, it could not be considered sexual.
The tribunal also found the Professor would place his hand on the student’s back, including a touch to the small of her back – but that this conduct was not objectively sexual. The circumstances, frequency, and nature of the touching were relevant.
The touching of another person’s body generally conveyed familiarity and intimacy. While finding the that the touching was unnecessary, it was done in the context of working together on a computer and directing the student’s attention. No reasons were given specifically for the touch to the small of the student’s back.
The comment that “my wife would have killed me”, however, amounted to sexual harassment. It was unwelcome, considered offensive, and found sexual in nature: it implied that the Associate Professor’s wife would suspect that he and the student were sexually intimate. Following the tribunal’s single finding of sexual harassment, the case was adjourned to allow the orders to be finalised.
Would a different outcome be had under federal law?
The Australian Human Rights Commission’s (AHRC) report, “Respect@Work: A National Inquiry into Sexual Harassment in the Australian Workplace”, identified 55 recommendations to better prevent and respond to sexual harassment in the workplace.
The report prompted amendments to the to the Sex Discrimination 1984 Act (Cth), which took effect last year. These changes expanded the definition of harassment on the grounds of sex, introducing a new section (s 28AA) that sought to capture harassing conduct that is seriously demeaning or engaged in by reason of someone’s sex, but not necessarily sexual.
In the wake of these changes, it is possible that the outcome of this matter may have been different if heard in the federal jurisdiction. The conduct could be considered unlawful, despite not being “sexual” in nature.
Further reform
However, not all Respect@Work recommendations were adopted in the previous legislation. The new federal government intends to implement all recommendations made in the report, including outstanding recommendations to:
- (further) amend the Sex Discrimination Act to expressly prohibit creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex
- introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sex-based discrimination, sexual harassment, and victimisation, as far as possible
- give the AHRC the function of assessing employers’ compliance with the positive duty, possibly including the powers to enforce compliance (such as undertaking assessments, entering into enforceable undertakings, and obtaining court orders requiring compliance)
- review the fair work system to ensure and clarify that sexual harassment is expressly prohibited.
Further amendments incorporating these reforms will introduce further protections and pathways for members to seek resolution of sexual harassment complaints.