In a recent decision by a single judge of the Federal Court of Australia (the “Court”), the Court accepted that the Applicant was slapped on the buttocks on a number of occasions at work, but determined that the conduct did not contravene the Sex Discrimination Act 1984 (Cth) (the “SD Act”). The Court emphasised the nature of the relationship between the relevant employees and found that the buttocks slapping among friends was done in a playful and jovial fashion to startle the Applicant and was not conduct of a “sexual nature” within the meaning of the SD Act.

1. Facts

The Applicant made a range of serious allegations against employees of their former employer, as well as against the former employer itself on the grounds that it was responsible for the actions of its employees (vicarious liability). The Court had “significant concerns” as to the Applicant’s credibility and considered that the Applicant’s evidence should be treated with “significant caution”. Noting that the graver the allegations and their potential consequences, the stronger is the evidence required to conclude that the allegations have been established, the Court was not persuaded that the majority of events alleged by the Applicant did occur.

The Court did find that:

• buttocks patting or buttocks slapping conduct occurred at the workplace during the Applicant’s employment;
• the male Applicant was intentionally slapped on the buttocks on a number of occasions by male co-workers who were the Applicant’s friends and who socialised outside of work together (the “Respondents”); and
• the workplace environment involved difficult manual labour, where employees would sometimes behave in a playful fashion towards each other and where the noise levels meant sometimes attracting attention could require a physical touch.

2. Legal definition of Sexual Harassment

As set out below, there are essentially three elements to the meaning of “sexual harassment” in section 28A of the SD Act (for which the States and Territories have similar counterparts).

(a) The Court must determine, as a question of fact, whether there has been either:

(i) a “sexual advance”;

(ii) a “request for sexual favours”; or

(iii) other “conduct of a sexual nature”.

(b) The conduct must be “unwelcome” to the person allegedly harassed. This is a question of fact which is subjective and turns only on the allegedly harassed person’s attitude to the conduct at the time.

(c) The “circumstances” must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be “offended, humiliated or intimidated” by the conduct. This is an objective assessment made with reference to the “circumstances”, which are broadly defined and include, relevantly, the relationship between the alleged harasser and harassed

3. Buttocks slapping among friends does not constitute sexual harassment

In this case, while the buttocks slapping among friends was not “welcomed” by the Applicant, the Court found that the conduct was done in a playful and jovial fashion to startle the Applicant. With reference to previous judicial consideration of the term, the Court was not satisfied that the conduct was “of a sexual nature” because the conduct did not invite or otherwise explore the prospect of the Applicant participating or engaging in some form of sexual behaviour, or suggest that the Applicant may have done so or may do so, or that the Applicant was a person of a character empathetic to sexual behaviour.

Even if the conduct was of a “sexual nature”, the Court considered that a reasonable person would not have anticipated the possibility that the Applicant would be offended, humiliated or intimidated by being slapped on the buttocks, given the circumstances of the workplace and the Applicant’s relationship with the Respondents.

For the avoidance of doubt, the Court noted that it was the nature of the relationship of the relevant workers, as friendly with each other, rather than their gender, which informed the character of the conduct in question.

4. Grey areas of workplace conduct

While the Court considered that there are many contexts in which touching another adult’s buttocks could be considered conduct of a “sexual nature”, the Court was not convinced that “every touching” of the buttocks would necessarily be conduct of a “sexual nature” within the meaning of the SD Act. For example, the Court referred to buttocks slapping being common in the sporting context, where it is done in a playful or joking fashion, to express camaraderie, or to congratulate the recipient on a job well done.

In our view, this decision should not be regarded as a green light for buttocks slapping among friends in the workplace, and we note that previous judicial authority has found that “when one adult intentionally touches another adult on the buttocks, regardless of whether it is a light slap or a distinct grope, this is generally and reasonably understood to be of a sexual nature.”

Organisations retain the prerogative to determine, within the confines of the law, what they consider to be appropriate and inappropriate behaviour in the workplace. Organisations may be exposed to external and internal scrutiny if they have a culture of tolerance about some kinds of “inappropriate” behaviours, even if those behaviours may not always be considered by a Court to be “unlawful” in the particular circumstances of a litigious matter.

Most people in most organisations have a reasonable understanding of what is inappropriate behaviour when it comes to the extreme examples. What organisations need to do is implement policies, procedures and education around the grey areas of acceptable conduct and provide guidance to employees about what does constitute acceptable conduct within the confines of the organisation. Modelling of appropriate and acceptable behaviours is also an important and effective tool in defining a company’s culture and preventing incidents that may give rise to legal action.

Please contact the PCS team if we can assist you implement these measures or to review the effectiveness of those your organisation may currently have in place. PCS also runs webinars and courses as part of its events calendar which cover these areas. Our 2021 calendar will be published shortly.

See the full decision here.

People + Culture Strategies