Background

In 2021 the Government brought in reforms designed to combat sexual harassment in the workplace (see our update here). This included the introduction of a “stop sexual harassment order”, equivalent to a “stop bullying order”. In accordance with the Fair Work Act 2009 (the “FW Act”) a worker who believes that they have been sexually harassed at work may apply to the Fair Work Commission (the “FWC”) for an order to make the sexual harassment stop.

The FWC can make a stop sexual harassment order if it is satisfied that the worker has been sexually harassed at work and there is a risk that the harassment will continue.

In a recent case, an employee made an application for a stop sexual harassment order alleging harassment by her manager.

The details

The employee, Ms K, was a junior chef at a Perth restaurant. Her manager, Mr S, was the head chef. The FWC accepted that Mr Shad sexually harassed Ms K when he repeatedly requested that Ms K be his girlfriend, repeatedly showed up at her house to give her a lift to work and made sexual advances.

As the sexual harassment occurred while Mr S and Ms K had been driving, during phone calls outside of work time, in the work car park and during a lunch break the FWC had to determine whether the sexual harassment had occurred “at work”. The FWC found that while the alleged harassment had not occurred while Ms K had been “performing work”, the connection to the workplace was sufficient for the conduct to be deemed as having occurred “at work”.

Ms K had made several covert recordings of her conversations with Mr S. These were made without Mr S’s consent and the FWC was required to consider the admissibility of these recordings. The FWC allowed the recordings to be admitted into evidence as it was desirable to hear first-hand whether Mr S had made the remarks asserted by Ms K. In admitting the evidence, the FWC noted that Mr S did not object to the admissibility of the recordings when they were tendered into evidence.

The employee disclosed at the hearing that she had resigned from her employment and so the FWC had to consider whether it had the authority to make a stop sexual harassment order in the circumstances.

FWC decision

The FWC accepted that the employee had been sexually harassed while at work. However, for the FWC to issue a stop sexual harassment order it must be satisfied that there is a risk the harassment will continue. As the employee had resigned, there was no risk of the harassment continuing and accordingly the FWC did not make the stop sexual harassment order.