FWC’s new anti-sexual-harassment jurisdiction: When will the Fair Work Commission grant an order to stop sexual harassment and workplace bullying?

Sexual harassment claims are becoming increasingly prevalent in workplaces and, only late last year, amendments to the Fair Work Act 2009 (Cth) extended the ambit of the Commission’s anti-bullying jurisdiction to include instances of workplace sexual harassment.

The nature of this jurisdiction was examined in the case of Application by Ranmeet Kaur [2022] FWC 487. Deputy President Beaumont denied an application for the Commission to exercise its discretion in making an order to stop workplace sexual harassment and bullying from continuing. While it was undisputed that the employee had been sexually harassed in the course of her employment, the fact she had quit her job evinced that the employment relationship had ceased and no sexual harassment would persist.

Importantly, the case crystallises instances where the Commission will grant orders in favour of a sexual harassment applicants. It similarly empowers employees subject to indecent conduct to address harassment in their workplace.

Facts

Ms Kaur was an employee at the Riverton Bar & Grill restaurant from July 2021 to November 2021. Within her five‑month employment relationship, Ms Kaur was subject to numerous instances of workplace sexual harassment from her supervisor, Mr Singh. Specifically, on several occasions, Mr Singh asked that Ms Kaur have sex with him and continually requested that she be his girlfriend.

Basis for sexual harassment and bullying application

Section 789FC of the Fair Work Act 2009 (Cth) entitles employees to make a sexual harassment and bullying application to the Fair Work Commission where they ‘reasonably believe’ they have experienced harassment or bullying. Deputy President Beaumont confirmed that a reasonable belief exists where ‘there is perceptible evidence to support the belief’. Given Ms Kaur had audio recordings of Mr Singh’s recurring sexual intimations, it was unequivocal that her allegations could be substantiated.

Subsequently, Ms Kaur requested that the Commission exercise its discretionary powers under section 789FF of the Act and grant an order to stop sexual harassment and bullying by way of firing Mr Singh. Such order was dismissed on the grounds that the Commission did not have jurisdiction to exercise their discretion. Ms Kaur was no longer employed at Riverton Bar & Grill, which meant there was no ongoing threat that she would be exposed to additional harassment from Mr Singh.

Threshold requirements for substantiating a sexual harassment claim

Despite no order being granted in favour of Ms Kaur, the case nevertheless offers important considerations as to when a person will be deemed to have experienced sexual harassment in a workplace. Deputy President Beaumont adopted the ratio in Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 12 and identified three threshold elements for substantiating a sexual harassment claim. These included:

• whether there was a sexual advance
• whether the sexual advance was unwelcomed
• whether a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct.

Where these preconditions are satisfied, an employee will have recourse to defend themselves against the harassment continuing. Employers must also be aware that sexual harassment at work constitutes serious misconduct that can afford them a valid reason for dismissing an employee that has behaved inappropriately.

Sexual harassment must occur ‘at work’

Pursuant to section 789FF, workers must prove that they were subject to the harassment ‘at work’. In Ms Kaur’s case, none of the harassment she experienced took place in the restaurant premises where she worked. However, Deputy President Beaumont concluded that harassment nevertheless occurred ‘at work’ on three isolated occasions, which were:

• in the restaurant’s car park during a lunch break
• in the manager’s car driving the victim to work
• on a phone call to the victim about ‘work related matters’ where sexual harassment subsequently ensued.

Evidently, the ‘at work’ requirement does not necessitate that the harassment occur in the proximate place where the work is undertaken. Rather, it can extend to work related interactions that arise outside of the workplace.

Key takeaways for employers

This decision offers some clarity for employers as to how the Commission will construe the recent extension of its workplace sexual harassment powers.