The Coachwood Sexual Harassment Policy

1.0 Legal background and scope of policy

1.1 What is the legal definition of sexual harassment?

Sexual harassment is unlawful under the Victorian Equal Opportunity Act 1995 and the Federal Sex Discrimination Act 1984. According to these laws, a person sexually harasses another person if they:

  • make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • engage in any other unwelcome conduct of a sexual nature in relation to the person harassed, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

To find out whether sexual harassment occurred from a legal perspective, it is necessary to ask whether:

  • the behaviour was unwelcome; and
  • the behaviour was sexual in nature; and
  • a hypothetical 'reasonable' person would think it was understandable that the harassed person would feel offended, humiliated or intimidated by another person's behaviour in the circumstances.

1.2 What is meant by 'unwelcome behaviour'?

Unwelcome behaviour is behaviour that is uninvited and unwanted by the recipient/s of the behaviour. The fact that not everybody would be offended by the behaviour is not relevant, even if that sort of behaviour has previously been accepted within a particular work or learning environment.

Sexual harassment law recognises that people are different and will experience things differently to each other depending on their background and the circumstances under which the behaviour occurs. Behaviour that might be acceptable in one context may not be acceptable in another.

Mutual flirtation or sexual contact that is desired and freely consented to is NOT sexual harassment. However, behaviour that is not freely consented because of fear, intimidation or coercion constitutes sexual harassment because it is unwelcome. It is important to understand that at law:

  • sexual harassment can occur unintentionally: whether or not the alleged harasser intended to intimidate or harass the person is irrelevant;
  • the person who has been harassed does not necessarily have to have told the harasser that the behaviour was unwelcome for the complaint to be successful, although it must be reasonable, given the circumstances, for the person responsible to anticipate that their behaviour would be unwelcome. This aspect of the law acknowledges that fear of reprisals, youth, inexperience or power differentials might affect someone's ability to verbalise their discomfort about the behaviour;
  • a single incident or comment might constitute sexual harassment — the behaviour does not have to be repeated.

1.3 What sort of behaviour is considered to be sexual in nature?

Behaviour that has a sexual element or implication is considered to be sexual in nature. This definition covers a wide range of behaviours including:

  • displaying offensive material (posters, screen savers etc)
  • unwelcome physical contact, gestures or other non-verbal communication
  • sexually explicit comments, jokes or conversations
  • offensive communications, including e-mail messages; and
    • sexual insults or taunting
    • making unwelcome comments/insults about a person's actual or assumed sexuality.

Sexual harassment may be perpetrated or experienced by persons of either gender or any background. If someone sexually harasses another person of the same sex that is also unlawful. The majority of reported incidents of sexual harassment have involved men harassing women. However, the legislation recognises that a woman could sexually harass a man and that it is possible to sexually harass, or be sexually harassed by, a number of people rather than just an individual, and by someone whose sexual orientation is different to one's own.

In Coachwood’s context, there are two distinguishably different forms of sexual harassment. These are:

a. harassment that involves some sort of blackmail, such as the promise or threat of altering a person's employment conditions; and

b. harassment which occurs when people feel offended, humiliated or intimidated by a work environment that feels sexually hostile to them, or is permeated with sexually offensive behaviour. Even if the sexual behaviour is not directed at the individual who is distressed by the working atmosphere, she or he has the right to complain about it at law.

Some of the factors that may indicate a potentially hostile environment include the display of obscene or pornographic materials, general sexual banter, crude conversation or innuendo, and offensive jokes.

1.4 How is the test of 'reasonableness' applied?

What is regarded as reasonable in terms of an individual person's reaction to behaviour that is sexual in nature will depend on the circumstances. The test allows the particular circumstances of a case to be examined.

In the past, someone who alleged that they had been sexually harassed had to prove that they had suffered a tangible disadvantage as a result of the harassment (like being demoted or dismissed from their job). In 1993 the 'reasonable person test' was introduced in recognition of the fact that sexual harassment is itself an offence, and that the experience of sexual harassment is, in itself, a detriment.

Cases of sexual harassment are sometimes dismissed if it is found that, in the circumstances, a 'reasonable person' would not have anticipated that their behaviour would offend, humiliate or intimidate the person who made the complaint. Reasonableness has been held to be a question of fact to be determined by weighing all the relevant circumstances. On that basis, what is relevant will vary from case to case. Factors such as the relevant ages of the complainant and the respondent, the context in which the harassment occurred and the nature of the relationship between the parties may be relevant when determining what is reasonable in the circumstances.

1.5 Some important things to remember

  • Sexual harassment can involve physical, visual, verbal or non-verbal conduct of a sexual nature that is uninvited and unwelcome.
  • Sexual harassment is a legally recognised form of sex discrimination.
  • Sexual harassment can be a breach of an employer's common law duty to take reasonable care for the health and safety of employees.
  • Sexual harassment can be a breach of occupational, health and safety legislation.
  • Sexual harassment is not sexual interaction, flirtation, attraction or friendship that is invited, mutual, consensual and reciprocated.
  • The intention or motive of an alleged harasser is not relevant when determining whether the behaviour was unwelcome. Sexual harassment focuses on how the conduct in question was perceived and experienced by the recipient rather than the intention behind it.
  • The unwelcome behaviour need not be repeated or continuous. A single incident or comment can amount to sexual harassment.
  • A complaint of sexual harassment will not be dismissed just because the person subjected to the behaviour did not directly inform the harasser that it was unwelcome. However, the circumstances of the harassment do need to be such that the person responsible should have realised that their behaviour would have humiliated, offended or intimidated the other person.

2.0 Coachwood’s Responsibility

Under State and Federal anti-discrimination legislation, it is unlawful to discriminate against someone in a number of areas, including employment.

As an employer Coachwood has a legal obligation to provide work environments that are free from discrimination in general. Part of this responsibility is to provide work environments that are free from sexual harassment.

Part of the Coachwood 's risk management strategy for the elimination of sexual harassment involves meeting its legal obligation to 'take all reasonable steps' to prevent sexual harassment.

Coachwood will take steps to:

  • issue and distribute a sexual harassment policy
  • establish fair and effective sexual harassment grievance procedures that comply with principles of natural justice
  • raise awareness of all employees
  • train those responsible for dealing with complaints or inquiries (including managers and supervisors); and
  • monitor the work and learning environment.

2.1 What is meant by 'the principles of natural justice'?

There are two types of fairness required by natural justice: procedural fairness and substantive fairness. This means that the fairness of the way a matter has been handled is considered separately to the actual decision reached or outcome made. The basic principles of natural justice must be observed when dealing with a sexual harassment matter. This means that:

  • a person who is the subject of a formal complaint must be fully informed of the allegations against them;
  • a person who is the subject of a formal complaint must be given the opportunity to respond to the allegations and raise any matters in their own defence;
  • the allegations should be properly investigated, all parties being heard and relevant submissions considered;
  • irrelevant matters should not be taken into account;
  • a person who makes an allegation cannot be involved in determining it;
  • those handling a formal complaint must not pre-judge the matter but act fairly and without bias;
  • the Investigation Panel must obtain the full story from all parties to the matter before saying, implying or doing anything that could be perceived as judging the matter
  • until a formal complaint has been investigated and a decision made, the claims of the person who believes they have been harassed are allegations only
  • all parties must have access to information about the range of resolution outcomes available
  • all parties to the matter must be kept informed throughout the process
  • outcomes should be consistent and fit the breach of policy that has occurred.

2.2 What are the implications of the Coachwood's legal obligations?

Coachwood’s legal obligations as an employer means that it can be held liable in a number of ways for acts of sexual harassment with which it can be connected. Coachwood may be held liable:

  • for the conduct of its employees
  • the conduct of its agents
  • as an accessory to an unlawful act
  • for the conduct of staff members from other organisations, institutions and businesses — however brief the tenure of the visit; and
  • for the conduct of consultants, volunteers, guest speakers and other contractors.
  • Sexual harassment also exposes the Coachwood to possible actions for:
  • negligence (in tort law)
  • breach of contract; and
  • compensation under the Accident Compensation Act 1985 (Vic).

It is important to remember that Coachwood can be held responsible for acts of sexual harassment that occur during work related activities, such as conferences, camps, field trips or social functions, whether they are held on or away from the place of employment.

2.3 What is 'vicarious liability'?

Under the Federal and State legislation covering sexual harassment, employers can be held legally responsible for wrongs committed by their employees and agents in the course of their work, whether or not they know that sexual harassment is occurring. This means that Coachwood may be held 'vicariously liable' for acts of sexual harassment committed by its employees and agents. If action is taken against Coachwood by an employee under State or Federal legislation, Coachwood could be required to pay compensation and/or provide other forms of redress.

2.4 What limit is placed on the extent of that liability?

Vicarious liability for the acts of another can be diminished or negated if Coachwood can show that, as an employer, it took 'all reasonable steps' to prevent sexual harassment.

The Human Rights and Equal Opportunity Commission has said that 'all reasonable steps' could include:

  • issuing and distributing a sexual harassment policy
  • establishing fair and effective sexual harassment grievance procedures
  • raising the awareness of all employees
  • training those responsible for dealing with complaints or inquiries (including all managers and supervisors); and
  • monitoring the work environment.

2.5 When can Coachwood get involved in an allegation of sexual harassment?

Staff of Coachwood have a right to work in an environment that is free from sexual harassment. Coachwood takes that right very seriously.

If someone thinks that they have been sexually harassed in circumstances where that harassment:

  • creates an intimidating, hostile or offensive learning or working environment
  • affects their assessment, a condition of their appointment, or their promotion or salary
  • either aims to interfere with, or actually interferes with, their work performance they will be advised to contact one of the Coachwood’s Sexual Harassment Advisers for advice, information and/or referral.

2.6 How does Coachwood deal with sexual harassment that is an offence under criminal law?

Sexual harassment that is also an offence under criminal law may be referred to the police. This includes cases involving:

  • physical molestation or assault
  • indecent exposure
  • sexual assault
  • rape; and
  • stalking.

However, that does not mean that Coachwood will not also deal with the criminal behaviour or its impact under the sexual harassment procedures. When such conduct is in issue, Coachwood may follow these procedures and other relevant Coachwood policies.

Many people are unaware that obscene communications (such as phone calls and letters) are also a criminal offence. Whether or not sexual harassment involving obscene communications is dealt with under Coachwood’s sexual harassment policy, staff discipline procedures, policy on the abuse of computers and e-mail or other procedures, will depend on the individual circumstances of each case.

2.7 Who is covered by the sexual harassment policy and procedures?

Staff / Contractors

The Sexual Harassment Policy and Procedures cover Coachwood staff who are:

  • employed for any number of hours
  • on a fixed term contract or in a continuing position
  • in academic, general or technical/trades positions
  • independent contractors and employees of contractors

2.8 What action can be taken outside Coachwood with regard to sexual harassment?

All staff may seek external legal advice at any time after a sexual harassment incident has arisen. Any person is entitled to pursue a complaint under the provisions of the Victorian Equal Opportunity Act 1995, the Human Rights and Equal Opportunity Act 1986, or the Sex Discrimination Act 1984 without following Coachwood’s procedures.

If a complaint is lodged with the Victorian Equal Opportunity Commission or the Human Rights and Equal Opportunity Commission pursuant to the above legislation, Coachwood’s internal procedures may cease or be suspended pending the outcome of that complaint.

If you would like more information about this option you should speak to the Coachwood Sexual Harassment Adviser or staff in the Equal Opportunity Unit.