It is imperative that employers communicate their expectations and policies on appropriate behavior with all employees before hosting a Christmas work event. This is because Christmas festivities and other work functions can unfortunately be a hotspot for sexual harassment. Employers should be aware of risks, and their responsibilities, especially the positive duty to prevent sexual harassment.
It is important for employers to be aware of their responsibilities and the legislation surrounding sexual harassment, due to the Respect@Work changes that came into effect last year. Employers need to understand the risk areas and factor these in when planning any event, but particularly those taking place during the festive season. This ensures the safety and wellbeing of everyone during the traditional office Christmas event and by understanding this, employers can be aware and take steps to reduce the risk of a potential claim against the business.
Regardless of their size or resources, all employers in Australia must meet the positive duty. The positive duty is to eliminate, as far as possible, the following unlawful behavior from occurring:
The Fair Work Commission refers to this conduct as ‘relevant unlawful conduct.’ Taking preventative action will help to create safe, respectful, and inclusive workplaces.
As part of the Respect@Work changes, the positive duty requires employers to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs. Therefore, when organising festive functions, employers need to ensure they are putting measures in place to reduce the risk of sexual harassment and discrimination occurring at these events.
If an employee feels they were sexually harassed and/or discriminated against at a festive function, they can make a claim under state or federal legislation, with both jurisdictions having three elements of what constitutes sexual harassment. The two common elements are:
Under the federal legislation, the third element requires that a reasonable person would regard the behaviour as offensive, humiliating, or intimidating.
Under state legislation, the third element requires that the person at whom the behavior is directed has reasonable grounds for believing rejection of the behaviour would disadvantage their employment prospects or is in any way connected with their employment.
If a complaint lodged with the Equal Opportunity Commission is successful, the employer can be ordered to pay up to $40,000 in compensation under state legislation and an unlimited amount under federal legislation.
Such a claim can prove to be expensive and stressful, so employers should take steps to reduce their liability or risk of a claim. This includes ensuring the employees are made aware of what behavior is acceptable at these functions. This can be done by circulating a memorandum reminding employees of their obligations regarding sexual harassment and/or raising it in staff meetings.
The memorandum should only be used to reinforce the organisation’s policy and is not designed to replace the policy, complaints procedure or equal opportunity training. It is also recommended that employees are provided with a copy of the organisation’s sexual harassment policy as a reminder.
CCIWA have Respect@Work packs available for purchase – these comprehensive kits include everything an employer needs to know when it comes to meeting the new legislative obligations surrounding sexual harassment and discrimination. We have three packs available, they can be found here: Respect@Work Packs — CCIWA
For further information on how you can ensure you host safe and enjoyable festive functions, please feel free to call the Employee Relations Helpline at CCIWA on 08 9365 7660 or email advice@cciwa.com
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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