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Friday Workplace Briefing

First Stop Sexual Harassment Orders Made by FWC

There have been recent developments regarding sexual harassment in the workplace, and closing loopholes that undermine pay and conditions.

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang discuss sexual harassment in the workplace in light of the Fair Work Commission (FWC) issuing its first stop Sexual Harassment Orders, and providing a high level overview of the recently introduced Closing Loopholes bill.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: All right, well, this is a funny topic this one. We’ve received-

Nina Hoang: A funny topic?

Andrew Douglas: Well, it’s a funny topic. It’s the first orders that have come out, and their consent orders in the stop sexual harassment jurisdiction of the Fair Work Commission which mirror the stop bullying provisions.

Nina Hoang: Yeah.

Andrew Douglas: The reason we’re talking about it is, A, it is the first one and it really does show you how the definitions of what are an aggrieved employee and what is a respondent are so broad.

Nina Hoang: Yeah.

Andrew Douglas: This is, for those who don’t understand about child cases, courts never publish the names they de-identify even the employer, anything at all can identify the person, even the actions that have occurred. So for those who are fearful about children’s case and what we’re about to disclose, don’t be scared. This is about an employer who had four children-aged people working. We don’t the ages ’cause that’s not disclosed.

Nina Hoang: Yeah.

Andrew Douglas: What we do know is that involved, in respect of the applicant, whose mother supported it.

Nina Hoang: Whose mother’s a part of the claim, yeah.

Andrew Douglas: A video that was in the course of being published and that video and the actions that pertain to that video were agreed to be forms of sexual harassment. And there was clearly more to it because the consent orders went between both the applicant and the respondent about the behaviours that would exist. None of that’s particularly important, can I just say?

What it shows is that this jurisdiction will be used when it shouldn’t be used for a start. This should have been a Justice Act application of the police ’cause that would’ve immediately stopped publication of the video. The police could have seized the video. There’s a whole lot of actions that could have happened if this went through the basic criminal process.

Nina Hoang: Yeah. But people don’t know about those actions.

Andrew Douglas: No, they don’t. What they do know is about a fashionable jurisdiction that exists in the Fair Work Commission.

Nina Hoang: Yeah.

Andrew Douglas: Okay? So that’s the first thing. The second thing is what is an employee is defined under the WLHS Act. Even in Victoria, for this purpose of this legislation, it’s not our act that defines employee, it is that act. Which means it can be an employee, it can be a contractor, it can be a student on placement, it can be a volunteer. Okay?

Nina Hoang: Yeah.

Andrew Douglas: Now for our schools’ group, and we have a large number of schools wherefore this is actually a lot more scary than you may think. So let me use an example of an outward bound course where we have two student leaders who are leading, like, the teacher’s there but the two student leaders are volunteering to lead. And during the course of that time, remember sexual harassment doesn’t have to be a continuous act. It can be an act, a one act.

Nina Hoang: Yeah, a one act.

Andrew Douglas: And by doing that, there can be a concern that it could be ongoing in the future. So you would have the jurisdiction that would apply. At that stage, that student becomes the employee. Or if the student is on workplace experience, okay, ’cause that’s specifically dealt with, then both the school and the employer could be named in this.

Nina Hoang: Yeah.

Andrew Douglas: Also, the definition permits in relation to the respondent for an agent of the employer. And an agent of the employer could be somebody like Slack.

Nina Hoang: Yeah.

Andrew Douglas: It could be something like Teams, it could be something like Zoom, who permit a capture or recording of something and allow the publication.

Nina Hoang: Or a social media.

Andrew Douglas: Or a social media if it’s utilised by the school. In other words, if it’s a school engaged because it is an agent of the school, which means these orders could be much broader. And that’s a really interesting thing to see because what we know about the social media sites is they fight fiercely not to be involved in any form of litigation.

Nina Hoang: Yeah, that’s true.

Andrew Douglas: So we are going to see more video-based and more photo-based sexual harassment. We’re already seeing the constant use of pictures being sent, particularly by men to women, which are highly inappropriate. So the people who publish those things may form part of an order. So…

Nina Hoang: I think you should expand on what orders were actually made, ’cause that’s really interesting as well. And it shows the depth and the different types-

Andrew Douglas: The intrusive nature.

Nina Hoang: of what is-

Andrew Douglas: Yeah, I mean…

Nina Hoang: …so a commission can make.

Andrew Douglas: The first part is the Fair Work Commission made a confidentiality order immediately when it took possession of the matter, quite properly so, so it has that power to actually stop and not permit the publishing of anything by any person who is involved or any person externally. So it’s a suppression order as well.

Nina Hoang: Yeah. And it’s an ongoing one too. It’s not just confined to, you know, while they’re employed or anything. My understanding is it’s just an ongoing order. It’s not publish this video.

Andrew Douglas: Yeah, and the consent orders required the destruction of the video, the not copying of it, it then said the not talking about it to each other.

Nina Hoang: And to other people.

Andrew Douglas: And from the applicant, who had also said not having a go at them about the video.

Nina Hoang: Yeah.

Andrew Douglas: So it was clearly dealing with children. But I want you to understand children, adults, aren’t that different in this area.

Nina Hoang: No.

Andrew Douglas: The behaviours that we are seeing orders being made and imposed by consent. They would’ve been made but for the consent of it. Are the very sort of orders you constantly see in sexual harassment matters.

Nina Hoang: Yeah.

Andrew Douglas: But will it be used a lot in the future, like bullying? No, it won’t be. This has been going a while and this is our first set of orders. We’ve had one which was disposed of because part of it is if the Fair Work commissioner doesn’t believe it’s sexual harassment they will not issue a certificate in relation. So that’s happened once before. But what I want you to understand is don’t be too scared about it.

Nina Hoang: No.

Andrew Douglas: This is one that should never have been there and it doesn’t do anything if you stop the capacity for that to occur. So if a school has a student in our place and receives a complaint, brings the student back, the capacity for further sexual harassment so long as they put barriers between the employee at the workplace, making sure that they don’t send videos or do that, school’s safe.

Nina Hoang: Yeah, I think we’ll see much more of people utilising the Federal Court jurisdiction for sexual harassment claims instead.

Andrew Douglas: Yeah.

Nina Hoang: Because they’re going to get much more, what about damages? You can’t get damages in the stop sexual harassment order.

Andrew Douglas: Unless you get a consent arbitration, then you can.

Nina Hoang: Yeah. But no one is-

Andrew Douglas: Who’s going to let-

Nina Hoang: going to agree to that?

Andrew Douglas: a Fair Work commissioner arbitrate something.

Nina Hoang: No.

Andrew Douglas: Did I say that out loud? I did, didn’t I? You wouldn’t, would you? Okay, so let’s move on to the case study because I’m in a lot of trouble now.

Nina Hoang: I think so.

Andrew Douglas: Yeah.

Nina Hoang: Dwayne really liked Jess. She was the new accounts clerk and Dwayne was Head of Sales. He was on the executive. There’s no doubt he was a bit of a spiv. Dwayne and Jess worked for BigTech Pty Ltd, a successful startup (now scale up), that helped new startups use a simple digital platform for their first app. Dwayne was great at selling in FinTech circles and was highly regarded.

BigTech had approximately 250 employees. It was now on its third capital raising, had received a substantial injection from Ferdinand Envy (a renowned venture capitalist) and there was talk of takeover from a large US-based Silicon Valley mega company. BigTech had an online competency-based induction process including around sexual harassment.

The regular computer startup screens required employees to answer questions on harassment and discrimination before the laptops would open for work, and Dwayne had recently completed the annual online competency-based discrimination and harassment course. It didn’t allow you to pass the question until you got it right. Dwayne had spoken to Jess on her second day. He said, ‘Hi, a little overdressed for geeks, aren’t you?’ Laughing. She laughed back.

He subsequently sent her an email saying how good it was to have her onboard. She replied, ‘Thanks.’ Dwayne made a habit of dropping by each day and speaking to her. He had not done this before. She found it a little awkward but was always polite. Two weeks passed. He came in on Friday afternoon and asked if she would like to come out with the sales team for drinks. He said they would love to have her come along. She felt very lucky, so she said, ‘Yes.’

When she arrived at the bar, only three of the sales team were there, all men that were Dwayne’s age, over 40, and she was 23. It was obvious the other two did not expect her. Dwayne was kind, she had one drink and then made her excuses and left. Later that night Dwayne sent through photos of the three of them, obviously drunk, saying how much they missed her. She sent back a smile emoji but felt awkward. Things got worse.

When he slipped in early Monday morning after the big Friday night out, he said his wife had just recently left him and he was very thankful for her friendship. He asked if she had time for coffee, she reluctantly agreed as he seemed so distressed. When they had coffee, he explained that his wife had cheated on him, he held her hand, said they had a sexless relationship and he felt burned and alone. When she got back to work, she spoke with HR and explained what had happened.

HR asked if she wanted to make a complaint. She said she didn’t but wanted it to stop. Briony from HR said she would talk to him. Jess asked her to be gentle as he only recently broken up with his wife. Briony spoke with Dwayne, he cried and said he knew he was under so much stress and Jess had been kind. Later that night he sent an email to Jess saying, ‘Thank you, I’ve spoken to Briony, I have to get myself together, you have been wonderful and are the best person I know. ‘Sorry to burden you.’ She said, ‘It’s okay, have a good night.’”

Dwayne took that as an invitation and started sending messages by Messenger (so it wasn’t work) and made comments on her Facebook photos about how beautiful she was. She spoke to her brother the next morning who helped her prepare stop sex harassment dispute under the Fair Work Act. The persons named were BigTech and Dwayne.

Andrew Douglas: All right.

Nina Hoang: Oh, God.

Andrew Douglas: Can BigTech argue under 527-2B. It’s actually 1B, I got that wrong, sorry. It’s 1B, 2B is slightly different. It had taken reasonable steps to prevent Dwayne from sexually harassing Jess because of the competency-based education.

Now can I just say to you, whenever I go to a site I always do the inductions and I love the inductions.

Nina Hoang: Ah.

Andrew Douglas: Where you can’t go on until you get it right. So I deliberately start with a wrong until I eventually get to the last one, which is right. And then they always allow me on site even though I’m clearly incompetent.

Nina Hoang: Yeah.

Andrew Douglas: So this is not a competency-based method of testing.

Nina Hoang: He clearly was not competent because I don’t care if you, like, it’s so easy to game that system. That’s the point. And the fact that he kept continuing all this behaviour, meant he wasn’t competent.

Andrew Douglas: Yeah. Part of the risk of virtual work is we think we can get away with this and probably about five or six years ago most large companies started doing online compliance work. Can I just say it’s a nonsense? To teach people you actually have to have the neuropsychological link with a person sitting in the room, you test their competency in front of them, then they’ve got a time in which to do it. They go back and look at their answer then and then you retrain them so they understand it. That’s competency-based training. Competency-based training is not getting 80 in a hall. It’s not Teams or Zoom, it is actually competency-based training. So no.

Nina Hoang: But even without that, they haven’t taken all reasonable steps.

Andrew Douglas: No, they haven’t.

Nina Hoang: Like all they did was talk to him a little bit. They haven’t sought to remove it. They haven’t given him the questions-

Andrew Douglas: Oh no, hey look.

Nina Hoang: Just stop talking to her.

Andrew Douglas: Yeah, and look, can I just say, this is, I think I’m going to talk about it later anyway, but I’ll say it now. The moment this is raised it creates a safety and an harassment issue.

Nina Hoang: Yeah.

Andrew Douglas: Both of which you have positive duties around and therefore you can’t merely just say, “Be gentle with him.”

Nina Hoang: Yeah.

Andrew Douglas: The answer is he’s clearly done a wrong. The evidence shows he’s doing a wrong, at that stage when we look at hazard, okay, we’ve got the hazard, the risk is really high. Therefore, when we go to the high rank control there has to be an elimination strategy.

Nina Hoang: Yeah.

Andrew Douglas: That doesn’t mean termination, but it means separation.

Nina Hoang: That’s something, yeah.

Andrew Douglas: Yeah, so…

Nina Hoang: Something in there, like gosh.

Andrew Douglas: So the answer is no, they are vicariously liable.

Nina Hoang: Yeah.

Andrew Douglas: And in big strife. Two, can Jess proceed to the Federal Court or state jurisdiction to claim compensation? If so, what compensation would she receive?

Nina Hoang: Yeah, she can.

Andrew Douglas: Yeah.

Nina Hoang: She can reply directly to the Federal Court. She doesn’t have to go to-

Andrew Douglas: Or gain a certificate and go off the Federal Court. But the issue here is this is not a small claim.

Nina Hoang: No, she’d get general damages and economic loss.

Andrew Douglas: Yeah, so if she can demonstrate that she suffered psychological harm and she’s unable to work.

Nina Hoang: She probably did, it was so creepy.

Andrew Douglas: Yeah, I know it’s one of my textbook creepies that one, but I’d reckon the generals are probably between 75 to 100 for that. And you know, you might get it lower on a bad day but you’d be right up there.

Nina Hoang: I think you’d get more now.

Andrew Douglas: Yeah, special damages. Well, you know, the special damage would depend on how sick, how damaged she was, as to what loss of earning capacity she’s got. But there’d be aggravated damages because the poor method of remedial work that had been done as well. And both Dwayne and BigTech would cop it.

Nina Hoang: Yeah, because she’d get the stuff against him and also the vicarious liability as well.

Andrew Douglas: Yeah. Okay, number three. Can BigTech…

Nina Hoang: No, no.

Andrew Douglas: No, that’s number one, I’m starting to read again. You can tell that I’m not wearing my glasses, aye, ’cause my eyes are bigger than my nose. And that’s quite a hard thing to do. Was the complaint, would talk, yeah, there’s definitely, the moment someone raises a safety breach or an harassment breach there is no such thing as a formal complaint.

Nina Hoang: Yeah, you don’t also have a formal written complaint.

Andrew Douglas: Can you just remember that the moment you’re aware of something, which is a breach of legislation, it doesn’t matter if they won’t put it in writing, it’s a complaint and you’ve got to act on it.

Nina Hoang: ‘Cause you’re aware of it. Even when they’re like, “Oh, I don’t want to do anything about it,” you have that obligation to investigate.

Andrew Douglas: Yeah, and you’ve got to wrap your arms around that person and make sure they feel safe, but they don’t get to control what happens next.

Nina Hoang: Yeah.

Andrew Douglas: Okay? Has there been a breach of safety law and if so, by who? What breach and what punishment? If Jess suffered a fatal accident leaving work as a result of Dwayne’s actions would that change anything?

Nina Hoang: Yeah, so Dwayne’s definitely breached his employee duties towards her, the HR manager as well.

Andrew Douglas: Can I just say, can we just stop with him. So it definitely primary duty breach.

Nina Hoang: Yeah.

Andrew Douglas: But he also does have knowledge of the seriousness of that breach.

Nina Hoang: And that she felt uncomfortable with it.

Andrew Douglas: Yeah. So he’s got-

Nina Hoang: Reckless engagement.

Andrew Douglas: Yeah, he’s got the past training to know that what he’s doing is wrong. Okay, so he definitely knows what he’s doing is wrong. He’s been told what he’s doing is wrong and then he ramps it up and he is been told that it’s affecting her. So he is aware of a serious risk and he’s indifferent to it. Worse than that, he’s provoked it. So he’s on his pathway for reckless endangerment and because he is the face of the organisation, determination of liability, and because of Briony’s inaction, then I think they’re both up for reckless endangerment.

Nina Hoang: Oh yeah. Yeah.

Andrew Douglas: And he could-

Nina Hoang: I don’t think he could do industrial manslaughter.

Andrew Douglas: No, he’s-

Nina Hoang: But the company could.

Andrew Douglas: Yeah. Yeah. I think they’d both probably miss out on it. There’s not quite the gravity yet because there’s not the knowledge of the serious illness part of it. But if there was a knowledge of the serious illness part of it and he continued to do it and they failed to act upon it, well then I think you-

Nina Hoang: I don’t know, they’ve got evidence she’s been quite distressed about it. She’s told HR about everything.

Andrew Douglas: Yeah, not enough for IM, I don’t think. But anyway, look, really interesting. Does Jess have a good workers’ compensation and common law claim?

Nina Hoang: Yes.

Andrew Douglas: Yeah, can I just say to you, we’ve now explained sexual harassment claim worth a minimum of about 150, but could be a lot more based on ability to return to work. We’ve talked about safety penalties which are very significant.

Nina Hoang: Yeah.

Andrew Douglas: And now we’re talking about workers’ comp which would be accepted, but in the common law claim would actually have same types of damages of sexual harassment. Just larger and easier to access. And you’ve got the hit on your premium of the workers’ compensation which would be more than all of that put together.

Nina Hoang: And all of these can apply at the same time.

Andrew Douglas: Yeah.

Nina Hoang: Yeah.

Andrew Douglas: There you go. How does that sound? All right, well look, next week we’re going to start on closing the loop. We’re not going to be Chicken Little, we’re not going to say the sky’s falling. We’ll just show you, walk you through slowly.

Nina Hoang: How to you know that reference?

Andrew Douglas: I’ve been using it about lawyers for a long time, don’t worry. Anyway, guys, see you later.

Nina Hoang: Give us a thumbs-up.

Andrew Douglas: Thumbs up. We need more thumbs-up. See you later. Bye-bye.

Nina Hoang: Bye.

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