What You Need to Know About Work Parties

The night of the Christmas party: will they still love you tomorrow?

Maitland Chamber Made – December 2004

The Anti-Discrimination Act 1977

It is unlawful for an employee to sexually harass a fellow employee. It is also unlawful for a “workplace participant” to sexually harass any workplace participant at a place that is a workplace of both those persons.

“Workplace” is defined as a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

A “workplace participant” is an employer or employee, a commission agent or contract worker, a partner in a partnership, a person who is self-employed, or a volunteer or unpaid trainee.

The principal or employer of a volunteer or unpaid trainee who contravenes Part 2A of the Act is the person or body on whose behalf the volunteer or unpaid trainee provides services.

The essence of sexual harassment is that the sexually orientated behaviour or conduct was uninvited and unwelcome and that the recipient of the conduct was offended, humiliated or intimidated. The intention or motive of the harasser is irrelevant: the test of whether the conduct amounted to sexual harassment is objective and based upon the reasonable person.

Sexual harassment can take various forms, including physical contact, visual displays, verbal comments (eg. sexual jokes, intrusive questions and insults) and non-verbal conduct (eg. letters and email messages). The legislative test will be satisfied if the harassment occurs only once.

As time has progressed tribunals and courts have awarded higher damages to complainants, and imposed heavier burdens to employers to develop, communicate and monitor policies on sexual harassment and to establish mechanisms for handling grievances. The aim is to hasten the eradication of sexual harassment by having employers adopt effective education programs to change entrenched attitudes.

Whether there is an anti-discrimination policy in place or not, the question is whether an employer or principal has expressly or immediately authorised the doing of the act by its agent or employee which contravenes the Act.

The Act provides that a principal or employer can authorise an act by an agent or employee, either before or after the doing of the act. Under s53 the onus is on the principal or the employer to establish that it did not authorise the act of the agent or employee.

Have you had training on sexual harassment available to your staff, or guidance given to them about how to handle conduct, including conduct of management or directors, which might be classified as sexual harassment? If so, have you communicated to management and staff the existence of a policy and emphasised the importance of not engaging in conduct which might contravene the relevant provisions of the Act.

As an employer you are not liable if you took all reasonable steps to prevent the agent or employee from contravening the Act.

Your defence requires you to prove that you have not authorised the person to engage in the conduct in question.

It is not necessarily enough for the principal to prove, after the event, conduct on its part inconsistent with the conferring of authority on the agent to do what he/she had done. The principal must shoulder the added requirement of providing that, before the misconduct of the agent complained of, it did not give authority either expressly or by implication.

Please always remember that you must not terminate an employee’s employment for the reasons related to the employee’s conduct or performance unless the employee has been given the opportunity to defend himself/herself against the allegations made.