If a worker has been sexually harassed at work, they may apply to the Fair Work Commission (FWC) under section 789FD of the Fair Work Act 2009 (Cth) (FW Act) for orders to stop the sexual harassment.
The FWC can make such orders if they are satisfied that:
- the worker has been sexually harassed at work by one or more individuals, and
- there is a risk they will continue to be sexually harassed at work.
In those circumstances, the FWC can make any order it considers appropriate to prevent the worker from being sexually harassed at work.
In making its orders, the FWC will consider:
- any internal investigation that has been or is being conducted, and its outcome,
- any internal dispute resolution procedure available to the worker, and
- any other matters the FWC considers relevant.
The FWC cannot order the payment of any compensation.
In the decision of S. T. [2024] FWC 2099, the FWC made an important determination regarding what is required to justify a Stop Sexual Harassment Application (SSHA). In this decision the FWC held that, for a stop sexual harassment order to be made, there must be evidence of sexual harassment and an objective risk of continued harassment. In this particular case, the person accused of engaging in sexual harassment had expressed remorse for their actions and had complied with directions from their employer to distance themselves from the Claimant.
So, what does this mean for future decisions? For a successful SSHA order, it is clear that Claimants must prove both the occurrence and risk of continued harassment. Employers should act promptly to address harassment, such as separating involved parties, in order to avoid potential liability.
Being proactive:
- Protects your workplace culture
- Reduces legal risk
- Promotes trust and safety
If you need advice on sexual harassment laws, Fair Work Commission proceedings, or workplace compliance strategies, we offer practical, legally-sound advice tailored to your business.