Following on from our recent blog on Sexual Harassment in Christian Schools we have summarised below the key elements of a comprehensive response to the prevention of sexual harassment in Christian schools.
To meet the requirements in the Sex Discrimination Act 1984 (Cth), and relevant case law schools need to:
Understand and communicate to all staff and students over 16 years that sexual harassment in the workplace is unlawful.
Where sexual harassment or sex discrimination is found to have occurred, not only can the individual be held liable, but the school can be held liable if demonstrated it did not act, prevent or is found to have encouraged, a workplace culture or practice that enabled such conduct to occur.
Caution: inaction, ignoring and silence will not protect the school from being held liable.
Take reasonable steps to prevent sexual harassment from occurring. Have a sexual harassment policy in place and abide by it.
A sexual harassment policy should reflect the school and at a minimum contain these elements detailed in the AHRC Ending Workplace Sexual Harassment resource
Provide sexual harassment training – upon employment and annually.
Ensure that staff know who to go to within the school if they have witnessed or experienced any form of harassment.
Promote a culture of no tolerance against workplace harassment.
Be informed on the action that can arise.
Australian Human Rights Commission
A person who alleges sexual harassment can lodge a complaint with the Australian Human Rights Commission. The Commission will firstly seek to conciliate the matter but if that fails, the matter will be referred to a court for hearing. The complainant may or may not proceed.
The onus of proof is on the person making the complaint.
A court may order reinstatement, payment for damages, redress any loss or damages experienced by the victim or make no order at all.
Fair Work Act 2009 [Cth]
Where an employee has had adverse action taken, for example because they exercised a workplace right can make a general protections claim. The onus of proof in such a situation on the workplace to demonstrate that adverse action was not taken because the employee made a complaint.
Equally an employee who is dismissed because they are found to have engaged in sexual harassment is able to lodge a claim of unfair dismissal. The Fair Work Commission will seek to determine if the dismissal was harsh, unjust or unreasonable. Schools are reminded that procedural fairness must be maintained during any decision for termination.
Where indecent assault, sexual assault or indecent exposure has occurred, criminal charges may be laid. An victim of such conduct can formally report the matter to police and schools will need to promptly ensure that appropriate support is arranged for the victim.
Work Health and Safety
Employers must ensure, as reasonably practical, the health and safety of its employees. Further, this obligation extends to prevent a foreseeable risk of harm to employees physical and psychological safety. This again requires that prevention and response is required by employers.
Sexual harassment can also trigger requirements under State or Territory workplace health and safety law. The applicable regulators have a range of support materials.
To further support schools in promoting workplace cultures free of sexual harassment we have created visual aides tailored specifically for the Christian workplace. These can be printed as A3 or A4 and displayed appropriately around the school environment. Principals may also consider making use of this sample letter to staff to communicate the schools position on a zero tolerance to sexual harassment. These resources can be downloaded from the links below.