FWC Makes First Anti-Sexual Harassment Ruling

12 January 2022

The Fair Work Commission has published its first decision relative to a claim using the new anti-sexual harassment jurisdiction, in a judgment delivered on 24 December 2021.

The Applicant, THDL, sought an order against two employees of a neighbouring company which conducted its business in shared accommodation, in the same warehouse complex as that where the Applicant worked. THDL alleged that the two employees had engaged in bullying and harassment against THDL workers, and sought an order for them to be considered ‘bad men’.

At the first directions hearing, the Commission was advised that the parties no longer shared a warehouse complex, and the respondents had in fact obtained an intervention order against the Applicant. The Respondents further argued that they did not meet the definition of ‘worker’ in the context of an anti-harassment order.

The FWC dismissed the application. In finding that there was ‘no reasonable prospects of success’, the Commissioner pointed to the fact that there was no longer any risk of the harassment continuing, considering the intervention orders in place and that the parties no longer working in the same area.

This decision serves as a reminder to businesses and workers, that this particular jurisdiction is designed to be preventative (not punitive), and there must be a risk that harassment will continue for a claim to succeed. Systems, policies and procedures need to be in place to cater for complaints that might be made in this new jurisdiction. Readers can take note of our last alert on this jurisdiction here.

EMA Legal can assist employers with all enquiries related to workplace sexual harassment.

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