As reported in our previous article, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) is currently before Parliament, and proposes to make a number of (arguably limited) changes to the Fair Work Act and federal sex discrimination legislation.
The Bill was drafted by the Government in response to a number of recommendations in the Respect@Work: National Inquiry into Sexual Harassment in the Workplace 2020 report.
Aside from the proposed changes before Parliament, the Government has also made changes made to the definition of “serious misconduct” in the Fair Work Regulations 2009 which have now become law, as explained more fully below.
What are the Fair Work Regulations?
Most employers are familiar with the Fair Work Act 2009, the main piece of legislation that covers (nearly) all private sector employers in Australia.
The Fair Work Regulations 2009 are an accompanying piece of “secondary” or “subordinate” legislation that provides some extra details to the terms of the main Act. Unlike amendments to the Act, the Government does not have to get changes to the Regulations approved by Parliament, it can change them on its own motion.
What is “Serious Misconduct?”
“Serious misconduct” is defined in Regulation 1.07 of the Fair Work Regulations 2009.
Misconduct of this nature is of the most severe type, and when it occurs it gives an employer the right to dismiss an employee without notice. In other words, it is conduct so bad that it justifies an employer ending employment immediately and the employee losing their right to be provide a notice period (or payment in lieu of notice).
The idea being that the employee has acted so badly that it would be unthinkable for them to continue to work throughout the notice period – they must go immediately.
One point which sometimes confuses employers is that an employee is still entitled to a “procedurally fair” disciplinary process before being dismissed for serious misconduct. Even if an employee appears to have done something completely inappropriate – theft, violence, etc – they still should be given an opportunity to tell their side of the story in a formal disciplinary meeting accompanied by a support person, before a decision is made. Failure to do so may result in a claim for unfair dismissal, regardless of the seriousness of the offence.
How have the Fair Work Regulations been amended?
Until recently, the Fair Work Regulations contained a non-exhaustive list of behaviour which constituted serious misconduct as follows:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
To this list, there has now been added “sexual harassment” engaged by an employee in the course of their employment (at Regulation 1.07(3)(a)(iv)).
The definition of sexual harassment cross-refers to the definition in section 28A of the Sex Discrimination Act 1984 (Cth) (which includes, but is not limited to, “unwanted conduct of a sexual nature”.)
The amendments to the Fair Work Regulations thus make clear that someone found to have committed sexual harassment at work can be dismissed for serious misconduct. Although it would have usually been possible to categorise such behaviour as serious misconduct under a number of a different headings in the serious misconduct definition (behaviour inconsistent with the continuation of employment, risk to health and safety, etc) these new changes put beyond doubt that sexual harassment can be deemed to be serious misconduct.
In our view, these are welcome changes.
Updates to employment contracts and workplace policies
Employers should consider whether they need to update their employment contracts as a result of these changes. Many employment contracts refer to examples of serious misconduct that are capable of giving the employer grounds to terminate without notice and it may be prudent to include sexual harassment in this list if it does not already appear there.
Template employment contracts available to Employment Innovations’ clients with HR subscriptions, are of course being updated.
A workplace policy dealing with sexual harassment is one of the most important policies for an employer to have in place. Primarily it is a useful method to communicate to employees matters such as:
- the sort of conduct that constitutes sexual harassment
- that this conduct will not be tolerated in the workplace
- how employees can report any such conduct that occurs
- the support that will be offered to victims of sexual harassment
It is also necessary to have such a policy in place for an employer to seek to avoid liability for any sexual harassment that occurs in its workplace. Employers will be liable for the actions of an employee who engages in sexual harassment, unless they can show that they took all reasonable steps they could to prevent this from occurring.
One important step in doing so is having a clear sexual harassment policy which is communicated to all employees, and ideally that they are given regular training on. Of course, combatting sexual harassment goes much further than workplace policies and needs to be embedded in workplace culture and led from the management of the organisation down, but a robust workplace policy is an important first step.
Template sexual harassment policies are available to all clients of Employment Innovations with a HR subscription and the lawyers at EI Legal regularly provide training to businesses on this area of the law. Please do not hesitate to contact us if you require any assistance in this area.
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The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.