Humor is a powerful tool that can help break the ice, ease tension and bring people together. However, when it comes to jokes or comments of a sexual nature made in the workplace, there’s no laughing matter.
Such behavior can constitute sexual harassment and create a toxic work environment that makes employees feel uncomfortable, unsafe and disrespectful. In this article, we will explore whether comments made under the guise of humor should be considered as sexual harassment based on a recent case decided by the Fair Work Commission. We’ll also look at other legal issues HR needs to consider and to ensure they maintain a safe place of work free from (or at least the minimization of) psychosocial risks and hazards related to inappropriate conduct in any form.
What is Sexual Harassment?
Sexual harassment is a form of workplace discrimination that involves unwelcome behavior or conduct of a sexual nature. It can take many forms, including physical touching, suggestive comments or jokes, displays of sexually explicit images or videos, and unwanted advances. The key elements in determining whether behavior constitutes sexual harassment is whether:
- it is unwelcome conduct
- sexual in nature
- that a reasonable person would be offended, humiliated and/or intimidated
In Australia, sexual harassment is unlawful under both federal and state laws. Employers have a legal obligation to provide their employees with a safe place of work free from any form of sexual harassment. This includes taking proactive measures to prevent and address incidents of sexual harassment in the workplace. The new changes in Psychosocial Risks and Hazards under Workplace Health and Safety in most jurisdictions in Australia require a positive obligation to do so.
Power v Lyndons Pty Ltd T/A Lyndons  FWC 1060 (5 May 2023)
The case of Power v Lyndons Pty Ltd T/A Lyndons  FWC 1060 (5 May 2023) is a recent decision by the Fair Work Commission that serves as an important reminder to employers about their responsibilities when it comes to sexual harassment in the workplace.
In this case, the employee involved had made inappropriate comments under the guise of humor and joking around. However, these comments were found to be disrespectful and intolerable.
- “I will f-ck you up the arse”
- “suck my dick”
- “come on then, get under the table, suck me off”
This behavior led to an employee resigning and a subsequent complaint about the comments.
Another employee confirmed that these types of comments were made regularly coupled with aggressive behavior.
The Applicant was dismissed for serious misconduct involving his engagement in bullying and sexual harassment. The Applicant afterward filed an unfair dismissal claim, reasoning three fold:
- The dismissal was in relation to a complaint about an incident with his manager and he was unfairly targeted
- The Applicant denied making the comments
- Even if he did make the comments dismissal was so disproportionate because this type of swearing, humor and banter was common and normally tolerated in the company.
The Fair Work Commission was found in favor of the Employer and dismissed the unfair dismissal application.
The Commission concluded:
- there was no credible link between the complaint about his manager and his conduct towards fellow employees
- The comments were made and “went far beyond simply swearing” and was sexual harassment
- it was clear from the evidence, the comments were unwelcome, were of a sexual nature and created an unsafe workplace to the extent that an employee resigned over these issues
- There was a proportion to the sacking because once there was a conclusion about the comments made then it was egregious that it could not be ignored
- To make matters even worse there was evidence that the Applicant tried to pressure a witness not to provide evidence of what she had heard him say
This decision highlights how crucial it is for employers to take proactive steps towards preventing and mitigating sexual harassment in their workplaces. It also emphasizes how inappropriate jokes or comments even if disguised as humor can lead to significant consequences, including unfair dismissal claims and disproportionate compensation awards against companies who failed to act on these issues efficiently.
What other legal issues HR and People and Culture need to consider?
Apart from sexual harassment claims, HR and People and Culture teams need to consider several other legal issues that may arise in the workplace. For example, when an employee makes inappropriate comments or jokes about someone’s gender or ethnicity, it could potentially lead to a discrimination claim.
Similarly, if an employer fails to provide a safe working environment for its employees and they suffer physical or psychological harm as a result of their work conditions, it could give rise to a breach of the new health and safety laws.
Workers compensation claims are another issue to consider as well as a claim by those who have suffered from sexual harassment including a grievance or complaint being made or a “forced resignation” which may lead to an unfair dismissal or general protections claim.
3 Lessons for Human Resources and People and Culture
As an employer, there is an obligation to provide a safe and healthy workplace for all employees. Sexual harassment can have serious consequences, not just for the victim, but also for the organization as a whole. The case of Power v Lyndons Pty Ltd T/A Lyndons  FWC 1060 (5 May 2023) highlights the importance of taking appropriate measures to prevent and minimize the risk of sexual harassment in the workplace.
Here are three lessons that HR can take away from this case:
1. Develop clear policies: Employers must develop clear policies on acceptable behavior in the workplace and communicate them effectively to all staff members. It should be made clear that any form of sexual harassment will not be tolerated.
2. Management Training and employee training programs: Training programs should be provided to educate employees about what constitutes sexual harassment, how to report incidents, and what actions will be taken if such incidents occur. Training should also be rolled out for management teams to provide a baseline of capability to identify and deal with sexual harassment in the workplace (even if it’s under the guise of jokes and humour).
3. Take immediate action: It is important for employers to take swift action when any reports or complaints regarding inappropriate behavior are received. Failure to do so could result in legal action being taken against the company. Show cause letters, stand downs, workplace investigations and obtaining legal advice are just a few steps to take.
Give NB Employment Law a call, we offer an obligation-free consultation and are happy to help. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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NB Employment Law
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About the Author
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem of mitigating risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
+61 (07) 3876 5111