Sexual harassment at work: what it is and what you can do

What counts as sexual harassment

Under s 28A of the Sex Discrimination Act 1984 (Cth), sexual harassment is an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. The Fair Work Act 2009 (Cth) uses the same definition.

The two halves of the test work differently. Whether the conduct was unwelcome is judged from the point of view of the person who received it, not the intention of the person who did it. Whether offence, humiliation or intimidation was a possibility is judged objectively, taking into account things like the person's sex, age and any power imbalance between them.

It can be done by a manager, a co-worker, a client or a customer, and to someone of the same or the opposite sex. A single incident can be enough. Examples include comments about a person's appearance or sex life, sexual jokes, messages or images (including after hours and on social media), unnecessary touching, requests for sexual favours, offers of rewards for sex, intrusive questions at a job interview, and sexually explicit material on display. Sexual assault is also a crime and can be reported to police.

The narrower WA test

Under s 24 of the Equal Opportunity Act 1984 (WA), unwelcome sexual conduct is not enough on its own. The person must also have had reasonable grounds to believe that rejecting or objecting to it would disadvantage them at work, or must actually have been disadvantaged at work because they rejected or objected to it.

That extra element is why the choice of forum matters. A worker who can prove the conduct but not that disadvantage may do better under the federal law.

Where you can take a complaint

A worker in Western Australia can usually choose one of these: the Fair Work Commission under Part 3-5A of the Fair Work Act (since 6 March 2023), which can make an order to stop the harassment and deal with a claim for compensation; the Australian Human Rights Commission under the Sex Discrimination Act, with a path to the federal courts if conciliation fails; the WA Equal Opportunity Commission, where damages at the State Administrative Tribunal are capped at $40,000; or, for workers in the WA state system, the WAIRC (since 31 January 2025).

Time limits differ: 12 months for the Equal Opportunity Commission (later with good cause), and a discretion to end or dismiss a claim brought more than 24 months after the conduct in the other three. In most cases a complaint in one forum stops you running the same allegation in another, so get advice before lodging anything. Our sexual harassment guide sets out each route.

Damages have risen

In Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, a consulting manager was sexually harassed by a co-worker. The trial judge awarded her $18,000 in general damages, which was within the range of $12,000 to $20,000 that courts had applied for years, and refused her claim for economic loss. On 15 July 2014 the Full Federal Court held that $18,000 was 'manifestly inadequate' and out of step with community standards. It substituted $100,000 in general damages, found that her resignation and move to another employer were caused by the harassment, and entered judgment against Oracle for $130,000. Oracle was liable for its employee's conduct under s 106 of the Sex Discrimination Act.

The next year, in Collins v Smith (Human Rights) [2015] VCAT 1029, the Victorian Civil and Administrative Tribunal found that the owner and manager of a local post office had sexually harassed an employee between January and April 2013. In a later decision, Collins v Smith (Human Rights) [2015] VCAT 1992, it ordered him to pay her $332,280 in compensation, including $180,000 in general damages, citing Richardson among other cases.

Both cases turned on serious conduct and real harm to the worker's health and career. But they ended the idea that sexual harassment claims carry only modest damages.

What employers must do

An employer is liable for sexual harassment by its employees in connection with their work unless it proves it took all reasonable steps to prevent it (s 106 of the Sex Discrimination Act, s 527E of the Fair Work Act). A policy that sits in a drawer is rarely enough.

Since December 2022 employers also have a positive duty under s 47C of the Sex Discrimination Act to take reasonable and proportionate measures to eliminate sexual harassment as far as possible, rather than waiting for a complaint. In practice that means a clear policy, training that is actually delivered, a complaints process people trust, and prompt, fair action when harassment is reported. See the positive duty.

If you have been sexually harassed, write down what happened while it is fresh, keep messages and images, and consider getting advice early. If you have been dismissed or pushed to resign after complaining, a general protections or unfair dismissal claim must be lodged with the Fair Work Commission within 21 days (an unfair dismissal claim in the WA state system goes to the WAIRC within 28 days).