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Responding to a sexual harassment application or referral

Workplace sexual harassment occurs when an individual or group of individuals: 

  • makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to a person who is a worker or seeking to become a worker; or

  • engages in other unwelcome conduct of a sexual nature in relation to a person who is a worker or seeking to become a worker (including publishing a statement of a sexual nature about the person on the internet or any other form of communication, or making a statement of a sexual nature about the person to, or in the presence of, the person or another person, whether by visual, oral, written, or electronic communication); and

  • in circumstances a reasonable person would have anticipated the possibility that the person would be offended, humiliated or intimidated. 

 

Examples of workplace sexual harassment include:

  • staring or leering;
  • sharing sexual images, emails or text messages;
  • making sexually suggestive comments or jokes;
  • repeated requests for dates or sex;
  • asking personal questions about a person's sex life or body; and
  • unwelcome touching, hugging or kissing.

 

A person is a worker if they carry out work in any capacity for a person conducting a business or undertaking, including work as any of the following:

  • an employee
  • a contractor or subcontractor
  • an employee of a contractor or subcontractor
  • an employee of a labour hire agency who has been assigned to work in the person's business or undertaking
  • an outworker
  • an apprentice or trainee
  • a student gaining work experience
  • a volunteer
  • a person of a prescribed class
  • a person conducting a business or undertaking if they are carrying out work in that business or undertaking.

 

A person must not sexually harass another person in connection with the other person being a worker or seeking to become a worker in a particular business or undertaking. This prohibition includes sexual harassment perpetrated by third parties such as clients or customers of a business.

 

An application for a stop sexual harassment order and/or a sexual harassment referral can be made when a person has been sexually harassed in connection with work and is seeking the Commission’s assistance. This includes where a person is seeking that the Commission make an order to stop further sexual harassment in connection with work and/or that the Commission make an order for the payment of money, a declaration or other orders as appropriate to remedy the sexual harassment. The Commission cannot make an order for compensation in applications for a stop sexual harassment order only.

 

A person who employs an employee or engages another person as an agent (a principal) may also be held responsible for the actions of their employee or agent who, in connection with their work, sexually harasses a person, as if the principal had also sexually harassed the person. This is known as vicarious liability. A principal will not be held responsible if the principal proves they took all reasonable steps to prevent their employees and/or agents from sexually harassing other people. An example of an employer taking all reasonable steps may be found if the employer has implemented policies addressing sexual harassment in the workplace and enforces those policies, and provides regular training to staff regarding their obligations under the law.

 

If a worker has filed a sexual harassment dispute application in the Commission, you will be served with the application by the Registry and you will have an opportunity to contest the application by filing a response. 

 

Critical Information

  • Failing to submit a response will not prevent the Commission from enquiring into and dealing with the application, but it might prevent the Commission from taking your viewpoint into account when it does.
  • Even if you choose not to be involved, a decision might be made against you.

Please refer to the Commission's Fact Sheets for further guidance on proceedings at the Commission.

 

A ‘constitutionally-covered business’ means a national system employer. There are two systems of employment law in Western Australia: the state industrial relations system and the national industrial relations system. A national system employer includes a Pty Ltd business that is a trading or financial corporation; an incorporated partnership or trust arrangement (where at least one partner or trustee is a Pty Ltd business); a foreign corporation; and, an incorporated association that engages in significant or substantial trading or financial activities.

 

Helpful quicklinks

Fact sheets

Applications and forms

Coverage and jurisdiction

Step-by-step guidance on the sexual harassment process

Lodging a response

To file a response, you must submit your response within 7 days of being served with the application.

in the Registry of the Commission in person, by online lodgment, by email or by post within 7 days of service of the application.

Filing a response gives you an opportunity to provide your reasons for opposing the application. For instance, if you believe that the application does not fall within the Commission's jurisdiction, you may contest the application on jurisdictional grounds.

You are not required to have a representative and can represent yourself. For information on representation and representing yourself, please click here.

What happens next?

  • After you have filed your response, the Commission’s Registry will provide a copy to the applicant and a copy to you for your records.
  • The matter will be allocated to a Commissioner, you will be contacted by the Commission and the matter will be listed for a conciliation conference.

 

 

What is a conciliation conference?

In the context of the Commission, a conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

Conciliation conferences are private and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be used against one of the parties if the matter goes to hearing. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim. The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited. An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

For more information please see the Commission’s conciliation conference video by clicking here.

Possible outcomes of conciliation

  • An agreement may be reached during or after the conference.
  • If an agreement is not reached, the Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a hearing?

A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a room that is similar to a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings.

 

Interlocutory or preliminary hearings

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) matters may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents.

Some examples of preliminary issues include:

  • whether the Commission has jurisdiction to deal with the application;
  • whether the employee is under the salary cap; or
  • whether the Commission can accept an application that was made out of time.

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.

A Directions hearing is similar to a preliminary hearing. It is where the Commission will set out how the matter will progress. This can include setting out a timeline for when things ought to occur such as discovery, or when things are to be filed with the Commission, such as outlines of submissions or witness statements.

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute.

 

For more information please read the Commission’s hearing fact sheet by clicking here.

For information on evidence, please read the Commission’s evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission’s representation fact sheet by clicking here.

Possible outcomes of a hearing

The Commissioner who hears the evidence and arguments might make a decision about the claim:

  • at the hearing, after all evidence and arguments are presented; or
  • after the hearing, by “reserving” the decision.

If the Commissioner “reserves” the decision, this means the Commissioner needs time to review everything that has been presented and consider the issues before making any orders or giving a decision.   

 

If the claim is unsuccessful, the Commission will usually dismiss the claim. 

If the claim is successful, the Commission has the power to make a stop sexual harassment order in applications where such an order is sought. The Commission can only make this order if there is a risk that the person will continue to be sexually harassed in connection with work by the particular individual or group. Where either the individual(s) or person are no longer involved at the workplace where the alleged sexual harassment occurred, and in other circumstances where there is no risk of the sexual harassment continuing, a stop sexual harassment order cannot be made. The Commission does not have the power to award compensation in applications for a stop sexual harassment order only.

If the applicant made a sexual harassment referral to the Commission, the Commission may order what they consider to be appropriate in the circumstances, including:

  • an order for compensation for loss or injury
  • an order for an amount for remuneration lost
  • an order requiring a person to do a specified thing or cease a specified activity to redress loss or injury suffered
  • an order for the purpose of preventing any future sexual harassment

There does not have to be a risk of future sexual harassment for orders to be made in these sexual harassment referrals.

The Commission’s orders are binding and enforceable. If anyone does not comply with the Commission’s orders, an enforcement application can be made to the Industrial Magistrates Court. That Court can make orders for penalties.