Sexual Harassment in the Workplace: Employer Obligations in Australia

What Counts As Sexual Harassment In The Workplace?

In Australia, sexual harassment is generally understood as unwelcome conduct of a sexual nature in circumstances where a reasonable person would anticipate the possibility that the person harassed would feel offended, humiliated or intimidated.

It’s important to remember that sexual harassment isn’t limited to physical behaviour. It can be words, messages, images, “jokes”, repeated requests, or other conduct. It also doesn’t have to be repeated - a single incident can be enough.

Common Examples You Might See In A Small Business

Some common workplace examples include:

• Unwelcome touching, hugging, kissing, or “accidental” contact
• Sexual comments about a person’s body, appearance, sex life, or relationships
• Suggestive jokes, banter or “nicknames” with sexual undertones
• Repeatedly asking someone out after they’ve said no
• Sexually explicit emails, texts, memes or social media messages
• Displaying sexual images (including on screens, posters, or in group chats)
• Workplace gossip about someone’s sex life or sexual reputation

In small teams, issues often arise in informal settings - for example after-work drinks, team chats, travel for work, conferences, or direct messages between colleagues. Even if it’s “after hours”, it can still be connected to work and create legal risk.

“But They Didn’t Mean It” Doesn’t Automatically Make It Okay

Intent isn’t the only factor. What matters is whether the conduct was unwelcome and whether a reasonable person would anticipate it could offend, humiliate or intimidate.

This is why clear expectations, training and prompt action matter - especially in workplaces where people are friendly, casual and close-knit.

What Are Your Legal Obligations As A Small Business Employer?

If you employ staff, you have legal obligations to provide a workplace that is safe - including psychologically safe. In practice, that means you need to take reasonable steps to prevent sexual harassment and respond appropriately if it occurs.

Importantly, Australian employers also have a proactive obligation under federal law to help eliminate sexual harassment (and related unlawful conduct) as far as possible. This is often referred to as the “positive duty” and it requires employers to take active, ongoing steps to prevent harm - not just react once a complaint is made.

Depending on the situation, sexual harassment can trigger multiple areas of law and regulator involvement, including:

• Anti-discrimination law (federal and state/territory) - including the Sex Discrimination Act 1984 (Cth) and the employer positive duty to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and related conduct as far as possible
• Fair Work risks - the Fair Work Act 2009 (Cth) includes a workplace prohibition on sexual harassment, and the Fair Work Commission can make stop sexual harassment orders; in some situations there may also be disputes, adverse action, or unfair dismissal risks depending on how the matter is handled
• Work health and safety (WHS) duties (psychosocial hazards and risks) - regulators expect businesses to identify, manage and review psychosocial risks, which can include risks of sexual harassment
• Vicarious liability risks (you may be held responsible for conduct of employees/agents unless you took reasonable preventative steps)

From a practical perspective, small businesses get into trouble when they:

• Have no policy or reporting pathway
• Rely on “common sense” instead of clear expectations
• Delay action because they don’t want conflict
• Run an informal “investigation” that isn’t fair or well-documented
• Allow gossip, retaliation or victimisation after a complaint is made

If you’re unsure how your employment documents and processes should be set up, it’s often worth getting tailored advice early from an Employment Lawyer so you can build a compliant process that fits your size and industry.

How Do You Prevent Sexual Harassment (Without Needing A Big HR Team)?

Prevention is where small businesses can make the biggest difference. The goal is to create clear standards and a simple, trusted reporting process - so issues are less likely to occur, and if they do, they’re raised early.

1. Set Clear Behaviour Standards From Day One

Culture isn’t a poster on the wall - it’s what you tolerate, ignore, and reward. In a small business, leaders (including directors and managers) set the tone quickly.

Make it clear that:

• Sexual harassment isn’t tolerated (even if the person “meant it as a joke”)
• Work chats and DMs are part of the workplace
• After-hours conduct at work events still matters
• Complaints will be taken seriously and handled fairly

2. Use Practical Policies People Will Actually Read

Policies are only useful if they’re understood and applied consistently. For most small businesses, a short, plain-English set of workplace policies is better than a 60-page document no one opens.

A good baseline is a Workplace Policy (or a small suite of policies) that covers:

• What sexual harassment is (with examples relevant to your workplace)
• Expected behaviour at work events and in online communication
• How to raise a complaint (including informal and formal options)
• Confidentiality expectations
• How investigations are run
• Support available (for example, a support person)
• Consequences for breaches

Many businesses roll this into a single Staff Handbook so your team has one clear place to find workplace rules and processes.

3. Train Your Team (And Your Managers) In A Simple, Repeatable Way

Training doesn’t need to be complex to be effective. What matters is that it’s regular, documented, and covers real scenarios.

At a minimum, consider training on:

• What is (and isn’t) appropriate workplace behaviour
• How to speak up early (before problems escalate)
• Manager responsibilities: receiving complaints, confidentiality, and avoiding retaliation
• How online conduct and messaging can breach workplace expectations

Tip: Keep a record of attendance and what was covered. If you ever need to show you took “reasonable steps” to prevent harassment, evidence matters.

4. Review Your Hiring And Onboarding Process

Onboarding is your best opportunity to set expectations. Even if you’re hiring casually or fast, you should still be issuing clear employment documents and making your policies accessible.

A properly drafted Employment Contract can help reinforce behavioural standards, expected conduct, and your disciplinary framework (while still being tailored to your role type and industry).

What Should You Do If A Sexual Harassment Complaint Is Raised?

If someone raises an issue - even informally - how you respond in the first 24-72 hours matters. Your goals are to keep people safe, stop any alleged behaviour continuing, and follow a fair process.

Step 1: Take It Seriously And Stay Neutral

Start by listening without jumping to conclusions. Avoid comments like “Are you sure?” or “That doesn’t sound like them.” Even if you have a good relationship with the alleged harasser, you need to treat the concern seriously.

Thank the person for coming forward, and let them know you’ll consider next steps promptly.

Step 2: Check Immediate Safety And Support Needs

Consider whether any immediate action is needed to reduce risk while you work out what happened, such as:

• Separating work locations or shifts
• Changing reporting lines
• Adjusting duties temporarily
• Offering a support person for meetings

If the situation is serious, you may need to consider suspension or other interim measures - but this is a high-risk area if done incorrectly. Getting advice before acting is often the safest approach.

Step 3: Clarify What Outcome The Person Wants

Not every complaint starts with “I want a formal investigation.” Some people want the behaviour to stop, an apology, or a mediated conversation.

Where appropriate, you may be able to resolve issues informally. But if allegations are serious (or if informal steps are not appropriate), you’ll likely need a formal process.

Step 4: Keep Confidentiality Tight (And Prevent Retaliation)

In small businesses, confidentiality is hard - but it’s critical. Loose talk can cause:

• Further harm to the person raising the issue
• Defamation risks
• Claims of victimisation
• A compromised investigation

Remind everyone involved (including witnesses) that they must not discuss the matter broadly.

Step 5: Document Everything

Good records protect everyone. Keep notes of:

• What was reported (dates, times, locations, what was said/done)
• Steps you took immediately
• Who you spoke to and when
• Any interim safety measures
• The outcome and reasons

How Do You Run A Fair Investigation And Decide What To Do Next?

Investigations can feel daunting, especially if you’ve never run one before. But the basics are consistent: be fair, be timely, keep good records, and focus on evidence.

When Should You Investigate Formally?

A formal investigation is often appropriate where:

• The allegation is serious (for example, physical conduct, threats, coercion, or repeated behaviour)
• There’s a power imbalance (for example, manager to junior staff member)
• The complaint can’t be resolved informally
• There’s disagreement about what occurred
• You may need to take disciplinary action

Key Principles For A “Procedurally Fair” Process

Even in a small business, you should aim for a process that is fair to both sides. That usually includes:

• Clearly explaining the allegations to the respondent (the person accused)
• Giving them a real chance to respond before any findings are made
• Considering evidence such as messages, CCTV (where lawful), emails, and witness accounts
• Avoiding bias - don’t pre-decide the outcome
• Keeping timelines reasonable and not letting the issue drift

Depending on the circumstances, you might use an external investigator, particularly if:

• You’re too close to the people involved (common in family businesses)
• The allegation is against an owner/manager
• You need independence to protect credibility

Possible Outcomes And Next Steps

If the complaint is substantiated (or partly substantiated), outcomes may include:

• Formal warning
• Mandatory training or coaching
• Role changes or reporting line changes
• Termination of employment (where appropriate and managed carefully)

If the complaint isn’t substantiated, that doesn’t automatically mean “nothing happened” - it may mean there wasn’t enough evidence to make a finding. You may still need to address workplace behaviour, team dynamics, and ongoing support to prevent further issues.

Whichever way it goes, your documentation and process will matter. This is one area where tailored legal support can help you manage risk while still acting decisively.

What Documents And Systems Help Protect Your Business?

Most small businesses don’t need “corporate-level” HR infrastructure. But you do need a minimum set of documents and systems so everyone knows what the rules are and how problems are handled.

Key Documents To Consider

• Employment Contract: your baseline document setting expectations, duties, and disciplinary pathways. A tailored Employment Contract is a strong foundation.
• Workplace Policy: outlines expected conduct (including sexual harassment), reporting pathways, and investigation processes. A clear Workplace Policy helps you act consistently.
• Staff Handbook: a practical way to centralise key rules and procedures so staff can find them easily, such as a Staff Handbook.
• Complaints Procedure: this can sit within your handbook/policies, but should clearly set out informal vs formal pathways, confidentiality expectations, and timeframes.
• Manager Guides And Templates: simple templates for taking notes, confirming complaints in writing, and outcome letters reduce inconsistency and stress when something happens.

Simple Systems That Make A Big Difference

Alongside documents, practical systems help you prevent and manage sexual harassment risks:

• A clear reporting channel (for example, a dedicated email address or two contact options to avoid “you must report to your direct manager” problems)
• Regular check-ins (issues often come out in 1:1s before they become formal complaints)
• Training refreshers (especially after promotions, new hires, or incidents)
• Consistent enforcement (exceptions for “top performers” can create major risk and cultural damage)

And if your business is growing, it can help to review your documents periodically so they keep pace with your team size, structure and working arrangements.

Key Takeaways

• Sexual harassment is unwelcome conduct of a sexual nature and can include comments, messages, images, “jokes”, repeated requests, or physical behaviour.
• Small businesses can face serious legal and cultural risk if they don’t take reasonable steps to prevent and address workplace sexual harassment - and federally, employers also have a positive duty to take proactive steps to help eliminate sexual harassment as far as possible.
• Prevention is practical: clear expectations, training, and easy reporting pathways often stop issues escalating.
• If a complaint is raised, act quickly, stay neutral, protect confidentiality, and document every step.
• A fair process matters - including giving the respondent a chance to respond and making evidence-based findings.
• Solid employment documents and workplace policies help you respond consistently and reduce risk as your team grows.

Note: This article is general information only and doesn’t constitute legal advice. If you need advice about your specific circumstances, it’s best to speak with an employment lawyer.

If you’d like help putting the right documents and processes in place (or managing a sexual harassment issue that’s already arisen), you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.