Public Sector Informant: APS is not immune to workplace sexual harassment scourge

With reform to Australia's workplace sexual harassment framework currently before Parliament, now seems an apt time to revisit this topic. We hope that it will be helpful to sketch the legal framework that contains a range of options if a public servant is sexually harassed in the workplace.

The starting point is the APS Code of Conduct, contained in the Public Service Act. Section 13(3) provides that "an APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment". While this provision is limited in its application to "in connection with APS employment", another part of the Code - s 13(11) - is more expansive. It provides that APS employees "must at all times behave in a way that upholds" the APS values, APS employment principles and the "integrity and good reputation of the APS". Among the legislated APS values are "ethical" and "respectful". Suffice to say that sexually harassing someone is neither ethical nor respectful.

All of which means that a public servant who has been sexually harassed can make a Code of Conduct complaint. Such complaints set off investigative processes which typically culminate in a finding of fact (did the harassment occur?), a finding of breach (was the conduct contrary to the Code?) and, if the first two questions are answered affirmatively, a recommended sanction for the delegate to consider.

As the Code makes clear, its application is not confined to the physical workplace. Work-related sexual harassment commonly occurs out of hours - at social gatherings, during work travel and so on. In an important case in the mid-1990s, McManus v Scott-Charlton, the Federal Court confirmed that the public service could regulate its staff out of hours in appropriate circumstances. Mr McManus had pursued a romantic interest in his colleague, Ms Bond, on a number of occasions. This included an answering machine message, where he said: "I've always sort of fancied you so I thought I might as well tell you that ... um if you're ever free I wouldn't mind marrying you."

McManus's conduct caused distress for Bond, who raised concerns with her superiors. Ultimately, their agency, AusAID, directed McManus not to have any contact with Bond "outside the requirements of official duty". Disciplinary action was subsequently taken against McManus, who then challenged the legality of AusAID's direction, given it sought to apply to him out of hours.

Justice Finn rejected this claim. He noted: "I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee ... Nonetheless I am prepared to conclude that circumstances may exist which would justify an employer direction proscribing the private sexual harassment of an employee by a co-employee." It has been accepted ever since that APS agencies have both the authority, and responsibility, to prevent sexual harassment among public servants, whether it occurs in the office or elsewhere.

While the Code might be the usual starting point, it is by no means the only option available to a public servant who is sexually harassed. The Sex Discrimination Act prohibits workplace sexual harassment and makes employers vicariously liable for harassment, unless they can show they took reasonable steps to prevent it. These provisions apply to the APS. Accordingly, if a public servant suffered sexual harassment, they can bring a complaint under the SDA. These complaints are initially conciliated by the Australian Human Rights Commission. If that process does not lead to a satisfactory outcome, the target of the conduct can commence proceedings, against the harasser and/or the agency, in the Federal Court or Federal Circuit Court.

In recent years, damages for non-economic loss in sexual harassment proceedings - in other words, the pain, humiliation and distress occasioned by the harassment - have risen significantly. This trend was sparked by the landmark 2014 case of Richardson, where the plaintiff was awarded $100,000 on appeal. However, SDA litigation is an adverse costs jurisdiction - unlike the Fair Work Act, where parties bear their own legal fees (other than in exceptional circumstances), the usual rule under the SDA is that costs follow the event.

That means that, if someone suing for sexual harassment loses, they can face considerable financial risk (indeed, this was the prompt for Ms Richardson to appeal - although she won at first instance, she had been ordered to pay her ex-employer's costs, because she had rejected a settlement offer. The judge observed that this would "be a very high price to pay for her victory".) The risk is often a major concern for prospective claimants. Sex Discrimination Commissioner Kate Jenkins' landmark Respect@Work report recommended that costs protections be introduced in SDA litigation, but the Morrison government did not heed this recommendation.

However, another Jenkins' recommendation has been accepted, with the relevant amending legislation currently before parliament. The Fair Work Commission's existing anti-bullying regime is being expanded to include sexual harassment - which will provide another redress avenue for public servants who experience harassment. Subject to the amendment becoming law, employees who are repeatedly sexually harassed at work - where the employer is failing to take adequate steps to respond - can seek a "stop harassment order" from the commission. While we have previously expressed concerns about the efficacy of this scheme, in the bullying context, the scheme's expansion does increase strategic choice for targets of this misconduct.

There is no place for sexual harassment in our workplaces. It is wrong, unlawful and unacceptable. Yet it continues to occur. Addressing these issues will require concerted effort from our governments, our agencies and all of us. Public servants who are harassed at work should know that they have a range of legal options available to them.