‘An apology alone should never be enough’ in sexual harassment cases

A recent decision by the Fair Work Commission in a sexual harassment case has been labelled as “disappointing” by a senior lawyer, who warned that employers may glean that the provision of an apology could be enough to avoid an order to stop sexual harassment.

Recently, Deputy President Alan Colman of the Fair Work Commission dealt with the matter of S.T. - [2024] FWC 2099 (the names of the parties were anonymised by mutual agreement).

On 8 September 2023, an individual made a sexist remark to his female colleague; during the proceedings, the individual showed remorse and admitted that the remark was, in fact, wrong, inappropriate, and unprofessional. However, he claimed that the remark wasn’t solely targeted at that specific colleague.

The colleague who made the application did not question his remorse.

The employer directed the individual to stay away from the applicant and to not involve himself in her work, to which the individual complied. Since October 2023, the applicant has been absent from work. The employer stated that when the applicant returns to work, they will minimise contact between the two as much as possible.

Colman said: “I was not satisfied that there was a risk that the applicant would continue to be sexually harassed.”

Penelope Parker, senior associate of employment issues at Maurice Blackburn, told HR Leader she believes that the decision was yet another disappointing one from the Fair Work Commission in relation to sexual harassment cases.

“It is concerning that the Fair Work Commission has taken the view that providing an apology is enough to satisfy itself that there is no future risk of the conduct occurring in the future. It sends a signal to employers that merely providing an apology will be enough to avoid a stop sexual harassment order,” Parker said.

“Whilst an apology is always an important and worthwhile step for an employer or perpetrator to take, an apology alone should never be enough to convince the commission that there is no future risk of the conduct occurring again. That approach sends a signal that in order to avoid an order, a perpetrator simply needs to apologise.”

Parker expressed that although the applicant resided away from the workplace for a duration, it should not be factored into the decision of the FWC on whether or not the conduct would continue.

“The applicant’s temporary absence from the workplace, in circumstances where they have been subjected to sexual harassment, should not be a factor that weighs against a finding that there is a risk of the conduct happening in the future,” Parker said.

Parker also noted that the long-term effects on the victims of such behaviour cannot be completely dispelled by simply stepping away from the workplace for a duration, once again reinforcing why it shouldn’t be included in the decision.

“Further, we know that victims of sexual harassment often suffer severe psychological injuries as a result of the conduct. Temporary absence from the workplace, in these circumstances, should not be relied on by the commission to make a finding that there is no future risk of the conduct occurring,” Parker said.

The use and suitability of NDAs (non-disclosure agreements) in sexual harassment cases has been front and centre recently, with the Victorian state government having recently commenced a consultation period on proposed new laws to restrict the use of such agreements in such workplace cases.

As previously reported on HR Leader, when victims of workplace sexual harassment, “overwhelmingly women”, are asked to sign non-disclosure agreements, what is being bought is often “their silence”, Victorian Premier Jacinta Allan’s office said in a statement last Monday (12 August).

These NDAs, the state government submitted, are “legally compelling victims to stay silent, even with their family and friends. Sometimes, even their doctor or psychologist.”

“By silencing victim-survivors, NDAs are also being misused to hide serial offending, protect perpetrators and employers’ reputations,” the statement said.