When is a worker sexually harassed at work?

A worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker.

‘Sexually harass’ has the same meaning given by s.28A of the Sex Discrimination Act[66]. Section 28A provides that a person sexually harasses another person if:

• they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
• they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The legal test for sexual harassment requires that the conduct must be:

1. either a sexual advance or a request for sexual favours to the person harassed or other conduct of a sexual nature in relation to the person harassed
2. unwelcome
3. such that a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person who was harassed would be offended, humiliated and/or intimidated.

Each of these elements will be examined further below.

The person who engages in sexual harassment need not be a worker and could (for example) be a customer or client of the employer or principal, a supplier of the employer or business or a visitor to the place of work of the worker.

Whether there has been a sexual advance, a request for sexual favours directed to the person harassed or other conduct of a sexual nature in relation to the person harassed is a question of fact.[67]

‘Conduct of a sexual nature’ in s.28A of the Sex Discrimination Act has been interpreted broadly.  It includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.[68]

It is clear that the concept ‘other conduct of a sexual nature in relation to the person harassed’ is wider than conduct specifically directed at the applicant, given it includes making a statement of a sexual nature in the presence of a person. However, this expression is not so broad as to encompass all unwelcome conduct of a sexual nature in relation to persons other than the applicant. The conduct must be shown to be, in some way, connected to the applicant. The question of whether particular conduct of a sexual nature is in relation to an applicant will depend on the circumstances, which may include whether a hostile or demeaning atmosphere has become a feature of the workplace environment.[69] In other contexts, conduct has been held to be ‘in relation to’ a person if there is a real connection to the person, rather than one that is insignificant, or remote and merely incidental.[70]

Examples of conduct of which may constitute a sexual advance, a request for sexual favours or other conduct of a sexual nature include:

• sexually suggestive comments or jokes;
• intrusive questions about private life or physical appearance;
• unwanted invitations to go on dates, or requests or pressure for sex;
• unwanted written declarations of love;
• sending sexually explicit or suggestive pictures or gifts to a worker, or displaying sexually explicit or suggestive pictures, posters, screensavers or objects in the work environment;
• intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, or following, watching or loitering;
• inappropriate physical contact, such as deliberately brushing up against a person, or unwelcome touching, hugging, cornering or kissing; 
• behaviours that may be offences under criminal laws, such as actual or attempted rape or sexual assault, indecent exposure or stalking;
• sexually explicit or suggestive emails, SMS or social media (including the use of emojis with sexual connotations), indecent phone calls, circulating pornography or other sexually graphic imagery, unwelcome sexual advances online, or sharing or threatening to share intimate images or film without consent.[71]

The intention of the alleged harasser is not relevant.[72] An advance, request or other conduct may be sexual in nature even if the person engaging in the conduct has no sexual interest in the person towards whom it is directed,[73] or is not aware that they are acting in a sexual way. [74] Sexual harassment is unlawful regardless of the sex, sexual orientation or gender identity of the parties.[75]

Some conduct, which may not amount to sexual harassment on its own, may fall within the definition if it forms part of a broader pattern of inappropriate sexual conduct. For example, the flicking of elastic bands at a person has been found to be conduct of a sexual nature in the context of a broader pattern of sexual conduct.[76]

The advance, request or other conduct must be both of a sexual nature and unwelcome to be sexual harassment.

The question of whether an identified form of conduct is unwelcome is a subjective one. It turns only on the attitude of the recipient of that conduct.[77]  The intention of the person responsible for the conduct is not relevant.

Unwelcome conduct has been described as being:

• conduct that is not solicited or invited, which the recipient regards as undesirable or offensive[78];
• conduct that is disagreeable to the person to whom it is directed.[79]

To find that conduct is unwelcome, it is not necessary for the person experiencing sexual harassment to have explicitly addressed the behaviour or informed their harasser that their conduct is unwelcome.[81] There are many reasons why a person who has been sexually harassed may not tell their harasser that the conduct is unwelcome. These reasons include a power imbalance, youth and inexperience and fear of reprisals

The final element of the test for sexual harassment is that a reasonable person in the circumstances, having regard to those circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The ‘reasonable person’ is assumed to have some knowledge of the personal qualities of the person harassed[81]. Section 28A(1A) of the Sex Discrimination Act requires that the circumstances to be taken into account include:

• the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
• the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
• any disability of the person harassed;
• any other relevant circumstance.

The reasonable person test is an objective test[82].  It is not concerned with the motives or reasons of the person who engaged in the sexual harassment, or what they actually anticipated. Excuses such as ‘it was joke’, ‘I didn’t mean anything by it’, ‘it was harmless fun’, or ‘it was done while under the influence of alcohol’, are misplaced.[83]

A single incident can constitute sexual harassment[84]. This is different to the Commission’s jurisdiction to deal with bullying, which can only be accessed where the bullying behaviour is repeated[85].  Whether a single incident will constitute sexual harassment depends on the ‘nature or quality of the action or statement.’[86]

Note:  Sexual harassment can take many forms, including allegations against a number of parties; serious criminal offences; and complaints of both sexual harassment and other bullying behaviours.

The following examples include cases about sexual harassment in other legal contexts; primarily under state and federal discrimination laws. Unlike these cases, an award of damages is not available in the Commission, as the Fair Work Act does not allow the Commission to order payment of compensation if it makes a finding of sexual harassment.

WHS regulators can also assess and investigate complaints of workplace sexual harassment in accordance with their individual compliance and prosecution policies, which may take into account issues such as the immediate risk to health and safety, possible breaches of WHS legislation, evidence, likelihood of success and whether prosecution would be in the public interest. Jurisdictions that use alternative dispute resolution practices may not keep or publish records of the outcomes in these matters.

It is not necessary for a worker to establish a risk to health and safety when seeking an order to stop sexual harassment, as sexual harassment is a known and accepted WHS risk.   Sexual harassment at work can cause various physical illnesses and psychological harm, such as stress, depression, anxiety and post-traumatic stress disorder.

Sexual harassment ¬ conduct of a sexual nature – unwelcome conduct – reasonable person

Hill v Hughes trading as Beesley and Hughes Lawyers [2019] FCCA 1267 (24 May 2019); Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020).

Facts

Ms Beesley worked as a paralegal in a small law firm run by Mr Hughes, a solicitor.  Shortly after Ms Beesley commenced work at the law firm, Mr Hughes began a course of conduct including:

• sending Ms Beesley persistent, amorous emails;

• during a trip for work, attending Ms Beesley’s bedroom uninvited and inappropriately clothed, refusing to leave until she gave him a hug; and

• on a number of occasions, preventing Ms Beesley from leaving her office until she gave Mr Hughes a hug.

Ms Beesley rejected each of these advances and asked Mr Hughes to stop. When the conduct continued, Ms Beesley resigned.

At trial, Mr Hughes argued that his conduct was not sexual harassment because he was attempting to pursue a romantic relationship. The trial judge found that such a distinction ‘reflects a social myopia’ that is not reflected in the Sex Discrimination Act. The trial judge found that Mr Hughes’ conduct was ‘outrageous’ and constituted sexual harassment.

Outcome

An appeal from Mr Hughes was dismissed.

The Full Court of the Federal Court (the Full Court) held that the question of whether there has been any of the 3 identified forms of conduct – a sexual advance, a request for sexual favours or other conduct of a sexual nature – is a question for the Court, and it is a question of fact.

It held that the test of whether conduct is ‘unwelcome’ is subjective and turns solely on the attitude of the person alleging the harassment.

By contrast, the reasonable person test is an objective one, to be assessed against the broadly defined circumstances in s.28A(1A) of the Sex Discrimination Act. In this case, the profound power imbalance between Mr Hughes and Ms Beesley was important, as was Mr Hughes’ awareness of Ms Beesley’s anxiety disorder.

Relevance

Whether an advance, request or conduct is sexual in nature is a question of fact.

Whether an advance, request or conduct is ‘unwelcome’ is assessed subjectively, and turns on the attitude of the person experiencing the conduct only.

Whether a reasonable person would anticipate the possibility that the recipient of the advance, request or conduct would be offended, humiliated or intimidated is assessed objectively.

Sexual harassment ¬ conduct of a sexual nature – reasonable person

Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 (19 July 2021)

Facts

The New South Wales Civil and Administrative Tribunal (the Tribunal) determined that both Sydney Water Corporation (Sydney Water) and Vitality Works Australia Pty Ltd (Vitality Works) had engaged in sexual harassment by displaying a poster at the Sydney Water Ryde depot.

Sydney Water is a male-dominated workplace and the poster was placed just outside the men’s toilet and the lunchroom.  The poster showed a photograph of a female Sydney Water employee under the caption ‘Feel great – lubricate!’ The employee had agreed to have her photograph taken for a WHS campaign but had not been informed that those words would be used above her image.

The Tribunal found that the poster conveyed the sexual connotation that the employee ‘with her smiling face, feels great because she applies lubricant to her body, including her sexual organs which gives her sexual pleasure’ and that she ‘advocates that others should do the same’.

Outcome

On appeal, the NSW Court of Appeal (the Court) held that whether conduct is ‘conduct of a sexual nature’ is a question of fact. The phrase ‘conduct of a sexual nature’ has a broad meaning and includes sexually suggestive ‘jokes’ and comments as well as innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod - all of these are capable of being deployed to sexualise conduct.  The subjective intention of the alleged perpetrator to engage (or not engage) in ‘conduct of a sexual nature’ is not an element of sexual harassment.

The Court held that conduct of a sexual nature is not confined to conduct that is sexually explicit.  This would overlook the statutory language and the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the phrase ‘conduct of a sexual nature’ is properly construed with an understanding of those matters.

The Court found that design, publication, display and distribution of the poster was plainly conduct of a sexual nature, which held up the employee to sexual ridicule in her workplace. The fact that other clients of Vitality Works had not made adverse comments about the slogan ‘Feel great – lubricate’ in the past was not relevant to its determination that a reasonable person would have anticipated that the employee would be offended, humiliated or intimidated by the conduct, which is an objective test.

Relevance

The phrase ‘conduct of a sexual nature’ is of broad import, and should not be narrowly construed. It is clear that a single act or single incident may constitute sexual harassment.

Conduct which is not intended to be sexual harassment may amount to sexual harassment – there is no legal requirement that the perpetrator of sexual harassment intend to sexually harass the victim.

Sexual harassment ¬ conduct of a sexual nature

Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102 (20 February 2013); Richardson v Oracle Corporation Australia Pty Ltd and Another [2014] FCAFC 82 (15 July 2014)

Facts

Ms Richardson was employed in the Sydney office of Oracle Corporation Australia Pty Ltd (Oracle).  Mr Tucker was employed at Oracle’s Melbourne office.  Ms Richardson and Mr Tucker were part of a team putting together a bid for work.

Ms Richardson alleged that she was sexually harassed by Mr Tucker in the period from late April 2008 until 12 November 2008 during their work together as part of the bid team. The conduct included inappropriate sexual advances and subjecting Ms Richardson to a humiliating series of comments such as: ‘Gosh, Rebecca, you and I fight so much, I think we must have been married in our last life’, and ‘So, Rebecca, how do you think our marriage was? I bet the sex was hot’.

Ms Richardson complained to her manager, who referred the matter to HR. An investigation was conducted. In the meantime, Ms Richardson was required to continue working with Mr Tucker and had regular contact with him via conference calls and emails. The HR investigation supported much of Ms Richardson’s complaint. Mr Tucker was given a first and final warning and retained his role. Ms Richardson resigned in March 2009.

Mr Tucker denied some of the alleged conduct and explained the rest as trying to diffuse a tense situation with jokes, making innocuous or commonplace comments or engaging in ‘blue banter’ that fell short of sexual harassment when seen in context.

Outcome

The Federal Court rejected ‘Mr Tucker’s denials and attempts to defend his conduct as unintended, misunderstood or innocuous.’ The Court found that Mr Tucker had embarked on a systematic course of conduct that was fairly described as sexual harassment within its statutory meaning. Some of the individual remarks and suggestions constituted sexual harassment in their own right.  Overall, the whole course of conduct constituted sexual harassment.

Oracle was found vicariously liable for Mr Tucker’s conduct.  In its decision, the Federal Court noted that Ms Richardson was very distressed by Mr Tucker’s conduct, which manifested in her suffering forms of physical and mental impairment, including an adjustment disorder.

Relevance

Jokes or ‘banter’ may constitute conduct of a sexual nature.

A perpetrator’s intentions are irrelevant to the assessment of whether conduct is of a sexual nature.

The finder of fact may look to a course of conduct as a whole, which may include instances of sexual conduct as well as other conduct, in order to determine whether the conduct complained of constituted sexual harassment.

Sexual harassment ¬ conduct of a sexual nature – unwelcome conduct

Collins v Smith (Human Rights) [2015] VCAT 1029 (10 July 2015)

Facts

Ms Collins commenced working at a local post office in May 2011. Mr Smith was the owner and manager of the post office, in partnership with his wife. Up until 5 January 2013, Ms Collins said she enjoyed her job and got along well with Mr Smith, whom she regarded as ‘like a father figure’.

However, after that time, Ms Collins detailed persistent and unwelcome conduct of a sexual nature by Mr Smith in the course of her employment, from January to April 2013. Mr Smith either denied that the conduct occurred or, where it was admitted, denied that it was unwelcome.

Outcome

The Victorian Civil and Administrative Tribunal (the Tribunal) upheld Ms Collins’ complaints of sexual harassment.  As there were no other witnesses to the events and only limited corroborative evidence, the Tribunal’s assessment of the credibility of each party’s account was crucial to its findings.

The Tribunal accepted Ms Collins’ evidence of the numerous incidents of sexual harassment[88], which included physical contact (such as attempting to kiss Ms Collins and touching her on her bottom and breasts); verbal comments, including propositioning for sex and threatening comments, and written communications including a St Valentine card, notes and text messages.

The Tribunal rejected Mr Smith’s evidence depicting Ms Collins as the principal protagonist who welcomed his continuing flattery and jocular behaviour. It preferred Ms Collins’ evidence that she consistently rejected Mr Smiths’ advances and reiterated to him her desire to maintain a friendly but professional relationship. The Tribunal accepted that Ms Collins was attempting to effectively ‘manage’ Mr Smith in view of her desire to maintain her employment, and Mr Smith’s behaviour created an intolerable situation for her in which to perform her work. The medical evidence showed a clear nexus between the sexual harassment and Ms Collins’ consequent psychological trauma, comprising chronic post-traumatic stress disorder and a depressive disorder.

Relevance

A finding of sexual harassment may be based on the fact finder’s assessment of the relative credibility of each party’s accounts, particularly in circumstances where there is limited corroborating evidence.

A worker does not welcome conduct simply by enduring it and taking steps to placate the harasser in order to maintain employment.

Sexual harassment ¬ conduct of a sexual nature – unwelcome conduct - reasonable person

Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty [2017] NSWCATAD 156 (25 May 2017)

Facts

Mr Kordas was employed as an apprentice hairdresser by Aztec Hair and Beauty for about 3 months. He alleged that he was sexually harassed during his employment by his manager, Mr Rony, and his colleague and trainer, Mr Eaton. The alleged sexual harassment included Mr Rony stroking Mr Kordas’ palm when he gave him money to make a purchase, and the following conduct by Mr Eaton:

• unwelcome touching (such as requiring Mr Kordas to hold his hand unnecessarily when he was showing him how to blow dry hair; putting his hands around Mr Kordas’ waist; unnecessarily brushing against Mr Kordas, and slapping Mr Kordas’ bottom with a ruler), and

• unwelcome verbal comments (such as referring to Mr Kordas’ as ‘his bitch’ and saying that he and Mr Kordas were like a gay married couple).

Outcome

The New South Wales Civil and Administrative Tribunal (the Tribunal) determined that both Mr Rony and Mr Eaton had engaged in sexual harassment[89], and Aztec Hair and Beauty was vicariously liable.

The Tribunal noted that whether conduct is of a sexual nature may depend on the context. The Tribunal accepted that the conduct was of a sexual nature in the context of a workplace in which Mr Kordas was the most junior employee, who had no prior relationship with his manager or trainer.

The Tribunal was also satisfied that the conduct had been unwelcome. It was not necessary for Mr Kordas to establish that the perpetrators knew that their conduct was unwelcome.

The Tribunal considered the circumstances of the conduct, including that Mr Kordas’ position as an apprentice meant that he had little, if any, power in relation to his manager and trainer. The Tribunal concluded that a reasonable person, having regard to these circumstances, would have anticipated that the conduct would be likely to humiliate or intimidate Mr Kordas.

Relevance

Sexual harassment is unlawful regardless of the sex or sexual orientation of the parties.  A perpetrator need not know that their conduct is unwelcomed.

The circumstances of the conduct may impact the assessment of whether the conduct is of a sexual nature, as well as whether a reasonable person would consider it offensive, humiliating or intimidating.

Sexual harassment ¬ conduct of a sexual nature

Kerkofs v Abdallah (Human Rights) [2019] VCAT 259 (25 February 2019)

Facts

Ms Kerkofs worked at Parker Manufactured Products Pty Ltd (PMP) from 4 to 16 May 2016. Ms Kerkofs claimed that during that time she was sexually harassed by Mr Abdallah, a colleague.

Ms Kerkofs alleged that at her workplace, an office within the PMP factory, she was subjected to various instances of unwelcome conduct of a sexual nature by Mr Abdallah including him: using nicknames such as ‘sexy’ and ‘honey’; commenting on her body and making sexual comments; physically touching her, and discussing and rating her appearance and that of other women.

Ms Kerkofs also alleged that she was sexually assaulted by Mr Abdallah at home after he drove her home from work (at the direction of his supervisor) because she was unwell. Ms Kerkofs did not willingly participate in or solicit the behaviour, which happened while she was resting on her bed. She succumbed to it because she was too ill to resist.

Ms Kerkofs reported the sexual assault to her manager 3 days after the incident. She subsequently developed a post-traumatic stress disorder.

Outcome

The Victorian Civil and Administrative Tribunal (the Tribunal) found that Mr Abdallah had engaged in sexual harassment[90], and that PMP was vicariously liable for his actions. Mr Abdallah did not dispute that the alleged conduct was properly characterised as sexual harassment but denied he had engaged in any of the conduct alleged.

The Tribunal preferred the evidence of Ms Kerkofs. While Mr Abdallah was evasive in answering questions and sought to interfere with other evidence given to the Tribunal, Ms Kerkofs was a credible witness and her account was largely consistent with accounts she had given to other people. The Tribunal rejected the suggestion that the fact that Ms Kerkofs did not pursue a complaint to the police reflected on her credibility, observing that many people who are victims of sexual assault are not prepared to go through the trauma of giving evidence in a criminal trial.

The Tribunal also did not consider that inconsistencies in Ms Kerkofs’ evidence reflected adversely, to any great extent, on her credibility, observing that inconsistencies in an account of sexual activity are to be expected, and one should not expect an identical account on each occasion a traumatic sexual experience is recounted.

The Tribunal found that it was more probable than not that Mr Abdallah had engaged in each of the alleged acts of sexual harassment, and they were unwelcome. The Tribunal accepted that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Kerkofs would be offended, humiliated or intimidated by that conduct.

Relevance

Inconsistencies in accounts of sexual harassment are to be expected and do not necessarily impact adversely on a complainant’s credibility, particularly given the fact that a complainant may be recalling traumatic events.  Similarly, the credibility of a complaint of sexual harassment that constitutes sexual assault is not undermined simply by reason of the fact that a complainant chooses not to report the conduct to the police. Many people who are victims of sexual assault do not report the conduct, including to the police.

Sexual harassment ¬ unwelcome conduct

Aldridge v Booth [1988] FCA 170 (30 May 1988)

Facts

Miss Aldridge, aged 19, was employed in a cake shop through a government employment scheme, after having been unemployed for a year. This was her first full-time job. She alleged that, during the year of her employment, Mr Booth, who was a proprietor of the business, made repeated unwelcome sexual advances towards and contact with Miss Aldridge. Mr Booth and Miss Aldridge were often the only 2 people working in the shop. The alleged advances included physically touching Miss Aldridge, kissing her, pulling her hair, requesting sexual intercourse, threatening to terminate her employment when she resisted and engaging in unwanted acts of sexual intercourse with her at the cake shop. Miss Aldridge ultimately resigned.

Mr Booth accepted that there was one act of intercourse, which he described as ‘reasonably spontaneous’. He otherwise claimed there was only accidental or unintended touching because of the confines of the shop, and horseplay from time to time.

Outcome

The Federal Court preferred the account of Miss Aldridge and was satisfied that there was a course of conduct engaged in by Mr. Booth that constituted sexual harassment which was, in the main, unwelcome. The Court accepted Miss Aldridge’s evidence that she believed that if she rejected the advances, she would lose her job. The Court held that the sexual harassment ‘continued for as long as it did, and went as far as it did, because of the fear of Miss Aldridge of losing her job.’

Relevance

The Court characterised Miss Aldridge as being both young and vulnerable when compared to Mr Booth, who was the proprietor of the shop in which she worked. The power imbalance between them, and Miss Aldridge’s fear that she would lose her job, were relevant to the Court’s conclusion the conduct was unwelcome.

Sexual harassment ¬ unwelcome conduct – reasonable person

Horman v Distribution Group Ltd [2001] FMCA 52 (19 December 2001)

Facts

Ms Horman worked as a spare parts interpreter for Distribution Group Ltd (Distribution Group), at a branch of its Repco Auto Parts business.  Ms Horman alleged that during the course of her employment she was sexually harassed by her co-workers, which included inappropriate suggestions and comments; texta writing on her body; her bra straps being pulled, and her buttocks being touched. Distribution Group argued that, far from being offended by any incident of ‘tomfoolery’ in the workplace, Ms Horman was an enthusiastic participant and instigator.

Outcome

The Federal Magistrates Court (the Court) found some, but not all, of the alleged conduct took place, and then moved to the question of whether or not that conduct was unwelcome. Ms Horman’s evidence included a letter that she had written towards the end of her employment outlining the harassing behaviour, which concluded: ‘Please, do something, it's not fair for people to get away with such behaviour.’ The Court accepted that the sexual conduct towards Ms Horman was unwelcome by reference to this letter, which was written contemporaneously and was found to represent Ms Horman’s state of mind at the time.

Next the Court considered whether a reasonable person would anticipate the possibility that Ms Horman would be offended, humiliated or intimidated by the conduct. The Court accepted that Ms Horman used crude and vulgar language in the workplace; engaged in physical contact with other employees; exhibited explicit sexual photographs of herself; made disclosures about personal matters such as the shaving of her pubic hair and participated in tomfoolery and arguments. The Court did not accept that it followed that a person in the position of Ms Horman would still not be offended, humiliated or intimidated by some of the actions and remarks directed at her. The Court found that ‘everyone is entitled to draw a line somewhere, and those activities crossed that line’. The Court held:

Relevance

While the behaviour of a complainant, including inappropriate behaviour, may be relevant in assessing whether or not the conduct was ‘unwelcome’, or whether a reasonable person in the circumstances would have anticipated the possibility that the complainant would be offended, humiliated or intimidated, it will not disqualify a complainant from claiming sexual harassment in relation to other conduct.

Sexual harassment ¬ reasonable person

Smith v Hehir and Financial Advisors Aust Pty Ltd [2001] QADT 11 (26 June 2001)

Facts

Ms Smith was employed by Hehir and Financial Advisors Aust Pty Ltd as a telemarketer. She alleged that Mr Hehir sexually harassed her on a number of occasions, including by unnecessarily and inappropriately touching her (such as massaging her shoulders and hugging her when she was distressed about a personal matter), and making suggestions with sexual connotations to her.

Outcome

The Queensland Anti-Discrimination Tribunal (the Tribunal) found that each of the incidents constituted sexual harassment[91].  In considering whether a reasonable person would have anticipated the possibility of offence in relation to the hugging incident, the Tribunal considered that it did not matter what Mr Hehir thought, as men's and women's perceptions of behaviour which can be characterised as sexual harassment may differ. Nor did the Tribunal consider it necessarily mattered what Ms Smith thought or felt. The Tribunal held:

Relevance

The ‘reasonable person’ test does not turn on the intentions of the perpetrator, or the reaction of the person experiencing sexual harassment. It is an objective test, determined by the specific context of the conduct.

A reasonable person may anticipate the possibility certain conduct would offend, humiliate or intimidate a person in one context, but not in another.