What does this change mean for business? 

While the expansion of the definition of serious misconduct as part of the Fair Work Amendment (Respect at Work) Regulations 2021 encourages employers to consider termination of employment in the event of sexual harassment, it does not mean sexual harassment will always constitute serious misconduct. 

Where a business has substantiated allegations of sexual harassment, the seriousness of the conduct should be assessed, as well as any other relevant matters. 

In the event the dismissal is challenged through arbitration, the Fair Work Commission will independently review the investigation and the outcome, to make a finding as to whether the definition of serious misconduct was met. 

What has changed? 

From 10 July 2021, the definition of serious misconduct is:  

1. For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

2. For subregulation (1), conduct that is serious misconduct includes both of the following: 

• (a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; 
• (b) conduct that causes serious and imminent risk to: 
  • (i)  the health or safety of a person; or 
  • (ii)  the reputation, viability or profitability of the employer's business. 

3. For subregulation (1), conduct that is serious misconduct includes each of the following: the employee, in the course of the employee's employment, engaging in: 

• • (i) theft; or 

• • (ii) fraud; or 

• • (iii) assault; or 

• • (iv) sexual harassment. 

• (a) the employee being intoxicated at work; 

• (b) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. 

4. Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable. 

5. For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform. 

Definition of sexual harassment

Sexual harassment has the same meaning as section 28A of the Sex Discrimination Act 1984 (Cth). This definition states a person sexually harasses another person (the person harassed ) if: 

• (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or 
• (b) engages 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.

Investigations 

Conducting a procedurally-fair workplace investigation is essential for businesses. The need for investigations can arise with any serious workplace issue, however, when these issues lead to an employee’s dismissal, the need for an investigation is clear. 

The Victorian Chamber’s Workplace Relations Consulting team is available to assist your business conduct a procedurally fair investigation. 

Workplace Relations Advice Line  

Trying to deal with workplace issues alone but don’t know where to start? Before you take any action, call our Workplace Relations Advice Line (03) 8662 5222.  

Our experienced team is here to give you over-the-phone advice about human resources or workplace relations issues. Our Complete and Connect members have free and unlimited access to expert advice through the Workplace Relations Advice Line.