When does a soured work relationship become sexual harassment?

Workplace relationships can be tricky to navigate, particularly when they go sour. What happens when a former partner becomes your harasser at work? It’s important to know your rights and what steps you can take if you’ve become the target of sexual harassment.

Crossing the line

Given the amount of time we spend at work, it’s not all that surprising that workplace romances are common. But as happens with relationships, they can break down. Sometimes, employees part perfectly amicably. Other times, what was once a nice relationship turns into one employee sexually harassing another. This happens when the relationship is not reciprocated or is no longer welcome. Perhaps one of the employees is upset that the relationship is over and keeps pursuing the other in hopes of renewing the connection.

It’s important to understand the definition of sexual harassment in this context: unwelcome sexual advances, requests for sexual favours or unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated that the person being harassed would have been offended, humiliated or intimidated. They may be sending unwelcome text messages or emails or making comments that make you feel uncomfortable.

In these cases, the intent of the person doing the harassing is irrelevant. For instance, the language we often hear from those doing the harassing is, ‘Oh, I was just trying to get him to go out with me again’ or ‘I didn’t mean anything by it, I just really like her’. Whatever the intent, it’s still sexual harassment, and it’s not okay.

Your rights

There are several pieces of legislation in both state and federal law that protect your rights; the legislation varies slightly from state to state but as a broad umbrella, the principles are the same. Basically, you have the right to attend work and be free from harassment.

Your rights can extend outside the workplace as well, provided there’s a sufficient connection with work. If you’re attending work functions, travelling for your job or going to a client or customer function, you should unquestionably be able to go to those work-related events without someone harassing you.

Considerations and options

If a former partner is sexually harassing you at work, the first thing you want to do is make it clear their conduct or behaviour is unwelcome.

Of course, sometimes people on the receiving end can’t always do that. If you can’t make your position clear, or don’t feel comfortable, or feel intimidated, you can raise it with your manager or human resources officer. Under the Fair Work Act 2009 you have the right to make a complaint and not be victimised or punished as a result.

As for how to make a complaint, have a look at your contract of employment, workplace policies or any industrial agreements – they’ll often provide a process and will explain what steps or action you can expect your employer to take. An employer is obliged to act on a complaint of sexual harassment, whether it’s delivered formally or informally, on or off the record. And usually, this results in some form of investigation.

Sexual harassment cases by nature are usually one person’s word against the other. The harassment also often happens behind closed doors or without witnesses. It’s therefore important to keep records of any instances of sexual harassment, such as interactions that make you feel uncomfortable, notes, text messages and emails. You may want to consider including this information in your complaint. Alternatively, you may discuss it with the investigator if one is appointed.

You also have avenues to make a complaint to an external body. Depending on the nature of your case, this might mean a human rights commission or the Fair Work Commission. However, we usually recommend trying to resolve your case at the workplace level before going this route.

Health

Sexual harassment in the workplace can impact the health of the person being harassed.  If your health is suffering it is important that you discuss it with your GP and obtain appropriate medical treatment.

No-one enters into a workplace romance thinking it’s going to end in sexual harassment, but unfortunately, it can and does happen. But if you’re the person being harassed, there are options available to you to stop the treatment and feel safe at work again.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Emma Starkey

Maurice Blackburn Melbourne
Emma Starkey is a Senior Associate in Maurice Blackburn's Melbourne employment team. She is a senior member of the only first tier law practice listed by the prestigious Doyles Guide 2017 for employee representation. Emma has successfully: obtained a 7-figure compensation package for a Chief Operating Officer who was sacked after she made a complaint about unethical behaviour represented a senior manager in defending a year-long witch hunt investigation which resulted in the manager being exonerated and reinstated to his position negotiated a 6-figure exit package for a senior manager who was subjected to bullying in his workplace assisted a General Manager obtain the equivalent of 9 months’ salary when her employment was terminated after more than 20 years of service assisted victims of sexual harassment and discrimination make complaints to their employer and to State and Federal human rights commissions obtained, in multiple cases, between 6 and 9 months’ salary as compensation for victims who were unable to return to work after botched workplace investigations assisted a suspended health professional defend allegations of serious misconduct and be reinstated to her position represented a senior executive in a multinational corporation defend allegations of bullying and maintain his employment without any adverse consequences or findings stopped an employer’s attempts to enforce an unreasonable and excessive restraint of trade clause which would have prevented the executive from working in their field of expertise, and assisted numerous women who have been sacked or demoted while pregnant, on parental leave or shortly upon their return to work. Emma understands that the decision to seek legal advice is not one made lightly. She is acutely aware of the reputational and financial concerns that executives have; in particular, their reluctance to engage in protracted and public legal proceedings. Emma’s proven approach combines legal and strategic methods to maximise the position of her clients and achieve their desired objective. The majority of Emma’s matters resolve through confidential negotiations and/or prior to trial. When litigation is necessary and recommended, Emma is experienced in litigating matters in the Federal Court, Court of Appeal, County Court, the Victorian Civil and Administrative Tribunal and the Fair Work Commission. She has successfully obtained interlocutory injunctions in the Federal Court and regularly represents her clients in mediations and conciliation conferences. Emma’s clients include CEOs, Managing Directors, General Managers, lawyers, professionals in the marketing, finance and IT industries, accountants, engineers, scientists, senior public servants, academics, health and medical professionals. Emma’s clients have repeatedly commended her for her strategic thinking, empathy, insight and determination. Emma has worked in the area of employment law for nearly 10 years. She has a diverse employment background, with experience working for another national plaintiff law firm, a government department and as a research associate to the head of an industrial tribunal.   Memberships & associations Law Institute of Victoria member Law Institute of Victoria Employment and Industrial Law co-chair Victorian Women's Lawyers member Maurice Blackburn's Women's Network member ...

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