Workplace sexual harassment and bullying are serious issues, and Australian law is clear that everyone has the right to a safe work environment. Recent court cases emphasise that our legal system is taking these issues very seriously, resulting in significant compensation for victims.
This article breaks down what sexual harassment and bullying mean in the Australian workplace and provides insights from recent decisions on sexual harassment claims. The information is general only – if you’re experiencing issues in your workplace, we recommend seeking the assistance of an experienced lawyer for advice tailored to your circumstances.
What is Sexual Harassment?
In Australia, sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth) and state/territory anti-discrimination laws.
Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person would have anticipated could offend, humiliate, or intimidate the person being targeted.
Sexual harassment does not need to be repeated behaviour – a single incident is enough.
Examples of this unwelcome conduct can include:
- Physical Contact: Unwelcome touching, hugging, kissing, or deliberately brushing against someone.
- Verbal or Written Conduct: Sexually suggestive comments or jokes, intrusive questions about a person’s private life, unwelcome requests for sexual favours, or sending sexually explicit messages, emails, or texts.
- Visual Conduct: Staring or leering or displaying sexually explicit pictures or posters.
- Creating a Hostile Environment: Behaviour that makes the entire work environment uncomfortable or threatening in a sexual way, even if not directed at a specific person.
Since December 2022, employers now have a positive duty under the Sex Discrimination Act to prevent sexual harassment, sexist behaviour and sex discrimination in the workplace. The positive duty requires proactive steps be taken to address those behaviours, not just have a policy in place and respond to complaints
What is Workplace Bullying?
Under the Fair Work Act, workplace bullying occurs if a person or group of people repeatedly behave unreasonably towards a worker or group of workers, and that behaviour creates a risk to health and safety.
While bullying is repeated and often involves actions that harm a person’s well-being, sexual harassment is specifically defined by its sexual nature and does not need to be repeated. However, some repeated forms of sexual harassment can also be considered bullying.
Important Note: Reasonable management action carried out in a reasonable way – such as taking disciplinary action or managing poor performance – is not considered bullying.
The Law in Action: Key Lessons from Recent Cases
Recent decisions from Australian courts and tribunals highlight that serious workplace misconduct can have severe consequences and that legal compensation is increasing to reflect the significant harm which may be caused by that misconduct and also evolving community standards.
Case 1: Sexual Harassment and Victimisation by an Employer
In the case of Magar v Khan [2025] FCA 874, an employee successfully sued her employer’s director for sexual harassment and victimisation.
The Conduct: The director engaged in a series of disturbing and explicitly sexual acts, known as the “Car Incidents”, including discussing sexual matters and involving sex toys, as well as humiliating and inappropriate comments about the employee’s sex life (the “Hickey Incident”). The employee eventually stopped going to work due to the fear and psychological distress caused by the director’s conduct.
The Result: The Court was satisfied that the harassment had a profound impact on the victim, who was a young, vulnerable woman with existing mental health issues, and found the employer’s actions were unlawful. The judge noted that threatening to sue the victim for defamation after she complained about the harassment was a dangerous and wrongful attempt to stop her from pursuing her rights, constituting victimisation.
The total compensation awarded was $305,000, comprising:
- General Damages for Harassment: $160,000.
- Compensation for Economic Loss: $130,000 for past and future inability to work due to her condition.
- Damages for Victimisation and Aggravation: $15,000, including for the improper way the defence was conducted at trial.
Case 2: Sexual Harassment and Assault in a Small Business
In JF v Oishi Teppanyaki & Café Pty Ltd & Anor [2025] QIRC 209, a restaurant employee, JF, successfully brought a complaint against her employer following a sexual assault incident.
The Conduct: The employer first propositioned JF for sex and, upon her refusal, later subjected her to a violent and physically intimate sexual assault, even locking the doors of the restaurant to prevent her escape. The employer was later convicted of a criminal offence for the assault.
The Result: The tribunal found the employer’s conduct was predatory and a serious violation of her rights, leading to a diagnosis of severe and chronic Post-Traumatic Stress Disorder (PTSD).
The total compensation awarded was $150,000, comprising:
- General Damages: $140,000 for the ongoing pain, suffering, and the profound detrimental impact on her life.
- Aggravated Damages: $10,000 because the employer deliberately locked the doors to prevent her from leaving, which heightened her fear and sense of danger.
The employer was also ordered to pay JF’s legal costs.
Key Takeaways for Employees
- A Single Incident is Enough: You don’t have to endure repeated sexually inappropriate behaviour for it to be considered sexual harassment. A single instance can be grounds for a complaint.
- It’s Unwelcome, Not Explicit: The law focuses on whether the conduct was unwelcome and sexual in nature, not whether it was intended to cause harm.
- Your Wellbeing is a Priority: The courts recognise that psychological injuries, like PTSD, anxiety, and depression, are a serious consequence of harassment and award compensation to cover these impacts and the inability to work.
- Victimisation is Also Unlawful: If you make a complaint, your employer or the alleged harasser cannot take action against you (like threatening legal action or firing you) in retaliation. This is known as victimisation and is a separate, unlawful act that can attract significant penalties and damages.
- Seeking Help is Vital: The law provides mechanisms to help you stop the harassment and seek compensation. Don’t face it alone.
Practical Steps to Take
If you are experiencing or have witnessed sexual harassment or bullying, taking clear steps is important to protect yourself and your rights:
- Keep Records: Write down the details of every incident as soon as possible – what happened, when, where, and who was present. Keep copies of any relevant emails, messages, or documents.
- Speak Up: If you feel safe to do so, clearly tell the person their behaviour is unwelcome and ask them to stop.
- Use Internal Processes: Report the conduct to your supervisor, a manager, or the Human Resources (HR) department.
- Seek External Advice: Contact one of the following for free, confidential advice:
- The Australian Human Rights Commission (AHRC).
- The Fair Work Commission (FWC).
- Your relevant state or territory Anti-Discrimination or Equal Opportunity body.
- A lawyer who specialises in employment law or anti-discrimination matters.
Remember: Australian law places a clear positive duty on employers to take proactive and meaningful action to prevent sexual harassment and other unlawful behaviours from occurring in the workplace. If they fail to do this, they may be liable.
There is also a new jurisdiction in the Fair Work Commission where you can apply for orders to stop sexual harassment, which is similar to the Commission’s stop-bullying jurisdiction. While no compensation is available in that jurisdiction, it may be a quick and effective way to prevent further sexual harassment occurring.
If you or someone you know wants more information or needs help or advice, please call (02) 5127 5261 or email [email protected].