In recent days, there has been a lot of media coverage of what are beginning to be called “historical” sexual harassment claims alleging harassment by Famous Men. As some of those Famous Men are starting to respond to this coverage with defamation proceedings, it is unnecessary for us to name any names. You know who we (allegedly) mean, yes? We thought so.
The expression “historical” isn’t necessarily helpful when it comes to sexual harassment claims, because it sometimes carries the undertone (or the overtone – we are looking at you, Famous Music-Playing Guy) that these claims involve complaints about conduct which, although regarded as unacceptable now, was acceptable at the time. As we have now had sexual harassment laws in Australia for more than 30 years, most of the “historical” conduct was just as unlawful when it occurred as it is now. However, “historical” seems to be the label people are using, so the question then becomes, “If an employee has been the victim of sexual harassment, how long do they have to bring a legal claim?”
The answer, unfortunately, is “it depends” (and yes, we know how much clients hate it when lawyers give that answer). First, it depends on whether State or Commonwealth laws are relied upon, and then it depends on whether the claim relies upon discrimination law, or general law (such as the law of contract).
We know New South Wales is not the only Australian state, but it’s where we are, so let’s start there. If a complaint is made under the NSW Anti-Discrimination Act, the complaint is made to the President of the Anti-Discrimination Board, who may decline the complaint if “the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint”. That is, there is no statutory time bar – the matter is wholly within the discretion of the President. The decision of the President cannot be reviewed by the NSW Civil and Administrative Tribunal (NCAT). If the complaint is declined by the President, that is the end of the complaint; if the complaint is accepted, the President will attempt to resolve the complaint, and if not resolved, it will go to NCAT for determination.
If a complaint is made in the Federal system (to the Australian Human Rights Commission (AHRC) under the Sex Discrimination Act), the AHRC may decide not to inquire into the complaint if “the complaint was made more than 12 months after the act was done or after the last occasion when an act was done”. If the AHRC decides to inquire into the complaint, and the complaint cannot be resolved, the complaint can be terminated on the basis that “the complaint was lodged more than 6 months after the alleged acts, omissions or practices took place”.
However, a complaint accepted out of time could also be terminated on the basis that “there is no reasonable prospect of the matter being settled by conciliation”. The basis on which a complaint is terminated was. prior to April this year, unimportant – either way, a terminated complaint could be taken to the Federal Court (or Federal Circuit Court). However, in April 2017, the AHRC Act was amended so that some terminated complaints can only be taken to court if a Court grants leave. A complaint terminated as out of time needs leave, whereas a complaint terminated because it cannot be settled does not need leave.
Both the decision to accept an out of time complaint, and the decision as to the basis on which a complaint should be terminated, are reviewable decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). So if a complaint was accepted out of time, but terminated because it was out of time, that scenario could give rise to:
- An ADJR Act application by the respondent challenging the decision to accept the out-of-time complaint; and
- An ADJR Act application by the complainant challenging the decision to terminate the complaint because it was out of time (rather than terminating it because it couldn’t be settled at conciliation); and
- An application by the complainant for leave to commence Court proceedings in respect of the complaint (in the event that the complainant’s ADJR Act challenge was unsuccessful, and leave was required because the complaint was terminated as being out of time).
(And those are just the applications about whether the claim gets heard at all. If that’s not a lawyers’ picnic, it will do ’til the lawyers’ picnic gets here, one might think).
So, is it simpler to find a way to bring the claim under general law; say, for breach of the contract of employment? The limitation question is simpler – breach of contract claims can be brought within 6 years of the breach. However, choosing to bring the claim as a breach of contract claim creates other difficulties.
First, damages for distress and anxiety (where that distress and anxiety falls short of physical injury) are not generally available in an action for breach of contract. Compensation of this kind (referred to as “general damages”) will often form a substantial part of the monetary award in a successful sexual harassment claim, so an action in which that compensation is not legally available will leave a successful complainant with less than full compensation.
Second, it may be difficult to establish the precise manner in which the sexual harassment was a breach of the employment contract. Many employers have sexual harassment policies, but many do not (and even where a policy is in place, it may be regarded as a source of guidance, rather than a source of contractual obligations). The duty to provide a safe system of work may not extend to preventing sexual harassment – in a racial harassment case, the NSW Court of Appeal rejected an implied term that an employer would not “intimidate, racially or personally vilify, subject to demeaning, harassing or abusive conduct or threats of such conduct or threats of violence and insofar as it was reasonably practicable protect an employee from any such conduct”. There is no obvious reason why a sexual harassment claim would be treated differently.
So, what are the lessons from all of this for employers? The uncertainties around litigation emphasise the importance of preventing sexual harassment from occurring (and, thus, doing everything you can to avoid the uncertainties around litigation). This means providing employees with effective training, and workable grievance procedures, and ensuring that unlawful conduct is not tolerated because the people who engage in it are otherwise perceived to be “top performers”.
Just as it is said that those who fail to learn from history are be condemned to repeat it, employers who fail to learn from “historical” sexual harassment claims (and apply lessons from other workplaces into their own) are likely to be condemned to encounter those claims themselves. There may be uncertainty about whether it is too late to begin litigation, but what is certain is that it is never too late to assess your workplace and see what more you need to learn.
For more on our employment and discrimination law capabilities, contact Angus Macinnis
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