Costly Consequences in Failing to Meet WHS Obligations

Facts

A worker made allegations of sexual harassment, including comments and text messages from one of the employer’s directors which were invasive and of a sexual nature.

The employer had no policies or formal systems in place to prevent, manage or respond to inappropriate workplace behaviours of this nature.

Decision

The court found the employer guilty of breaching section 21 of the Occupational Health and Safety Act 2004 (VIC), which requires employers to provide, as far as reasonably practicable, a safe working environment free from health risks.

The court determined that the employer failed in two key areas:

• No Workplace Behaviour Policy: The company did not have a policy outlining acceptable and unacceptable workplace behaviour, including sexual harassment. There was also no clear process for reporting and responding to incidents; and
• No Implementation or Training: The employer failed to train managers, supervisors and staff on how to identify and respond to inappropriate behaviour.

In sentencing, the court imposed a fine and recorded a conviction, emphasising several critical points:

• Lack of Preventative Systems: The employer had no formal system to prevent or manage inappropriate behaviour. Monthly communal meetings were the only measure in place, which the court determined was inadequate;
• Serious Impact on the Worker: The court acknowledged the significant harm caused to the affected employee and the seriousness of the breach; and
• Need for Deterrence: The court stated that a fine with conviction was the only appropriate outcome. It hoped the penalty would send a clear message to other employers about the importance of maintaining safe and respectful workplaces.

Key Learnings for Clubs

In light of the recent court decision, clubs should take proactive steps to ensure a safe and respectful workplace. The following actions are essential:

• Implement a Workplace Behaviour Policy
  Develop and enforce a clear policy that outlines acceptable and unacceptable behaviours, including sexual harassment.
• Document the Implementation Process
  Keep records of how the policy is introduced and communicated across the organisation.
• Establish Clear Reporting Procedures
  Ensure workers know how to report inappropriate behaviour and that there are safe, confidential and accessible channels for doing so.
• Provide Training for All Staff
  Regularly train employees, managers and directors on the policy, their responsibilities and how to respond to incidents.

To support member clubs in meeting their work health and safety obligations, a comprehensive Policies and Procedures Manual—featuring template policies—is available for purchase through the membership portal. Tailored training sessions can also be delivered to all club workers and directors, covering key topics such as bullying, discrimination and sexual harassment, to ensure they are aware of their responsibilities and obligations.

For further information or assistance with any employment issues or queries, member clubs can contact the Workplace Relations Team at ClubsNSW via ClubASSIST on 1300 730 001.