Sexual harassment does not require intent

Under the Sex Discrimination Act 1984 (Cth), for there to be sexual harassment, the following elements must be fulfilled:

  1. A person engages in conduct towards another person.
  2. This conduct is unwelcome.
  3. This conduct is of a sexual nature.
  4. This conduct occurred in circumstances in which a reasonable person, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Accordingly, even if a person did not intend to engage in unwelcome conduct of a sexual nature, they can still be held liable for sexual harassment. 

This point was underscored in the recent decision of Vitality Works Australia Pty Ltd v Yelda. In this case, the plaintiff alleged that a work health and safety poster featuring her next to the slogan “Feel great – lubricate!”, constituted sexual harassment. The defendants denied this assertion, arguing it was not their intent for the poster to have a sexual connotation. The NSWCAT rejected this submission and found in favour of the plaintiff, a finding upheld on later appeal. 

Electrical Contractors should note that Courts are treating sexual harassment with increasing gravity. This was recently reflected in Golding v Sippel and The Laundry Chute Pty Ltd, in which the plaintiff was awarded $130,000 in damages after suffering from sexual harassment. 

There are various circumstances where sexual harassment is unlawful. Significantly, sexual harassment is unlawful when it is taken against a current or prospective employee, as well as when providing goods or services to another person.  

Because an employer may be vicariously liable for harassment caused by its employees, we strongly recommend employers implement policies to prevent harassment from occurring. NECA Legal can provide template workplace policies to NECA members at reduced rates.

Disclaimer: This summary is a guide only and is not legal advice. For further information on harassment and workplace policies, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email