Protecting Legitimate Employer Interests/Discharging Employer Obligations
The PS Act and Regulations do not exhaust the sources of the respective rights and obligations arising out of, and the incidents of, the Crown-public servant employment relationship. There are others. First, there are those statutes of general application to employers which by their own force (cf Sex Discrimination Act 1984 (Cth), s12), or as a result of Crown proceedings legislation (see Strods v Commonwealth of Australia [1982] 2 NSWLR 182), impose - or have the de facto effect of imposing - obligations and prohibitions on the Crown as employer. Secondly, there is the employment related "mass of terms and conditions imposed and conferred by a multitude of Commonwealth Acts and Regulations": Fowell v Ioannou, above, at 500: see eg Safety Rehabilitation and Compensation Act 1988. There doubtless are additional sources beyond the two mentioned: see Creighton et al, Labour Law, Ch 5.
Insofar as the present application is concerned, it is the Sex Discrimination Act ("the SD Act") which is of no little significance. Section 28B(2) of that Act makes it unlawful (inter alia) -
"for an employee to sexually harass a fellow employee..."
I would note of this provision:
(i) that, unlike sections 28G, 28H and 28L, but like sections 28D and 28F, it makes the holding of a particular status or position vis-a-vis the person harassed, and not the place or circumstance of the harassment, the condition upon which the unlawfulness of the harassing conduct is premised; but, (ii)that, because of the SD Act s9(5), s28B only has effect in relation to sexual harassment of Commonwealth employees "in connection with their employment as Commonwealth employees". I will return to this Commonwealth employee limitation.
"Sexual harassment" is defined in s28 A(1) as follows:
"For the purposes of this Division, a person sexually harasses another person (the "person harassed") if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed;
or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated."
The legislation bears on the Commonwealth in a variety of ways. First, all Commonwealth employees are deemed to be employed by the Commonwealth for the Act's purposes: SD Act, s108. Secondly, while the Act imposes "vicarious liability" on an employer in respect of s28B harassment committed by an employee "in connection with the employment" - SD Act, s106(1) (emphasis added) - that liability will not be attracted if it is established that the employer took "all reasonable steps" to prevent the employee doing acts of the kind constituting the sexual harassment of a fellow employee: SD Act, s106(2). I need not pause here to consider whether the "all reasonable steps" provision could justify the taking of preventative measures in relation to private conduct (eg selective anti-fraternisation measures) for the purpose of safeguarding against forms of harassment in the workplace: but see Lindemann and Kadue, Sexual Harassment in Employment Law, Bureau of National Affairs, Washington, 1992 at 422ff.
This legislation puts beyond any doubt that sexual harassment of Commonwealth employees by fellow Commonwealth employees is a subject of legitimate interest to the Commonwealth in its regulation and management of the employment related conduct of its employees. This view the Commonwealth has reasonably and responsibly taken and acted upon: see the Public Service Commission's Guidelines on Eliminating Sexual Harassment, and Guidelines on Eliminating Workplace Harassment. The "all reasonable steps to prevent harassment" provisions of s106(2) of the Act provide an appropriate legal foundation for that interest.
What is important, though, is to note how far the statute of itself can be said to go in mandating employer regulation of employee conduct. In my opinion, notwithstanding such individual view as an employer might have of the need to proscribe an employee's private, sexually harassing conduct of a co-worker and no matter how powerfully that view may be held, the SD Act alone does not provide justification for the use of binding employment directions to that end. That Act makes an employee's conduct towards a co-worker of legitimate interest to an employer for employment regulation purposes, if the conduct occurs "in connection with the employment of the employee". Beyond this, reliance on the SD Act alone will not justify employee regulation by way of direction notwithstanding this may well seem to an employer to be a reasonable and indeed desirable intervention to protect a co-worker from privately committed acts of harassment. While the acts of the Samaritan may be laudable, they do not for that reason attract legal force to the measures taken against the perpetrator of wrongful private conduct. More is required.
In saying this I should, perhaps, add that no submission has been made seeking to justify the direction by reference, not to the express terms of the SD Act, but to its "equity": cf Nelson v Nelson (1995) 132 ALR 133 esp at 144-145 per Deane and Gummow JJ.
I have emphasised above that the SD Act alone would not justify such a direction to an employee as was given in the present case. This, though, is not to say that the prevention of sexual harassment is without present significance. Far from it.
The conduct which the relevant senior officer in AusAID believed the applicant to have engaged in, and against which the direction was made, was conduct considered (inter alia) to constitute sexual harassment under the SD Act. That it occurred away from the workplace would not alter this aspect of its character: the s28A definition is not locationally limited. Whether the conduct might also have proved to be unlawful under s28B would depend upon whether it was harassment of Ms Bond "in connection with [her] employment as [a] Commonwealth employee": SD Act, s9(5). This particular matter was not the subject of argument before me. I refrain from expressing a view on it.
Notwithstanding that it is appropriate to expect the Commonwealth to act as a "moral exemplar" - cf Olmstead v United States 277 US 438 at 485 (1928) - in its regulation of the employment relation, a concern for eliminating privately occurring sexual harassment by, and of, co-employees would not of itself have justified an employment direction. But, as will be seen, such was not the justification given for the direction. Far more direct interests of the Commonwealth were put at stake in consequence of the actions of the applicant. Subject to the conditions I will later mention, the protection of these interests could justify a direction relating to privately occurring sexual harassment.
First, while the applicant's conduct may not have been engaged in "in connection with" his employment, it can still properly be said to have a relationship to - to be attributable to - that employment. It was knowledge and acquaintance provided by his position with AusAID that resulted in the various co-employees who made official complaint of his conduct being subjected to sexual harassment. Where such utilisation of position does occur in relation to one or some number of co-employees, it provides a direct linkage between the harassment and the co-employee status of both the harasser and the person harassed. That linkage is important, in my view, not because it would of itself justify an employer direction, but because it properly allows the harassment to be characterised as employment related.
Furthermore where such utilisation of position becomes a cause of apprehension for other co-employees because of their employment, an employer may well have a legitimate interest in addressing such behaviour because of its relationship to the employment and of its consequences in the workplace.
Given the particular circumstances of this case, it is not necessary for me to express a view as to when, if at all, co-employee apprehension of the type mentioned would be sufficient alone to justify a direction proscribing the private harassing conduct.
Secondly, once an employee's conduct can be shown to have significant and adverse effects in the workplace - because of its impact on workplace relations, on the productivity of others, or on the effective conduct of the employer's business
- that conduct becomes a proper matter of legitimate concern to an employer, and does so because of its consequences.
In the usual case where this employer concern arises the focus is on conduct occurring in the workplace itself. There is some, though by no means voluminous, case law reflecting this: see eg Re Greenleaf Fertilisers Ltd, Industrial Commission (NSW), 28 June, No 198 of 1978, per Liddy J who held that an employee had an implied contractual duty to the employer to act in a reasonable manner towards his fellow workers; see also Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2) [1972] 2 QB 455. The reason for this, often enough, is that for it to have the effect in question, it needs to occur in the workplace.
There can, though, be circumstances - of which the private sexual harassment of a co-employee is an example - where conduct outside the workplace can occasion adverse workplace effects. The reason for this is that the continuing workplace proximity of the harasser and the person harassed can cause the impact of the harassment on the person harassed to endure into the workplace. It is this which in turn is capable of occasioning the effects I have been discussing. As I will later indicate, such a state of affairs was believed to exist in the present case when the impugned direction was given.
I would note in passing on this matter of consequences in the workplace that counsel for the applicant placed some emphasis - properly in my view - on the need for an employer to be sensitive to its potential liability to employees for "injury" (cf Safety Rehabilitation and Compensation Act 1988, s4) sustained in or as a consequence of the workplace environment; see also T MacDermott, "The Duty to Provide a Harassment-Free Work Environment", (1995) 37 Jo of Indust Rels 495.
I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified. Nonetheless I am prepared to conclude that circumstances may exist which would justify an employer direction proscribing the private sexual harassment of an employee by a co-employee. In my view, an amalgam of the various matters to which I have been referring provide both appropriate justification for, and limitation upon, giving such a direction.
I should emphasise that my comments are limited to co-employee sexual harassment - conduct which is intrinsically opprobrious (and recognised as such in the SD Act s28A) and which is unlawful if connected with the harasser's employment.
My conclusion is, then, that it is lawful for an employer to give an employee a direction to prevent the repetition of privately engaged in sexual harassment of a co-employee where:
(i) that harassment can reasonably be said to be a consequence of the relationship of the parties as co-employees (ie it is employment related); and
(ii)the harassment has had and continues to have substantial and adverse effects on workplace relations, workplace performance and/or the "efficient equitable and proper conduct" (cf PS Act, s6) of the employer's business because of the proximity of the harasser and the harassed person in the workplace.
This may be formulated somewhat more narrowly than is necessary, but it is sufficient for present purposes.
Given some of the objections raised by counsel for the applicant against allowing any employer direction against the privately engaged in sexual harassment of a co-employee, I should indicate that the test of lawfulness set out above would not, for example, be likely to justify a direction given against an employee privately harassing a co-employee with whom he or she cohabited or was married, but from who he or she was later estranged. Such a direction would, because of the prior relationship of the parties, be unlikely to satisfy the first of the two conditions noted above.