Being mistreated after reporting sexual harassment at work

Reporting sexual harassment at work takes courage. There are laws to protect you if you do.

It is against the law for your employer or anyone at work to treat you badly because you made a complaint about sexual harassment. It is also against the law if you were treated badly because you were involved in someone else’s complaint.

What is victimisation?

Victimisation is when someone treats you badly because you:

made a complaint about sexual harassment or discrimination
said you were going to make a complaint
helped someone else with their complaint
gave evidence or information in an investigation or a legal case
asked your employer to follow the law.

It can come from your employer, a manager, or someone you work with.

It does not matter whether your original complaint succeeds.

Even if your sexual harassment complaint is not upheld, it is still against the law to punish you for making it.

What can victimisation look like?

It might include:

being dismissed, or threatened with dismissal
being demoted, or overlooked for promotion
having your hours reduced or your shifts changed for no good reason
being left out of meetings, training or workplace opportunities
being disciplined unfairly, or given a bad performance review
being bullied, intimidated or frozen out by managers or colleagues, or
being threatened because you complained.

Not every change at work is victimisation. The question is whether the unfavourable action happened because you complained or spoke up. An employer must show that they did not treat you badly because you complained or spoke up – this is called the reverse onus.

Time limits

Some claims must be made quickly. If the negative treatment includes being sacked, or you felt you had no choice but to resign, you may only have 21 days from the day your employment ends to challenge the dismissal.

If you are a state public sector or local government employee, any application in relation to victimisation must be filed with the Industrial Relations Commission within 21 days of the victimising conduct.

Other claims have longer time limits. These are explained below.

Get advice as soon as you can – even if you are not sure what you want to do.

What to do if you have been victimised

Get legal advice

Getting advice does not commit you to anything. You can get advice and then choose to do nothing.

A lawyer can:

· tell you whether what is happening to you is victimisation

· work out what time limits apply to you

· explain your options and what each one involves

· suggest the kind of information you might want to collect to support your claim

· write to your employer

· tell you whether you have legal claims other than the original sexual harassment complaint.

Victimisation can be covered by more than one law, and the options differ.
Seek legal advice before you decide anything.

Write down what is happening

Keep a record of:

what happened and when
who was involved
what was said
any changes to your duties, hours or employment conditions
the names of anyone who saw or heard it
copies of any emails, text messages, letters and meeting notes.

Records help show the link between your complaint and how you are being treated. Write down things as they happen, if you are able.

Keep your records somewhere safe. Do not keep notes on a work computer, work phone, or in your work email. Your employer may be able to see them. Use a personal device, a personal email account, a notebook or diary, or paper kept at home.

Report it at work

If you feel safe doing so, report the treatment through your employer’s complaint process.

Say that you believe you are being treated badly because you made, or took part in, a sexual harassment complaint. It is important to explain that the treatment seems linked to the complaint.

Put it in writing or ask for your complaint to be acknowledged in writing.
Take a support person to any meeting – your union representative, a colleague, a friend or a family member.
Ask for any responses to be in writing.
Keep copies of everything.

If you are union member, your union can support you through this process.

If you do not feel safe making a complaint at work, you do not have to.

You can make a complaint outside your workplace instead. Get advice first if you can.

Your options

Depending on your situation, you may be able to:

Complain to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW) or add victimisation to a complaint you have already made.
Apply to the Fair Work Commission (FWC).
Make a general protections claim, if your employer has taken action against you – for example, dismissing you, cutting your hours, or demoting you – because you complained.
Apply to the NSW Industrial Commission.
Make a workers compensation claim, if the harassment has made you unwell.

The options available to you will depend on what has happened. A lawyer will work out which one fits your situation.

If you have already left your job

You can still make a claim after you leave, including if you resigned because the treatment became unbearable.

Before you sign any settlement or agreement, get legal advice.
Once you sign, it can be hard to change your mind or take further action – or in some cases, speak to anybody about what happened.

What might happen

Every case is different. Depending on the path you take, an outcome might include:

· an order that the behaviour stops

· money to make up for what you lost or been through

· getting your job back

· changes to how your workplace does things

· an apology or another agreed outcome.

Many complaints are resolved by agreement rather than by a decision from a court or tribunal. A lawyer can give you a realistic idea of what to expect.

You do not have to choose between protecting yourself and standing up for your rights.

Support

If you need an interpreter, call the Translating and Interpreting Service on 131 450 and ask them to call us.

If you are d/Deaf, hard of hearing, or have a speech impairment, contact us through TTY on 133 677, Speak and Listen on 1300 555 727, or Internet Relay via the National Relay Service website.

Need support, not legal advice? Call Full Stop Australia on 1800 385 578, or 13YARN at 13 92 76 if you are First Nations.