Unlawful sexual harassment occurs when a person is subjected to any unwanted or uninvited sexual behaviour that is offensive, intimidating or humiliating. The intention of the offender is irrelevant in determining whether sexual harassment has occurred. What is relevant, is that the two elements of unlawful sexual harassment be established.

Element 1

To establish that unlawful sexual harassment occurred, a person (or persons) needs to have engaged in unwelcome conduct of a sexual nature in relation to another person (or persons).

This requires:

1. The conduct to be unwelcome. This is a subjective question, judged from the point of view of the person subjected to the conduct. Unwelcome conduct simply means conduct that is disagreeable to the person to whom it was directed.
2. The conduct to be of a sexual nature. This is a question to be judged objectively based on the evidence. It doesn’t have to be sexually explicit conduct. Over time, what society considers is or is not conduct of a sexual nature can change. It can be a single act or single incident. Conduct directed to a persons or persons is sexual conduct if it:
   • invites or otherwise explores the prospect of the person or persons participating or engaging in some form of sexual behaviour;
   • suggests the person or persons may have (or may not have) engaged in sexual behaviour;
   • suggests the person or persons may (or may not) engage in sexual behaviour; or
   • suggests the person or persons likes (or does not like) engaging in some form of sexual behaviour.

Element two

For unlawful sexual harassment to have occurred, a reasonable person, having regard to all the circumstances, would need to have anticipated that the person (or persons) would be offended, humiliated or intimidated by the conduct established in element one.

This is to be judged objectively based on the evidence.

Irrelevance of intention

In Johanson v Michael Blackledge Meats, the accidental sale by a butcher to a customer of a bone that an assistant had altered to resemble male genitalia was held to constitute sexual harassment of the customer who purchased the bone.

While the sale of an ordinary dog bone is not conduct of a sexual nature, the Court ruled the provision of a dog bone shaped to resemble a human penis is conduct of a sexual nature. It didn’t matter that the assistant did not intend to act in a sexual way or, indeed, was unaware that they were acting in a sexual way.

In Vitality Works Australia Pty Ltd v Yelda (2021), a poster was displayed at a worksite depot showing a photograph of a female employee over the caption “Feel great – lubricate!”. The employee had agreed to have her photograph taken for the purposes of a work health and safety campaign, but had not been informed that those words would be used.

The employer had engaged a consultancy to design, publish, display and distribute the poster. The consultancy created the poster, provided it to the employer and directed that the poster be displayed at the depot, where the employee worked.

The NSW Civil & Administrative Tribunal determined both the employer and the consultancy had engaged in sexual harassment of the employee.

The matter was appealed to the NSW Court of Appeal, with the employer and the consultancy arguing that it was not their intent for the poster to have a sexual connotation.

The appeals were dismissed on the basis that intent was irrelevant in determining whether, on an objective basis, the conduct was of a sexual nature.

In deciding the issue, the Court regarded it as irrelevant that the slogan had been used alongside photographs of employees in the past without objection.

The Court ruled the conduct was plainly unwelcome, as it held the employee up to ridicule, making her the poster-woman for sexual self-lubrication to her all-male colleagues. The fact the poster may also have been capable of conveying a safe spine message (which is not obvious) was irrelevant.