Woman's foot looking for man's foot under a business table.
Woman's foot looking for man's foot under a business table.

Office moment that led to sex complaint

QUESTION: I've been at my job in a large telco for five years. Sometime last year, a new assistant started. I didn't notice her at first, but we got to talking at the Christmas party and have been friendly ever since. We chat at the printer and in the kitchen and go to get coffee most mornings. A few weeks ago, I got up the courage to ask her out for a drink after work. She politely declined, saying she had a policy against dating anyone from work, and although I was a little deflated, we laughed it off and kept chatting as normal as we walked back to the office. That was the end of it, or so I thought. She didn't come to work the next day, or for the rest of the week and then the following Monday, I was called into a meeting with HR to hear that she had made a sexual harassment complaint against me! I don't feel like asking her out once was sexual harassment. What are my rights when it comes to sexual harassment complaints in the workplace? Matt, NSW

ANSWER: Employers are obligated to protect their staff at work, so if there is a complaint of sexual harassment they have to take it seriously and investigate it.

Think about it another way: If your mum, sister, daughter or (future) girlfriend/ wife was being sexually harassed at work, you'd want to make sure their employer was doing something to prevent it happening again.

For there to be sexual harassment under the law, the behaviour needs to be any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature, in circumstances where a reasonable person would have anticipated the possibility that the person would be offended, humiliated or intimidated.

If you've only asked her out once, in a "G-rated" manner, and it was for dinner or a drink rather than "Netflix and Chill" it's unlikely that you've sexually harassed her.

You should ask HR for details of the allegation made against you in writing before you reply, and ask for a reasonable time to respond.

Your response should outline the facts from your perspective, including the history leading up to you summoning the courage to ask her out. If you have any witnesses then include a statement from them too.

It may help if you ask HR if you're able to contact her to apologise for any misunderstanding, that you meant her no offence and you won't ask her again.

If you're concerned her allegation could affect your reputation or lead to termination of your employment, then you may consider making a claim for defamation against her.

Defamation is when someone spreads false material that hurts your reputation, makes people think less of you, want to avoid you, or ridicule you/your work/your profession.

While defamation laws protect a person's reputation, it is not defamatory for HR to speak with you in private about the sexual harassment accusations.

The complaint should be dealt with confidentially and only people who are authorised will be notified. Authorised people include managers, HR, sexual harassment contact officers, and complaints handlers.

So while you may be embarrassed that HR have had a meeting with you and confronted you with these accusations, provided it was in private, it won't be defamatory.

If you find out she has told a lot of people, then to succeed in a defamation claim you must prove that at least one other person heard the false information and secondly, that if a reasonable person heard that information they would think less of you.

The goal of suing someone for defamation is two-fold; to set the record straight and secure an apology, but also win damages (money) for the harm suffered.

If you have been defamed, then you should ask her to stop saying such things and tell others she has told, she was wrong.

If simply asking her nicely fails and you do want to make a claim for defamation against her, bear in mind that not every case will be successful as there are defences.

The main defence being that it is true, or substantially true.

Other reasons it might not be defamation are:

•There was absolute privilege (e.g. something said in parliamentary proceedings or a court) - this sounds unlikely in your circumstances;

•The matter was opinion rather than a statement of fact, honestly held, a matter of public interest and based on proper material; and

•The circumstances were trivial so no reputational damage is likely.

In most states, there is a strict time limit of one year from when the material was published to take legal action, so you should seek immediate professional advice if you find yourself defamed.

If, ultimately, you are terminated from your employment then you may have rights against this dismissal. Strict time limits also apply so you should seek urgent legal advice or immediately contact the Fair Work Commission.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au