Workplace sexual harassment and bullying are serious issues, and Australian law is clear that everyone has the right to a safe work environment. Recent court cases emphasise that our legal system is taking these issues very seriously, resulting in significant compensation for victims.

This article breaks down what sexual harassment and bullying mean in the Australian workplace and provides insights from recent decisions on sexual harassment claims. The information is general only – if you’re experiencing issues in your workplace, we recommend seeking the assistance of an experienced lawyer for advice tailored to your circumstances.

What is Sexual Harassment?

In Australia, sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth) and state/territory anti-discrimination laws.

Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person would have anticipated could offend, humiliate, or intimidate the person being targeted.

Sexual harassment does not need to be repeated behaviour – a single incident is enough.

Examples of this unwelcome conduct can include:

• Physical Contact: Unwelcome touching, hugging, kissing, or deliberately brushing against someone.

• Verbal or Written Conduct: Sexually suggestive comments or jokes, intrusive questions about a person’s private life, unwelcome requests for sexual favours, or sending sexually explicit messages, emails, or texts.

• Visual Conduct: Staring or leering, or displaying sexually explicit pictures or posters.

• Creating a Hostile Environment: Behaviour that makes the entire work environment uncomfortable or threatening in a sexual way, even if not directed at a specific person.

What is Workplace Bullying?

Workplace bullying is slightly different from sexual harassment. Bullying is defined under the Fair Work Act as when a person or group of people repeatedly and unreasonably behave towards a worker or group of workers, and that behaviour creates a risk to health and safety.

While bullying is repeated and often involves actions that harm a person’s well-being, sexual harassment is specifically defined by its sexual nature and does not need to be repeated. However, some repeated forms of sexual harassment can also be considered bullying.

Important Note: Reasonable management action carried out in a reasonable way – such as taking disciplinary action or managing poor performance – is not considered bullying.

The Law in Action: Key Lessons from Recent Cases

Recent decisions from Australian courts and tribunals highlight that serious workplace misconduct has severe consequences and that legal compensation is increasing to reflect the significant harm caused and evolving community standards.

Case 1: Sexual Harassment and Victimisation by an Employer

In the case of Magar v Khan [2025] FCA 874, an employee successfully sued her employer’s director for sexual harassment and victimisation.

The Conduct: The director engaged in a series of disturbing and explicitly sexual acts, known as the “Car Incidents”, including discussing sexual matters and involving sex toys, as well as humiliating and inappropriate comments about the employee’s sex life (the “Hickey Incident”). The employee eventually stopped going to work due to the fear and psychological distress caused by the director’s conduct.

The Result: The Court was satisfied that the harassment had a profound impact on the victim, who was a young, vulnerable woman with existing mental health issues, and found the employer breached the law. The judge noted that threatening to sue the victim for defamation after she complained (victimisation) was a dangerous and wrongful attempt to stop her from pursuing her rights.

The total compensation awarded was $305,000, comprising:

• General Damages for Harassment: $160,000.
• Compensation for Economic Loss: $130,000 for past and future inability to work due to her condition.
• Damages for Victimisation and Aggravation: $15,000, including for the improper way the defence was conducted at trial.

Case 2: Sexual Harassment and Assault in a Small Business

In JF v Oishi Teppanyaki & Café Pty Ltd & Anor [2025] QIRC 209, a restaurant employee, JF, successfully brought a complaint against her employer following a sexual assault incident.

The Conduct: The employer first propositioned JF for sex and, upon her refusal, later subjected her to a violent and physically intimate sexual assault, even locking the doors of the restaurant to prevent her escape. The employer was later convicted of a criminal offence for the assault.

The Result: The tribunal found the employer’s conduct was predatory and a serious violation of her rights, leading to a diagnosis of severe and chronic Post-Traumatic Stress Disorder (PTSD).

The total compensation awarded was $150,000, comprising:

• General Damages: $140,000 for the ongoing pain, suffering, and the profound detrimental impact on her life.
• Aggravated Damages: $10,000 because the employer deliberately locked the doors to prevent her from leaving, which heightened her fear and sense of danger.

Key Takeaways for Employees

• A Single Incident is Enough: You don’t have to endure repeated bad behaviour for it to be considered sexual harassment. A single, serious instance can be grounds for a complaint.

• It’s Unwelcome, Not Explicit: The law focuses on whether the conduct was unwelcome and sexual in nature, not whether it was intended to cause harm.

• Your Wellbeing is a Priority: The courts recognise that psychological injuries, like PTSD, anxiety, and depression, are a serious consequence of harassment and award compensation to cover these impacts and the inability to work.

• Victimisation is Also Unlawful: If you make a complaint, your employer or the alleged harasser cannot take action against you (like threatening legal action or firing you) in retaliation. This is known as victimisation and is a separate, unlawful act that can attract significant penalties and damages.

• Seeking Help is Vital: The law provides mechanisms to help you stop the harassment and seek compensation. Don’t face it alone.

Practical Steps to Take

If you are experiencing or have witnessed sexual harassment or bullying, taking clear steps is important to protect yourself and your rights:

• Keep Records: Write down the details of every incident as soon as possible – what happened, when, where, and who was present. Keep copies of any relevant emails, messages, or documents.

• Speak Up: If you feel safe to do so, clearly tell the person their behaviour is unwelcome and ask them to stop.

• Use Internal Processes: Report the conduct to your supervisor, a manager, or the Human Resources (HR) department.

• Seek External Advice: Contact one of the following for free, confidential advice:
• The Australian Human Rights Commission (AHRC).
• The Fair Work Commission (FWC).
• Your relevant state or territory Anti-Discrimination or Equal Opportunity body.
• A lawyer who specialises in employment law or anti-discrimination matters.

Remember: Australian law places a clear positive duty on employers to take proactive and meaningful action to prevent sexual harassment and other unlawful behaviours from occurring in the workplace. If they fail to do this, they may be liable.

If you or someone you know wants more information or needs help or advice, please call 07 3281 6644 or email mail@powerlegal.com.au.

An employee dismissed after 23 years of service for speeding detected by a motorcycle tracking device. Another employee found to have been unfairly dismissed despite sharing pornographic material at work. Understanding key principles and the importance of process when dealing with serious misconduct in the workplace can make a big difference to the outcome of an unfair dismissal claim.

What Counts as Serious Misconduct?

The Fair Work Regulations define “serious misconduct” to include wilful and deliberate behaviour by an employee that is inconsistent with the continuation of the employment contract and which causes serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business.

Examples include:

• Theft
• Fraud
• Assault
• Sexual harassment
• Intoxication at work
• Refusing to carry out a lawful and reasonable direction

If an employee has engaged in serious misconduct, their employment can be immediately terminated without notice. However, getting it wrong can open the door to an unfair dismissal claim, particularly where the alleged conduct is not sufficiently serious to warrant immediate dismissal.

The Fair Work Commission does not apply a fixed checklist. Instead, it assesses each situation on its own facts, weighing the nature of the conduct, the employee’s role and seniority, applicable workplace policies and whether the employer followed a fair process. This case-by-case approach means the threshold is not static. Relying on a rigid contractual definition of misconduct, or assuming a particular behaviour will automatically justify summary dismissal, is a risky approach.

The Impact of Technology on Detecting Serious Misconduct

While the legal test for serious misconduct has not changed materially; what has changed is the range of conduct employers can now detect and prove. Electronic tracking devices, telemetric monitoring and communications surveillance have expanded the range of conduct that can be detected and substantiated. Behaviours that may have previously been invisible to employers, such as speeding in a work vehicle, idle time during work hours and inappropriate electronic communications, can now be detected more readily.

A recent Fair Work Commission decision illustrates this.

In Jackie Du v Australian Postal Corporation [2026] FWC 1134, a long-serving postal worker was dismissed after telemetric devices attached to delivery motorcycles revealed a pattern of speeding, including riding at 22 km/h on footpaths (over twice the speed limit), and what the Commission characterised as “wilful idleness”, evidenced by gaps of 20 to 54 minutes between delivery scans during work hours.

Despite 23 years of service, the Commission found the dismissal was justified. The tracking evidence was compelling, the conduct was deliberate, and the employer had followed a proper process.

Procedural Fairness: Why Process Matters

While technology might enable detection, it does not eliminate procedural obligations. Employers must distinguish between what they can now detect and what they can lawfully act upon. Before moving to dismissal, employers still need to put the evidence to the employee, allow a genuine response, and consider the full circumstances. Skipping those steps, even with clear electronic evidence in hand, can turn a defensible dismissal into a costly claim.

In Mr Daniel Thomas v Bin Boy Environmental Pty Ltd [2026] FWC 917, an employee was dismissed after sharing pornographic material at work and making inappropriate comments via a workplace messaging application. The conduct was serious, and the Commission accepted it constituted a valid reason for disciplinary action. Yet the Commission found the dismissal unfair, because the employer had not provided adequate warning and had not given the employee a genuine opportunity to respond to the allegations before the decision was made. Commissioner Tran was critical of the employer’s “relaxed approach to procedural fairness”.

Procedural requirements are non-negotiable. Employers should conduct a fair and impartial investigation, provide the employee with written notice of the specific allegations, and allow a genuine opportunity to respond. That opportunity must be meaningful. In some circumstances, a written response alone may not be sufficient. Employees may be entitled to a meeting or hearing where they can explain their conduct in person, particularly where the allegations are complex or the consequences severe.

Documentation matters too. Every step in the disciplinary process should be recorded. If a decision is later challenged before the Commission, the employer will need to demonstrate not just what the employee did, but how the employer responded.

Out-of-Hours Conduct: When Personal Behaviour Becomes Workplace Misconduct

The boundaries between work and personal life have blurred considerably, particularly with the rise of remote work, social media, and digital communication. Out-of-hours conduct may constitute serious misconduct where it causes serious damage to the employer-employee relationship, damages the employer’s interests, or is incompatible with the employee’s duties.

As established in Rose v Telstra Corporation Ltd [1998] AIRC 1592, the leading authority on this principle, out-of-hours conduct will only justify dismissal if it meets this threshold: the conduct, viewed objectively, must be “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee”. The conduct must have a real and demonstrable connection to the employment relationship not merely reflect personal choices the employer finds distasteful.

Reputation-sensitive industries like media, education, and public-facing roles face scrutiny of personal conduct, but the Commission and courts have been equally willing to find in the employee’s favour where the connection to the employer’s interests is not made out, or where the employer’s own process was deficient. Employers should also be alert that dismissals connected to public controversy can raise a separate legal risk beyond unfair dismissal: if the conduct in question touches on a protected attribute, such as an employee’s political opinion, a termination decision may expose the employer to a general protections claim under the Fair Work Act, which carries its own, distinct evidentiary and procedural requirements.

Critically, employers cannot simply assert that out-of-hours conduct has damaged their reputation. They must provide actual evidence of that damage. Vague claims about reputational harm, without supporting material, are unlikely to satisfy the Commission.

Practical Steps for Employers

Getting disciplinary decisions right requires preparation long before any incident occurs. A few practical measures can significantly reduce exposure.

• Review and update workplace policies regularly. Policies should reflect contemporary workplace challenges, including electronic communications standards, remote work expectations, and the use of monitoring technologies. Outdated policies can create gaps that employees and their representatives may exploit.

• Set clear behavioural expectations. Employment contracts and workplace policies should articulate standards for conduct, including out-of-hours behaviour where it is genuinely relevant to the role or industry. Employees cannot be expected to meet standards they were never told about.

• Conduct fair, independent investigations. Do not rely solely on third-party reports or surveillance data without verification. Investigate thoroughly and approach the process without a predetermined outcome.

• Provide written notice and a genuine opportunity to respond. Put the specific allegations in writing. Allow the employee time to consider them and respond, including through a meeting if they request one.

• Ensure proportionality and consistency. Disciplinary outcomes should be consistent and proportionate to the conduct.

• Document everything. Records of investigations, meetings, notices, and decisions are your evidence if the matter proceeds to a hearing.

Conclusion

Serious misconduct in the workplace is a moving target, shaped by technology, changing workplace culture, and an evolving body of case law. Employers who understand this, and who invest in sound policies and fair processes, are far better placed to make defensible disciplinary decisions.

This article provides general information only and does not constitute legal advice. If you are facing a disciplinary matter or want to review your workplace policies, speaking with a qualified employment lawyer is advisable before acting.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Have you ever looked at your payslip and thought that something isn’t right? Maybe your hourly rate seems too low, you’re not getting paid for overtime, or your superannuation hasn’t been paid into your account. These situations, if they are not honest mistakes, could be a form of wage theft.

This article explains what ‘wage theft’ means, the national laws that make it a criminal offence, and the practical steps employees can take if they believe their employer is deliberately underpaying them.

The information is general only and does not constitute legal advice. For help and guidance with any workplace matter, we recommend you speak with an experienced employment lawyer.

Wage Theft Laws in Australia

In Australia, the law now takes a serious stance on the issue of wage theft. From 1 January 2025, intentionally underpaying an employee’s wages or entitlements can be a criminal offence, as provided in the national Fair Work Act (Cth) 2009. Employers can face criminal penalties for intentionally underpaying their staff.

These laws complement or reinforce existing legislation in some other jurisdictions, such as Queensland and Victoria, that already criminalise the deliberate underpayment of wages.

What is ‘Wage Theft’ and What are the Red Flags?

Wage theft is the deliberate and dishonest underpayment of an employee’s correct wages and entitlements. This is different from an honest mistake, which can happen in any business due to a payroll error or a misunderstanding of an award or agreement.

Wage theft can include:

• Paying less than the legal minimum wage: This is the most straightforward form of wage theft. The Fair Work Act mandates a national minimum wage, which is reviewed annually by the Fair Work Commission. This provision ensures that all employees receive a fair and reasonable wage for their work, regardless of their industry or occupation.

• Not paying for all hours worked: This might include the requirement of unpaid ‘trial shifts’ or asking an employee to work off the clock.

• Not complying with modern awards/enterprise agreements: Modern awards are industry, or occupation, specific legal documents that outline minimum pay rates and employment conditions for specific sectors. Enterprise agreements are negotiated between employers and employees (or their unions) and provide tailored conditions for a particular workplace. Both instruments play a role in preventing wage underpayment by setting clear and enforceable standards.

Deliberately failing to pay penalty rates such as for evening, weekend, or public holiday work, or not paying for overtime or allowances as provided for in an award or an agreement, could constitute wage theft.

• Underpaying or not paying superannuation: The Superannuation Guarantee (Administration) Act 1992 (Cth) requires employers to pay a percentage of their employees’ earnings into a superannuation fund.

• Incorrectly classifying a worker: An employer might call a worker a ‘casual’ when their working pattern suggests they are a permanent employee or classify the employee in a lower pay bracket than the job requires.

Taking Action

If you suspect you’ve been a victim of wage theft, it is important to approach the situation in a calm, methodical way. Here are the steps you can take:

Step 1: Check Your Entitlements

First, you need to be sure that you have been underpaid. You can use the Fair Work Ombudsman’s Pay and Conditions Tool to check your correct pay rates, including any penalty rates or allowances that apply to your industry award. This will give you a clear picture of what you should have been paid.

Step 2: Gather Evidence

Once you know what you should be paid, you need to collect evidence to support any action you might take. Your best resources are:

• Your payslips: If your employer provides them, check them carefully. Do the hours and pay rates look correct?
• Your bank statements: These show exactly what you have been paid.
• Your own records: Keep a diary or use an app to record the hours you work, including any overtime, breaks, and the tasks you performed. This can be your timesheet if your employer has not kept accurate records.

Step 3: Talk to Your Employer

The thought of confronting your employer may seem daunting, but sometimes underpayments are just an honest mistake. Try to arrange a private meeting with your employer or a manager and present your findings calmly and factually. It’s a good idea to write down what was discussed and any agreement reached. If you’re a member of a union, you can ask a union representative to come with you.

Step 4: Contact the Fair Work Ombudsman

If talking to your employer doesn’t work, or you don’t feel comfortable doing so, you can make a formal complaint to the Fair Work Ombudsman (FWO). This is the government body responsible for investigating and prosecuting wage theft.

The FWO can:

• Investigate your complaint
• Contact your employer on your behalf
• Mediate a resolution between you and your employer
• In serious cases, take legal action against your employer to recover your unpaid wages and seek penalties

You can also make an anonymous tip-off to the FWO if you’re not ready to make a formal complaint but want to report a problem.

Step 5: Consider Legal Action

If all else fails, you may need to consider taking legal action to recover your unpaid wages. This is often done in a court, such as the Federal Circuit and Family Court of Australia.

The court process can be complicated, but there is a small claims procedure for amounts of $20,000 or less, which is designed to be more accessible for individuals without a lawyer. However, a lawyer can help you understand your options, represent you, and ensure you have the best chance of recovering what you are owed.

Conclusion

From 1 January 2025, deliberately underpaying an employee is a criminal offence across Australia. If you are a victim of wage theft, there are resources and legal pathways available to help you get the money you are owed.

If you or someone you know wants more information or needs help or advice, please call 07 3281 6644 or email mail@powerlegal.com.au.