This article examines the legal definition of sexual harassment, analyses employer responsibilities, and considers recent landmark cases. It also outlines the essential steps employers should take to reduce risk in this area.

What is Sexual Harassment?

By its legal definition, sexual harassment is any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

The SDA provides that unwelcome sexual harassment is unlawful. It is also unlawful for a person to be victimised for making, or proposing to make, a complaint of sexual harassment.

Examples of sexually harassing behaviour may include, but are not limited to:

• unwelcome touching, hugging or kissing;
• staring or leering;
• suggestive comments, innuendos or jokes;
• the display of sexually explicit pictures, screen savers or posters;
• unwanted invitations to go out on dates or requests for sex or other acts of a sexual nature;
• intrusive questions about an employee’s private life or body;
• unnecessary familiarity;
• insults or taunts based on one’s sex;
• sexually explicit emails or SMS messages;
• accessing sexually explicit internet sites; and
• behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

Sexually harassing behaviour can take the form of physical, verbal or written behaviour. It also does not have to be continuous or repeated in order to constitute sexual harassment and can take place in one single incident.

A sexually hostile working environment, where conduct creates an offensive, intimidating, or humiliating atmosphere on the ground of sex, constitutes unlawful sexual harassment. Previous case law has indicated that a potentially hostile working environment may be created by conduct which could include displays of obscene and pornographic material, sexual banter, crude conversation or innuendos and offensive jokes.

What is the Positive Duty?

The SDA imposes a positive duty on all organisations and businesses to eliminate various forms of unlawful behaviour. The AHRC refers to such behaviour as ‘relevant unlawful conduct’.

The relevant unlawful conduct incudes:

• discrimination on the grounds of sex in a work context;
• sexual harassment in connection with work;
• sex-based harassment in connection with work;
• conduct creating a workplace environment that is hostile on the grounds of sex; and
• related acts of victimisation.

The positive duty imposes a legal obligation to take proactive and meaningful action to prevent and eliminate, as far as possible, the relevant unlawful conduct, shifting the focus to an active prevention system. It is the responsibility of the business or organisation to eliminate sexual harassment, sex discrimination and other relevant unlawful conduct and to prevent such conduct from occurring within the workplace or in connection with work.

Organisations are expected to adopt a preventative approach to harassment in the workplace, rather than a reactive one (once such conduct has already occurred) to fulfill their legal obligations. This duty applies universally, encompassing sole traders, self-employed individuals, large businesses and government entities.

Recent Cases

Our Courts are increasingly awarding higher damages in sexual harassment cases to emphasise the severity of such matters and the harm caused, a trend we have seen in recent landmark cases. The cases of JF v Oishi Teppanyaki & Café Pty Ltd & Anor [2025] QIRC 209 (the JF v Oishi case) and Magar v Khan [2025] FCA 874 (the Magar v Khan case) are two such examples.

In the JF v Oishi case, a female waitress worked alongside the owner and his wife at Oishi Teppanyaki & Café Pty Ltd, which traded as ‘King of Grill’. The owner requested the waitress stay during her break to have a drink with him, at which time he asked if she would have sex with him, which she refused. Towards the end of her dinner shift, the owner then proceeded to grab the waitress and touch her on her buttocks and crotch over her clothes.

The owner continued to sexually assault the waitress while she attempted to escape, telling him she wanted to go outside for a cigarette, at which point she discovered that he had locked the doors. After the assault the waitress’ health declined exponentially and she was diagnosed with PTSD, panic attacks, intrusive thoughts, anxiety and depression.

The waitress filed a complaint with the police, and the owner was criminally charged with several offences, including one count of sexual assault to which he pleaded guilty. The waitress then filed a civil claim for sexual discrimination and victimisation against the owner in his personal capacity and the café as her employer based on the principle of vicarious liability. However, the business was ultimately deregistered and the waitress ceased pursuing her claim against it.

The Queensland Industrial Relations Commission held that the conduct had a “profound and significant detrimental impact” on the waitress and that a degree of permanent impairment existed. Thus, the Commission awarded the waitress $140,000 in general damages, $10,000 in aggravated damages and two-thirds of her costs.

Similarly, in the Magar v Khan case, the Federal Court of Australia awarded $305,000 in damages to the applicant, making it a landmark case notable for being among the highest awards for a sexual harassment claim in Australia. For the first time since its inclusion in the SDA, the Court assessed the meaning of ‘sex-based harassment’ and found that unlawful sexual harassment and victimisation had occurred.

The applicant, Ms Magar, was employed by the Mad Mex franchise. She accused her boss and the franchise owner, Mr Sher Khan, of sexual harassment. Important to the case, Ms Magar was vulnerable at the time of the harassment as she had experienced a brief episode of psychosis and was hospitalised, adding to her case a further element of power imbalance. Additionally, Ms Magar had only recently moved to Australia from Nepal and was 22 years old at the time of the conduct.

Ms Magar alleged harassment on the grounds of sex, sexual harassment and victimisation as follows:

1. Harassment on the grounds of sex: Ms Magar alleged that Mr Khan and other male staff would make derogatory remarks and sexual comments about women, both customers and staff. She further alleged that a manager of hers commented on her skinny jeans, at which time she raised this with Mr Khan, and he requested that she not make the manager uncomfortable, and that she should no longer wear skinny jeans.
2. Sexual harassment: Ms Magar alleged that Mr Khan engaged in conduct such as questioning her about a visible hickey and her sexual activity, using vulgar language. She also alleged that Mr Khan asked about her sexual preferences (such as if she would have sex with other staff members, including an underaged staff member). She claimed that Mr Khan showed her pornographic material and his sex toys, asking how she would use them and touching her with them. Mr Kahn also invited Ms Magar to attend a massage parlour and a hotel with him to watch pornography.
3. Victimisation: Ms Magar raised a complaint with Mad Mex prior to initiating legal proceedings, which was investigated. At this time, Mr Khan established that it was Ms Magar behind the complaint and issued her with a ‘concerns notice’ via his lawyers, alleging defamatory comments and requesting damages.

The Court held that, while a sexist and boorish workplace culture existed, the harassment on the grounds of sex was not individually targeted towards Ms Magar and therefore Justice Bromwhich was not satisfied with her claim on these grounds. However, the Court was satisfied with the claims of sexual harassment and victimisation because Mr Khan’s conduct met the definition of sexual harassment contained in  the SDA and the concerns notice was sent to Ms Magar with the intention of intimidating her.

The findings in both of the cases discussed above indicate that, while recognising hostile workplace culture is important, it is ultimately the employer’s proactive measures and compliance with their positive duty that are decisive in eliminating and preventing harassment in order to protect employees.

Employer Responsibilities

Every business owner, as an employer, has a responsibility to foster a safe and respectful workplace, and meeting the positive duty is key to protecting employees from sexual harassment. To this end, there are a number of strategies and practices employers should implement in their business to assist in addressing unacceptable behaviour and/or conduct in the workplace.

1. Implement clear workplace policies

It is essential to have workplace policies that clearly define the standards of behaviour expected from employees and outline the consequences of any breaches. These policies should include a dedicated sexual harassment policy that explains what sexual harassment is, references the relevant legislation and makes it clear that such behaviour is unlawful and will not be tolerated. Supporting this, a transparent complaints and investigation policy should be in place, detailing the reporting mechanisms available to employees and explaining the processes the organisation follows to address complaints.

2. Establish a code of conduct

A code of conduct defines organisational values, sets behavioural expectations, and guides interactions among employees and clients. A comprehensive code of conduct ensures all individuals understand the standards required and provides a clear benchmark for evaluating both individual and organisational conduct.

3. Provide staff training

Regular training is essential to put workplace policies and values into practice. Employees should receive ongoing education and instruction on sexual harassment and appropriate workplace behaviour, with reference to organisational policies. Training should also equip staff to respond appropriately when witnessing misconduct, thereby fostering a culture in which all employees are accountable for and contribute to a harmonious and respectful environment.

4. Take complaints seriously

Every complaint of sexual harassment must be treated with the highest level of seriousness, urgency and professionalism. The best practice is to engage an independent, external investigator and seek legal advice to minimise bias. Ensure the investigation process and the findings/outcome are well documented.

5. Lead by example

Managers and executives set the tone for workplace culture. Leaders must consistently demonstrate appropriate and respectful behaviour, responding promptly to any reports or complaints. Providing management training ensures that supervisors and leadership teams are equipped to handle these responsibilities effectively and set a positive example for all staff.

6. Be proactive about risk factors

Anticipate situations where risks of inappropriate behaviour are higher by considering social functions, alcohol consumption, remote travel and the use of social apps where people may act recklessly. By identifying these risk factors and clearly communicating the company’s expectations, you can prevent problems before they arise and maintain a safe and professional workplace.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.