The Positive Duty to Prevent Sexual Harassment: Lessons From an Independent Expert Review

As industry specialists with over a decade of experience it is not uncommon for Effective HR to be engaged as an independent expert in serious workplace matters, including cases that progress through formal litigation.

In one such matter, we were asked to review the actions of an organisation, referred to here as Company A and assess whether they had taken “all reasonable steps” to prevent harm to Employee X.  

For confidentiality and privacy, all company names and employee names have been removed and de-identified.

While the specifics of the case are unique, the lessons for employers are not. In fact, they highlight some of the most common, and most preventable gaps we see across Australian workplaces. This goes to the heart of the positive duty to prevent sexual harassment: under the Sex Discrimination Act, employers must take proactive, reasonable steps to eliminate harassment, not simply respond once it has happened.

At Effective HR, we intentionally reflect on what went wrong in these cases so that:

• Other employers can learn from it

• Risks can be identified earlier

• And ultimately, workplaces can reduce discrimination and harm
  

Because the goal isn’t just compliance, it’s prevention.

What Went Wrong at Company A

When we reviewed the case, the issues weren’t isolated, they were systemic.

Here’s what stood out:

1. “We Have a Policy” (But Not All Policies Are Created Equal)

Company A did have a policy, but it was surface level. It mentioned sexual harassment, but it didn’t actually help anyone understand what that meant in practice. It didn’t guide behaviour, it didn’t explain what to do if something happened, and it didn’t set out how the company would respond. 

At Effective HR, we take a very different approach. We don’t just create policies that tick a compliance box, we build ones that people can actually use. Policies that clearly set expectations, walk employees through what to do, and give managers confidence in how to respond. Because in real life, in those moments that matter, your policy should feel like a guide, not just a document sitting in a folder.

2. No Training = No Understanding

When looking at Company A, there was no evidence of meaningful training being provided to employees, including Employee X.

The lack of training caused the gap between expectation and reality to widen, because without training, employees engaged at Company A weren’t truly equipped to understand where the line was, until it had already been crossed. And by that point, the impact on Employee X had already occurred.

At Effective HR, we approach training very differently.

We can either support you in rolling out your policies effectively, including training of all employees, or we can provide you with the blueprint on how you can roll them out within your business successfully.

We use real workplace scenarios so employees can see how situations play out, not just read about them. We build confidence in how to respond, and importantly, we equip managers with the skills they need to handle complaints properly.

Because training shouldn’t be a one-off exercise, it should shape behaviour across the entire business.

3. Employees Didn’t Feel Safe to Speak Up

This is where things escalate quickly, and in the case of Company A, this was a critical failure. 

There was no clear or trusted pathway for employees, including Employee X, to raise concerns. Reporting options weren’t well defined, confidentiality wasn’t maintained, and complaints weren’t handled in a way that built trust.

In reality, this often means concerns aren’t raised early, when they’re easier to manage. Instead, they sit below the surface and grow, which is exactly the kind of environment that increases risk to employees like Employee X.

At Effective HR, we know that a policy is only as strong as the system behind it.

We don’t just help you design reporting frameworks, we give you the blueprint for how they operate in practice, including how complaints are received, who handles them, and what happens next. And where needed, we support training your team so they know exactly how to manage these situations with confidence and consistency.

Because if your people don’t feel safe to speak up, you don’t have visibility of risk.

4. Culture Was Compounding Risk (Not Reducing It) 

When we look at Company A, the culture itself played a role in increasing risk to employees, including Employee X.

Work events. Alcohol. Leadership behaviour. These weren’t managed in a way that reduced risk. 

Because culture is what people experience day to day. When expectations aren’t clearly set, and leadership behaviour doesn’t align, the environment itself can start to increase the likelihood of misconduct. This becomes a compounding issue because once certain behaviours become normalised, they’re much harder to correct.

At Effective HR, we work closely with employers to get ahead of this.

We provide a clear support for managing higher-risk environments, like work events and alcohol and support you in rolling this out across your business. That includes setting expectations, implementing practical controls, and ensuring leaders understand the role they play in shaping behaviour.

Because ultimately, it's the behaviour you tolerate, accept, reward and ignore that forms your culture. not what's written down in dusty documentation. At the end of the day, the lived experiences of your employees like Employee X is what results in complaints and disputes.

5. Known Risks Were Ignored

This is the turning point in most cases, and it was a key issue for Company A. A high-risk situation became known internally, one that had the potential to impact Employee X, and no meaningful action was taken and this is where the risk shifts significantly.

Once an employer is aware of a risk, they are legally required to take reasonable and proportionate steps to prevent harm. Failing to do so doesn’t just create cultural issues, it may constitute a breach of their obligations under workplace and discrimination laws.

At Effective HR, this is where we provide very direct, practical support, if you haven’t sought professional HR support before this point, this is the time to do it.

We give you a clear blueprint for managing complex, high-risk situations, including workplace relationships and power imbalances. We guide you through the immediate steps that need to be taken and support you in implementing those changes, whether that’s restructuring reporting lines, introducing independent oversight, or training leaders on how to manage the situation appropriately. 

Because at this stage, getting it wrong isn’t just a people risk, it’s a legal one!

The Positive Duty To Prevent Sexual Harassment: Judged on Action, Not Intent

The positive duty to prevent sexual harassment changes the test. Under the Sex Discrimination Act 1984, the Work Health and Safety Act 2011 and state and territory laws, employers are no longer judged on intent, they are judged on action.

And more importantly, you are expected to prevent risk, not just respond to it.

The Effective HR Difference

Most businesses don't end up in a matter like this because they don't care. They end up there because they assume a policy is enough, they underestimate how much culture drives risk, and they never turn "reasonable steps" into something that actually operates day to day.

That gap, between having the documents and living the practice, is where harm happens and where liability sits.

What we do, before it gets to this point

Effective HR works with employers so they never reach this position. Trusted by 500+ organisations and engaged as independent experts in serious workplace matters, our HR and IR specialists build the things that prevent harm rather than just document it:

• Policy frameworks that guide behaviour, not just tick a box

• Training that builds real confidence and accountability, for staff and managers

• Reporting systems your people actually trust and use

• Risk audits that surface gaps early, while they are still cheap to fix

• Hands-on support for the high-risk, high-stakes situations when they arise

  
  

Where to start

You don't have to do everything at once. A handful of changes move the needle quickly:

• Anonymous reporting, so issues surface early

• A clear, consistent investigation process, so nothing is mishandled

• Sensible event and alcohol controls, to reduce misconduct risk

• A relationship disclosure framework, to manage power imbalance

• Scenario-based training, so your team knows what to do when it counts

  
  

Talk to us

The cost of getting ahead of this is always lower than the cost of unwinding it later. If you want to know where your real risks sit, we will look at your policies, training, reporting and culture, and tell you plainly what, if anything, needs to change.

Book a free consult or get in touch. 1300 28 28 16

The Effective HR Way: when HR is done well, people feel supported, leaders feel confident, and organisations can focus on the work that actually matters.