Yes, you can be fired for workplace harassment. Working in employment law over the years, I’ve seen countless cases where employees thought their behaviour was “just a bit of fun” or “harmless banter” – only to find themselves facing summary dismissal faster than they could say “unfair dismissal claim.”
The reality is stark: workplace harassment has become a career-ending move in modern Australian workplaces, and NSW employers are taking an increasingly zero-tolerance approach to this behaviour.
What Counts as Workplace Harassment That Can Get You Sacked
Sexual Harassment – The Big One
Sexual harassment is explicitly recognised as serious misconduct under Employment Law in the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). This isn’t just about obvious cases either. You’d be surprised how quickly seemingly innocent actions can cross the line.
Take the recent Sydney Water case where an employee was awarded $200,000 after a safety poster featuring her image with the slogan “Feel Great – lubricate!” was displayed around male-dominated workplaces [1]. The Fair Work Commission found this created a sexualised workplace environment that constituted harassment. The company’s failure to properly investigate made things worse.
Another case, John Keron v Westpac [2022] FWC 221, involved a financial services manager with 35 years of unblemished service who was summarily dismissed for briefly touching a female colleague’s backside at after-work drinks [2]. The Fair Work Commission upheld the dismissal, noting that community standards around workplace conduct have fundamentally shifted.
Workplace Bullying – More Than Just Being a Bit Rough
Work Health and Safety legislation defines workplace bullying as “repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”. This covers a surprisingly broad range of behaviours that many people might dismiss as normal workplace friction.
Examples include abusive language, aggressive behaviour, humiliating comments, deliberately excluding someone from activities, or withholding work-related information. What makes this particularly dangerous for your job security is that bullying doesn’t need to be physical – psychological harassment counts just as much.
The Serious Misconduct Standard
Sexual harassment and workplace bullying fall under the category of “serious misconduct”. This means employers can dismiss you without notice, without pay in lieu of notice, and without going through the usual progressive discipline process.
Serious misconduct fundamentally breaks down the employment relationship. Once you’ve crossed this line, there’s often no way back, but your employer should look at mitigating circumstances such as any medical conditions, family or personal situations etc.
Your Legal Position When Facing Harassment Allegations
The Investigation Process
Before you can be dismissed for harassment, your employer must conduct a proper investigation. I’ve seen many cases where employees thought they could challenge their dismissal based on procedural unfairness, and sometimes they’re right.
A recent case involving a BHP coal worker with 38 years of service demonstrates this perfectly [3]. Despite substantiated sexual harassment allegations, the Fair Work Commission found the dismissal unfair because the investigation was rushed, lacked independence, and used poor investigative techniques. The entire process took only five days from allegation to dismissal.
However, don’t simply rely on procedural errors to reinstate your job or win you an unfair dismissal case. Procedural fairness is only one aspect of unfair dismissal. When investigations are done properly, dismissals for harassment are routinely upheld by the Fair Work Commission. It is important to speak to an employment lawyer to assess your prospects of success. Often what feels unfair is not unfair legally speaking.
What Happens During a Proper Investigation
Your employer should provide you with specific details of the allegations so you can respond properly. You’re entitled to have a support person present during dismissal meetings. The investigation should be conducted by someone impartial – not your direct supervisor who might have their own agenda.
You may be given a “show cause” letter after the initial meeting. This is another opportunity for you to provide your side of the story and explain why you shouldn’t be dismissed. There is no normal timeframe to respond. Case law says 24 hours is sufficient, but often employers will give more time for you to consider it but that is not always the case. Either way, use this time wisely – get legal advice if you can afford it. At Fair Workplace Solutions, we offer affordable packages that could suit your needs well.
The Changing Landscape – Why Harassment Gets You Fired
Community Standards Have Shifted
The Fair Work Commission has been crystal clear about this: community standards around workplace behaviour have fundamentally changed. What might have been tolerated or brushed off 20 years ago is now considered completely unacceptable.
Recent amendments to the Fair Work Act specifically identify sexual harassment as a valid reason for dismissal. This wasn’t just legislative housekeeping – it was Parliament sending a clear message that harassment has no place in Australian workplaces.
The Rise of Positive Duty
NSW employers now operate under positive duty requirements, meaning they must proactively prevent harassment rather than just respond to it after the fact. This has made employers much more sensitive to harassment complaints and more likely to take decisive action when issues arise.
Companies are conducting more comprehensive training, implementing stricter policies, and taking a zero-tolerance approach because they know they can face significant legal and financial consequences if they don’t.
Your Options If You’re Dismissed for Harassment
Unfair Dismissal Claims
You may be able lodge an unfair dismissal application with the Fair Work Commission within 21 days of your dismissal [4]. However, your chances of success are slim if the harassment allegations are substantiated. It is best to get advice from an employment lawyer on your prospects of success.
The Commission will look at whether you had a valid reason for dismissal (harassment qualifies), whether the process was fair, and whether the dismissal was proportionate to the misconduct. Even with procedural errors, substantiated harassment often justifies dismissal.
When You Might Have a Chance
Your best prospects for challenging a harassment dismissal typically involve serious procedural unfairness during the investigation. This might include rushed investigations, biased investigators, or failure to properly consider your response to allegations.
Alternatively, if you can prove the allegations were false. Unfortunately, your word is not enough.
However, I’ve observed that employers are getting much better at conducting proper investigations, making successful challenges less common.
Protecting Yourself from Harassment Accusations
Understanding the Rules
Every workplace should have clear policies about acceptable behaviour. Read them. Understand them. Follow them religiously. Don’t assume that because something was okay at your last job, it’ll be fine at your current one.
Different industries and companies have different cultures, but harassment is harassment regardless of whether you’re working on a construction site or in a corporate office. The legal standards are the same everywhere.
The Reality Check
If you’re reading this because you’re worried about your own behaviour, that’s probably a good sign – it means you’re capable of self-reflection. The employees who get into serious trouble are often those who refuse to adapt their behaviour to modern workplace standards.
Remember that your intent doesn’t matter as much as the impact of your actions. Saying “I was just joking” or “I didn’t mean anything by it” won’t save your job if your behaviour creates a hostile work environment for others.
Sources:
[2] https://www.fwc.gov.au/documents/assets/
