Bullying and Harassment
There are several areas you can look at in your workplace to assess whether you might have a bullying problem. You can look at exit interviews, performance appraisals, anonymous surveys, patters of absenteeism, sick leave, staff turnover, grievances, injury reports, WorkCover claims and can also include the organisational culture, leadership styles, systems of work, workplace relationships and workforce characteristics.
Organisational culture can indicate bullying if it accepts or even promotes a ‘tough guy’, ‘dog eat dog’ or ‘harden up’ attitude to interpersonal relationships, performance management and distribution of work.
Leadership styles can indicate bullying if they are particularly forceful, rude or aggressive, demanding, aloof, overbearing or micromanaging.
Systems of work can indicate bullying if they include characteristics such as uneven or unfair distribution of work, excessive intervention in a person’s work, excessive amounts of work, provision of menial or tedious tasks or failure to provide any (or any meaningful) work.
Workplace relationships can indicate bullying if a person or people feel intimidated or threatened by another person’s behaviour, or one or more people are excluded from a larger group and/or social activities.
Workforce characteristics can indicate bullying if the workforce is predominantly made up of a particular homogenous (same/similar) type or group of people. For example, a workforce dominated by sporty, athletic or ‘cool’ types may be prone to excluding or even bullying those perceived as ‘uncool’.
One of the most effective ways to prevent bullying in your workplace is to foster a culture of acceptable behaviour. The best way to control bullying risks is to eliminate the factors that can cause it.
If that is not reasonably practicable, implement measures to minimise the risk. The following control measures should be considered:
- managing the risks in the work environment;
- developing a workplace bullying policy;
- developing effective complaints resolution procedures;
- providing information and training on workplace bullying; and
- encouraging reporting of workplace bullying incidents.
You should implement all these control measures, as far as reasonably practicable.
One of the most effective ways to prevent bullying in your workplace is to foster a culture of acceptable behaviour (i.e. one which excludes unacceptable behaviour). Senior or upper management should drive this culture, as they are the leaders of your business and have the most influence. If they do not, staff may feel that the business is not really behind the culture and pay less attention to the message.
Other measures designed to foster a workplace that is free of bullying include:
- developing performance management and employee discipline procedures that provide for reasonable management action
- training managers to follow these procedures, communicating effectively and engaging workers in decision-making and providing constructive feedback both formally and informally
- proper job design
- systems for reviewing and monitoring workloads and staffing levels
- processes for informal and formal grievances to be raised about workload, role and responsibilities (outside bullying complaints procedure)
- consultation and communication of information during workplace changes
- recruiting good managers
- mentoring and supporting new and poor performing managers and workers
- facilitating teamwork and cooperation
- access to employee assistance programs
- reviewing procedures in light of complaints
- reinforcing ideal workplace culture and relevant policies at team meeting and planning days and committing to them
- identifying situations which may lead to behaviours that are not acceptable and working out together how these may be minimised or prevented
- promoting understanding of different working styles, life experiences and appreciating different perspectives
- discussing how perceptions of behaviours may arise from a lack of knowledge about differences in style
- having a speaker from HR, senior management (e.g. the CEO or Managing Director) or an external organisation come to staff meetings to discuss issues of acceptable behaviour
- arranging an organisational development activity to strengthen your employees’ connections with one another and build understanding about different working and personal styles.
Following the changes to employment law as a result of the Fair Work Amendment Act 2013, workplace bullying is now specifically dealt with in the Fair Work Act
Starting on 1 January 2014, the Fair Work Amendment Act 2013 (Amendment Act) introduces new anti-bullying protections for eligible Australian workers. These protections provide a centralised and specific avenue for redress for bullying, increasing accessibility for workers who were previous forced to pursue compensation for similar conduct via a patch-work of State, Territory and Federal legislation such as anti-discrimination law, general protections under the Fair Work Act, occupational health and safety and workers compensation laws.
The new anti-bullying laws have come about as a result of the House of Representatives Standing Committee on Education and Employment Report of October 2012 “Workplace Bullying, We just want it to stop” report (the Report).
The Report identified that bullying was a major, but often hidden, workplace issue, costing employers on average, $17,000 – $24,000 per complaint. As a result, legislative amendments were introduced to allow eligible workers who have a reasonable belief that they are being bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying.
It is imperative that organisations prepare themselves and put necessary measures to combat bullying in the workplace, including, but not limited to:
- Implementing and/or revising previous bullying policies and procedures;
- Ensuring performance management and disciplinary processes are revised and provide clear guidance for managers / HR practitioners to handle bully complaints and investigations; and
- Providing training to relevant workers in the organisation on any new practices and increasing the awareness amongst staff of the risks of bullying in the workplace.
Under section 789FC of the FW Act, a worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF to stop the bullying. There must be a risk to the workers’ health and safety, as well as a risk that the bullying will continue in the future. Applicants are therefore limited to applications from current workers for an order to stop the bullying.
The inclusion of the term “worker” as opposed to “employee” in these provisions is intended to capture a broader range of individuals than other parts of the FW Act. This wider definition is taken from Section 7 of the Work Health and Safety Act 2011 (Cth) (WHS Act) which defines a worker as an individual who carries out work in any capacity for a person conducting a business or undertaking (PCBU) and includes the following:
- employees of contractors or subcontractors
- employees of labour hire companies who are assigned to work in a host business or undertaking
- students gaining work experience, and
- volunteers (except volunteers of a wholly ‘volunteer association’ with no employees regardless of incorporation status)
Whilst the WHS Act is not enacted in Victoria or Western Australia, the anti-bullying laws will still apply to those States regardless of this fact (obviously, if all of the eligibility tests are satisfied by the worker making an application).
It is important to note that this definition of worker does not extend to a member of the Australian Defence Force; however, it will cover members of the Australian Federal Police and Commonwealth statutory office holders.
As indicated by the Explanatory Memorandum to the FW Amendment Act, whether a worker holds a reasonable belief that they have been bullied is intended to be judged with reference to a worker feeling victimised or humiliated.
Section 789FD of the FW Act provides a definition for “bullied at work” which is taken from the revised WHS Code of Practice, Preventing and Responding to Workplace Bullying (WHS Code of Practice). The elements of this definition include:
A worker, or a group of workers of which the worker is a member, who:
- Is at work; and
- In a constitutionally covered business; and
- Experiences repeated unreasonable behaviour directed at the worker (or a group of workers of which the worker is a member); and
- That behaviour is carried out by an individual, or a group of individuals; and
- That behaviour creates risk to health and safety.
“At work” is not defined in the FW Act; however, it is anticipated that inference can be drawn from the use of the same expression in Section 19 of the WHS Act which explains the primary duty of care of PCBUs in relation to WHS. The explanatory memorandum to the WHS Act explains that the primary duty of care attaches to the work activities wherever they may occur, and without restriction to the physical work environment (see explanatory memorandum, Workplace Health and Safety Bill 2011 ). This means that workers may not necessarily have to be at the physical premises of the employer to be “at work” nor do they necessarily have to be engaged in work at the time that the alleged bullying occurs. Ultimately however, how broadly the FWC will interpret “at work” in light of the WHS Act remains to be seen.
“Constitutionally-covered business” is defined by the new section 789FD (3) of the FW Act and includes:
- A person conducting a business or undertaking (PCBU) as defined by the WHS Act and requires that that person is either:
- A PCBU conducted principally in a Territory or Commonwealth place;
- A constitutional corporation; (see below for explanation)
- The Commonwealth, including its Departments, local governments (in the Territories) and other government businesses and undertakings;
- A Commonwealth authority; or
- A body corporate incorporated in a Territory.
“Constitutional corporations” include trading or financial corporations formed in Australia, as well as foreign corporations as defined by the Constitution. Constitutional corporations do not include sole traders, corporations with minimal trading activity or partnerships; however, the remainder of the FW Act does generally apply to these businesses.
The definition of Constitutionally-covered business in the anti-bullying provisions does not make reference to State Government departments. This means that public sector employees in the States are not covered by the anti-bullying laws, despite being otherwise covered by the Fair Work Act (with the exception of Western Australia).
Repeated unreasonable behaviour
“Repeated behaviour” is defined in the draft Code of Practice: Preventing and Responding to Workplace Bullying to mean, “the persistent nature of the behaviour and can involve a range of behaviours over time” at page 6.
The draft Code of Practice also goes on to define “unreasonable” as including, “behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening”.
For more information about this draft Code of Practice, please visit the Safe Work Australia website.
Individual or a group of individuals
“Individual or a group of individuals” is not defined in the FW Act; however, the terms are likely to be given their plain and ordinary meaning. This means that applicants can list several respondents in a single application where they reasonably believe they have experiences workplace bullying by all of those members of the group.
Creates a risk to health and safety
The inclusion of the term “risk to health and safety” is also taken from the definition of bullying in the revised WHS Code of Practice. The Code provides a list of possible bullying behaviours which could be considered unreasonable if they create a risk to health and safety, however it is important to note that the risk to health and safety need not be to the intended victim of the bullying behaviour. Given the inclusion of this element of the definition of bullying, it is unlikely bullying behaviours that occur on a on a smaller scale that do not pose risks to health and safety will be actionable under these new provisions.
- The risk of bullying will continue
The FW Act provides that there must be a risk that the bullying will continue by the same individual or group of individuals. This confines the eligibility for making a claim under these provisions to workers who are in an employment relationship or current contractual relationship and does not extend to those who have ended employment or a contract (e.g. ex-employees, students who have completed their work placements etc.)
A worker is entitled to apply to the FWC if they believe they have experienced workplace bullying (in accordance with the definition of “bullied at work” contained in section 789FD) to have an order made to stop the bullying.
The FWC must commence dealing with applications within 14 days of receiving the application if it is satisfied that the application is valid (i.e. it satisfies the definition above of workplace bullying).
Below is a high-level overview of how applications may proceed under the anti-bullying jurisdiction:
- Applicant lodges their application with the FWC;
- FWC gathers information with applicant(s): The application is checked for completeness, legitimacy, accuracy and the applicants intentions to proceed;
- If the application is in order, it is served on the employer(s)/principal(s) and responses are invited;
- In most instances the application is also served on the alleged bully/bullies, who are advised that the employer(s)/principal(s) have also been served and are given an opportunity to respond;
- A report is prepared by the FWC anti-bullying team and presented to the FWC Panel Head advising of any potential jurisdictional issues, the conduct itself, whether the matter is suited to mediation or otherwise, the urgency of the matter and anything else considered relevant to informing the advancement of the proceedings;
- The matter is assigned by the Panel Head to a member of the FWC for either mediation / conciliation or a hearing for determination depending on the circumstances;
- If the mediation / conciliation is successful then there is no need for orders to be made by the FWC. If mediation / conciliation is unsuccessful, the matter is referred to a hearing for determination by a member of the FWC;
- If the matter is referred to a hearing for determination, the FWC member will either make orders stopping the bullying or dismiss the application.
The FWC may dismiss an application if satisfied that the application may involve matters that relate to:
- Australia’s defence; or
- Australia’s national security; or
- An existing or future covert operation of the Australian Federal Police;
- An existing or future international operation of the Australian Federal Police;
- Applications that are considered vexatious or frivolous;
- Application which have no real prospect of success in the eyes of the Commission.
FWC Members will be able to make orders prohibiting or limiting publication of evidence, identities of parties, decisions, parts of decisions or any other matters which the Member thinks appropriate in order to maintain confidentiality. In the FWC’s “Anti-bullying jurisdiction: Summary of the case management model” (the case management model) available on the Fair Work Commission website, it is noted that Members of the Commission will be mindful of the potential undeserved damage to reputation of individuals and their sensitive information being made public (such as medical information).
FWC hearings in anti-bullying matters will be conducted in public, except where a Member orders a private hearing to be conducted because of the confidential nature of the evidence, or for any other reason (section 593). Despite this, even where hearings are conducted in public, Members will have some discretion in terms of how much detail they give in their decisions about parties and evidence.
Mediations and other conferences will ordinarily be conducted in private unless the Member decides otherwise having regard to the nature of the application. Unlike other court proceedings, the FWC’s public conference listings will not show the identities of the parties.
The Commission has the power to inform itself of any matters which is thinks relevant to making a determination (section 590 and 591). In exercising this power, the Commission may:
- Hold a conference or hearing;
- Call for the attendance of a person at the Commission;
- Seeking evidence of individuals under oath or affirmation;
- Call for written and/or oral submissions of individuals;
- Perform inquiries or undertake research into any matter; and
- Call for copies of documents to be provided.
Under the provisions, a worker will not be taken to have been bullied if this was a result of reasonable management action, carried out in a reasonable manner. Unfortunately there is no definition of what constitutes, “reasonable management action carried out in a reasonable manner” provided in the Act, however, as indicated by the case management model, this will be assessed having regard to the particular circumstances of the case and determined objectively as a question of fact.
Examples of management action may include, but is not limited to the following:
- counselling/disciplining an employee for misconduct;
- investigating alleged workplace misconduct;
- performance appraisals;
- performance management meetings; and
- redeploying workers or transferring them to different areas of the organisation;
Whether the management action is considered “reasonable” will likely depend on the context in which the management action was taken, including what circumstances prompted the action, the consequences arising out of the action being taken and the knowledge of any matters which may affect the decision to take management action or not such as the emotional and psychological health of workers.
In determining whether reasonable management action was carried out in a “reasonable manner”, the FWC will have regard to factors such as whether procedural fairness was afforded to workers, whether or not policies and procedures giving guidance on the taking of management action were followed and any other matter which might inform the FWC of reasonableness.
This exception is intended to operate as a defence to claims of bullying made to the FWC. This means that employers will need to attend a hearing at the FWC in order to prove that the action taken was in fact reasonable management action and that it was carried out in a reasonable fashion. Mounting such a defence may prove costly for employers when taking into account legal fees, as well as time spent appearing before the Commission and in lost productivity costs.
When considering what orders to make, the FWC will have regard to the following matters to determine the appropriate orders:
- The outcomes of any investigation into the matter that is being, or has been, undertaken by another person or body that the FWC is aware of; and
- Any procedure(s) available to the worker to resolve grievances or disputes that the FWC is aware of; and
- Any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes that the FWC is aware of; and
- Any matters that the FWC considers relevant.
Having regard to the factors above, the FWC can make any order it considers appropriate (other than an order requiring payment of a monetary amount or reinstatement) to prevent the worker from being bullied at work by the individual or group. It remains to be seen just how the FWC will use this broad power to make orders, however, it is possible that these will be of an interim or interlocutory nature whereby the conduct of the employer is restricted, including the stopping of performance management processes already on foot.
If an order has been made by the FWC that an employer fails to comply with, the employee may make an application to the Federal Court, the Federal Circuit Court or an eligible State or Territory court to enforce the order made. Penalties apply to employers who are found guilty of failing to comply with FWC orders and can be as high as $51,000.00 as well as the potential for individual penalties of $10,200.00. In addition to this, managers and directors of organisations found guilty of failing to comply with FWC orders may be penalised under section 550 of the FW Act if they were involved in the contravention. Under this provision, those individuals merely involved in the contravention are taken to have directly contravened the orders.
Case Study – O’GRADY V MAP FOUNDATION PTY LTD AND MARC DA CRUZ
MAP Foundation operated Café Vamp in Hawthorn, Victoria. Mr Da Cruz was the director of the company and the senior manager of the café. Three workers at the café physically and emotionally bullied Brodie Panlock, a teenage co-worker, who later committed suicide.
The company and Mr Da Cruz were charged with offences against the Occupational Health and Safety Act 2004 (Vic). In summary, the charges alleged a failure to ensure the safety of employees, and in particular, Brodie Panlock, from a bullying work environment between January and September 2006.
Cafe Vamp employees Nicholas Smallwood, Rhys MacAlpine and Gabriel Toomey were fined $45,000, $30,000 and $10,000 respectively for their conduct in relentlessly insulting and criticising Ms Panlock. Mr Smallwood, who managed the café and was in a sexual relationship with Ms Panlock, also taunted Ms Panlock over a failed suicide attempt. On one occasion, Mr MacAlpine held her while Mr Smallwood covered her in fish sauce.
Mr Da Cruz and the company were fined a total of $250,000 for failing to maintain a safe working environment. There were no bullying policies, procedures or protocols in the workplace. No action was taken in relation to the bullying, even though Mr Da Cruz was found to be aware of at least some of the conduct.
The above case led to the changes to the Crimes Act in Victoria, serious bullying can be a criminal offence, prosecuted by the police under Section 21A of the Crimes Act 1958 (Vic). It is directed toward intentional or reckless bullying that causes or is likely to cause harm to the victim (including mental harm or suicidal thoughts). Such bullying conduct is punishable by up to 10 years’ jail.
The changes are known as ‘Brodie’s Law’, named after Brodie Panlock.
Case Study – CARLILE V COUNCIL OF THE SHIRE OF KILKIVAN AND BRIEKREUTZ, QUEENSLAND DISTRICT COURT, DECEMBER 1995
A council employee’s supervisor subjected him to a series of harassing and humiliating behaviours, such as telling him he wasn’t much use, singling him out to perform menial, dangerous and seemingly dangerous tasks, harassing him for eating an orange and for complaining of illness (despite the fact he lost consciousness).
The employee eventually suffered a nervous breakdown and was psychiatrically assessed as being unlikely to ever be able to work again. The council was found vicariously liable for the supervisor’s actions and ordered to pay $200,000 in damages
Bullying is a serious issue and not purely because of its very nature but because of potentially considerable costs to organisations and individuals involved. This can include:
- if you receive allegations of bullying you should obtain formal legal advice as soon as possible, so that you can determine your risks and appropriate courses of action. Otherwise you may act in a way which increases your exposure to other legal costs you may face down the track, such as defending claims by the victim or bully, responding to a prosecution by a regulator (e.g. WorkSafe or WorkCover), or paying damages/compensation/penalties.
- properly managing bullying claims will take time away from key staff including HR and managers, in addition to the individuals involved (including the victim, alleged perpetrator and witnesses). Other organisational costs include staff turnover and reputational damage for your business.
- bullying can be incredibly costly for individuals, including the victim, alleged perpetrator and even witnesses. Victims may suffer significant psychological harm from bullying, which can lead to physical harm (related to or arising from the psychological harm, including self-inflicted harm). Employees can lose their jobs and/or ability to work at full (or any) capacity or become disgruntled and resign.
Because the definition of bullying requires repeated behaviour (i.e. more than one single act or occasion), a single incidence of bullying-type behaviour will not be bullying.
However, while a single incident of bullying-type behaviour may not meet the definition of workplace bullying, it may be behaviour that is disrespectful or inappropriate and may nonetheless require a response. It may also be an incidence of harassment, discrimination, vilification or victimisation.
Legitimate and reasonable management actions(s) carried out in a fair and reasonable manner is NOT workplace bullying.
Reasonable management action(s) include (but are not restricted to): setting realistic performance goals, standards and deadlines; allocating tasks; providing constructive feedback; commencing a performance management process; informing a person about inappropriate behaviour; and giving legitimate (lawful and reasonable) instructions and expecting them to be carried out.
The Fair Work Amendment Act 2013 provides a scheme for workers who reasonably believe they have been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying. The scheme, which commences on 1 January 2014, provides that a worker I sbullied at work when one or more individuals repeatedly behave unreasonably towards the worker and the behaviour creates a risk to health and safety.
Bullying is recognised as constituting a risk to health and safety in the workplace. Employers and employees therefore have duties in relation to bullying conduct under work health and safety legislation.
Liability for bullying includes liability to affected employees and under State or Territory work health and safety legislation. Currently, the national harmonised Work Health and Safety Act 2011 (Cth) has been implemented in all States and Territories other than Victoria and Western Australia.
What is criminal (serious) bullying?
In Victoria, serious bullying can be a criminal offence, prosecuted by the police under Section 21A of the Crimes Act 1958 (Vic). It is directed toward intentional or reckless bullying that causes or is likely to cause harm to the victim (including mental harm or suicidal thoughts). Such bullying conduct is punishable by up to 10 years’ jail.
These amendments to the Crimes Act resulted from the Café Vamp case and are known as ‘Brodie’s Law’, named after Brodie Panlock, the victim of the bullying in that case.
For more information on this case, please see our Case Study – Bullying.
The primary safety duty is essentially the same across all jurisdictions, which is to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the workplace. This includes the risk of bullying.
You should think about bullying as a health and safety risk (which it is) and use safety ‘language’ to address it, such as ‘risk assessment’, ‘hazard reduction’, ‘control measures’, etc.
Any breach of the primary duties to ensure safety under work health and safety law (WHS law) is a criminal offence and can lead to a criminal prosecution and conviction for a person or a company.
In jurisdictions which have enacted the model Work Health and Safety Act, the following penalties apply:
Category 1 – recklessly engaging in conduct that exposes individual to risk of death or serious injury, without reasonable excuse- $300,000 or 5 years imprisonment for an individual; $600,000 or 5 years or both for a person controlling a business or undertaking (PCBU) or officer of a PCBU; and $3,000,000 for a body corporate.
Category 2 – failure to comply with a health and safety duty owed, exposing individual to risk of death or serious injury – Maximum penalties: $150,000 for an individual; $300,000 for a PCBU or officer of a PCBU; and $1,500,000 for a body corporate.
Category 3 – failure to comply with health and safety duty owed – Maximum penalties: $50,000 for an individual; $100,000 for a PCBU or officer of a PCBU; and $500,000 for a body corporate.
In Victoria (where the model WHS law has not been enacted) a person in breach of the employer’s duty to ensure health and safety is liable for a penalty of up to 1800 penalty units ($259,848.00 in the year July 2013 – July 2014) for a natural person; 9000 penalty units ($1,299,240.00 in the year July 2013 – July 2014) for a body corporate.
Liability to affected employees arises as a breach of the common law contract of employment (even if there is no written agreement) and under legislation. Damages for mental or physical injury resulting from bullying are rarely available due to statutory workers compensation schemes. Affected employees would be more likely to sue for damages for economic or reputational loss.
Liability to affected employees can also arise under laws preventing misleading and deceptive conduct. For example, if an employee was falsely or recklessly given a pre-employment representation that the workplace would be free from bullying and they relied on the representation to leave another valuable job, or forego a different valuable job, they might be able to sue your business under consumer protection legislation for misleading and deceptive conduct. They might also be able to sue your business at common law for misrepresentation.
In a bullying situation, other laws may also be involved including anti-discrimination, anti-vilification and equal opportunity legislation.
Conduct which constitutes sexual harassment can attract legal liability under various laws across Australia.
If sexual harassment involves physical contact, an employee could seek damages in the tort law relating to trespass of a person. Deliberate and international trespass of a person (i.e. touching them without their consent) will be compensable in certain circumstances.
An employee could also assert that their employer failed in their contractual duty of care to provide a safe system of work, by preventing or acting on the sexual harassment. If the perpetrator was a senior manager, that claim could be made against them as well.
An employee could also claim compensation for breach by their employer of relevant provisions of the Australian Consumer Law (contained within the Competition and Consumer Act 2010 (Clt), which replaced the Trade Practices Act 1974 (Clt)) and for breach of State fair trading legislation.
In this regard, the employee might assert that the employer made misleading or deceptive comments in the way it portrayed the workplace (e.g. being free from sexual harassment and/or supportive of people making claims of sexual harassment).
A complaint about sexual harassment under the Sex Discrimination Act may be made to the Australian Human Rights Commission (AHRC). Contact 1300 656 419 or via https://www.humanrights.gov.au/
If the complaint is not resolved at the AHRC (i.e. being terminated by the President of the AHRC on the grounds it has no reasonable prospects of settlement or no reasonable prospects of success), a complainant can issue proceedings in the Federal Court of Australia under section 46PO of the Australian Human Rights Commission Act 1975 (Cth).
The Federal Court of Australia can make any orders it deeps appropriate, including orders reinstating a person to employment and/or compensating them for economic loss, hurt, humiliation and distress. Such actions are subject to the normal rules regarding costs (i.e., the losing party generally pay the costs of the successful party).
The facts and circumstance that give rise to or include sexual harassment could also give rise to a claim of adverse action under the General Protection provisions of the Fair Work Act.
A complaint about sexual harassment under State and Territory law may be made to the following:
ACT: Australian Capital Territory Human Rights Commission (02) 6205 2222
NSW: NSW Anti-Discrimination Board (02) 9268 5544
NT: Northern Territory Anti-Discrimination Commission 1800 813 846
QLD: Anti-Discrimination Commission Queensland 1300 130 670
SA: South Australian Equal Opportunity Commission (08) 8207 1977
TAS: Tasmania Anti-Discrimination Commission 1300 305 062
VIC: Victorian Equal Opportunity and Human Rights Commission 1300 891 848
WA: Western Australia Equal Opportunity Commission (08) 9216 3900
If complaints under the appropriate State or Territory legislation are not resolved at the relevant agency, proceedings may be issued under those laws in a relevant tribunal.
Employees who claim they have been the victim of sexual harassment have a number of avenues to bring a claim against the perpetrator and their employer. These claims could all be joined together in the Federal Court.
Vicarious liability means that a person or company is held directly for someone else’s actions, as if the person or company had themselves/itself engaged in the conduct. The law imposes vicarious liability in situations where a person or company is in a position to prevent conduct but does not do so.
As an employer, your business will be vicariously liable (both to the victim and under legislation) for sexual harassment conduct (and the harm it causes).
It is a defense to liability (i.e. your business will not be liable) if you can prove that your business has taken all reasonably practicable steps to prevent the conduct, such as implementing good policies and conducting workplace training.
In addition to being unlawful, sexual harassment can also become an issue of considerable costs to organisations and the individuals involved.
If you receive allegations of sexual harassment you should obtain formal legal advice as soon as possible, so that you can determine your risks and appropriate courses of action. Otherwise you may act in a way which increases your exposure to other legal costs you may face down the track, such as defending claims by the victim or harasser or paying damages/compensation/penalties.
Properly managing sexual harassment claims will take time away from key staff including Human Resources and managers, in addition to the individuals involved (including the victim, alleged harasser and witnesses). Other organisational costs include staff turnover and reputational damage for your business.
Sexual harassment can be incredibly costly for individuals, including the victim, alleged harasser and even witnesses. Victims may suffer significant psychological harm for sexual harassment, which can lead to physical harm (related to or arising from the psychological harm, including self-inflicted harm). Employees can lose their jobs and/or ability to work at full (or any) capacity, or become disgruntled and resign.
Sexual harassment can occur in a variety of ways, the following provides theoretical examples of some instances of these situations.
A client received an email from an employee working at a graphic design company. An attachment to the email depicted a photograph of a naked woman driving a car. The artist thought he had sent the image to his co-worker. He wrote to the client immediately and apologized explaining that is was “an administrative oversight”.
Even though it was an innocent mistake, the conduct would be unlawful sexual harassment if it was unwelcome, because intention is irrelevant.
Jack has given Hillary bottles of wine, flower and chocolates and told her she was beautiful. So far she has ignored him but he did not give up because he thought she would come around. She has finally accepted his offer to take her to see her favourite band.
This is likely not sexual harassment because Hillary appears to have consented to the conduct. However, if there was a power imbalance between Jack and Hillary (e.g. Hillary was Jack’s subordinate) then her consent may have not been voluntarily given, so the conduct could still be unwelcome and therefore sexual harassment.
Consent turns sexual harassment into non-harassment but still inappropriate behaviour
Troy has a Facebook page. It says he works at Media Partners P/L. He posts a picture on his Facebook wall depicting Jane (a colleague of Troy’s) in a compromising position with two male dancers. The picture is from last week’s informal staff drinks. Jane says she does not mind.
Jane’s consent turns what could have been a nasty sexual harassment suit into a non-harassment situation, as long as her consent is voluntarily given. However, Troy’s social media conduct may still not be appropriate behaviour and could be dealt with under an effective social media policy.
Case Study – LEE V SMITH  FMCA 59
Cassandra Lee was employed in an administrative position at the Australian Navy’s office in Cairns. She brought a sexual harassment complaint against the Navy, the Department of Defence, the Commonwealth of Australia, her three supervisors for whom she worked and two employees. She was subjected to pornography in the workplace, and sexually harassed and sexually assaulted (including being raped) by her colleague, Austin Smith.
After the rape, Ms Lee reported it and the other conduct to her superiors. They took no action to deal with the predicament and she was forced to continue to work in the same building as Smith. Her superiors also treated her harshly (victimised) in relation to her allegations.
The Federal Magistrates Court found that:
- The presence of pornographic material indicated a lack of commitment to principles of equal opportunities and sent a message to the workforce that accessing or displaying the material was acceptable. This constituted unlawful discrimination.
- Smith and the Commonwealth of Australia (vicariously) were both liable for Smith’s behaviour leading up to the alleged rape.
- The lack of Equal Employment Opportunity (EEO) training and failure by the navy to follow its own EEO regime may have led to Ms Lee not reporting the matter as early as she otherwise would have. Had she been better equipped to deal with the earlier pornography in the workplace by reporting those matters, ultimately, the rape itself might have been avoided.
- The rape itself was a culmination of a series of sexual harassments which had taken place in the workplace. It would not have occurred but for the collusion of Smith and two other employees who made concerted efforts to make arrangements for Lee and Smith to attend a dinner at their residence.
- In relation to the behaviour of Lee’s supervisors subsequent to the rape, the Federal Magistrate concluded that Ms Lee was bullied and victimised.
Consequently, the sum of $100,000 was awarded to her as compensation for hurt and humiliation, pain and suffering with all four Respondents jointly liable for payment. Costs were also awarded against the Respondents jointly and severally.
The conduct (in particular the rape) was an extension or continuation of a pattern of behaviour that had started and continued to develop in the workplace. Consequently, the nexus (or the link/connection) with the workplace was not broken.
The facts of this case may sound severe, but it indicates that what starts out as something you may consider to be rather innocuous (e.g. jokes made in bad taste, requests to go out with someone, pressure on someone to go for drinks after work) can spiral out of control. In this case the start was the tolerated presence of pornographic material and the inappropriate comments.
Discrimination is prohibited under various pieces of legislation throughout Australia, including the Fair Work Act 2009 as part of its General Protections provisions.
At a Federal level, the following legislation proscribes discrimination in the area of employment:
- Age Discrimination Act 2004 (Cth);
- Disability Discrimination Act 1992 (Cth);
- Racial Discrimination Act 1975 (Cth);
- Sex Discrimination Act 1984 (Cth); and
- Fair Work Act 2009 (Cth).
Equal opportunity and anti-discrimination legislation in each State and Territory provides additional remedies for unlawful discrimination in the area of employment, as follows:
- Australian Capital Territory: Discrimination Act 1991;
- New South Wales: Anti-Discrimination Act 1977;
- Northern Territory: Anti-Discrimination Act 1992;
- Queensland: Anti-Discrimination Act 1991;
- South Australia: Equal Opportunity Act 1984;
- Tasmania: Anti-Discrimination Act 1998;
- Victoria: Equal Opportunity Act 2010; and
- Western Australia: Equal Opportunity Act 1984.
Discrimination Under the Fair Work Act 2009
Discrimination is prohibited under the Fair Work Act (FW Act) as part of its General Protections provisions. These make it unlawful to take ‘adverse action’ against a person if the reason, or one of the reasons, for taking the adverse action, was a prohibited reason.
What is ‘adverse action’?
‘Adverse action’ is defined in section 342 of the FW Act and includes: dismissing an employee; injuring them in their employment (not a physical injury but for example, demoting them or reducing their pay); altering their position to their prejudice (such as by refusing them shifts); or discriminating between them and other employees (i.e. treating them differently).
The prohibited reasons are found in section 351 of the Fair Work Act and include: a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Discriminatory adverse action is not unlawful under certain circumstances
Discriminatory adverse action is not unlawful if it is:
- not unlawful under any anti-discrimination law in force in the place where the action is taken; or
- taken because of the inherent requirements of the particular position concerned (see the section below on disability discrimination’ for discussion of ‘inherent requirements’); or
- if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:
- in good faith; and
- to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Where there are multiple reasons, the discriminatory reason is presumed to be the only reason for adverse action
If there are one or more reasons for a person taking an adverse action, and one of those reasons is a discriminatory reason, section 360 of the Fair Work Act provides that the reason for the action is the discriminatory reason.
Your business will have the onus of proving it did not take adverse action for a discriminatory reason
Once allegations are made that adverse action was taken for a discriminatory reason and relevant facts are alleged to support the allegations, section 361 of the FW Act provides that your business will have the onus of proof. That is, you must prove that the real and genuine reason for the adverse action was not a discriminatory reason.
Proving the real reason for a decision to take adverse action
Your business can discharge this onus of proof by leading credible evidence from the decision maker (ideally supported by corroborating documentary evidence) about the real and genuine reason for the decision to take the adverse action. That evidence should be able to include a denial that the reason/s for the decision was a discriminatory reason. The evidence should also provide convincing other reason/s for the decision to take the adverse action.
In many cases, this will mean having to keep the person who makes decisions about performance and conduct matters separate and isolated from dealing with complaints or inquiries about employment, including bullying, discrimination and harassment (etc.).
Otherwise, if the same person deals with both (e.g.) performance and a bullying complaint, it might be more difficult to present credible evidence from the decision maker that the reason for a performance-based dismissal had nothing to do with the employee’s bullying complaint.
Civil remedy provisions
The relevant protections are civil remedy provisions, which means that civil penalties can be awarded against a person who contravenes the provisions (in addition to orders for compensation, reinstatement to employment, and any other order the court deems necessary and appropriate).
Direct and Indirect Discrimination
There are two forms of discrimination, direct and indirect. It is important to recognise the difference as each form will be dealt with in quite different ways.
Occurs if a person treats, or proposes to treat, someone with a protected attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
Occurs where there is a requirement, condition or practice that a person with a protected attribute does not or cannot comply with; and a higher number of people without that attribute or with a different attribute do or can comply with; and where that requirement is not reasonable; and where the person with the protected attributed is disadvantaged as a result.
Note: A matter may not be considered indirect discrimination where the requirement or condition is reasonable, having regard to all of the circumstances of the situation.
Are You Dealing with Direct or Indirect Discrimination?
Direct discrimination is easier to identify. It deals with the concept of treating someone differently because of one of those protected attributes. For instance, if you refuse to employ someone because they are of a particular religious background, even though it would be difficult to prove, it would be an instance of direct discrimination.
Indirect discrimination is more insidious. It involves a requirement that on its face appears to be innocuous but has the effect that people with certain attributes would be less able to comply with it than those without. For instance, employment as a policeman used to involve a particular height requirement.
In order for a complaint of indirect discrimination to be made out, a person needs to be able to demonstrate that:
- a requirement or condition was imposed;
- a person couldn’t comply with the requirement because of a protected attribute; and
- the requirement was unreasonable.
In either case though (direct or indirect), the discrimination must be because of the protected attribute.
You can almost never lawfully discriminate against a job applicant or employee on the grounds of their age.
You can almost never lawfully discriminate against a job applicant or employee on the grounds of their age (including both being ‘too young’ and ‘too old’). This includes a person who is an employee, contract worker or commission agent and also applies to your business if it is a partnership.
Under the Age Discrimination Act 2004, age discrimination will be unlawful if it relates to:
- making arrangements (such as job advertisements) for offering or deciding to whom to offer employment;
- the terms or conditions of employment that you offer a job applicant or afford an employee;
- by denying an employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
- dismissing the employee; or
- subjecting the employee to any other detriment.
However, you can lawfully discriminate against another person in employment, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of the particular employment because of his or her age. The exemption allows you to discriminate on the grounds of age in the arrangements made for the purpose of determining who should be offered employment, deciding whether to offer someone employment and dismissing an employee.
In deciding whether the other person is unable to carry out those requirements because of his or her age, you must consider:
- the other person’s past training, qualifications and experience relevant to the particular employment; and
- if the other person is already employed by you – the other person’s performance as an employee; and
- all other relevant factors that it is reasonable to take into account. These might include the nature of the inherent requirements of the particular employment, such as whether it is a physically demanding job or one which requires unusual shift patterns.
The High Court of Australia in Qantas Airways Ltd v Christie 193 CLR 280 said that the ‘inherent requirements’ of a job meant ‘something essential to the position’. This is not limited to being able to physically perform a job but also having (for example) the capacity to comply with a roster or allocation of duties. In her decision in that case, Justice Gaudron said the question to ask was ‘whether the position would be essentially the same if that requirement were dispensed with’.
You can almost never lawfully discriminate against a job applicant or employee on the grounds of a disability.
You can almost never lawfully discriminate against a job applicant or employee on the grounds of a disability. This includes a person who is an employee, contract worker or commission agent and also applies to your business if it is a partnership.
In disability discrimination law, failing or refusing to make reasonable adjustments to accommodate a person’s disability (unless that would impose unjustifiable hardship upon you as an employer) is considered to be direct discrimination.
What is a “disability”?
“Disability” is broadly defined in the Disability Discrimination Act 1992 and includes:
- total or partial loss of the person’s bodily or mental functions;
- total or partial loss of a part of the body;
- the presence in the body of organisms causing disease or illness;
- the presence in the body of organisms capable of causing disease or illness;
- the malfunction, malformation or disfigurement of a part of the person’s body ;
- a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction;
- a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
- presently exists;
- previously existed but no longer exists;
- may exist in the future (including because of a genetic predisposition to that disability); and/or
- is imputed to a person.
Symptoms or manifestations of a disability are also protected
A ‘disability’ that is covered by the definition includes behaviour that is a symptom or manifestation of the disability.
For example, walking slowly could be behaviour that is a symptom or manifestation of an impaired leg function. Similarly, swearing could be behaviour that is a symptom or manifestation of Tourette’s Syndrome.
The slow-walking or swearing are therefore protected from discrimination as being symptoms or manifestations of the disability.
Symptoms or manifestations of a disability are not protected if you would treat all employees with such behaviour in a similar manner. You must avoid all categorical exclusions, assumptions and stereotypes.
However, you are permitted to treat alike all employees who behave in the same way, regardless of the reason or cause for behaviour. For example, you are permitted to treat all aggressive or violent employees in the same way, even if in a particular case, the cause of that behaviour is a person’s disability. Another example is treating all employees who come to work late in the same way by giving them a warning for misconduct.
Remember – because of indirect discrimination law, any condition or requirement that is imposed that disproportionately impacts on a particular group must be reasonable in the circumstances. Consequently, for example, a condition or requirement that failure to attend work on time results in a warning might disproportionately impact on people whose physical disability meant they could not get to work at the designated start time.
Ms Hollingdale suffered from bipolar disorder and exhibited inappropriate workplace behaviour. Her role was changed from psychologist to project officer. She worked as a psychologist and behaved inappropriately towards other members of staff. She verbally abused them and consequently, she was forced to work as a project officer rather than as a psychologist.
However, her employer did not discriminate against her. The Court found that a person not suffering from bipolar disorder who exhibited such behaviour would have been treated similarly by their employer.
What to take away from this case?
It will not be disability discrimination if you treat a person differently or adversely as a result of their conduct, if you would have treated other employees similarly if they engaged in similar conduct, even if the person’s conduct results from an underlying disability.
The Racial Discrimination Act 1975 makes it unlawful to treat a person less favourably based on their race, colour, descent or national or ethnic origin.
Section 9 of the Racial Discrimination Act 1975 (Cth) makes it unlawful to treat a person less favourably based on their race, colour, descent or national or ethnic origin. That is, direct discrimination for these reasons is prohibited.
Indirect Race Discrimination
Indirect discrimination is also prohibited on grounds of race, colour, descent or national or ethnic origin. That is, requiring a person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and the person does not or cannot comply with the term, condition or requirement; and the requirement treats the person less favourably than a person not of that race, colour, descent or national or ethnic origin.
Direct Race Discrimination – Offensive Public Conduct
Section 18C of the Racial Discrimination Act makes it unlawful to engage in public conduct on the grounds of a person’s race, colour, descent or national or ethnic origin, which is ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the person or other people of that person’s race, colour, descent or national or ethnic origin.
The test is objective
It is for a Court to determine whether the act, in all the circumstances in which it was done, would be reasonably likely to offend, insult, humiliate or intimidate another person or a group of people of a particular racial, national or ethnic group.
This means it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question. However, evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible, on, but not determinative of, the issue of contravention.
Section 18E of the Racial Discrimination Act provides that if your employee or agent engages in unlawful racial discrimination, ‘in connection with his or her employment’, the Act applies as if your business had also done the unlawful act. Most conduct towards co-workers would be caught by this provision.
You could defend a claim of vicarious liability for race discrimination if your business can establish that it took all reasonable steps to prevent the employee or agent from doing the act. This would include at the very least having, promoting and training employees in effective policies.
An internet forum was set up by The Builders Collective of Australia Inc. to encourage discussion of issues relating to the building industry. Employees and contractors were able to post and view messages in a Collective Discussion Forum. Whilst a registered user was required to provide a username, password and email address, there was no requirement to disclose the user’s true identity. In practical terms, users were anonymous.
A message was posted by an employee called “Ron Silberberg BEc”. Ken Buckley disagreed with his view and a response to his message followed. It said:
“God Help Us… “Ron Silberberg”, that’s a good Irish name. That in itself explains the monetary push…”.
Later a further message was posted which was headed “Silberberg is out to Break the Little Builders” and it states:
“B.Ec, means Bachelor of Economics… translated, he is primarily interested in making lots of money and he has the background prior to education to unequivocally qualify by way of genes, which is further compounded by way of advanced education…”.
Mr Buckley stated that he was not referring to the possibility that Silberberg was Jewish, but to an assumption that his parents were rich enough to send him to university, I.e. referring to economic qualifications and not thnicity. The court found that this was not credible, as Mr Buckly’s references were clearly to ethnicity.
Was this an exercise in free speech or is it inappropriate?
It was inappropriate and unlawful. Is applies a racial stereotype to someone on the basis that they are assumed to be part of a racial or ethnic group. In other words, it assumes that Mr Silberberg by reason of being Jewish has an unusual monetary focus.
What to take away from this?
You may think that you’re only using descriptions but you may be buying into stereotypes, which can lead to assumptions and generalisations about a group of people with a protected attribute, such as mothers or fathers. This could lead to offence for an individual.
Race Discrimination in Employment
You or a person on your behalf (e.g. a recruiter) can never lawfully discriminate against a job applicant or employee (including a contract worker) on the grounds of their race, colour or national or ethnic origin or the race, colour or national or ethnic origin of any relative or associate of the person.
- refusing or failing to employ a person on work of any description which is available and for which that person is qualified;
- refusing or failing to offer or afford a person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description;
- dismissing a person from his or her employment; or
- engaging in any other form of direct or indirect discrimination.
The Sex Discrimination Act 1984 (Cth) and the subsequent amendments in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) prohibits direct discrimination of a person on the grounds of a person’s gender or characteristics which are general to a specific gender.
In addition to sexual harassment, the Sex Discrimination Act 1975 (Cth) prohibits direct discrimination (that is, less favourable treatment) of a person on the grounds of a person’s gender or characteristics appertaining or generally imputed to a specific gender.
This includes discrimination on the grounds of marital status, pregnancy, breastfeeding and family responsibilities.
The Sex Discrimination Act also prohibits indirect discrimination on these grounds. That is, subject to the below exception, you must not discriminate against another person (the aggrieved person) on the ground of the sex of the aggrieved person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
Exception: reasonableness test for indirect discrimination
Section 7B of the Sex Discrimination Act provides that a condition, requirement or practice will not constitute indirect discrimination if it is reasonable in the circumstances to impose it.
In deciding whether a condition, requirement or practice is reasonable in the circumstances you must consider:
- the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
- the feasibility of overcoming or mitigating the disadvantage; and
- whether the disadvantage is proportionate to the result you seek.
If you wish to raise this exception, you have the burden of proving that the condition, requirement or practice is reasonable in the circumstances.
Sex Discrimination in the Workplace
In addition to the general prohibitions on sex discrimination, the Sex Discrimination Act contains specific prohibitions on sex discrimination prior to and during employment.
Discrimination against job applicants
It is unlawful for you (as an employer) to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
- in the arrangements made for the purpose of determining who should be offered employment (such as job advertisements);
- in determining who should be offered employment; or
- in the terms or conditions on which employment is offered.
Discrimination against employees
It is unlawful for you (as an employer) to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
- in the terms or conditions of employment that you afford the employee;
- by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
- by dismissing the employee; or
- by subjecting the employee to any other detriment.
Exception – genuine occupational requirements
You can discriminate against a job applicant (including a commission agent or contract worker) if the position is one in relation to which it is a genuine occupational qualification to be a person of the opposite sex to the sex of the other person.
For example, under the Sex Discrimination Act, it is a genuine occupational qualification, in relation to a particular position, to be a person of a particular sex if:
- the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of the opposite sex to the sex of the applicant;
- the duties of the position involve performing in a dramatic performance or other entertainment in a role that, for reasons of authenticity, aesthetics or tradition, is required to be performed by a person of the opposite sex to the sex of the applicant;
- the duties of the position need to be performed by a person of the opposite sex to the sex of the applicant to preserve decency or privacy because they involve the fitting of clothing for persons of that sex;
- the duties of the position include the conduct of searches of the clothing or bodies of persons of the opposite sex to the sex of the applicant;
- the occupant of the position is required to enter a lavatory ordinarily used by persons of the opposite sex to the sex of the applicant while the lavatory is in use by persons of that sex;
- the occupant of the position is required to enter areas ordinarily used only by persons of the opposite sex to the sex of the applicant while those persons are in a state of undress; or the position is declared, by regulations made for the purposes of the Sex Discrimination Act, to be a position in relation to which it is a genuine occupational requirement;
- the occupant of the position is required to live on premises provided by the employer or principal of the occupant of the position and:
- the premises are not equipped with separate sleeping accommodation and sanitary facilities for persons of each sex;
- the premises are already occupied by a person or persons of the relevant sex and are not occupied by any person of the opposite sex to the relevant sex; and
- it is not reasonable to expect the employer or principal to provide separate sleeping accommodation and sanitary facilities for persons of each sex.
Vilification and Victimisation Within the Workplace
Almost all conduct in the workplace will constitute ‘public conduct’ and be capable of contravening anti-vilification legislation.
Vilification is public conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, a person or class of persons on the grounds of that person or group’s race or their religious belief or activity.
Almost all conduct in the workplace will constitute ‘public conduct’ and be capable of contravening anti-vilification legislation.
A high bar
Conduct must be extreme to constitute vilification. Anti-vilification laws are directed towards extreme conduct which promotes and urges (i.e. ‘inflames’) the strongest feelings of revulsion, hatred or dislike of a person or group on the ground of the racial background or religious beliefs and practices of that person or group.
Even racist conduct will not necessarily be vilification
It is important to note that conduct can be “tasteless, offensive and unfortunate”, or even “very offensive and racist” without constituting vilification. However, racist or offensive conduct would probably constitute discrimination.
What is ‘conduct’?
Conduct may be constituted by a single occasion or by a number of occasions over a period of time. It includes use of the internet (including social media) or e-mail to publish or transmit statements or other material. This conduct amounts to discrimination under Federal and State anti-discrimination law.
Serious vilification means knowing, intentional or reckless vilification that involves threatening or inciting physical harm towards, or towards any property of, a person or group of persons. This can amount to criminal conduct under State law and lead to fines or imprisonment.
For the purpose of vilification law, a person’s race includes their:
- Descent or ancestry;
- Nationality or national origin; and/or
- Ethnicity or ethnic origin
and a person’s religious belief or activity includes that person:
- Holding or not holding a lawful religious belief or view; or
- Engaging in, not engaging in, or refusing to engage in lawful religious activity
Victimisation occurs when a person is treated unfairly or less favourably because of the person:
- Making or intending to make a complaint of bullying, harassment, vilification or discrimination
- Having invoked a relevant workplace policy whether on behalf of oneself or another individual
- Having participated or cooperating in any investigation under a relevant workplace policy
- Having been associated with a person who has invoked a relevant workplace policy or participated in its procedures.
This conduct is unlawful under Federal and State anti-discrimination law.
Preventing Bullying, Harassment and Discrimination Within Your Workplace
The best way to prevent bullying, harassment and discrimination or vilification in your workplace, is to foster a culture of acceptance of different people and emphasise acceptable behaviour.
Are Bullying, Harassment and/or Discrimination Present Within My/Your Workplace?
There are several signs and patterns in a workplace that ought to put you on notice that you may have a problem to do with workplace discrimination or vilification.
This might include excessive absenteeism (not being at work), complaints, excessive sick leave, staff “churn” (frequent or bulk resignations), employees giving negative feedback when they resign, or significant numbers of stress claims (e.g. claims for workers compensation).
How to Prevent Discrimination and Vilification Within the Workplace
The best way to prevent discrimination and vilification in your workplace is to foster a culture of acceptance of different people and emphasise acceptable behaviour.
Senior or upper management should drive this culture, as they are the leaders of your business and have the most influence. If they do not, staff may feel that the business is not really behind the culture and will pay less attention to the message.
How Do I promote Acceptable Behaviour Within the Workplace?
First and foremost, our catchcry is ‘be what you want to see’ that is display acceptable behaviours and follow the steps below in stopping poor behavioural traits. It needs to be understood, that acceptable behaviour in your workplace is really just the behaviours you have been accepting!
You can promote acceptable behaviours in the workplace by:
- Discussing your business’ desired culture and relevant policies at team meetings
- Discussing behaviours that you consider are acceptable at team meetings or planning days and committing to them
- Identifying situations which may lead to behaviours that are not acceptable and working out together how these may be minimised or prevented
- Promoting understanding of different working styles, life experiences and appreciating different perspectives
- Discussing how perceptions of behaviours may arise from a lack of knowledge about difference in style
- Having a speaker from HR, senior management (e.g. the CEO or Managing Director) or an external organisation come to meetings to discuss issues of acceptable behaviour
- Arranging an organisational development activity to strengthen your employees’ connections with one another and build understanding about different working and personality styles
- Having policies that are given to employees and new starters, which clearly identify acceptable and unacceptable behaviour
What Should Managers/Business Owners do to Prevent Bullying Harassment, Unlawful Discrimination and Other Unlawful Conduct?
- Actively promote, model and support acceptable behaviours in the workplace
- Provide information to employees about acceptable behaviours within the workplace
- Provide information to employees about their specific responsibilities regarding acceptable behaviours in the workplace, including unlawful behaviours such as workplace bullying, discrimination, vilification and harassment
- Take all reasonable actions to prevent behaviours that are not acceptable in the workplace
What Should a Manager (or HR) do When they Become Aware of Bullying, Harassment, Unlawful Discrimination, Victimisation or Vilification?
- Act promptly as soon as they become aware of a concern, listen to the person’s concerns and work towards informal resolution, where appropriate
- Initiate and manage informal and ‘workplace level’ resolution processes, where appropriate
- Arrange appropriate services, included support from HR and organisational change strategies where these may have a direct benefit to the specific circumstances
- Put in place formal processes, where appropriate and necessary, and ensure that employees are encouraged to take their concerns as far as they feel necessary
Ensure employees are free from victimisation as a result of raising their concerns.
How to Handle Bullying, Harassment, Discrimination, Vilification and/or Victimisation Complaints
Before you ever become aware of a problem, you should have in place policies and procedures (contact us or personalise our template if you don’t have any) which provide effective mechanisms for your employees to report such actions against them.
Business owners, their managers and/or HR staff should be trained in these procedures to ensure they function as designed and with complete confidentiality if/when ever needed.
As a minimum the policies and procedures should have the following:
- An established separate process for reporting bullying; this is so it is treated as a workplace health and safety issue and dealt with appropriately;
- Employees should be encouraged to report incidents to their supervisor/manager or other appropriate person;
- Employee should be assured they will be treated fairly and their complaint will be looked into promptly;
- The organisation should take such incidents seriously and ensure they are dealt with in a timely and equitable manner. All participants within the process should maintain confidentiality as far as possible.
Confidentiality may not always be able to be maintained, for example when an employee reports a bullying issue:
- Because it is a recognised workplace health and safety issue, it gives rise to liability under an employer’s WH&S duty. Consequently, certain reporting (such as to directors of the organisation) is unavoidable.
- Similarly, complaints of discrimination may need to be reported to senior management for the organisation to put into place effective mechanisms.
Regardless of these circumstances, Employees should be told that when they bring a complaint forward, they will be treated with confidentiality. The person receiving the report should respect that confidence and be aware of their own obligations in these circumstances.
Employees should be told that they can also raise the matter with the relevant agency in the State in which they work. This includes stating that if the matter is a criminal matter, employees should also raise it with the police. Your policy or procedure should provide these details.
Although you might think it is counterintuitive or even damaging to invite employees to raise a problem at your workplace with an external agency, it is better to do this for several reasons:
- it shows how reasonable and supportive your business is;
- it ensures that if for some reason your business’ internal mechanisms fail or do not function adequately, the damage is minimised because employees can still seek effective assistance; and
- if the problem is serious, it is likely those external agencies may become involved at a later stage anyway. It is preferable for this to occur before a serious claim or litigation is underway, so a mediated outcome is more possible.
If employees are the victim of workplace bullying, discrimination, harassment or vilification they might wish to let the person engaging in the conduct know that they consider their behaviour to be unacceptable and that if it continues they will report the conduct under the relevant policy.
Ideally, this will stop the conduct, which in many cases can simply be a case of mistake, ignorance or unawareness of the impact of words or actions on another person.
If employees speak directly to the person engaging in such behaviour, they should keep a record of that conversation.
Reports of buIlying, discrimination, harassment or viIification often have serious impacts on the alleged perpetrator. The reports can lead to disciplinary action, including dismissal, cause significant reputational damage and have disruptive negative impacts on life outside of work (e.g. family life).
Consequently, false and/or malicious reports (i.e. reports without a genuine belief in the truth of the matters reported) should be the subject of disciplinary action. Employees should be told this, including that the disciplinary action could include dismissal.
Employees should be told they have the option of making a formal complaint about the bullying, discrimination, harassment or vilification. This means that they are formally asking your business to take some action in relation to the conduct.
A formal complaint is made by making a written statement outlining what the alleged victim believes occurred, stating names, dates and witnesses. The parties to the complaint resolution process will be the alleged victim, the alleged perpetrator and your business.
If you feel that your organisation is not equipped to handle these sorts of complaints, contact us to discuss how SBAAS can assist.
The trigger for action does not rely on an employee making a formal complaint, if your organisation is aware of such behaviours it can (and should) take reasonable and practical steps to prevent workplace bullying, harassment, discrimination, vilification and/or victimisation. You should consult with the victim/s prior to any action being taken.
A formal investigation of the allegations raised in a report is completed so your organisation can decide whether to take disciplinary action accordingly.
SBAAS recommends that any formal investigations be conducted by an external party (contact us to discuss how SBAAS can assist.) as any internal investigations leave your organisation open to being easily challenged and potentially resulting in litigation, on the grounds they were subject to bias or influence, or were not procedurally fair.
It is important that any investigator only reaches a conclusion about whether the allegations are substantiated, and the facts are confirmed or not.
- The investigator should not make any recommendations about disciplinary outcomes (or anything else) and must be told these are not sought;
- The investigator should not make any conclusions or recommendations about whether any laws or contracts of employment have been breached;
- The investigator should not provide your organisation with a ‘draft’ or ‘preliminary’ report for your feedback, prior to providing a final report. Any drafts would be the subject of discovery of documents in future litigation and consequently, any differences between the draft/s and the final report could be subject to claims of bias and/or influence and damage your organisations defence.
As far a practicable, the investigation must be prompt and confidential. All documents relevant to the complaint/report and investigation should be kept secure and only disclosed on a ‘need to know’ basis. Parties should be regularly informed about the process and progress of the investigation.
If the complaint is substantiated you may warn or discipline the perpetrator, or take other action such as training, counselling or mediation. SBAAS also recommends that you may need to seek legal advice in certain circumstances.
Better results may be available from an informal process, rather than a formal investigation. The purpose of an informal process is that the parties involved can back to work as normal, without any of the offending behaviour reoccurring. Whilst it is important of a record of the event being kept, including the outcome and any impact on the workplace, parties do not have to be identified within the report.
It is always a good idea to counsel the alleged perpetrator so they are aware of their behaviour and become aware and familiar with the relevant policies and rules.
Conciliation / Mediation
Mediation or conciliation is a way to bring parties (victim, perpetrator) together and attempt to resolve their differences. Both parties’ consent must be obtained first.
Conciliation/mediation will involve an appropriately qualified, independent person (preferably an external mediator) to hold a meeting and examine ways to reach resolution of the issues causing the complaint. Conciliation/mediation can even occur during an investigation.
Conciliation/mediation is a good way for parties to air their grievances, seek and give an apology (as relevant) and explain any misunderstandings or mistakes. The outcome will ideally be resolution by agreement, which should be recorded in writing.
What Should Employees do if They Believe they are being Bullied / Harassed / Subjected to Unlawful Discrimination or Vilification?
You should tell your employees that if they believe they have been bullied, harassed, discriminated against or otherwise subjected to unlawful behaviour, they should:
- Familiarise themselves with relevant policies and the available supports and processes;
- Reflect on the behaviour and the circumstances;
- Identify what they want changed or do differently;
- Take timely, appropriate action, which may include:
- Responding directly and appropriately to the behaviour and situation themselves if they are comfortable to do so;
- Obtaining support/advice to identify strategies to respond to the behaviour, e.g. HR, grievance/complaint mechanisms;
- Raising the issue with their manager or a higher level manager, if necessary;
- Maintaining appropriate confidently by ensuring they only discuss the issues with people who have a direct need to know;
- Taking steps under the relevant complaint mechanism;
- If necessary, reporting the conduct to an appropriate external agency, e.g. the Australian Human Rights Commission.
Who Can be Held Liable?
It is important to know who can be liable in matters of bullying, harassment, discrimination and vilification.
Employers can be liable
Employers can be vicariously liable for their employees’ discriminatory conduct unless they can demonstrate they have taken all reasonable steps to prevent the conduct.
Employers can also be directly liable for breach of contract if they have permitted the discrimination to occur or failed to reasonably prevent it.
Individuals (employees and contractors) can be personally liable
Employees and contractors can also be personally liable where they commit an unlawful act of discrimination, such as the navy officer and the two employees in the Lee v Smith case, and the infatuated employee who pursued his colleague at the child-care centre.
Aiding and abetting
A person may also be liable if they aid and abet someone else to discriminate. This was the case in Lee v Smith (discussed below). The two navy officers who knew about the unwanted sexual advances of Smith and who did nothing about it but instead encouraged Lee to go out with them after work, were held liable for aiding and abetting Lee. The Court found in essence that they had put in motion a course of events which led to very serious results.
Ms King returned from a period of maternity leave. Issues arose as to her role because her duties had been split into a senior and junior role. Nike had not considered her for the senior role. Against that context, another member of Nike’s staff sent the following email around to all staff in Australia, NZ and the Pacific Islands:
“Please welcome Sally back to the office, and if s h e s p e l l s e v e r y t h i n g out when talking to you please be patient!”
Was it discriminatory?
In isolation, the remark may have gone undetected. The Tribunal found it was inappropriate and possibly unlawful but not severe. However, it did suggest that her role as a mother would affect her behavior at work, i.e. she was so used to communicating with children that she would be unable to communicate appropriately at work, or perhaps that she had somehow lost her brain in the birth process.
What to take away from this case
A comment may be ‘borderline’ discriminatory but you may not know that there is a context against which it could be offensive and possibly lead to a claim.
Cassandra Lee was employed in an administrative position at the Australian Navy’s office in Cairns. She brought a sexual harassment compliant against the Navy, the Department of Defence, the Commonwealth of Australia, her three supervisors from who she worked and two employees. She was subjected to pornography in the workplace, and sexually harassed and sexually assaulted (including being raped) by her colleague, Austin Smith. After the rape, Ms Lee reported it and the other conduct to her superiors. They took no action to deal with the predicament and she was forced to continue to work in the same building as Smith. Her superiors also treated her harshly (victimised) in relation to her allegations.
The Federal Magistrates Court found that:
- The presence of pornography material indicated a lack of commitment to principles of equal opportunities and also sent a message to the workforce that accessing or displaying the material was acceptable. This constituted unlawful discrimination;
- Smith and the Commonwealth of Australia (vicariously) were both liable for Smith’s behavior leading up to the alleged rape.
- The lack of EEO training and failure by the navy to follow its own EEO regime, may have led to Ms Lee not reporting the matter as early as she otherwise would have. Had she been better equipped to deal with the earlier pornography in the workplace, by reporting those matters, ultimately, the rape itself might have been avoided.
- The rape itself was a culmination of a series of sexual harassments which had taken place in the workplace. It would not have occurred but for the collusion of Smith and two other employees who made concerted efforts to make arrangements for Lee and Smith to attend a dinner at their residence.
- In relation to the behaviour of Lee’s supervisors subsequent to the rape, the Federal Magistrate concluded that Ms Lee was bullied and victimised.
Consequently, the sum of $100,000 was awarded to Lee as compensation for hurt and humiliation, pain and suffering with all four Respondents jointly liable for payment Costs were also awarded against the Respondents jointly and severally.