Community intolerance and increased attention from legislators have thrust workplace behaviours that are bullying, discriminatory and harassment to top of the hit parade as an important issue for employers.
Changes to the Fair Work Act and Sex Discrimination Act have adopted some recommendations from the Australian Human Rights Commission's Respect@Work: Sexual Harassment National Inquiry Report.
So… NOW is a good time for you as an employer to take stock and make sure you understand the obligations of your business and that your managers and workforce also understand their obligations.
Here are six key questions that clients frequently ask Akyra.
1. WHAT IS BULLYING & HARASSMENT?
Bullying is generally considered to be repeated unreasonable pattern of behaviour (e.g. humiliation, intimidation, offensive) directed towards an employee or group of employees. Examples of direct bullying/harassment include:
- aggressive or intimidating conduct;
- humiliating comments;
- deliberately excluding or isolating an employee from workplace activities;
- spreading malicious rumours about another employee;
- deliberately denying access to information or other resources; and
- withholding access to information or other resources to prevent an employee from performing effectively at work.
Although bullying is typically repeated behaviour, you should not ignore single or isolated incidents.
Harassment often has a discriminatory aspect to it and is usually based on a person’s attribute:
- disability; or
2. WHAT IS SEXUAL HARASSMENT
Sexual harassment is any unwanted or unwelcome sexual behaviour of someone feeling offended, humiliated or intimidated. It can be a single incident. Importantly, a court will always judge matters based on what a 'reasonable person' would have anticipated.
To avoid being liable for this conduct in your workplace, you need to take steps to prevent it from occurring. As an employer, you also have an obligation to ensure your employees have a safe place to work. This obligation now extends to preventing sexual harassment.
In 2021, there were some changes to the Fair Work Act and Sex Discrimination Act regarding sexual harassment:
- sexual harassment has been added to the definition of 'serious misconduct'. This is conduct for which an employer can ordinarily terminate the employment without notice;
- employees can make a "stop-sexual harassment order" to the Fair Work Commission (this is similar to a stop-bullying order); and
- harassment on the basis of sex is prohibited, and there is also a clear definition that includes 'unwelcome conduct of a seriously demeaning nature' which aims to prevent sexism that does not meet the definition of sexual harassment.
3. WHAT IS DISCRIMINATION?
A person unlawfully discriminates against another person if:
- they treat them less favourably than others based on certain factors that the law sees as unfairly biased – e.g. treating someone unfairly based on their age;
- they require the other person to comply with a rule or condition which is the same for everyone but is not reasonable due to their personal attributes or circumstances.
Importantly, discrimination on any of the following factors or grounds is unlawful:
- disability (including physical, intellectual and psychiatric disability);
- sex and sexual orientation, gender identity or intersex status; or
- marital status, family responsibilities, or pregnancy.
4. ARE THERE OTHER WORKPLACE BEHAVIOURS TO WATCH OUT FOR?
As an employer, you have an obligation to provide a safe place of work for your employees – i.e. not limited to physical safety. It is also important to take steps to ensure your workplace is free from psychological or any other non-physical risks to health and safety.
The most common non-physical risks in a workplace are discrimination, harassment (including sexual harassment) and bullying. However, employers must keep an eye out for any conduct that poses a risk to health and safety. You must then ensure active steps are taken to eliminate or minimise that risk.
5. WHAT SHOULD YOU DO FIRST UP?
Firstly, you should ensure employees are aware of your stance on bullying, harassment and discrimination. You can create awareness through workplace polices and training. It might also be appropriate to have leaders to help enforce workplace policies. Key policies you should maintain include:
- an anti-discrimination, harassment and bullying policy;
- a work health and safety policy; and
- an IT policy.
Be aware that simply having policies will not protect your business. You must take steps to appropriately draft your policies, communicate them to your employees, and enforce them.
6. WHAT TO DO IF AN ALLEGATION OF BULLYING, DISCRIMINATION OR HARASSMENT IS MADES?
You should promptly deal with issues that are brought to your attention – whether that occurs because of a complaint or from conduct you observe as an employer. There are many ways to handle these situations and can differ on a case-by-case basis.
Depending on the nature of the complaint, it may be appropriate to deal with it in an informally – e.g. a meeting between the parties may be most effective.
When it is a more serious allegation, you will likely need to conduct an investigation. When investigating the alleged conduct, consider whether you want to do so internally or by a third party. Ultimately, you may also need to take disciplinary action.
Handling instances of workplace bullying, discrimination or harassment can be a very challenging and sensitive process. Indeed, it is a good idea to get in touch with a professional in this area who can talk you through your options.
You have an obligation to keep your workplace free from risks to health and safety and the risk receiving claims related to discrimination, harassment and bullying. Therefore, it is crucial you have clear policies and training supported by a proactive approach to ensure your business is free from these types of risks.
With costly implications if you get it wrong, it is best to ask for expert advice sooner rather than later. Akyra can work with your business to assist and support you with all your questions and concerns related to discrimination, harassment and bullying.
If you require advice or assistance with your people management, contact Akyra on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.
If you require advice or assistance with any people management circumstances or managing your workforce post-pandemic, contact Akyra on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.
Contact us now to book a time to discuss your areas of potential concern and we will then provide a way forward where it might be needed.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
Source: https://www.mondaq.com , October 2021.
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