How To Recognise And Handle Workplace Harassment And Bullying Appropriately

In two recent cases, employers’ actions in dismissing employees for harassing conduct were upheld. In both cases, the employees were unsuccessful in claiming unfair dismissal after they were terminated for engaging in sexually harassing behaviour - one for sending pornography over the company email system, the other for sending sexually provocative SMS messages to a junior member of staff.

New types of workplace harassment other than sexual harassment are also emerging, such as workplace bullying. While in the past bullying has primarily been seen as a school yard issue, it is now a common issue in the workplace. Bullying cases canvass a wide spectrum of behaviour from physical assaults and initiation rites through to more subtle forms of bullying.

SEXUAL HARASSMENT

Human Rights activists recently celebrated the 20th anniversary of sex discrimination and harassment laws in Australia. Yet despite these laws, sexual harassment continues to be one of the main grounds of complaint in discrimination tribunals. While traditional forms of sexual harassment are less common, new issues are emerging, including sexual harassment at work related functions and use of technology to sexually harass.

What is sexual harassment?

Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person, having regard to all of the circumstances would have anticipated would cause offence, humiliation or intimidation. Sexual harassment laws apply to both men and women, and cover same sex harassment. There is no requirement for a pattern of behaviour - one incident may be sufficient to constitute sexual harassment.

Under the law, there is no requirement of intention to harass the person. Sexual harassment is not defined as what the alleged harasser considers to be appropriate behaviour. Rather, the test asks whether the harasser should reasonably have expected their behaviour might cause offence, humiliation or intimidation to the person harassed. This test therefore takes into account the particular sensitivities of the person harassed.

Recent statistics show that 80% of employees experience some kind of sexual encounter at work and that 40 percent of people meet their partners at work (Geoff Carter, ‘Love and Work’). The test of sexual harassment requires ‘unwelcome conduct’ and accordingly, where the interaction is genuinely consensual, this will not constitute sexual harassment.

Examples of sexual harassment include:

• physical contact
  
• sexual propositions
  
• inquiries into sex/private life
  
• persistent requests to go out
  
• suggestive comments
  
• leering/staring

Work functions

Sexual harassment laws extend beyond work hours and work premises to any function that is ‘work-related’. This may include Christmas parties, conferences, work lunches and even Friday night drinks.

The combination of alcohol and a social context can heighten the risk of sexual harassment occurring. The involvement of alcohol can also complicate an employer’s investigation of an incident, with employees often raising the “I don’t remember a thing” defence to seek to avoid responsibility for their actions. Intoxication is not a defence to sexual harassment laws. Accordingly, employees should take care when consuming alcohol in a work context, and employers should take steps to ensure the responsible service of alcohol at work functions.

Employers are liable for sexual harassment that occurs at the work functions, unless ‘all reasonable steps’ were taken to prevent the harassment occurring. Practical steps employers should take to meet this defence are detailed below. Taking ‘all reasonable steps’ also assists employers to deal with inappropriate behaviour that may occur at work functions, including taking disciplinary action.

WORKPLACE BULLYING

Another form of workplace harassment facing many employers is workplace bullying. Workplace bullying is becoming a significant issue in the modern workplace. With an increased focus on the issue, employers should be aware of the legal risks associated with bullying and steps that can be taken to minimise potential liability.

What is bullying?

Unlike sexual harassment, there is no legal definition of workplace bullying. While there is no accepted definition, there have been a number of guidelines published recently relating to bullying. The Victorian Worksafe Bullying Code of Practice and the Western Australian Worksafe Guidelines provide examples of definitions of bullying.

Both include the following criteria:

• repeated conduct
  
• that is unreasonable in the circumstances
  
• causes a risk to the health and safety of the employee
  
• victimises, humiliates, undermines or threatens

Generally for conduct to constitute bullying the conduct has to be repeated. A one-off incident would not normally be considered workplace bullying. There is no requirement that the person deliberately or intentionally bully the person, however, intention may be a relevant consideration in assessing the level and severity of the conduct.

The cases show a spectrum of bullying based on the severity of the conduct. There are still cases involving obvious forms of bullying, such as physical assault or threats, initiation rites, verbal abuse etc. However, the emerging issue for many employers is claims of bullying in respect of more subtle behaviour, for example, ‘psychological harassment’, targeting certain employees for performance management or menial tasks, and exclusion or isolation of certain employees. Often such claims are made by employees against their manager, particularly in the context of performance management or implementation of cultural change. These issues can be more difficult to deal with than more obvious forms of bullying, as it is not clear where reasonable managerial action ends and bullying begins.

The current authorities do provide some guidance on what bullying is not. The guidelines include specific reference to reasonable performance management, disciplinary action, managerial prerogative and allocation of work in compliance with systems. The guidelines even say that poor management does not necessarily constitute bullying.

Managerial prerogative is not, however, a defence to bullying. In one case, a manager who called his staff morons, f-ing animals and toe-rags was unsuccessful in arguing that this was within his managerial prerogative.

Legal risks

As noted, there is no single law dealing with bullying. However, there is potential for claims arising from bullying to be pursued under various laws. Common claims include workers’ compensation claims for psychological injuries arising from bullying and constructive dismissal claims from employees who resign their employment due to workplace bullying. Other potential claims include negligence claims, contract claims and claims under OHS, discrimination or criminal laws.

In New South Wales, there is a defence under workers’ compensation laws for psychological injuries that are wholly or predominantly caused by reasonable action with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal and employee benefits.

PRACTICAL STEPS

The following practical steps may assist employers to deal with workplace harassment and minimise the risks associated with such conduct:

• Policy: address workplace harassment (including sexual harassment and bullying) in company policies and procedures. The policy should clearly identify what constitutes harassment, the consequences if an employee engages in harassment and provide a specific complaints procedure.
  
  
• Effective complaints procedure: implement a complaints procedure specifically for workplace harassment issues, as such issues are different to other workplace grievances.
  
  
• Training: train mangers to identify workplace harassment and respond appropriately to complaints and issues of workplace harassment. Managers should also receive appropriate training and guidance on performance counselling. It is important that this training is offered on an on-going basis to ensure new managers are also trained.
  
  
• Appropriate action: be aware of the warning signs of workplace harassment and act appropriately if managers become aware of these issues in the workplace. Failure to take appropriate action or ignoring workplace harassment could leave an employer exposed to legal risks, as discussed above. It is important that employers do not “turn a blind eye” to workplace harassment, as this may increase an employer’s potential liability.
  
  
• Supervision and monitoring of the workplace: managers and supervisors should actively monitor and supervise the workplace to ensure workplace harassment is not occurring. Without such monitoring and supervision there is a risk of bullying culture going unnoticed.
  
  
• Audits and employee consultation: employers may consider conducting a review or audit of areas where workplace harassment might arise. Employers may also consider conducting employee surveys, to determine whether workplace harassment is an issue in its workplace.
  
  
• Commitment to harassment-free workplace: it is important for employers to communicate to employees a commitment to addressing workplace harassment. This assists in creating an environment where employees feel confident raising issues of bullying, thus minimising motivation for employees to turn to external remedies.

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