Sexual Harassment Archives | Anti Corruption Consultants Australia

Understanding and recognising sexual harassment in the workplace

May 18, 2023 by Mick Symons

Sexual harassment is an alarming, pervasive issue that continues to plague workplaces across the globe. It is gender discrimination involving unwanted sexual advances, requests for sexual favours, or other verbal or physical sexual conduct. The impact of sexual harassment is multi-faceted. It affects individuals, the organisation, productivity, the culture of the organisation, and the overall work environment.

Types of sexual harassment

Sexual harassment typically falls into two categories: ‘Quid pro quo’ and ‘Hostile Work Environment’.

‘Quid pro quo’ sexual harassment occurs when job benefits–such as promotions, raises, or continued employment–are tied to the submission to sexual advances or requests. For example, if a supervisor suggests an employee might receive a promotion if they go on a date. This would be quid pro quo harassment.

‘Hostile Work Environment’ harassment occurs when an employee is subjected to sexual jokes, comments, imagery, or any other sexual behaviours to a degree that the work environment becomes intimidating, hostile, or offensive, or when their performance is adversely affected. For example, if a group of employees frequently share explicit content or make sexual remarks about another employee, leading them to feel uncomfortable or unsafe. This is considered a hostile work environment.

Indicators of sexual harassment.

Recognising sexual harassment in the workplace often means being aware of various indicators, which can include unwanted sexual advances, sexual jokes, or comments, sexual or offensive material, inappropriate communications, sexual favouritism, retaliation, hostile work environment, sexual assault, and stalking or obsessive behaviour.

Unwanted sexual advances can range from suggestive comments to unwelcome touching or physical closeness. For example, an employee might constantly face intrusive inquiries about their personal life, receive unwelcome compliments about their physical appearance, or even find a co-worker invading their personal space.

Sexual jokes or comments can involve lewd jokes, suggestive remarks, or sexually explicit language. Suppose someone frequently subjected an employee to colleagues making sexually offensive jokes or comments about their appearance or sexual orientation, despite expressing their discomfort. In that case, they are experiencing sexual harassment.

Sexual or offensive material refers to the display of sexual or offensive material, such as explicit images or videos. For example, if explicit content is frequently shared in a group chat, or sexually explicit images are displayed in the workspace, this could constitute sexual harassment.

Inappropriate Communications can be emails, text messages, or social media interactions with sexual undertones or inappropriate comments. For instance, receiving unsolicited sexually explicit emails or messages from a co-worker or supervisor is a form of sexual harassment.

Sexual Favouritism is when decisions about promotions, job assignments, or other work benefits are based on submission to sexual advances or favours. If an employee notices that colleagues who engage in sexual relationships with superiors receive preferential treatment, it can be sexual favouritism, “quid pro quo” harassment.

Retaliation can occur if someone complains about sexual harassment and then experiences negative consequences at work, such as being demoted, fired, given fewer desirable assignments, or otherwise treated poorly. Retaliation is a form of sexual harassment and is illegal in numerous jurisdictions.

The Hostile Work Environment is when the workplace is permeated by sexual conduct, comments, or innuendos that make an employee feel uncomfortable, intimidated, or distressed.

Sexual Assault includes any unwanted sexual contact or activity. Any form of non-consensual physical contact, from touching to more severe actions, falls into this category and is not only harassment but also a criminal offence.

Stalking or Obsessive Behaviour involves unwelcome attention, such as persistent calls, messages, or following someone around. A pattern of obsessive focus, repeated attempts at contact, or disturbing messages may signal this type of harassment.

The impact of sexual harassment on victims and the workplace.

Sexual harassment takes a significant toll on its victims, leading to psychological, emotional, and sometimes physical distress. Victims may experience depression, anxiety, sleep disturbances, and a host of other mental health issues. The emotional toll can also affect their personal relationships and overall quality of life.

The impact of sexual harassment extends beyond the individual, affecting the workplace. It can lead to decreased productivity, increased absenteeism, higher turnover rates, and a decline in job satisfaction among employees. When employees do not feel safe or respected, their engagement and output inevitably suffer.

Sexual harassment also affects the overall culture of an organisation. It can breed an environment of fear and mistrust, damaging team cohesion and collaboration. In the long term, a company’s reputation can be severely damaged, affecting its ability to attract and keep top talent.

What employers can do to prevent sexual harassment?

Preventing sexual harassment in the workplace requires a multi-faceted approach from employers. A clear, comprehensive sexual harassment policy should be in place, outlining what makes up harassment, the consequences of such behaviour, and the procedure for reporting it.

Training and awareness programs are also crucial. Employers/Management should educate employers about the different forms of sexual harassment, how to recognise them, and how to respond. Bystander intervention training can also be effective, empowering employees to intervene when they witness inappropriate behaviour.

Legal consequences of sexual harassment

The legal consequences of sexual harassment can be severe for both individuals and companies. Individuals may face disciplinary actions, termination, and legal penalties, including lawsuits and fines. Victims can hold companies liable for the harassment committed by their employees, particularly if they were aware of the harassment and did not appropriately address it. They may face lawsuits, hefty financial penalties, and severe damage to their reputation.

Conclusion

Recognising and addressing sexual harassment in the workplace is not just a legal obligation—it is a moral one. It is crucial to cultivating a safe, respectful, and productive work environment for all employees. By understanding what makes up sexual harassment, its impact, and how to prevent it, we can all contribute to a fairer and more respectful workplace.

Contact ACCA for an independent review/investigation if you have concerns about sexual harassment in your workplace (www.acca-aust.com.au)

#LeadershipResponsibility #WorkplaceSafety #SexualHarassmentAwareness #HumanResources

The Danger Season is Approaching

November 7, 2022 by Mick Symons

The Christmas season is fast approaching. Parties are being planned.

Joy and happiness abound as we move to a festive season without Covid restrictions.

However, danger lurks- what may occur at the Christmas party?

Christmas parties can be a WHS minefield!

Exuberant guests fuelled by alcohol may cross the line with comments and actions.

Alcohol may also lead to accidents at the venue and travelling from the venue.

Employers have a responsibility to act to ensure the safety and welfare of staff and associates at the parties.

Some actions may include:

• Make sure the venue has no “hidden” dangers which may expose employees to accidents. Potential hazards which may cause a fall, a slip or trip.
• Limiting and monitoring alcohol consumption.
• Providing access to transport (Uber, Taxis etc) to make sure people travel safely after the event.
• Reinforce with employees the expected behaviour and limitations on consumption of alcohol at the event.
• Appoint people to monitor conduct at the function.

Remember the function is still a workplace even though it is a Christmas party. The Code of Conduct and behaviour guidelines apply.

Overindulgence in alcohol has the potential to increase the risk of accidents and sexual harassment. Remember the bar on sexual harassment is lower now–inappropriate touching and/or comments will open the door to a claim.

What do I do if someone complains? The most important thing is to treat the complaint seriously. Do not write it off. Respond in a timely manner. Arrange for a fair and confidential workplace investigation. The investigation must provide procedural fairness to everyone.

ACCA can assist with an independent, unbiased investigation. This removes any allegations of actual or perceived conflict of interest. See www.acca-aust.com.au or contact me direct at [email protected].

When Sex Takes Over

July 25, 2022July 25, 2022 by Mick Symons

When sex takes over

Sex and alcohol in the workplace can lead to major trouble.

Today I would like to review a matter involving sex, alcohol and lies.

First, let me set the scene:

It is a combined Christmas party and a farewell party. The company paid $25 a head towards the costs of the function. Several employees attended it.

Before the function, several employees went to a hotel (“A”) for pre-dinner drinks.

Other employees arranged accommodation at another hotel–we will call this hotel “B” for clarity.

The function was well lubricated with copious amounts of alcohol flowing.

To describe the function and subsequent activities as bawdy would not do it justice.

After the function, several employees returned to Hotel B. One of these (we will call Madam X for her sake) came to the room with other employees. Some employees were trying to sleep despite the interruptions.

Madam X decided it would be great to have a little fun–she had a bath with two other employees. She then stood at the bathroom door with a bath towel around her body while another employee went to the toilet.

That must have triggered something in her, so she jumped in the bath with two employees. She then had sexual intercourse with another employee then another.

All of her actions were within the view and/or earshot of other employees in the room.

The complaint

The behaviour of Madam X and the other employees who engaged in the sexual behaviour and exhibition shocked one of the other employees. She rang the Acting Manager of the store–she was hysterical as she outlined the conduct. The manager confirmed the conduct by speaking with two other employees who were present.

One person could not come to work because she was crying and hyperventilating. Another employee stated she was distressed and disgusted by the activities.

The company suspended the employees involved in the sexual activities.

The investigation

The company spoke to employees who were present. These employees confirmed the activities and expressed disgust by what had occurred. Some expressed remorse about not stopping the conduct before it escalated.

The investigator questioned Madam X. She initially denied having sex. She said she could not remember. She inferred she was so affected by alcohol she could not remember what happened.

The investigator questioned her again some two weeks later. He asked specific questions about the sexual activity on the night. She replied “no comment” or she did not recall.

The interviewer then told her:

• “[W]e feel you have been dishonest with us throughout this interview process. In particular, you have lied to us about:
• Whether you had sex with [the fourth employee].
• Whether you had sex with [another employee].
• Your recollections of what happened that night at the hotel; and
• What you did in the bathroom with [another employee] and [the fourth employee].
• Do you have anything to say about this?”

Madam X replied with “No comment.”

You should note when Madam X gave evidence at the Australian Industrial Relations Commission (Commission) she admitted she engaged in the alleged sexual activities. She was too embarrassed to tell the truth.

The company advised her, during the second interview, they were considering ending her employment because of her activities and dishonesty when questioned about her activities. The investigator asked her if she wanted to respond to this or to provide any further information. She did not.

The company ended her employment.

Initial hearing in the Australian Industrial Relations Commission

Madam X referred to the Commission as she argued against termination. The Commission addressed two issues–sexual harassment and her dishonesty.

The Commissioner commented on sexual harassment occurring when unwelcome sexual conduct occurred in the presence of a person. Was the person sexually harassed? The conduct occurring in circumstances in which a reasonable person engaging in the conduct, having regard to the circumstances, would have expected the person harassed would be offended, humiliated or intimidated.
He then determined he would not characterise her conduct as sexual harassment or, even if considered sexual harassment, the conduct was only of the “indirect kind.”

The Commissioner then reflected on her failure to answer questions truthfully during the investigation. He considered a previous decision where dishonesty resulted in dismissal. He then referred to the conduct of Madam X:

The conduct about which Madam X lied was of an inherently personal nature. Lying is never to be condoned. However, given the nature of the conduct about which she has been untruthful, I do not consider that any dishonesty on her part has been such that it should be regarded as likely to destroy the necessary relationship of trust between an employer and employee. In drawing this conclusion, I have also had regard to the evidence of [the Assistant Manager of the xxx store] who said that he had no reason to believe that Madam X was dishonest when it came to stock or cash.

He then made these comments about the matter:

• Allegations of sexual harassment must be taken seriously by employers. Indeed, they may be held liable for sexual harassment by their employees even where this occurs out of hours and away from the workplace.
• I have rejected the argument that there was no connection between Madam X’s conduct and her employment.
• The respondent’s submissions greatly exaggerated the seriousness of Madam X’s misconduct, particularly the suggestion that she committed a criminal act of obscenity. Moreover, I have found most of the behaviour complained of either did not constitute sexual harassment as defined by the SDA or only did so in a relatively marginal way.
• As the respondent conceded, the less direct the relationship with the workplace the more serious the misconduct would need to be to justify termination of employment. Most of the impugned behaviour occurred well away from the workplace, after rather then [sic] during a work function, in a hotel room that was booked and paid for privately.
• In all the circumstances, Madam X’s conduct was not so serious as to constitute a valid reason for the termination of her employment.
The Appeal
The matter went to appeal. The grounds were the Commissioner:
• Misconstrued and/or misapplied s.652(3)(a) by failing to consider and determine the effect of the conduct on the welfare of other employees.
• Failed to make necessary findings of fact and law, in deciding whether there was a valid reason for the termination.
• Erred in the construction and application of s.28A(1)(b) of the Sex Discrimination Act 1984 (Cth).
• Erred by making an order of re-instatement without making findings of fact regarding whether an appropriate level of trust and confidence could be re-established, given the respondent’s dishonesty.
• Misconstrued and/or misapplied the test of what constitutes a valid reason for termination by failing to consider relevant matters and requiring the appellant to establish serious misconduct.

The matter wound its way through the various avenues in the Australian Industrial Relations Commission. It was eventually determined the termination of Madam X’s employment was not harsh, unjust, or unreasonable. They quashed the previous judgements.

It is interesting to note this is a 2007 matter–I believe the initial determination (the one appealed) would be different if they addressed the conduct today.

See Australian Industrial Relations Commission Appeal by Telstra Corporation Limited C2007/3458)

Take aways

• Employers should make comprehensive notes relating to the investigation process.
• Explore all evidence both for and against the respondent
• Lock in witnesses with a formal statement
• Provide procedural fairness in all aspects of the investigation.
• Take positive action if the circumstances warrant it.

Contact ACCA if you want any assistance with policies and/or investigations concerning sexual harassment in the work place.

Mick Symons – ACCA (www.acca-aust.com.au)

Bullying in the Workplace

March 24, 2022 by Mick Symons

Bullying in the Workplace – An In Depth Overview

Not so long ago bullying in the workplace was seen as a sport in some Australian work places. Employees were subjected to “pranks” disguised as initiation rites. These varied from physical abuse to mental abuse to ridiculing employees.

These pranks should no longer be tolerated! However, there is still a belief, in some areas, they are “only harmless fun”. The psychological harm will affect employees and your firm will suffer reputational damage when matters are reported in the media and you face a court.

The employer has an obligation to prevent bullying in the workplace. You must take reasonable care to ensure behaviour in the workplace does not adversely affect the health and safety of other persons.

The Australian Human Rights Commission claimed (2015) workplace bullying cost the Australian economy up to $36 billion each year. The average cost of each case amounting to $17,000-$24,000 for employers.

There are also substantial legal penalties under Occupational Health and Safety legislation across various jurisdictions.

Bullying has an indirect of profitability – it affects:

Higher absenteeism and turnover of staff
Lower morale
Decreased productivity
Legal and workers’ compensation claims
Costs of internal or external investigations
Loss of productivity my managers who have to address issues flowing from the behaviour.

What is Workplace Bullying?

Workplace bullying is repeated and unreasonable behaviour towards a worker or group of workers. The conduct creates a risk to health and safety.

The behaviour must be repeated. This infers a “one-off” incident should be disregarded as it is not, according to the definition, “bullying”.

The conduct may be against a worker or a group of workers, The conduct must create a risk to health and safety.

While a single incident of unreasonable behaviour is not considered workplace bullying, it is important to take appropriate action if there are any instances of inappropriate or disrespectful behaviour. This action is required to prevent any escalation. A record must be kept of any intervention in such circumstances.

Role of the employer

The employer MUST provide a workplace that is safe and without risks to health. This requires the employer to provide and maintain appropriate work systems. This is reinforced by legislation across Australia.

The employer should know the potential for workplace bullying and implement the appropriate policies and training procedures to control the risk.

You should involve employees when developing policies. Legislation may require involvement of employees in workplace health and safety committees.

It is recognised prevention is the best way to prevent bullying in the workplace.

Preventive Measures

Developing a strong workplace culture

This is a significant factor in preventing bullying. A strong positive culture sets the standards and conduct in the workplace. While everyone in the workplace contributes to culture, management has a greater influence and responsibility to establish a positive culture in the workplace.

Setting standards and establishing agreed values.

Employers are obligated under Occupational Health and Safety (OHS) legislation to provide a safe workplace. They must, as far as reasonably practicable, ensure there are no risks to physical health and safety or psychological trauma.

Employers should clearly outline expected values and standards of behaviour to provide a safe environment. This can be in an agreed standard (code of conduct) or specific policies targeting bullying. Employees should, where appropriate, assist to develop these policies.

The acceptance of such policies will assist in reducing incidents of bullying.

Effective leadership

There must be a commitment at all managerial and supervisory levels to prevent and respond to workplace bullying.

Effective leadership will, by example and action, reduce the potential for workplace bullying. Leaders must train employees and lead by example.

Strong leadership is required when any incidents occur.

Workplace policies and procedures addressing bullying

Employers should consult with employees to develop and implement a workplace policy and procedure to address workplace bullying. This will ensure a consistent approach within the company to prevent and respond to any incidents of workplace bullying.

This policy would set the standards of expected behaviour in the workplace. It would also reinforce that bullying behaviour would not be tolerated.

Workplace bullying policy

The policy should take a guiding approach by outlining how everyone should behave and be treated at work. It should also incorporate a preventive approach clearly outlining what behaviour would not be tolerated.

The policy could be a standalone document or incorporated into the code of conduct.

The policy should be developed in conjunction with the employees using an Occupational Health & Safety committee approach where appropriate.

What should be in the policy

The policy should include:

A statement from management outlining a commitment to providing employees with a healthy and safe working environment.
Identification of the expected standard of behaviour from all employees.
Examples regarded as workplace bullying, and examples of appropriate managerial oversight.
If appropriate, address the various methods of communication that may be used including personal text messages, emails, and social media.
A section on how an employee can report incidents of workplace bullying with a reference to support programs to help the reporting parties.
A commitment from management to treat reports of workplace bullying seriously.
Information on how management would respond reports indicating impartiality and confidentiality where appropriate.
How reports would be investigated.
Highlight what action may be taken if the reports are substantiated.
Where employees can get more information about workplace bullying.

Promoting the Policy

The policy should be promoted and communicated all employees. This should include posters on notice boards, a regular topic on team meetings, advice on intranet pages, and regular discussion with employees.

All employees should receive a copy of the policy on induction. It should also be incorporated as a topic or specific training program at least every 12 months.

The policy should be regularly reviewed.

Encourage reporting

Employees will report instances of bullying if they are confident the organisation will address these reports in line with the bullying policy.

The policy and any promotional material clearly outlines the reporting structure. Employees should be assured the reports will be considered and treated as confidential where appropriate.

Employees should be encouraged to report any incidents as this would allow the employee to take urgent action to address any issues so they do not escalate. The employer can also determine whether their prevention methods are effective.

Reporting will also allow employers to provide prompt assistance and support to employees to mitigate any ongoing stress-related issues.

Transparency

The employer should be transparent when addressing instances of workplace bullying. This may include advice to employees as to what action they took in relation to allegations workplace bullying. It is important to acknowledge the need for confidentiality when promoting this action.

General information can be provided as part of any regular communication process across the organisation. This information may include:

The number of reports received
The number of reports resolved
Time taken to complete investigations
Whether the investigation was conducted internally or externally
The general nature of the outcome of the investigations (be conscious of the need to maintain confidentiality where appropriate).

Training within the workplace

Occupational Health & Safety legislation highlights the responsibilities of an employer to provide information, instruction, training, and supervision to all employees to ensure they work in a way that is safe without risks to health.

This includes information relating to workplace bullying. It is important supervisors are fully aware of what comprises as workplace bullying and their obligations to address any identified issues within the workplace. You may be required as the employer to provide specific training in this area to all supervisors and managers.

Induction

Induction must include information about workplace bullying, including relevant policies and procedures.

Induction training should be provided to permanent employees, casuals, contractors, and volunteers. Labour hire personnel and visitors should know polices relating to bullying in the work place.

Training

It is important training is provided to all employees. This training should be comprehensive with an emphasis on what comprises workplace bullying and what action should be taken if the employee witnesses the conduct or is a victim of workplace bullying.

The training should also emphasise the expected standards of behaviour in the workplace.

Supervisors/Managers should receive targeted training highlighting their responsibility to ensure a safe workplace. This training should include:

Role of communication – how to communicate with various parties
Managing the “difficult conversation” about workplace bullying
Providing formal and informal constructive feedback to all parties
Monitor and address potential issues leading to workplace bullying
Conflict resolution to address potential issues
What action to take if a report is made

Impact of Workplace Bullying

Workplace bullying can affect people in many ways. It can lead to:

Distress, anxiety, panic attacks or sleep disturbance
Physical illness, such as muscular tension, headaches, and digestive problems
Reduced work performance
Loss of self-esteem and feelings of isolation
Deteriorating relationships with colleagues, family, and friends
Depression
Increased risk of suicide

Examples of workplace bullying

Workplace bullying can include:

Abusive, insulting, or offensive language or comments (including belittling, demeaning, or patronising someone, especially in front of others)
Yelling or screaming at an employee
Unjustified or unreasonable criticism or complaints
Singling someone out and treating them differently from others
Withholding information, supervision, consultation, training, or resources deliberately to prevent someone doing their job
Setting unreasonable timelines or constantly changing deadlines
Spreading misinformation or malicious rumours
Changing work arrangements, such as rosters and leave, to deliberately inconvenience someone
Setting tasks unreasonably below or above someone’s skill level
Humiliating, shouting at or threatening someone
Excluding someone from participating in activities relating to their work
Refusal to acknowledge contributions and achievements (such as discovering that a person’s work – and the credit for it – has been stolen or plagiarised)
Initiation or hazing – where someone is made to do humiliating or inappropriate things
Teasing or playing practical jokes
Refusing annual leave, sick leave, and especially compassionate leave without reasonable grounds
Playing mind games, ganging up or other psychological harassment
Intimidation (making someone feel less important and undervalued)
Undermining work performance by deliberately withholding information vital for effective work performance
Constant unconstructive criticism and/or nit-picking
Suppression of ideas
Overloading a person with work or allowing insufficient time for completion and criticising the employees work in relation to this
Utilisation of various social media platforms and emails

It is important to realise any physical contact such as pushing, shoving, tripping, or grabbing is an assault. These actions should be taken seriously and, where appropriate, reported to the police so there is a record of the conduct.

The same applies to any threatening behaviour or physical contact with a weapon of any description including tools or other weapons (knives, guns, clubs). This must be reported to the police.

What is not considered workplace bullying

While some work practices may appear unfair they are not regarded as bullying if the conduct falls within accepted work practices and are done reasonably.  

The following are examples of what is not considered as bullying if conducted reasonably.

Setting realistic and achievable performance goals, standards, and deadlines
Fair and appropriate rostering and allocating working hours 
Transferring someone to another area of the organisation/business or role for operational reasons
Deciding not to select a worker for promotion where a reasonable process is followed
Informing a person about their unsatisfactory work performance in an honest, fair, and constructive way
Informing someone of their unreasonable behaviour in an objective and confidential way
Implementing organisational changes or restructuring
Taking disciplinary action, including suspension, or terminating employment where appropriate or justified in the circumstances.

What can increase the risk of bullying in the workplace?

These factors can increase the potential for bullying in the workplace.

Work stressors

High job demands, limited job control, organisational change, role conflict, job insecurity, tolerating unreasonable behaviour or a lack of behavioural standards, unreasonable expectations of clients or customers.

These can lead to frustrations within the general workforce and management.

Leadership styles

An authoritarian leadership style does not allow for employee interaction. It is a “damn it – do it” approach with no guidance or advice.

The is a lack of formal delegation leading to more assertive employees taking an inappropriate oversight role.

Work systems

Inappropriate workplace practices, lack of resources or training can create stress in the workplace. Unreasonable key performance standards, unrealistic expectations or time frames will also lead to stress in the workplace.

The stress leads to issues on the floor resulting in bullying as a potential outlet to reduce it.

Work relationships

Relationship between employees is also a key factor. Poor communication between management and employees, and employees themselves is also another factor. Low levels of managerial support opens the door for bullying. Ongoing conflict will also lead to bullying.

Workforce personnel

Research highlights some employees are more at risk from workplace bullying. These include, but not necessarily limited, to apprentices, casual employees, younger employees, injured employees, or those returning to work after an injury.

Employees who lodged a complaint are also likely to be targeted on return to work.

Bullying is also associated with ethnicity, religion, gender, disability, or sexual preferences.

What should I do if I am bullied at work?

You need a record of what occurred. This is important if the matter is going to be followed up.

The record should include such details as:

Date and time of incident
What happened before the incident?
Details of the incident
- What happened
- Who was involved
- What was said
- Who said anything
Any witnesses
What occurred after the incident?
Where did the incident occur?
Was there any CCTV coverage?
Was there any damage to clothing?
- If so, keep the clothing after the incident if possible. If not, photograph damage.
Were you injured in anyway (cuts, bruises)
- Photographs where possible
- If you had medical treatment then keep details of where and when treatment occurred. Who provided the treatment.
Note your feelings flowing from the incident
- Were you upset?
  - If so – why?
- Were you embarrassed?
  - If so – why?
Why do you believe the conduct was bullying.
You need to tell someone what happened. There may be a contact listed under occupational health and safety procedures.
If you are a member of the Union then consider speaking with your delegate.

Remember, bullying is repeated behaviour. Your records will support the repetition of the conduct.

The employer must provide you with a safe work environment free of bullying and harassment. If the firm takes no action then it would be appropriate to refer your complaint to the Union if you are a member.

Remember, if you believe you are in immediate danger then, if possible, leave the workplace. You should (if appropriate) ring 000 for police assistance.

If you believe the incident was serious and you feared for your safety then report the incident to the police. Conduct leading to you fearing for your safety may be assault. Police will take the appropriate action.

Summary

The onus is on management to ensure there is an effective policy and procedure to address workplace bullying. However, eliminating workplace bullying requires action from everyone in the workplace.

Employees must be courageous in addressing this issue. Bullies will sidestep preventive measures. They will also use more subtle ways to target people. Gradual ostracization or exclusion can erode the confidence of a person. The “pain” of this is not visible like a bruise or cut but it can eat away at the victim.

Bullies use social media and other subtle methods to target victims. A bully is normally an informal leader, others see his actions as non-harmful, just a “joke”. Get over it, it is all in fun and other comments lead to a further erosion of self confidence in the victim.

A failure to report incidents leads to an escalation as the bully gains further confidence in not being sanctioned for his/her actions. A failure by other workers to report the incidents means they are complicit in the bullying as if they were taking the action against the employee.

The company must act – a failure to do so will expose the company to litigation leading to penalties under legislation and in the civil jurisdiction.

Sexual Harassment Equals a Touch

March 22, 2022February 20, 2022 by Mick Symons

Is a “brief” intentional touch on the backside of an employee enough for dismissal?

Westpac employees attended a “sundowner” event after a professional development day. Attendance was voluntary – employees were not paid. During the evening, a long-standing senior manager briefly touched an female colleague’s backside. CCTV captured the incident.

The company held an internal investigation and terminated the manager even though he had an unblemished record. The manager brought forward an unfair dismissal claim.

The matter was heard in the FWC before Deputy President Binet on 4 February 2022 (John Keron v Westpac Banking Corporation U2021/3637). Ms Binet found in favour of Westpac. She highlighted the change in community standards around sexual harassment and conduct in the workplace have changed in recent years. All employees should know these changes.

She highlighted the new standard within the workplace was higher than previously accepted. There was a view community standards guide the law and how courts respond to cases. Courts reflect these standards in reaching determinations.

Westpac conducted employee training with a focus on “Doing the Right Thing”. The focus was sexual harassment, discrimination and bullying. Mr Keron participated in this training two months before the incident. The training was considered during the decision.

Key takeaways: Have a clear policy relating to conduct must be enforced through regular (at least every year). Failure to do so may lead to the Commission assuming the company did not think sexual harassment an important issue (see more here)

#unfair_dissmissal #sexual_harassment