Roger Sutton's recent high-profile resignation from his
position as chief executive at the Canterbury Earthquake Recovery
Agency has highlighted the issue of inappropriate conduct in the
workplace, and how some behaviour, even unintentionally, can be
offensive and unwelcome to others at work.
WorkSafe NZ, in the guidelines it issued earlier this year on
workplace bullying, commented that it is prevalent in New Zealand
workplaces and needs to be addressed. Allegations of harassment at
work also seem to be on the rise.
So how you can tell the difference between harmless joking and
banter and unlawful harassment and bullying? The former is often
welcome and can help boost collegiality and culture. The latter can
have a devastating effect on the workplace, create significant
legal risks for an organisation, not to mention result in
significant loss of productivity, plummeting staff morale and high
Chief executives and managers set the tone and the culture and
lead from the top in terms of appropriate conduct. If in doubt as
to whether particular conduct is appropriate, it is generally best
to err on the side of caution.
Sexual and racial harassment are legally defined. They include
not only overt threats or promises connected to sexual conduct or
race, but also more subtle behaviours. The use of language, visual
material or physical behaviour that is unwelcome or offensive to
someone at work and which has a detrimental effect on their
employment, job satisfaction or performance, will be unlawful
The important thing to remember is that it is not the intent of
the person making the comments or jokes that matters. It is how
they are received and perceived by others. That makes harassment
very much a subjective issue and can sometimes make it difficult
for individuals to understand where the line between appropriate
and inappropriate conduct lies.
Every individual is different and what one person might brush
off as a bit of harmless fun can have a serious and detrimental
effect on someone else.
In addition, what is appropriate and acceptable in one
workplace, might not be in another. For example, strong language
and swearing may not cause any concern on, say, a building site,
but would be highly offensive in an accountancy firm. This is why
it is important that workplaces have clear and well drafted
harassment and bullying policies which set out the types of
behaviours considers inappropriate.
A good policy will also set out the steps employees can take if
they feel that they are being subjected to inappropriate conduct
and the way in which the employer will investigate complaints.
Those steps typically range from ways an issue can be informally
resolved, by telling someone you find their behaviour offensive, to
more formal steps, like making a formal written complaint.
All complaints should be treated seriously and investigated in a
full, fair and confidential manner. Reprisals or victimisation
against a complainant should not be tolerated. Equally, vexatious
or malicious complaints are not acceptable. Disciplinary action up
to and including dismissal may be appropriate where harassment or
bullying has occurred. But anyone who has experienced bullying or
harassment in the workplace will know how difficult and daunting it
is to step up and make a formal complaint, particularly against
someone in a position of authority.
When a complaint is made, the investigation process can seem
daunting and there is often a real fear of reprisals, even if the
process is confidential. Even when a complaint is upheld, just
raising an issue in and of itself can sometimes feel like it is
going to be career limiting. An unfortunate consequence of the
publicity around Roger Sutton's resignation may well be that
individuals who are experiencing harassment or bullying in their
workplace may be even more reluctant than before to come
How do you tell your boss or your colleague that you find their
racist jokes or sexist banter offensive and unwelcome without being
labelled ''over-sensitive'' or ''too
However, harassment and bullying at work should not be
Employees who feel they are being subjected to inappropriate
conduct at work should approach their manager, HR adviser or
colleagues for support and advice.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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