Everyone's favourite Kiwi/Australian politician Barnaby Joyce has been in the spotlight again recently due to his upcoming interview with his partner Vikki Campion on Channel Seven's Sunday Night program. From an employment law perspective (we always see things from an employment law perspective), it has again brought to light the topic of workplace relationships. No doubt you would recall that in February in response to the Joyce-Campion relationship, Prime Minister Malcolm Turnbull responded by banning all sexual relationships between ministers and their staffers. But is this suitable for other Australian workplaces, or is this delving a little too far into the private lives of employees?
Relationships and workplace romances have traditionally been a very sensitive issue with many employers unsure how much, or how little, they should get involved. On the one hand, they have a significant interest in not only ensuring a happy productive workplace (which may not be the case should a relationship sour) and avoiding conflicts of interest, but also an obligation to their employees in relation to sexual harassment and their health and wellbeing generally. On the other hand, many employers would be reluctant to tell consenting adults what they can and cannot do in their own time, not to mention questioning the extent to which any intervention would be enforceable anyway.
Most Australians will know of someone who has met a significant other in the workplace (there's clearly something romantic about the water cooler and the photocopier). So whilst employers should not try and stop workplace relationships, as this would be unlikely to work anyway, there are certainly steps they can take to mitigate legal risk and also to minimise potential disruption in the workplace. One such step that employers can take is implementing a 'Disclosure/Workplace Relationships Policy' and a 'Conflict of Interest Policy'. These policies should, at a minimum, address the following key issues:
- Require self-disclosure
Employees should be required to disclose any relationships to a suitable person, such as a HR manager. A discussion can then be had about any necessary changes that may be required in order to minimise risk or disruption in relation to the relationship. The HR manager may require the employee to outline that the relationship will not influence their work or the business.
- Manage any actual, or perceived, conflicts of interest
Once a disclosure has been made, changes in the workplace may need to be made to manage any actual, or perceived, conflicts of interest. This is especially the case where a relationship has formed between managers and their subordinates. Common solutions to managing conflict of interest may include reassigning one or both staff members to different departments, or removing managers from any involvement in decision making regarding performance or promotion where it relates to their partner.
- Beware of power imbalances
Whilst employers should generally avoid outright banning relationships, in some circumstances it may be inappropriate for the relationship to continue. For instance, in small businesses it would be impossible to shift either employee to a different department, so from a conflict of interest perspective, the employees may face a difficult decision between continuing in their role, or their relationship.
Similarly, a high level executive such as a CEO or partner involved in a relationship with a very junior employee such as a graduate may be discouraged so as to avoid any claims to favouritism or the potentially messy fallout should the relationship sour.
- Outline what is, and is not, acceptable behaviour in the workplace
Whilst employers should not try and stop relationships between employees, they can certainly manage the way it manifests in the workplace. The last thing that an employer would want is for a new relationship to spill over into the workplace, making other staff uncomfortable, and affecting morale and productivity. As such, the policy should clearly outline that all staff must interact in a professional manner at all times in the workplace. This means there should be no inappropriate physical contact (such as kissing) and personal discussions should be limited.
The policy should also address sexual harassment, and outline that although individuals may have been in a consensual relationship, that does not mean that sexual harassment may not occur when the relationship ends. Employers have a duty of care towards their employees to ensure their wellbeing, and may be vicariously liable should sexual harassment occur.
- Outline the consequences of failing to follow the policy
From an employer's perspective, there are serious issues, such as conflict of interest and sexual harassment, that can be related to workplace relationships. As such, any policy on these issues needs to expressly state that disciplinary action, including dismissal, may be taken where the Disclosure/Workplace Relationships Policy or Conflict of Interest Policy is breached. This includes where an employee has failed to adequately disclose a new relationship.
Indeed, a case in the Fair Work Commission in 2015, M v Westpac Banking Corporation [2015] FWC 2087, rejected an unfair dismissal claim where a Westpac manager was fired for failing to disclose an affair with one of their subordinates.
Final thoughts
Managing relationships in the workplace need not be the minefield that employers may expect. There are some relatively easy steps that can be implemented to help manage workplace relationships that do not deprive consenting adults of their freedom and dignity to do what they please in their own time. And who knows, if a properly managed and adhered to Disclosure/Workplace Relationships Policy had been in place in Parliament House, maybe Barnaby would still be Deputy Prime Minister.
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.
