Australia: Office relationships: managing the hidden dangers with workplace love

Office relationships and breakups provide much gossip around the water-cooler. As we have seen in recent years, it also provides fodder for the media. Office relationships and the fall out, have the capacity to detrimentally affect decision-making, morale and reputations.

Earlier this year, the Australian Parliament was embroiled with a scandal involving the Deputy Prime Minister, a staffer and their relationship. How to respond? A 'bonk-ban'. Such a "grey area", as someone intimately involved once said.

The fact is, many relationships are formed at work. Relationships Australia reports that up to 40% of people aged 35-50 years will develop a long term relationship with a co-worker. Many workplace relationships end up in marriage and committed unions. Can an employer really prevent workplace relationships?

But one can't ignore the negatives that can come with office relationships. A 2012 Australian Human Rights Commission survey revealed 25% of women had reported being sexually harassed at work. The risk of a power imbalance is real particularly between managers and subordinates. Then there is the impact office relationships have on morale and decision-making. And when it doesn't work, the fall out can cause many headaches.

So, should employers follow the Australian Parliament and simply ban office relationships all together? Where is the balance? In this bulletin, we tackle some of the controversy.

Favouritism and nepotism

In Mihalopoulos v Westpac Banking Corporation [2015] FWC 2087, the Fair Work Commission said "employers cannot stop their employees forming romantic relationships". Perhaps that is true.

Mr Mihalopoulos was a manager in an extramarital relationship with a subordinate. Mr Mihalopoulos was dismissed because he was dishonest about his relationship with this co-worker (when asked), he breached an apprehended violence order imposed by the worker (after the relationship ended) and inappropriately discussed details of their relationship with others at work.

The Bank had a policy on office relationships. "[S]uch relationships have the potential to create conflicts of interest", the Commission noted. "It is virtually impossible in such circumstances to avoid - at the very least - the perception that the manager will favour the subordinate with whom they are in a romantic relationship when it comes to issues such as performance appraisals, the allocation of work, and promotional opportunities". Such relationships required disclosure.

Mr Mihalopoulos sought to argue it was a private matter. It was not. Mr Mihalopoulos should have disclosed his relationship – "To be blunt it should be obvious to any reasonably intelligent person that for a manager ... to form a romantic relationship with a direct subordinate creates the potential for a conflict of interest", the Commission said. Only with disclosure could any conflict be appropriately managed.

There is no doubt the risk of favouritism in some workplace relationships and its perception negatively impacts on morale and the quality of decision-making. This in turn could effect productivity, staff retention and workplace culture. But there is more at play.

The litigation problem

It is not uncommon in the 'fall out' of an office relationship for allegations of sexual harassment to be made. The debate becomes whether the conduct of a sexual nature during the relationship was welcomed. Has any power imbalance influenced and tainted a so called "consensual" relationship?

The fact is that any power imbalance creates a risk and susceptibility in many office relationships. In our experience, the risk for employers of such a sexual harassment claim is real and cannot be ignored. The claim and fall out can be costly. It is a matter that needs careful management.

Reputation

A further issue that an employer needs to think about is the potential reputational damage that can occur when these relationships become public discourse. An office relationship ventilated through social media and the mainstream media has the potential to significantly tarnish brand and reputations.

A need to act

Invariably, office relations are not truly a private affair. As an employer, you cannot allow a relationship to form or continue where it could result in a confilict or have a negative impact on the workplace. Good governance and HR requires careful management of the situation.

Undoubtedly, a robust policy requiring office relationships to be promptly disclosed is a must. Training is also vital. But should employers go further? What about imposing an entire ban on office relationships? Such an approach may have some attraction, but practically it is probably futile to ban all relationships.

It might be worth banning relationships between senior staff and subordinates. After all, senior staff are paid big dollars to make business prosper and not incur risk and liability.

But such a ban is not a complete answer for all senior staff. Indeed, it should not be assume that all relations between senior staff and a subordinate is necessarily inappropriate.

Arise, the love contract

If you accept office relations will happen, but you want to actively manage risks, a 'love contract' may be an option. Yes, straight out of the litigious USA, a 'love contract' is a document signed by the employees in the relationship that:

  • attests to the relationship commencing and being consensual in nature (and releases the employer from any sexual harassment claims);
  • documents the employer's expectation as to how both employees will behave during the relationship, setting ground rules as to matters like displaying affection at work etc;
  • records any agreement about decision-making, changes to reporting structure and other governance matters; and
  • outlines an agreed strategy to deal with any breakup so that there is no disruption and disputation in the workplace, and warns of the consequences of any subsequent inappropriate behaviour.

The last step is vital in ensuring there is no harassing or potentially abusive behaviour from either party when the relationship ends. Such behaviour will have negative impacts at work.

Conclusion

Office relations will happen. An environment for disclosure and a mature discussion needs to occur about office relationships. Employers and employees need to work together to avoid conflicts, poor morale and fall out. A robust policy, and open discussion when a relationship forms, sets and reminds "lovebirds" of company expectations.

Give us a call if your business needs advice on managing workplace relationships.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions