The prevention of workplace bullying, discrimination and harassment is an increasingly important issue for employers around Australia as general community tolerance for this conduct decreases and attention from legislators has increased.
There have been changes to the Fair Work Act and Sex Discrimination Act to adopt some recommendations from the Australian Human Rights Commission's Respect@Work: Sexual Harassment National Inquiry Report. So, it is a good time for employers to take stock and make sure they understand their obligations. To help, this article answers five key questions that employers frequently ask.
1. What Is Bullying and Harassment?
Bullying in the workplace is generally considered to be repeated unreasonable behaviour directed towards an employee or group of employees that creates a risk to their health and safety. It can include behaviour that humiliates, intimidates or offends an employee at their workplace.
The following are examples of direct bullying/harassment:
- aggressive or intimidating conduct;
- humiliating comments;
- deliberately excluding or isolating an employee from workplace activities;
- spreading malicious rumours about another employee;
- deliberately denying access to information or other resources; and
- withholding access to information or other resources to prevent an employee from performing effectively at work.
Although bullying is typically repeated behaviour, you should not ignore single or isolated incidents.
Likewise, harassment often has a discriminatory aspect to it. It can include targeting someone with offensive or humiliating behaviour based on factors like a person's:
- disability; or
Sexual harassment covers a very broad array of conduct. It is any unwanted or unwelcome sexual behaviour that carries the possibility of someone feeling offended, humiliated or intimidated. Importantly, a court will always judge matters based on what a 'reasonable person' would have anticipated.
To avoid being liable for this conduct in your workplace, you need to take steps to prevent it from occurring. As an employer, you also have an obligation to ensure your employees have a safe place to work. This obligation now extends to preventing sexual harassment.
In 2021, there were some changes to the Fair Work Act and Sex Discrimination Act regarding sexual harassment:
- sexual harassment has been added to the definition of 'serious misconduct'. This is conduct for which an employer can ordinarily terminate the employment without notice; and
- employees can make a "stop-sexual harassment order" to the Fair Work Commission (this is similar to a stop-bullying order);
- harassment on the basis of sex is prohibited, and there is also a clear definition that includes 'unwelcome conduct of a seriously demeaning nature' which aims to prevent sexism that does not meet the definition of sexual harassment.
2. What Is Discrimination?
A person unlawfully discriminates against another person if:
- they treat them less favourably than others based on certain factors that the law sees as unfairly biased. For example, treating someone unfairly based on their age can fall under direct discrimination;
- they require the other person to comply with a rule or condition which is the same for everyone but is not reasonable due to their personal attributes or circumstances.
Importantly, discrimination on any of the following factors or grounds (as well as many others) is unlawful:
- disability (including physical, intellectual and psychiatric disability);
- sex and sexual orientation, gender identity or intersex status; or
- marital status, family responsibilities, or pregnancy.
3. Are There Other Workplace Behaviours to Keep an Eye Out For?
As an employer, you have an obligation to provide a safe place of work for your employees. That is not limited to physical safety. It is also important to take steps to ensure your workplace is free from psychological or any other non-physical risks to health and safety.
The most common non-physical risks in a workplace include discrimination, harassment (including sexual harassment) and bullying. However, employers must keep an eye out for any conduct that poses a risk to health and safety. You must then ensure you take active steps to eliminate or minimise that risk.
4. What Should You Do First Up?
Firstly, you should ensure that employees are aware of your stance on bullying, harassment and discrimination. You can create awareness through workplace policies and training. Likewise, it might be appropriate to have leaders to help enforce workplace policies.
Key policies that employers should maintain include:
- an anti-discrimination, harassment and bullying policy;
- a work health and safety policy; and
- an IT policy.
Be aware that simply having policies will not protect your business. You must take steps to appropriately draft your policies, communicate them to your employees, and enforce them.
5. What Should You Do If an Instance of Bullying, Discrimination or Harassment Is Discovered?
You should promptly deal with issues that arise, whether they arise by way of complaint, or from conduct you notice as an employer. There are many ways to handle these situations but they do differ on a case-by-case basis.
Depending on the nature of the complaint, it may be appropriate to deal with it in an informal way. For example, a meeting between the parties may be most effective. Other times, that may not be appropriate and more serious matters will likely require you to carry out an investigation. When investigating the alleged conduct, consider whether you want to do so internally or by a third party. Ultimately, you may also need to take disciplinary action.
Handling instances of workplace bullying, discrimination or harassment can be a very challenging and sensitive process. Indeed, it is a good idea to get in touch with an employment lawyer who can talk you through your options.
Employers have an obligation to keep their workplaces free from risks to health and safety. They also risk receiving claims related to discrimination, harassment and bullying. Therefore, it is crucial employers have their house in order. This involves having clear policies and training along with a proactive approach to ensure your business is free from these types of risks.