Commenting on the Geoffrey Rush case, Sex Discrimination Commissioner Kate Jenkins said that the case ‘highlighted . . . how defamation and sexual harassment laws intersect’. This was partly an answer to those who wondered why the case was concerned with defamation rather than inappropriate behaviour, but it also draws attention to the fact that the laws surrounding workplace misbehaviour overlap in several areas.
Here are the main differences.
What is unlawful discrimination?
Federal discrimination laws protect people from discrimination of the basis of their:
- race, including colour, national or ethnic origin or immigrant status
- sex, pregnancy or marital status and breastfeeding
- disability, or
- sexual orientation, gender identity and intersex status.
Discrimination can happen at different points in the employment relationship, including:
- when recruiting and selecting staff
- in the terms, conditions and benefits offered as part of employment
- who is considered or selected for training and the sort of training offered
- who is considered or selected for transfer or promotion
- who is considered and selected for retrenchment or dismissal.
What is harassment?
Under discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s sex, race, disability or age. Treating a person less favourably can include harassing or bullying a person.
The discrimination law also has specific provisions relating to sexual harassment, racial hatred and disability harassment.
It is important to understand that a one-off incident can constitute harassment.
Harassment can include behaviour such as:
- telling insulting jokes about particular racial groups
- sending explicit or sexually suggestive emails or text messages
- displaying racially offensive or pornographic posters or screen savers
- making derogatory comments or taunts about a person’s disability, or
- asking intrusive questions about someone’s personal life, including his or her sex life.
Sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.
All incidents of harassment – no matter how large or small or who is involved – require employers or managers to respond quickly and appropriately. If issues are left unaddressed, a hostile working environment can develop which can expose employers to further complaints.
What is workplace bullying?
The Fair Work Amendment Act 2013 defines workplace bullying as repeated unreasonable behaviour by an individual towards a worker, which creates a risk to health and safety.
Bullying behaviour can range from obvious verbal or physical assault to subtle psychological abuse. It can include:
- physical or verbal abuse
- yelling, screaming or offensive language
- excluding or isolating employees
- psychological harassment
- assigning meaningless tasks unrelated to the job
- giving employees impossible jobs
- deliberately changed work rosters to inconvenience particular employees
- undermining work performance by deliberately withholding information vital for effective work performance.
What is unlikely to constitute bullying, harassment or discrimination?
Legitimate comment and advice, including relevant negative feedback, from managers and supervisors on the work performance or work-related behaviour of an individual or group should not be confused with bullying, harassment or discrimination.
Providing negative feedback to staff during a formal performance appraisal, or counselling staff regarding their work performance, can be challenging. Managers should handle these conversations with sensitivity but they should not avoid their responsibility to provide full and frank feedback to staff.
Meeting your obligations
Everyone has the right to work in an environment free from bullying, harassment, discrimination and violence. Examples of a potentially hostile working environment are where racially or sexually crude conversations, innuendo or offensive jokes are part of the accepted culture. An employee can complain about such conduct as harassment even if the conduct in question was not specifically targeted at him or her.
Employers need to:
- be aware of their responsibilities to ensure that the working environment or workplace culture is not sexually or racially hostile.
- develop and implement targeted practices to address inappropriate workplace behaviour and deal effectively with any complaints.
- be proactive in addressing hostile behaviour that may be embedded in the workplace culture.
When things go wrong
When inappropriate behaviour is not properly managed, the consequences can range from minor workplace disruption, to the employer facing one or more workers compensation claims and an investigation from the relevant safe work authority.
When dealing with inappropriate behaviour it is important for employers to bear the following points in mind:
- Act sooner rather than later
- Don’t shoot first and ask questions later.
- Do your homework. Ensure that you know, and follow, your business policies. This may also mean that they need to be updated and promulgated throughout the workplace.
- Clearly identify the conduct for which disciplinary action is being taken.
- Where appropriate, fully investigate or interview all relevant witnesses.
- Clearly communicate to the employee the conduct which they are alleged to have committed.
- Allow the employee an opportunity to respond.
- Make a decision in relation to the alleged conduct that is fair and proportionate to the conduct committed and having regard to the employment history.
- Seek professional advice if you are unsure.
If you need assistance on this or other matters, give JFMLAW a call on 02 9331 0266. A member of our team will be happy to help.
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.