Discrimination, Harassment and Bullying At Work

Recently there have been a number of significant decisions regarding discrimination in the workplace, highlighting the fact that preventing discrimination at work is a responsibility of every employer. Employers can be held directly responsible for discrmination, or vicariously liable for the actions of their employees, if they have failed to take all reasonable steps to prevent discrimination from occurring in their workplaces under the Australian workplace law.

From State to State under there are a differences in what actions are considered unlawful discrimination, however, employers should ensure they do not discriminate (or allow their employees to discriminate) on the basis of the following:

• race, nationality, national extraction or social original;

• sex, sexuality, transgender and transexuality;

• marital status;

• pregnancy;

• age;

• physical or mental disability;

• family responsibility, and

• ethno-religious background.

Case Summary: Vicarious Liability

An employer can be held responsible for the action of their employees (vicariously liable) if they have not taken all reasonable steps to prevent discrimination and harassment in their workplace, and do not deal effectively with a complaint of harassment or discrimination when it is made.

Recently a major rail network was held vicariously liable for the actions of its employees in sexually harassing a female manager. The manager was subjected to having graffiti of a “particularly graphic and highly offensive nature” written about her in the men’s toilets at the workplace. In a further incident, another employee pushed a pornographic magazine under the door of her office.

The female manager filed an internal complaint, and then a further complaint with the Administrative Decisions Tribunal, citing sexual harassment and discrimination at work.

The female manager was subsequently awarded $20,000 by the Administrative Decisions Tribunal due to the finding of sexual harassment and discrimination against her at work.

Case Summary: Personal Persistance as Harassment &Employee Liability

A recent decision of the Federal Court has found a female university student harassed their university tutor when she persisted in making advances to him after he had refuted her. The university tutor filed the complaint of harassment about the student in 2002 after she had described him as having “nice eyes” and asking him out to coffee and the movies.

The tutor emailed the student stating that he did not believe that going to the movies together was a good idea, and requesting that she desist from making advance to him.

The student responded to the email, including a threat to “make life difficult” for the tutor. Her email response was considered to be aggressive by the Court.

On appeal from the Federal Magistrates Court, the Federal Court found that “conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment”. Where the tutor had clearly rejected the advances of the student, but she persisted, it consistuted unwelcome and unsolicited conduct of a sexual nature.

Are you Taking All Reasonable Steps to Prevent Discrimination in Your Workplace?

Employers have a responsibility to take all reasonable steps to prevent discrimination and harassment in their workplace, and to address complaints of discrimination and harassment quickly and confidentially.

Some of the steps that employers should take to prevent harassment and discrimination are:

• Having a comprehensive anti-discrimination policy that is committed to by all workplace participants (including managers, directors and contractors)

• Having a grievance resolution procedure that is clear and concise

• Providing information to your employees of where they can go to get assistance outside of your workplace if they want to (for example, the Human Rights and Equal Opportunity Commission or the Anti-Discrimination Board)

• Training all employees on what is unlawful discrimination and harassment, and what behaviours are expected of them at work

• Ensuring all managers are trained on how to appropriately investigate and handle complaints

• Making discrimination and harassment a feature of discussion at staff meetings

• Displaying posters and other materials in staff rooms that clearly state that harassment and discrimination will not be tolerated in your workplace

Workplace flexibility - Working from Home

Employers considering providing employees with the opportunity to experience workplace flexibility and work from home may wonder what risks they may face. This is particularly so after the decision in Hargreaves v Telstra.

In that case the Administrative Appeals Tribunal (“AAT”) found that injuries suffered by Ms Hargreaves while she was working from home were sustained in the course of employment and so compensable under the relevant Commonwealth legislation.

Ms Hargreaves was injured on a break from working when she fell down the stairs at her home. She later developed a psychological injury as a result of what she described as Telstra’s unhelpful response to her compensation claim. The AAT found in her favour in that the psychological injury arose from issues regarding her return to work plans, which included Telstra’s insistence that she return to work in the city office, contrary to advice from her doctors. This case demonstrates the extent of potential workers compensation liability faced by employers in relation to working from home.

It also highlights the difficult balancing act employers face. On the one hand they may have to consider a request for workplace flexibility options under the Fair Work Act 2009 (such as working from home) and balance this against OHS and worker’s compensation risks.

Employers may only refuse such a request for workplace flexibility options on reasonable business grounds.

What are reasonable business grounds?

 The factors relevant in defining ‘reasonable business grounds’ are listed below? These are taken from the Explanatory Memorandum to the Fair Work Bill.

• the effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;
• the inability to organise work among existing staff;
• the inability to recruit a replacement employee;
• the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.
•  

Employers may argue, as a result of the Hargreaves decision, that the impact of claims on the employer’s claims history for workers’ compensation premiums, will allow then to refuse the request. Whether this argument would succeed is yet to be tested.

What about OHS risks?

The Model Work Health and Safety Act (“Act”) due to commence on 1 January 2012 defines workplace very broadly as “a place where work is carried out for a business and includes any place where a worker goes, or is likely to go, while at work.” This would include an employee’s house. What should an employer do about these risks? The new Act requires that they take all “reasonably practicable steps” to reduce risk of injury. In addition, Part 3 of the Model Work Health and Safety Regulations imposes specific obligations for ensuring the safety of the “general working environment.”

If you have a Working from Home Policy, it should be reviewed to ensure that it covers risk assessment for working from home that addresses each of the risks identified in the proposed new Regulations to the Act(for example, lighting, ventilation, heating and ergonomics).

Tips for employers?
 

Employers should:

• implement a Working from Home Policy if the employer wishes to offer it as an option;
• have in place a policy to respond to all requests for workplace flexibility;
• where agreement is reached, document it;
• where a request is refused, ensure a written response to the employee within 21 days of request as provided under the Fair Work;
• ensure a risk assessment of the home working environment is completed before the arrangement commences. Consider whether a self-assessment is adequate; and
• define the “working area” in any agreement to work from home.