Friday, 28 September 2012

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.

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


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