The Equal Opportunity Blog

Another successful unfair dismissal claim by an employee who had headbutted a colleague at a work Christmas party! When you hear some of the judgments the courts hand down, on the surface, you can think that they over favour the employee and that it is bordering on almost impossible for an employer to fire someone for inappropriate behaviour. Do any employers out there feel like this?

I did until I had a bit more of a look at what the employer did after the head butting incident….Nothing! For 1 ½ years until someone else made a complaint about something else related to the same employee and then the company brought up the head butting incident and tried to use it as forming part of the grounds for dismissal! Come on guys…even I can see this has problems. That is like disciplining my 6 year old son today for hitting his brother at Christmas in 2010 when he wanted the present he got!

Formual for Disaster

I see this type of thing over and over again. Here’s the formula-

Step 1-employee does something that is unlawful

Step 2-employer does nothing about it at the time

Step 3-something else happens along time down the track

Step 4-someone makes a complaint

Step 5-employer doesn’t investigate the complaint properly and it could like any of the following-

• they don’t provide all of the information to the employee about the allegation,

• they don’t give the employee the time to review the allegation and then comment on it,

• they don’t interview all of the people relevant to the allegation,

• the decision is made based on some information that is “hidden” and not openly disclosed

• they have never educated their staff about what is considered inappropriate behaviour at work,

Step 6: the employee is dismissed

Step 7: employee makes unfair dismissal claim!

Just in case you are wondering step 2 and 5 are where the problems are. If you want to know the solution then stay tuned for part 2 of my blog tomorrow!

During my Uni years, I waitressed at a very upmarket hotel. I worked with a great bunch of people, and we all liked to have a laugh together at work. One day, Peter, one of the young chefs I worked with decided to give me a gift in the form of a penis carved out of a carrot. When “delivering” the gift he also made certain sexual gestures and comments directed at me. At the time I was pretty naïve in the things of the world and I was embarrassed and uncomfortable about what he did. I think I got out of the kitchen pretty quickly that day and made sure Peter and I were not alone in the kitchen again!

Although today I am clear that what Peter did is sexual harassment, at the time I did not realise it and didn’t even consider making a complaint. That was over 20 years ago and I would like to think that people’s attitudes and standards of what is appropriate in the workplace have changed significantly since then. But…maybe they haven’t.

The Australian Human Rights Commission Survey 2012 Results

The Australian Human Rights Commission have just released the findings of their national sexual harassment telephone survey. The findings don’t look that encouraging. 25% of women surveyed experienced sexual harassment in the last 5 years, of which 90% experienced it from a male colleague and 16% of men experienced sexual harassment.

Of perhaps more interest is that only 20% of people harassed chose to make a formal complaint about the sexual harassment. But if they did then 74% of them were satisfied with the complaint process but 29% felt they were victimised for making a complaint.

These stats tell me a few things. If sexual harassment is happening to you then a very useful thing to do is make a formal complaint, however there is also a real risk that a formal complaint could result in the victim being victimised.

What can an employer do?

If an employer is really serious about preventing sexual harassment in the workplace then here are some great things they can do-

1. Educate all their staff about the legal definition of sexual harassment and what this could look like at work
2. Provide a clear pathway for someone to be able to make a complaint
3. Within your complaint process allow for the problem to be resolved as quickly and simply as is possible for the problem
4. Train your managers and supervisors on how to effectively manage complaints as they are the ones who are most likely to see/hear and resolve the problems
5. Provide multiple avenues for a person to be able to make a complaint such as through the use of grievance officers
6. Create protections so that if people think they have been victimised they know they can make a complaint about this also

What about you? Do you work in a place that manages sexual harassment well? If so what strategies has your workplace implemented?

You would think that if an employee has done lots of unlawful things, like continually teasing an employee about being a virgin or being gay and making on-going statements to someone of a sexual nature, even after being warned to stop, then it would be okay for an employer to dismiss him.

Actually, not so. In fact, in work places today, I see more managers who don’t stop someone’s unlawful behaviour or don’t discipline a person for acting unlawfully because they are afraid that they will get in trouble for doing this. Employers are becoming afraid to act for fear of being told what they have done is wrong.

With this in the background I am thankful to see that Fair Work Australia has dismissed an employee’s unfair dismissal claim (which means it was okay that the employer dismissed him) for doing these very things plus more.

Why Did Fair Work dismiss his application?

But it is important to understand why Fair Work dismissed the employee’s claim, when other unfair dismissal cases have resulted in the other outcome.

Here are some key factors, some of which had to do with what the employer had done well and some had to do with the employee’s behaviour-

1. The employee’s behaviour did constitute sexual harassment and bullying- so he had done something unlawful

2. Even after an investigation had been conducted the person who had acted unlawfully didn’t acknowledge the significance of his behaviour dismissing it as “banter”, and a “joke”

3. He had been previously warned about his behaviour and it had not stopped

4. He had attended Code of Conduct training organised by his employer and so knew that these types of behaviours were not condoned by his workplace

5. There was a real likelihood that if he had not been dismissed his behaviour would continue and therefore place employees at risk of harm

What Can employers do before they dismiss an employee for unlawful behaviour?

Some great practical takeaways for all employers when dealing with employees conducting themselves unlawfully are-

1. Hold the person to account for their actions the first time it happens and provide oral/written warnings that are documented

2. Provide regular training to all staff about what are appropriate/inappropriate workplace behaviours

3. Investigate thoroughly and following the principles of natural justice

4. Assess whether there is an ongoing likelihood that the offending behaviour will continue.

In my line of work I feel like Bullying is THE word in work places for 2012. Google, workplace bullying and numerous reports, articles, surveys, cases tell us it’s a problem. You may have read in one of my recent blogs about bullying in relation to teachers, as just one example where it is epidemic.

Comcare stats

Just this week ComCare (the Federal Government agency for safety and compensation for Australian workers) says that bullying claims increased from 32% in 2008/09 to 44% in 2009-10-that’s a 12% increase in one year- if I was getting that kind of return on my bank interest I would sit up and take notice. So who in Australia is sitting up and taking notice about bullying?

Australian Parliamentary Review

In fairness to our government there is currently an Australia parliamentary review into bullying in the workplace that is due to be handed down at the end of November. The question is what will the review recommend?

My Wish List of Things to Change

1. While I don’t have a crystal ball here are a few things I would like to see in the recommendations-
   A national definition for bullying that is not “tucked away” in a code of practice but is in legislation. I’m not sure the OSH legislation is the best place for it to be located but the other option is in our equal opportunity legislation.
2. Mandated regular anti-bullying training for all organisations over a minimum number of employees
3. Bullying management plan implemented for all organisations over a minimum number of employees that is randomly audited by an external governing body
4. Civil tribunal for individuals to seek compensation-similar to what exists for discrimination and harassment claims

These are some of my wish list recommendations for Australia. What about you, what do you think could be done to decrease the incidence and impact of bullying in our Workforce?