The Cost of Ignoring Verbal Reports of Sexual Harassment

- Tuesday, November 18, 2014
Verbal Reports
The Cost of Ignoring Verbal Reports of Sexual Harassment

The recent matter of  Trolan v WD Gelle Insurance and Finance Brokers is notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. Long gone are the days when a written complaint of such behaviour is needed. Trolan demonstrates that in matters where such egregious behaviour is occurring in the workplace, employees don’t need to put things in written form in order to ‘inform’ of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

Daring to tell 

In July of 2008, Ms Trolan began work at her new place of employment – WD Gelle Insurance and Finance Brokers Pty Ltd (the employer). Between August 2008 and December 2008, Ms Trolan was subjected to a relentless assortment of unwanted and lewd sexual advances from a director of the company, Mr Gelle. Such behaviour included several physical violations, including circumstances where Ms Trolan was effectively trapped and unable to react. This was coupled with bullying behaviours that were corroborated by colleagues as ‘par for the course’ from the ‘screaming’ Mr Gelle. In September of 2008, Ms Trolan reported the matter over the telephone to another director of the company, Mrs Gelle (also the defendant’s wife). Mrs Gelle undertook verbally to deal with the matter. 

Silent damage

But no change occurred. Mr Gelle’s behaviour continued unabated, and in December 2008, Ms Trolan was consequently found by her doctor to have suffered a severe work-related injury. She was placed on WorkCover from that time. The essential causes of her diagnosed psychiatric illness were the sexual harassment and bullying that she had endured over a period of time while working at WD Gelle. And for part of this time, it was with the full knowledge of the employer. 

Listen out

Busy employers can be tempted to argue that they can’t be everywhere at once. Certainly not blind to the potential for unacceptable behaviour, there can however be an in-built assumption that if someone has a problem in the workplace, they should go through formal channels to remedy this. Generally, this would include submitting a written complaint about the alleged conduct. Yet as seen in Trolan, the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Trolan had a phone discussion with a representative of the employer was certainly sufficient to provide notice about the offending conduct. 

Lingering pain

The consequences of such a failure to respond to sexual harassment and bullying in the workplace can be wide-reaching. Where an injury is suffered – as in Trolan – workers’ compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures of workplace health and safety can lead to considerable penalties, compliance orders and fines. As well as requiring a substantial workplace investigation to ascertain the details of the alleged behaviour, criminal charges might ensue and/or civil action on grounds of negligence might be brought against the employer to remedy the failure to act. A complex and damaging array of legal and financial consequences indeed. 

Words are enough 

And it is that failure to act that can cause so much preventable harm. At the moment where the director Mrs Gelle was told verbally of the conduct, the employer was officially informed and was required to act. Yet this damaging and ultimately costly chain of events was allowed to continue, causing a sizeable breach of the employer’s duty to protect. Employers are obliged to create a workplace free from harm. And when an employee has the courage and strength to report the offending behaviour, employers must both listen and respond. Written notes, formal documents or approved forms need not be furnished in circumstances such as that faced by Ms Trolan. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 

Act early 

The lesson from Trolan? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $700,000+ for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

For information on how WISE Workplace can assist to develop your business's ability to respond to complaints of seriousness misconduct, call 1300 580 685 or visit our website.

Protecting Against Unwanted Sexual Advances at Work

- Monday, August 25, 2014

Protecting Against Unwanted Sexual Advances at Work

The definition of a workplace might seem relatively simple – the office, the work site, the place where you carry out your duties of employment. Yet a recent finding of the Full Federal Court has affirmed one judge’s ruling that the workplace can quite often extend beyond the four walls concept. It follows (as the majority of judges in this case recognised) that unlawful behaviour such as sexual harassment can occur within unconventional ‘workplace’ circumstances and venues.

Can a nearby pub be a ‘workplace’?

The case in question – Vergara v Ewin – involved unwanted sexual advances from a male contractor towards a female supervisor. Some of these occurred in the regular workplace, while other behaviour took place in venues that might ordinarily be considered off-site. One such place was a pub called the Waterside Hotel, in Melbourne’s CBD. The respondent stated that she moved a discussion about the unwanted advances out of the ‘regular’ office to the nearby pub, in order to feel safe with the applicant. She and the applicant had been alone at the office, and she wanted to continue the work-related discussion near other people. This became one of the harassment sites.

A question arose as to whether the Waterside Hotel could realistically be considered a workplace under s28B of the Sexual Discrimination Act, as in force in 2009. Firstly, the parties were found to be ‘workplace participants’ for the purposes of the Act, although the appellant was a contractor.

From there, the full court found that the pub was indeed a workplace in accordance with s28B(7): “A place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.”

In continuing to discuss the workplace harassment question, the parties were found to be carrying on the necessary work-related function while at the hotel.

Important lessons to be learned

The decision in this case raises important points for all workplace participants, whether they are employees or contractors. Unfortunately the scourge of sexual harassment continues to exist, and it is important to think through the potential situations that you may find yourself in if you are managing unwanted sexual advances from a colleague. Following a few simple guidelines can help you to protect yourself:

    • Be clear
    • Avoid alcohol
    • Avoid being alone
    • Report your concerns
Be clear

In this case, while the court agreed that the purpose of the meeting in the Waterside Hotel was to discuss the harassment, clearly this wasn’t understood by the applicant. If you choose to address unwanted sexual advances with the person involved, be careful that your actions can’t be taken as a green light. Keep the discussion at the office, keep it professional, and make sure you are within sight of your colleagues during the discussion.

Alcohol and sexual harassment are not a good mix

Work drinks are a common form of team bonding in many work places, but it’s wise to understand the increased risks of alcohol consumption in terms of lowering inhibitions. Thinking of letting your hair down with your workmates once you’ve moved discussions to the local pub? It certainly might pay to think twice about this.

Being alone means being vulnerable

Make sure you don’t find yourself in a situation where you are alone with the person who is making unwanted advances toward you. The presence of another colleague is often enough to deter harassment.

Report the situation

Even if you want to handle the situation yourself initially, it’s important to report your concerns to a third party, and make it known to the person involved that you have done so.

It pays to take heed of the dangers that can present themselves, both in the ordinary office setting and wherever ‘workplace participants’ are carrying out work ‘functions’. .

Education and vigilance

Employers must also continue to be vigilant in maintaining a safe environment for all people under their occupational control. Just confining the focus of anti-harassment measures to the four walls of your office environment might not be sufficient. Considering the growing fluidity of employment, all engagements between participants both on and off-site have the potential to create unfortunate scenarios. .

Education is essential – whether engaging employees, temps or contractors, employers should ensure that a zero-tolerance approach towards sexual harassment and other misconduct is conveyed from day one. Training, regular updates and modelling best practices can all assist in developing workplaces where safety and respect are core objectives. Off or on-site, this case demonstrates the significant problems that arise where unfortunate behaviour occurs between colleagues

How to Handle Workplace Bullying

- Tuesday, July 29, 2014

How to Handle Workplace Bullying

Is bullying a problem in your workplace? According to a regulation impact statement produced by Safe Work Australia, the prevalence of bullying in Australian workplaces is between 3.5 and 21%. The cost of bullying to businesses in terms of lost productivity and absenteeism amounts to millions of dollars every year, and being a victim of bullying can affect the physical and mental health of employees.

If you suspect bullying is a problem in your workplace, it’s important that the problem is addressed, but how do you tackle it without making things worse or aggravating the situation further? Here are a few suggestions to help you handle workplace bullying in your organisation.
Make sure you have all the information

Before you jump in to try to resolve the situation, it’s important to make sure that you have a complete understanding of the issues involved. It’s a good idea to speak to other co-workers who may have witnessed the alleged bullying and find out whether there are any underlying problems which may have contributed to the situation.

If you try to take further measures without having an accurate picture of what is happening, you could end up causing further conflict and making the situation worse. If you have a personal relationship or work closely with either of the parties involved, it may be worth taking a step back and asking HR or even an external investigator to help you.

Before taking further action you will need to evaluate whether the behaviour can be defined as bullying or whether it falls under a different category such as sexual harassment or discrimination. Sexual harassment and other forms of discrimination require a different disciplinary approach to bullying.

Minimise the risk of continued harm

Once you have evaluated the situation, the next step is to take short-term measures to prevent the behaviour continuing. It may take a while to come to a full resolution so in the meantime you may want to consider reassigning tasks, granting leave or taking steps to ensure that the parties involved have minimal or no contact.

Decide whether the matter can be resolved

If the bullying isn’t too serious, it may be possible to resolve the matter internally with a no-blame conciliatory approach or disciplinary measures for the person found to be doing the bullying. In more serious cases, you may need to conduct an in-depth investigation, especially if someone could potentially lose their job over bullying allegations. .

If you decide on a resolution, it’s important to make sure the person being bullied is happy with the outcome. They may wish to deal with the situation themselves first by asking the person doing the bullying to stop, and you can offer them support in this.

As an employer, it’s important that any actions taken are well documented. If your management and employees haven’t undergone specific workplace bullying training it is well worth considering. Anyone who may have to deal with bullying incidents should be aware of the legislation surrounding workplace bullying before they escalate an issue or take action themselves.

Lawyer Loses Bullying and Sexual Harassment Case

- Tuesday, June 17, 2014

Lawyer Loses Bullying and Sexual Harassment Case

A recent ruling by the Federal Circuit Court found that a law firm hadn’t taken adverse action against one of its solicitors after she complained of bullying and sexual harassment in December 2011.

Emails sent from the solicitor to the firm where she stated that she wanted to consider how to part ways amicably and that the employment relationship had irretrievably broken down were determined to be acceptable as an official resignation. The solicitor had sent two emails on December 13th and had received a confirmation email back stating that her resignation had been accepted and inviting her to make a proposal for a settlement. She didn’t respond and later denied having resigned.

The solicitor had previously made claims of bullying and sexual harassment and the law firm had engaged an independent investigator to evaluate the claims. They had also offered the solicitor leave while the claims were being investigated. She sent the resignation emails on the morning that she was due to be interviewed by the investigator, stating that her leaving would save embarrassment to the firm and prevent sensitive matters from becoming public knowledge.

Allegations of bullying not upheld

The judge ruled against the solicitor in her allegations of bullying. There were eight separate incidents of alleged bullying and harassment by a legal secretary towards the solicitor. Some of the behaviour included the secretary rolling her eyes, huffing, and reprimanding the solicitor for not using the right coloured folders. This behaviour was not sufficient to amount to harassment according to the judge. The judge also noted the potential power imbalance between the solicitor and the secretary which favoured the solicitor as she had a more senior role in the firm.

Sexual harassment claims rejected

In addition to the bullying allegations, the solicitor made claims of sexual harassment against two lawyers in the firm. These claims included claims of passing physical contact and comments by one of the partners about trading in his wife for a younger model which were made in the presence of his wife. These allegations were also rejected by the judge who noted that although the comment may not have been funny to everyone, it didn’t qualify as sexual harassment when made to the solicitor.

Workplace policies found not to be part of contract

The solicitor also claimed that the law firm had breached her contract of employment and argued that the law firm’s workplace harassment prevention policy was expressly incorporated into her contract. This was ruled not to be the case as that particular policy was not expressly identified in the contract and there was no evidence that it had been provided to her when she signed the contract.

The law firm admitted that there was a clause in the contract implying that they would deal with her in good faith and the judge ruled that they had as bullying and harassment had not taken place, the solicitor had been given the opportunity to take time off, and an investigation had been organised into her claims.

Public Servant Reinstated After Being Fired for Breast Touching

- Tuesday, May 13, 2014

In a recent court ruling the Industrial Relations Commission of NSW decided that a NSW public servant who was dismissed for inappropriate touching should be given his job back. The policy officer for the NSW Attorney General and Justice Department lost his job in 2012 after touching the breasts of five women during a Christmas party. He was also found to be in breach of confidentiality and recruitment policies after he revealed to a colleague that she had been unsuccessful in a recent job application.

Reasons for the decision

The ruling to reinstate the employee was based on a couple of different factors. In the investigation, the NSW IRC found that the employee who was dismissed was treated significantly more harshly than a senior manager who touched the breasts of two women at the same function.

During the time leading up to his dismissal, the policy officer had also presented a number of mitigating factors and arguments which it was found were not given due consideration. These included the level of his remorse, his belief that he had obtained consent and the fact that the incident was a one-off. On the day of the function, the policy officer had consumed a large amount of alcohol before attending the event and he stated that this was largely due to personal issues he was going through at the time.

The senior manager who had behaved in a similar manner at the same function was only demoted even though complaints suggested that the impact on the victims was more significant from the inappropriate touching by the senior manager than from the employee. The senior manager also denied all the allegations while the policy officer admitted to them and expressed remorse throughout the process.

After comparing the responses to the two men, Commissioner Anne Tabbaa ruled that dismissing the policy officer, when compared against the demotion of the senior manager, was overly harsh.

Reinstatement not always an option

Although reinstatement is not always considered appropriate in these situations, in this particular case it was an option due to the fact that the policy officer had maintained good relationships with other employees during the period between the incident and his dismissal. He had also carried out all his required duties during this time and had excellent character references.

Another reason for the policy officer’s reinstatement was that he had demonstrated remorse and shown willingness to be subject to disciplinary measures which included demotion to a lower pay grade and attending relevant sexual harassment training. It was also made clear that he had been embarrassed and humiliated by his actions and the consequences would remain with him for a long time. In addition to the other disciplinary measures, he agreed to have a warning letter placed on his file and to provide a written apology to each of the complainants.

The policy officer had worked with the department for 20 years and during that time took on various HR duties although he was never directly responsible for managing employees. During this time there had been no previous instances of him engaging in inappropriate behaviour.

Standardised procedures are vital

This case demonstrates the importance of creating standardised disciplinary procedures which apply equally to employees at all levels of an organisation. Even though the policy officer in this matter behaved in a manner that was a breach of the department’s code of conduct and ethics and its dignity and respect policy, the fact that he was dealt with so differently to his more senior colleague was considered unfair by the NSW IRC.