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.

No harassment no unfair dismissal - ruling clears Energy Australia

- Tuesday, April 01, 2014

On March 25th, an application against Energy Australia made by a former director of corporate affairs was dismissed at the Federal Court by Justice Julie Ann Dodds-Streeton. Former Energy Australia employee Kate Shea claimed that she had been made redundant in 2012 as retribution for sexual harassment complaints made previously and this was found not to have been the case.

Justice Dodds-Streeton stated that Energy Australia had sound business reasons for making the redundancy and Ms Shea’s claims had no reasonable basis and were made for personal gain rather than in good faith.

The allegations

The claims that were previously made against Energy Australia included allegations that managing director Richard McIndoe was previously involved in sexual harassment against a female employee at a party in 2006. Ms Shea also claimed that she had been the victim of sexual harassment in 2010 by then chief financial officer Kevin Holmes and that Energy Australia had a corporate culture in which sexual harassment was condoned.

An investigation was undertaken relating to Ms Shea’s complaints in 2011 and the results found that although Mr Holmes had made contact with her he had not sexually harassed her. After the investigation, Ms Shea sent a letter to Mr McIndoe accusing him, along with the CFO and the company’s HR director of concealing evidence and working to cover up a culture of sexual harassment within the organisation.

The letter is said to have contained a number of demands including one for a financial settlement, and threats that if the demands weren’t met in a specific time frame the letter would be sent to Energy Australia’s parent company in Hong Kong, CLP Holdings Limited. Ms Shea received a sum of $133,000 and returned to work in October 2011. She and her personal assistant were made redundant four months later after a company restructure.

The outcome

Justice Dodds-Streeton noted that Section 341 of the Fair Work Act 2009 has not yet been thoroughly tested from a judicial standpoint, and that there are still a number of significant aspects which are left unaddressed. Although there is no requirement for complaints made against a company to be justified or for an accusation to be true or proven, there is still a requirement for claims to be reasonable and genuinely held by the complainant. According to Justice Dodds-Streeton, the claims made by Ms Shea weren’t made in good faith but purely from the motivation of financial gain. The judge stated that she wasn’t convinced that Ms Shea had any real belief that her former colleagues’ conduct amounted to sexual harassment and this was apparent in her conduct as a witness.

The judge also determined that complaints made against an organisation need to be underpinned by a right or an entitlement. In Ms Shea’s case, there wasn’t enough of a connection between the alleged misconduct of Mr McIndoe against another female employee and the employment of Ms Shea.

Ms Shea had been seeking reinstatement and lost earnings which would have amounted to around $6M. The judge ruled out reinstatement, due to the fact that the trust required for an employee/employer relationship was gone. Energy Australia and the employees involved were cleared of any allegations of harassment and misconduct and the redundancy was found to have been made for sound business rather than personal reasons.

Using ‘Tendency’ Evidence in Sexual Harassment Matters

- Tuesday, September 17, 2013

 

By ALISON PAGE, Legal Counsel

Often it’s not a one-off event; investigations into alleged sexual harassment frequently reveal that on previous occasions the respondent has faced other accusations of inappropriate conduct against fellow employees. This evidence is traditionally known as “similar fact evidence” or “tendency evidence”.

When the investigator considers each alleged incident in isolation, he or she may find insufficient evidence to establish sexual harassment. However, when these events are considered as a series, it may establish a pattern of sexual harassment.

This poses the question: should the investigator use these other incidents to decide whether there is sufficient evidence to establish a tendency by the respondent to engage in the alleged conduct?

For the first time, a recent interlocutory decision in the Federal Court Robinson v Goodman has set a precedent, by establishing judicial guidance about the admissibility of this contested “tendency evidence”. It’s guidance that can also help workplace investigators.

In this case, the owner of a well-known clothing brand was responding to allegations of sexual harassment under the Sex Discrimination Act 1984 (Cth). The respondent was also facing similar allegations in other proceedings, brought by a former employee.

The respondent admitted that certain events did occur, but disputed that the acts were sexual in nature. Justice Mortimer maintained the respondent’s behaviour towards the former employee applicant and a further former employee, established a tendency to “engage in a calculated pattern of sexual pressure and harassment”.

Although Justice Mortimer accepted that criminal cases concerning sexual offences may assist to decide whether tendency evidence is admissible, ultimately the question must be determined on the civil standard, based on the words of section 97 of the Evidence Act 1995 (Cth).

According to Justice Mortimer, section 97 requires a two step process:
1. Is the evidence relevant? This requires consideration and identification of:
a. what facts are disputed about the alleged misconduct of the respondent.
b. the precise details of the tendency evidence.
c. whether the tendency evidence is capable of proving a tendency to behave in the alleged manner.

2. Does the evidence have “significant probative value”?
Probative value” is defined in the Act as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.  To answer this question, one must weigh up the impact that the tendency evidence could have on the existence or non-existence of the facts in issue.

The following factors may also be considered:
a. the cogency of the tendency evidence
b. the strength of inferences drawn from the tendency evidence as to the tendency of the respondent to act, speak or think in a particular way,
c. the extent to which the tendency evidence increases the likelihood that that a fact in issue did occur.

Assessing the facts before her, Justice Mortimer said it was important to look at similarities in the overall circumstances, when deciding whether to admit tendency evidence. She identified the following broad similarities:

  • Both cases involved employees.
  • The respondent was their boss, the company owner and controlled business operations.
  • Both cases involved attractive females.
  • Both cases involved similar events (e.g. buying trips, fit sessions, photo shoots).

Justice Mortimer maintained that much of the evidence was admissible, although conduct too far in the past, which was not similar enough to the allegations or too general was not admissible.

As a closing word of caution, in accepting tendency evidence, investigators must also apply principles of procedural fairness; such as giving the respondent an opportunity to respond to adverse information that is credible, relevant and significant to the ultimate determination of the investigation. Otherwise, they may risk prejudice arising from their decision (Lohse v Arthur (No 3) [2009] FCA 1118)

Investigation ‘bungled’ in sexual harassment case

- Thursday, August 01, 2013

 

By ALISON PAGE, Legal Counsel -

Earlier this year, the Queensland Civil and Administrative Tribunal determined a sexual harassment case in which the Tribunal member described the employer’s initial investigation as ‘bungled’.*

The Tribunal accepted that the HR department was hard pressed, understaffed and overworked. However, the cautionary tale from this case is that this will be no excuse for failing to conduct proper workplace investigations.

This article considers the employer’s mistakes with its investigation to help you avoid having your workplace dirty laundry aired publicly before courts and tribunals and attracting negative publicity.

Background
The complainant had worked for a number of years running the buffet at a resort in Queensland. The respondent was a chef at the resort.

In early March 2010 the resort was preparing to host a golf tournament. It was a particularly busy time for the buffet and the kitchen.

The inappropriate conduct
The Tribunal found that the respondent sexually harassed the complainant over a period of three days during various incidents including:

  • Sniffing the air in the vicinity of the complainant
  • Commenting that she smelt like “Old Spice”
  • Commenting that he recognized the scent of “Old Spice” as his grandfather gave him some
  • Asking if anyone else could smell “Old Spice”
  • Referring to the complainant as a cougar and making growling noises
  • Leaning close to the complainant when sniffing the air and growling in her ear and around her neck
  • Asking her for one last growl before she left

The Tribunal found that the complainant did not encourage this behaviour. At first she put up with it. She ignored the respondent and tried to get on with her work. She believed she demonstrated her discomfort with the respondent’s remarks. However, the respondent was ‘insensitive to her reaction’. Eventually, the complainant berated and admonished the respondent in front of other work colleagues. She told him that what he was doing was unnatural and disgusting. However, the respondent continued to harass her. Finally, the complainant told the respondent that he was an arsehole and that he should “f-off”.

The Tribunal also found that the respondent’s conduct described above amounted to:

  • sex discrimination because the respondent would not have treated a man the same way;
  • age discrimination because the respondent would not have treated a younger women the same way.

The facts in this matter constituted a clear case on inappropriate workplace behaviour. These complaints should have been dealt with internally without the need for the complainant to seek legal redress.

So what went wrong? And why did this matter end up before the Tribunal?

The investigation
Regrettably, the employer’s inadequate handling of its own investigation led the complainant to the Tribunal and also caused her to add several counts of victimisation to her claim (although ultimately the victimisation claims were not found).

The complainant initially raised her complaint with her supervisor and then the general manager who in turn, asked the HR manager to investigate the matter. Rather than interview the complainant herself, the HR manager gave the supervisor a statutory declaration form for the complainant to complete. When the supervisor handed this to the complainant, she said words to the effect that the HR Manager wanted to know ‘what she expected to achieve by all of this’.

The complainant and the HR manager met to discuss the matter and how it should proceed. The complainant became very upset when the HR manager denied having heard or witnessed the complainant admonishing the respondent, even though she was present at the time. The complainant accused the HR Manager of covering up for the respondent.

About three days later, the HR manager handed the investigation to head office’s Employee Relations and Remuneration manager who on completing the investigation found that the complaints were not substantiated.

In view of the Tribunal’s decision, the investigation findings are surprising. Indeed, WorkCover was also able to conclude ‘without a doubt’ that the events complained of did occur and caused the complainant injury.

So how could the investigation findings be so wrong?

The investigation was flawed in several areas:

  1. The HR manager did not interview the complainant before asking the respondent to prepare a statutory declaration. Rather, she relied on the barest information about the alleged incidents given to her second hand via the resort’s general manager;
  2. The HR manager believed it was not her role to prompt the respondent with full details of the complaint. The complainant’s complete allegations were never fully put to the respondent for his comments. His statutory declaration only covered what he thought was important. 
  3. It appears that on handing over the matter to head office, the HR manager did not hand over all relevant materials, most importantly her interview notes with the respondent.
  4. Not all witnesses who may have overheard interactions between the respondent and the complainant were interviewed and those that were, were not specifically asked whether the matters complained about had happened.

Following a few basic investigation rules and processes would have avoided these errors (particularly rules of procedural fairness).

* McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243

WISE Resources

We can learn much from a recent court case

Jill McMahon - Wednesday, May 01, 2013

Court cases can provide valuable insights into the way people behave at work – and lessons for everyone on how to prevent workplace disputes degenerating into bullying and discrimination.

More specifically, directors of organisations should be aware of the risks of vicarious liability; when people they employ to manage others break the law.

A recent case, Burns vs Media Options Group, is instructive; the Federal Court ordered the company to pay a former employee more than $100,000 in damages and interest for breaching both the Disability Discrimination Act and the Sex Discrimination Act.

The dispute started when an employee, a printer, had to start caring for his partner after she had contracted a rare form of terminal cancer. He took her to medical appointments and was the only person available to help her cope with her illness.

The business manager and his wife, who was also an employee, disapproved of this because it affected the business’ operation.

The manager told the employee to “get rid of” his partner, pressured him not to leave work until he had finished the tasks allocated to him, berated him for being late for work and being unavailable to work overtime, as well as making derogatory comments about his partner.
In addition, the manager’s wife told the employee he was “stupid”, that she was “sick of his problems”, and he had cost them money.

Ultimately, they dismissed him in November 2005 – in the presence of two police officers - for reasons that the court later found to have been fabricated to justify the dismissal.
Judge Nicholls awarded the employee $10,000 in aggravated damages because the manager and his wife – who both later became directors of the company - had acted “high-handedly, maliciously, insultingly or oppressively in committing the act of discrimination.”

He rejected counter-complaints by the company that the employee had made racial comments, sexually harassed staff, was violent and drank at work, noting that the company had not pursued such allegations in separate proceedings.

Section 15(2) of the Disability Discrimination Act makes it unlawful for an employer to discriminate against an employee because of the disability of an employee's associate. This can include a spouse or someone living with them on a "genuine domestic basis".

In addition, an employer will have breached the Sex Discrimination Act if they discriminate against an employee on the grounds of family responsibilities or if the employer treated the employee less favourably than an employee without such responsibilities.

While plans to consolidate anti-discrimination legislation have been delayed, the government has introduced amendments to the Sex Discrimination Act to include discrimination against sexual orientation, gender identity and intersex status.

Wise Workplace helps mediate workplace disputes as well as conducting investigations into allegations of misconduct.

AHRC survey finds sexual harassment a common workplace problem

Jill McMahon - Thursday, November 15, 2012

 

Even though the Sex Discrimination Act was introduced in 1984, AHRC's recent report on its survey on the prevalence of  sexual harassment in the workplace, shows that sexual harassment remains widespread and efforts to curb this behaviour have stalled.


AHRC's report Working without fear: Results of the sexual harassment national telephone survey 2012 shows that in the past five years:

  •     approximately 1 in 5 people 15 years and older were sexually harassed in the workplace;
  •     1 in 4 women (25%) have been sexually harassed in the workplace;
  •     1 in 6 men (16%) have been sexually harassed in the workplace;
  •     the most common targets are most likely to be women under 40;
  •     harassers are most likely to be co-workers;
  •     women are at least 5 times more likely than men to have been harassed by a boss or employer;
  •     more than half of all sexual harassment involved men harassing women;
  •     nearly a quarter of all harassment involved male harassment of men;

Encouragingly, 51 % of bystanders took some steps to prevent or reduce the harm of the sexual harassment they were aware of.

The full report can be read here

Wise Workplace has had a lot to say about sexual harassment in the past given that this behaviour is sadly a common feature in its investigations. As AHRC's report paints a disturbing picture of a continuing and endemic workplace problem, Wise Workplace will have more to say in the future.