@^#$%*! Workplace harassment isn’t what it used to be.

In recent decades Australian workplaces have become increasingly sensitive to instances of discrimination, harassment and bullying. Whereas not so long ago the bulk of workplace issues and conflicts were typically left to be ‘managed’ in-house, nowadays things are considerably different, forcing CEOs to walk a delicate tightrope on an a almost daily basis.

In part, the attitudinal changes have been driven by the digital enlightenment of employees, who are more empowered and alert to their individual rights than ever before. The media also plays a role, with coverage of workplace harassment becoming increasingly frequent – not surprising given literally thousands of cases find their way before either the courts or Fair Work Australia each year. (Just some of the higher profile cases include respected organisations such the Australian Federal Police, the NSW Ambulance Service, Australian Defence Force and retailer David Jones, who was sued for $37 million and ultimately settled for $850,000 in 2010 following claims of sexual harassment against its then CEO.) The rapidly escalating public presence and marketing campaigns of ‘no win no fee’ legal firms is further emboldening more Australian employees to stand up to errant bosses, whereas in the past they may have felt too scared to do so.

This is not necessarily a bad thing. While clearly some cases are spurious and opportunistic at best, many more are not. Employers are on notice. Do the wrong thing and be prepared to face the consequences, both legal and financial.

By far the most prudent course of action is to prevent workplace problems long before they happen. However this can be easier said than done. Engaging a workplace specialist may be invaluable in helping you navigate – and mitigate – the many potential pitfalls and risks. Below are just some of the specific areas they can assist you with.

1) What is ‘workplace harassment’? You can’t plan for something unless you fully understand it. The modern definition of workplace harassment goes far beyond what many employers realise. Yes, it includes instances of racial or sexual discrimination and physical bullying. But it also extends into more complex areas such as psychological bullying, cyber bullying, pregnancy discrimination, LGBT employees, ageism, disabilities and respecting the religious sensitivities of individual workers.

2) Understanding your Duty of Care. Many employers are surprised to learn they have a common law duty of care to their employees that encompasses a wide range of harassment behaviours. Australian employers can be prosecuted for failing to meet this duty under state laws as well as anti-bullying legislation included in the Fair Work Act 2009 and the Fair Work Regulations 2009.

3) All reasonable steps. In the event of a harassment claim being brought against your business or management team, the onus is likely to fall upon you to prove ‘all reasonable steps’ had been taken to prevent that employee from being subject to the harassing behaviour in question. Time and again one of the most critical factors in doing this includes having a thorough and universally-communicated anti-harassment policy that clearly defines unacceptable behaviours, outlines the sanctions for breaches, details the steps for making complaints and explains the resolution process. How well does your business currently do this?

4) New employees. While it’s essential to ensure your existing workforce sets the tone and culture when it comes to respectful and inclusive behaviours, don’t forget new employees. How do you ensure your newest team members are well aware of what is and isn’t acceptable, both for their own benefit and that of their new colleagues? If this isn’t a formal part of your induction process, it really should be.

5) Don’t let one problem lead to another. By their very nature, harassment and bullying cases can be disruptive for a workplace. Whatever the ultimate outcome, it’s important to be aware subsequent rumours and gossip could make an already unfortunate situation even worse for your business and/or your employees. Keep a careful and respectful eye on things and move to manage any new issues as quickly as possible.

Could you being doing more to protect your employees, and your business, from harassment issues? Contact ELR Executive today at Debbie@elr.net.au or call us on 02 9275 8855

Visit our website at www.elr.net.au

@^#$%*! Workplace harassment isn’t what it used to be.

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Comment by Bernard Keith Althofer on October 20, 2016 at 8:21

Some organisations have taken proactive and preventive steps to reduce the risk of workplace harassment and other counterproductive workplace behaviours.

It seems that for some individuals, there is a continued risk of exposure to counterproductive behaviours and these have a direct and indirect impact on the physical, psychological and financial well being, not only of the target but also on their family, friends and associates.

Whilst new survey results are released showing the bullying continues to be an issue, organisations need to conduct Bullying Risk Assessments to ensure that hazards and contributing factors are identified, controls tested and improvements made where required.

Having been involved since 1991 in the provision of advice relating to unlawful discrimination (including sexual harassment) and bullying to targets, alleged bullies and managers/supervisors, most inquiries have involved management practices and communication.  Management practices refer to those organisational systems and process that are designed for use in areas such as performance management.  There are risks in every communication encounter, and in many cases where advice was sought, communication was central to the inquiry regarding a resolution strategy.

Numerous investigations and reviews have been conducted across Australia into various allegations involving workplace bullying.  The Reports provide an insight into how some organisations respond to allegations, and how culture plays a significant part in the preventiion, detection, reporting and resolution of such conduct.  It seems that not all organisations take the opportunity to consider the findings of such Reviews and then conduct a risk assesment and analyse the reports to identify if there are any aspects of their business operations that could place them in a similar situation.

Some organisations have over the years conducted regular organisational health surveys, staff satisfaction surveys, health and safety audits and other reviews and/or assessments.  Some of these have clearly identified counterproductive behaviours, and in some cases, some reports have simply 'disappeared'.

It is difficult for individuals to show patterns of behaviour or conduct when they themselves have not adopted a practice of documentation, and for some, when they finally lodge a workplace injury claim and are asked to document all relevant information, do they find their precise recollection of events is clouded. 

Individuals are being required to complete online or self paced training, and whilst there may be some advantatages, individuals also need the opportunity to have face to face discussions about what the actual policy looks like in a workplace.  Discussions about above and below the line behaviours in a contemporary workplace may result in differing views across various levels of the organisation.

Conducting a risk assessment may well identify bullying as an issue where training is required.  However, the risk assessment may also identify those hazards or contributing factors that create an environment when not only does bullying occur, but the 'culture' tolerates the behaviour to the point that it is condoned.  Unfortunately, a risk assessment may not focus on this aspect, leaving the organisation/managers and workers exposed.

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