In recent decades, Australian businesses have become increasingly sensitive to instances of workplace 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 and HR departments to walk a delicate tightrope on an 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 workplace harassment cases include respected organisations such the Australian Federal Police, the NSW Ambulance Service, Australian Defence Force, retailer David Jones and former High Court judge Dyson Heydon, who had action taken against him earlier this year following claims of sexual harassment).
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 harassment long before it happens. However, this can be easier said than done. Engaging a workplace and HR specialist such as ELR Executive may be invaluable in helping you navigate – and mitigate – the many potential pitfalls and risks. Below are just some of the specific areas we 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 against employees. 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 workplace 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 workplace 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 employees set the tone and culture when it comes to respectful and inclusive workplace 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 workplace issues as quickly as possible.
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