BULLYING, DISCRIMINATION AND HARASSMENT
ASSISTANCE TO ENSURE YOUR WORKPLACE IS FREE OF DAMAGING STAFF BEHAVIOUR
Managing bullying, discrimination and harassment in the workplace is increasingly complex, time-consuming and problematic for many businesses.
Not only is there a risk this behaviour will cause injury to your employees and the reputation of your business, but you may also be held vicariously liable for the damaging behaviour of your staff. Therefore, it is important employers are adequately supported when workplace bullying, discrimination and/or harassment occurs.
WHAT IS BULLYING
Workplace bullying is verbal, physical, social or psychological abuse by your employer (or manager), another person or group of people at work which causes a risk to the health and safety of another person.
Workplace bullying can happen in any type of workplace and can happen to volunteers, work experience students, interns, apprentices, contractors as well as casual or permanent employees. In Victoria, some types of serious workplace bullying also constitute a criminal offence (punishable by up to 10 years’ jail!).
It is vitally important to identify what bullying is but, given the misconception (and overuse) of this term, it is equally important to be clear on what workplace bullying is not. For example, workplace practices which are unfair are not, prima facie, bullying.
You can have a bad (or biased, or rude) boss and this does not make him/her a ‘workplace bully’. An employer can transfer, demote, discipline, counsel, retrench or sack an employee and, as long as they are acting reasonably and not in a discriminatory manner) this will not be bullying or otherwise illegal. Indeed, the legislative definition of workplace bullying requiring the conduct in question to represent a “risk to health and safety” of another person means this can be a high hurdle to overcome, meaning much workplace conduct is often unfair and unreasonable, but not necessarily bullying.
Bullying in the workplace is important for employers as a company (and its managers) have onerous legal responsibilities under Occupational Health and Safety and anti-discrimination law to provide a “safe” workplace, and to ensure (as far as reasonably practicable) employees’ wellbeing and health whilst at work is being preserved and protected. An employer that allows bullying to occur in the workplace is not meeting this responsibility and will face severe legal consequences for this omission.
DISCRIMINATION AT WORK
Discrimination is treating a person ‘unfavourably’ because of a protected personal attribute/characteristic they possess (e.g. because of their gender, or sexual orientation or religion).
In Victoria, the Equal Opportunity Act 2010 sets out 18 personal characteristics that make discrimination in employment against the law. Federal anti-discrimination laws also apply to Victorian employers.
Being treated differently by someone at work is not necessarily unlawful discrimination. Some different treatment such as a manager undertaking performance management of a subordinate may not be unlawful discrimination. Nor is assigning less desirable tasks or an arguably unreasonable workload or timeframe for completion. In terms of the relevant workplace legislation, an action is only considered unlawful discrimination if it occurs because of one or more of the above attributes (race, sex, age, disability, etc). If this is not the basis of the action, it may not be considered an act of unlawful discrimination.
SEXUAL HARASSMENT IN THE WORKPLACE
Sexual harassment is unwelcome conduct of a sexual nature. It involves behaviour that could reasonably be expected to make a person feel offended, humiliated or intimidated.
In Victoria, sexual harassment is against the law under the Equal Opportunity Act 2010. Sexual harassment can be physical, verbal or written.
Sexual harassment is not consensual interaction, flirtation or friendship. Sexual harassment is behaviour that is unwelcome (i.e. not mutually agreed upon or encouraged). Some types of sexual harassment may also be offences under criminal law (such as stalking, indecent exposure, sexual assault and obscene or threatening communications (e.g emails, text messages and posts/memes on social networking sites).
Sexual harassment is covered in the workplace when it happens at work as well as at work-related events or where people are carrying out work-related functions (such as end of financial year or Christmas parties, or even interstate work trips).
Sexual harassment at work can be a major issue for employers because whilst the person who sexually harasses someone else at work is personally liable for their own behaviour, employers are often held vicariously liable for acts of sexual harassment by their employees or agents.
Sexual harassment can involve employees, managers, contractors, agents, volunteers, clients, customers and others connected with or attending a workplace. It can happen at work, at work-related events or between colleagues outside the work environment.
A single incident is enough to constitute sexual harassment – it doesn’t have to be repeated. Men experience sexual harassment but it disproportionately affects women, especially in the workplace. The Australian Human Rights Commission reported that 1 in 5 women experience sexual harassment in the workplace at some time.
HOW WE HELP
Workplace Wizards provides expert advice and support to help you manage bullying, discrimination and harassment in your workplace.
- helping employers implement clear workplace bullying, discrimination and harassment policies and procedures;
- delivering workplace training;
- investigating and providing detailed reports on allegations of bullying, discrimination and harassment as an independent external investigator;
- providing business support and strategic advice to resolve current workplace issues and minimise potential claims; and
- representing clients in the Fair Work Commission, discrimination tribunals and courts.