Introduction
Good business sense
Harassment and bullying
Expectations of small business
Some advice
Introduction
All employers have a legal responsibility to take ‘all reasonable steps’ to protect staff, contractors, visitors etc., from discrimination, harassment and bullying. This can be onerous, with tribunals, courts and commissions requiring relevant policies, staff training and proactive management monitoring workplace behaviour and taking swift action at the first sign of problems. Grievance procedures must meet all the requirements of ‘due process’ or natural justice. What’s more, they must be implemented.
The owner of a small business is legally liable for any unlawful discrimination or harassment in connection with work, or the services or goods they provide, unless they can show that they did everything reasonable prevent discrimination, harassment and bullying.
‘Reasonable steps’ do, however, vary with the circumstances. The reasonable expectations of large corporations are bound to be different to ‘reasonable steps’ required of a small business.
Good business sense
The requirement to take reasonable steps to prevent discrimination and harassment is not unreasonable in any business setting. You are getting the best person for the job if you are employing people on the basis of genuine job requirements, as opposed to stereotypical views about men or women, or people of different ages, races, etc. For example, sometimes an employer assumes that a good manager needs to be of a certain age and have a certain amount of ‘life experience’ to effectively manage staff. However, this is just a stereotype and is not necessarily correct. Many younger people have superior people management skills demonstrating that the length of experience is not necessarily relevant to a person’s ability. What is relevant is the quality of that experience and their current ability. An employer may miss out on the best person for their company because it has made an assumption about a person based on age.
You’ll also be getting the best out of your staff if you are making decisions about workplace issues such as training, promotion, or other benefits, on the basis of relevant individual qualities and characteristics. What is more, your staff is more likely to be loyal, committed and hard working.
Happy employees are more likely to provide good quality services to customers and clients.
There may be serious consequences if bullying and harassment is allowed, or unfair decisions are frequently made, such as high turnover, absenteeism, low productivity and morale, time-consuming conflict, recruitment costs, bad publicity, increased insurance premiums, industrial action, even sabotage. You may end up in court fighting costly discrimination and harassment claims.
Harassment and bullying
Claims of sexual harassment and the mishandling of these complaints can devastate small or close knit organisations. An example was a 2004 case - Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101, 22/04/04.
involving a not-for-profit welfare organisation, which a member of the NSW Industrial Relations Commission described as ‘very sad and depressing’. In this case, the organisation sacked a community worker following allegations he had ‘threatened or intimidated’ a female co-worker to drop her harassment claim against a male colleague. The Commission was highly critical of the organisation for the inadequacy of its investigations into the claims of intimidation and to the worker’s own claim that he had been harassed, which it failed to investigate at all. It appeared that the organisation had such a level of internal disharmony that it was not functioning properly. ‘The evidence was riddled with claims and counter claims of sexual harassment, threats, vendettas, corruption, blackmail, theft, lying and defamation,’ the Commission said.
In some cases involving small businesses, workplace practices may not have changed in years and neither staff nor management are aware of current legal requirements. ‘Initiation’ rituals can be an example. One such case - Maddaford v MA Coleman Joinery (NSW) Pty Ltd, Brian Gerard Coleman & Graham Gerard Coleman (5 May, 2004) - drew extensive adverse publicity, which will affect the perceptions of prospective clients and employees.
The case involved a 16-year-old labourer who was wrapped in glad wrap and had sawdust and glue stuffed into his mouth. As he was asthmatic, this ‘prank’ could have proved fatal. The incident lasted half an hour until an independent contractor on the site cut him free.
None of the workers involved was disciplined and the directors of the company did nothing to stop the initiation. Indeed there was a culture of initiation within the workplace. Action in this case was taken under occupational safety and health laws, which place obligations on employees as well as employers to ensure a safe and healthy workplace. It was found that the company failed to ensure a safe environment without risks to health and was fined $55,000.
The directors were fined $12,000 each.
Expectations of small businesses
In one small company with only six employees, a manager sexually harassed and discriminated against his Personal Assistant. - Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 (14 July, 2004).
He made a number of unwelcome sexual advances.
When the woman complained, the employer engaged an independent person to investigate her allegations. Furthermore, it took action to ensure that this kind of behaviour was not repeated.
A policy was developed and explained to the employees.
The NSW Administrative Decisions Tribunal commended the company’s actions and commented that ‘Reasonable steps’ will vary with employer size. It said that engaging a competent and experienced person to investigate and possibly mediate could be a reasonable step. So could giving a policy to new starters and providing on-going competent training. It also recommended ‘further steps’, such as brochures and notices on notice boards. However, it said that the employer, must still take active steps to prevent harassment before a complaint arises
The tribunal found, the employer had not taken any reasonable steps prior to the current complaint and the woman settled for $5,000.
In cases where the harassment is so bad that the employee feels that they have no option but to resign, this can be considered a ‘constructive’ dismissal at law. An example involved an employee of a seafood restaurant who was sexually harassed by her boss - Taylor v Sciberras [2004] NSWADT 104 (1 June 2004).
His behaviour included sexual advances, physical contact, coming to her house at night. She continued to reject him and he became aggressive. Eventually, she was forced to leave her job. The harassment continued, with daily calls and messages, and eventually threats, so she took legal action.
It was held by the tribunal that she was constructively dismissed:
‘His actions constituted relentless and continuing unwelcome sexual conduct that interfered with the applicant’s work performance and created a hostile work environment’
She was awarded $7,500 (6 months wages) for lost income and $12,000 in general damages (this would have been more had she sought counselling).
Some advice
In addition to the measures considered ‘reasonable steps’ by Tribunals or Courts, NSW Administrative Decisions Tribunal member, Stevie Clayton, told a meeting of the EEO Practitioners Association that:
‘Employers who want to avoid or minimise discrimination complaints should ensure they give employees ‘regular and honest feedback’.
Clayton said that many complaints were due to the employee having received no feedback about deficiencies in their performance. Then, when they do not get a promotion, or are penalised by their employer, they don’t believe it can be about performance problems and look for an external reason, such as discrimination.
Employers should make sure they have the appropriate policies and procedures in place and ensure they provide a fast and fair avenue for resolution of grievances. Clayton said employers should
- take pre-emptive action, including examining the corporate culture;
- want to resolve issues rather than want to make them go away;
- document what is acceptable conduct;
- carry out awareness training for managers;
- and support managers so they can do their jobs properly.
That sums it up!
