Workplace Bullying, Harassment, EEO &

Discrimination

Presented by Access Law Group

Tom Ellicott is a Director of Access Law Group, leading itsCommercial Law Group and has been admitted to practiceas a lawyer for 20 Years. Tom is an Accredited Specialistin Business Law and practices extensively in the areas ofEmployment Law and Workplace Health and Safety.

With his team, Tom has worked on some of the mostserious industrial accidents in the area and, he is retainedto advise many employers on employment law.

Trainer’s Details

Housekeeping

− Emergency procedures

− Toilet facilities

− Coffee/tea/breaks

− Folders/handouts

− Other?

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Timetable Guide

10:00am – 12:00pm Workshop

12:00pm – 12:30pm Light lunch

12:30pm – 2:00pm Workshop

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Participant Introductions

− Your name

− Role at work

− Previous training in this area?

− What you hope to get out of today’s session?

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Participant Experiences

Previous experiences handling any bullying, harassment, discrimination or EEO situations in the workplace?

Please share situations you are aware of that may be currently going on in the workplace?

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Relevant Legislation

1. Work Health and Safety Act 2011 (WHS Act 2011)

2. Fair Work Act 2009 (Cth) (FWA 2009)

3. Anti-discrimination Act 1977

4. Sex Discrimination Act 1984

5. Racial Discrimination Act 1975

6. Disability Discrimination Act 2002

7. Age Discrimination Act 2004

8. Australian Human Rights Commission Act 1986

Definition of Bullying FWA 2009 s789FD When is a worker bullied at work?

When a worker is at work in a

CONSTITUTIONALLY

COVERED BUSINESS

INDIVIDUAL

or GROUP

repeatedly behaves

unreasonably toward worker or group of workers

of which the worker is amember

Unreasonable behaviour

creates risk to health and

safety

BULLYING

Definition Taken from Qld Govt. Dept. of Workplace Health & Safety

“The repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that intimidates, offends, degrades or humiliates a worker”.

Workplace bullying can occur between a worker and a manager or supervisor, or between co-workers.

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Bullying BehaviourCan range from very obvious verbal or physical assault to very subtle psychological abuse and may include:

− physical or verbal abuse

− yelling, screaming or offensive language

− excluding or isolating employees

− psychological harassment

− intimidation

− cyberbullying through the use of technology (Internet, mobile phone, camera) to hurt or embarrass someone

− assigning meaningless tasks unrelated to the job

− giving employees impossible jobs

− deliberately changed rosters to inconvenience particular employees

− undermining work performance by deliberately withholding information vital for effective work performance 10

Examples Include:

Repeated hurtful remarks or attacks, making fun of your

work or you as a person (including your family, sex, sexuality, gender identity,

race or culture, education or economic background)

Excluding you or stopping you from working with people or taking part in

activities that relates to your work

Playing mind games, ganging up on you, or

other types of psychological harassment

Pushing, shoving, tripping, grabbing you in

the workplace

Attacking or threatening

with equipment, knives,

guns, clubs or any other

type of object that can

be turned into a

weapon

Initiation or hazing -where you are made to

do humiliating or inappropriate things in order to be accepted as

part of the team

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FWC Bullying Claims Statistics

The Fair Work Commission recently published its annual report for 2013-14, which showed that throughout the year, FWC staff made 21 decisions regarding bullying claims. 20 of those claims were dismissed due to no bullying being found to have taken place, or matters not being pursued by the applicant.

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Bullying May Also Be Discrimination

If it is because of your age, sex, pregnancy, race, disability, sexual orientation, religion or certain other reasons.

Sexual harassment and racial hatred are also against the law.

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Bullying Case

Ms SB[2014] FWC 2104The three criteria approach for what constitutes bullying, and reasonable management action.

Commissioner Hampton:− For Bullying: - The behaviour has to be repeated, unreasonable and

cause risk to health and safety;

− For Management action: - must be management action, it must be reasonable to take the action and it must have been carried out reasonably;

− Unreasonable behaviour = Making vexatious allegations/ remarks, spreading rude/ inaccurate rumours/ conduct of a grossly unfair investigation 15

Commissioner Hampton Cont’d…− Applicant bears the onus of proof;

− Employers should be proactive and provide support in efficient and timely manner;

− Behaviour “bordering on unreasonable” is outside the scope of the Act

− Anonymity van be ordered where appropriate;

− Legal professional privilege over external investigations will be maintained;

− There must be a causal link between the behaviour and the risk to health and safety

− An accepted workers comp claim does not prove the bullying

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Bullying Case

Willis v Gibson; Capitol Radiology[2015] –17 February 2015

Commissioner Lewin:

“Management action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis for the disciplinary action.” 17

What is Discrimination?

Discrimination occurs when someone is treated unfairlybecause they belong to a particular group of people orhave a particular characteristic.

Direct DiscriminationA person is treated less favourably than another person inthe same or similar circumstances because of a saidground or attribute.

Indirect DiscriminationImposing a condition or requirement that is more difficultfor one group of employees to meet than others, that isunreasonable.

Discrimination Legislation

1. Sex Discrimination Act 1984

2. Racial Discrimination Act 1975

3. Disability Discrimination Act 2002

4. Age Discrimination Act 2004

5. Australian Human Rights Commission Act 1986

NSW Anti Discrimination Laws Cover:• Sexual Harassment• Sex Discrimination• Homosexual Discrimination• Transgender (transsexual) Discrimination• Race Discrimination• Age Discrimination• Marital or Domestic Status Discrimination• Disability Discrimination• Carer’s Responsibilities Discrimination

Free Posters http://www.antidiscrimination.justice.nsw.gov.au/adb/adb1_publications/adb1_posters.html

Discrimination under the FWA 2009

DISCRIMINATION

(Adverse Action taken because of a

person’s characteristic)

Race

Colour

Sex

SexualPreference

Age

Physical/Mental

Disability

Marital Status

Family/CarerDuties

Pregnancy

Religion

Political Opinion

National Extraction

Social Origin

It’s NOT Discrimination if the Actions:

− are permitted under State or Federal anti-discrimination law that applies in the State orTerritory where it happened

− are based on the ‘inherent’ requirements of thejob

− are taken against an employee of a religiousorganisation to avoid harming theorganisation’s religious beliefs

The Term ‘Disability’

It is unlawful to discriminate against, harass or victimise people with disabilities –including in an employment context.

The term ‘disability’ is broadly defined and includes mental health conditions:

i. whether temporary or permanent

ii. whether past, present or future

iii. whether actual or just assumed.23

Discrimination Could Occur:− during the recruitment processes,

in advertising, interviewing and selecting candidates

− when determining terms and conditions of employment such as pay rates, work hours and leave

− in selecting or rejecting employees for promotion, transfer and training

− through dismissal, demotion or retrenchment.

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Reasonable Adjustment

The Act defines ‘discrimination’ to include both direct and indirect discrimination. This means an employer’s failure to make reasonable adjustmentsfor a worker with a mental health condition may constitute discrimination, even when on the face of it no ‘direct’ discrimination has occurred.

The Australian Human Rights Commission has developed a brief guide to the Disability Discrimination Act 1992 (Cth).

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Reasonable Adjustment is NormalDisability (whether temporary or longer term) is a normal part of life. Statistics indicate:

− a round 1 in every 5 Australians, or over 3 million people, experience a mental disorder of some kind;

− 14 percent of the community, or around 2.6 million Australians, have a physical disability of some kind;

− over 1 million Australians have a significant hearing impairment , with around 30,000 Australians totally deaf;

− around 300,000 Australians have a substantial vision impairment with around 20,000 totally blind; and

− around 2 percent of the population, or 400,000 Australians, have an intellectual impairment

So, making adjustments to accommodate disability is a normal part of employing people.

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Adverse Actions342 FWA 2009

In recent years, adverse action claims against employers have been steadily increasing. It seems that employees are turning to adverse action claims when they don’t feel that they can make an unfair dismissal claim.

Adverse action is any action that disadvantages an employee or alters their position unfavourably.

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Examples of Adverse Action

Adverse action is taken by an employer against an

employee if the employer threatens to, organises

or takes action by:

− dismissing the employee

− injuring the employee in his or her employment

− altering the position of the employee to the employee’s prejudice

− discriminating between the employee and other employees of the employer

− discriminating against a prospective employee in their employment terms and conditions 28

More Examples of Adverse Action

− not giving an employee legal entitlements such as pay or leave

− changing an employee’s job to their disadvantage –e.g. a demotion

− treating an employee differently than others

− not hiring someone

− offering a potential employee different (and unfair) terms and conditions for the job, compared to other employees

More Examples of Adverse Action

− dismissed because temporary leave taken due to illness

− dismissed while on temporary leave due to illness but not for that reason

Adverse Action is Not Always Unlawful

It will only be unlawful if taken against an employee because they have an attribute or engage in an activity protected under the general protections provisions in the FWA 2009.

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You are entitled to make changes to your workplace and these changes may result in adverse action against an employee. Such adverse action will not be unlawful if it was not made because of a protected attribute or activity.

Adverse action must be based on one of the protected categories. If it isn’t then the action could could still amount to bullying or harassment.

Lawful Adverse Action

Protected AttributesEmployees are protected from having adverse action taken against them for possessing certain attributes or engaging in certain activities.

Common examples of protected attributes include:

− the entitlement to a benefit of a modern award or enterprise agreement;

− the entitlement to the benefit of a law that regulates the employment relationship, e.g. leave;

− a role or responsibility under a workplace law or an enterprise agreement; and

− having or not having union member or officer status33

Common Examples of Protected Activities

− requesting a flexible working arrangement;

− making, varying or terminating an enterprise agreement;

− making a complaint or inquiry in relation to employment; and

− organising, promoting, encouraging or participating in a lawful activity organised or promoted by a union.

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General Protections - Adverse Action

The General Protections Division of the Fair Work Act protect National System employees who include those employed by constitutionally covered entities.

What about if you are are not a national system employee?

Adverse Action Scenarios/CaseStudies

− Probation cases – using adverse action to step around the loop hole

− Walking high income earners without notice, terminating other than in accordance with awards and warnings;

− CFMEU v BHP Coal[2014] HCA 16 October – the “scab” sign. Reminding us about the risks of union ideals clashing with adverse action;

− Heathcote v UOS[2014] FCCA 14 November – Driver J reminding of the importance of a properly followed and established process overcoming a grievance over “ideology”. Court protects right to political opinion but upholds redundancy;

Adverse Action Case Studies Cont’d…

− United Voice v MDBR123 Pty Limited [2014] FCA 11 December 2014 – very silly employer sacking employee for recruiting union members.

− State of Victoria v Grant[2014] FCAFC 23 December 2014 – overturning decision to re-instate a lawyer who suffered from depression. Fail to causally connect the poor performance to condition, his depression was not causing poor performance.

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The Right to Privacy

Is covered by the Australia-wide Privacy Act 1988(Cth) and similar legislation in some states and territories.

If you tell your employer you have a mental health condition, they can’t disclose this information to anyone without your consent. They can only use this information for the purpose for which you told them, such as adjusting your role or working environment to make allowances for your mental health condition.

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− Privacy Laws restrict an employer’s capacity to ascertain certain information about an employee’s illness or injury.

− Employees are only required to disclose information about their capacity where it is relevant to the inherent requirements of the role that they will be performing.

− An employee’s consent will generally be required for an employer to disclose information concerning an employee’s medical condition to others.

− It is lawful to request information about an employee’s health or medical history if the information relates only to the employee’s unsatisfactory work performance – it should also assist in establishing ways to help the employee perform their role satisfactorily

− The obligation to act with good faith and fidelity is not overridden

WHS Act 2011

PCBUs (employers) are obligated by law to provide a safe and healthy workplace, free from both physical and psychological harm.

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Legal Responsibilities

Under the WHS Act and anti-discrimination laws, employers must provide a safe workplace, so far as is reasonably practicable. They have a duty of care for workers’ health and wellbeing whilst at work.

An employer that allows bullying, harassment or discrimination to occur in the workplace is not meeting this responsibility.

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Employers Need to Know

They have:

− A Duty of Care, and

− Employer Vicarious Liability

They must understand:

− Work-related settings can

extend beyond workplace

They must ensure:

− Managers and leaders - talk

the talk and walk the walk

Responsibility of Bystanders

Everyone has a moral responsibility to help create a positive, safe workplace. If someone in your workplace is experiencing harassment or bullying, you can tell them about the steps they can take to solve it.

Encourage workers to do the right thing through inductions, policies and staff meetings. 43

Risks to Business

− How complaints are managed

− Ordered to stop/no fines

− Link to workers comp claims

− Key decisions – what the approach has been 12 months in

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Risk Management1. Identify hazards – knowledge re bullying, harassment & discrimination

2. Assess issues - likelihood of occurrences and consequences

3. Implement controls - such as effective recruitment; policies and procedures; address in induction; training for managers, supervisors and workers; formal grievance and disciplinary process; Employee Assistance Programs (EAP)

4. Act upon a complaint - promptly, consistently and fairly5. Documentation – such as…..6. Monitor and evaluate - ensure actions implemented have remained in place and effective; review processes and procedures; refresh training, etc.

Reasonable Management Action

Action carried out by a manager in a reasonable way isn't bullying. To help you go to the following sources of information:

FWO website:

Managing underperformance best practice guidePerformance improvement plan template

Underperformance meeting plan template

Performance review discussion plan template

FWC's Anti-bullying guide

Safe Work Australia's Guide for preventing and responding to workplace bullying

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Inappropriate Performance Management

− non-adherence to workplace policies by management

− insufficient notice

− insufficient information

− refusal to allow support persons

− inappropriate behaviour –yelling/swearing

− accusations (lack of evidence)

− failure to document

− insufficient/unreasonable time and support to improve

− failure to follow up

Consider WHY performance is not at the

expected level?

Managing Sick and Injured Employees

− Can not contract out of the FWA or NES unless in an EA

− Significant fines and sanctions – media, public apologies, reinstatement

− Anti-discrimination protection underpinned by the NES

− Section 772 FWA – an employer must not terminate due to temporary absence because of illness or injury;

− Medicals – must still provide certificates

− Caution with overlay to workers compensation48

Scenario

Bill is the Supervisor at his work and manages a team of 6workers. The team work on industrial construction sitesundertaking various tasks including labouring, operation ofmachinery and general construction site duties.Three staff have approached him regarding the behaviour ofworker Lincoln. It is reported that Lincoln has a bad temper,which has led on many occasions to him yelling at his co-workers, swearing and even threatening to “visit them out ofwork.”.Bill is also concerned about Lincoln’s performance as he hasnoticed that over the past 4 months he has completed thetasks allocated to him on a daily basis, rather Lincoln seems togo missing from the site quite often or is seen playing on hisphone at times when he should be concentrating on operatingmachinery.

Bill has spoken with HR who have advised that he needs to address bothLincoln’s alleged misconduct in terms of his actions in the workplace aswell as his underperformance. HR have assisted Bill in preparing a letterdetailing the issues, and requesting a formal meeting. This formalprocedure has never happened before – most of the time informal chats orcomments made at tool box talks are what occur.

Bill would like to personally hand Lincoln the letter and explain the processthey are embarking on.

By way of background Bill is known for being a passive aggressivesupervisor. He seems to let things go on for a long time, but when it allgets too much he has a tendency to explode. Bill and Lincoln have neverreally seen eye to eye, in fact there are many occasions when they havealmost come to physical blows.

Bill just cannot tolerate anyone talking back to him, or not agreeing withhis opinion. He also doesn’t really like Lincoln and so is quite excited athaving “permission” to have a go at Lincoln.

Scenario Cont’d…

Must Have/Must Do

− Induction that includes information regarding appropriate and inappropriate behaviours

− Code of Conduct− Employee Handbook – outlining grievance procedures, disciplinary action, social media policy etc….

− WHS training for officers, managers/supervisors and workers

− EEO, Bullying & Harassment training for all, refreshed annually

− Training for managers/HR in responding to complaints

When a Claim is Made

− What do our policies say? Investigate now – careful if that is really required. Appoint an independent investigator.

− Ensure no immediate risk to WH&S if so take action – eg protect employee, remove risk of obvious ongoing behaviour;

− If an injury notify insurer;

− Investigation may be conducted by insurer in which case step back and assist;

− Follow policy re support, counselling and address whether the complaint will be actioned or kept private;

− Confidentiality and privacy – eg Fire Brigade case

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When a Formal Complaint is Lodged

Take action immediately

Safe Work Australia’s Guide to Preventing and Responding toWorkplace Bullying at 4.1 states:

“Investigations should always be carried out by an unbiasedperson who has experience and knowledge in dealing withworkplace bullying matters. If being led internally it is importantto ensure all parties have confidence in the neutrality of theinvestigator and they are suitably qualified to lead theinvestigation. If this is not possible an external investigator isrecommended. The investigator should be impartial, objective andfocus on whether an allegation of workplace bullying issubstantiated or not, or if there is insufficient information todecide either way.”

Conduct After the Claim

− Victim should receive documented support and fully understand the processes and procedures

− Support with prompt action on workers comp claims

− Perpetrator should fully understand the processes and procedures – again document carefully

− Review your procedures after the dust settles – did they work?

− As far as possible maintain the privacy of the parties – talk will affect the ability of the parties to resolve if possible

− Offer counselling and support on an ongoing basis

− Remain impartial

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General Guidelines – Bullying Complaint

DO

Follow your policies and procedures

Acknowledge the

complaint in writing

Respond in writing

setting out how you will deal with it

Offer your employee

support via counseling, EAP etc...

DONT

Ignore the complaint

Talk about the complaint to

anyone except those who need to know, i.e. senior

management who will deal with it

Try to talk the

Complainant into

withdrawing the complaint

Get angry at the

Complainant for having made a

complaint

Mediation What is it and When Can it Help?

Mediators do 3 things, they:

1. listen

2. facilitate discussion

3. assist the parties to generate ideas for resolution

Consider getting an external mediation when….

Defences to Bullying & Harassment

− Direct denial – did not happen

− Reasonable management action

− Not repeated behaviour

− Differences of opinion

− Did not risk health and safety

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Scenario – Let’s Talk About How We’d Manage This:Mark writes a lengthy letter setting out that he feels he is beingpicked on and targeted unnecessarily by his supervisor. He isdoing work that he feels is outside of job role and nobody elseat his level is doing the same sort of work.

He feels that when he first started in the role things were okbut then there was a real change when he refused to head to astrip club with the work gang on a night out after work. Mark isa married man and this goes against his values.

Mark is now being informally performance managed by hissupervisor on a daily basis and being given more tasks then hecan complete in one day. He can’t keep up. Mark sets outvarious examples of what he perceives to be the unreasonabledemands.

Scenario Cont’d…

Mark’s letter has been sent to the CEO.

You are Mark’s supervisor’s manager and have justbeen given the matter to deal with. Your companyhas general policies regarding grievances beinginvestigated and resolved, but there is nothingspecific about how to do this.

The CEO has made it clear that this matter has tobe resolved quickly.

Dealing with Unions

− Be plain and polite at all times

− It’s your workplace

− Provide procedures and work through issues –confirm action points and outcomes in writing

− Examples – CFMEU and miner with tumor, pay claims for council workers under contract, overweight employee and termination

− They are doing their job – so be prepared.

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Questions

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Summary

Today we have covered:

− Legal responsibilities, definitions and what to do regarding Workplace Bullying, Harassment, EEO & Discrimination

− Adverse action

− Reasonable management action

− Risk Management

− Relevant case studies and workplace examples

What can you/your company do differently?63

Other Courses That May Assist

Conflict Resolution

Having Difficult Conversations

Emotional Intelligence

WHS Awareness & Risk Management

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To Conclude

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Course Evaluation

Please complete the evaluation form.

Thank you for your participation today.

Further assistance and guidance is available:

http://www.antidiscrimination.justice.nsw.gov.au/adb/adb1_employers_managers.html,c=y

https://www.humanrights.gov.au/using-good-practice-good-business-resources-your-workplace

http://www.fairwork.gov.au/employee-entitlements

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