Power and sexual harassment in the workplace

Eden Elliott - Wednesday, July 01, 2020

Despite decades of effort and improvement in Australian workplace legislation and culture, sexual harassment is, unfortunately, still a real and prevalent issue, mostly recently for a former High Court justice. This case highlights the link between power imbalances and harassment behaviour. 

In 2018, the Australian Human Resources Commission published a national survey which found that one in three people experienced sexual harassment in the workplace. The likelihood of victimisation increases for people who are female, aged 18-29, not cisgendered or heterosexual, Aboriginal or Torres Strait Islander, or have a disability. These are all qualities that are recognised by most workplace equal opportunity and anti-discrimination policies, demonstrating the importance of promoting and ensuring workplace equality overall as a means of preventing sexual harassment. Workplaces need to ensure that their policies on equality include these intersectional issues, so that increased likelihood is balanced by comprehensive and specific protections.

The link between inequality and sexual harassment

A recently published study by the Victorian Legal Services Commission indicated that an average of 2 out of 3 female and 1 in 10 male legal practitioners had experienced sexual harassment in their workplaces. The study also found that power imbalances were a key ingredient for instances of sexual harassment for the legal professional, again placing equality at the heart of the issue.

What can your leaders do to prevent sexual harassment?

Industries built around professional services and hierarchical workplace dynamics take note: your people are more likely to experience harassment from senior members of your profession. However, these dynamics can also present opportunities for your senior team members to provide cultural leadership, by representing and committing to a zero tolerance attitude towards sexual harassment. Prevention is better than cure, and it is crucial for workplaces to provide the right support, education and development of team members at all levels so they can manage their own behaviour, understand the realities of sexual harassment, and fulfil their role in creating a culture which leaves no room for predatory behaviour. 

What can everyone do to prevent sexual harassment?

The AHRC’s national survey also identified a decrease in reporting of sexual harassment incidents by witnesses and reporting by less than a quarter of complainants. Here is another opportunity for workplaces to ensure their complaint processes include protections for reporters, in particular by ensuring complete confidentiality. Complaint processes should also recognise and preserve the distinction between taking a complaint seriously and supporting a complainant and failing to afford the accused person with full procedural fairness.

Preventing sexual harassment in the workplace starts with a culture of equality, built on strong policies, processes and leadership. Employees have the power both to report harassment when they see it, and to use their own conduct to demonstrate to offenders what is not acceptable. If your workplace would benefit from better insight into your existing workplace culture, refreshed policies or training for your cultural leaders, WISE Workplace can assist. Contact us on 1300 580 685 to talk about your needs.

How to Navigate Counter Allegations in Investigations

Natasha Kennedy-Read and Vince Scopelliti - Friday, February 14, 2020

It is not unusual when investigating allegations such as sexual harassment, bullying or theft for the person accused of the misconduct to make a counter allegation.

This in turn can generate further counter allegations, making it difficult for investigators to keep track of a growing litany of wrongdoings!

Steering through the sea of counter allegations means handling each complaint separately, being mindful of procedural fairness and adhering to the civil standard of proof. 

Divide ALLEGATIONS into separate incidents

It is important not to conflate cause and effect when it comes to counter allegations. If the allegation is that person A slapped person B, who, according to A, retaliated by stealing A’s smartphone, these two allegations must be investigated separately.

It may be that that person B had nothing to do with the smartphone’s disappearance, or the slap never happened. 

By looking at them as two unrelated incidents, investigators will not ‘miss’ important evidence, such as A accidentally leaving their phone in a meeting room.

keep procedural fairness top of mind 

The smartphone theft/disappearance may only come up when B is being investigated for the alleged slap. The alleged wrongdoer makes the counter claim in an interview that was up to that point unknown.

In effect, this means there are two allegations under investigation. Depending on the circumstances, this new information may require the interview to be suspended while further inquiries are made by the investigator. 

While it may be tempting to view the counter allegation as 'tit for tat' failing to investigate this new complaint could be viewed by a court or tribunal as a denial of procedural fairness by the employer.

Many unfair dismissal claims are successful because the employer in question failed to afford procedural fairness to the alleged wrongdoer.

The civil standard of proof

While investigating allegations and counter allegations, compartmentalising each alleged incident, its timings and events ensures impartiality and clarity.

This means taking care with unwitnessed and testimonial evidence (hearsay). Vivid descriptions of events may sometimes be compelling yet have no bearing on actual events. Finding an impartial witness to an event can short-circuit this problem, but it can be difficult. Just because person C saw B running from the bathroom crying does not mean the cause was a slap from A. 

Investigators should apply the civil standard of proof when assessing evidence. This means that for an allegation to be substantiated, the evidence must establish that it is more probable than not that the incident occurred.

The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: 

  • Relevance of the evidence to the allegations. 
  • Seriousness of the allegations.
  • Inherent probability of an event occurring.
  • Gravity of the consequences flowing from a finding.
  • The likelihood that the required standard of proof will be obtained.

Employers and management must at all times remain unbiased. Just because a counter allegation is made during an investigation does not mean it lacks substance. It may be that the counter allegation carries more weight and is of a more serious nature than the initial claim.

It can be challenging for investigators when presented with counter allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, as well as formal qualifications such as Certificate IV and Diploma in Government Investigations.



Racial Discrimination at Work

Natasha Kennedy-Read and Vince Scopelliti - Wednesday, February 05, 2020

We are all familiar with the more obvious signs of workplace discrimination; but with targeted racism and xenophobia spreading faster than the Coronavirus, it is vital to be aware of the more nuanced and subtle acts of discrimination at work. 

Queensland has seen MP Duncan Pegg slam a phoney health department bulletin that warned online communities to avoid areas with high proportions of Chinese residents. In France, East-Asian communities began the now global #imnotavirus campaign, highlighting discriminatory comments from “are you dangerous if you cough?” to “stop eating wild animals then infecting everyone around you.” 

This problem is not new. In Canada in 2003, a similar wave of outbreak-fuelled xenophobia cost Toronto an estimated C$1bn, prompting public health officials to remind Canadians not to let ignorance triumph over respect in their communities.  

This viral endemic has already had a global impact on small businesses, schools and communities around the world, and workplaces are far from immune. Queensland surgeon Dr Rhea Liang said that “misinformation” on the virus has led to racially motivated remarks such as were made to her at work last week. Dr Liang’s patient refused her routine handshake, saying “you might have coronavirus” in front of her colleagues and several medical students. 

Most Australian workers are not at significant risk of infection, and employers and employees alike should be aware of the legal pitfalls they may encounter, and harm they may inflict, in attempts to protect themselves from the virus. In Dr Liang’s case, her colleagues were immediately supportive, but she worries about more vulnerable people exposed to racism that results from the stereotyping. 

The Racial Discrimination Act 1975 (RDA) makes it unlawful to discriminate against a person because of his or her race, colour, descent, national or ethnic origin or immigrant status. This extends to expressions of racial hatred against another person, and discriminating in the provision of services, entertainment and facilities or on less favourable terms and conditions. 

WHAT Does this mean for you?

We are all familiar with the obvious signs of racial or xenophobic discrimination, like slurs, segregation, targeted aggression and spreading racist rumours. Refusing to serve or deterring customers on the basis of their nationality or race, out of fear of Coronavirus is also an obvious and unlawful form of discrimination. However as a modern employer, it’s important to recognise the more subtle and nuanced forms of racism which can go unnoticed, and therefore be more damaging than overt behaviours. 

It is likely that racism at work is vastly underreported. 20% of Australians experience racism every year, but the Australian Human Rights Commission receives just several hundred racial discrimination complaints annually. 
More subtle and dangerous examples of discrimination include:

  • Xenophobic or racist ostracism of, or hostility towards, colleagues or customers in their workplace.
  • Avoiding contact or proximity with, or hostile body language towards people on the basis of their skin colour or nationality 
  • Unintentional or subconscious behaviour 

Subconscious biases and assumptions, even with positive intentions regarding safety or risk to others can all be considered racist behaviour. 

Prevention is always better than cure, and as an employer, workplace culture starts with you. If you are worried about your workplace culture, contact us to organise a Cultural Review. 

SO, how can i prevent racial discrimination from infiltrating my workplace? 

Education: 

Education on racial discrimination at work empowers employee understanding, sensitivity and conversation. Training programs are an important tool for eliminating more subtle discriminatory behaviours, by highlighting the nuanced nature of racial and cultural experience and necessity for sensitivity, and avoiding unintentional or subconscious infliction of harm. This can not only reduce incidences of discrimination but also create a positive culture where employees support each other, demonstrate and monitor their own standards of conduct and can minimise the emotional and psychological impact of external harm to their peers.

Conversation:

Creating space for productive conversations about race and discrimination at work is vital to a positive workplace culture. To encourage employee participation and make the most of these conversations, frame them in a positive and constructive way.

Outline the purpose and goals of the conversations from the outset:

  • Discuss views and experiences relating to racism in a non-judgmental and safe environment 
  • Learn from each other’s experiences and gain understanding that people experience racism in different ways
  • Reflect on intention and how we can unintentionally cause racial harm to our peers or colleagues 
  • Identify opportunities for growth within the organisation and develop systems for positive change 

Be prepared to support employees who may lack understanding of the real prevalence of racism and need for proper attention. People who are not part of a minority group are likely to have less experience of racism, so the nuanced nature of modern discrimination might come as a surprise. Constructive conversations can help these team members challenge their preconceptions, and help them to approach the issues with awareness and understanding. 

For tailored, expert and neutral third-party training programs or conversational facilitators to improve your workplace culture and tackle complex issues such as racial or xenophobic discrimination, contact WISE Workplace today. Working with an experienced facilitator or training provider such as WISE minimises the risk of tricky power imbalances countering your efforts to eliminate racial discrimination at work. 




Mental Health in the Workplace

Vince Scopelliti - Wednesday, September 26, 2018

Making sure that your staff are fit and healthy, enabling them to perform their duties at an optimal level, forms an essential part of being an employer of choice. But beyond ensuring that your staff are physically capable, it is essential to also look after their mental wellbeing. 

Underestimating the importance of mental health in the workplace is likely to have lasting impacts on your workers, your business and clients. 

OHS legislation requires employers to provide a safe and healthy work environment for all workers, which does not cause ill health or aggravate existing conditions.

In a series of articles, we'll examine the impact of mental health issues in the workplace, how to take appropriate steps to support staff suffering these conditions, and how you can promote mental wellness in your organisation. 

WHAT IS mental health?

Mental health is about emotional, psychological and social wellbeing. For an employer, this means keeping an eye on whether your staff are struggling to keep on top of things inside and outside of work, and taking steps to assist them with dealing with any difficulties that may be impacting their productivity. 

There are many types of mental illness, including depression, anxiety, obsessive compulsive disorder, personality disorders (such as borderline personality disorder), bipolar disorder, and schizophrenia.

the scope of the issue

According to the Australian Human Rights Commission (AHRC), around 45% of Australians aged between 16 and 85 will suffer from the symptoms of mental illness at some point during their lives. In any given year, one in five adults will deal with a mental illness. 

Some workers will commence their employment already suffering from symptoms of mental illness, while others may develop their mental illness while at work. 

In many cases, the mental illness will develop separately from circumstances in the workplace. In others, a negative or "unhealthy" work environment will contribute to staff developing mental health issues or may exacerbate underlying conditions. 

Some factors which can contribute to poor mental health in the workplace include job stress, poor workload management or unrealistic deadlines, poor communication, bullying and an overall lack of support.

the impact of poor mental health

Research shows that the cost to business of failing to pay proper attention to mental health is significant. 

The AHRC reports that workers compensation claims relating to stress and associated mental illnesses cost Australian businesses $10 billion every year. The failure of businesses to recognise the potential impact of mental health issues and failure to implement preventative or remedial measures such as early intervention, has been estimated to cost over $6.5 billion per annum. 

Absenteeism due to mental illness is another issue, with an estimated 3.2 days lost each year per worker. 

The difference between job stress and psychological injury

When it comes to identifying mental health issues in the workplace, there is a difference between work stress and psychological injury. 

Psychological injury includes behavioural, cognitive and emotional symptoms which have the potential to significantly impact a worker's ability to perform their job and interact with co-workers. 

This can be distinguished from job stress, which is generally a reaction to a specific situation which can be resolved, and is not a standalone injury.

To disclose or not to disclose 

In some circumstances, it is important for employees to disclose their mental health status. This is particularly the case if they are taking medication which could affect their ability to perform their usual employment, or if there are general concerns about safety or interactions with other staff. 

An employer has an obligation not to discriminate against staff because of their physical or mental attributes, including their mental health.

Managing and supporting mental health in the workplace

Employers can provide support by having guidelines in place for how to talk to a worker who has disclosed that they are suffering from mental health difficulties, and how employees can adjust to dealing with a colleague with a mental health issue. 

It's also essential for employers to know how to address performance concerns involving employees who are experiencing mental health struggles, without discriminating or taking ill-considered disciplinary steps.

Creating a safe and healthy workplace for all

This starts with non-discriminatory employment practices and implementing long-term strategies to promote a healthy culture and a positive workplace where staff feel they are making a meaningful contribution to an overall goal, are supported and happy to come to work. 

It's also important to create direct services to assist workers with mental health issues who require support and adjustments in the workplace. According to the AHRC, every dollar spent on identifying, supporting and managing workers' mental health issues, yields nearly a 500% return in increased productivity. 

It is highly likely that at least one worker in your workplace will, at some point in time, have a long or short-term mental illness. While you do not need to become an expert in mental health, having a better understanding of what mental illness is (including its possible effects on a worker) enables you to be more effective in handling issues that may arise.  

Fighting Age Discrimination in the Workplace

Vince Scopelliti - Wednesday, July 11, 2018


At any given time, there are multiple generations operating in the workforce: new starters, more established professionals and those heading towards retirement.

While this can create a diverse positive workplace, where a range of different experiences, attitudes and learnings can be shared, it also creates a possible environment for age discrimination.

Age discrimination can occur at all stages of employment, including recruitment, the general office experience, in workplace terms and conditions and at dismissal.

What is age discRimination? 

It is against the law to discriminate against anybody in the workplace because of their actual or assumed age.

There are two main categories of age discrimination:

  • Direct age discrimination. This applies if somebody facing a disadvantage or an advantage in the workplace exclusively because of their age. For example, if an older person is overlooked for promotion because it is assumed that they are not as comfortable with technology as a younger person, this would be direct age discrimination.
  • Indirect age discrimination. This is more difficult to identify and generally applies in circumstances where there is an ostensibly fair policy in place for all staff, which nonetheless is likely to affect staff of different ages in different ways. An example could be an employee being selected for redundancy simply because they are thought to be closer to retirement age and less likely to be affected by the redundancy.

Not Just a problem for older workerS

Although many people assume that only older workers are discriminated against, workers of all ages can become victims of age discrimination.

Examples include:

  • Young workers may be discriminated against due to:
      • Their relative inexperience in a role.
      • A perceived belief that they take their job less seriously, which may lead to them being overlooked for promotion.
      • A failure to receive increases in remuneration because co-workers who are older and have families are considered to be in greater "need" of increased pay.
  • Middle aged workers may experience discrimination arising from:
      • A perception that they lack the seniority and experience of older workers but don't have the "fresh ideas" of young staff.
      • Company events being held at times when staff with young families may struggle to attend.
  • Older workers may experience age discrimination due to:
      • A perception that they do not understand or cannot keep up with new technologies.
      • Their ideas being dismissed as being "outdated" or "old fashioned".

Legislation governing age discrimination

The applicable Australian legislation is the Age Discrimination Act 2004, which ensures discrimination is against the law, including in employment, accommodation, service provision or education.

However, it is important to remember that in certain circumstances it is lawful and may even be appropriate to treat people of different ages differently. These include:

  • When required to do so by state or Commonwealth law (for example, superannuation funds not being permitted to release money until members have reached a certain age).
  • Complying with certain health and employment programs.
  • Paying staff in accordance with youth agreements and awards.

Similarly, if somebody's age prevents them from performing the inherent requirements of the job they have applied for, it is not discrimination to refuse that employment. For example, if somebody under the age of 18 applies for a job in a bar then it is obviously not discrimination to refuse them employment.

What to do if you're experiencing age discrimination

As an employee, if you feel that you are experiencing age discrimination, you can either elect to take up any complaint internally (through the organisation's usual complaints procedures) or by making a written complaint to the Australian Human Rights Commission. Once received, the complaint can be investigated, and attempts made to resolve it via conciliation.

Alternatively, a final option could be to pursue a complaint through the Federal Court of Australia or the Federal Circuit Court.

What can workplaces do to help prevent age discrimination

Having strong policies in place to ensure that all staff are treated equally regardless of their age is one of the key factors in preventing age discrimination.

Providing equal access to training opportunities for all employees and offering flexibility around hours regardless of life stage can also help fight discrimination.

If you need help with age discrimination workplace policies and procedures, or if you have a question about age discrimination that you'd like to discuss, contact WISE today for support and guidance.

When Workplace Relationships Go Wrong

Vince Scopelliti - Wednesday, May 30, 2018

Given how much time employees spend at work every week, it is hardly surprising that romantic relationships develop in the workplace. 

But what happens when a romance is inappropriate, or attraction crosses the line into sexual harassment?

inappropriate vs unlawful

While there is nothing illegal about a workplace relationship between two consenting adults, in some circumstances it can be inappropriate, for example a romance between a manager and a subordinate. 

There is also a significant difference between mutual and enacted sexual attraction, and unlawful conduct such as unwanted sexual advances, sexual harassment or even abuse or assault. Sexual harassment is unlawful under both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 2010 (Vic). Sexual abuse and/or assault is a criminal offence.

the issues and consequences

Workplace relationships can become problematic, particularly in situations where a relationship involves two employees, one of whom oversees the other's performance, management or appraisal. 

Other co-workers may feel aggrieved by a real or perceived bias involving any decisions made by the more senior worker involved in the relationship. Team morale can suffer if one member is seen to be treated more favourably than the rest when it comes to performance appraisals, the allocation of work and promotional opportunities. 

Partly for this reason, employers may be tempted to dismiss employees who have not disclosed the nature of their romantic relationships. The legality of any such dismissal is questionable - however, previous decisions of the Fair Work Commission have suggested that employees may be dismissed in cases where employees are untruthful when they are challenged about the existence of workplace relationships. 

Employees may also make unwanted advances to other employees, as a result of innocently misinterpreting signs of perceived sexual interest. While there's nothing wrong with a co-worker asking a colleague out on a date or making an advance, there is a problem if the 'advancer' fails to accept and move on from any rebuff. 

The potential for negative fallout when a relationship ends is also a key concern for most employers. This is particularly the case if one party wants the relationship to continue while the other party wants to move on - ongoing attention may tip over into sexual harassment. 

According to the Australian Human Rights Commission, sexual harassment is 'any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual'.

From an employer's perspective, if sexual misconduct occurs in the workplace (or at employer-sanctioned events such as Christmas parties or other functions) then the business may well be vicariously liable.

There is certainly potential for litigation or unwanted media attention and brand damage as a consequence of sexual misconduct or an inappropriate relationship.    

what can an employer do to minimise the fallout? 

From a risk mitigation perspective, employers should ensure that they have adequately drafted and communicated workplace policies.

At a minimum, these policies should include: 

  • Clear guidelines on the permissibility of relationships between co-workers and when such relationships should be disclosed; 
  • Procedures for what should happen when such a relationship is disclosed, for example when a change in reporting structure is required;
  • A clause addressing conflict of interest and perceived bias (especially when relationships occur between senior and junior staff);
  • A clause defining sexual misconduct, highlighting the definition of sexual harassment and what kind of behaviour will not be tolerated in the workplace. 
  • Workplace policies that promote awareness of all gender related issues, including sexual harassment. 

It is common for relationships and attractions to develop in the workplace. As an employer, it is important to ensure that these circumstances do not lead to incidents of sexual harassment or perceptions of conflict of interest. 

Employers should ensure that they address all complaints of sexual harassment with care. If you have had complaints regarding sexual harassment, or are concerned about potential bias, WISE provides full and supported investigation services