The Cost of Aggressive Leaders

Vince Scopelliti - Wednesday, January 24, 2018

There are many different skills which are required for an effective leader - such as excellent communication skills, perseverance, the ability to inspire and motivate staff, clarity of thought, and efficiency. But one detrimental trait that many leaders may possess is aggression.

Although it is often accepted that a domineering personality seems to go hand in hand with successful leadership, in many situations it can actually get in the way of optimal and effective management.

a bad habit or a behavioural strength? 

There are different levels on the scale of aggression - and indeed, for some jobs a level of combativeness is almost an essential quality. From a CEO accustomed to facilitating hostile takeovers, to a litigator who must take charge of a courtroom, to a police officer, in these careers, behavioural traits which are more closely aligned with aggression can be helpful. 

Contrast this with "softer" jobs, such as a primary school teacher, a nurse, a psychologist or a social worker, and it becomes apparent that certain personality traits are much better suited to some industries than others. 

Hiring managers and HR managers responsible for recruitment and selection of managers need to be aware of the difference between simple assertiveness and unbridled aggression or even narcissism.

the difference between assertive and aggressive

A "positive" and assertive boss might:

  • Engage in competition against external competitors, but support a whole team ethos;
  • Be forthright and open, including potentially critical - but be equally willing to accept criticism of their own methods;
  • Seek facts;
  • Respect the rights of staff to their own opinions. 

In comparison, a "negative" aggressive or narcissistic boss may:

  • Constantly compete with their own staff;
  • Belittle or punish those who disagree with the leader;
  • Base decisions on their emotions or feelings rather than rational or logical conclusions;
  • Mock or otherwise put down staff; 
  • Yell, gesture, stride around or otherwise engage in physically intimidating behaviours.

the downsides of aggressive behaviour in the workforce

In its most basic form, employees who work for aggressive leaders can be uninspired and unhappy, often not wishing to come to work. A leader who storms around like a bear with a sore head, as the expression goes, is likely to cause, or at the very least contribute to, a toxic workplace. 

This, in turn, can lead to significant losses in productivity, high rates of absenteeism or presenteeism (where staff physically turn up but do not properly fulfil their duties) and excessive staff turnover. 

changing leadership behaviour 

It can be difficult to modify leadership behaviour, particularly when it comes to leaders with type-A personalities, which will likely mean that they are reluctant to accept criticism or receive feedback well. 

Strategies for changing leadership behaviour, or at least improving the ability of staff to deal with aggressive leaders, include:

  • Building a strong relationship between the leader and the rest of their team, including by encouraging open communication and fostering the ability for human resources staff as well as team members to provide feedback on decisions made by the leader. 
  • Appeal to the leader's sense of logic and highlight the potential impact of their actions on the business.
  • In the case of narcissistic leaders, it can be helpful to frame feedback on their behaviour in terms of how it might negatively affect their goals, rather than as a direct personal criticism.
  • Stop supporting this type of behaviour by refusing to promote or reward leaders who are aggressive, and who refuse help to modify their behaviour. 

Taking a few simple steps towards correcting the ongoing behaviour of an aggressive leader, while still highlighting the importance of strength in decision-making, can help to significantly improve the satisfaction, productivity and quality of your workers. If you believe you have an aggressive leader or a toxic workplace where an investigation or cultural review would help, contact WISE today for an obligation free quote. 

2017: The Year Sexual Harassment Claimed the Public Spotlight

Vince Scopelliti - Wednesday, January 03, 2018

It seems that as 2017 gathered steam, more and more brave survivors of sexual harassment in the workplace gained the courage to name their alleged harassers. 

From Hollywood bigwigs and actors to Australian TV personalities; it seems that a vast array of perpetrators and inappropriate actions within the entertainment industry have finally come to light. 

There is no doubt that any move to identify and eliminate sexual harassment at work is a good thing. However, what is important as we close the 'year of the Weinstein' is that we don't forget some of the less obvious - but no less damaging - manifestations of sexual harassment in the workplace. 

The reach of Australian legislation protecting workers is impressive. Yet many workers and employers still fail to recognise that sexual harassment is occurring on a regular basis. For example - a workplace might tacitly support that 'touchy feely' manager, or the 'jokey' worker who pushes the line on blue humour. What is certainly not acceptable under law, can in some contexts become normalised. 

Developing broad-ranging understanding of what is and what is not sexual harassment, can be quite challenging. How to combat this lack of knowledge is the next frontier for employers and workers alike.

Key definitions of sexual harassment

The Federal Sex Discrimination Act contains the following definition of sexual harassment: 

28A - Meaning of Sexual Harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engaged in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Importantly, 28A(1)(b) provides for the broader "unwelcome conduct of a sexual nature." 

Both workers and employers alike face some knowledge gaps in terms of the reach of the definition. And what could mistakenly be thought of as 'just mucking around' or 'a harmless Aussie joke' might in fact fall squarely within the meaning of sexual harassment. 

As seen in the legislation, it is not a matter of whether the person harassing might have anticipated an adverse reaction from the person harassed. The relevant threshold in gauging the reaction from the viewpoint of the ubiquitous 'reasonable person'. 

global reach - the #metoo campaign

We watched the tsunami of the '#metoo' campaign encouraging women across the globe to share their experiences of sexual harassment, by using the simple hashtag across social media. The campaign has shed valuable light upon the prevalence of sexual harassment in society. 

Both women and men have been subjected to unacceptable words and acts - often without support or a sufficient avenue for redress. We are beginning to understand that sexual harassment is blind to gender, with men becoming susceptible to this behaviour - as the matter of Kordas shows. 

Unique questions arise for employers when we consider the various social media platforms being used by women to spread this message. If a person hashtags #metoo from a workplace, the employer might well have an obligation to follow up on this informal notification. Certainly, if there are subtle or overt signs of a connection between the claim and work, an investigation of possible workplace sexual harassment might well be advisable.

THE extreme and the ugly...

As noted, 2017 could certainly be considered the year in which the issue of sexual harassment hit the headlines in a major way. In the United States, the verbal and physical exploits of Hollywood's Harvey Weinstein became part of a horrifying litany of sexual harassment occurrences in the workplace. Similarly in Australia, media personality Don Burke has faced extensive allegations of sexual harassment in the workplace, stemming across many years in his work as the nation's 'gardening guru'. 

Yet it is arguable that such extreme cases do little to assist the public's understanding of the more fine-grained aspects of workplace sexual harassment. Across Australian workplaces, only a small percentage of workers who have been sexually harassed will report the behaviour. In general, this is due to the fact that sexual harassment is only understood to be the kinds of egregious, physical acts that have made media headlines in 2017. 

The subtler acts of sexually-based joking, leering, cornering, propositioning and unwanted affection are less likely understood by workers (and even some employers) as being what they are - sexual harassment. How to keep such harassment at the forefront of employer thinking into 2018 and beyond, is the challenge. 

risk of ignorance 

When whispers and talk arise about an incident of sexual harassment, employers need to pay close attention. If an employee approaches management with a concern, it is important to understand that verbal notification of sexual harassment is generally all that is needed. 

Those subject to harassment are not required to make a formal, written complaint. The risks of not acting on an informal, verbal notification of unacceptable behaviour can be high, as demonstrated by the cases of Trolan and Matthews. Employers in this situation have faced mounting costs associated with statutory and common law claims - not to mention the operational costs of allowing sexual harassment to occur in the workplace initially.

workplace vulnerabilities 

Workplaces where rank and hierarchy exist - such as emergency services and the armed forces - can be particularly susceptible to occurrences of sexual harassment. In the recent NSW case of Torres v Commissioner of Police [2017] NSWIRC 1001, the Commission noted that part of the problem with the senior constable's lewd behaviour stemmed from these displays being forced upon more junior colleagues. His dismissal was found to be warranted in light of the gravity of his sexual harassment at work. Those in lower positions can feel that they have no option but to accept the behaviour. 

Taking advantage of junior and/or more vulnerable workers can also be evident in low-paid and transient industries. Recent unsavoury cases of sexual harassment have been found to have occurred in farming and horticultural industries where transient workers are open to abuses by employers and permanent staff. Similarly, in hospitality workplaces, junior staff are particularly prone to sexual harassment. Age, time in the role, and financial necessity are just some of the vulnerabilities that can lead to harassment.

workplace sexual harassment policies crucial

The importance of having meaningful and accessible workplace sexual harassment policies cannot be overstated. It is not enough to simply email staff about a generic policy on sexual harassment in the workplace. And it is also not satisfactory to do the bulk of education activities at the point of recruitment. 

Like any workplace risk, sexual harassment needs to be monitored across time and in the context of each individual work site. Policies should remain living documents that provide robust responses to any unacceptable workplace behaviours. 

The costs of failing in this area include not only money and time, but also that most valuable of corporate commodities - reputation.

strong but subtle RESPONSES

2017 brought sexual harassment in the workplace front-and-centre for the global viewing public. Tales of power gone astray and a culture of staying quiet have all led to the situations that have dominated the headlines in recent months. There is no denying the importance of bringing such stories to light. However appropriate workplace responses will not simply engage with the worst types of sexual harassment, such as we have heard about recently in the media. Active employers will necessarily source the best and most responsive policies, addressing all issues that might allow sexual harassment to fester and grow in the workplace. 

Hopefully, 2018 will be the year in which all employers develop responsive workplace systems designed to detect the earliest threat of sexual harassment across every site. If you need assistance, WISE Workplace can help with sexual harassment policies, training and investigations.

A Modern Problem: The Face of Workplace Bullying in 2017

Vince Scopelliti - Wednesday, December 20, 2017

Workplace bullying comes at a high price for Australian businesses and employees, costing billions and leaving a trail of physical and mental health issues in its wake. 

Even though employers are becoming increasingly conscious about bullying and most have anti-bullying policies in place, it is still very prevalent in 2017. 

We take a look at what types of behaviour constitute workplace bullying, its magnitude, and some of the key cases heard by the Fair Work Commission (FWC) this year.

the nutS and bolts of it

Workplace bullying can come in many forms. It can be broadly defined as repeated unreasonable conduct and can include different types of abusive behaviour, whether physical, verbal, social or psychological, that occurs at work. It does not matter whether the behaviour is engaged in by a manager, a boss, or co-worker, or what the employment status of the victim is. 

Many different types of behaviours can fall within the meaning of workplace bullying. Some of the most obvious ones include:

  • Physical intimidation or violence
  • Excluding co-workers from social or work-related interactions
  • Mocking or joking at the expense of somebody in the workplace
  • Spreading gossip or rumours
  • Threats of violence or abuse

There are also a number of more subtle types of abuse frequently being employed in workplaces. According to research released in June 2017, these include: 

  • Unnecessarily micro-managing an employee so that they cannot perform their role effectively - or not providing enough supervision and support in order to permit a job to be performed competently
  • Consistently providing work well below an employee's competency 
  • Frequent reminders of errors or mistakes
  • Setting unreasonable deadlines or timeframes
  • Ignoring opinions or input
  • Exclusion from work or social events. 

what is the extent of workplace bullying

Workplace bullying is prevalent in Australia. 

According to research undertaken for BeyondBlue, almost half of Australian employees will report experiencing some type of bullying during their working lives. Workplace bullying can impact performance and career progression, and result in a range of physical and mental health issues. 

It is estimated to cost Australian organisations up to $36 billion a year. 

the need for an anti-bullying culture

In order to appropriately respond to the many different types of bullying - including some of the more hidden, indirect types of bullying set out above - employers must implement clear and direct anti-bullying policies outlining what type of behaviour is considered to be unacceptable. 

Rather than solely focusing on punitive measures for dealing with inappropriate behaviour, employers are also encouraged to attempt to build a positive workplace culture through feedback, independence and trust. 

WHen employers are accused of bullying 

Given that almost anything could potentially lead to allegations of bullying, it is not surprising that many employers are concerned about being unable to treat employees with anything other than kid gloves. 

However, employers are within their rights to performance manage, discipline, retrench or otherwise alter the employment conditions of an employee in appropriate and legally permitted circumstances.  

how did the fair work COMMISSION view bullying in 2017

A number of cases before the FWC this year highlighted the need for fair and unbiased investigation of bullying allegations, and demonstrated that employers taking appropriate steps to discipline or dismiss an employee won't be penalised. 

Case Study 1: The email is mightier than the sword

In early 2017, FWC upheld a ruling that Murdoch University was right to terminate an employee for serious misconduct. That employee had sent a number of abusive emails - from his university work account - to the chief statistician of the Australian Bureau of Statistics (ABS). 

Even after complaints were forwarded by the ABS directly to the University, the employee continued to send emails to the chief statistician, and forward those on to third parties, including a federal member of parliament. In one of those emails, the worker tacitly acknowledged that his behaviour was bullying, and stated that 'bullying is the only way to deal with bullies'. 

Prior to his correspondence with the ABS, the employee had already emailed another colleague and accused her of being deliberately dishonest and suffering from mental health issues. 

Ultimately, Murdoch University stood down the employee on full pay while an investigation was conducted. It also took steps to change investigators on more than one occasion, after the employee complained about the staff investigating the matter, before ultimately dismissing the employee. 

This case is an important reminder for employers that taking appropriate and lawful steps to investigate and, if necessary, terminate employment will not constitute bullying.

Case Study 2: Lawful adversaries - bullying in law school

In another bullying case involving a university, a Deakin University law lecturer sought the imposition of anti-bullying orders on a co-worker.

Although the accused professor had previously been charged with misconduct while working at another university, the FWC refused to allow the provision of materials relating to those earlier allegations. It noted that previous management behaviours of the professor were not relevant to new claims of bullying. 

Those materials also reportedly contained commercially sensitive information regarding other employees. This reinforces the message that employers and senior staff should not feel as though they are prevented from taking steps to discipline staff without being accused of bullying, despite any previous allegations. 

Case Study 3: A failure to properly investigate

Employers must take care to properly investigate all allegations of bullying within the workplace, not only to protect the victim but also to afford due process to the accused. 

This was the case in a recent FWC decision, which determined that a mother and daughter had been unfairly terminated amidst allegations of bullying and fraud. 

The director of the abortion clinic in which the mother and daughter worked had terminated their employment after registered nurses made various complaints about the duo, including that they took excessive smoke breaks, failed to record information properly in time sheets, and had made inappropriate threats of dismissal to the nurses. 

The director failed to appropriately investigate the allegations and, crucially, did not give the terminated employees sufficient time to properly respond. The FWC found that this demonstrated favouritism and nepotism (in circumstances where the director had apparently wanted to install his own wife and daughter in the newly available roles). 

Case Study 4: Getting it both right and wrong

Even when an employer's disciplinary actions are ultimately deemed to be appropriate in all relevant circumstances, their response may still fall far short of best practice. 

That was the case when the Paraplegic and Quadriplegic Association of NSW (Paraquad) was held to have properly dismissed a carer whose major depressive disorder meant that she no longer had the capacity to properly fulfil her role. 

However, the employee complained before her dismissal that she had suffered years of bullying and harassment which had exacerbated her psychiatric condition. This was not properly taken into account by Paraquad's HR department - even when provided with medical evidence supporting the employee's allegations as to the source of her condition. 

The FWC was particularly critical of the HR department's decision not to properly investigate the bullying allegations, because the employee had not followed workplace protocol in making her complaints. 

Case Study 5: Lessons in discourse

 Another interesting development this year revolved around language. Fair Work Commissioner Peter Hampton explained at the annual Queensland IR Society Convention in October 2017 that he eschews the use of words such as 'bully', 'victim', or 'allegeable'. It is advisable to avoid unhelpful labels which might shoehorn parties into certain roles. 

A similar approach is being encouraged in the Queensland Public Service Commission, particularly when dealing with domestic violence, where labels such as 'perpetrator' are actively discouraged and a rehabilitative approach is desired. 

The take home message

So what lessons can employers take away from the way the FWC has dealt with bullying in 2017? In summary employers should:

1. Take all complaints of bullying seriously, and conduct unbiased, fair investigations

2. Ensure that those accused of offences are afforded due process and have the opportunity to respond to allegations against them

3. Take positive steps to devise and implement workplace policies which make it clear that bullying behaviour will not be tolerated and will be investigated as necessary

4. Ensure that any action taken to discipline or dismiss an employee is reasonable and appropriate. 

For expert assistance with these and any other matters related to workplace investigations and how to respond to workplace bullying complaints, contact WISE Workplace today.  

Crossing the Line: Flirting vs Sexual Harassment

Vince Scopelliti - Wednesday, November 29, 2017

The recent media attention on sexual misconduct in Hollywood is a turning point; what may have been considered 'innocent flirting' in the 70s and 80s is increasingly being called what it is - unwanted harassment. The public condemnation of film mogul Harvey Weinstein's conduct has emboldened people to come forward with allegations of sexual misconduct against other celebrities, in what some have described as the 'Weinstein ripple effect'. 

There has been a significant shift in recent years in the way the criminal justice system conceptualises consent, and this has likewise affected the perception of harassment. 

Although the Hollywood allegations are of a serious nature, with some amounting to sexual assault and rape, they have also cast the spotlight on work relationships in journalism, entertainment, politics and the everyday workplace -'the office'. The question arises: what constitutes sexual harassment in 2017?

legal definition of sexual harassment in australia

Although many assume that sexual harassment must occur between a man and a woman, in Australia this is not the case - it can take place between persons identifying with any sex or any gender. 

According to the Sex Discrimination Act 1984 (Cth), 'sexual harassment' includes unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature - the key element being that the behaviour is not welcomed by the recipient. 

The conduct needs to be assessed from the viewpoint of a reasonable person and whether the reasonable person would consider, in all the circumstances, that the recipient might be 'offended, humiliated or intimidated' by it. 

Even more seriously, sexual assault includes a person being forced, coerced or tricked into a sexual act against their will and without their consent. If the victim is a child, it's sexual assault regardless of any apparent consent. 

In cases where sexual assault is alleged in the workplace, the complainant needs to be advised that they can make a complaint to the Police. 

Should the conduct involve a minor, it may constitute 'reportable conduct' - which is required to be reported in accordance with the relevant state legislation, as well as to the Police. 

SO, is it flirting - or harassment?

Many interpersonal interactions between employees are, particularly in their early stages, subtler and more ambiguous than clear examples of harassment. Smiles, winks, compliments, sexual innuendo and humour, suggestive glances, or even a touch on the arm or shoulder could be seen by some as innocent flirting - but perceived by others as harassment. Recipients of such behaviour may wonder whether these comments and behaviours are friendly or sinister in nature, intentional or accidental, a one-time event or likely to persist. 

When determining whether behaviour might be sexual harassment, it can be made clearer by answering some important questions, such as: 

  • Does the recipient seem uncomfortable or fail to respond to comments or discussions?
  • Is one person involved in the conversation in a position of authority?
  • Could the person making the overtures impose real professional consequences on the recipient if they were turned down?

the role of touching in sexual harassment

It is clear that engaging in unwanted touching is an even more serious offence than making offensive or inappropriate comments or suggestions. For this reason, many employers consider it prudent to ban physical contact in the workplace beyond simple handshakes. Of course, this can also have an impact on how friendly the workplace is perceived as being, so depending on your workplace, it may be more appropriate to closely monitor physical interaction rather than ban it outright. Generally speaking, however, those in positions of power such as managers or supervisors should avoid physical contact where possible. 

the role of power and status

Interestingly, studies have revealed that some men in positions of power find their roles inextricably linked to sex - meaning that they struggle to differentiate between women (or other men, if that lines up with their sexual orientation) who are sexually responsive, or who are simply being friendly. For many reasons, not least to protect a business against potential claims of harassment, employers must do their best to minimise the potential for any inappropriate conduct to occur between managers and supervisors and staff. 

So what should employers do?

Employers have a duty of care to their employees to make sure that they are safe and protected while at work. Employers must have clear policies in place on what types of behaviour are considered to be sexual harassment, and how complaints can be made. Policies should be well communicated to all staff, and staff should be educated on what is expected of them regarding behaviour in the workplace. 

In order to protect your business and staff against flirting going too far and turning into sexual harassment, contact WISE Workplace today for expert assistance with workplace investigations, anti-sexual harassment training and assistance with reviewing or drafting your policies.  

Workplace Party Pitfalls and Perils (A Christmas Story)

Vince Scopelliti - Wednesday, November 15, 2017

At a time when workers increasingly work remotely, communicate online or use hot desks, the annual staff Christmas party is a valuable opportunity to get everyone interacting face to face. 

A Christmas party is also a good way of getting staff who rarely see one another during the working week to meet, to reward staff for hard work, to celebrate the success of the past year, and to motivate employees for the year ahead. 

At the same time, it is essential that reasonable steps are taken to manage the risk to the organisation's reputation, to provide an environment free from discrimination and to protect the health and safety of all involved in the Christmas party. 

Small wonder then that there is a fine line between potentially permitting a situation to get out of hand, and being so risk averse that you kill the fun of the party altogether. 

Here's a quick guide for employees and employers on how to avoid the potential perils of the work Christmas party.

when is a party classed as a workplace event?

First, in order for a business to be legally liable for events that occur at a Christmas party, it must be considered a 'workplace event'. However, this can extend beyond something which is specifically labelled an 'end of year function' or 'Christmas party', and can include something as informal as a picnic or a sporting activity - or even an unplanned and spontaneous event like an after party. 

The factors that determine whether something is defined as a workplace event include:

  • Whether the employer sponsored or funded the event.
  • If the employer was involved in organising the event or issued invitations.
  • Whether attendance was voluntary or whether the employer expected attendance - for example, by requiring employees who did not attend to take annual leave or work instead. 
  • If employees consider it a 'perk' of employment to attend the event.
  • Whether the employer benefitted from the event, for example by having the opportunity to present awards or network with clients.  


Some notable mishaps from past Christmas parties include: 

  • The dismissal of an employee for haranguing and then pushing a fully clothed co-worker into a swimming pool. That decision was upheld by the Fair Work Commission, despite noting that the employer should not have provided virtually unlimited alcohol. Another factor was that the employee was asked to leave by the general manager, but refused to do so, engaging in a physical altercation with him. 
  • An employee urinating off a balcony on Darling Harbour onto dining patrons below was sacked for misconduct. 
  • A formal warning was given to a police officer who used a genital piercing to open beer bottles during a party. 
  • Another employee lost his job after faking his wife's illness to miss his own Christmas party - only to attend that of a competitor.   

how employees can have fun and stay out of trouble

There are a few important things employees should be aware of: 

  • What happens at the party will almost certainly not stay at the party. Quite apart from water-cooler gossip and the potential repercussions of people remembering what you said or did after that fifth glass of wine, there's also potential for humiliating photographs or embarrassing posts to be shared on social media. 
  • Employees should set and stick to limits. Good working relationships can be quickly destroyed, and respect lost, through foolish or careless behaviour by those who have over-imbibed. 
  • Once your reputation has been damaged, it can be incredibly difficult to repair it. Remember that you will need to see your colleagues and any other guests again - if not on Monday, certainly after the Christmas break. 

Instead of overdoing the alcohol, use the party as an opportunity to network with other people in your organisation whom you may not know as well. The Christmas party should be an opportunity to have fun and form more personal connections, with a view to improving your overall work life.


In order to minimise any potential pitfalls from the Christmas party, employers need to know a few key things:

  • If a function is deemed to be a workplace event, then the employer owes a duty of care to employees. This includes being held vicariously responsible for any injuries, discrimination, harassment, or potentially for anything the employees do wrong, such as breakages. 
  • Service of alcohol is the responsibility of the employer. Although employees should feel free to have a good time without undue restrictions, it is up to the employer to ensure that nobody is excessively intoxicated. Some employers may also wish to provide alternative transport home, such as Cabcharge vouchers. 
  • Employers should make it clear exactly when the function starts and finishes. Setting a specific end time for the festivities assists with limiting the employer's duty of care to a finite window, after which point anything that happens at a different venue could be considered to be 'off the clock'. 
  • Employees should be reminded that, even though the event may not be held at the workplace, the usual rules of conduct apply. This includes reminding employees of the company's sexual harassment, bullying and anti-discrimination policies. 
  • Remind employees to be culturally sensitive, especially noting that not all people celebrate Christmas, and ensure that any gifts sanctioned at the workplace event, such as Secret Santa, are not inappropriate or offensive. 

How to deal with any misconduct 

If something does go wrong at the Christmas party, it is important for employers to deal with potential misconduct swiftly and fairly in order to minimise any fallout. WISE Workplace can assist with a professional and unbiased workplace investigation. 

When Gender is Irrelevant: Male-On-Male Workplace Harassment

Vince Scopelliti - Wednesday, November 08, 2017

Sexual harassment and predatory behaviour can happen to anybody. When most people think about this type of conduct, it is generally in the context of male-to-female harassment or, perhaps more rarely, female-to-male harassment. However, this is simply not the case - sexual harassment can be perpetrated by anybody towards anybody. 

A recent decision of the Civil and Administrative Tribunal of NSW highlights the potential for employees to be victims of sexual harassment and victimisation in the workplace, regardless of their gender. 

The decision in Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty also affirms the entitlement of workers to financial compensation when they have been subjected to sexual harassment. 

Inappropriate behaviour

In Kordas, the worker complained about various instances of inappropriate behaviour and sexual harassment during his employment as an apprentice hairdresser working for the respondent. 

The behaviour complained of by the worker included:

  • Being told by his employer that workers were similar to racehorses because 'they need a pat on the bum to go faster'.
  • Having his supervisor tell clients that he and the worker were similar to a gay couple and that they were very 'close'. 
  • Being followed into a private area, slapped on the buttocks with a ruler by his trainer and being asked to smack him back because the trainer 'like[d] being slapped on the bum'.
  • Humiliation by the trainer when he threw a hair clip onto the ground, in the worker's opinion, because the employer wanted to see him bend over. 
  • The trainer complaining that the worker had incorrectly clipped a cape onto a client
  • Feeling harassed when the worker asked the trainer if he felt they got along and the response was yes, because 'you're my bitch'. 
  • Upon complaining to his employer and asking why he was referred to as the salon 'bitch', being told 'I used to work in a restaurant. All the boys used to grab me by my boobs'. 
  • Being grabbed around the waist and physically moved by his supervisor instead of being asked to move out of the way. 
  • Having his palm stroked in a flirtatious manner by his employer when he was handed money for errands. 

The worker had initially complained to his boss, who was also the director and owner of the business running the hair salon, about being victimised. But no action was taken, and the worker was ultimately dismissed. 

The history of complaints

The apprentice stated that he had not complained initially about the inappropriate behaviour because he had wanted to keep his job. 

However, in February 2015, the worker finally complained to the employer about various issues he was experiencing, including very low wages, ongoing harassment and feeling that he was being sabotaged. Although the employer initially promised that everything would be sorted out, he then made the above mentioned comment, likening hairdressers to racehorses. 

At this time, the worker demanded changes in his treatment, but the employer denied ever having received any complaints or personally witnessed any harassment. 

The employer then advised the worker that there were no senior staff available to continue his training and dismissed him. The stress and emotions suffered by the worker as a result of this treatment ultimately caused him to leave his chosen profession of hairdressing, working instead as a barber. 

Findings of the tribunal

Upon hearing the complaints, Tribunal Senior Member Scahill and General Member Newman commented that although the harassing behaviour was not the worst they had ever seen, it had clearly impacted upon the apprentice in a very significant way and had caused him to change his future career plans. 

The nature of some of the inappropriate behaviour was found to be sexual harassment, particularly the physical contact and comments regarding being a 'bitch' and a 'gay couple'. Moreover, the significant disparity in power between an employer or senior employee and an apprentice was such that the worker was reasonably and clearly intimidated, humiliated and harassed. 

The employing business was also held vicariously liable for the conduct on the basis that it had failed to ensure a workplace free of harassment and had failed to appropriately respond to the worker's complaints. 

The worker was awarded compensation comprising:

  • $5,000 in general damages for the sexual harassment by the employer
  • $10,000 in damages for the trainer's sexual harassment
  • $15,000 for victimisation

As this case demonstrates sexual harassment and inappropriate conduct can occur in any workplace, and between any gender. If you are concerned about a case of potential harassment at your organisation, contact us for assistance. We offer both supported and full workplace investigation services. 

'I Was Sent to Coventry' and Other Social Bullying Techniques

Vince Scopelliti - Wednesday, October 25, 2017

When we think of bullying, the clichés of schoolyard taunts might spring to mind. Yet as we learn more about the wide-ranging techniques of bullying, it is clear that this deeply complex phenomenon can be hard to pin down. 

For example, being ignored, or made an outcast in any situation - 'sent to Coventry' - can be highly distressing. This insidious brand of social bullying unfortunately arises in many workplaces, causing pain and anxiety for victims.

what is bullying? 

Bullying can be physical (including hitting or even destroying property), verbal, cyber (such as bullying on social media), and social. 

A person being 'Sent to Coventry' is a form of social bullying. 

So what do we mean by a person being 'Sent to Coventry'? Historically the phrase appears during the English Civil War when prisoners would be sent to the eponymous North-Western City for punishment, and experienced isolating treatment by locals. But how does this tend to manifest as workplace bullying? 

Picture this: on the surface, the workplace looks pleasant. There is occasional chatter and people seem content. But look closer - on Friday lunch excursions, one person appears to be ignored by the others as they leave. In meetings this person's colleagues seem to ignore their ideas, or quietly mock them when they have the courage to speak. They have also mysteriously been kept off the roster except for a few skeleton shifts... and so on. 

These are classic moves of ostracism as a weapon for workplace bullying. Left unmonitored, such behaviour can lead to severe stress and mental health problems for the outcast employee. 

The worker might originally have committed a 'sin' in the eyes of co-workers - perhaps told management about colleagues misconduct, or appears to be given special treatment. On some level, one or more workers have judged this as being unforgivable, leading to a long and toxic period of unrelenting silence, mockery and isolation.

bullying women, bullying men

What are the gender differences when it comes to social bullying? Unfortunately, this more covert behaviour seems to be a particular feature of female-to-female bullying

The phrase 'deafening silence' sums up the effect of this form of workplace bullying, where a worker is deliberately placed on the outside of a work group dynamic by one or more of their colleagues. 

The mechanisms are often subtle, and certainly challenging for management and workplace investigators to detect or prove. Yet by their very nature, stealthy and outwardly ambiguous bullying tactics in the form of ostracism and freezing-out can be painful and injurious for the victims of such attacks.

Men can also engage in subtle forms of social bullying, but are more likely to add overt actions as they bully a fellow worker. Particularly where rank or divisions enable such bullying, male offenders might sabotage the atmosphere and opportunities for targeted colleagues, later escalating to overt physical and verbal abuse. 

pulling rank - the hierarchical workplace

In the armed forces, emergency services and police, there is an opportunity for those in particular positions to 'close ranks' as a form of workplace bullying. For the victims of such behaviour, equipment can mysteriously go missing and vital operational information can 'somehow' bypass the bullied person. Aggressive taunts are also more likely in rank-based organisations.

questioning what is true

Most 'quiet' forms of workplace bullying seem to evaporate when management or a workplace investigator shows up. Also, consummate 'Coventry' bullies will sometimes alternate their attacks with neutral or even pleasant exchanges with the bullied worker. 

The victim is left on the back foot, unsure of what is real or imagined and often quickly becoming susceptible to both functional and mental decline as a result. Such 'gas lighting' attacks often cause the most long-term harm to a worker. 

Investigators must be vigilant in exploring alleged workplace bullying of this type. Common mistakes in the field can be when those investigating warm to often-extroverted perpetrators; bullies are masters of manipulation and can at times seem charming.

Conversely, the worker claiming bullying might appear nervy and unclear in their communication - perhaps even a little 'odd' compared to other workers. Rather than using this as a basis for dismissing the allegations, the history and behaviours behind all interviews must be carefully collated and compared with utmost objectivity. Indeed, the unusual presentation of a worker might in fact indicate a reaction to the effects of a covert system of workplace bullying.

Gathering evidence from multiple witnesses will often assist in identifying if there have been any patterns of behaviour from the perpetrators. 

When it comes to claims that a worker has been 'Sent to Coventry' and subjected to social workplace bullying, it is important to approach the ensuing workplace investigation with care. 

WISE Workplace is happy to assist you with any queries you might have regarding the right way to investigate any alleged workplace bullying incident. We offer unbiased, professional investigation services, carried out by a qualified and experienced team.

Grooming, or an Error in Judgment?

Vince Scopelliti - Wednesday, October 18, 2017

No employer likes to think that one of their staff members might deal inappropriately with a client, or even could possibly commit a criminal act. But all employers need to be aware of the potential for professional boundaries to be crossed in these ways. This is particularly important for organisations that work directly with vulnerable members of society, including children, the elderly, and the disabled 

We take a look at when certain behaviours might be deemed to be significant errors of judgment, or in the worst-case scenario, grooming.

The definitions 

In NSW, the Child Protection (Working with Children) Act 2012 sets out the requirements for people who work with children. It defines misconduct involving children to include the action of 'grooming'. 

Similarly, Section 25A (1) of the Ombudsman Act 1974 (NSW) considers 'reportable conduct' to include: 

  • Any sexual offence or misconduct committed against, with or in the presence of a child, including child pornography. Grooming, sexually explicit comments and other overtly sexual behaviour, as well as crossing professional boundaries are included in the definition of sexual misconduct. 
  • Any assault, ill-treatment or neglect of a child.
  • Any behaviour, which causes psychological harm to a child, even if the child agreed to that behaviour. 

In NSW, the offence of grooming is set out in Section 66EB of the Crimes Act 1900. It is defined as behaviour by an adult who exposes a child to indecent material or provides a child with an intoxicating substance with the intention of making it easier to procure the child for unlawful sexual activity. 

A child is defined as being under the age of 16, however the maximum penalty for the offence of grooming is higher (up to 12 years), if the child is under 14. This is very similar to the definition contained in the Commonwealth Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010

By contrast, in Victoria the Crimes Amendment (Grooming) Act 2014 defines grooming as 'predatory conduct' engaged in to prepare a child for participation in sexual activity at a later time. What is relevant in Victoria is the intention in the interaction. 

For example, even if nothing sexual is ever explicitly discussed or implied, shown or raised, the conduct can still be considered 'grooming' if the person befriends a child or their parent with the intended, hidden purpose of later pursuing sexual activity. 

grooming children - examples of common behaviours

Specific instances of grooming are likely to differ depending on the circumstances, but examples could include:

  • Creating a belief in a child or group of children that they are in a special relationship with the 'groomer', whether by participating in particularly adult conversation or providing 'special' gifts or activities. 
  • Permitting testing of boundaries, such as engaging in adult or inappropriate behaviours, including jokes, sexual displays or nudity in front of a child. 
  • Establishing an inappropriate relationship outside of work, including inappropriate or excessive text, email or social media contact, or developing unnecessary and close friendships with family members. 
  • Targeting children who are particularly vulnerable due to disability, history of trauma or previous emotional, physical or sexual abuse.  

a case in point

A recent decision of the Victorian County Court highlights some of the difficulties in determining whether behaviour constitutes grooming, or simply a person creating a bond because they want to help out a vulnerable child. 

In this case, reported by The Age, a troubled student was mentored by a teacher in his mid-20's There was never any sexual contact between them, but the teacher provided numerous gifts and engaged in regular excursions with the pre-teen boy, eventually turning into 'sleepovers'.

The accounts of the boy suggest that the sleepovers included physical contact and sexual discussion, which was completely denied by the teacher. Although the teacher was ultimately acquitted of charges, his life and livelihood were destroyed.  


Another, less well-known example of grooming involves a specific type of behaviour, by carers or medical staff, towards elderly patients. These actions are designed to foster unnaturally close relationships between the caregiver and the client, with the intention of obtaining financial gain. This could occur through:

  • Traditional theft, such as taking money or items from a client's room.
  • Misusing financial information, such as PIN numbers or cheque books, to take out unauthorised funds. 
  • In extreme cases, procuring powers of attorney, or ensuring inclusion into wills in order to obtain a significant portion or the entirety of a financial estate. 


A finding that behaviour constitutes grooming, as opposed to a simple error of judgment, is likely to depend on the intention and the degree of the wrongdoing. Circumstances, which could contribute towards a finding of grooming include:

  • Whether an action is a 'once off' or a repeated pattern. For example, one ill-considered movie outing between a teacher and a student, or a series of meetings outside school hours. 
  • Whether there is any ulterior motive, particularly a sexual one, or if a decision was simply made rashly.
  • Whether the person in a position of authority intentionally pursued or sought out a relationship with the vulnerable person. 
  • Whether there may be a reasonable alternative explanation for the behaviour.
  • Whether there was a request/coercion for the vulnerable person to keep any aspect of the relationship secret.
  • Whether there was repeated conduct despite previous warnings from supervisors/managers. 

why codes of conduct are important

If your organisation works with vulnerable persons such as children, specific Codes of Conduct, which set out the professional boundaries expected between staff and clients, and the consequences for any breach of these, can be very useful. 

If you require assistance drafting a Code of Conduct, which meets all of your organisation's needs, or have received a complaint that professional boundaries may have been crossed in your workplace and need to undertake a workplace investigation, contact WISE Workplace. We offer full or supported investigation services and can also assist with investigation training, awareness training.

Professional Distance and Social Media

Vince Scopelliti - Wednesday, October 11, 2017

Maintaining professional distance in the workplace can be challenging at the best of times. There is a very fine line between managing interpersonal relationships, ensuring that colleagues and co-workers get along with each other, and developing such close relationships that potential conflicts of interest or social problems arise. 

This juggle has become even more difficult with the advent of social media, which can blur that fine line, and complicate relationships in a whole new range of ways.

Types of social media platforms   

Social media has evolved from the early networks, like MySpace or MSN to a whole range of different platforms. There are now professional networking sites, such as LinkedIn, image-sharing sites such as Instagram or Snapchat (where images self-destruct after a certain time) and platforms such as Facebook, Twitter, Google and Whatsapp etc. for social interaction. 

positive use of social media in the workplace

As with any other tool, there are some positive uses for social media in the workplace. Professional networking sites such as LinkedIn, can be a helpful way to connect with likeminded professionals, or introduce co-workers to other people whose interests may be professionally aligned. 

Twitter, LinkedIn or Facebook allow businesses to share news or promote themselves, or permit staff members in different geographical locations to stay in touch. Indeed, many large companies use personalised social media tools such as Yammer to enable staff throughout the organisation to communicate internally. 

when is social media use inappropriate?

Unfortunately, social media can also be misused in the workplace context. In many situations, it is not colleagues being 'friends' on social media that is the main issue, but rather the dissemination of too much information, inappropriate content or the sharing of information with an inappropriate audience. 

It is easy to over-share on social media, forget who the information is potentially accessible to, and the fact that it is often permanent once it is shared. 

Types of inappropriate social media use may include:

  • Posting negative or offensive comments about co-workers, employers, or the workplace (especially if the person posting the comments does not consider who their contacts and potential readers include)
  • Sharing excessively personal information, either about themselves, or other people, which removes professionalism or an ability to maintain a professional distance from co-workers. 
  • Posting comments which could potentially negatively affect the reputation of the employer or co-workers
  • Sharing confidential information concerning clients, co-workers and pending or current contracts/agreements
  • Creating circumstances whereby colleagues may start to dislike each other. For example, it is likely to be completely irrelevant to a working relationship whether a colleague supports the current Prime Minister, or has a particular religious affiliation, but sharing polarising views on social media could cause work relationships to fracture. 

Walking the line

The most significant misuse of social media in the workplace arises from the potential for the professional lines to be blurred - including where inappropriately close, possibly sexual or romantic relationships form. This is especially important in situations where there is a power imbalance - for example, between a manager and a staff member, a teacher and a student, or a treating doctor or psychologist and their patient. 

In these circumstances, it is likely best to avoid a social media 'friendship' completely, in order to ensure that the appropriate professional distance is maintained.

why workplaces need social media guidelines

Employers should have clear policies in place which set out the rules and obligations for employees interacting with colleagues or mentioning the workplace on social media, and the consequences for a breach of the policy. 

A coherent and well-communicated policy can prevent or limit the fallout from many of the issues associated with a failure to maintain professional distance. 

If you are seeking advice on implementing a social media policy, or you require a workplace investigation into a potential conflict of interest or inappropriate relationship or misuse of social media, we can help. WISE Workplace offers both full and supported investigations. You can also find out more about the issues involved in maintaining professional distance here.  

Codes of Conduct and Different Professions

Vince Scopelliti - Wednesday, October 04, 2017

A Code of Conduct sets out the 'golden rules' or guidelines in which employers and industry bodies codify acceptable standards of behaviour in the workplace. 

Individual businesses can develop their own Codes of Conduct applicable to their specific interests. Many professional bodies also implement standardised Codes of Conduct covering behaviour which is perceived as being a particular risk within that type of industry. 

Why is a code of conduct important?   

A Code of Conduct provides employees with clear parameters for what is appropriate and inappropriate at work. 

The precise content of a Code of Conduct depends on the nature of the industry or business to which it applies. For example, the legal industry imposes strict requirements on confidentiality and integrity, which may be unnecessary in other industries. 

One important aspect of a Code of Conduct is ensuring specific guidelines are in place regarding professional distance and potential conflicts of interest that may arise, whether actual or perceived. 

Acceptable behaviour under these guidelines is likely to differ significantly depending on what is appropriate within a certain profession. For example, while a general practitioner or a physical therapist needs to have physical contact with their clients and patients in order to perform their duties, there is a completely different expectation on teachers, where specific types of physical contact can be inappropriate, in breach of the Code of Conduct or can even constitute reportable conduct. 

The Code of Conduct should also address complaints handling and the specific disciplinary response for conflicts of interest and other breaches of the Code.

dealing with vulnerable persons and a 'special class' of clients

In addition to avoiding the more obviously inappropriate behaviours such as perceived sexual or excessive physical contact, professional Codes of Conduct have regard to the type of clients or customers their adherents are likely to encounter. 

In the spheres of nursing, teaching, social work and psychology, practitioners will almost inevitably deal with vulnerable people. Indeed, the nature of the work and the clients' vulnerabilities may mean that they form inappropriate attachments or relationships with professional staff. Guidelines for dealing with these types of situations, including appropriate reporting requirements and the potential for independent observers to be used, are necessary parts of the Code of Conduct for these professions. 

In a similar vein, aged care, legal or financial service providers must ensure that there cannot be any misconception of inappropriate behaviour constituting potential financial abuse or conflict of interest, such as putting undue and improper pressure on a client to make a financial bequest or confer a financial advantage.

Abuse of power

Explicit Codes of Conduct governing conflicts of interest and biased behaviour are vital in professions that are open to abuse of power. For example, there is considerable potential for corruption, fraud and conflicts of interest to arise in the case of staff employed in Local Government or in procurement, public servants and police officers. 

a case in point

David Luke Cottrell and NSW Police [2017] NSWIRComm1030 is a recent example of a breach of a Code of Conduct by a police officer, which ultimately resulted in his dismissal. Constable Cottrell was dismissed from his position after he received payments for tipping off a local tow truck driver about the location of motor vehicle accidents. In essence, Constable Cottrell was passing on confidential information and in doing so, directly created a conflict of interest for himself, and also provided an unfair commercial advantage to the tow truck operator. 

Given that by the very nature of their work, police officers ought to be paragons of moral behaviour, this arrangement clearly breached appropriate professional ethics. This was notwithstanding the police officer's argument in response to his dismissal that he was trying to be 'effective' by clearing accident sites and did not realise that the leaked information was controversial. 

Ultimately, it was held that he had breached the appropriate Code of Conduct by failing to meet the expected high standards of behaviour of a police officer, and did not appreciate the gravity of his misconduct, failed to protect the confidentiality of information and did not carry out his duties impartially.

Determining whether a breach has occurred

Conflicts of interest and inappropriate behaviour can occur inadvertently, and are not always a result of intentional wrongdoing. For this reason, it's important that Codes of Conduct are effectively communicated to staff, and that the penalties for breaches of the code are clearly defined. 

If you suspect that one of your employees may have breached an applicable Code of Conduct, it will become necessary for you to conduct a workplace investigation. WISE Workplace can provide full or supported investigation services to assist you in determining whether any breaches have occurred. 

To find out more about professional distance and conflicts of interest, check out our series on this topic.