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Friday Workplace Briefing

Safety Law and Sexual Harassment – The New Frontier

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang will be discussing the new frontiers of safety law and sexual harassment in the workplace as regulators flex their muscles on psychological hazards.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: This is the case we sort of forewarned during the week, about which is the sexual harassment and misconduct case by a director and another employee, where the business was fined, I think, 240, 250?

Nina Noang: So, yeah there’s two businesses. He owned both of them. They were both cafes in hospitals, and they had been sexually harassed. About six employees, teenage employees discussing stuff. They were fined 250,000 together. And he was fined, I think 40,000 personally.

Andrew Douglas: 40,000, and the other employee took a good behaviour bond.

Nina Hoang: Yeah, so he wasn’t convicted.

Andrew Douglas: He wasn’t convicted. So why are we talking about a case? Let’s talk about it, because this is the first psychological hazard prosecution in Victoria.

Nina Hoang: Yes.

Andrew Douglas: That’s gone to conclusion.

Nina Hoang: That is, well no, the court service Victoria one, was. But this is our first ever safety prosecution of sexual harassment across Australia.

Andrew Douglas: Yeah, okay.

Nina Hoang: So it is a big deal, ’cause it’s the first time we’ve seen WorkSafe acknowledge that sexual harassment, yes, is an employment issue, but it’s also a safety issue. And it means that they’re not providing safe workplace. So we’re seeing the convergence, I guess, between the two.

Andrew Douglas: And the part for me that’s important in this and like the court services, what we’re seeing is the thin end of the wedge.

Nina Hoang: Yeah.

Andrew Douglas: So we’re seeing relatively low fines, given the nature of the conduct.

Nina Hoang: Yeah, they only charge under section 26.

Andrew Douglas: Yeah, which is the management control section for the officer. But my point about this is, it is the thin end of the wedge, both from the way the court observed it and the way the regulator sold it as a complaint. But within three years’ time, we are going to see officers who weren’t operational participants in the wrongdoing, but were officers for the purpose of section 144. And more broadly for reckless endangerment and industrial manslaughter. Being held liable for work they knew was a risk and did nothing about, but weren’t operationally involved in it.

Nina Hoang: Yeah.

Andrew Douglas: So that’s that part. And the courts, they’re going, yeah, I don’t see quite that seriously yet.

Nina Hoang: Yeah.

Andrew Douglas: But that’s the way it always starts. It starts at the very bottom and gradually grows.

Nina Hoang: They become more comfortable. And I think had this case come in a couple years’ time, I have no doubt they would’ve been charged with reckless endangerment, and would’ve won on that basis.

Andrew Douglas: Yeah.

Nina Hoang: ‘Cause the behaviour had been going on since 2014.

Andrew Douglas: And it involved more than one person. And it was known to be wrong.

Nina Hoang: And they were young victims, who they found that although there was a policy, there was no way for them to make a complaint. They had no idea how to. So there was no controls, really at all. So it definitely meets all of the elements.

Andrew Douglas: And if we look at reckless endangerment, is the conduct of the officer in this case likely to cause serious injury? Yes.

Nina Hoang: Yeah.

Andrew Douglas: Was he indifferent to why he kept doing it?

Nina Hoang: Yeah. And how they found out, because complaints were made to WorkSafe, so he was aware that they were not comfortable with this behaviour.

Andrew Douglas: Yeah.

Nina Hoang: So it’s just terrible. But I think what we all need to be aware of, is it doesn’t just end there, right. The employees have actions under employment law too. And if there’s a finding, which in this case, it is against both the director, and the employee. That they have engaged in sexual harassment. There’s nothing to stop the employees from pursuing them under the new Secure Jobs and Respect at Work legislation.

Andrew Douglas: Yeah, well they always had arguments under discrimination law. They always had general protections. I guess the part that Nina’s really focusing on is, look, they might have only…

Nina Hoang: It’s a guaranteed win.

Andrew Douglas: Yeah, it’s a guaranteed win, because the standard proof is higher in a criminal matter.

Nina Hoang: Yeah.

Andrew Douglas: So it definitely would be an accepted fact for the purpose of a civil claim. But in the civil claim, the court’s well advanced on the damages part of it. So the damages here, for these individuals, would be in the hundreds of thousands of dollars.

Nina Hoang: Yeah, because what is it you always say, about what are the range damages from non-touch and touch sexuality? It’s significant now.

Andrew Douglas: Yeah, and look, the other part that’s really interesting about all of this is, these are not deniable facts.

Nina Hoang: No.

Andrew Douglas: So these are facts which could not be contested in the civil claim, because they have been proved in a criminal claim.

Nina Hoang: Yeah. Beyond reasonable doubt.

Andrew Douglas: Yeah, so…

Nina Hoang: He should watch out for some very costly damages claims.

Andrew Douglas: So all the plaintiff lawyers out there, you should be chasing some names down the report.

Nina Hoang: Yeah.

Andrew Douglas: Alright, well that’s brought us up to our case study.

Nina Hoang: Yeah.

So Jean worked for Toy Town Pty Ltd (TT) as a sales assistant. She was a 62 year old grandmother who worked with much younger women. Jean loved children, played with the kids who came into the Doncaster store and was well regarded by management. She was a devout Catholic, and her views on sexuality were well known. She made no secret of them. The younger girls thought she was a prude and deliberately told stories of their weekend antics loud enough for her to hear, to tease her. She knew what they were up to, and smiled.

Her supervisor learned of Jean’s views and the girls’ teasing, he told them to stop. They thought Jean had dobbed on them. Over the next few weeks, they iced her.
As with all young kids, they started to believe their own narrative, and became rude and terse with her. Jean went to her supervisor to ask for help. He explained that her Catholic views offended them and she should keep them to herself. He told her it was totally inappropriate for her to be judging the kids she worked with. Jean approached Kelly, a coworker, and asked her why everyone was so angry with her.

The coworker, Kelly said because she complained about them. Jean said she never complained. And Kelly asked why did the supervisor tell them off? Jean said she was also told off her views and didn’t know why. Over the next few weeks, some of the girls views thawed, but two girls escalated their rudeness. The supervisor, Karl observed it several times and eventually gave them a warning. Jean applied for a stop bullying order. A bullying stop order.

Andrew Douglas: My early mornings aren’t always the best, before coffee. And they’re not that good after three, as you can just learn. So one, if Jean developed a psychological disorder from the bullying behaviour, would she have a successful workers’ comp claim?

Nina Hoang: Yeah, I think so. It arose out of the course of her employment.

Andrew Douglas: Yeah, yeah. Look, I don’t think there’s any doubt. Interesting, Karl’s behaviour in this process, offended. She’d also have a number of other claims.

Nina Hoang: Yeah, and it’s about her perception, as well.

Andrew Douglas: That’s right.

Nina Hoang: That’s the key for workers’ comp.

Andrew Douglas: Two, would the stop order be granted? And if so, what relief would the commissioner order? Now this, you can see why I’ve put this in, can’t you? Because they’ve already been told off and they’re still doing it. They’re not listening to hearing the truth. They’re not interested in the truth. And Karl’s behaviour, of not backing her and supporting her in an appropriate way, should give a commissioner no comfort that she’s going to be protected by any further disciplinary action.

Nina Hoang: Yeah, I think they’ve not put in, really any controls to protect her at all. So they’d have to make some order to change something.

Andrew Douglas: Yeah, and so let’s come to that order. But it’s, I guess, you know, Nina and I discussed this earlier in the week. What are we trying to do with this particular case? And why this benign sort of case that came through should have such importance? I think it’s ’cause it highlights how people don’t understand the impact of psychological hazards.

Nina Hoang: Oh yeah.

Andrew Douglas: And as I said, it’s like working from heights. It’s like confined space. It’s the same…

Nina Hoang: It’s high risk.

Andrew Douglas: Yeah, it’s high risk. And once someone’s wounded and damaged by it, they are unnecessarily sensitised to what evoked that response. So to leave that person, even if that person is behaving well, doesn’t change the responsiveness. And the reasonable responsiveness, because of how a person could perceive it. Therefore any order would need to exclude that person from the work that they do. Now, one of the problems with the stop bullying orders and also the stop sexual harassment orders, is you’re inviting someone to come into your work and put up barriers, and change rules, which could be completely unworkable in your workplace.

Nina Hoang: Yeah.

Andrew Douglas: But it is the only way they can stop it. And they have unfettered power to make those orders.

Nina Hoang: Yeah, except the only thing they can’t make, is order monetary compensation. But they can do anything else.

Andrew Douglas: So in this case, we’ve got a very strong argument that says, yeah, Jean could get a stop order that prevents them from being within a 50 metre radius, you know, 20 metre radius, and in any way interacting or being involved in the work she undertakes. Probably totally unworkable for the organisation.

Nina Hoang: Yeah, because how would she work with any of the employees then?

Andrew Douglas: Yeah, and the difficulty then comes, is how much money you’ve got to give Jean to go. And then you’ve also got adverse action if you didn’t start that discussion. So I just want to chuck it out there, because I thought it was sort of, an interesting process.

The next question question is, was it lawful for Jean to speak openly about her Christian beliefs, which were critical of the younger girls’ sexual behaviour?

Nina Hoang: Oh, this is an interesting one. Because you are entitled to talk about your religious beliefs, but you can’t do it in a way that would discriminate against someone else.

Andrew Douglas: Yeah, but how does speaking about it discriminate?

Nina Hoang: Well, I think it depends on the nature of it. Like, if she said to someone, you can’t do that, you’re going to go to hell, and stuff like that. I think that would not be permitted.

Andrew Douglas: Oh, but why only, if she was standing on the door to hell, I mean, you know.

Nina Hoang: No, like if she started using language to attack them.

Andrew Douglas: Yes.

Nina Hoang: Because of her beliefs, then that wouldn’t be permitted. But if she’s just talking generally, then I don’t think it’s unlawful.

Andrew Douglas: So…

Nina Hoang: It’d be weird, but it’s not unlawful.

Andrew Douglas: So free speech, although not being an expressed constitutional right, is an implied right. That people are allowed to speak and speak openly about their views. Unless those views attach to a particular attribute. Okay, and then it becomes, it can be discriminatory. So the fact that her views are Christian, means that…

Nina Hoang: Catholic. Oh wait, you changed it.

Andrew Douglas: Yeah, no, Catholic. The fact that her views, Catholicism’s a form of Christianity. It’s only when she speaks, that it goes to the attribute of the person, not her attribute as a Christian. So it’s their attribute.

Nina Hoang: Yeah.

Andrew Douglas: So what’s their attribute? Well, their attribute is they are women, they’re entitled to control their own sexuality. If it’s being critical of them being women behaving in a particular way, it attaches to an attribute.

Nina Hoang: Yeah, but it has to be, surely, like a bit more linked. It can’t just be like a general.

Andrew Douglas: That’s exactly right.

Nina Hoang: Yeah.

Andrew Douglas: And that’s why I’m saying to you, it is interesting. We do hear people commonly talk about particular belief systems they have.

Nina Hoang: Yeah.

Andrew Douglas: I just want you, it’s all right to do that. It’s not advised. And sometimes, in your values and policies you can say, look, there’s certain types of discussions.

Nina Hoang: Yeah.

Andrew Douglas: Like hateful discussion things.

Nina Hoang: Yeah.

Andrew Douglas: Which are not to be had.

Nina Hoang: Nothing that veers into it being unsafe.

Andrew Douglas: Yeah.

Nina Hoang: Like I think we’ve had cases where someone was expressing religious beliefs. But it veered into hate speech, and things like that, which obviously is a serious misconduct.

Andrew Douglas: Yeah, and so that’s why I’ve got it here. I guess I don’t want people walking out of this and saying, oh geez, someone can’t express their religious beliefs, they can. I don’t want them to say they can’t express their political belief, they can. I think both of them are relatively unwise in a workplace, but it’s something which people are entitled to do. It’s when their behaviour attaches to a protected attribute of someone, or undermines the safety of someone.

Nina Hoang: Yeah.

Andrew Douglas: Or both, that it becomes unlawful behaviour, okay. And as Nina’s raised already, always go first to safety. And the obligation to provide a psychologically safe workplace. If what I do, says something to Nina, which makes her feel uncomfortable and unsafe. I’m offending safety law, not necessarily discrimination. Don’t make it harder than it has to be.

Nina Hoang: Yeah.

Andrew Douglas: I’m just going to go straight to safe law.

Okay, does Jean have a discrimination and/or general protections claim, after being treated adversely for her religious beliefs?

Nina Hoang: Yeah, by Karl.

Andrew Douglas: Yeah, she does.

Nina Hoang: He told her not to talk about it.

Andrew Douglas: Yeah, and failed to intervene.

Nina Hoang: Yeah, and actually the others are treating her badly and he’s not stopping it. So not providing her with a safe workplace either.

Andrew Douglas: Yeah, so really good. I think it’s a nice discreet claim that the far right in politics, would jump all over. I think Tony Abbott would love that, Catholic being persecuted. He’d be excited, along with, there is no climate change. No, sorry. Okay, so number five. Was there a safety breach by Karl?

Nina Hoang: TT…

Andrew Douglas: TT, and other employees, my voice is going.

Nina Hoang: If so, who? And what would be charged, if Jean does as a result of bullying, would that change anything? Yeah, look, definitely there’s been breaches. There’s clear psychological hazards. There’s also bullying behaviour. And they’re treating her differently as well.

Andrew Douglas: So let’s just go back, standard of care. So was there hazards? Yes, there was psychological hazards, unquestionably. Some was bullying, some was unfair treatment. Differential justice.

Nina Hoang: Yeah, differential treatment. Lack of support as well.

Andrew Douglas: Yep.

Nina Hoang: And that was by Karl and TT.

Andrew Douglas: What was the level of risk though? Just staying the standard of care. So reasonable practicability, what was the level of risk?

Nina Hoang: I think, high. Yeah, because of the psychological hazards.

Andrew Douglas: What were the controls that were done? There was some disagreeing.

Nina Hoang: Oh yeah, he spoke to people. But then told her off, for the same thing.

Andrew Douglas: So what we’ve got, is everything that’s reasonably practical, wasn’t done. And then in relation to her, was there a safe work environment? No, it wasn’t for her. Was there any introduction training? We don’t know about that. Was there adequate supervision? No, we know there wasn’t. Was there appropriate systems in place? We don’t know that, but what we know is if there were, they weren’t honoured.

Nina Hoang: Yeah, they weren’t complying with anything.

Andrew Douglas: So you’ve got at least three breaches of basic duties. And management control breaches, by Karl himself.

Nina Hoang: Yeah.

Andrew Douglas: So then you just go up the range, a little bit. And you go, well, was there a risk of serious injury?

Nina Hoang: Yes.

Andrew Douglas: I think there was starting, it would’ve put anybody on notice, when she comes forward and says, this is distressing me, that there’s risk of serious injury. Was Karl indifferent to it?

Nina Hoang: Yes.

Andrew Douglas: If Karl’s indifferent to it, because he is the voice and the heart of the organisation, of the purpose of safety law. TT is liable.

Nina Hoang: Yeah, he definitely was, not only did he blame her for how she was feeling, he didn’t do anything further to stop it.

Andrew Douglas: Yeah, now what about the employees? I got to tell you, no prosecutor would go after those young kids. It’d be very unlikely to go after them. Though, it did once, in the earlier, what was it, the V Cafe case. For where there was bullying, a kid ended up committing suicides.

Nina Hoang: Oh, that’s Brodie’s law, that one.

Andrew Douglas: No, it wasn’t, but there was a cafe case, Cafe V. Anyway, so they may, depending on how bad it was, go after them, but be a primary duty breach.

Nina Hoang: It’ll be under section 25.

Andrew Douglas: Yeah, so there you go, I think,

Nina Hoang: And if Jean dies, industrial manslaughter may be considered.

Andrew Douglas: Yeah, yeah I mean if you get reckless endangerment, you can always get industrial manslaughter as the truth. Because once you show there’s a duty breach and it should have been something that was stopped. And certainly should have been stopped by Karl. The issue is, what was the officer knowledge. And if the officer had knowledge, and was there, then you’ve got industrial manslaughter.

Nina Hoang: Yeah.

Andrew Douglas: Alright, well that’s it for this week.

Nina Hoang: Yeah.

Andrew Douglas: And I’m sorry I stuffed up. I’ll only have one coffee before the next one, I promise.

Nina Hoang: Andrew, it’s fine. Alright, thanks for joining us, give us a thumbs up.

Andrew Douglas: See you later, bye bye.

Nina Hoang: Bye.

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