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Workplace in-Detail: Bullying, harassment and discrimination series

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Bullying, harassment and discrimination series

Each week through September, we will publish another section of this Workplace in-Depth series.

Don’t forget to check back in next week for Part 5.

September 2020 by Andrew Douglas


Part One: An introduction

The below definitions have been simplified for ease of use.

  • Bullying means repetitive acts that are unreasonable (hurt, humiliate or intimidate) and affects the employees’ safety at work (see s. 789FB FWA)
  • Discrimination means to treat someone less favourably because of them having a protected attribute (for example, their age or gender – see Table 1 Protected Attributes, below). There are two types of discrimination, direct and indirect.
  • Harassment means usually repeated and unwelcome acts or remarks in respect of a protected attribute of discrimination that has the effect of offending, intimidating or humiliating a person.  The word harass includes the idea that it instils fear or infliction of damage. The most frequent type of harassment is sexual harassment.
  • Victimisation means a person treating a person adversely because they alleged, brought a complaint or in any way complained about you harassing or discriminating against them.

Protected Attributes

A summary of protected attributes, listed by state.

Impact of other law

Bullying, harassment and discrimination which causes psychological injury will always be an accepted claim in workers’ compensation and be prosecutable under safety legislation (see the discussion below about the New NSW Code). It will also give rise to claims of adverse action which would be difficult to defend. The only defence for  an organisation under safety, FWA and discrimination legislation is severing vicarious liability as you can demonstrate the behaviour was unknown (and couldn’t be known) to the organisation, breached its rules and everyone was competent in the rules (no defence in workers’ compensation). Then the wrongdoer will be liable not the organisation.

Psychological illness (stress claims)

There are three defences:

  1. It is not a psychological illness as defined
  2. Work was not the cause
  3. Reasonable management action

Reasonable Management Action is the employer action taken in managing the employee is reasonable to take and undertaken in a fair and reasonable manner.


Part Two: Working from home

The evidence indicates that employees are working harder at home than at work, have no separation between home and work and are increasingly suffering mental health issues. Email communication is two dimensional and hard to read the writers intent-it is frequently informal, blunt and directive. Workflow is not managed.

Interestingly, the major cause of mental health issues at work, according to contemporary research is poor work management design. Something that could be cured by simply asking people what the impediments to productivity are? At home it could include extraneous matters like family, poor workspace and ergonomics, carers responsibility, feeling isolated and not cared about. But mostly it is about the failure in how work is organisationally and environmentally designed.

Change is happening randomly, quickly and without a clear understanding of how that impacts our human employees. How we do business is not matched by the leader’s capacity to motivate people to embrace change and the business lacks the investment to align change, skills and health. Both safety and the capacity to do the work quickly falls behind change.

The failures in managing working from home are often small but repeated. Late night requests for urgent work, dumping loads of work with little notice or support, leaving people off zoom calls. Emails that are abrupt, unhelpful and copied into others apparently criticising the person. This has all the elements of bullying irrespective of the intent. Ignoring carers responsibilities is also adverse action and discrimination. All of it breaches safety obligations and would ensure any psychological claim under workers’ compensation was accepted.

The answers:

  1. Design how the work will be done through consultation
  2. Do the two risk assessments. One environment and personal circumstances
  3. Use visual methods of communicating (not too much email and messaging) and check (monitor health) health regularly in a deliberate way
  4. Be kind and generous
  5. Create clear and doable work expectations and work within work hours-no late-night emails
  6. Manage performance daily
  7. Address protected attributes and ensure when work they work, when they care they don’t work

Part Three: Long term injured and stress claim

Long term injured employees are commonly carried by employers. They continue in their role and others pick up the slack.

At common law, where employees undertake less work over a prolonged period of time, it is not what their job description says that defines their role; it is their conduct over time (Cosma v Qantas).

A failure of supervisors to manage against the job description (JD), and keep JD’s up to date, means our workforce is filled with people who cannot do 100% and cannot be forced to undertake their JD. We simply add to head count and burn out our talent covering for them.

Safety Law requires us to provide a safe working environment and monitor health of employees. The test for both is doing everything that is reasonably practicable. That means initially identifying the hazard – not difficult in long term employees who have suffered wear and tear.

Once we know a person has an incapacity to do all of their job safely, we must get them assessed to determine the risk, institute controls to prevent further injury, and make their work safe. That is, safe to do their inherent requirements of their job (Boags V Button).

It is obvious to see the risks around condoning employees not doing their JD. The question is, ‘what are the inherent requirements of their job?’

We can direct them to undertake an assessment if they appear not fit to do all of the inherent requirements of their job (Grant v BHP) but only for that lawful purpose.

An unlawful purpose may be discriminating against a person because of a perception or guessed attribute or a characteristic of an attribute e.g. you think someone who is ‘sleepy looking’ is depressed and therefore don’t offer them overtime. An independent medical exam requires objective evidence of concerns around safety. Not impressions.


Part Four: Long term injured and stress claim

Sexual harassment is unwelcome sexual advances, requests for sexual favours and other verbal or physical conduct of sexual nature whether explicit or implicit. It is prohibited under both state and federal legislation. Federal legislation has a costs jurisdiction-loser pays legal fees of winner. However, where the behaviour of a person is obviously dishonest and damaging, they may have both costs and aggravated damages awarded against them in states like Victoria which are not a costs jurisdictions Collins v Smith (award was for 330k)

Since Oracle v Richardson, compensation under equal opportunity law acknowledges that community expectations expect parity to damages at common law for bullying. Since 2015 it is reasonable to expect an award of general damages for non-touch sexual harassment to be between 75-150k. Touch based sexual harassment can be higher than 250k for general damages, let alone medial costs and lost earning capacity. There is also a growing trend to award aggravated damages where the conduct of the respondent is dishonest, causes greater harm to the victim in the way they run their case or was predatory.

Importantly workers’ compensation regimes don’t fetter the capacity of tribunals to award compensation for sexual harassment.

Finally, sexual harassment is a breach of safety law, common law employer obligations to exercise reasonable care to prevent foreseeable injury, adverse action laws under the FWA and workers compensation law. The employer will be liable unless you can sever vicarious liability (which can’t be severed in workers’ compensation law). Severing employer liability can only happen where you:

  1. Have a competency based training program
  2. Have policy and procedure that is well known and understood
  3. There is no condonation of any form of sexual harassment within the organisation
  4. The wrongdoer was trained and competent in the policy and procedure, knew that it was not permitted, and despite that, still harasses.