With the recent publicity surrounding the allegations of bullying and sexual harassment against Don Burke and Harvey Weinstein, it is timely for a quick refresher on what you as a business owner needs to do to reduce the risk of similar matters against your business.
In Australia, Sexual Harassment is covered by the Sex Discrimination Act 1984, and workplace bullying by the Fair Work Act, as well as many state anti-discrimination laws, workplace health and safety laws, privacy laws and defamation laws.
As an employer, you are required to prevent bullying, harassment and discrimination from occurring in your workplace. You are also required to treat all allegations and complaints seriously, and ensure that any person who lodges a complaint is not victimised.
You need to remember that you personally can be held vicariously liable for the actions of members of your team or management. Not being aware of the harassment or bullying is not an excuse under law.
What is sexual harassment?
Sexual harassment is any form of unwelcome sexual attention. It has nothing to do with mutual attraction or friendship between people, which is normal and positive. Sexual harassment involves humiliation or offence to the victim. It’s not fun, flattering or flirting. Sexual harassment can happen to anyone, and it’s against the law wherever and whenever it occurs.
Sexual harassment could be:
- unwelcome physical touching, hugging, massaging or kissing,
- sexual or suggestive comments, jokes, taunts or name calling,
- unwelcome requests for sex,
- insinuations about a person’s private or sex life, or sexual preference,
- offensive gestures or staring,
- sending SMS messages or emails,
- unwelcome or uncalled-for remarks or insinuations about a person’s appearance,
- posting of inappropriate comments, pictures, video’s or blogs on websites, or
- the display or circulating of clearly sexual material (such as photos, pin-ups, screensavers or pictures) or reading matter (such as emails, faxes, social media links or letters).
Sexual harassment doesn’t have to be repeated or ongoing to be against the law. Some actions or remarks are so offensive that they’re clearly sexual harassment, even if they’re not repeated. Other incidents, such as an unwanted invitation or compliment, are probably not harassment if they are “one-offs”.
The harassment doesn’t have to be deliberate. It can also occur in cases where a reasonable person would have expected that the behaviour was going to be offensive.
Some sexual harassment matters, such as sexual assault, indecent exposure and stalking are also criminal offences.
What is workplace bullying?
Bullying occurs when:
- a person or group of people repeatedly behaves unreasonably towards a team member or a group of team members at work, and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action taken in a reasonable way.
Examples of bullying include:
- aggressive or intimidating conduct,
- belittling or humiliating comments,
- spreading malicious rumours,
- teasing, practical jokes or ‘initiation ceremonies’,
- exclusion from work-related events,
- unreasonable work expectations, including too much or too little work, or work below or beyond a team member’s skill level,
- displaying offensive material, or
- pressure to behave in an inappropriate manner.
Why is bullying and harassment a problem?
Bullying or harassment have detrimental effects on people and your company. It can create an unsafe working environment, result in a loss of trained and talented team members, the breakdown of teams and individual relationships, and reduced efficiency. People who are bullied or harassed can become distressed, anxious, withdrawn, depressed, and can lose self-esteem and self-confidence.
What actions can individuals take?
Bullying and sexual harassment actions in the workplace can escalate to matters before the Fair Work Commission, the Australian Human Rights Commission as well as to civil and criminal courts.
What do you need to do to reduce your risk?
Every business needs a clear sexual harassment and workplace bullying strategy. It is not something you can do once and think you are in the clear. It is an ongoing process that requires regular revisiting to ensure that all employees and managers are aware of their responsibilities.
An effective anti-bullying/harassment strategy has a number of components
A clear prevention policy and Code of Conduct
Your company needs a clearly defined policy that outlines what is acceptable and unacceptable behaviour, and what the consequences are for any breaches. (Our HR Manual package has a thorough Harassment and Workplace Bullying Policy and Code of Conduct).
All team members need to be trained on an annual basis on your company’s policy relating to sexual harassment and workplace bullying. I recommend this training occur annually before any company Christmas parties (especially if alcohol will be available).
A robust complaint process
You need to create a process that allows people who with allegations of bullying and harassment to report them. Your process needs to include how these allegations will be investigated, how people will be supported and the consequences of breaches.
If you discover that there have been instances of bullying or sexual harassment in your workplace, you are obliged to act to ensure that the perpetrator is suitably punished the victim supported and protected and that you act to address your workplace culture that allowed this to happen.
A review process
Management or executive teams need to lock in regular reviews of the training, policy and complaints processes. Remember, that zero complaints do not mean that harassment or bullying is not happening. People may not trust your complaint management process so that the issue may be underground.