Harassment in the Workplace
Given the David Jones case involving Mark McInnes and Fraser-Kirk, the headlines today and following recent discussions with a couple of reporters, I decided to write a couple of blogs to assist Front-Line Managers, Executives and Business Owners to avoid having their business and brand splashed across all the major media!
This case is interesting because it is actually being bought under the TPA instead of anti-discrimination laws (the traditional approach). If this case succeeds, it will put an end to companies having policies as lip service or not enforcing them effectively (which is often the case). Often managers and business owners lull themselves into thinking that because they have a policy they are ok, and this case clearly shows that it is not!
Can any employer be sued for $37m for this type of behaviour? You betcha! And of course, DJ's could be up for more as more people get on the claims list.
The bigger your perceived pockets the bigger the suit. Whilst it is a large amount, most business would struggle in the current economic environment to deal with a $1m case. AND that’s just the pay-out claim! Not to mention the fees for lawyers, investigators and Barristers. And that’s before we add the months of management/board time dealing with the issue, business and brand damage and the list goes on! Before long a SME size company could be damaged irreparably. SME’s are the most at risk with these situations as they often do not have access to highly quality, competent and experienced HR Professionals.
How can you prevent this from happening to your business?
Delighted you asked! Over the next three blogs I will help you understand what is required to implement a successful strategy. The key elements are:-
• Developing a clear policy that outlines appropriate behaviour in the workplace, that meets legal requirements and what is acceptable at your organisation
• Communication and Training is critical – Specifically understanding the law, responsibilities, rights and complaints procedures. Managers, including Senior Managers need to know what their obligations are, the organisations expectations and how to deal with complaints appropriately. More importantly Managers at all levels must understand their responsibilities in creating the right culture
• Implementing a clear process and a highly proactive, fast methodology for executing the process
• Monitoring and Evaluation the policy and organisational behaviour
• Ongoing effective Performance Management and Leadership
So let’s start with the key definitions and practical examples. Please be aware that each state has its own laws. However, in this blog I am giving examples of a top line approach to cover a business with operations around Australia. The content here is an overview and is not intended to form a full and appropriate policy. Please ensure you seek professional advice if you would like to implement an appropriate strategy.
What is Discrimination? There are two types of discrimination: -
Direct Discrimination: is any action that specifically excludes a person(s) from a benefit or opportunity (e.g. employment, promotion, training), or significantly reduces their chances of obtaining it, because of a characteristic, that is irrelevant in the circumstances and protected by law (e.g. race, colour, sex, pregnancy, disability). A practical example of this is not offering a role to a 55 year old because you have a young business. All recruitment decisions must be justified!
Indirect Discrimination: is where an unreasonable requirement or condition is placed on a role that is not obviously discriminatory, but if applied, has the affect of discriminating against a person or group of people, protected by law. A practical example here is a requirement to travel extensively. If the requirement is justifiable and occurs as part of the role, then there is no discrimination. However, if the employer purports this and it is not true, they may be held to be indirectly discriminating against women (as women are less likely to be able to meet the requirements).
What is held to be protected by law?
This is state based, but most have the following:- Age, Gender, Physical features, Disability (physical or intellectual), Marital status, Race, Religious or Political beliefs, Pregnancy, Parental or Carer status, Union membership or non-union membership and Sexual orientation.
What is Harassment?
Again there are various definitions, but this is the best - Harassment is any unwanted, unwelcome or uninvited behaviour that has the effect of making a person feel humiliated, intimidated or offended (this includes race, sex and disability). The significant thing to remember about harassment, is that it is not the intention of the perpetrator but how the behaviour affected the other person.
Some examples of harassment include, but are not limited to: abuse of one’s authority, uninvited physical contact, inappropriate jokes or comments, teasing or abuse, persistent questions or insinuations about a person’s private life, displays of offensive or graphic material.
What is Bullying?
Bullying is any behaviour that makes a person feel humiliated, intimidated or offended and could put that person, or someone else’s health, safety or welfare at risk.
Examples of bullying include, but are not limited to: Aggressive or threatening behaviour; Shouting or swearing at someone; Threatening to make, or actively making, someone’s work life difficult; Putting someone down in a nasty or derogatory way in front of others; Baiting or teasing; Nasty practical jokes; Sniggering or gossiping about someone behind their back, in a way that is obvious to them or will get back to them; inappropriate micromanagement, Ignoring or isolating someone.
What is incorporated in an effective policy?
• Clear and realistic statements about how the policy applies to all employees and fits with the corporate culture and nature of the business (ensure you appoint a custodian of the policy)
• Clear definitions of unacceptable behaviour
• Clear explanations of what is unlawful behaviour
• Clear examples of when the policy applies (e.g. at off-sites)
• Clearly explain employee's responsibilities under the law and any code of
conducts that are relevant (be specific to each level of employee)
• Clearly explain potential consequences of breaches of the policy
• Clearly explain employee rights
• Clearly explain expectations of managers and their responsibilities
• Clearly explain the complaints procedure – which should have an informal and
formal procedure. Make sure that each procedure is clearly explained and how
each work. Ensure there is a process for complaints against senior executive
(i.e. a board member or is responsible for investigations)
• Clearly explain the possible consequences of breach of the poicy
Until next time...
MY PERFORMANCE COACH - HR SERVICE
My Performance Coach specialises in assisting small to medium enterprises with their Human Resource and HR issues We ensure you have effective protection whilst ensuring we use pragmatic and straightforward processes. My Performance Coach provides strategic Human Resource service enabling businesses to build a strong, integrated HR strategy giving you a clear competitive advantage over their competitors. We also offer Coaching and training service for Executives/Managers to ensure your business is able to easily and proactively manage their human resources effectively!
http://www.dailytelegraph.com.au/news/six-more-harassment-claims-made-against-david-jones-ceo-mark-mcinnes/story-e6freuy9-1225911798590
http://www.theaustralian.com.au/business/former-david-jones-boss-mark-mcinnes-returns-to-fight-sexual-harassment-allegations/story-e6frg8zx-1225905425330
This article is intended to provide commentary and general information. It should not be relied upon as comprehensive or legal advice. Formal legal advice may be necessary in particular transactions or on matters of interest arising from this article. My Performance Coach is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.
No comments:
Post a Comment