10 October 2008

OPINION - Tackling a bullying complaint requires consistency: Harmers

It is best to treat bullying as part of a wider concern about inappropriate workplace behaviour by including it in a code of conduct or as part of an OHS policy, says Harmers managing partner Joydeep Hor.

"My message is be consistent," Hor told a told a Syd employment seminar on Aug 5. "A defence for employers under civil law is they took all reasonable steps to deal with the behaviour." Managing a bullying complaint needed to be "clinical, focused and at arm's length", he said.

Harmers senior assoc Bronwyn Maynard gave the example of a company that employed an HR consultant to investigate a sexual harassment complaint. The consultant, who was a friend of the MD, told the complainant she was "very attractive" and "we give the wrong impression with messages we send". A court found the company acted inappropriately in appointing an inexperienced person to investigate the complaint.

Maynard said companies needed to act promptly when faced with a bullying complaint. They should ascertain early in the piece whether the alleged perpetrator should be suspended during an investigation, or whether interim changes to the work environment were needed to separate the parties. She cited the case of Velagapudi v Symbion Pharmacy Services (formerly Faulding HealthCare), which was heard in the NSW Administrative Decisions Tribunal. The company was ordered to pay $10,000 for "inappropriate and unreasonable handling" of a complaint. The tribunal found the company "prolonged the worker's distress, humiliation and its adverse impact on her enjoyment of life and work".

Maynard said employers must inform a worker accused of bullying about the allegation, preferably in writing. "Particulars" of complaints should be provided and the accused workers were entitled to support people. They "must have a reasonable opportunity to respond to the outcome of the investigation before a final decision is made"," Maynard said.

Hor said a NSW Supreme Court decision that awarded a security guard $2m for a psychological condition brought on by repeated workplace bullying set a new benchmark (HRR#409). Hor said companies should do a "culture audit" to ascertain whether bullying standards were applied from the top down, or whether standards differed between managers and non-managers. If policies weren't inclusive, companies could be accused of paying lip-service to their bullying policy, he said. Attitudes to alcohol, banter, language and humour in the workplace needed to be covered, as well as what was acceptable in workplace email and internet forums, such as Facebook and MySpace. Employers should adopt an "eternal vigilance" approach as opposed to simply "ticking off the boxes", Hor said.

Other discussion points


Employers face positive EEO duty
Employers are likely to face new duties in EEO/discrimination jurisdictions, with action happening on at least four fronts and Vic facing the most change.

First, last week's Standing Cttee of Attorneys General (SCAG) told the Anti-Discrimination Law Harmonisation Working Group to identify "short, medium and longer term" harmonisation options. Non-legislative complaints procedural matters were to be top of list.

Second, Sex Discrimination Cmr Elizabeth Broderick has commissioned a national survey to track the extent of sexual harassment in Aust's workplaces.

It will form the basis of an educational strategy to attack work-based harassment and is one of the first steps on her "roadmap towards gender equality". Broderick recently declared "progress towards gender equality has stalled".

The Gender equality: what matters to Australian women and men, The Listening Tour Community Report details five key areas that need attention.

They include increasing the number of women in leadership roles; balancing paid work and family; driving down sexual harassment; reducing the gender gap in retirement savings; and strengthening the laws to tackle sex bias and promote gender equality.

Major changes to Vic EO laws
Third, the Vic Govt has foreshadowed major changes to the state Equal Opportunity Act, after a review found a list of "key failings".

Deputy Premier and Attorney-Gen Rob Hulls said the review, by ex-Public Advocate Julian Gardner, recommended creating a duty not to discriminate, even in the absence of a complaint, and to specifically require people to make reasonable adjustments for those with disabilities.

Hulls said other changes were needed to tackle systemic bias. He highlighted failings, such as the jurisdiction's reliance on individual complaints, the "limited powers" of the Vic Equal Opportunity and Human Rights Cmn (VEOHRC), and the legislation's "complex complaint-based processes".

Positive for 'all' organisations

At the same time, the Harnessing Diversityreport by the VEOHRC and the Vic Multicultural Cmn recommends creating a positive duty on all organisations. It recommends giving more powers to the VEOHRC to overcome continuing race bias.

VEOHRC CEO Helen Szoke said racial discrimination "is so systemic and entrenched that it can be difficult to identify and address".

The report recommended a raft of reforms, including enabling the cmn to run inquiries under its own motion, issue compliance notices, require action plans and seek orders through Vic Compensation and Administrative Tribunal.

TAUNTS - ‘Wog‘ taunts are bullying: AIRC
In a case that examines the difference between bullying and friendly banter, remarks such as "you Muslims are bomb-makers and trouble-makers", "camel fxxxer" and "wog" have been held to fall into the former category. The taunts breached Coles Group Supply Chain Pty Ltd's equal opportunity policy and code of conduct and could not be excused on the basis they were part of a culture of friendly banter, AIRC Cmr Helen Cargill said. "Regardless of these policies, the comments are not appropriate in any workplace culture," she said. "The remarks were insulting and disparaging on the grounds of race and religion."

Cmr Cargill upheld the sacking of storeman Poasa Fatialofa, who made the remarks. But she spared storeman Brian Brown, who allegedly once walked like a monkey and often laughed while derogatory remarks were being made. The laughing condoned the behaviour and "was in itself harassment", Cmr Cargill said. But the termination was harsh because it was disproportionate to the gravity of Brown's misconduct, she said.

Coles Group Supply Chain sacked the two storemen at its Eastern Creek Distribution Centre in western Syd after co-worker Zac Zuhair complained they were physically and mentally abusing him on the night shift. Zuhair alleged between Oct and Dec 2007, Fatialofa regularly made comments such as "hairy arms", made threatening facial expressions, poked him in the stomach on three different occasions and used his size to intimidate him. After a bomb scare, Zuhair said Fatialofa accused him of being a Muslim and said: "You're from the desert camel fxxxxr" and "you're like Saddam Hussein". Zuhair responded he was a Catholic. He said he felt embarrassed, intimidated, excluded, humiliated and "ganged up on" as a result of the behaviour.

Fatialofa and Brown denied all Zuhair's claims.

Coles Group Supply Chain suspended the storemen on full pay pending an investigation into Zuhair's claims. Zuhair was sent home on paid leave for a week.

Cmr Cargill held Fatialofa's behaviour was not just a one-off and wasn't "just the use of swear words in a joking manner, which I accept is common practice in the particular workplace, at least on the night shift". She ruled his sacking was not harsh, unjust or unreasonable. (Brown v Coles Group Supply Chain Pty Ltd, Fatialofa v Coles Group Supply Chain Pty Ltd, PR982461, 24/7/08)

Workers were ‘appropriately trained‘
In a message about the effectiveness of workplace training, Cmr Cargill said Fatialofa and Brown (see 'Wog' taunts are bullying: AIRC) were appropriately trained about the relevant policies.

"This was not an employer merely handing a document to a new employee and telling them to read it," she said. "If the training didn't sink in, as suggested, it is not because of insufficient efforts by [Coles Group Supply Chain]."


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