Unfortunately, discrimination, bullying and all forms of harassment, including sexual harassment, are issues that can arise in any workplace, and claims arising from such inappropriate behaviour can have a significantly adverse impact on a business’ reputation, the morale of its workforce, and can be very expensive to deal with. In this update, we consider the various claims that can flow from workplace discrimination, bullying and sexual harassment, and additionally discuss the measures that we recommend businesses take to reduce the risk of such conduct occurring in their own workplace.
Unlawful workplace discrimination
Discrimination may occur when a person, or a group of people, is treated less favourably than another person or group because of a personal attribute, such as race, sex, age, disability, religious or political convictions, sexual orientation and gender identity, and family responsibilities. A number of Commonwealth and State legislative instruments exist for the purpose of prohibiting discrimination in the workplace, including the following:
- Fair Work Act 2009 (Cth);
- Age Discrimination Act 2004 (Cth);
- Disability Discrimination Act 1992 (Cth);
- Racial Discrimination Act 1975 (Cth);
- Sex Discrimination Act 1984 (Cth); and
- Various State-based legislation such as the Anti-Discrimination Act 1977 (NSW) and the Equal Opportunity Act 2010 (Vic).
Unlawful discrimination can occur in a variety of manners in the workplace, including during the recruitment process, in the terms and conditions offered as part of employment, the making of personnel decisions with respect to training, transfers, promotions and other opportunities, and when making decisions with respect to redundancies or dismissals.
A variety of claims can be brought by workers that experience discrimination under the various anti-discrimination legislative instruments. In addition, section 351 of the Fair Work Act 2009 (Cth) (“FW Act”), for instance, prescribes that the taking of “adverse action” (for instance, dismissing an employee) because of certain personal characteristics is a breach of the General Protection provisions. Claims can be brought in connection with this provision in the Fair Work Commission (“FWC“), and are often heard in the Federal Court of Australia and Federal Circuit and Family Court of Australia. In this jurisdiction, a reverse onus of proof is imposed on the employer – that is, the employer must prove that adverse action was taken against the employee for reasons other than the unlawful reason claimed.
Other claims alleging breaches of the anti-discrimination legislation can be brought in the Australian Human Rights Commission and a variety of state-based tribunals and commissions.
Workplace bullying is defined by section 789FD(1) of the FW Act as repeated behaviour by an individual or group towards another individual or group at work, that a reasonable person would anticipate would humiliate, intimidate or threaten the individual or group and a risk to health and safety in the workplace.
A wide array of physical and verbal behaviours can constitute workplace bullying, including yelling, shouting and other threatening behaviour; sending abusive emails and text messages; spreading rumours; setting unreasonable timelines or tasks; laughing at or belittling someone; excluding or isolating someone; and otherwise behaving in a threatening, intimidating or insulting manner towards someone.
The FW Act makes clear, however, that “reasonable management action” conducted in a reasonable manner does not constitute workplace bullying. This means that necessary managerial actions, such as performance management, the setting of goals and standards, and the making of decisions that staff may not agree with, can be undertaken, provided that an employer does not engage in such actions in an unreasonable manner.
The concept of “reasonable” management action was explored in National Australia Bank Limited v KRDV (2012) 204 FCR 436. In this case, the worker attended regular weekly meetings with other team members and her supervisor. The purpose of these meetings was to assess workloads and allocate tasks accordingly. During one such meeting, the worker was criticised by her manager for poor work performance, and subsequently claimed that she suffered a psychiatric injury as a consequence of being “picked on and singled out” in front of her colleagues.
The Court did not consider that it was unreasonable for the employer to have concerns about the employee’s performance; however, ultimately accepted her claim, noting that the manner in which the concerns were raised was unreasonable. This was due to the fact that the team meeting was not arranged for the purpose of discussing the worker’s performance, and that it was not reasonable to raise these concerns without warning in front of her colleagues.
Employees that believe they are being bullied at work may bring an application for an order to stop the bullying to the FWC. If it is found that the employee is being bullied, the FWC may make any order it considers necessary to eliminate the bullying, except that the FWC cannot award any form of monetary compensation in respect of such claims.
Various national surveys have exposed the shocking frequency of sexual harassment in the workplace, with a 2018 Australian Human Rights Commission survey finding that almost two in five (39%) women, and one in four (26%) men reporting that they have experienced some form of sexual harassment in the workplace. All employers should be taking proactive steps to ensure the prevention and elimination of workplace sexual harassment in their businesses.
Sexual harassment constitutes any unwanted, unwelcome or uninvited behaviour of a sexual nature, in circumstances which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Businesses ought to be mindful of a number of principles that are applied by the Court in relation to workplace sexual harassment, including:
- Sexual harassment laws extend to conduct that occurs outside of the workplace, and out of work hours. Indeed, official and unofficial work-related social events can be a hotbed for such activity;
- Sexual harassment can be perpetrated and experienced by all workplace participants, including employees, clients, independent contractors, and interns;
- Behaviour can constitute sexual harassment, even if it is not directed at anyone – for instance, the making of inappropriate jokes of a sexual nature in the workplace; and
- The harasser’s intention is not relevant – in other words, the Court will consider how their actions would be perceived by a reasonable person.
Workers that allege to have been the victim of workplace sexual harassment may bring claims under the Sex Discrimination Act 1984 (Cth), the FW Act, and a number of state-based legislative instruments. Significant damages can be awarded in workplace sexual harassment cases, and employers can be vicariously liable for workplace sexual harassment, if they fail to take all reasonable steps to prevent the harassment from occurring.
As of 11 November 2021, the FWC now has jurisdiction to hear applications for orders to stop sexual harassment at work. For the FWC to make an order to stop sexual harassment, it must be satisfied not only that a worker has been sexually harassed at work by an individual or group, but additionally, that there is a risk that this worker will continue to be sexually harassed by the same individual or group. Similar to applications to stop bullying, the FWC does not have jurisdiction to award any form of financial compensation in these claims; rather, the primary aim of these laws is to put an end to unlawful workplace conduct, and protect workers from future harm.
Recently, the FWC handed down its first decision in this jurisdiction, in the matter of THDL  FWC 6692. In this case, the complainant alleged that she had been sexually harassed by two men who worked in a neighbouring business in the same warehouse complex in which she operated her business. In this case, the FWC found that it was not required to make a determination as to whether the complainant had been sexually harassed, as the complainant no longer carried out her business in the same warehouse complex. As such, the Commission found that there was no likelihood that the parties would cross paths at work again, and as such, there was no reason to make an order to prevent future sexual harassment.
The FWC’s decision in THDL provides little guidance as to how this new jurisdiction is likely to operate. It does, however, demonstrate that this jurisdiction has not been created for the purpose of punishing sexual harassment that has already occurred; rather, it exists for the purpose of preventing future sexual harassment from occurring. Claims seeking damages and other financial compensation will invariably continue to be brought in other jurisdictions, such as the Australian Human Rights Commission pursuant to the Sex Discrimination Act 1984 (Cth).
As outlined above, workplace discrimination, bullying and sexual harassment are issues of grave importance, and failing to take all reasonable steps to ensure these issues do not arise can be a very costly exercise for employers – and in our experience, far more costly than investing in education, training and other proactive strategies to engender a culture that does not tolerate inappropriate workplace conduct.
As recently as this week, the Sex Discrimination Commissioner, Kate Jenkins, spoke to the need for company board members to take proactive approaches to stamp out sexual harassment. In particular, Ms Jenkins pointed to the role of boards in preventing and responding to sexual harassment, stating “the time has come for this hands-off approach by boards to end. Boards are central to the change required”.
We recommend that all businesses take the following proactive steps to mitigate the risk of unacceptable behaviour eventuating in their workplace:
- Develop and implement comprehensive policies around appropriate workplace behaviours;
- Regularly conduct training on appropriate workplace behaviour, to ensure both managers and employees are aware of their obligations;
- Introduce a mechanism for workers to make complaints about inappropriate behaviours, including whistle-blower and anonymous reporting mechanisms, and deal with such complaints in a serious and prompt manner; and
- Promote a positive workplace environment that encourages employees to report inappropriate behaviour.
From our experience, businesses that take the above preventative steps are less likely to face discrimination, bullying and harassment claims. We regularly prepare bespoke policies for our clients, and additionally have expertise in providing practical and interactive training programs to our clients’ managers and employees. As such, if you wish to discuss any aspect of this client alert or require specialist advice or assistance in relation to your workplace relations framework, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please also note that the law may have changed since the date of this article.