Email misuse dismissal fair

Email misuse dismissal fair – Email and misconduct – unfair dismissal case confirms the importance of trust and confidence

Where conduct is so poor that it destroys the trust and confidence essential in an employment relationship, the FWC will find that dismissal is not unfair.

The case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838 serves as a warning about:

  • Sending an email to the wrong person.
  • Making disparaging or offensive comments in emails
  • Being careful when wording and sending emails.

Accidentally sending an email to the wrong person is not an uncommon event, especially if the recipient is the email is the target of comments best left unsaid or unfiltered thoughts.

Ms Sologinkin employee with a long and previously unblemished employment record did just that and it did not end well

Senior Deputy President Hamberger found against Ms Sologinkin’s unfair dismissal application. In considering the matter, the Commissioner affirmed the importance of trust and confidence in the employment relationship and that it can be destroyed by one act of sufficient gravity

The email

Ms Sologinkin worked for Cosmetic Suppliers since May 2000, as a junior sales representative then Team Leader and then State Sales Manager.  She had never been subject to any issues of misconduct.

On 9 November 2016, she sent an email described as “intemperate and inappropriate” to the Customer Services Team describing them as “totally incompetent”.

As set out in the judgment:

“On the same day, the applicant composed an email to a friend of hers who had commenced working as a contractor for the respondent.  In this email, she made a number of disparaging ‒ and, in at least one case, highly offensive ‒ comments about some of the clients her friend would be dealing with.  This included a reference to one of the clients’ ethnicity and national origin.  The email included the email addresses of the clients.”

As she had intended, the email was sent to her friend and colleague.  Unfortunately, it was also accidentally sent to the clients.  Once she became aware she had sent the email to the clients, she made attempts to retrieve it, her attempts failed.

Upon receiving the email, one of the named clients tried, without success, to contact the employee by telephone.  He then rang the sales director and subsequently sent an email about the matter which said there “needs to be a consequence to this stupidity, await your advice”. 

The following day the client stated that they would no longer deal with any company represented by Ms Sologinkin; adding to this, another disparaged client did the same.

The employer issued a letter to Ms Sologinkin requiring her to attend a disciplinary meeting on 14 November 2016.  The letter advised Ms Sologinkin that sending the email to the clients was highly inappropriate and a breach of the employer’s Code of Conduct and furthermore could amount to serious misconduct. That meeting did not occur as Ms Sologinkin was on work-related stress/sick leave and unfit for work until 18 November.

The employer requested a written response from Ms Sologinkin to the allegations in the letter by close of business 15 November 2016.  To this Ms Sologinkin responded with a detailed email that cited a number of matters, including that her reasons for the mistake include that she had not slept well before the day of the email. She further said she was distracted, having had two others emails open at the same time and was handling complaints about the customer service team’s inability to perform their duties.

She conceded she had found it difficult to cope with her role ‘for some time’ and had been receiving medical treatment for post-traumatic stress disorder since 2015.

In further background, the employee had been placed on an informal performance improvement plan due to failure to meet key performance indicators for sales, and poor time management, which she said was due to a lack of management support and organisational changes. By the end of 2015 her performance had improved and she was no longer on a plan.

The employer considered her explanation but decided to dismiss her, concluding that the seriousness of the conduct was such that the trust and confidence necessary in an employment relationship had been lost.

SDP Hamberger found in at least one case the employee made ‘highly offensive’ remarks. One remark included a reference to a client’s ethnicity and national origin. SDP Hamberger accepted that the email was sent by mistake but given she occupied a management position she must bear the ultimate responsibility for her actions. He found the company had a valid reason to terminate and had conducted a fair investigation into the matter

SDP Hamberger accepted that there was a valid reason for termination and that even though the employee had;

  • a lengthy period of service with the employer,
  • an unblemished employment record
  • was contrite,

Overall the gravity of this misconduct, coming from someone whose job was to “manage relations with key customers”, was such that dismissal was not harsh.

The Commissioner held:

“…whatever the explanation as to how it happened, the ultimate responsibility must be borne by the applicant.  The email not only had the potential to but clearly did in fact damage the respondent’s reputation and its relations with its clients.” 

Not all mistakes destroy trust and confidence

Termination of employment is never a step to be taken lightly by an employer.  A longstanding employee with an unblemished employment record will, in many circumstances, be able to successfully argue that a termination was harsh and that other disciplinary outcomes falling short of termination should have been actively considered and applied.

However, where conduct is so damaging to the business and the trust and confidence necessary in an employment relationship, the Commission will be more willing to find that dismissal was not unfair and an appropriate outcome.

Every unfair dismissal case turns on its facts; it is entirely possible that if the employee was not in a key sales role, where relationships with clients are pivotal, that the outcome may have been different.

It is also an important and timely reminder to be careful and double-check the recipients list of any email that is sent.  And the tone of the email – if in doubt don’t press send

Link to the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1838.htm

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

Harassment Investigations Sydney NSW

Harassment Investigations Sydney NSW – Like bullying Complaints of harassment in the workplace are commonplace and it is recommended that employees respond in a timely and professional manner.

is when someone is made to feel humiliated, offended or intimidated because of their race, colour, national or ethnic origin, sex, disability, sexual preference or some other characteristic specified under anti-discrimination or human rights legislation.

Harassment can range from serious to a less serious nature. It may be a number of incidents or a single act.  Harassment can be conducted by one person or a group of people. It may be verbal or nonverbal and it may be subtle or openly hostile.

Harassment does not have to be directed towards a person to be considered harassment.  For example a racially hostile working environment where offensive jokes and taunts are part of the accepted culture is a form of harassment.  A person working in such an environment has the right to complain, even if the conduct in question was not specifically targeted at them.

Examples of harassment in the workplace can include but are not limited to:

  • Offensive physical contact or coercive behaviour that is intended to be derogatory or intimidating
  • Making and/or circulating offensive or disparaging remarks to a staff member about their work or capacity for work, personal life, absences, or claims for compensation
  • Persistently or destructively criticising or undermining a staff member publicly or privately
  • Making or sending threatening, offensive or abusive telephone calls, messages, emails or via any other form of communication
  • Teasing or regularly making a staff member the victim of pranks
  • Starting, spreading or failing to stop gossip about a staff member
  • Deliberately excluding a staff member from workplace activities
  • Giving unwelcome gifts
  • Coercing a staff member to resign or transfer
  • Stalking within the workplace, to and from work or outside the workplace
  • Asking intrusive questions about someone’s appearance or personal life
  • Sending explicit or sexually suggestive emails

When investigating workplace harassment it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conducting harassment investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about harassment and harassment investigations.

AWPTI provides professional harassment investigations in a timely manner within your budget

AWPTI – Bullying investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

 

 

Social media – unfair dismissal

Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186

Social media unfair dismissal. A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

AWPTI can assist you with full investigation services – http://awpti.com.au/investigations/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations – misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

If your organisation is encountering these types of issues and you are not sure what to do, I recommend that you contact an expert for assistance with training and potential investigations.

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 0409 078 322 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigation

social media unfair dismissal

Complaint handling

Complaint handling can be a difficult part of HR, what to do, what approach to take, how do you decide?

Getting it wrong when it comes to handling complaints such as workplace bullying, harassment or sexual harassment can be a very costly exercise and can end up in court.

It is important to decide the following;

  1. What is the complaint about
  2. What should I do
  3. How will I do it.
  4. Is it a disciplinary matter?

AWPTI can assist you and take the stress out of complaint handling in three ways

  1. We provide free of charge a Complaint Analysis Chart that will help you to work out what course of action is the most appropriate. If you would like a copy of the chart go to our home page, scroll down and fill in the request box. http://awpti.com.au/
  2. We can provide you with training in relation to complaint handling and investigations. http://awpti.com.au/investigation-training/
  3. We can provide you with full investigation services to take the stress out of dealing with complaints.http://awpti.com.au/investigations/

Contact us to find out how we can help you and your business

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Complaint handling

Unfair dismissal recently at FWC

Unfair dismissal hearing on 20 January 2016 in Sydney, the FWC found that a HR manager’s decision to dismiss an employee who couldn’t perform the inherent requirements of her role was reasonable, despite some “regrettable” lapses in process, the Fair Work Commission has ruled.

In Sao Duarte v The Paraplegic & Quadriplegic Association of NSW (full text here) involved an employee who in March 2016 emailed the CEO and advised that interpersonal issues at work were adversely affecting her performance and health. The CEO advised that he would monitor the situation.

A month later the HR manager asked the employee to attend a fact-finding meeting about allegations she had altered a client’s weekly medication pack without authorisation. The employee took leave the next day, claiming that that she was suffering from a workplace injury that had been exacerbated by bullying, she did not return to the workplace.

The employer subsequently deemed that Ms Duarte was incapable of performing the inherent requirements of her job due to a major depressive disorder, she was dismissed on the HR manager’s advice after she failed to respond to a show-cause request.

Ms Duarte claimed in her application to the FWC that her dismissal was unfair because she had been subjected to bullying over a  period of time, and was provided with no assistance after complaining about the bullying. She further stated that the fact-finding meeting made her feel targeted, as if she were being “groomed for dismissal”.

She didn’t deny being unable to perform the inherent requirements of her job at the time, but said she might have returned to full duties in the short-to-medium term.

The HR manager gave evidence to the FWC that the dismissal decision was based solely on medical evidence about Ms Duarte’s inability to do her job, even with modifications, and insisted her performance and conduct were irrelevant.

The HR manager said that after seeing references to alleged bullying in the employee’s medical report, she conducted a “fulsome” review (at 47) of her employment records and found no formal complaint. She claimed she only became aware of the employee’s email to the CEO after the dismissal.

Commissioner Booth found it was reasonable for ParaQuad to dismiss the employee after finding she couldn’t carry out the inherent requirements of her role, those requirements required her to be alert, handle emergencies and deal with clients with significant disabilities.

The Commissioner found that it was “regrettable” that the HR manager, having become aware of the allegations, didn’t “extend a conciliatory hand” by, for example, offering to have a conversation with the employee.

“[The manager] effectively asserted that there was no bullying or harassment problem because [the employee] had not followed the correct grievance process,” the Commissioner said.

She described the HR manager’s approach as “form over substance” and said that while it’s preferable for an employee to follow workplace protocol when making allegations, bullying could clearly occur without complaint.

“The art of good human resource practice includes responding to signals as well as addressing issues raised through formal channels.”

The CEO’s failure to take appropriate action, which would “certainly” have involved referring the email to HR, was also regrettable, Commissioner Booth said.

“The CEO said he’d monitor the situation, but gave no evidence of further action. “In my view this was an inadequate response to the concerns raised,” she said.

In dismissing the application, she noted the worker was pursuing a review of her workers’ compensation application, which could prove a more appropriate forum for her grievances.

Lessons for employers

When determining if someone can perform the inherent requirements of their role, employers are advised look to independent medical examinations.

If a complaint of bullying is made it should not be ignored even if it does not fit within the usual process or procedure.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Please contact us if you require assistant with the investigation of misconduct complaints to training to help you business avoid such issues. www.awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator

Unfair dismissal

 

Responding to sexual harassment complaints 2

Part 1 on this subject (more details) dealt with outsourcing investigations, in responding sexual harassment complaints 2 I will outline a procedure that can be followed if as manager or HR professional you choose to conduct the investigation internally.

Investigations are conducted internally for a number of reasons including, cost, availability and internal processes and procedures.

This article provides an overview of how to conduct an internal investigation. Please note it is an overview only, conducting an investigation is a complex and often time consuming matter requiring a high level of expertise.

There are many procedural steps during an investigation that are not included here for the purpose of brevity.

Should you wish a complete guide for conducting workplace investigations I have created a comprehensive investigation toolbox contains 35 documents (including template letters, interview plans, sample reports) and an Investigation Interview Manual. http://awpti.com.au/investigation-toolbox/

Complaints of sexual harassment

Generally complaints will be made either in person verbally or in writing, most commonly via email.

Step 1.

If the complaint is made in person, the first step is to obtain as much detail as possible from the complainant at the time of reporting.

If the complaint is made in writing or email, I recommend that you review the complaint and any other documentation, print it off and Identify and highlight areas where further information is required.

Identify areas where clarification of information is required, questions such as the who, what, what did they do, when, where, what was said, was anyone else present, if so who?

Step 2

Once you have reviewed the complaint it will be necessary to formally interview the complainant. 

This will require you to draft an interview plan that should include questions designed to have the complainant clarify when they meant when they used descriptive words such as sexually harassed, bullying, harassing, intimidated etc

You should also draft questions to have the complainant clarify words they may have used such as touched, looked, leered, yelled, shouted, angry etc and questions to ascertain the nature of the relationship of the parties prior to and during the incidents complained about

Complainants often use emotive language you must be sure what they actually mean.

You do not need to write out every question you are going to ask, the interview should be organic and led by the answers you receive to the key points you have identified.

Step 3

Interview the complainant. 

Investigative interviewing is a skill in itself and is far too detailed to go into here.  I have produced an interview manual that has been designed as a practical guide for workplace investigation interviewing. http://awpti.com.au/investigation-interview-manual/

The manual will assist you in preparing, conducting and reviewing the interview upon completion.

During the complainant interview you should be seeking as much further information as possible and the answers to the questions you have previously identified, clarifying as much information as possible

Step 4

Review all of the information (evidence) from the complainant.

Draw up a list of witnesses and potential witnesses. Witness will tend to support or refute the information provided by the complainant.

Draft the interview as you did for the complainant

Step 5

Interview the witnesses.

You should seek to obtain information that either corroborates or refute the complainant information.

Witnesses may also provide further information that leads to new avenues of enquiry.

Step 6

Review all the information you have. Identify any gaps in the information and what if any further information is required.

If warranted, draft a letter of allegation to be provided to the person subject of the complaint, the respondent.

The letter of allegation provided to the respondent must contain sufficient detail of the complaint to allow them to respond. This is a component of procedural fairness.

Step 7

Interview the respondent, allow them the opportunity to respond to the allegations and provide their side of the event/s. This is also a component of procedural fairness.

During the interview the respondent may nominate additional witnesses, these witnesses should be interviewed in the same manner as witnesses nominated by the complainant.

Step 8

Review and analyse all the evidence and make a finding as to whether the allegations have been substantiated or not or are unable to be substantiated.

Step 9

Report your findings in a clear manner.

Step 10

Advise the parties of the outcome of the investigation.

As I mentioned at the start, conducting an investigation is a complex and often time consuming matter. The AWPTI Investigation toolbox is a highly recommended resource for you to have if you intend to conduct investigations internally. http://awpti.com.au/investigation-toolbox/

If is important to remember, if you are unsure consider calling in an expert. http://awpti.com.au/investigations/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

 

 

 

 

Punishment must fit the crime

It is important for employers to remember when managing misconduct issues to ensure that the punishment fits the crime.

For example in the case of In Beamish v Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania [2016] a matter involving the alleged misuse of internal communication a terminated employee was reinstated after it was found by the FWC that a reference to the Director of the Catholic Mission as “Mission Impossible” in internal emails was a misguided attempt at humour and not sufficiently serious to warrant termination.

The Fair Work Commission ordered the reinstatement after finding that “the punishment did not fit the crime”.

It is often the case that employers are unsure as to what course of action to take when dealing with misconduct, I advise the following;

  • Investigate the matter thoroughly ensuring that you gather and consider all the available evidence.
  • Ensure that you always afford the person subject of the complaint procedural fairness, the right to know what they are being accused of and the right that their response is heard and considered.
  • Take into account
    • o The nature and overall effect of the misconduct to the parties and to the organisation
    • o The employees history, length of time with the organisation and previous if any misconduct issues
  • Review options other than termination

Still not sure, contact AWPTI, we can take the stress out of dealing with misconduct issues for you.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

 

 

 

Exit interview – complaints of bullying,
harassment and sexual harassment

 

An employee tells you during an exit interview that they were bullied, harassed or sexually harassed and that is the reason they are leaving the company, they name the alleged perpetrator but refuse to provide details as they are leaving and say that they want to put the bad experience behind them

What can or should you do?

This is a difficult situation to be faced as a HR professional or manager when conducting an exit interview

Your choice could be;

Do nothing, after all you have no details and no evidence. But remember, the easy way out could come back and bite you later.

Start an investigation, but where to start, if you speak to the alleged perpetrator how will you respond when they ask the usually, what exactly is it claimed that I did, when did this happen.

To conduct an effective investigation you will need to establish lines of enquiry;
• What happened – full details including what was said
• When and where
• Are there any witnesses
• Is there any other evidence

Without further details it is very difficult to conduct an effective investigation, remember you can’t set up a desk in the corner with a sign that reads ‘complain about Mr X here’

Keep records, you may be able to follow up on some information in an informal manner

If you don’t have one establish reporting mechanism for matters of misconduct, bullying, harassment, sexual harassment etc, this will encourage employees to have faith in the process that if they make a complaint it will be addressed.

Ensure that complaints are dealt with in a confidential, timely and professional manner, this will further encourage employees to have faith in the process
Conduct training with purpose;

  • Clearly outline employees behavioural expectations and responsibilities
  • Clearly define what is bullying, harassment, sexual harassment etc and how it will be dealt with by the company
  • Reinforce that the company has a reporting and investigation mechanism to deal with complaints in a confidential, timely and professional manner
  • Provide guidance for employees who feel that they are being bullied, harassed or sexually harassed

If you do not have effective training and investigation processes in place please contact AWPTI so that we can assist you.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

enquiries@awpti.com.au

 

Sexual harassment – Busting the myths

Despite a number of matters in courts and tribunals sexual harassment in the workplace continues to be an issue.

As a workplace investigator and trainer I come across many opinion, beliefs and myths about what is and what is not sexual harassment and where is the line drawn?

Some of the most common myths around sexual harassment

Myth: I can’t report sexual harassment as no one will believe me

Fact: In many cases sexual harassers are serial offenders, known as the office sleaze, the person to keep away from. Many people especially young women are told early on “look out for him he’s a real sleaze” or similar.

Management and HR are in a much better position to take action if they have information to act upon.

The best way to help stop these people is take a stand, refuse to be the victim and report it HR or management. Not allowing yourself to be a victim is courageous and empowering.

 

Myth: As a HR professional or manager I can’t do anything about sexual harassment unless someone makes a complaint.

Fact: If you see it, hear about it, know about it or suspect that sexual harassment is occurring you should/must take some action.

You have a duty of care to ensure that all reasonable steps are taken to prevent sexual harassment in the workplace. Don’t make excuses, they may come back to bite you.

 

Myth: It’s not sexual harassment if “I didn’t mean anything by it” or “I was only joking”

Fact: Most, if not all harasses are well aware of what they are doing, do not accept this excuse, especially if the harasser has been told that the behaviour or comment are not acceptable or has been told to stop.

 

Myth: If I ask a co-worker out on a date she/he can claim that it is sexual harassment

Fact: It is not sexual harassment to ask a co-worker out on a date; HOWEVER if you are asking a co-worker out on a date after being previously refused, ignored or not receiving a definitive answer YES – it can be sexual harassment.

 

Myth: If I have already dated a co-worker she/he cannot claim that it is sexual harassment if I keep asking them out.

Fact:  Once again it may not be sexual harassment if they consent but it is sexual harassment if they decline further dates, no matter how many you have been on.

Just because they went out with you once, twice or many times does not mean they do not have the right for future refusal.

 

Myth: It is not sexual harassment if they don’t really say ‘no’ when I keep asking them out or making those sort of suggestions.

Fact: Often the recipient of the request may feel awkward in saying no and may change the subject or avoid answering the question or say something like “I don’t know if I’m free, I’ll get back to you.”

If there is a power imbalance, for example manager and direct report, or manager and other staff member again the recipient of the request/s could be fearful that a direct refusal may harm their career or position in the company.

The golden rule is if they don’t say a clear unambiguous YES then it’s a NO.

 

Myth: It is not sexual harassment if I am only texting.

Fact: Sexually harassing someone via text, Facebook or any other social media or carriage is still sexual harassment.

 

Myth: It is not necessarily sexual harassment for a boss or manager to ask a co-worker out on a date.

Fact: It’s not, but using your power or seniority to coerce a co-worker into going out with you – bit of no brainer there YES of course it is (You would be amazed that the complaints of that nature I have investigated).

 

Myth: Making a comment about how someone looks is not sexual harassment

Fact:  Commenting   “You look nice today” in a neutral friendly manner, is not sexual harassment.

Commenting   “You look nice today” in a leering looking up and down suggestive or sleazy manner, YES that is sexual harassment.

 

Myth: I am a tactile person so touching is not sexual harassment

Fact: Seriously, (and yes I have heard that excuse) here is a simple rule, respect other people’s personal space, don’t do it, don’t touch unless clearly invited to do so.

 

Myth: Sending or giving a co-worker gifts or tokens of your affection is not sexual harassment

Fact: I have dealt with many complaints where this happens after an initial indication that the attention is unwelcome.

In this case YES this can be construed as sexual harassment.  Remember unless it is a definite YES then assume it’s a NO. In this case persistence is not a virtue

 

Myth: In the past we have had mutually acceptable sexual conversations and/or a consensual sexual relationship so wanting to continue is not sexual harassment

Fact: These are examples of behaviour that is not generally regarded sexual harassment due to the consensual nature.

 

HOWEVER should one party decide not to continue the relationship or conversational banter, when the other party is made aware of this should they desist immediately as continuing past this point may constitute sexual harassment.

 

Myth: I really don’t know what is classed as sexual harassment.

Fact: Here are some examples of sexual harassment that might be helpful to assist in understanding:

  • Staring, leering or unwelcome touching
  • Suggestive comments or jokes
  • Coercive behaviour that is intended to be sexual in nature
  • Sending sexually explicit emails or text messages
  • Repeated unwanted requests to go out on dates
  • Intrusive questions about a person’s private life
  • Requests for sex
  • Displaying posters, magazines or screen savers of a sexual nature
  • Inappropriate advances on social networking sites
  • Accessing sexually explicit internet sites
  • Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications

 

 Myth: As a business or employer sexual harassment is a matter between the two parties, it’s not a workplace issue.

Fact: Ponder these court cases that clearly illustrate the effects of sexual harassment in the workplace on businesses and employers:

Collins v Smith (Human Rights)[2015] VCAT awarded more than $330,000 as compensation to Ms Collins, an employee who had been repeatedly sexually harassed by her employer, Mr Smith, the owner and manager of the Geelong West Licensed Post Office.

Tan v Xenos (No 3) [2008] VCAT 584 – a sexual harassment case where Ms Tan was awarded general damages of $100,000

Poniatowska v Hickinbotham [2009] FCA 680, a sexual harassment case where the complainant was awarded $90,000 general damages in a total award of $466,000

Ewin v Vergara (No 3) [2013] FCA 1311 – a sexual harassment case where Ms Ewin was awarded $110,000 in general damages and $293,000 for loss of past earning capacity

GLS v PLP [2013] VCAT 221 – a sexual harassment case where a general damages award of $100,000 was made

Richardson v Oracle [2014] FCAFC 82 – a sexual harassment case where Ms Richardson was awarded general damages of $100,000 in a total award of $130,000.

The best way to avoid confusion and to make sure you have complied with your responsibilities is to train your staff. The money you spend on training may save you in the long run, should things ever go wrong.

If you receive a complaint and are unsure about the process it pays to call in an expert.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of sexual harassment, misconduct, bullying & harassment and other issues facing employers and workplaces.

If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me.