Sexual Harassment law changes Sexual Harassment law changes – Respect@Work 2020 report HR Managers, employers & business owners – have you reviewed your sexual harassment policies & training in light of working from home & the 55 recommendations contained within the AHRC Respect@Work report relating to the National Sexual Harassment Survey. Read the full report […]

Workplace Sexual Harassment

Workplace Sexual Harassment – During a training session on sexual harassment prevention & investigation I was asked about the reasonable steps that should be taken to prevent and/or address SH in the workplace.

1. Have a well drafted policy that defines SH and the organisation’s behavioural expectations, how to report SH & consequences for breaching the policy.

2. Make all of your staff aware of the policy, what it is & where to find it.

3. Train your staff on the policy including what is SH, the expectations, what victims can do, what witnesses should do & consequences for breaching the policy.

4. Have a trusted mechanism in place for reporting of SH, how to report & who to. Trusted means the person reporting SH will be listened to with an open mind & action will be taken.

5. Have a trusted mechanism in place for investigating SH complaints, in this case trusted means a timely & professional response/investigation to complaints.

The most important thing for your staff is to have trust in your processes.

If you need help with any of these point please contact me – phil@awpti.com.au or via www.awpti.com.au   

AWPTI – workplace investigation 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, discrimination investigations

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

  

 

#sexualharassment #workplaceinvestigation #sexualharassmentinvestigation #workplacetraining #sexualharassmenttraining

Sexual harassment myth busting

Sexual harassment myth busting in spite of 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 opinions, 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 absolute 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:

Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues. Link to case

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. Link to case

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

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. Link to case

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. Link to case

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

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. Link to case

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 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 – http://awpti.com.au/employee-training/

If you receive a complaint and are unsure about the process it pays to call in an expert. Once again AWPTI can assist you in this regard – 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.

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/trainer 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.

AWPTI – workplace investigation 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, discrimination investigations

Sexual harassment myth busting

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

 

Anti-bullying laws disciplinary process

Anti-bullying laws disciplinary process – Anti-bullying laws might be used by employees facing a potentially adverse disciplinary process to delay or halt it.

Anti-bullying vs disciplinary process: Fair Work Commission asked to find the balance

A recent Fair Work Commission case demonstrated an inventive way in which the FWC’s anti-bullying jurisdiction can be used by employees facing disciplinary proceedings. It may have opened a can of worms for employers.

In Lynette Bayly [2017] FWC 1886, the FWC issued an interim order preventing her employer from taking any further actions to finalise an investigation into the conduct of an employee or to impose any disciplinary sanction on the employee arising from the investigation or to terminate the employment of the employee.

Ms Bayly had made a section 789FF “stop bullying” application to the Commission alleging she had been subject to bullying at work.  The alleged bullying included the investigation by the employer into her conduct.

Despite the application, the employer continued the investigation and, as part of that process, advised her that draft findings had been made. Ms Bayly was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.

Ms Bayly’s lawyers wrote to the employer indicating she was unfit for work for a period that extended beyond the date of the proposed meeting.  They sought agreement from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in relation of the allegations under investigation.  The employer declined, confirming its intention to proceed with the disciplinary process.

As a result Ms Bayly sought an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim.  The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:

“The FWC may make an interim decision in relation to a matter before it.”

Can the interim order be made under these circumstances?

The employer opposed the interim order:

  • Ms Bayly had not provided a substantive response to the investigation;
  • the investigation was being conducted in a “reasonable manner”;
  • any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
  • the draft findings of the investigation are adverse to Ms Bayly; and
  • if Ms Bayly were to be dismissed, she has other remedies available to her.

The employer claimed that the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment,

 “That is, to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether that dismissal is justified.  The orders sought go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

It did not, however, say that the Commission had no power to make the order.

Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where “the balance of convenience” lies. He then observed:

It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised.  However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.”

Should the interim order be made?

The next issue was looking at the particular circumstances of this case. The Commission took into consideration:

  • claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
  • the fact preliminary adverse findings had been reached against Ms Bayly;
  • Ms Bayly’s medical condition;
  • concerns expressed about the employer’s process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment.

Commissioner Hampton was satisfied

“… that the s. 789FC application [the anti-bullying provision] has prima facie merit and there is sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.  The allegations made by [the employee], if ultimately supported by evidence, would be grounds to support a finding that there was reported unreasonable conduct whilst she was at work within the meaning of s. 789FD of the Act.  Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose.” 

Interestingly, a key aspect of the anti-bullying jurisdiction ‒ that no orders can be made once the employment relationship is at an end (except in very limited circumstances) ‒ was identified as,

“…a significant factor directly relevant to the balance of convenience and the exercise of any discretion”.

Commissioner Hampton recognised that circumstances might change the balance of convenience, so the interim orders might need to be reviewed.

How does this affect future disciplinary proceedings?

This decision is an interesting and concerning development, one that should be watched carefully by employers. It may well be a warning of what is to come for employers undertaking investigations and disciplinary processes.

The interim order has effectively halted (for the time being) the employer’s disciplinary process. The likely next step is the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the court if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):

“given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly.  The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution.  Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience for such action.  Of course, each application must be considered in its own right and circumstances. 

As [the employer] contended, the Commission should be alert as to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences.  In this case, there are some particular circumstances that have justified the making of the interim order.”

Notwithstanding Commissioner Hampton’s words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.

To put themselves in the best position to defend such applications employers should;

  • ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is “reasonable management action carried out in a reasonable manner”);
  • Consider out-sourcing bullying investigations to suitably qualified and experienced investigators.
  • Be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).

Australian Workplace Training and Investigation can assist with professional and timely investigations of workplace issues such a bullying, harassment, sexual harassment, discrimination and other areas of misconduct such as Code of Conduct breaches, IT and email misuse, theft and fraud, please contact us if you require assistance on 02 9674 4279 or enquiries@awpti.com.au

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

Anti-bullying laws disciplinary process

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.

Anti-bullying laws disciplinary process

Workplace Harassment Training Sydney NSW

Workplace Harassment Training Sydney NSW – AWPTI can assist you with training sessions that address Workplace Harassment and Sexual Harassment

Incident and complaints of Harassment and Sexual Harassment in the workplace are commonplace and it is recommended that employees respond in a timely and professional manner. Employers have a duty of care to provide a workplace that is free from Harassment and Sexual Harassment. Having effective and up to date training in place can assist you to satisfy your duty of care.

Harassment 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.

Sexual harassment is any unwanted or unwelcome sexual behaviour which makes a person feel offended or humiliated. It has nothing to do with mutual attraction or consensual behaviour.

COURSE AIMS

The session aims to provide practical skills to help enable your staff and managers to recognise what is and what is not harassment and sexual harassment and to offer strategies to deal with harassment and sexual harassment in the workplace.

 LEARNING OUTCOMES

At the end of the workshop participants should be able to:

  • Understand and identify what is and what is not harassment and sexual harassment in the workplace
  • To gain an insight in to why people harass and sexually harass and what you can do about it
  • Provide examples of workplace harassment and sexual harassment.
  • Understand the legal ramifications of harassment and sexual harassment in the workplace

Workplace Harassment Training Sydney NSW

The course is divided in six parts;

Part One: What is workplace harassment and sexual harassment

Part Two: What should you do

Part Three: Behaviours in the workplace

Part Four: Power Emotion and Self Control

Part Five: Legal Responsibilities

The course can be run and a time and location to suit you and your employees, a method preferred by a number of our clients is to run it as a ‘Lunch & Learn’ session.

AWPTI can also assist you with training sessions that address Workplace bullying and discrimination. Check out our blog and other pages for more information about workplace bullying and how we can assist with bullying investigations –  http://awpti.com.au/investigations/

If you would like more details, please contact us – enquiries@awpti.com.au

AWPTI – Workplace training Sydney and through-out NSW  and national wide
Misconduct training, bullying training, harassment training & sexual harassment training

www.awpti.com.au

Workplace Investigations Sydney NSW

Workplace Investigations Sydney NSW – Workplace Investigations into complaints and grievances and other issues can be a difficult, time consuming and stressful for the parties concerned.

One of the most common difficulties encountered by HR departments, managers and business owners when conducting internal workplace investigations is that virtually everyone involved knows one another or are connected in some way in the business and at times will have competing agendas. Australian Workplace Training & Investigation can assist – www.awpti.com.au

When making a decision to conduct the investigation internally or to outsource it is wise for an employer to ask the following important questions:

  • Do we have someone with the necessary expertise and experience to conduct an investigation?
  • Do we have the time to undertake an investigation that could potentially take up to six weeks?

If the employer is going to conduct an internal investigation or inquiry does the person/s nominated have:

  • Solid experience conducting investigations?
  • Extensive experience conducting investigative interviews?
  • A full understanding of the rules of evidence?
  • An understanding of procedural fairness?
  • A comprehensive understanding of current legislation as it relates to workplace complaints such as misconduct, bullying, harassment, sexual harassment and discrimination?
  • Experience making finding and recommendations and writing reports that will withstand the scrutiny of an industrial commission, the Fair Work Commission or a court?

Other considerations;

  • Can we ensure;
    • Transparency
    • Independence
    • An absence of Bias
    • An absence of Conflicts of Interest
  • Will the parties involved object to having the matter investigated internally

It is smart business to let an expert handle the workplace investigations for you.

Australian Workplace Training & Investigation can provide investigation services to suit your individual needs and all services are tailored to work within your budget.

Outsourcing a workplace investigation service enables you to concentrate on your business and to allow experienced and qualified investigators handle what we refer to as the ‘dark side of HR’.

Typical area of investigations

  • Complaints and grievances,
  • Bullying
  • Harassment
  • Sexual harassment
  • Discrimination
  • Misconduct
  • Breach of policy or Code of Conduct
  • Inappropriate use of IT or other resources
  • Misuse of social media
  • Fraud or theft.

Investigation review

Where an internal investigation has been conducted we can provide support and review of:

  • Investigation process
  • Findings & recommendations
  • Final report
  • Procedural fairness

We can also assist in the provision of workplace training – http://awpti.com.au/training/

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

Workplace training national wide

www.awpti.com.au

Evidence
Workplace Investigations – what is evidence?

Evidence is the crucial element when it comes to proving on the balance of probabilities whether or not a person who is the subject of a complaint behaved in the manner complained about.

Failure to understand the value of evidence can seriously undermine an investigation and can have costly consequences to employers if a person is unfair dismissed or unfair treated in the workplace.  

Evidence – is information that is relevant to proving or disproving a disputed fact in issue in investigations and legal proceedings.

Evidence comes in many forms including;

·         Letters of complaints

·         Informant information

·         Proceeds of a search

·         Observations

·         Interviews

·         Statements

·         Documents

·         Photographs

·         Emails

·         Forensic evidence

·         Computer records

·         Other physical items.

There is no set rule to determine what type of evidence is the best evidence. In any investigation the best evidence is the evidence that assists in proving an element in question and maximising the successful outcome for the investigation.

Evidence differs from information as it can be said that information is only information if it is not used for anything, once it is used to support or inform a theory or in the case of an investigation a complaint, the information then becomes an item of evidence.

Information becomes evidence when it is used to make a decision or conclusion.

Therefore it can be argued that all evidence is information, but not all information is evidence. Having a comprehensive understanding of evidence and the rules of evidence is critical for  workplace investigators.

In upcoming articles I will discuss the rules of evidence and the handling and storage of evidence.

If you intend to conduct internal investigations I highly recommend that you consider purchasing our Investigation Toolbox http://awpti.com.au/investigation-toolbox/

or the Investigation Interview Manual.  http://awpti.com.au/investigation-interview-manual/

If you require assistance with the investigations of workplace misconduct issues such as bullying, harassment, sexual harassment of any other issues please contact us at enquiries@awpti.com.au http://awpti.com.au/

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/

Evidence