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Duty of care – Sexual harassment – 1.3 million reasons to get it right

Everyone in a workplace has a duty of care to ensure that they do all that is reasonable practicable to ensure the safety of all others in the work place, including reacting to complaints of sexual harassment.

Employers have a duty of care to ensure that they take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness this includes taking reasonable steps to eliminate and/or respond to workplace bullying, harassment and sexual harassment.

Business owners, employers and managers must ensure that they do all that they can to ensure that the duty of care is not breached as it can have serious consequences for employees and expensive consequences for employers.

Courts have found that workplace bullying, harassment and sexual harassment can lead to the development of psychological injuries such as anxiety, stress, depression, PTSD and in the worse cases lead to suicide.

The case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC illustrates 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.

Ms Kate Mathews was employed by Winslow Constructors, a large construction company specialising in civil engineering projects, as a labourer for two years. During her employment, Ms Mathews was subjected to repeated abuse, bullying and sexual harassment from Winslow employees and subcontractors.

Ms Mathews provided evidence that she endured daily sexual harassment, which included being shown pornographic material and being asked if she would do what she was being shown, being called a “spastic”, “bimbo” and “useless”, being repeatedly questioned over her sex life and having a colleague grab her hips and act out a sexual act on her.

Ms Mathews was unable to complain to her foreman as he was responsible for some of the offensive comments himself.

In July 2010 a colleague of Ms Mathews stated to her that he was “going to follow you home, rip your clothes off and rape you.” Following this comment, Ms Mathews was frightened and scared. She telephoned a person who she thought was responsible for Human Resources, with their comment being “come to my place… and we will have a drink and talk about it.”

Judge Forrest found that as a direct consequence of the bullying, abuse and harassment Ms Matthews was subjected to by employees and subcontractors of Winslow Constructors, she had suffered chronic and significant psychiatric injuries that have and will continue to diminish the quality of her life.

Judge Forrest awarded Ms Matthews $380,000 in general damages to compensate her for her psychiatric injuries and jaw injury, $283,942 for economic loss she suffered between 2010 and 2016 and $696,085 for her future loss of earning capacity until she reached retirement age of 65. The total damages awarded was $1,360,027.

 

Lessons for employers:

1.  Don’t ignore it

2. Don’t make it worse

3. Investigate thoroughly, it would have cost a lot less that 1.3 million.

4.   Ensure that your managers and HR professional are trained to deal with complaints.

5.   If in doubt call an expert

 

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 misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

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 a suitability qualified and experienced workplace investigator.

 

Why do managers get complaints and what can be done to minimise the risk?

What is Reasonable Management Action, why do managers get complaints, as a manager or employer you can run the risk of having complaints made against you by virtue of your position and the decisions you make involving employees on a daily basis. As a HR professional you may have to deal with these complaints

The quarterly reports (2015 – 2016) for anti-bullying order applications made at the Fair Work Commission showed the following based on information provided by the applicant in the application;

Applications based on complaints of unreasonable behaviour by a manager or group of managers often as a result of Reasonable Management Action

January to March 2016 – 65% of total applications
October to December 2015 – 65% of total applications
July to September 2015 – 75% of total applications
April to June 2015 – 72% of total applications

Full details of the reports are here – https://www.fwc.gov.au/about-us/reports-publications/quarterly-reports

 

Why is this so?

In my experience having investigated 100s of workplace complaints I have found that complaints against managers usually fall into three categories

  1. What the manager did
  2. How the manager did it
  3. What the manager didn’t do

 

Sounds very broad let me narrow it down.

 

  • What the manager did.

Managers make decisions and take actions that affect employees on a daily basis. Often decisions and actions the most common of which is providing feedback that is not positive and/or conducting performance management result in complaints of bullying or harassment.

 

The Fair Work Act s789FD (2) tell us;

Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.

This exclusion is comprised of three elements:

  • The behaviour must be management action
  • It must be reasonable for the management action to be taken, and
  • The management action must be carried out in a manner that is reasonable.

 

The challenge for managers is to ensure that their actions fulfill the three point criteria.

Be warned – If bullying and/or harassment is occurring you cannot call it a management action.

Assuming that bullying has not occurred and the complaint has resulted following some form of performance management when I investigate these types of matters I look at,

  • Is the action able to be justified?
  • Was the action warranted?
  • What was the reason or cause for the action to be taken in the first place?
  • Was the action carried out in a fair and reasonable manner?

 

I recommend that all managers, employers and HR professionals have a sound understanding of what is and what is not reasonable management action and how to implement management action in a reasonable manner.

  1. How the manager did it.

In many cases managers fulfil the what part of the criteria but fall down on the how.

Many managers do not like providing adverse feedback and/or conducting performance management meetings and as result it is conducted poorly and in many cases leads to a complaint.

Having a sound understanding of how to conduct performance management meetings and the associated process is essential.  Being aware of the concepts of procedural fairness and unfair dismissal is equally as essential and can save a lot of money in the long run.

      3. What the manager didn’t do.

Managers are often the first port of call for someone making a complaint; in addition they may be the person that becomes aware of employee misconduct.

It is important that managers deal with misconduct and/or receive the complaints in a proper manner and take some sort of action.

It is also important that managers deal with misconduct and/or handle complaints in a proper, timely and professional manner as the outcome may result in the termination of an employee.

When the termination of an employee is a possibility it is essential that correct procedure is followed, failing to do so can lead to the potentially costly legal action by that employee.

It must be noted that taking no action when a problem is apparent or a complaint is made can also lead to potentially high cost legal action involving claims of negligence and a breach of the duty of care to the employee/s involved.

Reasonable Management Action – What can you do?

To address these issues I have developed a training program for managers, employers and HR professionals called “Management Essentials”  http://awpti.com.au/backup/training/

It is a full day program that consists of;

  • Understanding reasonable management action
  • Performance management to avoid complaints.
  • Dealing with misconduct and complaint handling

Having effective training in place in these critical areas is essential and a means of ensuring you have taken all reasonable steps to satisfy your duty of care to both managers and employees.

If you are a manager who wants to understand these concepts and minimise to the risk of having complaints made against you or if you are a HR professional that wants to train your managers and also minimise to the risk of complaints against your organisation please contact me for more details or check out our workplace training page.

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.