As someone who has worked as a HR professional for some years, I can say that it’s not unusual for an employee to approach me wanting to talk about being bullied, harassed or discriminated against in some way. It takes a lot of guts for an employee to speak to management or HR about their concerns; depending on the situation and the persons involved they may subject themselves to more inappropriate behaviour; ostracise themselves from the team, or, open the floodgates to the commencement of what sometimes is a long and emotionally taxing process.
There are often occasions in which the person just wants to let someone know or have an opportunity to vent, but doesn’t want to go as far as lodging a formal complaint. Those occasions place management or HR in a difficult position. From the individual’s perspective, the opportunity to unburden may be a great relief but from where the manager or HR sits, the information that has been communicated is in a zone that’s akin to a no-man’s land. A complaint has been received but the complainant does not want to call it a complaint.
We are now in an era where human behaviour and the law are combining to produce circumstances that result in management or HR being exposed to legal action being taken against them as individuals in the performance of their duties. There tends to be a belief from managers that they must wait until a formal complaint is made before they can take any action. This belief, which is false, sometimes reinforces a business’ reluctance to investigate and can be used by a manager to stick their head in the sand about what is going on in the workplace.
Under work health and safety legislation, contract and tort, an employer must take all reasonable steps to protect the health and safety of employees. This includes taking action as soon as becoming aware of serious workplace concerns, regardless of the way these may be communicated to the business.
In a recent case a female employee was placed into a role as a team leader in traffic control at a railway level crossing site by Marriott Support Services. During one of her projects, the female employee worked alongside a male worker from another organisation, Rail Safe Working Solutions. Marriott and Rail Safe were engaged by contractor Lendlease to provide traffic and pedestrian management services during the project.
According to the female employee, the male Rail Safe worker repeatedly acted inappropriately. He stood too close to her and other workers, criticised the Marriott disability program she was part of – stating she was “not employed on [her] merit”– and made sexually aggressive and violent comments in her presence.
Both the immediate manager and the divisional manager believed the majority of the claims made by the female employee. But, according to the tribunal’s report, the divisional manager said she looked tired, and suggested that she was “being oversensitive” and may have misinterpreted the comments. The report says the divisional manager reminded the female employee that she didn’t have to make a formal statement, that she could refuse to get involved in “site politics” and it was “predominantly a working man environment in construction and that there was always going to be unwanted attention to women”.
This caused the female employee to believe her complaint wasn’t being taken seriously because she was female. She believes she wasn’t offered enough support, that the complaint wasn’t effectively documented and that she was “actively discouraged” from making the formal complaint. It seems the tribunal agreed, ordering Marriott to pay her $10,000 in damages.
The matter of Watts v Ramsay Health Care serves as a timely reminder of the importance of ensuring that as managers and HR professionals, you understand the requirements and purpose of your Bullying and Harassment policies. Specifically, it highlights that poor management decisions, in this case, the decision not to investigate an employee’s complaint, can form part of a bullying claim.
Ms Watt, a catering assistant at Glengarry Private hospital, had (on at least two occasions during 2017) bought to the attention of her direct manager and Ramsay’s HR manager, allegations of bullying and harassment against several of her fellow workers. She alleged that she was being bullied by co-workers on her morning shift in that they had accused her of smoking beyond her allocated break, not doing her job properly, smelling of alcohol and that she had been subjected to other defamatory remarks.
Noting that Ms Watts had raised these concerns with her managers, including in the context of investigation of her own performance or behaviour, Ramsay determined not to commence any kind of enquiry or investigation into Ms Watt’s allegations, citing a lack of specific information and/or evidence about the allegations for their decision.
In granting Ms Watt’s application, the Fair Work Commission accepted that the managers had behaved “unreasonably” towards Ms Watt and that their decision not to investigate Ms Watt’s bullying allegations was not ‘reasonable management action’. The FWC determined that Ms Watt had been understandably reticent to name the offenders, but had nonetheless provided her managers with sufficient information and that those managers had “imposed their own requirements’ on how Ms Watts must complain to them about alleged bullying before they would commence an investigation”
The FWC also concluded that the managers failure to investigate Ms Watt’s complaints was a breach of Ramsay’s own Discrimination, Bullying and Harassment Policy which did not require the level of detail her managers required her to provide in relation to the bullying she alleged. Ms Watt was granted a Stop Bullying Order under s789FD of the Fair Work Act.
In another case the Supreme Court of Victoria has sent a solemn message to employers to sit up and listen to employees who make complaints of bullying and harassment in the workplace, by awarding damages in excess of $1.3 million to a plaintiff suffering psychiatric and physical injuries because her employer failed to provide a safe working environment. The alleged conduct was repeated and severe, including not only being referred to as a “spastic” and a “bimbo”, but also sexual harassment (both verbal and physical) and threats of sexual assault.
The complainant gave evidence that she was reluctant to complain to her immediate superior, because he too was responsible for some of the offensive conduct. On occasions when she did raise concerns, she was met with laughter. When she raised her complaint with her Area Site Manager, he said words to the effect of “leave it with me”, but to her reckoning nothing was done save for the fact that she was moved to another work site for a 10 month period, before being moved back to the original site (upon which the problems recommenced). The complainant eventually resigned after developing high levels of anxiety, stress and depression.
While the circumstances in this case may seem extreme, it is a reminder to employers of the significant costs that can result if employee complaints of bullying and harassment in the workplace are not received, considered and actioned in an appropriate and timely manner. Under federal anti-discrimination laws, if an employer wants to argue that the organisation should not be held liable for any discrimination or harassment by one of its employees, the employer will need to demonstrate that the organisation took ‘reasonable precautions and exercised due diligence’ or took ‘all reasonable steps’ to prevent the discrimination or harassment. While the size of the employer is relevant to these considerations, an important factor that is likely to be considered is whether the organisation has an effective complaint handling procedure and if employees have been sufficiently trained in the execution of the policy.