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Episode 76
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Bullying and Harassment Substantive Law
Building Back Better: Creating and Amending Workplace Policies in the New Employment Age
Law as stated: 8 February 2023
What is this?
This episode was published and is accurate as at this date.
Expert employment partner Nicola Martin relinks with Hearsay's David Turner to chat bullying, discrimination and harassment policies and recent and upcoming changes to the workplace.
Bullying and Harassment
Substantive Law| What area(s) of law does this episode consider? | Best practice bullying, discrimination and harassment policies and employment dispute resolution. |
| Why is this topic relevant? | In 2020 and 2021, an astonishing 8.6% of people responded to the University of South Australia’s Workplace Barometer saying they had been bullied at work. Incidentally, this was highest among government employees. Similarly, more than a quarter of people reported suffering gender or racial harassment at work and just over 16% reported suffering sexual harassment. With this in mind, workplace policies are an important part of modern employment and can assist employees and employers to understand their legal rights and obligations at work – as well as who to talk to and what to do when things go wrong. |
| What legislation is considered in this episode? | Fair Work Act 2009 (Cth) (Fair Work Act) Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect at Work Act) Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Dollard, M.F., Owen, M., Afsharian, A., & Potter, R. (2021). Bullying and Harassment in Australian Workplaces 2021: Australian Workplace Barometer Fact Sheet, University of South Australia, Psychosocial Safety Climate Global Observatory |
| David Turner:
1:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Here’s an interesting statistic; the University of South Australia’s 2021 Australian Workplace Barometer found that through the years 2020 and 2021, 8.6% of surveyed respondents reported bullying at work. Although tellingly, the highest reported rate of bullying in any industry occurred in government and in government administration. Similarly, gender or racial harassment was reported by 25 1/2% of respondents and sexual harassment by 16.7%. Now, the careful construction of workplace policies can assist employees and employers to understand their rights and obligations at work – as well as who to talk to and what to do when things go wrong – but they can’t prepare for every possibility. Preparing and responding to those disputes which do arise takes skill, practice, and a nuanced understanding of human behaviour and the law. Joining me today to discuss best practices in preparing for, responding to, managing and resolving disputes about discrimination, harassment, and bullying at work is employment law expert Nicola Martin. Nicola is a partner at the Labour and Employment Practice Group of Squire Patton Boggs. Nicola; thanks so much for joining us again on Hearsay! |
| Nicola Martin: | Thanks so much, David. It’s a pleasure to be here again. |
| DT: 2:00 | It’s great to have you back. Now, for those of our listeners who haven’t heard your first episode, which is great, by the way, they should go and listen to it straight after this. |
| NM: | Thank you. |
| DT: | What brought you to practicing employment law and to your new role at Squire Pattern Boggs? |
| NM:
3:00 | Well, I could spend the entire episode talking about that, but I won’t. I did an elective in labour and employment law in my first year at uni – Monday night, 7:00 – and from there it just grasped my interest. I obviously waited many years until I started my traineeship in Scotland to have exposure to it again and I did a rotation in the employment law team at the firm, which is now Pinsent Masons, again, yeah, grasped my interest and was lucky enough to be offered a role in a team, in another firm in Scotland when I finished my traineeship and there we go. That was almost 20 years ago and I’ve worked solely in labour and employment ever since. Moved to Australia about 17 years ago and have worked in a variety of global and mid-tier firms. Been at Squires now for almost 2 years. So; love the mixture in employment law of the contentious and non-contentious elements. I think at uni I wanted to be a family lawyer, but soon realised I had too much of a heart and I was too much of a worry wart to be a family lawyer. So, I think employment law was a good compromise in terms of the human aspect but mixing it with the more corporate side of things as well. |
| DT: | Yeah, it’s so funny how those ideas of what we’re going to practice when we’re university students almost never pan out. I wanted to be a criminal lawyer, but I think I’ve found my stride in commercial law. Now, you said there’s a real variety in employment law. You’ve got the contentious and the non-contentious sides of your practice. What does your practice look like day to day and how much of it is made up of what we’re talking about today, which is bullying, harassment, and discrimination sorts of cases? |
| NM:
4:00 | Yeah, look, it’s not an insignificant amount. I very much enjoy the variety. No day is the same. It’s that classic case of not knowing what you’re necessarily walking into on a daily basis. We support our clients throughout the whole employment life cycle so far as their workforce is concerned. So, whether that’s hiring decisions, firing decisions, and everything in between, in that life cycle, we are there, we do a lot of telephone, HR advisory work supporting our clients, HR and in-house legal teams. As I say, we also do the contentious side when things go wrong but what I love about what we do is we can get in there and take a much more proactive approach so we can get in there and help with the policies and the training and we train the trainers, we train HR people to do training to their workforces, or we go in and do the training ourselves. So, it’s lovely to get the opportunity to try and set people on the right path before things go awry and that’s what I enjoy. We also do corporate support work. So, to my mind, we get the best of it all. Negotiation, drafting, litigation, training, really lovely spread of opportunity to assist clients. |
| DT: | That’s something that’s always interested me about this practice area is that there are other practice areas that have that transactional side and dispute side, construction property maybe, but there’s very few practice areas where you have that almost preventative role, where you have that role of, I guess, to adopt the healthcare analogy, vaccinating the client against the issue or doing the best you can. |
| NM: | As well as treating the symptoms. Yeah, exactly. |
| DT: 5:00 | As well as treating the symptoms afterwards. It’s a really interesting dual role. Now, we’re talking about bullying, discrimination, and harassment today. |
| NM: | Yep. |
| DT:
6:00 | This is an issue not just for our clients, but it’s an issue for us as well. Of course, we know that bullying, discrimination, and harassment occurs in law firms and lawyers have a positive ethical duty, in New South Wales it’s Rule 42 of the Solicitor’s Rules not to engage in this sort of conduct. TIP: Rule 42 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 that David has just referred to states that: 42.1 A solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes— That rule is applicable in Uniform Law states – NSW, Vic and recently WA – but you can find similar things in place in the rules governing the profession in non-Uniform Law states. In South Australia, it is a mandatory requirement that practitioners undertake yearly professional development in the area of bullying, discrimination and harassment and in Tasmania equality and wellbeing (which can cover those topics but also include topics such as mental health). For our listeners who have maybe thought about this sort of topic as a bit of a compliance tick box exercise in the past, why is it really important that we take this sort of conduct in our own businesses seriously? |
| NM:
7:00 | Well, yeah, I would caution against just looking at it as a compliance issue, because ultimately it goes to the culture of the firms that we all work in as well as the organisations of the clients that we support and nobody wants to come to work in an environment where that type of inappropriate behaviour is there, particularly if it’s not managed and issues are not addressed. So, culture in the workplace has been talked about so much over the last few years. We’ve now got different issues emerging out of the back of COVID in terms of workplace environments, hybrid workplaces. So, we’re still seeing it. Inappropriate conduct is still there but we are seeing it morphing in slightly different ways. For example, during COVID when everybody was at home working remotely you might have thought that instances and complaints of bullying may have decreased, but we just saw it in a slightly different way, I think. We saw complaints of bullying over Teams and Zoom calls. TIP: According to statistics collected by Crikey and referenced by Sexual Harassment Australia, in 2020, near the beginning of the COVID-19 pandemic, there was an 87% spike in the reporting of adult cyber abuse in Australia compared to the year 2019. Maybe bullying that wasn’t, that didn’t have witnesses to it because you weren’t in the office with people overhearing things and seeing things. So, the issues didn’t go away. There was still unfortunately opportunity for employees to be bullied and harassed, albeit through technology, perhaps more than before. |
| DT: 8:00 | Yeah. One of the things I was going to ask you was those statistics we heard at the top of the episode, of course, they were from survey data collected through 2020 and 2021, during the time we’re all working from home and in the pandemic. I was going to ask, have you seen the profile of these sorts of cases and the sort of conduct that’s coming across your desk change as we’ve moved to that remote and then balancing out at that hybrid sort of mode of working? |
| NM:
9:00 | Yeah. It’s become more nuanced in a way. Although one of the, from my perspective, helpful things has been that quite often those Zoom calls or Teams calls are recorded, and when there’s instant messaging that’s obviously recorded and you can go back and look at that and read it and hear it. It’s been an interesting take on how technology has actually assisted employment lawyers do their job. During that period, there is no doubt that both managers and team members were under a lot of pressure and whether that led to performance concerns which the employee then misunderstood to be bullying or whether it was actually bullying and it was going on behind the scenes more. Yeah, it’s changed the way that claims are framed. You still see, obviously, your more traditional forms of bullying and harassment in the workplace but I’d like to think most organisations, including law firms have moved on quite considerably in the last, say, 10 years. |
| DT: | We were just talking about policies or I mentioned at the top of the episode the importance of having policies so people know how to respond to this sort of conduct. Are you finding that some of those policies that might have been in place before the pandemic aren’t exactly fit for purpose now because they don’t really address the current working environment? |
| NM:
10:00
11:00 | A little bit. I think what’s important is to have flexible working policies, not just that go to the process and applying for flexible working but really working from home policies that deal with, not just the physical safety aspects from a work health and safety perspective, but also the potential risk of psychological injury occurring. We’ve seen a lot in the press and legislation being introduced in New South Wales, and it is coming in Victoria around psychosocial hazards and employers having to, in that context, look at their risk assessments, look at their processes and procedures, including their policies to ensure that, insofar as reasonably practical, they’re taking steps to reduce those risks. TIP: The Victorian Government committed to further regulation around psychological risk in 2021. WorkSafe Victoria prepared the Occupational Health and Safety Amendment (Psychological Health) Regulations and released them for public comment. Submissions on the proposal were received by WorkSafe, and feedback is currently under consideration by the government. As Nicola explains these new provisions aim to recognise psychosocial hazards and demand that employers take preventative measures to avoid such risks. This all plays into that, because in the virtual world or the hybrid world, you do have to cast a slightly different lens on your policies and procedures. So, even if you’re not actually looking to amend your appropriate workplace behaviour policy or your bullying, harassment and discrimination policy, I still do think you need, if you don’t already have one, a hybrid work policy or working from home policy that deals with some of these issues and reminds employees and reminds managers, that the standards of conduct expected in the workplace are just the same as when you are working whether that’s from your house, your holiday house, from your overseas trip you’re being allowed to work from the same rules apply. |
| DT: | That sounds obvious in theory, doesn’t it? But we’ve of course seen, not just in this realm but in plenty of others, those standards do slip if you don’t have that reminder. I’m thinking of those viral videos we might have seen a couple of years ago of lawyers appearing in court by the pool in T-shirts and swimmers and things like that. Now, let’s talk about the New South Wales legislation and the Victorian legislation that’s coming. How does that expand on the kind of existing work health and safety frameworks that were in place before that Act? |
| NM: 12:00
13:00 | Yeah. Well, I suppose arguably the work health and safety legislation was geared at preventing physical injuries in the workplace. We know that the provisions of the Acts are not limited to physical injuries, but there’s definitely been a big shift in the last few years towards recognising the risks to psychological health and safety and so those changes really focus on, as I say, psychosocial risks. They really mean employers are going to have to take a slightly different approach to work health and safety risk management and risk assessment and build in controls and a framework of dealing with. We’re seeing a lot of people complain that they’re overworked or under-resourced, because lots of companies lay off employees during COVID. It’s been hard, as we know, to attract and retain talent in Australia. So, a lot of employees are complaining about being overworked and that could be a form of bullying. It’s a psychosocial risk if not bullying in itself. So, employers have to look at that and say, is the job mapping being done correctly? Do we have enough resources? Even up to the board, are enough resources being given to HR and legal to be able to focus on issues like these psychosocial risks and bullying, harassment and discrimination. We’ve now obviously just had very recently the ‘Secure Jobs, Fair Pay’ legislation coming into force, which amends the Fair Work Act, which strengthens the sexual harassment provisions in the Fair Work Act and we have the Respect at Work Bill pending royal assent, so imminently, employers and, in fact, PCBUs – which is the terminology from the Work Health and Safety legislation, which is persons conducting a business or undertaking – are going to have a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, which includes sexual harassment, insofar as possible. So, again very much an emphasis being placed on the prevention rather than the cure. |
| DT: | Now, we’re talking about reasonable and proportionate measures for responding to this kind of conduct. What does that mean in the context of the size and scale of an organisation? Is that really what proportionality is directed to? |
| NM: 14:00 | Yeah, absolutely. The explanatory memorandum to the Respect at Work Bill talks about what is reasonable and what is a reasonable and proportionate measure and unsurprisingly it’s quite a familiar legal concept to us that it’s going to depend on the size of your organisation the resources available to you, which all goes to proportionality at the end of the day. If the Australian Human Rights Commission came along, for example, to investigate, they are going to expect much more of a large law firm with a dedicated and sophisticated HR team as they will expect from a firm of five lawyers, for example. But regardless of size, you still have policies, you still have training. Being a very small employer is not going to be an excuse for not having that basic framework in place and in fact, I suppose the smaller an organisation you are, the easier it should be, at least in theory, to understand what’s actually going on at ground level for your employees. |
| DT: | There should be fewer blind spots. In any response, regardless of the organisation’s size, again, there’s that proactive and positive character to whatever you’re doing to respond to these sorts of risks. |
| NM: | Absolutely. |
| DT: 15:00 | Let’s go back to that example you gave of the psychosocial risks as a work health and safety risk and then I’ll come back to the two new pieces of legislation. There’s so much happening in this area. That example of understaffing or overwork, I think is a really evocative one for what this means in terms of the expansion of work health and safety responsibilities, isn’t it? Because I think we’ve always understood bullying, harassment, discrimination as possible work health and safety risks, even under the existing legislation, that an injury need not be a physical injury, but that idea that the staffing levels of a business might pose that broader concept of a psychosocial risk. I think that’s a really clear example of something that you wouldn’t have considered covered by the existing legislation before the amendments. Are there any other expansions to the scope of a PCBU’s responsibilities from a work health and safety perspective arising from that change that you’ve seen? |
| NM: 16:00 | Well, I think it’s the practical impact. I think clients are struggling to work out what to do on a practical ground up basis to ensure that they’re discharging their obligations. |
| DT: | You mean in terms of actually identifying and assessing risks? |
| NM: | Yeah. |
| DT: | Because it’s one thing to walk the floor, take the really trite factory example. Is that handrail functional? All those sorts of things. It’s difficult to walk around and spot a psychosocial risk, isn’t it? |
| NM: | It is. Particularly one of the real challenges that came out of COVID was you didn’t necessarily know when your employees or your team members were working and whether they were working reasonable hours or unreasonable hours because everybody had to flex so much to accommodate their individual circumstances and having children at home and all those things but we’ve heard lots of reports about there being less of a clear boundary between when work stops and your evening starts. |
| DT: | Yes. |
| NM:
17:00 | For example, because people were having to deal with other things and then log on perhaps late at night to do work. And I think for some people it’s been difficult to go back and put perhaps the same boundaries in place that they might have had pre the pandemic. And it’s really hard, if you think about a modern award covered employee who may be entitled to think about the legal industry graduates and paralegals and support services covered by the Legal Services award, they’re entitled to overtime onto the award when they work outside a certain span of hours or they work the weekend or if they work a certain number of hours during the week. So, all of a sudden you’ve got a real challenge for an employer in trying to actually monitor… |
| DT: | Yeah. |
| NM: | … what hours are being worked and when they’re worked and are they running into compliance issues from not just a work health and safety perspective, but compliance with the award provisions. |
| DT: | Yeah and underpayment issues for sure. |
| NM: | And underpayment issues, which is a whole other topic. |
| DT:
18:00 | That idea of having that freedom to work flexibly in flexible hours becoming a bit of a burden really reminds me of some of the stories we saw coming more out of the US than Australia but I think it is a policy adopted by some companies in Australia, of unlimited leave days resulting in far fewer leave days actually being taken by employees than companies that have a fixed number of leave days because there’s a kind of unspoken cultural pressure not to take too many. It’s an interesting dynamic, isn’t it? |
| NM: | Absolutely. It’s not monitored in the same way either. So, there are no records for a manager or HR in that scenario to say, “oh, we’ve noticed that you’ve got so many days of leave accrued and from a wellbeing perspective, we need you to start looking at when you’re going to be able to take them.“ |
| DT: | No, it’s interesting. Now, let’s talk about the amendments to the fair work legislation. |
| NM: | Yep. |
| DT: | Specifically on the topic we’re talking about today, how that affects the sexual harassment provisions. Tell us about how some of those provisions have been strengthened. |
| NM:
19:00 | So, look, from the Fair Work Act perspective, we saw a couple of changes last year. We saw, for example, the definition of serious misconduct in the fair work regulations was amended to specifically include sexual harassment as an example of conduct which could amount to serious misconduct. You might be surprised it wasn’t already there, but it wasn’t and it is now. TIP: Effective from July 2021, the amendment that Nicola refers to is found in regulation 1.07 of the Fair Work Regulations 2009 (Cth). Under r 1.07(3)(a)(iv) serious misconduct includes sexual harassment. |
| DT: | That sounds like it’s aligning with most people’s expectations. |
| NM: | Exactly. |
| DT: | Yeah. |
| NM:
20:00 | This time around, the changes this year, one of them is to make it clear in the Fair Work Actthat sexual harassment is unlawful. It’s opening up a new regime within the Fair Work Commission where we’re not just going to have a bullying jurisdiction. So, the ability for an employee to ask for a stop bullying order, we’ve also got the ability now to ask for a stop sexual harassment order. That’s been in place now for a number of months, but the scope of that regime is expanding so that an employee will actually be able to go to the Commission and seek their assistance from a dispute resolution perspective. So, the commission’s got a number of new jobs it’s going to have to undertake as a result of the legislative changes recently. I think there’s going to be something like a 20% uplift in the number of commissioners. |
| DT: | Wow. |
| NM: | So, we’re expecting the Fair Work Commission to be busy. I think in terms of the impact it’s going to have on employers, and of course, law firms are included in this, is the Respect at Work Bill amendments and the introduction of the positive duty and the quite considerable expansion of the Australian Human Rights Commission’s powers to investigate and some compliance functions they’re going to have that we haven’t seen before. They’re going to be able to investigate, make recommendations for issue improvement notices, issue enforceable undertakings, commence court proceedings if needed in a much more similar way to what we’ve been used to with both the Work Health and Safety regulator and the Fair Work Ombudsman. |
| DT: | I was going to say, it does sound an awful lot like work health and safety legislation. |
| NM: 21:00 | Yes. Even the introduction of the concept of the PCBU into the Respect at Work Bill is mirroring the work health and safety legislation and certainly we are recommending our clients take the same sort of risk assessment approach to how they’re going to be able to comply with that positive duty in a similar way to the work health and safety framework and risk assessment. |
| DT: | Now, the positive duty does, in large part, reflect that work health and safety ethos but for our listeners who might not have seen that provision of the Bill, which has received royal assent so it’ll be coming into effect. What is that positive duty? |
| NM:
22:00
23:00 | Yeah. So it’s all very well to say you’ve got this positive duty but what does that mean in practice? So, if you’re moving to this preventative approach then the legislation says you’ve got this positive duty to take reasonable and proportionate measures to reduce the chance of sexual harassment occurring in the workplace or other types of sex discrimination. So, look, yes, having a policy is great. I would expect most employers to have baseline appropriate workplace behaviour policies now. If they don’t, they certainly should but it’s not just about the policy. It’s going to involve training and not just induction training, regular training. As I say, I think it needs a risk assessment approach to “where are the risks”. Do we know there’s been complaints in the organisation? Are there pockets in the organisation where we know there’s an issue? Whether it’s a cultural audit or whether it’s more of a distinct problem that you need to go and sort out within the organisation. You also need complaints mechanisms. You need your employees to trust in the system and trust that they can make a complaint and it’ll be taken seriously. Some commentators have talked about it in terms of gender mainstreaming, which is applying a gender lens to all your activities, processes, and procedures and looking at them from the perspective of; is there an imbalance in the impact that these activities, processes, and procedures have on women in our workforce, even if that’s an inadvertent impact and looking at how you redress any issues that you discovered as part of that exercise. |
| DT: | That’s really what we mean by a positive duty. It’s not enough to have a policy in place that you can reprimand or discipline when that policy is breached. It really does have to have that proactive approach of delivering regular training, looking for those issues and seeking them out and responding to them proactively. |
| NM: | Absolutely. |
| DT: | Now, we’ve talked about some of the legislative updates, a lot happening in this area as we’ve just mentioned. Let’s take a step back now and talk about bullying, discrimination, and harassment under the law as it currently stands, I suppose, although informed by the amendments we’ve just been talking about because we’ve rushed ahead to our legislative updates, but what are bullying, discrimination and harassment really, from a legal perspective, we might just say, “well, we know that conduct when we see it,” but what does the law say these types of conduct are? |
| NM: 24:00
25:00 | Yeah, and it’s a good point because the words can be bandied around and that might, of course, be how someone perceives the way they’re being treated but the law may not recognise that as the case. So, bullying is defined in the Fair Work Act. Up until a few years ago, we never actually had a statutory definition of bullying and I think it’s helpful that we now do and it’s defined as repeated and unreasonable behaviour which causes a risk to a person’s health and safety. So, the repeated element, I suppose, is an important part of that definition because it means, generally speaking, a one-off incident will not be sufficient to constitute bullying. Not to say it might not still be inappropriate conduct under an employer’s policy and breach the expected standards of behaviour but it wouldn’t amount to unlawful bullying for the purposes of the legislation. Discrimination is when somebody is treated less favourably but it links to a protected attribute, so you’re treated less favourably because you have a protected attribute. For example, your age, your sex; you have a disability. So, it’s got the concept of a comparator and being treated less favourably as a woman than a man in the same or similar situation. That’s direct discrimination. You also have indirect discrimination, which is where an employer applies a condition or a policy or a requirement, which on its face may look fair and reasonable, but which in actual fact has the potential or does have a disproportionate impact on a person or a group of people with a protected attribute. So, take for example, God, this was a real back in the day in the UK, that to be a police officer you had to be of a certain height. |
| DT: | That was the one I was thinking of actually. |
| NM:
26:00 | It’s the one we all go to. It’s a really clear and obvious and easy to understand example that had a disproportionate negative impact on women and of people from certain national origin. So, that was outlawed on the basis that it was having that disproportionate impact, but also an assessment about whether the condition or the policy or the requirement is fair and reasonable in all the circumstances. So, it’s not enough that it has the disproportionate impact. It’s also got to be unreasonable in all the circumstances. Again, linked to a protected attribute. Harassment is a bit more difficult because harassment in of itself is not unlawful. Certain types of harassment can be unlawful. For example, sexual harassment. The disability discrimination legislation has a anti-harassment provision in it. Racial vilification is considered harassment under the racial discrimination legislation but interestingly, as I say, harassment in itself isn’t unlawful. That can be misunderstood by employees sometimes and, again, an employer may refer to harassment being inappropriate and contrary to its standards of behaviour within a policy but it’s not an unlawful concept in of itself. |
| DT: | Yeah, I think that’s an important distinction to make, isn’t it? That harassment is obviously not a behaviour that you want in your workplace, even if it isn’t unlawful and so it’s important to create that obligation in a policy or a contract of employment. |
| NM: 27:00 | Exactly. And obviously there’s an overlap. Sometimes people use the terminology bullying, discrimination, harassment as one concept. They’re obviously different concepts, but you can see how they can overlap. I could be being bullied because I have a protected attribute or I could be being sexually harassed and that may also have a bullying element because it’s repeated, it’s unreasonable and it’s causing risk to my health and safety. So, there’s definitely an overlap in some cases but not always. |
| DT: | Now, we’ve talked a couple of times in this episode about policies and how the new legislation, especially the Respect at Work Bill, soon to be Respect at Work Act, will really require us to go beyond policies but let’s talk for a moment about policies. We’ve mentioned how important they are, how important it is to set standards of behaviour at work, but what should they actually say? What is the basic content of a good bullying, discrimination and harassment policy? |
| NM: 28:00 | Yep. So, they’re there to set up the framework. We know that it’s not good enough just to have a policy and forget about it, but they’re certainly useful and they are effectively the cornerstone of setting up the expected standards of behaviour within the workplace. So, I wouldn’t expect that a policy of that nature would firstly make it clear who it covers. And unlike some other HR workplace policies, they don’t just cover employees. They should be clear that they cover contractors, temporary staff. Some parts of the policy may also cover clients and visitors because in the same way you don’t want colleagues treating each other inappropriately, you don’t want clients treating your staff inappropriately or visitors to your work site. So, coverage is important. Then you’ll expect to see an overview of the types of conduct that are considered to be inappropriate and unlawful, explanation of what is bullying. Examples of it, the same with harassment and discrimination – an explanation of what they are that people can understand and examples. |
| DT: | Just pausing there, that people can understand in such an overlooked part of these sorts of documents, isn’t it? |
| NM: 29:00
30:00 | Yes. It shouldn’t be legalese at the end of the day and we are seeing a move. We have plenty of clients who have worked really hard to strip down, strip back their policies to the absolute essentials, but in a very user-friendly way, in a language that people understand and it’s really important to have examples because how often we see a bullying or discrimination or harassment claim where the alleged perpetrator says, “oh, I didn’t mean it, it was just a joke.” So, it’s often in the nuances. Most employees, I’d like to think, know not to bully, harass, and discriminate against people, but they may end up doing it inadvertently, and intent is irrelevant when it comes to these issues and that quite often is where, yeah, perpetrators or respondents to complaints fall down. So, examples are very important as is explaining to your workplace participants where and when the policy applies. So, again, this has changed over the years and policies do need to be updated to reflect the world in which we’re working now. So, it’s not just in the office, the policy equally applies at home or at a work event, the hotel bar after the conference, all those places where you are representing your employer. It’s almost like a but-for test; but for work, would I be in this situation? But where the lines become really blurred, is this sitting at your laptop, late at night, messaging a friend, a friend who’s also a colleague. |
| DT: | Yeah. |
| NM: | Is that the workplace? And there’s been quite a few cases where that’s had to be examined, but it’s a very gray and blurry line. |
| DT: | I imagine there’s no clear answer to that question, really. It’s always going to turn on the facts in every individual case. |
| NM: 31:00 | That’s right. The working late at night or sending messages on your phone, there would be an analysis or assessment of, was it a work issued phone? Who was paying the bill for it? Was there an expectation that you were working at that particular time? All these factors will come into the mix. If the court or tribunal has to assess whether the conduct alleged took place at the workplace or not. |
| DT: | And I suppose the real takeaway for employers, including our listeners who might be principals of law firms, is you’d have to, as a matter of safety, I guess, assume the broadest interpretation of the workplace or where interaction between your employees… |
| NM: | … could be happening. That’s right. |
| DT: | Exactly. Yeah. |
| NM: | Yeah. TIP: If you’re interested in hearing more around the shifting sands of employment; including distinctions between contractors and employees, flexible working – such as the flex changes brought about by COVID-19 – and whether WFH qualifies as a workplace for health and safety purposes, check out Nicola’s earlier recording with Hearsay – Working 9 to 5, redefined. That’s at episode 8, so one of the very first episodes of the podcast. |
| DT: 32:00 | Now, let’s go back to coverage because I had a question about that. So, as I understand it, policies implemented through reference in employment contracts. That’s easy enough. Is that usually the way they interact with the contract of employment from a boring contract law perspective? |
| NM:
33:00 | Yes. They’re usually referred to in contracts of employment but what you will tend to find is that the provision around policies in the contract will state that the policies apply to you as an employee and that you’re expected to comply with them, but they don’t form part of the terms and conditions of your contract and the policies themselves may also very well state that whilst you’re expected to comply with them and a breach of them could lead to disciplinary action up to including termination of employment, they’re not contractual in nature and the reason for that is to allow an employer to amend and update policies as and when it needs to. That makes it much more difficult to do, obviously, if it’s a contractual term where you have to get every employee’s consent to update your policies. You don’t want to be doing that as an employer. |
| DT: | No, not really practical. |
| NM: | Yeah. |
| DT: | But the real question I had about coverage there was you mentioned, especially for policies covering discrimination, harassment, bullying, you want those to cover contractors as well. You want those to cover clients and customers potentially. How, from a legal perspective, do you bind those parties or is it more a statement of what your employees can expect from you in terms of the behaviour that you’ll encourage from these people? |
| NM:
34:00 | Yeah, look, it’s a bit of both. With your contractors, you would certainly hope that you would have written agreements with them and albeit as a principal in a principal-contractor relationship, you shouldn’t be seen to be controlling the contractor. I still think it’s very appropriate that those written contractual agreements would have a provision that they’re expected to comply with the principles, policies and procedures that relate to work health and safety and appropriate workplace conduct. If you don’t have a written agreement, if it’s just a visitor on site then most visitors do have to sign in when they come to a workplace and agree to certain policies and procedures as they, probably oblivious that we’re doing it but, from a work health and safety perspective, there’s usually some sort of form we sign when we enter a workplace, even as a visitor. You could include something there, but you’re right, it’s more about the expectations for your own employees and your own staff, so that they know that just because it’s a client who’s behaved inappropriately, that doesn’t mean that they just have to effectively put up and shut up for fear of rocking the boat with the client. They need to have confidence that they can still come to you as an employer and say, “this has happened to me and I don’t feel comfortable and what are you going to do about it?“ |
| DT: | And I think that’s such a big issue in our profession, isn’t it? |
| NM: | Very much. |
| DT: 35:00 | That there’s this real pressure not to rock the boat with the client, as you say, but also with other lawyers that we work with. I’m thinking especially of working with counsel in a litigation context, that there’s a real power and respect imbalance there and there’s a desire not to rock the boat if something is said or done that might endanger that relationship. Have you seen that sort of dynamic play out? Maybe not in your own practice, but in some of the cases that you’ve dealt with? |
| NM:
36:00 | I have. I’ve heard of cases, certainly and I have come across, probably on two occasions, law firms who’ve actually severed their relationships with clients because of that type of behaviour going on. Obviously it’s certainly not ideal for the law firm and the client, but it sends a really strong message to your employees that just because that relationship may be valuable, we will not condone that type of behaviour but to get to that point, employees, as I said before, have to have trust in the policies and the procedures and I think the best way to gain that trust is for them to see it in action and if there has been a complaint, albeit these things are meant to remain confidential, the worst thing, I suppose, would be if an employee did complain and then nothing was done about it because word gets out on those types of things and that will leave the employer in a very precarious position. |
| DT: | It sends a strong message to sever that tie with the client, but it sends an equally strong message not to do it, doesn’t it? |
| NM: | Exactly. |
| DT: | Now, we’ve talked about how these policies should be formulated, what they should contain, and how we incorporate them into our relationships with our employees, with our clients, with our contractors but we can’t just put those documents in place and forget about them, especially with the new legislation coming in that requires that more proactive approach. Have you seen any examples where there were these great policies in place but they just weren’t being used or they weren’t being implemented as well as they should have been? |
| NM:
37:00
38:00 | I’ve had lots of experiences where, perhaps you’re running an investigation for an employer client and you put to complainants or witnesses; “did you refer to the bullying and harassment policy? Did you know about it? Did you look at it? Did you follow the complaint resolution procedure?” And they’ll say to you “I didn’t know it existed. I was given 100 pages of documents on my first day and asked to sign to say that I’d received the policies. So, if you’re telling me that document was one of them, then yeah, I must have signed to say that I’d read it and received it but that was it.” We see that happening a lot. So, the idea that you can disseminate those policies on induction or in the first few days of an employee’s employment, and then two years later if there’s an incident, seek to rely upon them. It just can’t be done. It wouldn’t work and the court will be extremely critical of you if you try and take that approach. Now, we also saw a trend towards online induction training, compliance, online compliance modules. They’re great and they have their place and they have their usefulness but we are recommending that organisations get back where possible to face-to-face training and not just obviously on induction. If you’d asked me a year or two ago, how often do you think an employer should run refresher training, for example? I would’ve said probably every 24 months. Now, my recommendation would be every 12 months. As I say, face-to-face, ideally, because that’s when you get the interaction, that’s when you get people paying more attention, asking questions, going away and having water cooler discussions about what they’ve all heard and what they’ve talked about. I walk out of these training sessions and sometimes you get people laughing about the scenarios you’ve come up with and sometimes people are incredulous that type of behaviour still goes on in organisations, but often you do get employees saying, “oh oh ha, when I said that joke last week, I probably shouldn’t have said that joke last week” or “now I come to think about maybe what goes on around the office isn’t necessarily appropriate.” So, it’s garnering that awareness for employees, making them understand it in terms they understand and then ensuring they know what the complaint mechanism is… |
| DT: | Yeah. |
| NM: 39:00 | … because again, even if a complainant knows that there’s a policy that says, I’m entitled not to be bullied or harassed, quite often they didn’t know there was a complaint mechanism, and that might be contained in the same policy, or it might sit as a standalone complaints handling policy or a grievance policy, for example. So, you’ve got to make sure your policies are speaking to each other. If you’ve got a bullying and harassment and discrimination policy that doesn’t have its own complaint handling process, you need to be stating in that policy that if the person has a complaint, they should refer to the grievance policy or the complaint handling policy. |
| DT: | Now, let’s talk about the complaints side of things. We’ve been talking about prevention. Let’s talk about responding to the symptoms, the cure, I suppose. When an issue around bullying, discrimination, or harassment, or a dispute about one of those things arises at work, the first port of call is the internal complaints process. Tell us a little bit about what a good complaints process looks like and if that doesn’t resolve things where the issue could go from there. |
| NM: 40:00
41:00 | Yeah. Look, normally a complaints handling process will talk about there being various ways to raise a concern or try and resolve a dispute. There’ll usually be an informal process and a more formal process. So, the informal process will generally look to encourage the employee to raise concerns with the person that they’re experiencing the issue with, if they feel comfortable doing that. We know from the cases we deal with and the issues that our clients have that nipping the issue in the bud as quickly as possible is the most effective way to stop it escalating. That stands to reason. The amount of times you see employees who haven’t had the confidence or haven’t understood that they should feel comfortable addressing the, inverted commas, ‘perpetrator‘ directly where it could have been nipped in the bud, but it hasn’t, and it’s escalated. So, encouraging employees within their comfort zone to try and address the issue themselves early on is important but it’s also equally important that they understand that if they don’t feel comfortable doing that, they can still raise things informally with say, a manager or their HR or their people and culture team. Just because they take it to their manager or their HR team doesn’t in of itself mean it has to be formal because those people can still help you as an employee, try and resolve it informally by speaking to the person that you’re having the issue with themselves and it’s only really if that hasn’t worked or you feel the issue’s too serious or say it’s about your manager, your complaint, that you might want to escalate it and bring a formal complaint, which will generally mean having to commit to writing what your concerns are and likely an investigation flowing from that to gather evidence and work out whether the complaint is substantiated or not. |
| DT: 42:00 | Often those investigations are internally conducted, but there’s increasingly a move towards external investigations, sometimes conducted by specialist employment law firms experienced in conducting those investigations. When is the right time to have that investigation done internally or externally? |
| NM:
43:00 | Yeah, it’s a hard question to answer because every situation is so different. You’ve got to think about who’s involved? Who’s the complaint against? Is there an experienced person in HR who can conduct the investigation without a perception of bias? Number of factors will go into that decision. There is also sometimes a decision to go external to a law firm because an employer might want the investigation to be privileged, subject to legal professional privilege. There’s also a lot of organisations out there now who will run workplace investigations and investigators may have a background in HR or legal. So, look it can help a perception of bias if you have the investigation run externally. What’s really important though, is that the person conducting the investigation knows how to run a procedurally fair investigation. Now, if, for example, you’ve got someone in HR complaining about their HR manager, is it going to be appropriate for someone else in that HR team to run the investigation? Probably not but you do have to look at it on a case by case basis and work out from there what’s the best route. |
| DT: | Now, if someone’s still aggrieved after the complaints process, they still don’t feel that their complaint’s been adequately handled. Where does the issue escalate to from there? |
| NM:
44:00 | Well, it may escalate to external lawyers being involved if the employee engages a lawyer to assist them in escalating the concerns. Even if it’s not a formal appeal as such, some organisations will allow the employee to raise their concerns up to say the next level of management. Most organisations in Australia wouldn’t have that as part of their formal policy because it’s not a requirement legally to allow appeals of complaints or grievances and so the disgruntled employee may look to the Australian Human Rights Commission or the equivalent state body or the Fair Work Commission to help them resolve the matter externally. |
| DT: | We mentioned earlier the HRC has expanded responsibilities under the Respect at Work Bill to investigate these sorts of complaints. What are some of the tools they can use to respond to a complaint like that under the new legislation? |
| NM: | Yeah. So they will be able to come in and effectively investigate an issue. So they can knock on an employer’s door in the same way the Ombudsman or the Work Health and Safety Regulator can and say we need to work out whether there’s something to see here so they can issue requests for documents, they can make recommendations as to improvements an employer might want to consider. This is going to be a much more interventionist role that they will have going forward. |
| DT: | And can you tell me a bit about the Fair Work Commission’s new sexual harassment discrimination jurisdiction? What are some of the dispute resolution tools that it has available to it after the new legislation’s come into place? |
| NM: 45:00 | Yeah, so it’s going to look, I suppose, quite similar to how it would run a stop bullying application currently which means an application form is submitted, employer has an opportunity to provide a written response and then the matter will be set down for effectively a conference, which is an attempt to conciliate. So, the Fair Work Commission has very broad and wide ranging powers to conciliate, mediate or ultimately arbitrate if a resolution can’t be achieved through the conciliation and mediation process. |
| DT: | From your experience in the bullying jurisdiction, do most matters resolve at conciliation or do they tend to progress? |
| NM:
46:00 | Look, if you think about the matters that the Commission deals with more generally, which would include general protections claims commonly referred to as adverse action claims, unfair dismissal and the bullying jurisdiction, yes, the large majority resolve at conciliation or shortly thereafter. The interesting thing about the bullying regime is that the commission doesn’t have any powers to award compensation. So, the whole concept of that jurisdiction and now the stop sexual harassment jurisdiction is that you can actually try and resolve things and repair the working relationship between the employee and whoever is the subject of the complaint. So, it’s all geared towards “would the Commission eventually have to order that certain behaviour stop” or the employer implements certain actions like put in a policy or make sure everyone has had training in relation to these issues. So again, it goes to perhaps a hopeful view that there is still the opportunity to repair relationships and allow the working relationship to continue. Unfortunately in my experience, I tend to find, not in all cases, but in most cases, by the time we’re up at the Commission in relation to that type of dispute then the more likely outcome is some sort of negotiated exit from the business for an employee or a number of employees involved. |
| DT: | We’ve talked a bit about the importance of trust in the process and trust in the tools that the employer has in place to respond to this sort of conduct. I guess if it’s at the Fair Work Commission, almost implicitly that trust is eroded. |
| NM: | Trust is gone. Yeah. |
| DT: | Yeah. |
| NM: 47:00 | And it’s very hard to rebuild at that stage, particularly when external lawyers are involved |
| DT:
48:00 | Yeah, absolutely. Well, I was going to ask you when is the right time to involve external lawyers? Because there’s a delicate balancing act there, isn’t there? We’ve talked about both of these interests earlier in the episode. On the one hand, of course, we owe a responsibility of confidentiality to our employees, not to broadcast loudly their complaints if they want them to be kept confidential. On the other hand, role modeling is an important tool to show that certain behaviours won’t be tolerated and that prosocial behaviours should be encouraged. There’s a risk on either end of that spectrum that you could be seen to be hushing up bad behaviour or revealing private information. And I suppose getting external investigators, external lawyers involved really adds to the attention that this sort of dispute in the workplace might bring. As you say, these sorts of things tend to get out anyway, but strangers in the office interviewing everyone will certainly accelerate that. So, how do you strike that balance? It seems like a really tricky thing to do. |
| NM:
49:00 | It is a really tricky thing to do. I think the reality is, as you say, if a number of employees are being interviewed as part of an investigation with the best will in the world even if people believe that they are adhering to their confidentiality obligations, these things do have a tendency get out and you’ll have seen in the media the criticism of non-disclosure agreements, NDAs, insofar as, the big bad employer trying to hush up the employee who has been the subject of some sort of inappropriate conduct. They pay the money, they get the gagging and there’s a huge criticism of that approach now and I think we may see employees less willing to sign up to those types of agreements. I don’t think there’s an easy answer. It is an extremely hard balance to strike. I suppose what you do have to hope for is that if word does get out, then the word that’s getting out is that you as an employer have treated it very seriously and there has been potential repercussions for the wrongdoer. |
| DT: | We’ve really covered the whole life cycle of a bullying, discrimination, or harassment complaint today. We’ve talked about the policies that should be in place to prevent that behaviour. We’ve talked about complaints, processes. We’ve talked about where the issue might go after that and we’ve talked about not only the law as it stands today, but the law as it will soon stand when the Respect at Work Bill receives assent. If we had to leave our listeners with just one tip, though, perhaps, especially those listeners who are thinking about this issue from the perspective of their own responsibilities as an employer, what’s the one thing you’d like our listeners to take away in terms of their responsibilities about bullying, discrimination and harassment at work? |
| NM: 50:00 | It’s a big question. I think the most challenging aspect of that is looking at it, taking account of our organisations being completely different sizes with completely different levels of resource. Do you have internal HR? How well do you, as, say, a principal of a law firm, know all your employees? I think what is key, regardless of the size of the organisation, is that leadership is on board with this. Leadership takes it seriously. It leads by example, and I know it’s trite to say this but leadership is walking the walk, and talking the talk and when there are complaints, if you can get in there and look at early intervention, you’ll definitely be best placed to try and resolve the issues without them escalating but that involves knowing your workforce, knowing perhaps where there are pockets of concern or where there might be cultural issues within your organisation. I actually think cultural audits can be a really good starting point if you don’t know what’s going on within your organisation. Perhaps your organisation’s too big for you to be close to each of your employees. Empowering HR to have good and close relationships with the employees so that there’s a level of trust. They’re all good starting points. |
| DT: 51:00 | Yeah, that’s such a great point that in any organisation, no matter large or small, that role modeling from leaders is a cultural tool we can always use. Well, as always, it’s been a pleasure to have you on the show, so thanks very much for coming back in again, Nicola Martin. |
| NM: | Thanks very much for having me, David. |
| Ross Davis:
52:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our guest Nicola Martin from Squire Patton Boggs for coming on the show. If you want to hear more in the employment space check out Nicola’s previous episode – Working 9 to 5, redefined – that’s episode 8 of the podcast. If you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law point or for South Australians and Tasmanians a bullying, discrimination and harassment or equality and wellbeing point respectively. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Finally, before you go, I’d like to ask you a favour. If you like us, please leave us a Google Review. It helps other listeners find us and that means that we can keep making the great content that you love. Thanks for listening and we’ll see you on the next episode of Hearsay. |
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