Discrimination, Bullying & Harassment
All workers should be able to undertake their work without worrying about discrimination, bullying or harassment. There are numerous legal protections and workplace rights available to workers when it comes to harassment, discrimination and bullying.
It is very important for employers to have policies and procedures in place which deal with discrimination, bullying and harassment in the workplace, not only to protect their employees but also to reduce liability. However, policies may not be enough – employers should also provide regular training to ensure policies and procedures are understood and complied with.
What is ‘discrimination’ in the workplace?
There are various types of discrimination set out in Federal discrimination legislation including:
- Direct discrimination which makes it unlawful to treat a worker less favourably on the basis of their particular protected attributes such as, a worker’s sex, race, disability or age
- Indirect discrimination which occurs when a requirement is imposed in the workplace which has the effect of disadvantaging a group of workers with a particular attribute
What is ‘harassment’ in the workplace?
Harassment is a particular type of unlawful discrimination. Specifically, sexual harassment is any form of unwelcome conduct of a sexual nature which a reasonable person would consider to be offensive or would humiliate or intimidate a person. It also includes unwelcome sexual advances.
Examples of harassment include:
- insulting jokes about specific racial groups
- sexually explicit or suggestive emails or texts
- displaying racially offensive or pornographic material
- derogatory comments or jokes about a worker’s disability
- asking intrusive questions about a worker’s sex life, or discussing your own sex life
What is ‘bullying’ in the workplace?
Bullying is repeated and unreasonable behaviour directed towards an employee or a group of employees that creates a risk to health and safety. Examples of bullying include:
- physically or verbally abusing another worker
- yelling, screaming or using offensive language towards another worker
- purposefully excluding or isolating a worker
- psychological harassment or intimidation of another worker
However, reasonable management action carried out in a reasonable way is not bullying.
General Protections under the Fair Work Act
The general protections provisions of the Fair Work Act also cover discrimination and it is unlawful for an employer to take adverse action against a worker or prospective worker because of a ‘protected attribute’. Protected attributes include:
- race, colour, religion, social origin or national extraction
- sex or sexual orientation
- physical or mental disability
- marital status
- family or carer’s responsibilities
- political opinion
‘Adverse action’ is defined as either doing, threatening or organising any of the following:
- dismissing an employee
- injuring an employee in their employment
- making changes to a worker’s job to their disadvantage
- treating a worker differently to their colleagues
- not hiring a potential worker
What can a worker do if they are being harassed or discriminated against?
Workplace policies and procedures should outline the ways a worker can deal with the issue informally by raising the matter with their supervisor, manager, workplace health and safety, human resources officer or union representative who will be able to provide helpful advice.
The policies should also set out a more formal complaint process which will require an investigation into any allegations of harassment or discrimination.
Who else can help resolve discrimination, harassment and bullying claims?
The Australian Human Rights Commission (AHRC) or the relevant state or territory Anti-Discrimination Tribunal or Human Rights Commission have the power to deal with complaints of workplace harassment or discrimination and that is done through a conciliation process. If complaints cannot be resolved by conciliation, the matter can be referred to the appropriate court or tribunal for determination.
The Fair Work Commission can also issue stop-bullying or stop sexual harassment orders or deal with discrimination which is in contravention of the general protections provisions.
How employers can minimise discrimination, bullying and harassment
Discrimination, bullying and harassment issues can harm not only the victims of such conduct, but the workplace generally, and the reputation of an organisation. Education and information are essential elements when addressing such issues.
Employers should understand the types of conduct (whether intentional or otherwise) that may be considered discrimination, bullying and harassment and implement systems aimed at preventing such conduct. Employers are also responsible for educating their employees on these issues, which can be achieved through good workplace policies and practices, and training.
Working with a team of employment law professionals can help business owners and operators effectively manage their workplaces to ensure ongoing best practice.
We have expertise in all areas of employment law and have assisted many employers and employees from various workplaces. We can help employers proactively manage their workplaces by implementing systems aimed at reducing the incidence of conduct that could lead to a claim or workplace dispute.
If you are an employee and the victim of discrimination, bullying or harassment in your workplace, we can provide advice and guidance to help you navigate these issues and, where relevant, pursue a claim on your behalf.