Sexual Harassment In The Workplace: A Case Study

Sexual Harassment In The Workplace: A Case Study

Sexual harassment is any unwelcome sexual behaviour that makes a person feel uncomfortable, intimidated or humiliated. It is inappropriate sexual remarks or physical, verbal or written advances made in a place of work. Sexual harassment is also a form of illegal employment discrimination. Sexual harassment in the workplace in unlawful, and an employer may be vicariously liable for sexual harassment engaged in by the employees in connection with their employment unless it takes steps to manage and prevent such behaviours.

It has become the key goal of decision makers for many organisations and businesses to help in preventing sexual harassment and defend employees from these charges.

Below is a case study of how not having an adequate sexual harassment policy as a business owner can go terribly wrong and also how not following it or ensuring your employees are educated in it can harm a business.

In the case of Evans v Pasadena Foodland and Crugnale (2019), an Australian supermarket and one of its employees were ordered to pay another employee an amount of $30,000 in compensation simply because the case of sexual harassment that was brought to the owner’s attention was not investigated properly. What’s most important in this case is that the employer was held vicariously liable for the incident because of their negligence in not only investigating the matter but also in ensuring that their sexual harassment policy was clearly understood by their employees.

When the incident was reported to the management by the complaining employee, CCTV footage was reviewed and the employer made a judgement that nothing of concern was noticed. Of course, the accused employee (a chef) insisted that the touching (of another employee in the supermarket) was completely accidental and denied any sexual harassment.

The employer insisted that they had taken all reasonable and relevant steps to prevent sexual harassment in their business by ensuring that:

  • They had a workplace policy in place that prevented sexual harassment and provided for reporting sexual harassment
  • They had ensured that the employee who was accused of sexual harassment was aware of and understood the policy prior to them being employed
  • They correctly and properly investigated the complaint

When finalising judgement on the matter, the judge in the case ruled that the employer had firstly failed to follow their own sexual harassment policy. He also judged that they had failed to properly train their staff with regards to the business’ sexual harassment policy and sexual harassment in general and had not explained properly how a complaint of this matter would be handled. The judge also ruled that the employees investigations were inadequate and tardy in relation to when the incident occurred.

What Should Employers Do?

Hopefully this case study demonstrates how important it is to create a working environment that is free from sexual harassment, that all staff are treated with respect and dignity, that they provide employees with an effective procedure for complaints and that all complaints are treated with sensitivity, fairness and in a confidential manner. As an employer you need to provide your employees with support and confidentiality in the event of anything like this occurring at your workplace. Putting up examples of relevant sexual harassment cases which are relevant to your specific work environment will assist in promoting awareness.

Tips you as an employer can use:

  • Present the sexual harassment policy to all staff at a meeting with everyone present
  • Executives or Senior management should endorse the policy and emphasise that staff should adhere to the policy
  • Email copies to employees, put a copy on the intranet and display the policy on notice boards and add to the company manual
  • Provide all new staff members with a copy and present it to staff during induction
  • Ask all staff to sign a copy of the policy acknowledging they have received and understood it

Here are some more Case Examples of Sexual Harassment

Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81

Ms Aleksovski was subjected to repeated forceful requests from a co-worker to spend time alone together ‘at his place’. She was awarded compensation totalling $7,500. Source: http://www.austlii.edu.au/au/cases/cth/FMCA/2002/81.html

Bishop v Takla [2004] FMCA 74

Ms Bishop was subjected to a range of unwanted sexual harassment, including sexual remarks and physical contact; she suffered post-traumatic stress disorder as a result of the harassment. She was awarded compensation totalling $24,386.40. Source: http://www.austlii.edu.au/au/cases/cth/FMCA/2004/74.html

Lee v Smith (No 2) [2007] FMCA 1092

It was found that the Applicant had been subjected to sexual harassment in the form of rape, as well as sexual discrimination and victimisation. She was awarded $392,422.32 in damages. Source: http://www.austlii.edu.au/au/cases/cth/FMCA/2007/1092.html

How Fresh HR Insights Can Help

Sexual harassment can affect your company’s public image. With the waves created on social media in recent months about sexual abuse, this problem has become very high profile in the media. Fresh HR Insights is aware of the need for companies to now re-evaluate harassment policies and re-introduce training in an attempt to preventing and avoid sexual harassment in any business.

We are able to assist you with renewed and updated harassment policies, helping create awareness in the workplace. A written policy is insufficient on its own and it should be implemented clearly and thoroughly through communication and education of staff. If you are concerned that your current policy is insufficient or would just like to get some advice, please don’t hesitate to contact us.

Related Tag: Business Human Resources

How To Deal With Conflict Resolution At Work

How To Deal With Conflict Resolution At Work

While everyone is different, we should all strive to be productive, work hard at our jobs and maintain healthy work relationships. However, some people just rub each other the wrong way, no matter how healthy the work environment is. It happens – especially when you add the pressure of deadlines, projects and the fears of losing a client or a pitch. There are plenty of reasons why there is conflict at any organisation, making those involved feel bitter and resentful, and if the problem is left to fester; it will start affecting everyone else in the office. Poor leadership is a significant reason for conflict because the team may feel they are not being led well, resulting in poor company performance and low staff morale. To avoid such a scenario, managing conflict resolution at work is essential, and we will help you explore the reasons and methods to help any leader motivate their staff once again.

Causes Of Conflict

  • Besides mismanagement of resources leading to both low turnover and uncompetitiveness due to poor leadership, a lack of communication can lead to a void of information. When the team doesn’t know what’s going on or what they’re expected to do, it can lead to conflict with management.
  • The feeling that salary and benefits are not equal at work leads to a significant drop in morale, and a lack of resources to complete one’s projects and work can be demoralising.
  • Another frustration trigger for an already demoralised team is when the systems are not well maintained, leading to work disruption, delays, outages and missed deadlines which in turn leads to a loss of clients.

The lack of communication mentioned earlier then results in more conflict, especially when the team want change but there is a resistance from management. Such resistance can be seen as a threat when the reason for the change is missed completely. When a team raises issues, and they persist long after being raised, it suggests that the employees’ solutions and suggestions are being ignored, which leads to a hostile work environment. A negative working environment is when the culture of a company has become toxic due to unfair treatment, bullying, fear, undermining others and entitled employees or even employers.

Signs Of Conflict

Now that you understand the “What” of conflict let us shift to its signs between individuals and how to spot these warning signs. While any manager might be tempted to ignore the conflict and pretend that it doesn’t exist, hoping it will go away is not the correct method of dealing with it. Because we all know that when left unresolved, a conflict may lead to frustration, anger, communication breakdown and unhappiness at work, and can even escalate to heated arguments, finger-pointing, and assigning blame at each other, making it crucial to speedily resolve conflicts in the workplace. Before it ever gets to this stage, a manager needs to notice the warning signs, including mistrust between team members, belittling, and a lack of collaboration and cooperation. More red flags can manifest in passive-aggressiveness, reduced productivity, gossiping, lack of interest, fault-finding, harsh emails, tension, retaliating, lack of respect, hurtful words, and wanting to win the argument.

Serious conflict can quickly turn into claims of Workplace Bullying which is covered under the Workplace Health and Safety Act. In general, it costs the Australian economy up to $36 billion each year, with the average case amounting to $17,000-24,000 for employers. Legal penalties alone can carry a heavy price tag, with the WHS Act fining corporations as much as $500,000 for a category 3 offence and $3,000,000 for a category 1 offence. Can you afford that expense?

How To Resolve The Conflict

Now that you’re aware of the signs of conflict in the workplace and understand that ignoring it is not an option, what do you do? Well, each incident is different, including the severity of it and how seriously the situation needs to be treated.  But there are some general steps you can follow to try to come to a sound resolution. Playing the role of a mediator is one way to go about it. Find the time and place to listen to both parties involved in the conflict, ensuring you take no sides. Then take the time to figure out the source of the battle; this can be done by asking direct questions without beating around the bush. Doing this will help you get to the bottom of the hidden issue which has been causing friction between the parties. Once you understand the cause, you can quickly identify what led to it, including specific actions and behaviours, then determine why the conflict started and when it started. With all of the information on hand, you can then begin to talk to each party about how to resolve their issue.

A first step will always be prevention instead of the actual fire fighting of workplace complaints and conflict. Have you got your workplace bullying policy in place, what about your grievance policy and procedure and also your code of conduct? If you haven’t then you need to seriously think about getting them.

Fresh HR Insights has the personnel to help you resolve any workplace conflict as well as create these policies and procedures. We are HR Consultants on the Gold Coast, and we have more than a decade of experience, both nationally and internationally. You do not have to deal with conflict and the resulting impact on your own, we can step in and help you understand why people do what they do in the workplace. For more information, browse our website.

Related Tag: HR Support Gold Coast
HR Consultancy Services Gold Coast

We Help You With Managing Employee Terminations

We Help You With Managing Employee Terminations

Unhappy employees at a company always dream of packing their office accessories, stomping out of the office as they shout “Bye Felicia” behind them. The same can be said for managers who are tired of working with troublesome employees and can’t wait to wave them goodbye. Towards the end of the year employees also tend to start seeking out new challenges elsewhere which can also be a cause of conflict regarding leave pay-out. Regardless of the situation, managing employee terminations can be an emotionally exhausting affair, especially the side conducting the termination. A manager’s patience can be severely tested as well as their knowledge of the process during this period. If there is no expert in HR consultancy services to help you with the employee termination procedure, then you might unintentionally leave yourself and your company open to financial liability. To make this process proceed much smoother, here are a few points that you will have to keep in mind if the employee is the one instigating the termination.

Confirm In Writing

If one of your staff members is the one requesting to terminate their employment, then insist that it be done in writing and not verbally. The document must explicitly state the reasons they are ending the contract and their intended last day of employment. Before responding, do seek advice from an HR support services provider if you do not have an internal one. If there is no letter of resignation forthcoming, then request a written notification to make clear why they are leaving the company and the date. A resignation will only be valid where there is an unequivocal intention by the employee to no longer be bound by the employment agreement.

Resignation in Haste

If they are resigning in “Haste” because of a workplace argument or disagreement, then it is recommended that you give them time to cool down and then check that they are still wanting to resign.

The Fair Work Commission noted in case law principles that:

  • It may not be reasonable to immediately accept a resignation where there are special circumstances;
  • Special circumstances may include words said in anger, under undue pressure or the intellectual capacity of employee;
  • Where there are special circumstances, employers should allow a reasonable period of time to pass. The employer may need to enquire whether the employee actually intended to resign;
  • Given the special circumstances, whether an employee intended to resign will be judged objectively by the courts; and
  • Where a resignation is given and the intention is unambiguous, the employer is not required to make further enquiries.

If an employer fails to take these steps and simply accepts a resignation made in the ‘heat of the moment’, it may be subject to an unfair dismissal application against them. Section 386(1)(b) of the Fair Work Act 2009 (Cth) distinguishes between a genuine resignation and one where an employee has felt forced to resign ‘because of conduct, or a course of conduct, engaged in by his or her employer’, which is in fact considered a dismissal at the initiative of the employer.

In the case of Minato v Palmer Corporation (1995), a retail employee stormed out of the workplace saying to her supervisor that she could “shove the f***ing job up her a***”. When the employer refused to accept the employee’s withdrawal of her resignation, it was found to be ‘harsh, unjust and unreasonable’ and therefore an unfair dismissal under section 385(b) of the Fair Work Act 2009 (Cth).

Check Contractual Obligations

Before you make verbal agreements about anything in regard to a contract termination, do check the Employment legislation on whether their contractual obligations have been met. It is to ensure that the rights of the employee are not being infringed upon and that they give the company their best while still working there, according to their contract. If both parties comply, then this process can proceed smoother and with less risk of any claims against the employer. If the worker has leave days remaining in their contract or you don’t want them around the business during their notice period, check if you can pay them out – this is called ‘payment in lieu of notice’. This ideally is set out in their contract of employment. There are also other commitments to be calculated, such as final salary payments, overtime hours, as well as long service leave according to when the termination of employment will take effect. You MUST pay out all the employee entitlements or you may well receive correspondence from the Fair Work Commission. Many companies operate in risk-sensitive industries and might fear a jaded employee stealing company secrets and sharing them with competitors – it’s always best to have contracts that protect you and keep them up to date and checked.

Exit Interview Session and Duties Handover

An exit interview is a significant meeting, and managers should never be short-sighted about its relevance. Just because an employee wants to leave, do not take their exit interview for granted or take their notes in the discussion as just coming from a disgruntled employee. Having this interview will help you understand the reasons for the departure and the issues raised can be reviewed to improve the business. If these issues are fixed, it means that you have a better chance of retaining your staff. This time is also perfect for the leaving employee to share and transfer their knowledge about their duties to other employees who will be filling their role moving forward.

Clarify Restrictions – Restraint of Trades

Restrictions are absolutely reasonable in contracts with permanent staff members and are made to protect the company. It is not designed to prevent an employee from leaving but that they should not start a company within the industry, presenting a threat to their old employers. It can lead to the employee poaching clients and interfering with relationships. Other companies take restrictions a step further and force the employee to not work within the industry for about a year. It gives the company time to re-establish the relationship with the client.  What you however need to be mindful of is that you cannot stop a person from earning a living, so any restriction needs to be reasonable.

These are just some of the points that you will need to remember when working hard to manage an employee termination effectively. You can contact a HR company for advice on how to proceed. Fresh HR Insights is the company you are looking for to be in your corner. With more than a decade in the industry, we can help protect you from Fair Work breaches and managing employee terminations without the drama that follows.

Related Tag:Employee Termination Procedure