What scares you more? Being sued because of the actions of your employees (or your own inaction)? Or the wider ramifications that workplace legal action can attract?
Racist, sexist, harassment and bullying – the ‘fearsome foursome’ of complaints has arrived. And you, as the HR manager, must manage the complaints.
Picture this: A female employee has lodged a complaint about being subjected to behaviour by other employees that is racist, sexist, and includes behaviour that amounts to both bullying and sexual harassment. The female employee is of Asian descent. She has complained that three male colleagues have been engaging in a range of behaviour motivated by her gender and race. The conduct is bullying and amounts to sexual harassment.
These four words get bandied about in and out of the workplace regularly. Many employers recoil at the suggestion that these things might have occurred in their workplace. But they do occur, and more often than you are probably aware of.
The specifics of this complaint are that these male colleagues:
- regularly unplugged the female employee’s computer and phone when she was away from her desk
- regularly ‘prank-called’ her at work, mimicking Indian and Asian accents to mask who they were, or remaining completely silent
- regularly asked if she had a boyfriend
- regularly made odd-sounding noises when she walked past their desks
There’s no question you have to investigate, and so you do. The male colleagues are interviewed and all say:
- they have unplugged other employees computers and phones in the past
- they have also pranked other employees
- the use of accents during the calls was simply a way to mask their own voices
- when asking about whether she had a boyfriend, they were merely trying to be friendly and had been asking about her weekend and what she was doing during her personal time
These male colleagues are hard-working, usually polite, and they happen to be three of the most productive workers your business has ever had.
Let’s first conduct a rough analysis of the legal risk arising in connection with these rather broad and general facts as they relate to the ‘fearsome foursome’.
Has repeated unreasonable conduct been directed by the individuals towards the complainant that gives rise to a risk to her health and safety? The short and easy answer is yes. So bullying gets a tick.
Is the conduct unwanted or unwelcome sexual behaviour that has made the complainant feel offended, humiliated or intimidated? Probably not. It might be a somewhat unwelcome and inappropriate intrusion into someone’s personal business, but it is not obviously inappropriate ‘sexual’ behaviour.
Would the conduct amount to treatment that is less favourable due to her gender? Possibly, although it sounds like these individuals considered everyone as fair game for their hijinks. However, there is some risk that a review of their broader activities would demonstrate that they were more active or focused on the complainant than on any other male colleague, and this might lean towards gender discrimination. Again, it is not clear that the conduct was either directly or indirectly carried out due to the complainant’s gender.
Was the conduct that caused offence or hurt directly or indirectly due to the complainant’s race? While the individuals may not have had a conscious motive to use an Asian or foreign accent, the fact is they did and it is a feature associated with being
Asian and is likely to cause offence, so this allegation is likely to lean towards a positive finding of racist conduct.
So at this point you’re thinking, “We’ve got some legal issues here...”. And you’re right, you do. But is that really the most important thing? Sure, it’s hugely important to managing the legal, reputational and commercial liability of your business. However, you’ve got a bigger problem. You have an employee who feels aggrieved, and there’s at least some wrongdoing. So whether you are legally liable or not, you’re already behind. In addition to this, you have a cultural problem on your hands.
What happens next is really down to you and your organisation. If the complaint and the complainant are not managed correctly, you could end up with multiple legal actions, some of which are likely to succeed. Combine this with a dose of operational inconvenience and the commercial cost of the investigation process, and the costs are high. If you manage the complaint and complainant appropriately, you dodge a few bullets, but, more importantly, you improve workplace culture, which ultimately impacts productivity and the bottom line.
Managing the issue
A good way to manage this situation is to:
- Make sure you act immediately to implement safe and fair work arrangements so the complainant feels supported and safe. This does not mean that you are prejudging the complaint, but be aware that this may be raised.
Fixing the underlying cause
- Investigate thoroughly and ensure the investigation is planned, affords the necessary procedural fairness to all parties, and is closed as soon as appropriate.
- Ensure offending parties are appropriately punished. Put aside any reservations that arise from losing three productive and profitable employees if dismissal is otherwise appropriate and necessary
- Reunite the complainant with the workplace in a way that ensures they feel supported. This reinforces that this conduct is not tolerated.
- Make sure all employees know how to behave, and ensure they feel safe in the working environment too.
This scenario is just one of many. What is the same in all cases, though, is that if HR spends time and energy on ensuring a positive culture in the workplace, it will help stamp out this behaviour before it happens.
Every business should:
- Adopt values that underpin an appropriate and positive working environment and culture;
- ensure staff buy in to the values and have their say before these are adopted;
- ensure staff are properly trained in appropriate behaviour;
- ensure expectations and policies are clearly communicated to your staff;
- provide support measures and networks for staff so that the everyday incidents of life can be managed with the least impact on the workplace. Employee assistance programs are a great starting point.
Don’t let the ‘fearsome foursome’ overwhelm you. Bring in third parties to review systems and policies from an objective point of view and identify gaps to be addressed.
If this article has caused concern for your business, contact Australian Business Lawyers & Advisors on 1300 565 846 or firstname.lastname@example.org