What is Workplace Harassment
Harassment in the workplace can take many forms and can ruin a great job, turning a workplace environment toxic and unproductive. Harassment is conduct that is severe and pervasive enough that a reasonable person would consider the workplace intimidating, hostile or abusive. It can include acts of assault, intimidation and ridicule.
In the context of employment, harassment can be categorised as physical or emotional harassment. These forms of harassment are protected and governed under anti-bullying and anti-discrimination laws. Harassment is against the law when it falls under the definition of bullying or when a person is treated less favourably on the basis of certain personal characteristics, constituting discrimination.
If you want to fight for your job and discuss options for combating workplace harassment, we can help! Please call us on 1800 333 666 and we can assist you in fighting back against your employer.
Workplace Harassment – Emotional Harassment
Physical harassment refers to physical abuse such as sexual assault or violence on the body while emotional abuse refers to imposing stress and bullying. These forms of harassment overlap with bullying, sexual harassment and discrimination.
Emotional harassment is often unnoticeable and gets less attention in the workplace than physical harassment. Emotional harassment can be defined as hostile verbal and nonverbal behaviours that are not explicitly tied to sexual or discriminatory tendencies, yet they are directed at manipulating and degrading an employee. The most common form of emotional harassment in the workplace is bullying.
Emotional Harassment – Bullying
Are you experiencing bullying in the workplace and want it to stop so you can keep your job? Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety.
In Amie Mac v Bank of Queensland Limited and Others, the Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.
In regards to establishing a risk to health and safety for the test of workplace bullying, proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is demonstrated. Thus, the bullying behaviour must create the risk to health and safety through a casual link.
However, conduct that is reasonable management action will not constitute bullying. Thus, the employee will need to demonstrate that the action is not reasonable management action that is conducted in a reasonable manner. The question of whether the management action was carried out in a reasonable manner is a question of fact and the test is an objective one. It considers what action is taken, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.
Emotional Harassment – Discrimination and Sexual Harassment
Workplace harassment in the context of discrimination and sexual harassment can be against the law when a person is treated less favourably on the basis of certain personal characteristics, such as race, sex, pregnancy, marital status, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. These are protected attributes and harassment on this basis constitutes discrimination.
Discrimination and sexual harassment are generally forms of emotional harassment. Once an employee begins physically intimidating a fellow employee through sexual assault or acts of violence on the body, this falls under physical harassment (as discussed below) and may become a criminal matter.
Harassment in the context of discrimination can include behaviour such as:
- telling insulting jokes about particular groups that possess these protected attributes
- displaying content, such as posters, which is offensive content to groups that possess these protected attributes
- making derogatory comments or taunts about someone protected attribute
Sexual harassment constitutes sex discrimination (Birch v Wesco Electrics (1966) Pty Ltd (2012) 218 IR 67 ; Aldridge v Booth (1988) ALR 1 -), as the employee has been treated less favourably than colleagues of the opposite sex in being sexually harassed.
Sexual harassment is a broad term, including many types of unwelcome verbal and physical sexual attention. Sexual assault specifically refers to sexual contact or behaviour, often physical, that occurs without the consent of the victim. Sexual harassment generally violates civil anti-discrimination laws—you have a right to work or learn without being harassed—but in many cases is not a criminal act, while sexual assault usually refers to acts that are criminal.
Harassment in the context of sexual harassment and sex discrimination can include behaviour such as:
- sending explicit or sexually suggestive emails or text messages
- displaying pornographic posters or screen savers
- asking intrusive questions about someone’s personal life, including his or her sex life.
- unwelcome touching, hugging or kissing;
- staring or leering;
- sexually suggestive comments or jokes;
- unwanted invitations to go out on dates or requests for sex;
- behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
A one-off incident can constitute harassment. All incidents of harassment require employers or managers to respond quickly and appropriately.
If you want to discuss the harassment you have been subjected to and what you can do about it, please give us a call on 1800 333 666 for a free and confidential discussion.
Workplace Harassment – Physical Harassment
Physical harassment in the workplace takes many forms, such as workplace violence and sexual assault. Workplace violence is defined as physical threats and assaults targeted at employees, which includes:
- physical assault such as biting, scratching, hitting, kicking, pushing, grabbing,
- throwing objects
- intentionally coughing or spitting on someone
- harassment or aggressive behaviour that creates a fear of violence, such as stalking, , verbal threats and abuse, yelling and swearing
- hazing or initiation practices for new or young workers, and
- violence from a family or domestic relationship when this occurs at the workplace, including if the person’s workplace is their home.
Aforementioned, sexual assault specifically refers to sexual contact or behaviour, often physical, that occurs without the consent of the victim and may constitute criminal behaviour. Some forms of sexual assault include:
- Penetration of the victim’s body, also known as rape
- Attempted rape
- Forcing a victim to perform sexual acts, such as oral sex or penetration of the perpetrator’s body
- Fondling or unwanted sexual touching.
If an employee has been subject to workplace violence or sexual assault, they are encouraged to report this to their employer but are not precluded from reporting this to the police also. If an employee has been subjected to emotional harassment in the form of bullying or general sexual harassment and discrimination, they may lodge a complaint in the context of their employment and under civil laws, as discussed below.
Making a Complaint about Bullying
If you feel that you have been bullied in your workplace, there are a number of things you can do. Firstly, you can tell the employee who is bullying you to stop and that you are uncomfortable. Sometimes, this is enough to make the harassment stop and for the employee to realise their actions are creating a threat to your health and safety.
If you have told the employee to stop, but the behaviour continues, report the behaviour to Company management. Complaining to the boss may seem daunting and you may be in fear of adverse action, but most employers will be willing to help and rectify the situation once they are aware. If an employee is uncomfortable by bullying and harassment conduct of other employees or their superiors, they have the right to speak up and put an end to the bullying.
If this fails and the Company has not taken any steps to address or rectify the bullying behaviour, the employee can seek assistance by lodging a claim to an external body such as the Fair Work Commission and fight for their rights. If an employee is still employed by an employer and wishes to make an application in regards to workplace bullying, the employee can lodge a Form F72 – Application for an order to stop bullying. This application seeks a preventative remedy, not remedial, punitive or compensatory. If appropriate, the Fair Work Commission will schedule a mediation session for the parties involved to try to help them resolve the case.
One of the benefits of mediation is that the outcomes that can be reached can be tailored, depending on the parties’ situation. This means that the parties can seek to resolve a case in any way they consider will assist them to resume a constructive and cooperative relationship. If there is no agreement the case will progress to a formal conference or hearing before a Commission Member. This will enable the application to be determined and a binding decision or order be made.
A binding decision or order will require a worker/s or the employer to stop the bullying behaviour. The worker/s may be ordered to comply with the employer policies, to be separated, transferred, have rosters changed, for the employer or principal to monitor the behaviour or their work participants, for training or counselling to be offered to the worker and to be taken up by the worker. The employer may be ordered to review and improve their bullying policies and complaint handling policies or for behaviour to cease outside of work.
If you want to fight for your job and stop the bullying, we can help! Please call us on 1800 333 666 and we can assist you in fighting back against your employer.
Making a Complaint about Discrimination and Sexual Harassment
If you feel that you have been discriminated against or sexually harassed in your workplace, there are a number of things you can do. Firstly, you can tell the employee who is discriminating against you or sexually harassing you to stop. Sometimes, this is enough to make the harassment stop and for the employee to realise their actions are unwelcome.
If you have told the employee to stop, but the behaviour continues, report the behaviour to Company management. If the Company fails to address the discrimination and sexual harassment, the employee can escalate their complaint to an appropriate body.
In the Fair Work Commission, the employee can lodge a number of claims, depending on their circumstances.
If an employee is still employed and has complained about the discrimination or sexual harassment to no avail, the employee can lodge an F8C Application.
The employee will need to demonstrate that the employer has subjected an employee to a form of adverse action (not termination) and they believe this action was done because they have exercised a workplace right by complaining about sexual harassment or discrimination in the workplace. Adverse actions can include as prejudicing the employee or injuring the employee in his or her employment. The employee can argue that the Company’s inaction constitutes adverse action as they are refusing or failing to remedy and address the complaint.
Once a complaint is lodged, the Commission will only hold a private conference to deal with the dispute if both parties agree to attend. If one of the parties to a non-dismissal dispute does not agree to participate in a conference, or if the dispute remains unresolved after the conference, the employee can choose to make an application to the Federal Court or the Federal Circuit Court to deal with the matter. During a conference, a Commission Member will work with those involved to reach an agreed resolution to the dispute. The Commission Member may make a recommendation or express an opinion during the conference, but cannot make a binding final decision or an order.
The employee can seek specific remedies as to what they would like to occur in order to resume a constructive and cooperative employment relationship. If the employee believes the relationship is beyond repair and they no longer want to be employed, the employee can see an exit package, by way of resignation, to terminate the employment relationship. If the employee can demonstrate pain and suffering as a result of the harassment suffered, the employee may seek compensation in the form of general damages. If you want assistant or guidance in lodging your application against your employer, please give us a call on 1800 333 666 for a free and confidential consultation.
If an employer has terminated an employee and they believe this action was done because they have complained about discrimination or sexual harassment or because they possess a protected attribute, the employee has 21 calendar days after the termination took effect, to lodge an application in the Fair Work Commission. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference and the same procedure is followed as in non-dismissal disputes.
If you want assistant or guidance in lodging your application against your employer, please give us a call on 1800 333 666 for a free and confidential consultation.
  FWC 774.