Over the last 10 years the law relating to workplace relations, in particular in relation to bullying, discrimination and harassment, has changed a lot. Much of this has been driven by federal legislation and it can be difficult to keep on top of all the changes.

At a basic level, a decent, honest and fair employer has little to worry about. The changes to the law have largely been made to protect vulnerable employees. If you treat your employees well, and they treat each other well, you are unlikely to ever deal with these issues. Nevertheless, it’s important that businesses understand their obligations and provide their employees with adequate policies. This article awnsers 5 key questions that employers frequently ask the LegalVision team.

1.    What is bullying and harassment?

Bullying and harassment in the workplace is generally accepted to be repeated unreasonable behaviour directed towards an employee or group of employees that creates a risk to their health and safety.  It may be direct or indirect and includes behaviour that humiliates, intimidates or offends an employee at their workplace.

The following are examples of direct bullying/harassment:

  • threatening to harm someone;
  • acts of violence;
  • offensive or abusive language;
  • public humiliation.

The following are examples of indirect bullying/harassment:

  • deliberately excluding or isolating an employee from workplace activities;
  • spreading malicious rumours about another employee;
  • deliberately denying access to information or other resources;
  • withholding access to information or other resources required by an employee to enable them to perform effectively at work.

Although bullying and harassment are generally accepted to be repeated behaviour, single or isolated incidents may be the first step in, or escalate to, bullying/harassment and therefore are a risk to workplace health and safety.

2.    What is discrimination?

A person discriminates against another person if the person:

  • treats the other person less favourably than in the same circumstances, or in circumstances which are not materially different, the person treats or would treat another person because the other person belongs (or is thought to belong) to a particular group (i.e. direct discrimination); or
  • segregates the other person; or
  • requires the other person to comply with a requirement or condition which is the same for everyone but is not reasonable for the other person having regard to the circumstances as it has a disproportionate or unequal effect on the other person and the other person does not or is not able to comply with it (i.e. indirect discrimination).

Discrimination on any of the following grounds is unlawful:

  • age (including requiring an employee to retire because of their age);
  • carer’s responsibilities;
  • disability (including physical, intellectual and psychiatric disability);
  • homosexuality;
  • marital status;
  • race;
  • sex;
  • transgender.

It is also generally unlawful to discriminate against a person because an associate or relative of theirs falls into one of the above mentioned categories.

3.    Are there other workplace behaviours to keep an eye out for?

There are a number of other behaviours that are unlawful in a work context, including vilification, victimisation and sexual harassment. Generally these behaviours tie in with bullying, harassment or discrimination. All of them must not be allowed in a workplace.

4.    What should you do first up?

Obviously the first step is you should ensure the above mentioned behaviours are not tolerated in your workplace. You should also, however, ensure that you provide policies to all of your employees setting out the company’s expectations and rules relating to these issues. The best way to do this is to provide your employees with an Employee Handbook, but you can also provide them with separate policies, such as a Bulling, Discrimination and Harassment Policy.

5.    What should you do if an instance of bullying, discrimination or harassment is discovered?

Workplace bullying, discrimination and harassment are all serious issues. If you discover an instance of any of these within your workplace it’s a good idea to get in touch with an employment lawyer who can talk you through your options. Just get in touch with the LegalVision team to speak with a lawyer and we can help you talk through options!

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Lachlan McKnight
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