Welcome to Part 6 of What to include in an Employee Handbook. Here we will take a closer look at the kinds of behaviour that the Employee Handbook should have a policy against. These types of behaviours such as vilification and victimisation will usually come under the umbrella terms ‘workplace bullying’ and ‘harassment’.

Vilification

In most workplaces there will be a policy against bullying another colleague. An aspect of workplace bullying is vilification. Vilification is the act of inciting hatred towards, serious contempt for, or severe ridicule of, another person or group of persons on the grounds of race, transgender grounds, or because the other person or group of persons is/are HIV/AIDS infected or thought to be so infected.

Vilification occurs when one employee commits an act that members of the public may see, hear or read which would encourage another member of the public to hate, hold serious contempt for, or severely ridicule another person or group of persons in circumstances where the members of the public did not already have those feelings.

Vilification is extremely damaging to a workplace and such behaviour should not be tolerated in any work environment.

Victimisation

Victimisation is another type of workplace bullying that the Employee Handbook should explicitly prohibit. Victimisation occurs when a person makes, intends to make, helps another person make a complaint of discrimination, vilification or sexual harassment, and is then harassed or punished as a result of such action. The Employee Handbook makes it unlawful for a person to subject another person to any detriment or otherwise harass or punish the other person by reason of any of those things.

Sexual Harassment

Sexual harassment in the workplace is considered unlawful discrimination under Federal, State and Territory legislation.  Make sure to clarify this in your Employee Handbook.

Workplace health and safety legislation requires the business to prevent sexual harassment and the business may be liable for acts of sexual harassment committed by its employees and agents in connection with the performance of their duties. In order to minimise the risk of liability, the business must take active measures and reasonable steps to prevent sexual harassment from occurring in the workplace and must take appropriate action whenever it occurs.

To ensure that your employees understand the consequences of such conduct in the workplace and to ensure the appropriate steps have been taken to avoid liability, clearly explain what sexual harassment is, why it is unacceptable and what to do if an employee becomes aware of such conduct in the workplace.

What is sexual harassment?

The Employee handbook should include a legal definition of sexual harassment so that there is no doubt as to what this means among employees.

Sexual Harassment is behaviour where a person:

  • makes an unwelcome sexual advance;
  • makes an unwelcome request for sexual favours; or
  • engages in other unwelcome conduct of a sexual nature,

If any of the above behaviour is directed at another person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated, the offence of sexual harassment will be made out.

This means that sexual harassment can occur even when the person engaging in the relevant behaviour does not intend to offend, humiliate or intimidate another person.

It is also important that the Employee Handbook removes any doubt as to the circumstances under which such behaviour can occur.

Sexual harassment:

  • can be committed by any person in the workplace (including managers, employees, contractors or service providers);
  • may occur within the workplace or outside the workplace;
  • may be a single incident or repeated behaviour;
  • involves not only the person who engages in the relevant behaviour, but may also involve any person who encourages or allows such behaviour to occur;
  • may result in compensation being payable to the person who has been sexually harassed.

The following are examples of sexual harassment:

  • physical contact (e.g. touching);
  • staring or making gestures;
  • telephone calls, social invitations or questioning unrelated to work;
  • sexual conversations, comments, jokes, questions or teasing;
  • sexual material contained in emails or at the workplace.

Behaviour is not sexual harassment if it is consensual and/or reciprocated.

Responsibilities of Staff and the Business

The Employee Handbook should go on to explain that the business intends to prevent bullying, discrimination, vilification, victimisation or harassment, including sexual harassment, in the workplace by adopting this Policy. Staff should be made aware of it during induction, training processes and periodically from time to time. The business should constantly be monitoring compliance with the Employee Handbook. The business should also be reviewing this Policy from time to time and taking appropriate action when a report is made of behaviour that is in breach of this Policy.

Conclusion

Clearly define the employees’ obligations with respect to the Employee Handbook, including their obligations as witnesses to unacceptable behaviour in the workplace. If you are unsure what to include in your Employee Handbook, contact LegalVision on 1300 544 755 and speak with one of our employment lawyers.

Lachlan McKnight

Next Steps

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