Allygroup held their first Musings with Allygroup Seminar on Tuesday, 26 March 2019 with guest speaker Chris Ronalds AO SC. Chris spoke on Discrimination in the workplace: organisational risks and responsibilities. It was a review of the recent court cases and general changes to policies in the areas of sexual harassment, other forms of harassment and discrimination. This includes the impact of #MeToo and the expectations that bystanders to any harassment will intervene or otherwise support victims and the role of Codes of Conduct and APS Values in the workplace and the expectations of an employer.
An outline of Chris’ discussion is below:
Why be concerned about discrimination or harassment complaints or events?
Apart from the legislative schemes (discrimination and OHS), there is a significant issue of costs and dislocation to employer. Costs include media coverage and reputational loss, legal costs, lost management and employee time in working with lawyers, attending mediation and appearing in court. Dislocation is where an employer is seen as not supportive of staff and also needs to challenge staff or former staff in a public forum. Disadvantage of an external agency reviewing the operations of the employer and possibly making critical comments about them on a general basis and not limited to the facts of a single complaint.
Issues:
Sex discrimination in the workplace:
occurrence – major problem continues to be post maternity leave and related part-time work requests – and the Fair Work Act is being used frequently - Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509; Heraud v Roy Morgan Research Ltd (2016) 305 FLR 29
risk factors – lack of documentation for decision making
Sexual harassment in the workplace:
still occurs, can be a single act, is unwelcome conduct of a sexual nature - Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 at 338/[7]-[8]; Vergara v Ewin (2014) 223 FCR 151; Alexander v Cappello [2013] FCCA 860
risk factors – identifying known predators and failing to act, lack of effective and trusted internal complaints policy
obligations on by-standers – co-workers, visitors
Racial discrimination in the workplace:
occurrence – racial harassment and vilification – State of Victoria v Macedonian Teachers Association of Victoria (1999) 91 FCR 47
risk factors – poor supervision, fragmented workforce
Bullying:
occurrence – ranges from verbal or physical assault to psychological abuse - Naidu v Group 4 Securitas Pty Ltd (2006) 150 IR 203; appeal mostly dismissed: (2007) 71 NSWLR 471 (damages of over $2M plus indemnity costs), Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508 (damages of $429,165.96)
risk factors – poor management structures, condoning culture of abuse, swearing, physical actions such as chair throwing
basis of litigation - breach of employment contract including policies implied into terms of contract, negligence, failure to provide safe workplace, breach of duty of care - Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 (damages of $465,869)
Remedies:
quantum of damages - Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 at [135] including $100,00 general damages (pain and suffering); State of New South Wales (Department of Justice – Corrective Services) v Huntley [2017] FCA 581 – appeal confirmed $75,000 for general damages and almost $100,000 for economic loss for failure to provide reasonable adjustments
other possible orders – apology, reference, reinstatement, not repeat conduct, training, new policies.
Potential organisational responsibility even before discrimination complaint is made – identifying risks and addressing them:
Effective and respected complaint policy for internal handling of complaints,
When to use an external investigator – for independence, seen as treating issue seriously by all involved,
Get quality report that can identify broader systemic issues (if there are any) and act of the identified issues,
OH&S role and employer’s responsibilities.
Best practice steps for preventing discrimination:
Leadership from senior management,
Seen as taking issues seriously,
Policies that are easy to read and are promoted regularly – not just at induction.
Best practice steps for dealing with identified or potential discrimination before a complaint is made:
Strategic review of all employment practices and policies on regular basis to ensure are compliant with latest developments.
Best practice steps for dealing with discrimination complaints:
Investigate immediately – and have report done promptly,
Ideal time line is 4 -6 weeks to completion,
Don’t pre-judge or make any statements to complainant, respondent or senior management that could later be construed as fixed view on outcome,
Don’t let status of complainant and respondent confuse or divert HR response,
When to use a private mediator to resolve issues and effect a settlement before complaint lodged.
Dealing with external agencies:
AHRC or ADB
Federal Court, FMC or ADT
Media coverage
APS Values and Code of Conduct
Are part of the contract of employment
Chris Ronalds AO SC is a Sydney barrister, specialising in discrimination and harassment law, employment law and administrative law. In that role, she has had the conduct of a number of landmark cases. Also, she has been involved in a number of projects on discrimination, affirmative action and the provision of rights and redress for disadvantaged groups. She is co-author of Discrimination Law and Practice (Federation Press 5th edition, Feb 2019).
If you are interested in attending one of our upcoming Musings with Allygroup seminars, please contact our office on 02 5104 3170 or email info@allygroup.com.au.