The importance of training
Recent pronouncements, by economists around the globe, indicate that the current financial situation may well get “darker before it gets lighter”. But in times where there are many pressures on employers, it’s vital that you don’t skimp on preventative and reactive measures in relation to discrimination, harassment and bullying. Otherwise, you could incur substantial financial and productivity problems to your core business – at a time when you can least afford it.
Most employees understand what types of behaviour are likely to amount to discrimination and sexual harassment. What is less clear, is determining whether a person’s behaviour is likely to amount to bullying. While an employee may label certain behaviour bullying, not all behaviour necessarily amounts to bullying. For example, in relation to bullying, a single act of inappropriate behaviour may not necessarily amount to bullying. Depending upon the behaviour alleged, that behaviour may need to be repeated in order for it to amount to bullying.
There are real benefits for employers who ensure all staff understand what amounts to inappropriate workplace behaviour. This can lead to a reduction in inappropriate behaviour thus limiting the employer’s liability generally.
In addition, at least in relation to complaints of discrimination and sexual harassment with regular training, policies and regular information about unacceptable workplace behaviour, the employer may be able to demonstrate it has taken all reasonable precautions (pursuant to Section 103 of the Equal Opportunity Act 1995) to ensure its employees are not subjected to discrimination as in the case of Saldana referred to below.
As to what amounts to reasonable precautions under the EO Act for complaints of discrimination and sexual harassment you may wish to seek legal advice.
As to communicating to employees about what does and does not amount to unlawful behaviour in the workplace, specifically discrimination, sexual harassment and bullying, the development and promotion of policies supported by training in relation to discrimination, harassment and bullying is a critical first step in the process towards a workplace that is free of inappropriate workplace behaviour.
For example, policies might include:
- details of what is unlawful, what behaviour is expected in the workplace and the consequences of a breaching the policy. It should be made clear that the policy also applies in relation to work-related activities, such as work functions.
- effective procedures that set out how to raise a complaint and who to contact either within the organisation or externally. A clear statement that it is unlawful to victimise a person who has lodged a complaint should also be a part of the policy.
- be endorsed by the CEO to demonstrate a commitment and provide gravitas to the application of the policies in the workplace. Managers should model appropriate conduct.
Policies and procedures alone are not sufficient. For employees to properly understand what their obligations are in the workplace, the policies need to be supported by regular training and on a regular basis (say, two year intervals). Keep dates of training and records of attendees. Attendance should also be compulsory across the entire organisation. These records should be retained to track the frequency of training.
While online training can be one effective method of ensuring employees understand their obligations and rights, supplementary face-to-face training sessions give employees the opportunity to ask questions to clarify any misunderstandings about what is, and what is not, unlawful behaviour. This method of training also enables discussion and clarification of any misunderstandings about the legislation, by providing examples of behaviour that could potentially cross the line into unlawful behaviour.
Additional policies that dovetail into the legislation such as flexible working arrangements and maternity leave, enhance the understanding of the legislative requirements. They can assist in ensuring the policies are capable of being understood, are transparent and are applied consistently across the workplace.
An email policy is also important given the potential for employees to discriminate or sexually harass others via email by sending explicit or inappropriate photographs, jokes or messages, for which the employer could be vicariously liable. The policy should make it clear to employees that such emails are inappropriate and could also amount to discrimination, sexual harassment or bullying. Training also assists managers to effectively respond to complaints of discrimination and bullying. This will give both the staff member who is making the allegations and the person against whom the allegations are made, a level of confidence in the process. If the manager understands the issues in dispute between the parties, this will assist the employer in deciding how to address these issues effectively and in a timely manner. In addition, well prepared policies dealing with all types of workplace disputes that are regularly accessible to all staff will provide an effective guide through the process.
Two recent 2009 cases demonstrate the importance of addressing workplace disputes as they arise, and the importance of conducting proactive training in the workplace.
Saldana v John Danks and Son Pty Ltd  VCAT 448 (18 March 2009)
This case concerned allegations of race (and impairment) discrimination made by Mr Saldana, a forklift driver, against his former employer, John Danks and Son Pty Ltd (“Danks”). Mr Saldana stated he was subjected to a constantly racist environment at his workplace.
VCAT found that Danks had conducted appropriate investigations and trained its employees about their EO obligations.
The details of this case are as follows.
Mr Saldana alleged that he was subjected to various racist incidents during his employment over 2006. He stated that another Danks employee, Mr Gavin McKenzie abused him, attempted to assault him and said he could kill him any time, also saying him, “Remember you are in my country you black bastard”. Mr McKenzie was not an employee of Danks but was engaged by Danks through a labour hire company. Danks’s evidence was that it fairly and carefully investigated this incident, and, following the investigation, Mr McKenzie’s contract with Danks was terminated.
Mr Saldana also stated that he was subjected to racial abuse by another Danks employee, Jarred Penman, calling him a “fucking bastard” and making comments in a mocking Indian accent on three or four occasions. Mr Saldana also stated that Mr Penman made the following comment: “Don’t you fucking call me mate. None of my mates are your colour”. Evidence was given by a Danks’ representative that it had investigated the incident, and, that as a result of the investigation, had concluded that both Mr Saldana and Mr Penman had behaved inappropriately towards each other and both of them were given a warning as a result of their behaviour.
The third incident of abuse involving Mr Saldana brought up at the hearing with VCAT’s permission did not explicitly refer to the abuse being racist in any way. VCAT noted, in relation to this third incident, that “an incident of abuse, however vulgar, is not necessarily an example of discrimination”. Of course, whilst bullying was not the focus of VCAT’s attention, it is relevant to note that certainly abusive language, if repeated, could certainly amount to bullying behaviour.
Mr Saldana brought his claims in relation to these three incidents only against Danks and not any of the individual perpetrators named above. While we are not in a position to provide legal advice, it was noted in this case that Danks could have been liable for the actions of any these perpetrators, pursuant to section102 of the Equal Opportunity Act 1995 (Vic). In this case, the VCAT Member referred to section 102, which provides that if a person in the course of employment or while acting as an agent of an employer contravenes this Act then both that person and the employer must be taken to have contravened the Act. A complaint about the contravention may therefore be lodged against either or both of them, but the imposition of vicarious liability on an employer is not absolute.
Section 103 of the Act provides that an employer is not vicariously liable for a contravention by an employee if “the employer proves, on the balance of probabilities, that the employer or principal took reasonable precautions to prevent the employee contravening the Act”.
VCAT noted in relation to Mr Saldana, that it was “by no means confident that the description given of each of the incidents by Mr Saldana was a truthful one”. Even if it was accepted as truthful, it formed the strong view that there was little that Danks could have done either to prevent the incidents from occurring, or to prevent their reoccurrence in the future, other than the steps which he took.
In this regard, Danks’ Human Resources Manager was able to give evidence of the detailed equal opportunity policies in operation at Danks, its prepared behavioural guidelines, equal opportunity procedure and equal opportunity guidelines and a discrimination and harassment policy. Furthermore, VCAT noted that Danks, a multicultural workplace, had undergone:
“specific training in equal opportunity. …engages consultants …to develop and maintain the company’s equal opportunity policies and maintain a program of staff education… The evidence of the company’s efforts in maintaining a workplace free of discrimination was thorough and impressive. ….[Danks] did not seek to belittle Mr Saldana or dismiss his complaints out of hand. ….all of the complaints, both against Mr Saldana, and by Mr Saldana, (were dealt with) in a fair impartial way.”
Consequently, VCAT was of the view that the claims of race discrimination against Danks, in relation to the accepted racist behaviour of its contract workers, was protected by the provisions of section 103 of the Equal Opportunity Act 1995 (Vic). VCAT held that Danks had taken reasonable precautions to prevent its employees from breaching the Act through its proactive efforts at educating staff about equal opportunity obligations and appropriately responding in an impartial manner to all complaints of discrimination by effective and immediate investigations.
Interestingly, VCAT concurred with the view of Deputy President Macnamara who observed in Walgama v Toyota Motor Corporation Australia Ltd (Anti Discrimination)  VCAT 1318,
“that an employer does not have the responsibility of preventing every word of abuse which may fall from a fellow employee’s mouth”.
As already noted though, and without giving legal advice, obligations under Occupational Health and Safety laws to maintain a safe working place should be separately considered by any employer.
The take home message from this case is very clear. If budgetary cuts are possibly threatening the roll out of periodic equal opportunity training, or, your capacity to provide a thorough investigation response in relation to complaints received in your workplace, think very carefully before cutting back on these fundamental risk management activities.
Rogers v Millennium Inorganic Chemicals Limited & Anor 
FMCA 1 (9 January 2009)
This case also shows how important it is to conduct a proper investigation. Whilst investigations need to be thorough and fair, they may not need to be ‘perfect’, or at the same standard as a police investigation for example.
In Rogers v Millennium Inorganic Chemicals Limited & Anor, the Federal Magistrates Court held that there was no need to hold a “perfect investigation” in the circumstances of the particular workplace investigation that was conducted.
The facts involved Mr Rogers, a factory worker, being asked to attend a meeting where he was accused of causing a delay in production by “walking away from the packing heads” during a shift at the plant. Mr Rogers was given the opportunity to explain what had occurred, and after doing so, his managers informed him that they were considering dismissing him, subject to the outcome of further investigations. On the following day, the company’s employee relations manager informed him that interviews with other employees did not support Mr Roger’s account of what had occurred and that he was to be dismissed with one month’s pay in lieu of notice.
Mr Rogers claimed damages from the company for breaching his employment contract and AWA, as well as compensation for unlawful termination. He alleged that the company had breached an implied duty of mutual trust and confidence in the employment contract by considering dismissing him before conducting a full investigation into the production delay.
Mr Rogers also argued that the company failed to act with trust and confidence by refusing to tell him the names of the witnesses that it had interviewed. The Federal Magistrates Court rejected this element of the employee’s claim. It found that the identity of the witnesses and the nature of their claims were immaterial to the account of events as maintained by Mr Rogers. That was because Mr Roger’s version of events was that he was not even present at the “packing heads” on the day in question under investigation. It was therefore irrelevant as to whether Mr Rogers was not informed as to who had given evidence that he was in fact present, given his blanket denial of being present.
Accordingly, the Federal Magistrates Court stated that “there is no obligation upon an employer in an investigation of this kind to conduct a perfect investigation” and that the investigation undertaken was not problematic.
Whilst this is certainly an interesting case, it would appear to only be relevant for those circumstances where an employee who is under investigation is providing a version of events that is, in effect, a total denial of the allegation.
Generally speaking, though, when dealing with allegations of inappropriate behaviour one should err on the side of following appropriate natural justice and procedural fairness wherever possible, by identifying the name of the person who is making the allegation.
Any investigation needs to be thoughtful and reflect the nature of the allegation being investigated, and be flexible enough to respond to the response received.