29 Jun June Newsletter: Harassment

Harassment

With end-of-financial-year parties coming up, the financial silly season is well and truly underway.  If you are considering holding a function or celebration for your employees, it is important to remember that you are responsible for your employees, and there are risks associated with holding these events, particularly if you are supplying alcohol.

For example, did you know that as an employer you still hold a duty to take reasonable care for the safety of your employees at work functions?  What about your obligations to protect your employees from sexual harassment?  A recent increase in compensation awarded against an employer for sexual harassment has put employers on notice as to their obligations, as evidenced by Richardson v Oracle Corporation Aust Pty Ltd [2014] FCAFC 82 where compensation for “pain and suffering and loss of enjoyment of life” was increased on appeal from $18,000.00 to $100,000.00.

When you introduce alcohol into the mix this has the potential to be a harassment hazard.  In the recent decision of Gregory v Qantas Airways Limited [2015] FWC 1154, Gregory was found to have sexually harassed a co-worker whilst intoxicated and this led to his dismissal.  Gregory was a pilot with nearly 20 years’ experience, and when the incident occurred, was in Santiago with three co-workers after a scheduled flight from Sydney.  The flight crew went out for dinner and later headed to an Irish pub.  Gregory was separated from the crew, and shortly after returning, appeared to be highly intoxicated.  In a cab on the way back to the hotel, Gregory sexually harassed one of his co-workers.  He passed out on the floor of his hotel room with the door open, and later said he didn’t recall much of the evening after arriving at the Irish pub.

A drug test revealed the presence of cannabis and after an investigation, Gregory was dismissed.  At the hearing, the suggestion of drink-spiking was raised but this was rejected by the Commission in favour of finding that Gregory deliberately separated from his colleagues to consume either cannabis, a cannabis derivative, or some other substance.  The Commission noted that Gregory’s conduct amounted to “a catastrophic fall from grace”, but nonetheless found that because it was Gregory’s decision to consume alcohol and cannabis, he was responsible for his actions, even if he was acting without conscious intention when he sexually harassed his co-worker.

This case demonstrates the serious approach that can and sometimes should be taken by an employer when facing allegations of sexual harassment.  Whilst Qantas’ actions were ultimately validated in this instance (Commissioner Cambridge said he would have avoided dismissal if he was assessing the disciplinary action himself, but said it wasn’t the Commission’s role to stand in the employer’s shoes), they may have faced larger costs if the co-worker had sued Qantas for sexual harassment.

So how can you, as an employer, mitigate the risks associated with workplace functions and the consumption of alcohol?

Ensure your policies and procedures are up to date

Firstly, ensure that your policies and procedures are up to date.  Under the Sex Discrimination Act 1984 (Cth) and State based legislation, employers can be held vicariously liable for sexual harassment (and some other behaviours) perpetrated by its employees, unless it can show that it took all reasonable steps to prevent the employee from doing it.  So what does this entail?

For starters, you may have a sexual harassment policy in place, but is it up to date?  What about your investigation policy?  Now is a great time to review your policies and procedures to make sure they still reflect the current law and your own practices.  Additionally, do your employees know about the policy and understand it?  It is pointless having a policy in place if your employees don’t know about it.  Do you have records to show that your employees have read the policy, such as a signed declaration?  This can be important evidence to show an employee was aware of their responsibilities.

These questions can be applied across the board to all of your policies.  Do you have policies about bullying, the consumption of alcohol and drugs, social media, discrimination, investigations, complaints and work functions?  What would you do if an employee put up inappropriate pictures on social media and mentioned that it was at your end-of-financial-year party?  Would you investigate it? Would you discipline them?  How would you do it?  Terminate their employment?  How will you ensure that you appropriately comply with your duty of care to keep your employees safe, including from behaviours such as bullying?

Tell your employees how you expect them to behave through implementation

A mid-year refresher course is a great way to remind employees about your policies and procedures and how you expect them to behave at your end-of-financial-year party.  If you haven’t previously required them to acknowledge their understanding of your policies and procedures, this can be great time to do it.  HR Law would be happy to come in and provide a presentation to your employees as part of the implementation of new or updated policies and/or as refresher training.  Ensuring that your employees are aware of the policies and procedures and understand them is just as important as having policies in place – if your employees don’t know that they exist, how can they know how to follow them?

Remember your duty of care

One final issue relates to your duty of care to your employees.  Serving alcohol can be risky and you should consider, at a minimum:

1. Setting a clear start and finish time for the function;

2. Ensuring that alcohol, if available, is served responsibly and there is plenty of food and non-alcoholic drink options   available;

3. Making arrangements for staff to get home after the function, such as by organising a bus to and from the venue;

4. Nominating supervisors for the party;

5. Prior to the function, letting your employees know:

* That it is a work function and they are expected to conduct themselves in a manner which they would in the workplace;   and

* What policies and procedures you have in place, particularly those which could be used as a basis for disciplinary action if things go wrong;

6. Ensuring you have an appropriate complaints policy in place; and

7. Ensuring your insurances cover typical function activities.

If you have any questions about your upcoming function or your policies and procedures generally, please do not hesitate to contact HR Law.