Workplace Bullying,

Harassment, EEO &

Discrimination
Presented by Access Law Group
 Trainers Details
Tom Ellicott is a Director of Access Law Group, leading its
Commercial Law Group and has been admitted to practice
as a lawyer for 20 Years. Tom is an Accredited Specialist
in Business Law and practices extensively in the areas of
Employment Law and Workplace Health and Safety.

With his team, Tom has worked on some of the most

serious industrial accidents in the area and, he is retained
to advise many employers on employment law.
Housekeeping

Emergency procedures
Toilet facilities
Coffee/tea/breaks
Folders/handouts
Other?

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Timetable Guide

10:00am 12:00pm Workshop

12:00pm 12:30pm Light lunch
12:30pm 2:00pm Workshop

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Participant Introductions
Your name
Role at work
Previous training in this area?
What you hope to get out of todays
session?

5
Participant Experiences
Previous experiences handling any
bullying, harassment, discrimination or
EEO situations in the workplace?

Please share situations you are aware of

that may be currently going on in the
workplace?

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Relevant Legislation
1. Work Health and Safety Act 2011 (WHS Act 2011)
2. Fair Work Act 2009 (Cth) (FWA 2009)
3. Anti-discrimination Act 1977
4. Sex Discrimination Act 1984
5. Racial Discrimination Act 1975
6. Disability Discrimination Act 2002
7. Age Discrimination Act 2004
8. Australian Human Rights Commission Act 1986
Definition of Bullying FWA 2009
s789FD When is a worker bullied at work?

INDIVIDUAL
or GROUP
When a worker is at repeatedly Unreasonable
work in a behaves behaviour
CONSTITUTIONALLY
COVERED BUSINESS
unreasonably
toward worker or
creates risk to
health and
BULLYING
group of workers
of which the safety
worker is a
member
Definition
Taken from Qld Govt. Dept. of Workplace Health & Safety
The repeated less favourable treatment of a
person by another or others in the workplace,
which may be considered unreasonable and
inappropriate workplace practice. It includes
behaviour that intimidates, offends, degrades or
humiliates a worker.
Workplace bullying can occur between a worker
and a manager or supervisor, or between co-
workers.
9
Bullying Behaviour
Can range from very obvious verbal or physical assault to very subtle
psychological abuse and may include:
physical or verbal abuse
yelling, screaming or offensive language
excluding or isolating employees
psychological harassment
intimidation
cyberbullying through the use of technology (Internet, mobile
phone, camera) to hurt or embarrass someone
assigning meaningless tasks unrelated to the job
giving employees impossible jobs
deliberately changed rosters to inconvenience particular employees
undermining work performance by deliberately withholding
information vital for effective work performance 10
 Examples Include:
Repeated hurtful remarks or
attacks, making fun of your
work or you as a person
(including your family, sex,
sexuality, gender identity,
race or culture, education or
economic background)
Pushing, shoving,
tripping, grabbing you in
the workplace
Excluding you or stopping
you from working with
people or taking part in
activities that relates to your
work
Initiation or hazing -
where you are made to
do humiliating or
inappropriate things in
order to be accepted as
part of the team
Playing mind games,
ganging up on you, or
other types of
psychological
harassment
Attacking or threatening
with equipment, knives,
guns, clubs or any other
type of object that can
be turned into a
weapon
12
FWC Bullying Claims Statistics

The Fair Work Commission recently published

its annual report for 2013-14, which showed
that throughout the year, FWC staff made 21
decisions regarding bullying claims. 20 of those
claims were dismissed due to no bullying being
found to have taken place, or matters not being
pursued by the applicant.

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Bullying May Also Be Discrimination
If it is because of your age, sex,
pregnancy, race, disability, sexual
orientation, religion or certain other
reasons.

Sexual harassment and racial hatred are

also against the law.
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Bullying Case
Ms SB[2014] FWC 2104
The three criteria approach for what constitutes bullying, and
reasonable management action.

Commissioner Hampton:
For Bullying: - The behaviour has to be repeated, unreasonable and
cause risk to health and safety;
For Management action: - must be management action, it must be
reasonable to take the action and it must have been carried out
reasonably;
Unreasonable behaviour = Making vexatious allegations/ remarks,
spreading rude/ inaccurate rumours/ conduct of a grossly unfair
investigation 15
Commissioner Hampton Contd
Applicant bears the onus of proof;
Employers should be proactive and provide support in efficient
and timely manner;
Behaviour bordering on unreasonable is outside the scope of
the Act
Anonymity van be ordered where appropriate;
Legal professional privilege over external investigations will be
maintained;
There must be a causal link between the behaviour and the risk
to health and safety
An accepted workers comp claim does not prove the bullying

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Bullying Case
Willis v Gibson; Capitol Radiology[2015]
17 February 2015

Commissioner Lewin:
Management action will not be taken reasonably
where it places an employee under pressure
when the action is not commensurate with the
behaviour that is the basis for the disciplinary
action. 17
What is Discrimination?
Discrimination occurs when someone is treated unfairly
because they belong to a particular group of people or
have a particular characteristic.

Direct Discrimination
A person is treated less favourably than another person in
the same or similar circumstances because of a said
ground or attribute.

Indirect Discrimination
Imposing a condition or requirement that is more difficult
for one group of employees to meet than others, that is
unreasonable.
Discrimination Legislation
1. Sex Discrimination Act 1984
2. Racial Discrimination Act 1975
3. Disability Discrimination Act 2002
4. Age Discrimination Act 2004
5. Australian Human Rights Commission Act 1986
NSW Anti Discrimination Laws
Cover:
Sexual Harassment
Sex Discrimination
Free Posters
Homosexual Discrimination http://www.antidisc
rimination.justice.n
Transgender (transsexual) Discrimination sw.gov.au/adb/adb
1_publications/adb

Race Discrimination 1_posters.html

Age Discrimination
Marital or Domestic Status Discrimination
Disability Discrimination
Carers Responsibilities Discrimination
Discrimination under the FWA 2009
Race
Social
Colour
Origin

National
Extraction Sex

DISCRIMINATION
Political Sexual
Opinion (Adverse Action Preference
taken because of a
persons
characteristic)
Religion Age

Physical/
Pregnancy Mental
Disability
Family/
Marital
Carer
Status
Duties
Its NOT Discrimination if the
Actions:
are permitted under State or Federal anti-
discrimination law that applies in the State or
Territory where it happened
are based on the inherent requirements of the
job
are taken against an employee of a religious
organisation to avoid harming the
organisations religious beliefs
The Term Disability
It is unlawful to discriminate against,
harass or victimise people with disabilities
including in an employment context.
The term disability is broadly defined and
includes mental health conditions:
i. whether temporary or permanent
ii. whether past, present or future
iii. whether actual or just assumed.
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Discrimination Could Occur:
during the recruitment processes,
in advertising, interviewing and
selecting candidates
when determining terms and
conditions of employment such as
pay rates, work hours and leave
in selecting or rejecting employees
for promotion, transfer and training
through dismissal, demotion or
retrenchment.
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Reasonable Adjustment
The Act defines discrimination to include both
direct and indirect discrimination. This means an
employers failure to make reasonable adjustments
for a worker with a mental health condition may
constitute discrimination, even when on the face of
it no direct discrimination has occurred.

The Australian Human Rights Commission has

developed a brief guide to the Disability
Discrimination Act 1992 (Cth). 25
Reasonable Adjustment is Normal
Disability (whether temporary or longer term) is a normal part of life.
Statistics indicate:
a round 1 in every 5 Australians, or over 3 million people, experience
a mental disorder of some kind;
14 percent of the community, or around 2.6 million Australians, have
a physical disability of some kind;
over 1 million Australians have a significant hearing impairment ,
with around 30,000 Australians totally deaf;
around 300,000 Australians have a substantial vision
impairment with around 20,000 totally blind; and
around 2 percent of the population, or 400,000 Australians, have
an intellectual impairment
So, making adjustments to accommodate disability is a normal part of
employing people.
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Adverse Action
s342 FWA 2009
In recent years, adverse action claims against
employers have been steadily increasing. It seems
that employees are turning to adverse action
claims when they dont feel that they can make an
unfair dismissal claim.

Adverse action is any action that disadvantages an

employee or alters their position unfavourably.
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Examples of Adverse Action
Adverse action is taken by an employer against an
employee if the employer threatens to, organises
or takes action by:
dismissing the employee
injuring the employee in his or her employment
altering the position of the employee to the employees
prejudice
discriminating between the employee and other
employees of the employer
discriminating against a prospective employee in their
employment terms and conditions 28
More Examples of Adverse Action
not giving an employee legal entitlements such as pay
or leave
changing an employees job to their disadvantage
e.g. a demotion
treating an employee differently than others
not hiring someone
offering a potential employee different (and unfair)
terms and conditions for the job, compared to other
employees
More Examples of Adverse Action
dismissed because temporary leave
taken due to illness
dismissed while on temporary leave
due to illness but not for that reason
Adverse Action is Not Always
Unlawful

It will only be unlawful if taken against an

employee because they have an attribute
or engage in an activity protected under
the general protections provisions in the
FWA 2009.

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Lawful Adverse Action
You are entitled to make changes to your
workplace and these changes may result in
adverse action against an employee. Such adverse
action will not be unlawful if it was not made
because of a protected attribute or activity.

Adverse action must be based on one of the

protected categories. If it isnt then the action
could could still amount to bullying or harassment.
Protected Attributes
Employees are protected from having adverse action taken
against them for possessing certain attributes or engaging
in certain activities.
Common examples of protected attributes include:
the entitlement to a benefit of a modern award or
enterprise agreement;
the entitlement to the benefit of a law that regulates the
employment relationship, e.g. leave;
a role or responsibility under a workplace law or an
enterprise agreement; and
having or not having union member or officer status
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Common Examples of Protected
Activities
requesting a flexible working arrangement;
making, varying or terminating an enterprise
agreement;
making a complaint or inquiry in relation to
employment; and
organising, promoting, encouraging or
participating in a lawful activity organised or
promoted by a union.
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General Protections - Adverse
Action
The General Protections Division of the Fair Work
Act protect National System employees who
include those employed by constitutionally
covered entities.

What about if you are are not a national system

employee?
 Adverse Action Scenarios/Case
Studies
Probation cases using adverse action to step around the loop
hole
Walking high income earners without notice, terminating other
than in accordance with awards and warnings;
CFMEU v BHP Coal[2014] HCA 16 October the scab sign.
Reminding us about the risks of union ideals clashing with adverse
action;
Heathcote v UOS[2014] FCCA 14 November Driver J reminding
of the importance of a properly followed and established process
overcoming a grievance over ideology. Court protects right to
political opinion but upholds redundancy;
Adverse Action Case Studies
Contd
United Voice v MDBR123 Pty Limited [2014] FCA 11
December 2014 very silly employer sacking
employee for recruiting union members.

State of Victoria v Grant[2014] FCAFC 23 December

2014 overturning decision to re-instate a lawyer
who suffered from depression. Fail to causally
connect the poor performance to condition, his
depression was not causing poor performance.
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The Right to Privacy
Is covered by the Australia-wide Privacy Act 1988
(Cth) and similar legislation in some states and
territories.
If you tell your employer you have a mental health
condition, they cant disclose this information to
anyone without your consent. They can only use
this information for the purpose for which you told
them, such as adjusting your role or working
environment to make allowances for your mental
health condition. 38
 Privacy Laws restrict an employers capacity to ascertain certain
information about an employees illness or injury.
Employees are only required to disclose information about their
capacity where it is relevant to the inherent requirements of the role
that they will be performing.
An employees consent will generally be required for an employer to
disclose information concerning an employees medical condition to
others.
It is lawful to request information about an employees health or
medical history if the information relates only to the employees
unsatisfactory work performance it should also assist in
establishing ways to help the employee perform their role
satisfactorily
The obligation to act with good faith and fidelity is not overridden

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WHS Act 2011
PCBUs (employers) are obligated by law to
provide a safe and healthy workplace, free from
both physical and psychological harm.

40
Legal Responsibilities
Under the WHS Act and anti-discrimination laws,
employers must provide a safe workplace, so far
as is reasonably practicable. They have a duty of
care for workers health and wellbeing whilst at
work.

An employer that allows bullying, harassment or

discrimination to occur in the workplace is not
meeting this responsibility.
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Employers Need to Know
They have:
A Duty of Care, and
Employer Vicarious Liability
They must understand:
Work-related settings can
extend beyond workplace
They must ensure:
Managers and leaders - talk
the talk and walk the walk
Responsibility of Bystanders
Everyone has a moral responsibility to help
create a positive, safe workplace. If someone in
your workplace is experiencing harassment or
bullying, you can tell them about the steps they
can take to solve it.

Encourage workers to do the right thing through

inductions, policies and staff meetings. 43
Risks to Business

How complaints are managed

Ordered to stop/no fines
Link to workers comp claims
Key decisions what the approach has
been 12 months in

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Risk Management
1. Identify hazards knowledge re bullying, harassment &
discrimination
2. Assess issues - likelihood of occurrences and
consequences
3. Implement controls - such as effective recruitment;
policies and procedures; address in induction; training for
managers, supervisors and workers; formal grievance and
disciplinary process; Employee Assistance Programs (EAP)
4. Act upon a complaint - promptly, consistently and fairly
5. Documentation such as..
6. Monitor and evaluate - ensure actions implemented have
remained in place and effective; review processes and
procedures; refresh training, etc.
Reasonable Management Action
Action carried out by a manager in a reasonable way isn't
bullying. To help you go to the following sources of
information:
FWO website:
Managing underperformance best practice guide
Performance improvement plan template
Underperformance meeting plan template
Performance review discussion plan template
FWC's Anti-bullying guide
Safe Work Australia's Guide for preventing and responding
to workplace bullying
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 Inappropriate Performance
Management
non-adherence to workplace policies by Consider WHY
management performance is not at the
insufficient notice
expected level?
insufficient information
refusal to allow support persons
inappropriate behaviour
yelling/swearing
accusations (lack of evidence)
failure to document
insufficient/unreasonable time and
support to improve
failure to follow up
Managing Sick and Injured
Employees
Can not contract out of the FWA or NES unless in an
EA
Significant fines and sanctions media, public
apologies, reinstatement
Anti-discrimination protection underpinned by the NES
Section 772 FWA an employer must not terminate
due to temporary absence because of illness or injury;
Medicals must still provide certificates
Caution with overlay to workers compensation
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Scenario
Bill is the Supervisor at his work and manages a team of 6
workers. The team work on industrial construction sites
undertaking various tasks including labouring, operation of
machinery and general construction site duties.
Three staff have approached him regarding the behaviour of
worker Lincoln. It is reported that Lincoln has a bad temper,
which has led on many occasions to him yelling at his co-
workers, swearing and even threatening to visit them out of
work..
Bill is also concerned about Lincolns performance as he has
noticed that over the past 4 months he has completed the
tasks allocated to him on a daily basis, rather Lincoln seems to
go missing from the site quite often or is seen playing on his
phone at times when he should be concentrating on operating
machinery.
Scenario Contd
Bill has spoken with HR who have advised that he needs to address both
Lincolns alleged misconduct in terms of his actions in the workplace as
well as his underperformance. HR have assisted Bill in preparing a letter
detailing the issues, and requesting a formal meeting. This formal
procedure has never happened before most of the time informal chats or
comments made at tool box talks are what occur.
Bill would like to personally hand Lincoln the letter and explain the process
they are embarking on.
By way of background Bill is known for being a passive aggressive
supervisor. He seems to let things go on for a long time, but when it all
gets too much he has a tendency to explode. Bill and Lincoln have never
really seen eye to eye, in fact there are many occasions when they have
almost come to physical blows.
Bill just cannot tolerate anyone talking back to him, or not agreeing with
his opinion. He also doesnt really like Lincoln and so is quite excited at
having permission to have a go at Lincoln.
Must Have/Must Do
Induction that includes information regarding
appropriate and inappropriate behaviours
Code of Conduct
Employee Handbook outlining grievance procedures,
disciplinary action, social media policy etc.
WHS training for officers, managers/supervisors and
workers
EEO, Bullying & Harassment training for all, refreshed
annually
Training for managers/HR in responding to complaints
When a Claim is Made

What do our policies say? Investigate now careful if that is

really required. Appoint an independent investigator.
Ensure no immediate risk to WH&S if so take action eg protect
employee, remove risk of obvious ongoing behaviour;
If an injury notify insurer;
Investigation may be conducted by insurer in which case step
back and assist;
Follow policy re support, counselling and address whether the
complaint will be actioned or kept private;
Confidentiality and privacy eg Fire Brigade case
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When a Formal Complaint is Lodged
Take action immediately
Safe Work Australias Guide to Preventing and Responding to
Workplace Bullying at 4.1 states:

Investigations should always be carried out by an unbiased

person who has experience and knowledge in dealing with
workplace bullying matters. If being led internally it is important
to ensure all parties have confidence in the neutrality of the
investigator and they are suitably qualified to lead the
investigation. If this is not possible an external investigator is
recommended. The investigator should be impartial, objective and
focus on whether an allegation of workplace bullying is
substantiated or not, or if there is insufficient information to
decide either way.
Conduct After the Claim

Victim should receive documented support and fully understand

the processes and procedures
Support with prompt action on workers comp claims
Perpetrator should fully understand the processes and
procedures again document carefully
Review your procedures after the dust settles did they work?
As far as possible maintain the privacy of the parties talk will
affect the ability of the parties to resolve if possible
Offer counselling and support on an ongoing basis
Remain impartial
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General Guidelines Bullying Complaint

DO
Respond in Offer your
Acknowledge
Follow your writing employee
the
policies and setting out support via
complaint in
procedures how you will counseling,
writing
deal with it EAP etc...
 DONT
Talk about the Try to talk Get angry at
complaint to the the
anyone except Complainant Complainant
Ignore the those who need to
complaint know, i.e. senior into for having
management who withdrawing made a
will deal with it the complaint complaint
Mediation
What is it and When Can it Help?
Mediators do 3 things, they:
1. listen
2. facilitate discussion
3. assist the parties to generate ideas for resolution
Consider getting an external mediation when.
Defences to Bullying &
Harassment
Direct denial did not happen
Reasonable management action
Not repeated behaviour
Differences of opinion
Did not risk health and safety

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Scenario Lets Talk About How
Wed Manage This:
Mark writes a lengthy letter setting out that he feels he is being
picked on and targeted unnecessarily by his supervisor. He is
doing work that he feels is outside of job role and nobody else
at his level is doing the same sort of work.
He feels that when he first started in the role things were ok
but then there was a real change when he refused to head to a
strip club with the work gang on a night out after work. Mark is
a married man and this goes against his values.
Mark is now being informally performance managed by his
supervisor on a daily basis and being given more tasks then he
can complete in one day. He cant keep up. Mark sets out
various examples of what he perceives to be the unreasonable
demands.
Scenario Contd
Marks letter has been sent to the CEO.

You are Marks supervisors manager and have just

been given the matter to deal with. Your company
has general policies regarding grievances being
investigated and resolved, but there is nothing
specific about how to do this.

The CEO has made it clear that this matter has to

be resolved quickly.
Dealing with Unions

Be plain and polite at all times

Its your workplace
Provide procedures and work through issues
confirm action points and outcomes in writing
Examples CFMEU and miner with tumor, pay claims
for council workers under contract, overweight
employee and termination
They are doing their job so be prepared.

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Questions

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Summary
Today we have covered:
Legal responsibilities, definitions and what to
do regarding Workplace Bullying, Harassment,
EEO & Discrimination
Adverse action
Reasonable management action
Risk Management
Relevant case studies and workplace examples
What can you/your company do differently?
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Other Courses That May Assist

Conflict Resolution
Having Difficult Conversations
Emotional Intelligence
WHS Awareness & Risk Management

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To Conclude

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Course Evaluation
Please complete the evaluation form.
Thank you for your participation today.
Further assistance and guidance is available:

http://www.antidiscrimination.justice.nsw.gov.au/adb/adb1_employers_managers.html,c=y

https://www.humanrights.gov.au/using-good-practice-good-business-resources-your-workplace

http://www.fairwork.gov.au/employee-entitlements
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