INTRODUCTION

The number of claims of discrimination and sexual harassment continues to increase each year, particularly in Victoria where the State anti-discrimination laws are among the widest in scope of the Australian States and Territories.

Discrimination and sexual harassment is also prohibited by Federal legislation. Since 90% of all claims of discrimination and harassment in Victoria are made under the Equal Opportunity Act 1995 (Vic) (the Act) this Information Outline concentrates on the Act. 

ANTI-DISCRIMINATION POLICIES

Under the Act an employer or principal will be held liable for any breach of the Act by an employer or agent unless the employer or principal took reasonable precautions to prevent the discrimination or sexual harassment taking place.

As a minimum an employer or principal must:

• have policies in place to prevent the discrimination or sexual harassment occurring; and
• ensure that all employees/agents fully understand their duties and responsibilities.

Examples of sexual harassment and anti-discrimination polices (which an employer can copy) are as follows (Brown Pty Ltd is a fictitious company). 

Sexual Harassment

Sexual harassment is the making of an unwelcome sexual advance or unwelcome request for sexual favours or engaging in some other conduct of a sexual nature by one employee to another or to a client or to any other person where a reasonable person, having regard to all the circumstances, would have anticipated that the other would be offended, humiliated or intimidated.

Sexual harassment is unlawful in employment and the provision of goods and services. It is unlawful in the workplace and in any premises entered into by an employee in the discharge of their duties.

Sexual harassment may include a wide range of different types of behaviour such as attempts at kissing, touching, staring, conversations of a sexual nature, insinuations about an individual’s private life, gender related insults, workplace pranks, and displaying sexually explicit posters and other material in the workplace.

Sexual harassment of another employee or client of Brown Pty Ltd will be considered misconduct on the part of the perpetrator and will not be tolerated by Brown Pty Ltd. Any employee who engages in sexual harassment will be subject to discipline up to and including termination.

Procedure

Brown Pty Ltd has set up procedures to deal with any such misconduct and if an employee feels that they have been sexually harassed then he or she should bring it immediately to the attention of the designated Sexual Harassment Officer.

The complaint will be dealt with promptly and confidentially and will be thoroughly investigated in accordance with the following procedure:

• An interview will be arranged with the Complainant as soon as possible so that the complaint can be thoroughly investigated.
• The alleged harasser will be interviewed shortly thereafter and given an opportunity to put his/her case.
• Any witnesses to the alleged harassment will be interviewed.

A determination will be made on whether the grounds of the alleged sexual harassment are made out and, if so, the employee perpetrating the harassment will be subject to such disciplinary action as is appropriate to the severity of his or her misconduct.

The appropriate action will then be taken to ensure that the misconduct does not continue.

No complainant or witness will be treated detrimentally as a result of a complaint.

Notwithstanding the procedure for dealing with complaints, any employee who claims to have experienced sexual harassment:

• May request Brown Pty Ltd to arrange a facilitated discussion of the problem with the alleged harasser, which it will do, in an attempt to resolve the matter in a constructive manner; and
• Is entitled to pursue a complaint under the provisions of the State and/or Federal legislation.

Anti-Discrimination Policy

It is Brown Pty Ltd's policy to provide equality in employment for all people employed or seeking employment. Every person, regardless of their membership of a particular group, must be given a fair and equitable chance to compete for appointment, promotion or transfer and to pursue their career as effectively as others.

Discrimination on the basis of the attributes of race, sex, age, marital status, religious belief or activity, industrial activity, political opinion or activity, national extraction, social origin, disability, parental status or status as a carer, pregnancy, lawful sexual activities, physical features or breastfeeding is unlawful.

Discrimination by an employee of Brown Pty Ltd against another employee or client on the basis of any of the attributes set out in clause 2 will be considered misconduct on the part of the employee and will not be tolerated by Brown Pty Ltd. Any employee who engages in discrimination will be subject to discipline up to and including termination.

As with sexual harassment, Brown Pty Ltd has set up procedures to deal with such misconduct and if an employee feels that they have been discriminated against, they should bring it to the attention of the designated Equal Opportunity Officer.

The complaint will be dealt with promptly and confidentially in accordance with the following procedures:

• An interview will be arranged with the Complainant as soon as possible so that the complaint can be thoroughly investigated.
• The employee who is alleged to have discriminated will be interviewed shortly thereafter and given an opportunity to put his/her case.
• Any witnesses to the alleged discrimination will also be interviewed.

A determination will be made on whether the grounds of the alleged discrimination are made out and, if so, the perpetrator will be subject to such disciplinary action as is appropriate to the severity of his or her misconduct.

The appropriate action will then be taken to ensure that the misconduct does not continue.

No complainant or witness will be treated detrimentally as a result of a complaint.

Notwithstanding the procedure for dealing with complaints, any employee who claims to have experienced discrimination:

• May request Brown Pty Ltd to arrange a facilitated discussion of the problem with the employee who has alleged to have discriminated, which it will do, in an attempt to resolve the matter in a constructive manner; and
• Is entitled to pursue a complaint under the provisions of the State and/or Federal legislation.

We highly recommend that if you do not have policies in place that you copy these policies and Introduce them. It is sound risk management.

Ensure each employee receives a copy of the policies and that receipt can be proved e.g. by directing each employee to sign and date an acknowledgment of receipt. 

New Employees

New employees should be given a copy of the policies as part of the induction process e.g. in the induction handbook. Again, have evidence to show receipt.

It is not enough just to have a policy. To escape vicarious liability, an employer or principal must be able to demonstrate that the employee or agent understood their duties and obligations under the anti-discrimination legislation.

It is recommended that each employee undergo regular and systematic training e.g. each year the employees are directed to attend a training session or to watch a training video.

It is also advisable for employers:

• to be vigilant about acting on the “warning signals” of discrimination or sexual harassment e.g sudden absences on stress leave;
• to ensure that the workplace is free of objectionable posters or other material;
• to have an email and internet policy that makes it clear that employees are not permitted to view, download or transmit pornography or other objectionable material; and
• generally, to make it clear that discriminatory behaviour will be treated as serious misconduct.

Awards of compensation have steadily increased and many perpetrators of discrimination or sexual harassment are people without resources so employers or principals can face a potentially substantial liability. It therefore makes sound financial sense to put in place and ensure compliance with anti-discrimination policies. 

HOW TO HANDLE A COMPLAINT OF DISCRIMINATION OR SEXUAL HARASSMENT

Policies in relation to sexual harassment and anti-discrimination should refer to the procedures set up to deal with these issues and provide that any complaint of discrimination or sexual harassment should be brought to the attention of the “designated officer”.

In order to ensure the policy is backed up by a fair, quick and confidential process, we suggest that employers take the following steps:

• Appoint two people (preferably one male and one female) who will be the designated Equal Opportunity Officers to whom complaints should be made and who are given sufficient authority and resources to undertake the role.
• Provide training to the designated offices in dealing with the complaints. The EOCV at Level 3, 380 Lonsdale Street, Melbourne, Victoria, 3000 regularly holds such courses. The EOCV’s telephone number for enquiries is (03) 9281 7100.

The Complainant

Ensure that the person making the complainant gives a full statement of the allegations and that he or she is aware that:

• they can have a support person such as a trade union representative or friend present at any interview; and
• that the complaint will be kept confidential as far as is practicable.

Inform the complainant of the process that you intend to follow and interview him or her as soon as possible after receiving the complaint.

Supporting witnesses, if any:

• should be interviewed;
• given a lawful direction to keep the matter confidential; and
• told that a breach of that direction may constitute serious misconduct.

If you are uncertain about being able to manage the process consider obtaining external assistance from a solicitor or employer organisation.

Notify the person who has allegedly breached the policy (the alleged perpetrator) of the complaint before interviewing him or her so that they can arrange for representation at the interview. At this stage the complaint is an allegation only and a person accused of such an allegation has the right to be:

• treated fairly;
• given sufficient details about the complaint so that they can defend themselves. It is not necessary to give the alleged perpetrator a copy of the complainant’s statement, but he or she should be told the identity of the person making the complaint and what it is they have allegedly done and on what dates and times;
• represented at an interview;
• afforded confidentially; and
• advised of the process which will be followed ie that they will be interviewed, the witnesses will be interviewed and there will be a specified period for consideration after which a decision will follow.

Ideally any complaint should be dealt with quickly. If practicable, a realistic time frame should be fixed and advised to the complainant and the alleged perpetrator.

The alleged perpetrator should be interviewed together with his or her representatives and given a real and full opportunity to put their defence.

The interviewers should avoid giving any impression that a decision has been made in advance.

The Evidence

Once all of the evidence has been gathered it should be carefully considered. It may be helpful to bring in external assistance.

The Decision

A decision should be taken on whether:

• the complaint is made out; and
• if so, what sanctions should be imposed on the person breaching the policy up to and including termination.

In many cases, the complainant simply wants the offensive behaviour to stop, and an apology and undertaking not to repeat the offensive behaviour may be sufficient, together with all employees undergoing further training in the anti-discrimination policies to ensure future compliance.

In these circumstances, the appropriate sanction may be a written warning given to the employee stating that if the offending behaviour occurs again, then he or she will be dismissed.

Another option is to demote the offending employee.

If considering dismissal the employee must be notified of the proposed termination and given an opportunity to respond to the proposed dismissal so as to avoid breaching the Workplace Relations Act 1996 (Cth).

Avoid Victimisation

An employer must ensure that the complainant or anyone assisting the complainant and the witnesses are not victimised or subjected to any detriment because of the complaint, such as being sacked.

Request Not to Divulge the Identity by the Complainant

It is common for a complainant to complain about offensive behaviour but to ask the employer to do nothing or not to disclose his or her identify to the alleged perpetrator.

This is a difficult issue: an employer has an obligation to take all reasonable precautions to prevent a breach of the anti-discrimination legislation taking place or continuing once they have become aware of the breach otherwise they too will become vicariously liable.

Equally, the person against whom any allegation is made has the right to fully defend him or herself and as a part of that process generally needs to know the identity of the person who is making the allegations.

Generally a person cannot be lawfully sacked on the basis of an allegation by an unnamed complainant.

It may not be possible to do nothing, or keep the complainant’s identity confidential. Much will depend on the particular circumstances of the case. If in doubt seek legal advice.

FURTHER INFORMATION

This Information Outline is provided courtesy of McKean & Park Lawyers & Consultants who are experienced in this area of law. They are located at 405 Little Bourke Street MELBOURNE VIC 3000 or call them on (03) 9670 8822 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

McKean & Park was established in 1863 by James McKean and thrives today with 20 professionals specifically in all major areas of practice including Workplace Relations and Anti-Discrimination Law. The firm is proud of the fact that many of its Lawyers are accredited specialists approved by the Law Institute of Victoria. McKean & Park is committed to providing clients with comprehensive and innovative legal services delivered promptly in a professional and cost effective way.