When can sexual harassment occur in the workplace?

Under the Sex Discrimination Act 1984, it is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

Sexual harassment can happen when one employee makes unwanted sexual propositions, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against their wishes.

Sexual harassment can happen in many different circumstances. These are a few examples of sexual harassment.

• Unwanted Touching or contact such as scratching or massaging a co-worker’s back, grasping an employee around the waist, or preventing an employee's capacity to move.
• Intrusive questions about an employee’s life or body
• Continuous requests for dates that are denied or unwelcome flirting.
• Emailing pictures of a sexual or offensive nature.
• Sexual or sexist jokes, gestures or offensive words on clothing unwelcome comments or banter
• Displaying sexually suggestive or obscene objects, pictures, or posters.
• Playing sexually suggestive music.

When a complaint is made to a supervisor, another employee, or the Human Resources office, about sexual harassment, a prompt investigation of the charge should occur. Employees need to be made aware that they have a responsibility to report sexual harassment issues to their supervisor or the Human Resources office.

Sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, uncomfortable, humiliated, intimidated or pressured to do something unrelated to their work. It can be physical, verbal or written.

Sexual harassment is covered in the workplace when it happens:

• at work
• at work-related events
• between people sharing the same workplace
• between colleagues outside of work

A workplace includes any place that a person attends for the aim of carrying out their work or trade. They do not need to be an employer or employee of the workplace.

Physical workplace boundaries as such no longer exist under the WHS Act. A workplace under the WHS Act is wherever a worker is ‘at work’ and is not restricted by a building, vehicle or other structure. A worker is at their workplace whenever they are engaged in a work activity.

For example; an electrician comes to do some work in a supermarket, in his time there he is sexually harassed by one of the supermarket staff. Although he is not employed by the supermarket but by an electrical company, he is still covered by the law.

The definition of workplace includes:

• common areas, i.e. entrances, elevators, hallways,  kitchens and bathrooms
• travel to and from work or for a work function
• functions at the premises of clients, suppliers, associated businesses or any other venues where work functions are held

Real Life Case Study - What is your 'Person Profile'?

I have recently been working with 2 clients whereby the recruitment of a senior person didn’t work out as planned.  In both cases the person was not a culture fit for the business, however were in key roles. 

Both candidates had been working in large corporate environments, they really didn’t fit into a mid sized business.  This resulted in both candidates being let go, which created a lot of stress for the owners, the candidates, and the staff left in the business.  

It is important when recruiting into a business to build a “person profile”  before looking at job descriptions, advertising, talking to people.  You can do this with online tools, however the most effective way is to sit and plan who the person will be interacting with, what kind of personality works with the business, are they able to be flexible and work in unstructured changing environments, are they still interested in being hands on. 

Once the planning has been done, then a job description can be created and the advertising can be written to reflect the person profile.  Taking extra time at the start to think about who you need in a business will reduce angst down the track when they don’t meet expectations and are let go.    In both cases and all recruitment that I conduct, I work with the business owners on the person profile before any action is taken to find a person.

4 common myths about probationary periods

Source Workplace Bulletin

We found an interesting article in a recent edition of Workplace Bulletin that we consider important to share...

Employment contracts will often contain provisions for a probationary period – an initial period of service during which time both you and the employee can decide whether you want the employment to continue.

This gives you an opportunity to assess the employee's suitability for the role for which they have been recruited. A probationary employee will know that their work performance will be under review and that they do not have a guarantee of ongoing employment.

However, there are many myths about probationary employment.

MYTH: Probationary employees are exempt from Fair Work Act (FW Act) unfair dismissal laws.

FACT: While under the FW Act's predecessor, the Workplace Relations Act, employees serving a reasonable period of probation were exempt from unfair dismissal laws, that exemption is not provided in the FW Act.

Instead, there is a requirement that in order to make a FW Act unfair dismissal claim, the dismissed employee must have served a minimum employment period of 6 months (or 12 months if the employer employs fewer than 15 employees). That is the case regardless of whether the employment contract includes a probationary or trial period.

MYTH: I don't have to give a probationary employee any notice of termination, or any reasons or warnings.

FACT: Many probationary clauses provide a lesser notice period for termination of employment during the probationary period as opposed to after the expiration of the probationary period. However, the notice period for termination during a probationary period cannot be less than the minimum periods prescribed in the National Employment Standards (NES) contained in the FW Act. The NES provides for 1-week notice for employees with less than 12 months' service.

If a probationary period matches the minimum employment period (i.e. 6 or 12 months), the exclusion of unfair dismissal laws lessens your legal exposure if you dismiss before the expiration of the minimum employment period without a valid reason or warnings.

However, the dismissed employee can still challenge the dismissal on grounds that it is in breach of anti-discrimination or general protection laws, or a breach of employment contract.

Therefore, if you decide to dismiss a probationary employee, you should still ensure you are in a position to prove the reason for dismissal and show that it is a lawful reason.

You should also ensure that any probationary period clauses do not restrict your right to terminate employment during probation. Avoid provisions in the employment contract that might entitle the employee to appropriate support and a reasonable opportunity to demonstrate suitability for ongoing employment.

MYTH: Employees on probation aren't entitled to annual leave or sick leave.

FACT: Probationary employees enjoy the same entitlements to paid annual leave and paid personal/carer's leave as non-probationary employees.

MYTH: You can extend a probationary period if you are still unsure about a probationary employee.

FACT: Generally, a probationary period will be for a period of 3, 6 or 12 months. You can only extend a probationary period if the contract provides for that extension at the outset of employment, or if the employee agrees to the extension at the time it is proposed.

Remember, however, if once the probationary period goes beyond the expiration of the minimum employment period, FW Act unfair dismissal laws will apply.

Here are some important things to remember about the minimum employment period (MEP):

• Dismissal does not take effect until notice of termination has been communicated to the employee. Therefore, if a dismissal notice is posted to an employee before the MEP expires but is received by the employee after the MEP has expired, the dismissal will not have taken place within the MEP.
• MEP includes service by the employee with an earlier employer in a transfer of business situation. However, a new employer in a transfer of business situation which is not an associated entity of the old employer can inform a transferring employee in writing before their employment commences with the new employer that it will not recognise his or her service with the old employer. In that situation, the service with the old employer will not count in working out whether the employee has served the MEP with the new employer.
• MEP includes service with associated entities, e.g. subsidiaries, parent company.
• MEP includes any period of paid leave, which includes any period in which the employee is absent from work receiving workers' compensation.
• MEP includes any period of casual employment that was on a regular and systematic basis, during which the employee had a reasonable expectation of continuing employment.

Effectively managing employee underperformance

What do you do with an employee who is not performing?  What options do you have in this area? 

You have a responsibility as an employer to ensure that they have been given sufficient opportunity to improve their performance before you resort to disciplinary action.  After all, they may be having a hard time outside of work or any number of other factors may be affecting their performance and this should be addressed with fairness.

Counselling the under performing employee is vital and entails advising them that their performance needs improving and setting out a plan for improvement.

Workplace Bulletin provides a good suggested couselling scenario for an underperforming employee:

1. Investigate the matter further

Investigate the issues before meeting with the employee so you can be sure of the facts. This may mean that you speak to other managers, employees and witnesses.

2. Hold a private meeting with the employee

Hold the session in private and retain a record of the discussions (this could be recorded in a diary).

Do not make the discussion a casual conversation. Counselling is a focused discussion that is meant to clearly show the nature of your expectations

Be specific in your comments, e.g. 'It is not appropriate to clean the roller on a machine while it is moving', rather than general, e.g. 'You need to clean the rollers properly'.

Allow the employee to respond, and take their comments into account.

Focus your recorded comments on the employee's conduct, rather than the employee as a person.

3. Develop a performance management plan

A performance management plan (sometimes called a performance improvement plan) is a document that outlines the performance goals an employer expects their employee to achieve. These can include health and safety objectives.

The purpose of a performance management plan is to:

• set out the goals or 'key performance objectives' that reflect the employee's role in the business; and
• provide measurable benchmarks for assessing the employee's performance.

Develop the plan with the employee and keep a copy in the employee's file.

If employee performance is handled correctly, problems are recognised and solved early and the need for disciplinary action is eliminated or reduced.

4. Set a review date for following up

Your performance management plan should identify further dates for reviewing the employee's progress.


Source Workplace Bulletin

7 signs that bullying is occurring in your workplace

Workplace bullying is a big issue and it’s also very bad for your business!

Employees who are at the receiving end of workplace bullying can suffer a number of emotional and physical consequences such as stress, absenteeism, low self esteem or depression, anxiety, digestive upsets, high blood pressure, relationship problems etc.

If workplace bullying is not dealt with it can results in expensive hits to your business such as high staff turnover, low productivity, difficulty in hiring, lost innovation, bad reputation etc.

7 SIGNS THAT BULLYING IS OCCURRING IN YOUR WORKPLACE

Source: Workplace Bulletin

1. Patterns of absenteeism or excessive sick leave.
2. High staff turnover.     
3. A high number of grievances, injury reports or WorkCover claims.
4. A workplace culture that accepts or promotes a ‘tough guy’, ‘dog eat dog’ or ‘harden up’ attitude to interpersonal relationships, performance management and distribution of work.
5. Leadership styles that are particularly forceful, rude or aggressive, demanding, aloof, overbearing or micromanaging.
6. Systems of work in which there is: uneven or unfair distribution of work; excessive intervention in a person’s work; excessive amounts of work; or provision of menial or tedious tasks, or failure to provide any (or any meaningful) work.
7. Workplace relationships in which one or more people are excluded from a larger group or social activities.