What should you do when an employee doesn't want a bullying allegation investigated? How prescriptive should your Christmas party memos be? What role should senior leaders take at celebrations? Lawyer Joydeep Hor answers these questions and more.
In his recent presentation for HR Daily subscribers, Hor, who is the managing principal at People and Culture Strategies, stressed that employers must be more proactive than they have traditionally been about preventing and managing inappropriate workplace behaviour.
He says that if a claim is brought against an employer, "you want to be able to say that your culture was not one that facilitated or encouraged these kinds of behaviours. That, to me, is going to become increasingly the challenge for employers".
Commenting briefly on the sexual harassment case brought against retailer David Jones, he said one of the reasons it attracted so much media attention was the way in which the claim was structured - specifically that it sought punitive damages.
This is a concept that Australian courts struggle with, Hor says, "whereas American courts have for many years recognised punishment as a valid form of remedy in these kinds of cases of discrimination and harassment".
In Australia, where compensation - rather than punishment - has always been the focus, "arguably an employer should be held accountable to far higher standards of behaviour, and punishment may well be seen as necessary...".
More interesting, Hor says, is "the basis on which one can infer that punitive damages were seen as appropriate in that particular case".
"Leaving aside the headline-grabbing figure of the $37 million or five per cent of profits of David Jones... what we can confidently say is that the line that was run in that particular case was that there was a heightened level of responsibility and culpability for the employer, and their individual board members, because - and this is the critical piece - they knew or ought to have known of the risks of these behaviours occurring.
"It is that phrase which is going to be the catchcry for employer compliance, or the litmus test against which they will be charged. It's not just about what you know has happened, or what you know might happen, but what you ought to have known that will pose a very big challenge for employers. And that's precisely the issue that employers and those within leadership roles need to grapple with. How do we take steps to defend an allegation or complaint that we are culpable, or more culpable, because we should have known that something was a risk of occurring?
"What I think is going to become a critical piece for employers to satisfy courts and tribunals of, is demonstrating that they embrace what I have been referring to for some time now as a police-style model, as opposed to a model more based around complaints." (Read more about Hor's "police-style" compliance model in this article.)
Hor spent 30 minutes after the presentation answering the questions of webinar attendees. We have transcribed a sample of the queries dealt with during the Q&A below:
Q: If an employee makes a complaint about being bullied, however they tell their manager or employer that they do not want to take the complaint any further, does the company have a duty of care to investigate the complaint anyway?
A: "The difficulty is, what assurance does that employer have that the employee will not change their mind when they've left the organisation, and the concerns that they might validly have while pursuing the complaints while still employed are no longer there?
"For that reason, as part of the education piece, employers need to make it very clear to their workforce that the mere fact that an employee says they don't wish something to be pursued further is not the be-all and end-all, and the employer in certain circumstances may have to conduct their own investigation and inquiry, because there's no such thing as 'off the record' when it comes to something like bullying or harassment."
Q: What are the types of things that we should include in advice to staff about Christmas functions where we are providing alcohol? I am particularly interested in what you said about "kick-on" functions, which have become commonplace after what is usually an uneventful initial function.
A: "Many an organisation has called us up the day after an end-of-year function, and the events that are the subject of that conversation are more about what happened at the 'kick-on', rather than what happened at the event itself.
"To answer the first question, [regarding] provision of alcohol, there's a whole range of things that should be done. Part of it is the proactive communication with employees in advance of the event, around the fact that they will be accountable to appropriate standards of behaviour, and any consumption of alcohol should be done in moderation, etc.
"You need to make sure that you're providing enough food; that's a fairly basic issue to accompany any alcohol consumption. Instructions [should be] provided to the venue, who of course have their own obligations in relation to the responsible provision of alcohol, but it's not going to hurt to remind that venue - and also remind staff that you've reminded the venue - about the expectations that you have in that regard.
"It's always a good message for a senior person in an organisation not to be drinking - ideally a whole range of senior people not to be drinking - because it sends a good message that someone senior... is watching. And what people may choose to do, they do so under the watchful eye of their leaders.
"When it comes to kick-on events I think part of the challenge is ensuring that employees understand - and you can cover this off in your pre-function memo or communiqué - that while they think they're on their own time... anything they do at a kick-on event can become the subject of a claim. And more often than not, is."
Q: In sexual harassment education sessions in our workplace, what are the main topics we should focus on?
A: "I think the issues of culture, off-site events, and trying to break down the notions of so-called private time are the important issues to address.
"A lot of people, they think they know what sexual harassment is... people don't expect that it's going to be a sexual harassment issue to have a bawdy conversation over a few drinks at a Christmas party. Yet they are precisely the issues that an organisation needs to come to grips with; it's those grey areas - the ones which are going to surprise people - that should be the focus of that session."
Q: On the topic of company parties and events, can you provide more detail/examples around what roles senior leaders should play and ways employers should deal with kick-on events?
A: "I'm not saying it's in any way mandatory that senior leaders don't consume alcohol, but I make that point because of the message-sending, and because there have been a number of cases that I've advised on where part of the difficulty that the organisation faces in defending itself was the way in which senior managers created the atmosphere of a heavy-drinking evening, or at a kick-on event, paying for drinks using the corporate credit card or whatever.
"It compromises their ability to take a stand in relation to errant behaviour that other employees have engaged in. Senior leaders have an important responsibility to be 'walking the talk' at these kinds of events."
Q: Could you please clarify whether there is a responsibility, on a person who finds behaviour unwelcoming, to raise the issue?
A: "The short answer is 'no', there is no such responsibility. The court or tribunal will have to look at whether the conduct was unwelcome. And if a person does nothing, that does not stop them from turning around and saying that they found the behaviour unwelcome. They might say that the body language that they displayed was enough to suggest that the conduct was unwelcome.
"Where it becomes interesting, is what happens if the person actively participates in the behaviour, but turns around later and says they felt they had no choice but to [do so], by the peer pressure, or the relationship with the other people involved? So while there's no responsibility in determining whether the behaviour's unwelcome or not, it's always going to help someone establishing that the behaviour was unwelcome if they took active steps to communicate that."
Q: How would you distinguish between bullying and harassment, and how does the "police" model apply to bullying?
A: "The 'police' model applies to all of these types of behaviours, whether it's discrimination, bullying, harassment, victimisation or vilification. Ultimately we're talking about need for an organisation to show it took steps to proactively address inappropriate behaviours as and when they occurred, rather than waiting for someone to complain about them.
"But... bullying is a much more difficult issue to address, because for so many people, the mere fact of not liking something that's happened in a workplace context gives them pause in their own mind to think that they've been bullied. And that's where it's natural and understandable that there's going to be a lot more overlap with performance management and things like that. That's not to say the person might not be legitimate in raising an issue about what someone said to them or how they spoke to them, but we should focus on the issue, rather than attaching a label to that particular conduct.
"The thing about bullying is that the term 'bullying ' is one of the most overused and misunderstood terms at the moment. And bullying, while an easy term to throw around, can involve behaviours that in some respects are just a matter of poor communication style... or a symptom of managers being under pressure. But sometimes it is more genuinely a case of relentless, offensive conduct that has the capacity to cause someone to feel humiliated or intimidated, and that's really the litmus test around whether it is bullying.
"The question is to what extent does it fall into the category of being a serious bullying complaint, as opposed to something that is more properly dealt with through coaching, through education, through mentoring... so long as there is proper scrutiny of what are the triggers behind the particular conduct.
"As opposed to sex harassment, bullying is a more difficult issue to address with an alleged bully than sexual harassment is with the alleged harasser.
"So the police model does apply to bullying, but it only does so at such times when there is appropriate understanding of what bullying is, and what bullying isn't."
The above excerpt is just a sample of Joydeep Hor's one-hour presentation and 30-minute Q&A session. The full recording provides a five-step model for employers on how to minimise the risk of inappropriate behaviour occurring at work, and subsequent claims. Click here to watch it (HRD Plus Gold subscription required), or here to order a copy from our online store.