As an employment lawyer and part of a law firm that represents employers in employment law I am regularly challenged by numerous people, be it – clients, managers, supervisors, consultants, accountants, other lawyers with different specialties, and even friends in regards to the complex issues around sexual harassment and workplace bullying.
It will usually go along the lines of “we always joke about each other’s personal [insert s-xuality, partners, race, gender, appearance] life and tease each other because we have such a great workplace culture.”
Or something to this effect:
“Everyone knows that they are all jokes and good humour”
As you read this, you may believe that this is either appropriate or inappropriate depending on the context. It is well established in case law that the normal and everyday culture of the workplace will play a role with the Commission and Courts as to whether a complaint should be considered in the context of sexual harassment or workplace bullying.
Whenever anyone tells us about the workplace in this context, our response is generally the same, that is, of course it’s not really a problem until one person makes a complaint.
Because someone eventually and inevitably will. That person is usually the newest employee, or even someone who is dealing with personal issues – comments that were previously considered a joke are no longer “funny”.
To put these all in context, sexual harassment in Queensland is any unwelcome conduct of a sexual nature that is done either to offend, humiliate or intimidate another person, or where it is reasonable to expect the person might feel that way.
Considering this definition, it does not consider whether these acts or conduct is repeated or continuous to be against the law. That is, in circumstances where it has been the norm to engage in friendly “banter” when it was considered “a long running joke” or “comradery” – however arguably such conduct could be considered sexual harassment or even workplace bullying.
In a recent case involving Emmanuel Montes v The Star Casino  FWC 874 (Star Casino Case), it looked at an issue where an employee who believed that they were engaging in long running jokes or comradery was unfairly dismissed.
In this particular case, Mr. Montes had been employed by the Star Casino for around nine (9) months. In that time, Mr. Montes received a warning and two complaints about his behaviour.
The complainants were unrelated and the complaints were of 3 differing circumstances.
In one of the instances, Mr Montes was engaging in “friendly banter” with an employee. In his defence, the other employee had also engaged in friendly banter with Mr Montes. Mr. Montes took it too far when he grabbed the tray that he had in his hands and smacked the other employee on the bottom. When a complaint was made by the other employee, the other employee said that she felt his actions were “extremely rude and disrespectful”. Mr Montes replied where he said, “come on, I’m only joking”.
In his view, the smacking of her bottom was just part of the spirit of comradery between the two after they’ve been engaged in friendly banter over a period of time.
When confronted with this allegation, Mr Montes showed no remorse and felt that the complaint was frivolous and had no merit.
Amongst other issues, Mr Montes also had a previous warning in regards to his behaviour, had breached a number of policies and also had engaged in further inappropriate commentary with another employee about her being “attractive”.
Of course, it did not help that Mr Montes did not show any remorse whatsoever.
In particular, the Commission found that his lack of understanding was so deeply ingrained. He never really believed he had done anything wrong. His application failed.
Lessons for Employers
Every single time we get asked by clients about sexual harassment and whether comments by staff are “ok” or do they “go too far” or they reiterate that it is part of the “workplace culture” I always point towards cases like the Star Casino Case
That is, in circumstances and in environments like this, complaints are inevitable. If the circumstances that are created give employees engaging in the banter such a deep and ingrained lack of understanding of what they’ve done wrong, then you’ve got a further problem and expect to receive unfair dismissal applications, general protection applications or a discrimination application.
The Sex Discrimination Commissioner has just handed down a report which suggest amongst other changes to law:
Ensuring it is clear that sexual harassment is “adverse action”
Sexual harassment is specifically legislated as serious misconduct
A positive duty on employers to eliminate sexual harassment
Aiding and abetting in sexual harassment will be grounds for individual liability
Expect changes to the Fair Work Act 2009 (Cth) around sexual harassment. Some helpful tips for employers to avoid, prevent or reduce the risks of sexual harassment claims:
Start with having a sexual harassment policy in place;
To put some time and energy aside to implement some sexual harassment training;
Create opportunities in the organisation to outline that banter and “jokes” should be kept within the bounds of what is acceptable in the workplace;
Provide training and education to managers and supervisors of people to set the right standards that align with any policy but also the company values and code of conduct; and
If a complaint is made about sexual harassment, take it seriously and go through the normal process required, that is, to give the person being complained of an opportunity to respond to the allegations and if required, to undertake a workplace investigation.
About Jonathan Mamaril, Director at NB Lawyers – Lawyers for Employers
jJonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.
For all Employers we offer an obligation free consultation – please call 07 3876 5111 or email Jonathan Mamaril at firstname.lastname@example.org