Workplace Culture, No Excuse for Sexual Harassment. Do Something About It!

The Fair Work Commission has upheld the dismissal of an employee, finding that despite the employer’s “rather unusual” workplace culture, did not excuse the employee’s sexual harassment.

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It is well established that the workplace culture of an organization should reflect the values a business upholds and expects from its employees. However, it is becoming increasingly difficult to determine what conduct is acceptable in the context of that particular workplace.

Consequently, the employer commenced disciplinary action and the Applicant was terminated on the grounds that the posting of these memes constituted social media misuse, misuse of company property, sexual harassment and a failure to adhere to the employer’s policies or act in its best interests.

The employee argued that “all sorts of conduct” was permitted by the employer, such as racially provocative and racist emails were sent around, racist Secret Santa gifts was presented to a colleague by the female employee, sexist emails being sent between employees, regular sexual harassment of staff in the form of sexual innuendo, public groping and sexually suggestive comments, whether verbally or in writing, frequent dissemination of rumours and gossip, including as to potential interoffice relationships and regular swearing. The employee asserted that this behaviour occurred openly and seemingly without consequences from management.

Despite the employee’s assertions, the employee had received a formal warning regarding similar conduct. However, the employee was issued three separate “final” warnings, two of which were related to sexist and derogatory comments.

Fair work Commission Views

Fair work Commission Deputy President Lake accepted that the culture at the employer’s business fell considerably short of the standards expected of a workplace. Nevertheless, viewing the employee’s behaviour against this backdrop does not mitigate the severity of the employee’s inappropriate and unlawful actions. Despite the series of warnings, Deputy President Lake accepted that the nature in which they were issued demonstrate an imperfect disciplinary process that may have caused confusion to the employee about what was acceptable and not.

The employee was found to have lacked insight and remorse in regards to the reasonably foreseeable consequences of his actions, given the meme was sexually explicit and posted publicly. Despite a workplace that typically tolerates a more “robust” workplace culture, the employee’s conduct was still held to be sufficiently serious and inappropriate so as to constitute a valid reason for dismissal. The dismissal was deemed fair.

This case demonstrates the importance of workplace culture and what is expected of employees. Promoting a positive workplace culture, free of discrimination and sexual harassment, will create a safe work environment for all employees. In order to achieve this, employers should ensure their policies and procedures are regularly updated and enforced. Employees should be familiar with these policies and procedures through extensive training and education.

When educating employees about these policies and procedures, they become aware of what actions are inappropriate and unlawful. In addition, employers should ensure they properly discipline employees who contravene these policies and procedures. By taking the appropriate disciplinary action when required, employees become aware that there are serious consequences for their actions and this will deter them from engaging in this unlawful and inappropriate conduct.

This also promotes a workplace culture that does not tolerate unlawful or inappropriate behaviour. When employees are aware that their employer will take disciplinary action in response to this unlawful conduct and do it in a manner that is fair and just across the board, it enforces a standard of behaviour expected of employees. Employees become aware of the potential disciplinary consequences of their actions and thus, they cannot blame the culture or their ignorance to justify their actions.

Sexual harassment, including gender harassment, presents an unacceptable barrier that prevents women from achieving their rightful place in science, and robs society and the scientific enterprise of diverse and critical talent. U.S. National Institutes of Health (NIH) bears a responsibility to take action to put an end to this behavior. In 2019, the NIH began to bolster its policies and practices to address and prevent sexual harassment. This included new communication channels to inform the agency of instances of sexual harassment related to NIH-funded research. This week, the NIH announces a change that will hold grantee institutions and investigators accountable for this misconduct, to further foster a culture whereby sexual harassment and other inappropriate behaviors are not tolerated in the research and training environment.

  1. Carrie D. Wolinetz1
  2. Michael S. Lauer2
  3. Francis S. Collins3

 See all authors and affiliations Science  19 Jun 2020:
Vol. 368, Issue 6497, pp. 1291
DOI: 10.1126/science.abd2644

Training

One of the major ways of changing the workplace sexual harassment culture, as set out above to take away the sexual harassment barriers is training, reinforcement is central to any behavioral change. There is a huge psychological and financial cost of making these changes, companies, organizations need to set expectations. Sexual harassment training should be part of an induction process and should be reinforced on a regular basis, particularly if incidents occur or a complaints arise. Training has to be more than just some online multiple choice questionnaire. You can contact the various human rights commission, or equal opportunity commissions, both federal and state based, who can provide training material, and conduct courses if required.

Gone are the days of “boys will be boys”, equality must be more than words, it must mean something, ring a sexual harassment lawyer or give A Whole New Approach a call, we are not sexual harassment lawyers, we are workplace specialist, we have been advising and representing on sexual harassment claims since 2004, we have represented many women with great success.

Got concerns about the sexual harassment culture in the workplace?, give us a call, get free advise, you do not have to suffer in silence, we are here to help, all calls are confidential 1800 333 666


[1] [2021] FWC 2570.

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