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Last updated: 25 November 1998
Achieving a harassment-free workplace
Please note: These documents are for reference purposes only and are no longer considered by the APS Commission to be current. They may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
What is workplace harassment?
Workplace harassment is offensive, belittling or threatening behaviour directed at an individual worker or group of workers.
Harassment consists of behaviour that is unwelcome, unsolicited, usually unreciprocated and usually (but not always) repeated. It makes the workplace or association with work unpleasant, humiliating or intimidating for the individual or group targeted by this behaviour. It can make it difficult for effective work to be done.
Workplace harassment should not be confused with advice or counselling on the work performance or work related behaviour of an individual or group which might include critical comments indicating performance deficiencies. Feedback or counselling on work performance or work related behaviour differs from harassment in that feedback or counselling is intended to assist staff to improve work performance or the standard of their behaviour. Feedback or counselling should always be carried out in a constructive way that is not humiliating or threatening.
The maintenance of courteous workplace behaviour is not intended to impose unnecessary rigidities on individual workplace styles or on workplace and work related relationships and social activities. Rather, it is a recognition that people with different backgrounds, interests and friendship groups need to get along with each other in the workplace if an organisation is to be effective.
For harassment to occur, there does not have to be an intention to offend or harass. In addition, harassing behaviour is often of a minor nature. Individual incidents may seem too trivial to warrant attention, or the person subjected to harassment may seem unaffected. Where it is not addressed, however, such behaviour can undermine the standard of conduct within a work area.
Background
APS staff should be aware of the legal ramifications of ignoring workplace harassment as well as the costs to performance.
Legal framework
This advice covers workplace harassment prohibited by the APS Code of Conduct as well as Commonwealth anti-discrimination laws.
In addition to Commonwealth laws, States and Territories have laws against discrimination. In situations which are covered by both Commonwealth and State or Territory laws, a complainant can generally choose the jurisdiction which best suits his or her circumstances.
APS Code of Conduct
All APS staff are subject to the Code of Conduct. The Code requires APS staff, when acting in the course of APS employment, to treat everyone with respect and courtesy and without harassment.
A staff member who fails to observe these requirements may be subject to action under the disciplinary provisions of the Public Service Act 1922.
Examples of behaviour which might contravene the APS Code of Conduct include:
- offensive physical contact;
- insulting or threatening gestures or language - overt or implied;
- continual and unwarranted shouting in the workplace; and
- phone calls or messages on electronic mail which are threatening or abusive.
Protection against victimisation or discrimination offered by the whistle-blowing provisions of the Public Service Regulations apply to individuals who report a breach of the Code of Conduct. Allegations of such breaches may include those made by staff who believe that they are the subject of workplace harassment.
Additionally, section 89A of the Public Service Act 1922 protects staff who in good faith provide reports on other staff in relation to their work performance and conduct.
Commonwealth anti-discrimination legislation
In addition to being likely to breach the APS Code of Conduct, workplace harassment on the basis of race, sex or disability may also breach both the antiharassment and the antidiscrimination provisions of Commonwealth anti discrimination legislation. This includes sexual harassment under the Sex Discrimination Act 1984, disability harassment under the Disability Discrimination Act 1992 and racial discrimination under the Racial Discrimination Act 1975. While the latter does not use the language of 'racial harassment', some types of workplace harassment could be seen as unlawful behaviour under this Act.
In addition to a staff member's personal liability for harassing behaviour under the anti-discrimination legislation, agencies are vicariously liable for the acts or omissions of their staff, unless they can demonstrate they have taken all reasonable steps to prevent the acts from occurring. An agency may therefore be liable for damages for harassment by one of its staff even though the employer is not directly involved in the harassing behaviour. The employer can seek to recover from the harasser damages that may be awarded.
Workplace harassment may also constitute discrimination under the Human Rights and Equal Opportunity Commission Act 1986.
Other Commonwealth legislation
The Workplace Relations Act 1996 aims to help prevent and eliminate discrimination in the making of awards and agreements and in the termination of employment. Aspects of this Act may be relevant to a workplace harassment allegation. Additionally, employers have to take all reasonably practical steps to protect the health and safety of staff members at work under the Occupational Health and Safety (Commonwealth Employment) Act 1991.
Criminal law
There may be instances where harassment amounts to an offence under criminal law. Sexual harassment involving physical or indecent assault, stalking, the sending of obscene material through the mail and the making of nuisance phone calls, for example, may be offences under criminal law. All offences under the criminal law should be reported to the police. Further detail about the legal framework is at appendix A.
Costs to individuals
For individuals, workplace harassment, can take its toll in the form of mental and emotional stress and loss of income if they leave their job or take leave without pay as a result of the experience.
Costs to agencies
There are many costs to organisational performance in failing to educate staff and put in place adequate policies and programs to eliminate harassment and discrimination in the workplace. Organisations which tolerate workplace harassment will have difficulty attracting and retaining high performing staff and the ideas and talents these people bring with them. This is the cost of lost opportunities.
Moreover, workplace harassment can have an impact on an organisation's effectiveness through increased employee turnover, frequent sick leave, possible increases in workers' compensation claims, and reduced performance and morale within the work environment. Workplace harassment prevents the achievement of an effective and high performing workplace.
There are also considerable costs in dealing with informal and formal complaints and handling litigation which may include payment of damages.
The 1997-98 Australian National Audit Office Performance Audit: Equity in Employment in the Australian Public Service report notes that damages awarded by the HREOC are potentially high because they are not capped. The report indicates that the typical amount of damages awarded is $20,000 or less, however the highest total damages awarded to date is $135,000. Legal and other costs of defending such cases add considerably to these costs.
'Most commentators agree that the inclination of equal-opportunity tribunals in Australia to award large compensation is increasing. Employees and the community at large accept increasingly that employers' decisions that offend EEO principles can affect people's lives dramatically and warrant compensation, not only for lost employment or opportunities, but also for stress, anxiety, humiliation and/or damage to reputation.'
1997-98 Australian National Audit Office Performance Audit: Equity in Employment in the Australian Public Service
Good practice
APS agencies are responsible for ensuring they have systems in place to prevent and address workplace harassment.
Strategy to address workplace harassment
The main elements of an agency's strategy for preventing workplace harassment should comprise:
- Development of a written policy statement on the organisation's commitment to positive working relationships and practices in the workplace, including refusal to tolerate any form of workplace harassment.
- Implementation of effective procedures to deal with incidents of alleged workplace harassment.
- Provision of information and training on the workplace harassment policy and procedures as well as complaint and resolution mechanisms.
- Incorporation of a methodology for monitoring and periodically evaluating the success of the strategy and a mechanism for revising it if necessary.
The Australian Government Solicitor has indicated that under the anti-discrimination legislation the Commonwealth will generally be liable for the conduct of its staff unless the Commonwealth can establish that it has taken all reasonable steps to prevent the discriminatory conduct at issue. Generally the Commonwealth will need to show that it had in place an effective system for preventing discrimination and that the system was effectively monitored to ensure that it was achieving its intended purposes.
As a minimum, each of the above elements would need to be in place for a Commonwealth agency to be able to demonstrate that it had taken all reasonable steps to prevent discrimination occurring and therefore avoid vicarious liability.
Involving both staff and managers in developing a workplace harassment strategy helps to gain commitment to the process. Such an approach also assists in tailoring strategies to meet agency and employee needs. In addition, consultation with members of EEO groups allows special needs to be identified and accommodated.
Policy statement
An agency workplace harassment policy endorsed by the head of the agency is an essential element in preventing harassment.
It is suggested that the policy include:
- a statement defining workplace harassment;
- a commitment to a workplace environment that values people and is free from harassment;
- an outline of the responsibilities of executives, managers and supervisors to apply people management practices that foster a harassment-free workplace;
- a commitment to prompt action when harassment is alleged;
- a list of contact officers who may be approached to discuss a problem including harassment contact officers and union representatives;
- a statement about the responsibility of staff in preventing harassment.
Procedures to address workplace harassment
Role of management
Accountability for people management, including the prevention of harassment, lies with agency heads, managers, and supervisors. They share the legal and managerial responsibilities for detecting and dealing with behaviour which constitutes harassment or has the potential to develop into harassment.
When workplace harassment does occur, it has a serious and sustained impact on both the complainant and the agency. It is important for all managers and supervisors to be familiar with, and play a key role in actively promoting and supporting, the agency's policy and strategies for dealing with harassment. It is the role of managers and supervisors to advocate and explain the standards of behaviour expected of staff and to be mindful of the need to model these standards in their own behaviour.
Managers and supervisors must take action when they become aware of harassment (even without a complaint necessarily being lodged). Failure by managers and supervisors to stop perceived harassment or to investigate complaints or to take prompt and effective remedial action to deal with such complaints may be perceived to be condoning or tolerating such behaviour.
Role of individual staff
Individual staff also have responsibilities for preventing workplace harassment - to ensure their behaviour meets acceptable standards, and to contribute to a productive work environment.
Support for a staff member who is the subject of workplace harassment may include providing information about grievance and complaint mechanisms. At other times it may be appropriate to approach management on the person's behalf, with their agreement.
The Human Rights and Equal Opportunity Commission in its campaign against discrimination, advocates that people speak out against harassment and discrimination when they are witness to it. An assertive and critical response to harassment by witnesses ensures that recipients are not isolated and harassers are not left with the impression that their behaviour will be approved or condoned by others. The whistleblowing provisions of the Public service Regulations provide a mechanism for doing this.
Workplace Harassment Contact Officers
Procedures need to be established to ensure that there is a mechanism to allow workplace harassment to be reported and addressed. This will usually mean ensuring a network of workplace harassment contact officers is in place to provide an alternative reporting channel to the supervisor/management channel for complaints.
It is good practice to ensure that these officers have the required skills and qualities to carry out the role successfully. The development of selection criteria and careful selection against the criteria would assist in this regard.
Workplace harassment contact officers (WHCOs) or staff with relevant human resources management responsibilities should receive training covering negotiation and conflict resolution skills and their role in advising on workplace harassment issues and alleged incidents.
Workplace harassment contact officers have a role in providing information to managers, supervisors and staff on:
- processes available to resolve complaints; and
- types of behaviour which are inappropriate at work, in line with the APS Code of Conduct.
It is not the role of workplace harassment contact officers to resolve harassment grievances. Their role is to provide information and support.
It is the responsibility of management to address complaints involving harassment or the workplace conduct which may encourage harassment.
Management should assist workplace harassment contact officers by:
- ensuring that they have access to, and the support of, management;
- allowing adequate time for officers to undertake their role;
- nominating a senior executive responsible for supporting contact officers as well as providing strategic direction;
- providing them with appropriate training;
- giving them access to a telephone and a private interview space; and
- giving them access to a secure storage space for confidential papers.
Complaint handling procedures
It is strongly recommended that agencies develop practical guidelines on complaint handling procedures. The Human Rights and Equal Opportunity Commission has indicated that it has encountered many cases involving Commonwealth agencies where internal handling of a complaint has been poor due to the lack of written procedural guidance on issues such as investigation, gathering and assessing relevant evidence, applying the principles of natural justice and the correct standard of proof and record keeping.
It is important to identify both informal and formal processes for dealing with complaints and to advise the complainant of these as well as other possible avenues of review such as the Human Rights and Equal Opportunity Commission as soon as the complaint is brought to attention.
Staff should be aware that if they experience harassment they should:
- seek advice and support through agency procedures established to deal with work related concerns and grievances; and
- ask the person concerned to stop the offending behaviour (the employee might wish to seek support before taking this step).
Informal processes
In the first instance, both the person alleging harassment and management are encouraged, where possible, to seek to resolve the matter informally.
In many instances, informal measures are a desirable way to resolve cases as:
- they allow the case to be addressed without an individual necessarily being labelled as a troublemaker (the complainant) or as a harasser (the person against whom harassment has been alleged). This is particularly important where the behaviour was unintentional or misguided;
- they allow for positive action to correct or alter behaviour to be taken;
- they allow management to develop preventive measures throughout a work area without attributing blame to one person or another. This can be important when the harassment is the result of group behaviour or when what has been regarded as 'normal' behaviour in the work area is perceived as harassment by someone new to the area; and
- they focus effort on putting future working relationships onto a proper basis by clarifying what is regarded as acceptable behaviour and what is not.
Complaints must be taken seriously and mutually agreed outcomes sought. The complaint should only be discussed with those who are involved in the resolution of the case. If the supervisor of the person alleging harassment is involved, another senior officer should seek to resolve the issue.
Care should be taken by supervisors not to resolve the situation in such a way as to leave people with no options other than being reconciled to offensive behaviour.
At the same time, the supervisor should ensure the person alleging harassment is acting in good faith and not out of malice. It is important that any investigation complies with principles of procedural fairness which include informing the alleged harasser(s) of the substance of the allegations made and giving them an opportunity to put their case.
The outcome sought through discussion should be the cessation of any offensive behaviour and, if appropriate, an apology from the harasser(s).
If the person who has complained of harassment is satisfied with the outcome of the informal process, he or she should inform their supervisor in a timely manner so that normal working relationships can resume.
At the same time, a desire by an individual to pursue the matter through informal processes only, does not preclude management from pursuing disciplinary action against the harasser where appropriate.
Formal processes
In some instances, an individual may choose to have a complaint dealt with more formally. Such an approach may be adopted from the outset if less formal measures are not considered to be appropriate, or may be used where such measures have not resulted in a resolution of a complaint or the harassment continues.
The staff member or group can lodge a complaint or grievance in accordance with Public Service Regulation 83 or in accordance with the relevant section of their agency's Certified Agreement.
Possible outcomes of an investigation could include:
- the cessation of offensive behaviour;
- an apology from the perpetrator;
- counselling or education on discrimination/harassment for the perpetrator and, if appropriate, the work group or whole organisation;
- disciplinary action against the perpetrator under the misconduct provisions of the Public Service Act;
- transfer to an alternative work site for the perpetrator or the complainant (if this is the complainant's preference but must not be seen to further discriminate against the complainant); or
- financial or administrative compensation.
It is important to document thoroughly action taken to address complaints once a formal process begins and to manage records confidentially.
Where allegations of harassment are found to be unsubstantiated, the person alleging harassment is advised of other possible avenues to follow which are external to the agency, should she or he wish to pursue the matter further.
A grievance can be lodged with the Merit Protection and Review Agency under Public Service Regulation 84 if the matter has been investigated within the individual's own agency under Public Service Regulation 83 or under their Certified Agreement and the complainant is not satisfied with the outcome. In addition, where the alleged harassment is based on the staff member having lodged a grievance or a matter is so serious or sensitive that it is inappropriate that it be investigated within the agency, a grievance can be lodged direct with the Merit Protection and Review Agency. A complaint of sexual harassment involving an extremely senior officer of the organisation is an example of such a matter.
Complainants should be made aware, as soon as they notify someone in their agency of their complaint, that where the alleged harassment is based on a number of attributes including gender, race or ethnic origin, disability, marital status, sexual preference or age (for full list see Appendix A), a complaint can be lodged, usually in writing, with the Human Rights and Equal Opportunity Commission.
It is important to remember that action under the misconduct provisions of the Public Service Act does not necessarily require an individual complaint. Management may also act in response to other information about a case of harassment which is brought to its attention, or observation of a serious or continuing case of harassment.
Information and training
A policy statement by management supporting positive working relationships and committing the agency to measures to combat workplace harassment should be distributed to all staff. Other materials, such as posters or pamphlets, could be used to reinforce the message.
Personnel units should include information about workplace harassment and agency policy and procedures in material supplied to all new members of staff. Orientation training programs should also include such information. Staff taking up supervisory positions should be supplied with additional information related to their responsibilities and the agency's liability.
Agencies should examine their needs for general training and specialist training in workplace harassment issues. General training could be linked with other activities related to occupational health and safety, workplace diversity or training in standards of conduct and should recognise that good practice in this area will enhance workplace performance.
Training for supervisors should include:
- awareness raising and discussion of their responsibility for maintaining a workplace free of harassment;
- information about management liability and the performance and monetary related costs of workplace harassment; and
- material on conflict resolution and case studies on dealing with incidents of harassment.
Monitoring and evaluation
It is important to document thoroughly action taken to address complaints once a formal process begins. Should there be questions later as to whether a harassment claim was properly handled, the records will provide the required information. Records also enable recurring patterns of behaviour or ongoing problems in a particular work area to be detected and corrective action to be taken. Further advice about recording counselling discussions is available in the 1997 PSMPC/Comcare publication, Counselling for Better Work Performance.
Monitoring the incidence of workplace harassment, including those complaints which are resolved informally, will also assist in evaluation of agency strategies, policies and procedures. Agencies may wish to consider developing a standard form to be used by Harassment Contact Officers and other officers responsible for resolving cases of workplace harassment to enable them to gather general information on complaints received. The data should be restricted to type of complaint, number of staff involved, relevant dates, information and advice provided and resolution outcome. The names of parties involved in the complaint process or other information which could identify them should not be used on the form.
The 1997-98 Australian National Audit Office Performance Audit: Equity in Employment in the Australian Public Service suggests that agencies could consider including in their annual report statements on the level of discrimination and harassment in the workplace, the level of formal and informal complaints and the results thereof.
Confidentiality
It is important that investigations into allegations of workplace harassment maintain confidentiality with information provided on a need to know basis only. Because of the sensitivity of material relating to workplace harassment, special care should be taken to protect the confidentiality of any records relating to complaint processes. Requirements in this regard should be communicated within agencies.
The Privacy Act 1988 provides guidance in relation to these matters and specifies a number of Information Privacy Principles which regulate the way government agencies collect, store, use and disclose personal information.
The Freedom of Information Act 1982 makes provision for staff to gain access to documents relating to information which is personal to themselves. Since records relating to alleged harassment are likely to contain personal information about the complainant and the alleged harasser, there are two competing principles to be considered before granting access to documents relating to cases of workplace harassment. Where the disclosure of information would inhibit the resolution of a case of workplace harassment, exemptions under the Act may be invoked.
When access is granted under the Act, there are protections for those who grant access as well as for authors and suppliers of documents.
Frequently asked questions
The following questions and answers seeks to address some of the most significant issues raised by supervisors and WHCOs.
Questions from supervisors
I've warned one of my staff a number of times about harassing a colleague in the work group. The staff member persists in this behaviour, and the colleague has now asked to be transferred out of the area. What do I do?
Transferring the colleague to another area may bring short-term relief, but it does not solve the problem. Management must make its standards known and take action against those who engage in harassment, and not just 'rescue the victim'. Where the harasser has not followed instructions and has breached the Code of Conduct, disciplinary action should be taken. It may be appropriate to direct the alleged harasser to perform temporarily other duties while determining the outcome of the disciplinary inquiry.
One of my staff seems to be having trouble with excessive attention from a colleague in the next work area. This staff member is a quiet and conscientious worker and has not made any type of complaint. Should I interfere?
As a supervisor, you are to ensure your staff have a safe workplace where they can work effectively and efficiently. There are various reasons why people do not complain about harassment: fear of retaliation, lack of confidence, fear of ridicule, embarrassment or belief that it is normal behaviour in the agency, etc. When talking to your staff member, you might express your concern about ensuring that everyone has a good work environment and ask if there are any difficulties with the work colleague. The work colleague's supervisor may need to know of the time spent away from official duties. If you sense there is a problem and do nothing at all, you could find yourself with a case of regular absences, work-related stress and lowered work output.
What action can be taken if someone comes into the office to carry on an argument with a staff member?
If a person who is not a staff member harasses a staff member on Commonwealth premises, the matter should be reported to a supervisor or manager. The supervisor or manager should ask this person to leave the premises. If this person remains and continues to harass staff, an authorised officer under s.12 of the Public Order (Protection of Persons and Property) Act 1971 should be contacted.
The names of officers who are authorised to direct a person to leave the premises should be made known to staff. The authorised officer gives the direction to the person(s) 'in accordance with the Public Order (Protection of Persons and Property) Act 1971, you are trespassing' and makes it clear to the person(s) that if they do not leave they will be guilty of an offence and liable to prosecution. The authorised officer should, where necessary, contact the police as well as discussing the matter at the appropriate level within the agency.
Our long established workgroup has a new staff member who seems unable to cope with friendly teasing from the other members of the team, who have all worked together very harmoniously for over a year. Should the new staff member seek a transfer?
The workgroup is required by the Code of Conduct to treat colleagues with respect and courtesy and without harassment. Where behaviour causes offence, humiliation or threat to the new staff member, it may constitute harassment. If the behaviour includes unwelcome conduct of a sexual nature, it may constitute harassment under the Sex Discrimination Act 1984.
The workgroup should be informed about the effect of their behaviour on their new colleague. If the offensive behaviour persists, there may be grounds for taking disciplinary action against individuals within the group. Moving the new staff member out of the area would appear to be condoning the group's behaviour. Such action would almost certainly ensure repetition of the behaviour and would be likely to lead to distress on the new staff member's part as he/she would appear to have been moved because he/she could not 'fit' the workplace culture.
How do I know when a harassment situation requires police action?
Some forms of workplace harassment may be criminal offences, e.g. actual or attempted assault (including indecent assault). Sending obscene items through the mail and making nuisance phone calls may also be criminal offences. The police should be contacted for advice and assistance on appropriate action in these circumstances.
When a harassment problem in my work group seems to have been solved by informal means, do I need to keep any written record of the incident and the ensuing discussions?
In an informal process it is appropriate to keep only limited records such as brief diary notes. In an informal process, allegations remain untested and therefore comprehensive notes are inappropriate. In a formal process, documentation is likely to be substantial. All notes and records must be stored in a confidential manner.
A staff member has reported sexual harassment at night and at weekends by one of her colleagues, who has ceased his unwelcome activities during working hours after being cautioned. Do we have any right to intervene?
Yes. A Federal Court decision held that it was reasonable and appropriate to direct a staff member not to make contact with a another staff member, apart from official duties, at any time, inside or outside working hours, given that the after-hours harassing was having an adverse effect on working relationships and on the work performance of the officer being harassed. You should formally direct this person (i.e. give a written direction) not to make contact with the other person except in connection with their official duties, either at work or outside working hours. A breach of this direction would be dealt with under the disciplinary provisions of the Public Service Act.
A contractor engaged to install a new software system is harassing a female staff member in my work group. What can I do about it?
Sexual harassment by a contractor or an employee of a contractor is unlawful under the Sex Discrimination Act 1984. You should remind the contractor of this. If the harassment persists, then you may wish to consider termination of the contract. Legal advice should be sought before taking action as such behaviour may not be a breach of the contract or there may be a requirement for notice. It would also be open to the woman to make a complaint to the Human Rights and Equal Opportunity Commission.
Perhaps the most effective way of ensuring that contractors do not engage in harassing behaviour is to include a clause in the contract which requires contractors to observe agency and APS requirements and policies in relation to workplace harassment and acceptable behaviour. This would address situations where contractors harass APS staff as well as situations where harassment of their own staff has an adverse impact upon others around them if they are working in APS workplaces.
A staff member in my team is concerned about some of the material she has been receiving by email which she finds offensive. Is this harassment?
Yes. If email is used in an offensive, humiliating or threatening manner, whether on a sexual, racial, or other basis, for example sending unacceptable jokes or graphics, it could be perceived as harass-ment and should be dealt with as such.
Agencies should ensure that staff are aware of the expectations of Commonwealth staff in accessing and using email and information from the Internet in an acceptable manner.
Questions from Workplace Harassment Contact Officers
I am a Workplace Harassment Contact Officer. Am I given a free hand to solve rather serious conflict situations? What exactly is my level of responsibility?
Your main function is to provide information and support to individuals who believe they are being harassed. Staff can approach you even if they do not want to make a formal complaint. WHCOs have a role in providing information to managers, supervisors and staff on the processes available to resolve complaints, clarifying what types of behaviour are acceptable at work in line with the Code of Conduct and raising awareness that views on acceptable behaviour can differ between individuals. It is not your role to resolve harassment grievances, only to provide information and support, ensuring confidentiality is maintained.
A person working as a Personal Assistant (PA) to one of our SES staff has complained of being under pressure to work long hours. What do I suggest?
It is important here to be able to distinguish between an industrial issue and a harassment issue. The SES employee may well believe that, so long as he/she has not actually breached arrangements in the agency's Certified Agreement and the work needs to be done, then he/she has a right to request the PA to work late. You might, with the PA's agreement, approach the SES officer, or, the issue might be more effectively dealt with by bringing it to the attention of management through the agency's workplace consultative arrangements. You may wish to put the PA in touch with workplace representatives or raise the matter with them yourself. The long term answer is, of course, the implementation of workplace policies which recognise family responsibilities.
If, on the other hand, the requests to work long hours are accompanied by threats or bullying, then the SES employee may be breaching the Code of Conduct. While you could offer her advice on the processes that are available to combat this type of harassment, for example lodgement of a grievance, it may be useful to consider other strategies in the first instance including raising the matter with the senior executive responsible for supporting contact officers.
Is it really harassment if a staff member makes no personal contact but sends regular gifts, flowers or letters to another member of staff?
Behaviour which is unwelcome and unreciprocated could be considered harassment if it has reached the point of being offensive. If the recipient of the gifts finds them unwelcome, he/she must make this clear and request the person to stop. Ignoring the matter may not terminate it and it is possible the person sending the items may take silence as a positive response.
A staff member approached me for a confidential discussion on problems he is having with harassment because of his sexual preference. I sense he is in a state of great distress, and suggested how he might deal with the situation, but he said he would consider his options further. If I do nothing after being alerted to a situation of harassment, am I being negligent or possibly even contributing to workplace related stress? How does vicarious liability relate to this?
It is not the responsibility of WHCOs to resolve harassment grievances, but to provide information and support, and this should be explained to staff who discuss problems. A discussion with a WHCO is not a complaint to management, and managers are responsible for resolving harassment issues. Agencies must accept vicarious liability where they cause, aid or permit harassment of staff. It is unlikely that you would be held to be permitting harassment, given the stated role of a WHCO. Provided agencies have guidelines that define the role of WHCOs and make it clear that managers have primary responsibility for resolving harassment cases, that WHCOs advise staff of their role and of the channels available for resolving harassment, and that agencies have taken active steps to prevent harassment from occurring (through well publicised policies and procedures), they would probably meet their legal obligations even if a WHCO did not take action after becoming aware of a harassment situation. It may be appropriate in a case such as this, however, to raise the matter with management without breaching confidentiality.
Appendix A: The legal framework
APS Code of Conduct
All APS staff must comply with the APS Code of Conduct and harassment of colleagues is likely to be a breach of the Code.
The Code, which is set out in Public Service Regulation 7, requires APS staff, among other things, when acting in the course of APS employment, to:
- treat everyone with respect and courtesy and without harassment; and
- behave at all times in a way that upholds the APS Values and the integrity and good reputation of the APS
Staff members who fail to observe this Regulation may be considered to have engaged in improper conduct and may be subject to action under the disciplinary provisions of the Public Service Act 1922.
Examples of behaviour which may contravene the APS Code of Conduct include:
- offensive physical contact and derogatory or intimidating behaviour;
- insulting or threatening gestures or language or continual and unwarranted shouting in the workplace;
- unjustified and unnecessary comments about a person's work or capacity for work;
- openly displayed pictures, posters, graffiti or written materials which are offensive;
- phone calls or messages on electronic mail or computer networks which are threatening, abusive or offensive to staff; and
- persistent following or stalking within the workplace, or to and from work or elsewhere.
Commonwealth anti-discrimination legislation
Workplace harassment on the basis of a number of attributes including race, sex or disability may be a breach of both the antiharassment or antidiscrimination provisions of Commonwealth antidiscrimination legislation.
Sexual harassment
The Sex Discrimination Act 1984 provides the following:
a person sexually harasses another person if
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed, or engages in other unwelcome conduct of a sexual nature in relation to the person harassed; and
- in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
Workplace sexual harassment includes a wide range of behaviour of a sexual nature, from subtle suggestions about, to explicit demands for, sexual activity or even indecent assault.
Such behaviour includes making a statement of a sexual nature either to the harassed person or in his or her presence. It applies to verbal, non-verbal and written statements. Behaviour that may be acceptable or even welcome in other situations, for example between friends in a social context, may be inappropriate at work.
It may be an isolated incident or a series of incidents. Both men and women can be subjected to sexual harassment from persons of the same or the opposite sex. A person need not actually intend to offend for conduct to amount to sexual harassment.
Disability harassment
The Disability Discrimination Act 1992 outlaws any discrimination or harassment in employment due to disability. A person discriminates against another person on the ground of disability if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than the discriminator would treat a person without the disability. The Act makes harassment in employment unlawful and describes harassment as a form of discrimination. Harassment that is based upon a person's relative or associate having a disability is also unlawful.
Harassment on disability grounds may occur when a person is treated less favourably than others because he/she uses a palliative or therapeutic device or aid, uses a wheelchair or needs a loud speaker telephone, or uses a guide dog, a hearing dog, or other trained animal. Another form of harassment on disability grounds is overbearing or abusive behaviour towards staff with intellectual disabilities, or disparaging remarks about malingering to staff who have made a claim for compensation.
Racial discrimination
While the Racial Discrimination Act 1975 does not use the language of racial harassment, that Act defines as unlawful any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin of a person which has the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. Clearly some types of workplace harassment could be seen as unlawful behaviour under the Act.
Harassment could involve distinction, exclusion, restriction or preference based on the race, colour, descent or national or ethnic origin of a person.
Human Rights and Equal Opportunity Commission Act 1986
Workplace harassment may constitute discrimination under the Human Rights and Equal Opportunity Commission Act 1986. This Act defines discrimination to mean any distinction, exclusion or preference that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation made on the basis of race, colour sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference, or trade union activity.
Commonwealth workplace relations legislation
The Workplace Relations Act 1996 aims to help prevent and eliminate discrimination in the making of awards and agreements and in the termination of employment. The Act makes it unlawful to terminate the employment of a staff member on certain grounds including race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
In addition, the Freedom of Association provisions in section 298A describe one of the objects of Part XA of that Act as to ensure that employers, staff and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.
Commonwealth occupational health and safety legislation
Employers have to take all reasonably practical steps to protect the health and safety of staff members at work under the Occupational Health and Safety (Commonwealth Employment) Act 1991. An employer who fails to take reasonably practicable precautions to prevent work-place harassment from occurring, or who fails to deal promptly and effectively with any complaint of harassment, may be in breach of an employer's duty of care to staff.
Criminal law
There may be instances where harassment amounts to an offence under criminal law. Incidents involving physical or indecent assault, stalking, the sending of obscene material through the mail and the making of nuisance phone calls, for example, may be offences under criminal law and should be reported to the police.
Appendix B: Useful references
Counselling for Better Work Performance: Advice for Managers, a joint PSMPC/Comcare publication 1997
Equity in Employment in the Australian Public Service, Australian National Audit Office Performance Audit 1997-98
Disability Discrimination Act 1992
Grievances, MPRA 1996
Guidelines on Official Conduct of Commonwealth Public Servants, PSC, 1995
Human Rights and Equal Opportunity Commission Act 1986
Occupational Health and Safety (Commonwealth Employment) Act 1991
Privacy Act 1988 Public Service Regulations Racial Discrimination Act 1975
Sex Discrimination Act 1984
The Employer's Duty of Care Under the Occupational Health and Safety (Commonwealth Employment) Act 1991, Comcare Australia
Workplace Relations Act 1996
