Discrimination, Harassment & Bullying

Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
In determining whether a person directly discriminates it is irrelevant-
(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;
(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

Example:

A manager only offers his staff under 50 the opportunity to attend a training course. This behaviour amounts to direct discrimination based on age. It is discriminatory to assume that older employees are more likely to leave the job sooner than younger employees or are not interested in promotion opportunities.

Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice-
(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.
In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.
The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving the requirement, condition or practice is reasonable.

Example:

Janet’s manager announces that all divisional staff members will be expected to attend an 8.30am staff meeting Monday to Friday. When Janet explains that she has to drop her child off at day care at this time each morning, her manager tells her that she will need to figure something out. Her manager also indicates that she expects Janet to attend the morning meetings if she hopes to gain the promotion she is seeking.

This requirement could be seen as an unreasonable expectation in light of Janet’s parental and carer responsibilities and therefore amount to indirect discrimination.

It is important to note the following recent changes to the Equal Opportunity Act:

• Employment activity: is now an attribute under the legislation. It is now against the law for employers to treat their employees or contractors unfairly if they make a reasonable request or communicate concerns about their employment entitlements. For example, requesting rate of pay, leave accruals or maternity leave entitlements.

• Family responsibilities: it is now unlawful for an employer to ‘unreasonably refuse’ to allow changes to working arrangements that are directly related to an employee’s responsibilities as a parent or carer. Examples of flexible work arrangements include job sharing, working from home, working part-time, working the same hours over different days and changed start and finish times. An employer is required to seriously consider the request and may factor in things like cost and the effect of granting the request on the business, on other staff and clients.

• Unlawful workplace discrimination: under the Fair Work Act 2009, unlawful workplace discrimination occurs when an employer takes ‘adverse action’ against an employee or prospective employee because of a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Adverse actions include dismissing an employee, injuring an employee’s employment (eg, limiting career or promotion opportunities), altering an employee’s position to their detriment (eg, demotion or rostering), discriminating between one employee and others, refusing to employ someone or discriminating against a prospective employee on the terms and conditions in the offer of employment.

Source: Victorian Human Rights & Equal Opportunity Commission 2008 | Fair Work Ombudsman 2009

Bullying behaviours can be direct or indirect.

Direct forms of bullying may include:

• Verbal abuse
• Putting someone down
• Spreading rumours or innuendo about someone
• Interfering with someone’s personal property or work equipment

Source: WorkSafe Victoria, Preventing and responding to bullying at work, June 2009

Example of direct bullying:

Cathy is a project officer who has been having problems working with a colleague, Jenny, and is feeling very stressed and anxious about coming to work. Over a number of months, Cathy has experienced:

• Jenny constantly telling her that her work is not up to standard (Jenny is not Cathy’s supervisor)
• Jenny regularly shouting at Cathy when Cathy tries to talk to her about work
• Jenny belittling Cathy in front of her colleagues
• Jenny spreading unfounded rumour’s about Cathy’s personal life

Jenny’s repeated, unreasonable behaviours are forms of direct bullying and unlawful. Cathy should speak to her manager, a Discrimination & Harassment Advisor or HR to seek support and find out what her options are to deal with Jenny’s bullying. Cathy should also contact her organisation’s Employee Assistance Program (EAP) to seek help with her stress and anxiety.

Indirect forms of bullying may include:

• Unjustified criticism or complaints
• Deliberately excluding someone from workplace activities
• Deliberately denying access to information or other resources
• Withholding information that is vital for effective work performance
• Setting tasks that are unreasonably above or below a worker’s ability
• Deliberately changing work arrangements, such as rosters and leave, to inconvenience a particular worker or workers
• Setting timelines that are very difficult to achieve
• Excessive scrutiny at work

Source: WorkSafe Victoria, Preventing and responding to bullying at work, June 2009

Example of indirect bullying:

Sam is a team leader who reports to Jo. Sam is enthusiastic and performs well in his role. Sam is keen to take up professional development opportunities and expand his skills so he can consider applying for a higher role. Over a number of months, Sam has experienced:

• Jo refusing Sam permission to attend an external training course that was relevant to his role and within the department’s training budget
• Jo frequently and unjustifiably criticising Sam’s customer service skills (contrary to client feedback)
• Sam not being invited to client lunches or client events with the other team leaders and Jo
• Jo withholding information and communications from Sam that is crucial to his role as a team leader

Sam is feeling frustrated and stressed and considering leaving the organisation.

Jo’s repeated, unreasonable behaviours are forms of indirect bullying and unlawful. Sam may wish to consider speaking to his manager’s line manager. Sam should also speak to a Discrimination & Harassment Advisor or HR to seek support and find out what his options are to deal with Jo’s bullying. Sam may also like to access his organisation’s Employee Assistance Program (EAP) to receive some counseling and support.

Reasonable management decisions, discussions or actions (including performance counselling and managing under performance) do not constitute harassment or bullying, as long as they are accurate, constructive, courteous and not humiliating or threatening.

Management instructions, directions and requirements that are made fairly and appropriately (ie, without intimidation, belittling comments or favouritism), do not generally constitute bullying.

Similarly, differences of opinion, conflicts and working relationship isues are part of working life and generally do not constitute harassment or bullying.

Example:

Lucy works in a busy department as an administration officer. There are three other administrative officers who share the work evenly. On a regular basis, Lucy falls behind schedule with her work. To help develop her skills and improve her performance, Lucy’s manager asked her to attend a 2 day training course. Lucy feels humiliated and singled out, even though her manager tells her that her job is not under threat.

Lucy’s manager’s behaviour is unlikely to constitute bullying provided her instructions to Lucy did not involve behaviours like intimidation or belittling.

Behaviours such as threats to harm someone, violence and damage to property can be criminal matters and should be referred to the Police and within the University to Security and OH&S.

Examples of Violence include:

• striking, scratching, biting, spitting or any other type of direct physical contact
• throwing objects
• attacking with any type of weapon
• pushing, shoving, tripping or grabbing
• any form of indecent physical contact
• rape
• sexual assault
• stalking

The University’s bullying provisions are contained in the Eliminating Bullying & Violence Policy

The University will not tolerate bullying or occupational violence. These behaviours may result in disciplinary action or criminal processes as appropriate (in cases of violence or threats).

All members of staff who are responsible for the supervision of staff and/or students in their areas of responsibility have a ‘duty of care’ and must take all reasonable steps to prevent bullying and appropriately manage bullying complaints.

The University takes seriously its obligations to handle complaints of bullying and will ensure they are dealt with promptly, impartially and confidentially. It has delegated the handling of these complaints to managers and specialist staff. The University provides EEO & Bullying Training for managers and supervisors to ensure they can appropriately manage bullying concerns.

Staff who are being bullied have a number of options available. These options can be used in combination, on their own, or as a step-by-step approach to resolution. Confidentiality is required by all involved in these processes.

Staff can obtain information and support about these options from their manager, a trained Discrimination & Harassment Advisor or Human Resources by following this link.

These options are set out in the University’s Staff Grievance Policy:

• Self-management
• Informal process
• Formal process

1. Self-management

This involves a clear and polite request for the behaviour to stop. This request can be made to the person involved or their manager or supervisor. Telling someone that you find their behaviour inappropriate can be an effective way to resolve some complaints. This is particularly the case when bullying or harassment is caused by ignorance or insensitivity rather than malice.

The following steps may help in approaching the person:

• Stay calm and polite – by staying calm and polite, you are more likely to communicate and be heard clearly and avoid making the other person feel that they are being attacked personally.
• Focus on the behaviour not the person – by focusing on the behaviour rather than the person, the person can change their behaviour without having to lose face or admit they were ‘wrong’.
• Indicate the effect of the behaviour on your feelings – indicating the effect of the behaviour, for example on your feelings, avoids any implied accusation that the person knew they were being offensive.
• Include a clear request that the behaviour not happen again. Ask for agreement or at least acknowledgement that you have been heard – making a clear request and then seeking acknowledgement is a simple form of agreement or contract; a contract that can be referred to later if the offensive behaviour re-occurs.

Not all matters can be self-managed. Self-managing may not be appropriate if:

• It puts you at risk
• It has already been tried, without success
• The problem is more about group behaviour than a specific individual

2. Informal grievance process

If have tried to self-manage your concerns without success or feel self-managing is not appropriate, you may like to use the informal grievance process in the Staff Grievance Policy.

An informal grievance is generally lodged with the person’s manager or another senior staff member in the area. This can be done verbally or in writing. The other person is provided with details of the concerns and has 5 days to respond. If the matter is not resolved it may be referred to an informal conciliation.

The aim of informal conciliation is for both parties to table their concerns and response and to reach an agreement or understanding acceptable to both parties. The conciliation may be facilitated by your manager, HR or an external, independent conciliator. The parties can bring a support person to the conciliation.

If the matter is not resolved at conciliation, either staff member can make a request to the HR Director that it proceed to the formal grievance process.

3. Formal grievance process

To lodge a formal grievance, a staff member is required to put their complaint in writing to the HR Director. Formal complaints generally follow a 2 step approach: (1) Conciliation and (2) Investigation. The HR Director can determine if a complaint should go straight to investigation.

Once a written complaint is lodged with the HR Director, it will be forwarded to the other party. The HR Director will consult with the parties to determine if they are agreeable to conciliation and a conciliator will be appointed who will work with the parties to try and achieve a resolution.

If conciliation is not successful, either party can request an investigation. An investigator will interview the parties and witnesses and provide a report with their findings and recommendations. If the complaint is substantiated, further action may be taken including disciplinary action. If the complaint is not substantiated and found to be vexatious, further action may also be taken by the University.