Catherine: [00:00:01] Martin, I would like to talk to you today about acceptable behaviour in the workplace.
Catherine: [00:00:06] If we look at the legislation and the requirements of employers, workers are entitled to attend to their tasks in a workplace where the employer has eliminated or as far as reasonably practicable minimised the risks to health and safety, including harm in terms of psychological or physical events, and workers are also entitled to enjoy the quiet benefits of their workplace. What do what do the courts mean by quiet benefits of work?
Martin: [00:00:33] Well I think what they're doing is drawing a distinction between what was the traditional threat to psychological and physical harm such as a scaffold falling on your head, and the resulting psychological injury from that, to the more sort of less obvious risks to health and safety, which is the types of things including bullying and harassment at work, sexual harassment, discrimination in the workplace, those kinds of things that can happen in what would be normally a relatively safe environment like an office environment.
Catherine: [00:01:07] So we're looking at physical safety but then also perhaps some of those covert or overt behaviours that would cause harm in the psychological sense, and workers are entitled to be in a workplace free of those sorts of behaviours.
Martin: [00:01:19] But the law develops over the years and is starting to recognise more and more that those types of behaviours can cause a risk to health and safety, not only making the job uncomfortable for an employee, being harassed by your employer or being bullied by somebody in the workplace, but they also create a health and safety risk as well.
Catherine: [00:01:39] We've seen over the years the development of legislation in these areas because, my experience shows that traditionally we're not very good at monitoring our own behaviours and knowing what's acceptable and not acceptable in a workplace, and so the development of legislation like anti discrimination acts, Work Health and Safety or OHS, the Fair Work Act, etc. really force us to look at how we interact with each other in the workplace. In terms of those pieces of legislation, companies usually have policies that refer to the behaviours but we've have also seen the courts showing a preference for these policies also referring to the legislation that underpins the policies. Why is it the courts expect workplace policies to refer to the legislation as well?
Martin: [00:02:23] Well I think it creates it creates an expectation for employees, especially that the conduct that has been prohibited by the employer isn't prohibited by legislation, that even if it's not directly prohibited by legislation, that the policies give you examples of the kinds of behaviours from employees that could be considered to be unlawful or at least would provide a sanction should they occur. So it's very important to give some legitimacy if you like to a policy to have an understanding of what the legislative background is.
Martin: [00:02:57] But it also it does provide an opportunity for employers to put into policies what is prohibited conduct and what isn't prohibited conduct as well. So it's very important that you can refer back to legislation, as a way of describing what is prohibited and sometimes to avoid the confusion that we have all seen, to give an example of what isn't prohibited so people know what it is they can and can't do.
Catherine: [00:03:18] So there's a distinction there between prohibited or unlawful behaviour and behaviour that's just really not acceptable or inappropriate in a workplace.
Martin: [00:03:26] I didn't use prohibited in the sense that the employer prohibits that type of conduct in its workplace either because it's unlawful, which is obvious, or because the employer has just deemed that type of behaviour to be the type of behaviour that does not occur in this workplace.
Catherine: [00:03:42] Martin, where an employer tends to draw on those pieces of legislation to prohibit certain behaviours in the workplace. We see those types of behaviours defined in policies like anti-discrimination policy, bullying and harassment policy, etc., I think it's really important that employers go one step further and develop something like a code of conduct or a code of accepted behaviour that doesn't necessarily have its existence in legislation but refers to respectful and courteous behaviour is that, well I suppose it then does relate to our psychological harm, reducing and minimizing that, yeah, but I think what it also does is is just to set some boundaries and some expectations around appropriate behaviours in the workplace and some organisations don't have a code of conduct a code of accepted behaviour. What are some of the benefits of outlining some of these generally courteous and respectful behaviours and expectations in the workplace through the development of the policy?
Martin: [00:04:47] Well that's a good question Catherine. I think probably broadly three. The first one you touched on which is the idea of setting a culture for your workplace. But of course when you are in these modern times of people coming to your workplace from all sorts of backgrounds who have differing opinions on what is and isn't acceptable conduct. And you can't rely on a person's background to do particularly set the kind of standards an employer may want.
Martin: [00:05:12] An employer sets the standard and says this is what is acceptable and is acceptable in the workplace. And that makes it very easy for everybody to comply, and to understand what is expected of them. Obviously the follow on from that is that it makes it very easy for the employer to manage an employee when they fall below those standards.
Martin: [00:05:29] I know the greatest problem an employer has when it comes to managing employees is the employee's response being "I didn't know that this was unacceptable." "I didn't know that coming in late every day meant that I would lose my job." All those types of things that are the biggest problems employers face when they need to perhaps justify dismissal.
Martin: [00:05:45] So that kind of conduct does exactly that, it has set some standards that would also set some processes that would fall into place should an employee fall below those standards.
Martin: [00:05:57] And finally of course it also has to be the ability to protect an employer for vicarious liability claims. So in circumstances where two employees where one alleges has been sexually harassed perhaps by another employee, the employer themselves could be held liable for the conduct of the other employee and they often are because the employer is the one with the deeper pockets.
Martin: [00:06:21] So what a vicarious liability case does is that an employer would be liable for the actions of its employees unless it has taken all reasonable steps to prevent such things happening. Now of course, what is 'all reasonable steps' will be different depending on the size of the employer, but when you have a well written easily understood and promulgated policy saying this type of conduct is not accepted and will be opposed by the employer, and steps will be taken if it occurs, that can avoid that risk or minimise the risk of vicarious liability for employers.
Catherine: [00:06:53] So, some really good reasons to have a whole suite of policies in place around workplace behaviour. And one of those ones about setting the culture of the workplace, I have seen examples of where there are policies in place setting expectations for appropriate behaviour, and yet they're not strongly upheld by the employer or the managers who are in a representative position of the employer. And so sometimes there is culture in the workplace which doesn't quite match the descriptions of the policies.
Catherine: [00:07:26] One particular case we saw last year, Mark Baldwin, where the argument was that the well accepted culture was to swear, and so I [Mark Baldwin] was unfairly dismissed for swearing and the Fair Work Commission held that although swearing was part of the culture and it was accepted, it still wasn't appropriate. And particularly where this form of swearing aggressively targeted somebody so that they felt unsafe and it aroused fear. So, the culture and the policies, I suppose support workers and the employer to some extent but they're not they're not the be all and end all. It's still a greyer net than that isn't.
Martin: [00:08:13] Of course it is and again you pointed out that the issue that I talked about earlier which is that if there was an inconsistency it creates problems for employers and so the policies are going to try to remove those inconsistencies about the way people are treated or in fact the way people behave. And the issue facing an employer there was quite simply the employee complained about his dismissal on the basis that, "Well I don't care what the policy said, nobody followed it.”
Martin: [00:08:37] And so that can generally mean that a dismissal under those circumstances, as you described, an employee was dismissed for swearing at his boss over an argument about annual leave, that may have been deemed an unfair dismissal and the employee may have been reinstated. However in those circumstances the commission believed that despite a culture of swearing in a workplace there is a context to be drawn between swearing between two employees and threats. Swearing coupled with threats and the manager felt threatened by the behaviour. And so in the context of the actual swearing it was deemed to be sufficient to constitute serious misconduct and therefore a fair dismissal.
Catherine: [00:09:22] So we've seen that it's really important to have a suite of policies that refer to legislation that set the tone for appropriate conduct in the workplace and also how important it is for the employer and the managers who represent the employer to uphold and enforce those policies for the benefit of everybody in the workplace.
Martin: [00:09:44] Well if that had been the case, in that particular case we're talking about, and they had upheld their policies and perhaps that wouldn't have gone as far as it did. It got to the point it did purely because there had been some inconsistency in the way the employer dealt with the workplace. It allowed their policy to be effectively to be breached.
Martin: [00:10:00] Again in the context of the workplace it has traditionally been held to make some difference in some circumstances. There are workplaces where they say that swearing perhaps is part of the day to day conduct of people. Whether or not this is appropriate is another question but it depends again on the workplace, whether or not it is perhaps a more construction-based environment compared with an office-based environment where the context is very important when it comes to swearing in it.
Catherine: [00:10:28] So in terms of appropriate workplace behaviours, what recommendations do you have for employers or employees as we finish off with this section?
Martin: [00:10:38] Exactly as you have expressed which is that they have should have well documented, well set out policies expressing what is acceptable conduct and, again, what is unacceptable conduct, and also the sanctions that will occur should the conduct fall below the standards set by the employer. And they should be acted upon every time. There shouldn't be instances where an employer simply says, "We'll overlook it this particular time." There should be consistency of behaviour and there should be consistency in the way the employee is dealt with. Whether or not it's the office manager or the office junior.
[11:13.9]
