Safe and healthy workplaces: How to handle discrimination and misconduct

Workplace procedures have been on top of everyone's minds lately, especially with many organisations around the country mandating the COVID-19 vaccinations. In a previous post, we discussed what it means to make vaccines compulsory for your staff and what you should consider before doing so. Today, we're going to talk about workplace discrimination and other forms of misconduct: what rights employees are entitled to and how to handle situations that breach those rights.

Unlawful discrimination in the workplace

If an adverse action is taken on your employees based on any of the protections under the Fair Work Act, it's considered unlawful discrimination in the workplace. Adverse actions may be:

• Standing down or injuring an employee while they're at work
• Demoting or negatively altering an employee's job role
• Treating one employee differently than others
• Applying discriminatory conditions to a job offer or hiring decision

If you take any of these actions (consciously or not) against an employee based solely on attributes such as race, sex, gender identity, family situation, religion, political preference, and physical or mental ability, they can raise a complaint against you under the Fair Work Act. These attributes apply to all employees, whether they're part-time, full-time, under contract, or acting as a consultant.

Discriminatory bullying in the workplace

Without proper oversight, a workplace can become a breeding ground for bullying and harassment based on these protected rights. Employees bullied by colleagues technically can't report to the Fair Work Commission (FWC) and name colleagues in their complaint, but bullying and harassment are still sensitive issues that make the workplace unsafe. This is governed by the anti-bullying jurisdiction of the Fair Work Act, which states that it is your job as an employer to ensure that your workplace is both physically and psychologically safe for your staff. To prevent bullying in the workplace, first familiarise yourself with the anti-bullying guidelines outlined by the FWC to help employers.

Here are some control measures you can impose in the workplace to prevent and manage the effects of bullying and harassment:

• Start with clearly defined policies that outline what is considered bullying and harassment, and distribute those policies to all employees as soon as they are hired
• Provide educational material and training on proper workplace conduct, what to do if someone's being bullied or harassed, and the key concepts of anti-bullying laws in Australia
• Ensure all employees are aware of how the Fair Work Commission can help if they experience bullying or sexual harassment
• Set up mental health support and services for employees who need help
• Actively encourage employees to report inappropriate behaviour, and deal with such reports promptly
• Collect feedback from employees regularly about their experiences in the workplace
• Conduct periodic risk assessments for bullying and harassment, especially during times when your organisation is going through large structural changes
• Commit to building a long-term culture of safety and support in the workplace by setting up mentorships and training for senior roles
• Recommend that employees take the Diversity and Discrimination course designed by FWC, which breaks down different situations and whether they are considered discrimination under the law

Safe Work Australia also has a comprehensive guide on responding to and preventing workplace bullying. Have a look at it here.

Standing down employees for misconduct

Normally, before an employee exits your organisation, you'd be required to provide them with a written notice indicating their final working day. However, if you find that an employee has been bullying their colleagues, you can stand them down for serious misconduct without prior notice. That said, you still have to pay that employee their final pay for hours worked and other outstanding entitlements.

Other reasons for standing down employees for serious misconduct include:

• Causing serious health and safety risks for a fellow employee and/or the business
• Engaging in theft, fraudulent activities, assault, or harassment
• Refusing to follow instructions that are part of their job role

If an employee resigns from their job, they don't have to provide a written notice. They may indicate their resignation verbally, but the duration of the notice still depends on your agreements with that employee.

Handling an unlawful discrimination complaint

The FWC offers a free workplace advice service for both employees and employers about unlawful discrimination charges.

If an employee raises a complain against you for unlawful discrimination, the FWC may appoint a Fair Work Inspector (FWI) to assess the situation. This means they can legally enter your workplace to conduct investigations on the case. The FWI can also issue a notice called the Fair Work Ombudsman (FWO) Notice, which requires you to provide further documents or information regarding the case or appear for an investigation at the FWO office. Learn more about FWO notices at the Fair Work website.

Sabotaging evidence or the FWI's investigations can land you a fine of up to $66,600 per offense for a corporation, and $13,320 per offense for an individual. Here's more information on what an FWI can and can't do when investigating a case.

As an employer, you can also approach the FWC for advice on handling workplace issues. Through their service, you will be able to speak to a lawyer and get the guidance you need. Learn more about this service and see if you're eligible. You can also discuss any workplace discrimination challenges you face with your state or territory authority on fair workplace practices.

Final thoughts

Bullying and harassment, whether done by colleagues or customers, can be every bit as unfair and damaging as unlawful discrimination. Both can cause serious psychosocial risks to workers, and any employees who struggle mentally or physically because of these issues have the right to claim compensation through Comcare. As an employer, it's your duty to ensure that your workplace is free from discriminatory behaviour of any kind. That said, it can also be challenging to prevent every instance of this.

We suggest hiring a dedicated and qualified human resource professional in your workplace who can help you comply with employer obligations and guide you in being a good employer. Alternatively, you can also enlist the services of an independent workplace counsellor or HR professional to act as an advisor for your business. Your employees are your biggest advocates. Treat them well and they'll return the favour.