Macrossans Lawyers Brisbane law firm

MINIMISING CLAIMS BY IMPLEMENTING APPROPRIATE BULLYING AND SEXUAL HARASSMENT POLICIES

CLARE ENDICOTT PARTNER MACROSSANS LAWYERS, BRISBANE

Employment Law Intensive 24 November 2004

It is time to consider the impact on work places that bullying and harassment can have in view of the commencement of the advisory standard on 1 June 1004 relating to the prevention of work place harassment.

The advisory standard is made under the Workplace Health and Safety Act 1995 and sets out the way in which employers can ensure workplace health and safety at work places. Workplace health and safety is ensured when persons are free from the risk of injury or illness created by workplaces and ensuring workplace health and safety involves identifying and managing exposures to risks at the workplace.

Definition of workplace harassment

Up until the commencement of this advisory standard, there was no comprehensive definition of what would constitute workplace harassment in Queensland. It was not uncommon to come across a range of definitions formulated by various stake holders in the industrial arena but it was difficult for employers and their advisors to grapple with the differences in those various definitions and find a common point from which effective action could be taken to reduce the incidence of workplace harassment. While it is comforting to have certainty with a definition now contained in this advisory standard, there is still confusion and misunderstanding about what constitutes workplace harassment or bullying.

The advisory standard sets out the following definition of workplace harassment:

(1) A person is subjected to ‘workplace harassment' if the person is subjected to repeated behaviour, other than behaviour amounting to sexual harassment, by a person, including the person's employer or a co-worker or group of co-workers of the person that ­

(a) is unwelcome and unsolicited; and

(b) the person considers to be offensive, intimidating, humiliating or threatening; and

(c) a reasonable person would consider to be offensive, humiliating, intimidating or threatening.

(2) ‘Workplace harassment' does not include reasonable management action taken in a reasonable way by the person's employer in connection with the person's employment.

(3) In this section ­‘sexual harassment' see the Anti-Discrimination Act 1991, section 119.

The advisory standard also sets out examples of behaviours that may be regarded as workplace harassment. The examples set out include:

• abusing a person loudly, usually when others are present;

• repeated threats of dismissal or other severe punishment for no reason;

• constant ridicule and being put down;

• leaving offensive messages on email or the telephone;

• sabotaging a person's work, for example, by deliberately withholding or supplying incorrect information, hiding documents or equipment, not passing on messages and getting a person into trouble in other ways;

• maliciously excluding and isolating a person from workplace activities;

• persistent and unjustified criticisms, often about petty, irrelevant or insignificant matters;

• humiliating a person through gestures, sarcasm, criticism and insults, often in front of customers, management or other workers;

• spreading gossip or false, malicious rumours about a person with an intent to cause the person harm.

Workplace harassment can occur laterally i.e. a co-worker harassing another co-worker, harassment can occur from a worker harassing a manager or supervisor or harassment can occur by a supervisor or manager harassing a worker.

The standard contains an explanation of what would constitute repeated behaviour. Repeated in this context refers to the constant nature of the behaviour, and not just to a specific type of harassing behaviour being repeated.  Certain behaviour is considered repeated if an established pattern can be identified even though there may a series of diverse incidents which constitute that behaviour i.e. verbal abuse, sabotaging a persons work or unreasonable threats of dismissal.

Reasonable management action

It is the part of the definition that excludes behaviour from workplace harassment that is likely to come in for the most attention and dispute. A single incident of harassing type behaviour is not workplace harassment. Nor will workplace harassment be established where the identified behaviour is determined to constitute reasonable management action taken in a reasonable way.

The advisory standard gives by way of example the following conduct which would be considered reasonable management action:­

• performance management processes;

• action taken to transfer or retrench a worker;

• a decision not to provide a promotion in connection with the worker's employment;

• disciplinary actions;

• allocated work in compliance with systems and policies;

• injury and illness processes;

• business processes, such as, workplace change or restructuring.

The form of words in the advisory standard has been used in workers compensation legislation in Queensland for some years to preclude acceptance of claims for workers compensation for psychological injuries that arise out of certain management action. The Queensland Industrial Court in appeals under the workers compensation legislation has had to decide whether injuries have arisen out of reasonable management action.  It is a question of fact not a question of law whether particular conduct constitutes reasonable management action or not. As a result, despite there having been dozens of appeals about management action, there is no comprehensive or useful judicial definition of what actually constitutes reasonable management action.

There are reported decisions of Industrial Magistrates which at the moment provide the only guidelines as to what would constitute reasonable management action. By way of summary, reasonable management action is taken to action that is not perfect or above criticism. The terms includes action that has failings, deficiencies and flaws provided that the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result.

Sexual harassment excluded from the definition of workplace harassment

Conduct which constitutes sexual harassment is also excluded from the advisory standard. The definition of sexual harassment and the remedies available against workplace sexual harassment are

found in the Anti-Discrimination Act 1991 or in the federal legislation dealing with sexual discrimination.

Effects of workplace harassment

The advisory standard recognises that workplace harassment can have a significant negative impact on workers and some of the recognised effects of workplace harassment are:­

• high levels of distress, impaired ability to make decisions and poor concentration;

• loss of self-confidence and self-esteem and feelings of social isolation at work;

• panic attacks, anxiety disorders, depression, social phobia (withdrawal from usual social interaction) and deteriorating relationships with family and friends;

• reduced output and performance, incapacity to work, loss of employment;

• sleep disturbances, such as, insomnia or severe tiredness.

Workplace harassment is recognised as also adding a significant financial cost to a business and can lead to:­

• the breakdown of teams and individual relationships;

• poor worker health;

• reduced efficiency, productivity and profitability;

• bad publicity, poor public image - becoming ‘known' as a difficult workplace environment;

• increased absenteeism and staff turnover;

• poor morale and erosion of worker loyalty and commitment;

• increased costs associated with counselling, employee assistance, mediation, recruitment and training of new workers;

• increased legal costs and workers compensation claims.

Risk management process

The advisory standard sets out the steps of a risk management process designed to prevent or at least to reduce the incidence of workplace harassment. The process is familiar as it is the basic risk management process found in other standards implementing workplace health and safety policies.  The process involves identifying the hazards, assessing the risks, deciding on control measures, implementing the control measures and monitoring and reviewing the effectiveness of the control measures.

The standard reminds employers that there may not always be obvious signs that harassment is present in a workplace. Apart from noting the presence of grievances or direct complaints of harassment or workers compensation claims alleging harassment, employers are advised to look for indirect signs of harassment.  The standard sets out some examples:

• changes in human resource management trends, for example:

(a) increases in levels of absenteeism and staff turnover;

(b) increases in the use of employee counselling services;

• workers leaving the organisation reporting dissatisfaction with working relationships;

• negative results from organizational climate/worker opinion surveys;

• the breakdown of relationships between workers, customers or management;

• workers becoming withdrawn and isolated;

• poor worker morale and erosion of loyalty and commitment.

Assessment of risks takes into account the likelihood of workplace harassment occurring and the consequences of exposure to workplace harassment. The standard gives some examples of factors which may increase the likelihood of workplace harassment occurring:

• Organisational change - such as the appointment of a new manager or supervisor, a change in ownership of the company, a reorganization of the company or the introduction of new technology.

• Poor workplace relationships -ineffective communication, inadequate information flow or a lack of consultation with workers may create an environment where workplace harassment is more likely to occur.

• Workplace culture - teasing or practical jokes against workers, initiation practices for new workers, or complacency about harassing type behaviours.

• Human resource systems-ineffective policies and complaint handling procedures to manage workplace harassment grievances and appeals; poorly-defined jobs and high levels of uncertainty about job requirements.

Workplace harassment policy

The standard sets out the basic requirements for control measures to prevent or reduce workplace harassment. Employers should create a workplace harassment prevention policy, install a complaints handling system, review the human resource systems and implement training and education about workplace harassment. The contents of a policy should be easy to understand, provided in languages other than English if the workplace has non English speakers, should be

displayed at places where all workers can read it and should be consistent with other health and safety policies at the workplace.

The policy should:

• state the workplace's commitment to providing workers and others with a healthy and safe work environment, free from workplace harassment.

• include the definition of workplace harassment and provide examples of harassing behaviours.

• clearly outline what is not considered to be workplace harassment. • outline the health and safety risks to persons and the business from workplace harassment.

• encourage workers who experience workplace harassment to report it.

•          detail the obligations of employers, workers and other persons under the Workplace Health & Safety Act.

•          outline the control measures that the workplace will implement to prevent or control exposure to the risk of workplace harassment.

•          state that any allegations of workplace harassment will be treated seriously and investigated promptly and impartially.

•          outline the remedial/disciplinary action that will be taken against those who harass a worker, victimise someone who has made a complaint, or who makes malicious, frivolous or vexatious complaints.

• provide details of the assistance or support available to workers to manage and resolve workplace harassment complaints.

• have the employer sign off and date the policy to demonstrate commitment.

• include details of when the policy will be reviewed.

Complaints handling system

The standard suggests that an informal complaints handling procedure should encourage workers to raise harassment complaints with an appropriate designed contact person at the workplace. It is considered that resolving complaints informally can be more effective, requires fewer resources, can be more expedient and can prevent further escalation of the issue. Interpersonal conflicts can be effectively resolved through open discussion between the parties assisted with some support or some form of mediation. This informal approach should be encouraged as the first step in a complaints handling system, unless otherwise requested by the complainant.

Some workplace harassment grievances may warrant ulitisation of a formal complaints handling process. A formal complaints handling system should include a formal reporting procedure, an investigation procedure, a complaints resolution procedure and an appeals process. An appeals process provides an avenue for workers to communicate to a higher level of management their dissatisfaction with any decision or process considered to be unjust or unfair such as inadequate or ineffective managerial action taken in response to a workplace harassment complaint.

Effective human resource systems

Effective human resource systems can help prevent or reduce the incidence of workplace harassment such as ensuring the workplace has effective performance management processes and open communication practices. Performance management should be conducted by persons who have the knowledge and skills to conduct them in a reasonable way. Employers, when providing feedback on performance, should encourage open communication, allow the worker to voice opinions and concerns, be supportive and deliver constructive feedback, and provide justification for observations and decisions made in the process.

Training and education about workplace harassment

Policies are not effective unless there is commitment from management and understanding by the workers. Policies that merely sit on a shelf in a manager's office are not effective. Both management and workers must have an awareness of what constitutes workplace harassment and what are the consequences to both individuals and the business generally. Employers need to provide training to all workers on workplace harassment issues, the workplace policy and about the complaints handling process. Induction courses should include information about the workplace harassment prevention policy, appointment letters should include reference to the workplace harassment policy and elements of the policy could be included in the employment contract.

Managers and supervisors should regularly discuss the workplace harassment policy and complaints handling system at staff meetings and team briefings. Posters about the workplace harassment policy should be placed on notice boards at the workplace with details of appropriate contact persons who can provide further information or who can manage and resolve workplace harassment complaints. Brochures or pamphlets on the workplace harassment policy should be available through out the workplace.  Place information about the workplace harassment policy and the complaints handling system in newsletters and on the internal computer network system.

Training of supervisors

It is important that employers identify any managers or supervisors with poor managerial styles as these behaviours may contribute to workplace harassment. Employers should address concerns about particular management behaviours through the performance management process. Workers with supervisory responsibilities should be provided with training that focuses on developing a greater understanding of human behaviour, communication and people management. Assessment should be conducted to ensure that supervisory staff are able to apply their knowledge, skills and abilities in the workplace.

Monitor the workplace harassment policy regularly

It is important to check that the risk assessed is still valid after the policy has been in place for some time. Changes to work and work systems could affect the risk profile of the workplace. Review the workplace's complaints and investigation records and conduct exit interviews for signs of workplace problems. Consult with workers including managers and supervisors to determine whether workplace harassment has been effectively controlled. If results indicate the control measures are not effective, then those measures will need to be adjusted or replaced with more effective ways of preventing or controlling exposure to the risk of workplace harassment.

Sexual harassment

There is no single definition of sexual harassment. Any definition adopted in a workplace policy should be consistent with the legal definitions contained in the Queensland Act or the federal legislation.

Sexual harassment is any unwanted, unwelcome or uninvited behaviour of a sexual nature which makes a person feel humiliated, intimidated or offended. Sexual harassment can take many different forms and may include physical contact, verbal comments, jokes, propositions, the display of offensive material or other behaviour which creates a sexually hostile working environment.

Examples of sexual harassment in the working environment are:

•             uninvited touching;

•             uninvited kisses or embraces;

•             smutty jokes or comments;

•             making promises or threats in return for sexual favours;

•             displays of sexually graphic material including posters, pinups, cartoons, graffiti or messages left on notice boards, desks or common areas;

•             repeated invitations to go out after prior refusal;

•             sexual gestures;

•             sex-based insults, taunts, teasing or name-calling;

•             staring or leering at a person or at parts of their body;

•             unwelcome physical contact such as massaging a person without invitation or deliberately brushing up against them;

•             touching or fiddling with a persons clothing e.g. lifting up skirts or shirts, flicking bra straps, or putting hands in a persons pocket;

•             requests for sex;

•             sexually explicit conversation;

• persistent questions or insinuations about a persons private life; • offensive phone calls or letters.

Some types of sexual harassment may be offences under the criminal law such as assault, indecent exposure, stalking and misusing the communications systems by making threats or by making obscene comments.

Obligations on the employer

An employer must take reasonable steps to prevent discrimination and sexual harassment in the workplace. There should be precautionary measures and policies in place to minimise the risk of discrimination and sexual harassment occurring. It is the employer's responsibility to prove that all reasonable steps have been taken.

When deciding what level of preventive action is reasonable, an employer should consider:

• the size and structure of the organisation;

• available resources;

• the nature of the work undertaken;

• gender imbalances in the workplace;

• the number of junior staff;

• the workplace culture;

• any history of harassment;

• any relevant provisions in industrial awards or agreements;

• working hours;

• level of supervision;

• any other relevant factor e.g. geographic isolation of the work location, duties which require working in close physical proximity, live-in arrangements etc.

Employers should take the following steps to prevent sexual harassment:

•             obtain high level support from management for the implemention of a comprehensive strategy to address discrimination and sexual harassment;

•             develop a written policy which prohibits discrimination and sexual harassment.

•             regularly distribute and promote the policy at all levels of the organisation;

•             translate the policy into relevant languages for non-English workers;

•             ensure that managers and supervisors discuss and reinforce the policy at staff meetings.

•             provide the policy and other relevant information on discrimination and sexual harassment to new staff as a standard part of induction;

•             periodically review the policy to ensure it is operating effectively and contains up to date information;

•             display posters on notice boards and distribute relevant brochures from the anti­discrimination authorities;

•             train all managers and supervisors on their role in ensuring that the workplace is free from discrimination and sexual harassment;

•             ensure that managers and supervisors model appropriate standards of conduct;

•             include accountability mechanisms in position descriptions for managers;

•             include in selection criteria for management positions the requirement that managers have a demonstrated understanding of discrimination and sexual harassment issues;

•             check that managers are fulfilling their responsibilities through performance management processes;

•             conduct awareness raising sessions for staff on discrimination and sexual harassment issues;

•             remove offensive, explicit or pornographic calendars, literature, posters and other materials from the workplace;

•             develop a policy prohibiting inappropriate use of computer technology. e.g. e-mail, screen savers and the Internet.

•             implement a complaints handling system for sexual harassment complaints.

•             treating all complaints seriously and investigating them promptly

•             if the workplace is large enough, appoint a sexual harassment contact officer who is responsible for providing information on sexual harassment and clarifying questions or concerns held by workers.

•             provide referrals to confidential counselling to deal with the consequences of sexual harassment.

•             provide employees who have harassed with information and training to ensure the harassment does not occur again.

The policy should explain that sexual harassment is not behaviour which is based on mutual attraction, friendship and respect. If the interaction is consensual, welcome and reciprocated it is not sexual harassment. The policy should make it clear that sexual harassment is against the law and that complaints can be made to the Federal or State anti-discrimination authorities.

The policy should state that sexual harassment is not just unlawful during working hours or in the workplace itself. The behaviour is unlawful in any work-related context, including conferences, work functions, office Christmas parties and business or field trips.

The policy should operate as a general warning to all employees of the consequences they can expect if they do not comply. Depending on the severity of the case, consequences can include an apology, counselling, transfer, dismissal, demotion or other forms of disciplinary action. Employees should also be informed that immediate disciplinary action will be taken against anyone who victimises or retaliates against a person who has complained of harassment.

Recent cases involving sexual harassment

A review of some recent cases is useful in highlighting the difficulties faced by employers in defending complaints that sexual harassment was present in a workplace. In Lulham v Shanahan, Watkins Steel and others (decided by the Queensland Anti-discrimination Tribunal in August 2003) the complainant was an apprentice boiler maker.  He complained to the Anti-Discrimination Commissioner of sexual harassment by work colleagues at Watkins Steel and he contended that the employer, Watkins Steel, was vicariously liable for that harassment.

The complainant alleged that his co-workers had enquired of the complainant's sexual preference, had "implied" that the complainant was a paedophile, had said to other employees that the complainant "often had sex with little boys" and had said to the complainant that the complainant frequented gay bars. The complainant alleged that a co-worker had described him on occasions in front of work colleagues as a "gerbil" -apparently a reference to a small burrowing rodent commonly found in dry grasslands and desert fringes from South and West Africa to Far Eastern Asia. It was conceded that the reference to "gerbil" was to be treated as if a reference to a verb describing a supposed practice of bestiality in connection with that animal.

It was a defence to the employer being found guilty of vicarious liability if Watkins Steel took reasonable steps to prevent its workers contravening the Act. It was found that the employer took no steps, let alone any reasonable steps, to prevent any such contravention.

It was submitted that the management of Watkins Steel maintained an "open door" complaints policy and that the complainant had not made a complaint despite the fact that the conduct complained about occurred once or twice a week over several years. It was submitted that the failure of the complainant to complain to persons in authority at Watkins Steel was strong evidence that the complainant's evidence was false and a recent invention. That submission was rejected by the Tribunal member. It was found that the complainant did not discuss continuing ridicule in the workplace by reason of a misplaced bravado about his capacity to deal with such otherwise offensive conduct.

It was found that at the time the sexual harassing conduct occurred the management of Watkins Steel were not aware that sexual harassment was legally proscribed conduct and had no policy to identify and prevent such harassment occurring other than the general "open door" policy. It was found that had management acted consistent with accepted practice, the compliant may not have arisen.

The total damages and costs awarded to the complainant was $26,000, half of which was payable by the employer.

In Wilkinson v Buchan & ABRE Pty Ltd,  (decided in July 2003) the complainant alleged that her employer began to make sexually suggestive remarks to her. He began by telling her that he liked the skirts she wore and the way she wore them. He commenced to leer at her when she walked past him. The offensiveness of his conduct began to escalate. Another employee had brought some pornographic photographs into the office and gave them to the employer who kept them in his desk. He showed these materials to the complainant and suggested that they engage in the acts depicted. On several occasions he put his hand up her clothing and touched her breasts. He kissed her on several occasions by putting his hands on her and kissing her neck.

The complainant protested about this conduct to the employer. She began to wear long pants and long skirts in order to avoid his comments but this provoked complaints by him. He made many explicit sexual references of a suggestive and wholly inappropriate kind and this behaviour

continued for 18 months. The employer assaulted the complainant by bodily pushing himself against her and trying to initiate a sexual act.

The employer denied that any of these events occurred. He said that many of the incidents which the complainant related were merely a form of banter "which happened when families gather together and socialise".  The Tribunal member determined that it is impossible to see how the serious assault, the showing of pornography and the sexual insinuations with which the employer had pestered the complainant could ever be explained in that way.

The complainant was awarded damages of $20,000.00 and the employer was ordered to provide a written apology to the complainant.

Stress based claims for workers compensation

Apart from employers having to bear the costs for workplace sexual harassment, the more common impact that workplace harassment has on the cost of running a business is reflected in the cost of absenteeism and replacement of staff and in the increases in workers compensation premiums after a claims history resplendent with a series of stress claims.

Workplace harassment can result in the development of psychological disorders such as anxiety disorders, depression and even post traumatic stress disorders in more extreme cases. Injury is defined in the Workers Compensation and Rehabilitation Act 2003 as:

personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

A psychological disorder is a personal injury. A work injury can occur at the workplace during normal working hours but can also occur away from the workplace and outside work hours. The definition extends the range of compensable injuries to those that arise out of the employment relationship to the extent that it can be established that a particular job has caused, or to some material extent contributed to, the injury.

These words taken from a Victorian judgement set out the scope of the definition of injury: "Where a worker, whilst not performing the actual duties of his employment, was caused injury at a time and place doing something which might be regarded as reasonably incidental to, consequential upon or ancillary to, his employment - not necessarily being required to be done as part of his

obligations as an employee, but rather as something that would be reasonably required, authorised or expected of the worker by his employer, as inferred from the facts and circumstances of the existing relations between the worker and the employer - then the worker is entitled to compensation as having suffered injury in the course of his employment."

Bullying and harassing behaviour rarely occurs under the direct observation of a manager. Claims for workers compensation for psychological injuries can often relate to behaviour that occurs during a break or even after work has concluded. The employer will be ultimately held liable for the costs of accepted claims for workers compensation caused by bullying behaviour when it is established that the injuries were caused in circumstances reasonably incidental, or consequential, to the employment relationship. 

It is essential for the discharge of an employer's statutory and common law obligations to ensure a safe workplace and system of work that there is not a workplace culture where harassing behaviour is condoned or where workers are not held accountable for bullying behaviour.  The proper implementation of a workplace harassment policy to which senior management is seen to be committed should result in objectionable behaviour being reported as soon as it occurs, action taken to stop that behaviour, and workers being supported to change their behaviours or face disciplinary consequences. On this model, psychological injuries would not readily eventuate and the costs of lengthy absences on workers compensation should be avoided.

At the same time, the preclusion clause in section 32(5) of the Workers Compensation and Rehabilitation Act operates to prevent workers compensation being awarded to those workers who are themselves disciplined for exhibiting bullying behaviour to their co-workers.  That subsection is, where relevant:

... "injury" does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker;

Examples of actions that may be reasonable management actions taken in a reasonable way-

• action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker......

Liability for breach of the advisory standard

Failure to implement a formal workplace harassment policy does not of itself result in an employer being liable for a breach of its statutory obligations.  The Workplace Health and Safety Act 1995 places obligations on people at workplaces to ensure workplace health and safety. Workplace health and safety is ensured when persons are free from the risk of death, injury or illness created by workplaces and workplace activities.

Under the Act, there are three types of instruments designed to help employers meet their statutory obligations - regulations, advisory standards and industry codes of practice. Regulations impose mandatory obligations about risk handling. There is no regulation for workplace harassment but there is now an advisory standard. An employer must either comply with the standard or adopt and follow another way of managing the risk arising from workplace harassment and take reasonable precautions and exercise proper diligence about that risk.

If an injury is sustained as a result of workplace harassment and an employer has not followed the advisory standard and has not implemented a workplace harassment policy, that employer can be prosecuted for a breach of its obligations to ensure workplace health and safety and in addition the employer can be sued for damages by the injured worker. Penalties under the Act are significant.

The case of Schiliro V Peppercorn Child Care Centres Pty Ltd decided by the Queensland Court of Appeal in 2000 is authority for the proposition that damages are recoverable by a worker against an employer for breach of the Act resulting in injury to the worker. The Court said:

When looked at in its historical legislative context and in the absence of a clearly discernible intention in the legislature to do otherwise, an examination of the scheme of the Act suggests that it is one intended to impose civil liability on employers who have failed to ensure the health and safety of their employees and thereby caused injury to those employees, unless the employer demonstrates that it has discharged its obligations under s 26 or s 27 or that it has established a defence under s 37 of the Act. As with the 1989 Act, this adds to the common law of negligence by placing the onus on employers to establish these matters under the Act, once the employee has proved the employer breached the obligation to ensure the workplace health and safety of the employee, thereby causing injury to the employee. We are satisfied the imputed intention of s 28(1) of the Act is to provide a civil cause of action to such employees.

The Act does not impose strict liability but in reality it would be difficult for an employer to defend successfully a claim for damages for an injury caused by workplace harassment in the absence of any documented system of risk assessment and management forming part of a comprehensive workplace harassment policy.

It is accepted by the courts that reasonable foreseeability of risk is an element of the cause of action for damages for breach of this statutory duty imposed by section 28(1) of the Act so that an employer would not be required to take precautions against a risk which was not reasonably foreseeable. It would be difficult in today's world to argue that a risk of injury was not reasonably foreseeable when a workplace condones harassment of its workers or does not even look out for signs that would reveal the fact that harassment was occurring in the workplace.

Conclusion

Implementing an effective workplace harassment policy makes good sense and should assist to reduce the cost of doing business by controlling workers compensation costs and by reducing the risk of absenteeism and replacement of staff. Commitment to a policy and ensuring that the policy is reducing the incidence of workplace harassment will also have reputationial benefits to a business by reducing the risk that the business will be damaged by adverse publicity from sexual harassment and bullying claims paraded through the mass media.  Having an effective policy is both good sense and good business.