A mock conciliation conference of a sexual harassment complaint at the Anti-Discrimination Commission
Presented by:
Andrew Knott, Rachel Drew and Belinda Weir
AHRI, Wednesday 5 July 2006
Discrimination
Discrimination occurs when a person is treated less favourably in the workplace or in certain areas of public life:
- Because of any of the attributes in the Anti-Discrimination Act 1991 Qld, such as sex, relationship or parental status
- Or because of their race, colour, descent or national or ethnic origin, as defined under the Racial Discrimination Act 1975
- Or because of their sex, marital status, pregnancy as defined under the Sex Discrimination Act 1984
- Or because of a disability as defined under the Disability Discrimination Act 1992
- Or because of age as defined under the Age Discrimination Act 2004
- Or some grounds under the Human Rights and Equal Opportunity Act 1986.
What is sexual harassment?
Sexual harassment is any form of unwelcome sexual attention, which causes humiliation or offence to the victim, such as:
- Unwelcome physical touching
- Sexual or suggestive comments, jokes or taunts
- Unwelcome requests for sex
- The display of clearly sexual material (such as photos, pin-ups or pictures) or reading matter (such as e-mails, faxes or letters).
Sexual harassment may be repeated or isolated incidents, and can be deliberate or not intentional. Some sexual harassment, such as sexual assault, indecent exposure and stalking is also a criminal offence.
Who is Liable?
The Anti-Discrimination Act 1991 has vicarious liability provisions, which means that along with the individual (the alleged discriminator or harasser), the employer may be held liable for the employees behaviour if they have not taken reasonable steps to prevent the discrimination and harassment from occurring.
Employers cannot rely on claiming that they didn't know what was going on in the workplace, in order to defend this liability.
An employer may be vicariously liable for the conduct of:
- Individual employees or groups of employees
- Directors, supervisors or managers
- Workplace participants (where two people work on the same premises, but have different employers)
- Agents (e.g. insurance salespersons operating on a company's behalf)
- Contract workers or people being paid commission
- A partner of a company harassing another partner
- Members of organisations which grant occupational qualifications
- A person employed by a trade union harassing a member
- A person operating an employment agency who harasses someone who uses the agency.
Employer responsibilities
Employers must take reasonable steps to prevent and protect their staff from harassment and other types of discrimination and vilification from occurring both within the usual work environment and at employer sponsored functions such as seminars, work functions, or business trips.
These steps are not defined in the legislation, and will vary depending on the size, structure, industry type and previous history of harassment.
However, all employers must take steps so that:
- Managers and supervisors ensure staff and clients are not harassed or discriminated against within the workplace or "in connection with" the person's employment
- Every employee understands they cannot participate in discriminatory or harassing behaviour within the workplace.
Reasonable steps
'Reasonable steps' to prevent harassment and reduce vicarious liability may include:
1. Develop a written policy
- State that discrimination and harassment will not be tolerated under any circumstances
- Promote appropriate standards of conduct at all times
- Define what behaviours and materials are prohibited including:
- offensive, explicit or pornographic materials
- inappropriate use of computer technology
- Encourage the reporting of behaviour which breaches the policy
- Outline the disciplinary action that will be taken against any employee (or agent) who breaches the policy, including a range of outcomes such as an apology, transfer or dismissal.
Organisations should consult staff, employer organisations, unions, professional associations and anti-discrimination agencies. The policy should be periodically reviewed to ensure it is operating effectively and contains up to date information.
2. Promote the policy from the top-down
All levels of management must be committed to the policy. Steps could include:
- Position descriptions for management should include selection criteria that requires them to have a demonstrated understanding of and ability to deal with discrimination and harassment issues
- Ensure that line managers model appropriate standards of professional conduct at all times, with accountability mechanisms in place
- Train all line managers on their role in ensuring that the workplace is free from discrimination and harassment
- Regularly distribute and promote the policy at all levels of the organisation, and ensure it is accessible to all staff (i.e. translate where required, easily available on Intranet, posters and brochures)
- Conduct awareness sessions for staff on discrimination and harassment issues and ensure they understand how the complaints procedures operates
- Provide the policy and other relevant information on discrimination and harassment to new staff as a standard part of induction.
3. Implement a complaints procedure
Provide an effective procedure for complaints, based on the principles of natural justice, with all complaints handled in a sensitive, fair, timely and confidential manner.
Ensure that the organisation's policy provides employees with advice on what to do if they are discriminated against or harassed including:
- How to deal with the discrimination or harassment themselves. Employees should not be pressured into pursuing this option and should only confront the harasser directly if they feel confident enough to do so
- Speaking to their supervisor, manager or other contact officer who has responsibility for dealing with discrimination or harassment
- Lodging a formal complaint through the organisation's complaint/grievance procedure
- Approaching an external organisation such as the Human Rights and Equal Opportunity Commission (HREOC) or a State or Territory anti-discrimination agency
- A guarantee that employees will be protected from any victimisation or reprisals.
Depending on the size of the organisation, appoint anti-discrimination and harassment contact officers of both sexes at various levels who are responsible for:
- Providing employees with information on discrimination and harassment and clarifying any questions or concerns they may have
- Providing confidential advice on the options that are available for dealing with discrimination/harassment
- Providing advice to an individual who wishes to confront the discriminator/ harasser themselves
- Ensuring staff are provided with the names and contact numbers of nominated person(s)
- Providing employees who have been discriminated against or harassed with access to counselling services or employee assistance programs (costs should be fully borne by the employer)
- Providing employees who have harassed other staff members with information and training to ensure the discrimination or harassment does not occur again.
Anti-Discrimination Commission in Queensland
Employees may lodge a complaint within one year of the harassment with the Anti-Discrimination Commission in Queensland (ADCQ) .
The Commission resolves many complaints through a conciliation conference, which is a meeting between the person/s complaining (the complainant/s) and those they are complaining about (the respondent/s). If the respondent was at work when the complaint arose, their employer is usually also a respondent.
All discussions at the conference are confidential and private. Even if the complaint goes to a public hearing, the Tribunal cannot be told what was said at the conference.
What does the conciliator do?
The conciliator is impartial and will:
- Help all parties discuss the complaint and resolve it but will not decide whether there has been a breach of the Anti-Discrimination Act 1991(the Act)
- Tell all parties about the law, point out the strengths and weaknesses of the complaint and response and provide information about the process
- Tell all parties about previous cases and what kind of outcomes are likely but will not advise what to ask for or offer in settlement.
What happens at the conference?
- The complainant/s will be asked to talk about what happened and what effect it had on them
- The respondent/s will be asked to talk about what happened, what they did about it and to respond to what the complainant said
- The parties will be asked to talk about how to resolve the complaint
- Each party can ask the conciliator to stop the conference to talk privately with his/her support person and/or solicitor or just to have time to think
- The conciliator can talk to each person separately if they think this might help to resolve the complaint
- If the parties agree how to settle the complaint, the conciliator will write up the agreement for everyone to sign and it is then binding
- If the parties cannot agree, the complaint may be referred to the Anti-Discrimination Tribunal for a public hearing to decide the complaint and whether there has been a breach of the Act.
For further information please contact Rachel Drew.
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