Workplace Investigations

According to the Australian Human Rights Commission, sexual harassment is any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual.

Sexual harassment is a type of sex discrimination.

The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in some circumstances.

Sexual harassment can take many different forms – it can be obvious or indirect, physical or verbal, repeated or one-off and perpetrated by males and females against people of the same or opposite sex.

Sexual harassment may include:

• staring or leering
• unnecessary familiarity, such as deliberately brushing up against you or unwelcome touching
• suggestive comments or jokes
• insults or taunts of a sexual nature
• intrusive questions or statements about your private life
• displaying posters, magazines or screen savers of a sexual nature
• sending sexually explicit emails or text messages
• inappropriate advances on social networking sites
• accessing sexually explicit internet sites
• requests for sex or repeated unwanted requests to go out on dates
• behaviour that may also be considered to be an offence under criminal law, such as physical assault,
• indecent exposure, sexual assault, stalking or obscene communications.

(Reference: Australian Human Rights Commission)

Section 789 Fair Work Act 2009 defines bullying as follows:

(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally‑covered business:
(i) an individual; or
(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

Examples of bullying include:

• behaving aggressively
• teasing or practical jokes
• pressuring someone to behave inappropriately
• excluding someone from work-related events or
• unreasonable work demands.

What isn’t bullying

A manager can make decisions about poor performance, take disciplinary action, and direct and control the way work is carried out. Reasonable management action that is carried out in a reasonable way is not bullying.

However, management action that isn’t carried out in a reasonable way, may be considered bullying.

(Reference: Fair Work Australia)

Unlawful workplace discrimination occurs when an employer takes adverse action against a person who is an employee or prospective employee because of the following attributes listed below.

Section 351 Fair Work Act 2009 defines discrimination as follows:

• An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

In addition, things like political opinion, social background and religion are also considered ‘protected attributes’ under the Act.

Discrimination can be direct or indirect:

• Direct discrimination can occur when a person is; disadvantaged, demoted, had their employment terminated or treated badly in the workplace.
• Indirect discrimination can occur when a condition of employment, requirement or practice is imposed on a person that is unfair or disadvantages them in some way, due to one of the attributes listed above.

(Reference: Fair Work Australia)

Misconduct is characterised in the Corruption, Crime and Misconduct Act 2003 as “serious misconduct” and “minor misconduct”. Serious misconduct is dealt with by the Corruption and Crime Commission (CCC) and minor misconduct is dealt with by the Public Sector Commission (PSC)

Section 4 of the Corruption, Crime and Misconduct Act 2003 defines as.

  Misconduct occurs if —

(a) a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment; or

(b) a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person; or

(c) a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or

(d)a public officer engages in conduct that —

(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct; or

(ii) constitutes or involves the performance of his or her functions in a manner that is not honest or impartial; or

(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or

(iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person, and constitutes or could constitute —

For public officers, serious misconduct refers only to corrupt or criminal conduct as described in sections 4(a), (b) and (c) of the Corruption, Crime and Misconduct Act 2003 Act, which occurs when a public
officer:

• acts corruptly or corruptly fails to act in the course of their duties; or
• corruptly takes advantage of their position for the benefit or detriment of any person; or commits an offence which carries a penalty of 2 or more years imprisonment.

Corrupt conduct tends to show a deliberate intent for an improper purpose and motivation and may involve misconduct such as: the deliberate failure to perform the functions of office properly; the exercise of a power or duty for an improper purpose; or dishonesty.

Some examples of corrupt or criminal conduct which could be serious misconduct include:

• abuse of public office;
• blackmail;
• bribery, including bribery in relation to an election;
• deliberately releasing confidential information;
• extortion;
• obtaining or offering a secret commission;
• fraud or stealing;
• forgery;
• perverting the course of justice;

(Reference: Corruption and Crime Commission)