Roger Sutton’s recent high-profile resignation from his position as chief executive at the Canterbury Earthquake Recovery Agency has highlighted the issue of inappropriate conduct in the workplace, and how some behaviour, even unintentionally, can be offensive and unwelcome to others at work.
WorkSafe NZ, in the guidelines it issued earlier this year on workplace bullying, commented that it is prevalent in New Zealand workplaces and needs to be addressed. Allegations of harassment at work also seem to be on the rise.
So how you can tell the difference between harmless joking and banter and unlawful harassment and bullying? The former is often welcome and can help boost collegiality and culture. The latter can have a devastating effect on the workplace, create significant legal risks for an organisation, not to mention result in significant loss of productivity, plummeting staff morale and high turnover.
Chief executives and managers set the tone and the culture and lead from the top in terms of appropriate conduct. If in doubt as to whether particular conduct is appropriate, it is generally best to err on the side of caution.
Sexual and racial harassment are legally defined. They include not only overt threats or promises connected to sexual conduct or race, but also more subtle behaviours. The use of language, visual material or physical behaviour that is unwelcome or offensive to someone at work and which has a detrimental effect on their employment, job satisfaction or performance, will be unlawful harassment.
The important thing to remember is that it is not the intent of the person making the comments or jokes that matters. It is how they are received and perceived by others. That makes harassment very much a subjective issue and can sometimes make it difficult for individuals to understand where the line between appropriate and inappropriate conduct lies. Every individual is different and what one person might brush off as a bit of harmless fun can have a serious and detrimental effect on someone else.
In addition, what is appropriate and acceptable in one workplace, might not be in another. For example, strong language and swearing may not cause any concern on, say, a building site, but would be highly offensive in an accountancy firm.
This is why it is important that workplaces have clear and well drafted harassment and bullying policies which set out the types of behaviours considers inappropriate.
A good policy will also set out the steps employees can take if they feel that they are being subjected to inappropriate conduct and the way in which the employer will investigate complaints. Those steps typically range from ways an issue can be informally resolved, by telling someone you find their behaviour offensive, to more formal steps, like making a formal written complaint.
All complaints should be treated seriously and investigated in a full, fair and confidential manner. Reprisals or victimisation against a complainant should not be tolerated. Equally, vexatious or malicious complaints are not acceptable.
Disciplinary action up to and including dismissal may be appropriate where harassment or bullying has occurred.
But anyone who has experienced bullying or harassment in the workplace will know how difficult and daunting it is to step up and make a formal complaint, particularly against someone in a position of authority.
When a complaint is made, the investigation process can seem daunting and there is often a real fear of reprisals, even if the process is confidential. Even when a complaint is upheld, just raising an issue in and of itself can sometimes feel like it is going to be career limiting.
An unfortunate consequence of the publicity around Roger Sutton’s resignation may well be that individuals who are experiencing harassment or bullying in their workplace may be even more reluctant than before to come forward.
How do you tell your boss or your colleague that you find their racist jokes or sexist banter offensive and unwelcome without being labelled “over-sensitive” or “too PC”?
However, harassment and bullying at work should not be ignored.
Employees who feel they are being subjected to inappropriate conduct at work should approach their manager, HR adviser or colleagues for support and advice.
Sarah Townsend is an associate at law firm Duncan Cotterill, specialising in employment and health and safety law. She advises the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
– The Press