Last updated 16 August 2016
The Work Health and Safety Act 2011 (Qld) (WHS Act) imposes strict obligations upon all employers to ensure the health and safety of their employees at work. Failure to do so will result in prosecution with penalties of imprisonment and substantial fines at the disposal of the courts in appropriate cases.
There is a corresponding duty cast on all employees to be conscious and aware of their health and safety obligations, and in particular to comply with all safety directions given to them by their employers.
Wearing protective equipment when required or complying with specific procedures to undertake certain tasks are directions that must be complied with. Failure to comply with a reasonable direction may amount to misconduct sufficiently serious to justify the dismissal of that employee.
Every employer must ensure that the workplace is free from behaviour that might properly be described as bullying. There is no exhaustive definition of bullying, but bullying or workplace harassment can include verbal abuse or shouting at an employee, using or threatening to use physical violence upon an employee or playing practical jokes if that involves some physical discomfort or embarrassment.
Exclusion bullying is often perpetrated by employers. This will include deliberately leaving out employees from a group either in relation to social events or in the allocation of work. A breach of this standard is a breach under the WHS Act exposing the employer to the same penalties as any other breach under that Act.
In addition to being something for which employers might be prosecuted, the consequence of bullying an employee might be to create stress to such an extent that the employee becomes ill. This may give rise to a WorkCover claim by that employee or even, in sufficiently serious circumstances, a common law claim alleging a breach of statutory duty, namely a breach of the obligations owed to the employee under the WHS Act. Employees may also bring an application in relation to bullying in the Fair Work Commission (FWC).
The FWC has the powers to make orders in relation to workplace bullying. With some exceptions, where a worker has been bullied at work, there is an entitlement to make an application for an order to stop workplace bullying.
For the purposes of these types of application, the definition is quite broad and includes contractors and sub-contractors, labour hire employees, work experience students and volunteers.
Bullying is defined as repeated unreasonable behaviour by an individual or group of individuals towards a worker that creates a risk to health and safety. This definition means ‘one off’ behaviour or behaviour that does not affect health and safety is not bullying. The bullying must occur at work and work has also been construed to have a broad meaning encompassing social media.
Actions taken by an employer that are considered to be reasonable management action carried out in a reasonable manner do not fall within the definition of bullying and cannot be complained about. For instance, a performance management plan that is put in place because of founded concerns about an employee’s performance is not bullying. However, if the performance plan was executed in a way that was unreasonable such as by the employer not following their own relevant policies and procedures, it may not be excluded from the definition.
A worker who is bullied at work can make an application to the FWC at any time during their employment. On receipt of an application, the FWC has powers including conducting a conference or holding a hearing. If the FWC is satisfied the worker has been bullied at work and there is a risk they will continued to be bullied, it may make orders it considers appropriate to prevent the bullying. The FWC has no powers to award compensation or penalties in these types of applications as the jurisdiction is designed to restore working relationships so that all parties can continue with the employment relationship without negative effect upon the worker’s health and safety.
The Anti-Discrimination Act 1991 (Qld) (Anti-discrimination Act) covers two principal areas:
- An employee must not be discriminated against or victimised in relation to their employment.
- A workplace must be free from sexual harassment.
Both the Anti-discrimination Act and a variety of federal anti-discrimination laws protect employees at work from discrimination.
Work in this context includes pre-work processes such as job application, appointment (or lack of appointment), the nature of the work allocated, promotion and training opportunities, and the termination of employment.
The specific attributes in respect of which discrimination must not be practised include (but are not limited to) (s 7 Anti-discrimination Act):
- marital status
- gender identity
Like all other areas covered by the laws, work-related unlawful discrimination can be direct or indirect.
It is unlawful for one or more persons in the workplace to threaten another person because that person:
- has made or has threatened to make a complaint about discrimination
- is involved with a proceeding under the laws
- refuses to do something that would be a breach of the laws
- asserts rights they have under the laws such as reasonable adjustment of their role if they have an impairment.
Typically, an employee will be victimised if an employer threatens to dismiss or take some other disciplinary action against an employee because they have chosen to make a complaint or otherwise insist on rights under the laws.
Any unwelcome conduct of a sexual nature perpetrated by one person to another in any workplace will amount to sexual harassment if it is done:
- with the intention of offending, humiliating or intimidating another person
- in circumstances where a reasonable person could have anticipated the possibility that the other person would be offended, humiliated or intimidated.
Sexual harassment can be the result of a one-off incident or a series of events that may include inappropriate personal contact, making remarks with sexual connotations, telling jokes with sexual content or displaying sexual images, either on a computer screen or as office decoration.
Employer’s and manager’s responsibilities
Often, unlawful discrimination, victimisation or sexual harassment is thoughtless behaviour on behalf of an individual. Although there is no one particular type of individual that conducts themselves in this way, it is more likely than not that there will be a power imbalance, perceived or real, between the victim and the perpetrator.
This being the case, managerial staff should ensure that all persons in the workplace are aware of their rights and responsibilities in relation to discrimination laws. This is generally achieved by most workplaces now having policies aimed at preventing these types of unlawful behaviour and internal procedures for reporting and investigating complaints.
An employer will be liable for sexual harassment or discrimination by an employee in the course of their employment, unless the employer can show that they took reasonable steps to prevent the action from occurring. ‘Reasonable steps’ would include the imposition of appropriate policy documents concerning sexual harassment and the provision of training to employees regarding their policy obligations.
Formal complaint-handling procedure
If a person wishes to lodge a complaint about unlawful discrimination at work or in a work-related area, victimisation or sexual harassment, they must do so to the Anti-Discrimination Commission Queensland (ADCQ) or the Australian Human Rights Commission (AHRC) within 12 months of the date upon which the alleged discrimination occurred. The ADCQ will investigate the person’s complaint to establish if it has the jurisdiction to deal with it. Thereafter, the ADCQ will attempt to conciliate the complaint by inviting the parties to a conference designed for that purpose.
If the complaint cannot be conciliated, on the person’s request, the ADCQ will refer the matter to the Queensland Civil and Administrative Tribunal for mediation and/or trial.
Similar powers exist for claims made to the AHRC. Any AHRC complaints, if not resolved by conciliation, can culminate in a trial in the Federal Circuit Court or the Federal Court of Australia.
It is not sufficient for a person making a complaint to simply believe they have been unlawfully discriminated against, victimised or sexually harassed. The complainant must meet the civil standard of proof (i.e. the balance of probabilities) by providing evidence showing that the unlawful conduct has occurred.
Limited defences apply to those companies or individuals responding to a complaint of unlawful discrimination in the area of work. Such defences include, but are not limited to, acts done in compliance with other legislation, genuine occupational requirements and workplace health and safety. The burden of proof in these circumstances is to be met by the company or individual relying on the defence.
If there is a finding at trial in favour of the complainant, the tribunal has the power to make a range of orders; the main one is compensation for loss suffered as a result of the unlawful discrimination, victimisation or sexual harassment. For more information, see the chapter on Discrimination and Human Rights.