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Sexual Harassment – Time to move against it

Alison Knight, CrossroadsHR

In the wake of the David Jones sexual harassment case, all of corporate Australia should be taking a long look at the adequacy of their sexual harassment policies and practices.

Former David Jones Junior Publicist Kristy Fraser-Kirk, who has alleged former David Jones chief Mark McInnes sexually harassed her, has received a confidential payout of around $850K. The payout is one of the biggest in Australian history, and highlights the need for organisations to have robust sexual harassment policies and complaint procedures to protect individuals and organisations. In the dispute, Australia saw how both sides used veteran PR experts to shape media coverage and effectively use the media as a weapon. However, in the final wash up, the cost to both Fraser-Kirk and McKinnes has been huge.

What is unlawful harassment?

The law says unlawful harassment occurs when:

  • someone is made to feel intimidated, insulted or humiliated because of their race, colour, national or ethnic origin; sex; disability; sexual preference; or some other characteristic specified under antidiscrimination or human rights legislation; or
  • someone is working in a ‘hostile’ – or intimidating – environment.

In the context of sexual harassment, employers need to be aware of their responsibilities to ensure that the working environment or workplace culture is not sexually ‘hostile’.

What sort of behaviour is sexual harassment?

Sexual harassment can include:

  • Making unwanted sexual advances and propositions — as was the issue in the David Jones dispute
  • Telling insulting jokes about a particular sexual orientation
  • Sending explicit or sexually suggestive emails
  • Displaying offensive or pornographic material — whether on paper or on laptop or phone etc. screens
  • Making derogatory comments or taunts about someone’s sexual orientation
  • Asking intrusive questions about someone’s personal life, including their sex life.

Harassing behaviour can range from serious to less serious levels — however, one-off incidents can still constitute harassment. Also, if behaviour continues, it can undermine the standard of conduct within a work area, which may erode the wellbeing of the person or group being targeted and lead to lower overall staff performance.

In recent years, sexual harassment has spread through sexually suggestive emails and texts so that employees are unable to escape work place sexual harassment or bullying even in their own homes.

Many cases of sexual harassment go unreported because victims:

  • are concerned about the negative impact on their careers if they complain, and
  • do not fully understand what sexual harassment is or do not think incidents are serious enough to warrant a complaint.

What are the impacts of sexual harassment or bullying?

Workplace bullying in general, including sexual harassment, may cause extensive health problems for employees exposed to this hazard — including physical and psychological illnesses and injuries. Sexual harassment can impact on co-workers, clients, customers, business associates, family and friends. And it impacts on the organisation.

The employee Employees who are sexually harassed may experience some of the following effects:

  • Stress, anxiety or sleep disturbance
  • Panic attacks or impaired ability to make decisions
  • Incapacity to work, concentration problems, loss of self-confidence and self-esteem or reduced output and performance
  • Depression or a sense of isolation
  • Physical injury
  • Reduced quality of home and family life
  • Suicide.

The organisation Sexual harassment often causes problems for the organisation including: reduced efficiency, unsafe work environment, increased absenteeism, poor morale, increased workers compensation claims and civil action. In the David Jones case, the costs included considerable brand damage and the loss of a CEO who had significantly improved the business and shareholder value.

Many of these costs can be measured in dollars and can significantly impact an organisation’s bottom line in both the short and long term.

How can you stop and prevent workplace harassment?

There are four best practice principles for managing harassment and bullying:

  • Setting — and communicating —  a clear policy position
  • Providing supportive training programs
  • Handling complaints through a sound review process
  • Taking prompt and effective remedial action.

However, be aware of common pitfalls:

  • Policy pitfalls A well worded policy statement is often undermined by the “no complaint, no problem” philosophy — which effectively empowers bullies to make use of various forms of intimidation to prevent complaints and avoid attention.
  • Training pitfalls Training programs are too often a short snappy video with some questions at the end. These rarely achieve much. In contrast, best practice incorporates multiple interactive role plays, discussing real life inappropriate behaviours, explicit coaching in practical ways to confront perpetrators and addressing all levels in the organisational hierarchy. 
  • Complaint handling pitfalls Many organisations risk compromising an investigation by using the HR manager who may be compromised by organisational politics and power structures. Instead, using an external agency to receive and investigate complaints provides a sound, objective forum for review. The widespread absence of this approach explains why many people lack the confidence to make a complaint and see it through. For example, in the David Jones case, it has been reported that the offending behaviour of the CEO was well known about in the HR department and even at board level.
  • Action pitfalls Even when cases are investigated correctly and a workable resolution is found, it is often done so quietly that the result does little to deter similar behaviour among other employees. Also pursuing prompt and effective remedies after the finalisation of a review is a systemic weakness across many Australian businesses. A confidential file note or a slap on the hand lack the honest reinforcement provided by an apology, counselling for the victim and the offender — and perhaps even termination of the offender, as happened so dramatically at David Jones.

More information

If you would like more information about:

  • Setting up a bullying and harassment policy and procedure
  • Advice about a current issue
  • Support with the mediation of disputes and objective investigations or
  • Assistance in assessing your organisation for systemic risk around sexual harassment and bullying
  • Other HR concerns.

Contact Kim Murrells at Crossroads HR on 9862 5900.

Information about HR documents from Cleardocs

You can read about the Cleardocs HR Manual here.


Lawyer in Profile

Alisha Wright
Alisha Wright
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Qualifications: BCom, LLB (Hons), Monash University

Alisha is a member of Maddocks Commercial team. She assists her clients in a variety of commercial matters.

Alisha has experience in:

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