Project Description

Sexual Harassment – with Kellie Edwards and Scott Diprose

On episode 1 of the HR Breakfast Club podcast, Genevieve Jacobs, Kellie Edwards and Scott Diprose look at Sexual Harassment in the workplace. We will provide a discrimination law update in the context of the huge global #MeToo movement, which has gained significant traction in workplace harassment via the involvement of high profile celebrities on social media as well as in the mainstream.

Kellie Edwards is a Sydney barrister who works from the Greenway Chambers, largely in various employment and discrimination jurisdictions. Before she was a lawyer, Kellie worked in private enterprise, the community sector, and government. She’s also run her own consulting company providing services to those sectors. Recently she’s delivered papers on the impact of the #MeToo movement in Australian discrimination law and changes to the Australian Human Rights Commission Act 1986.

Scott Diprose is currently an organizational development director for First Mortgage Services with a wealth of experience across the financial services and professional services sector in HR practice over the past 20 years.

For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!

Some topics we cover:

  • How the #MeToo movement has brought awareness to sexual harassment both in the workplace and more broadly in the mainstream
  • Statistically, the number of reported cases that result  in litigation has not increased as drastically as one may have expected, but the overall number of complaints has increased quite dramatically.
  • Effective policies and procedures are necessary to deal with sexual harassment in the workplace but more than this, they need to be implemented appropriately
  • The damaging effect on a company’s brand and reputation as a result of a sexual harassment allegation
  • Remaining impartial and objective as an HR professional dealing with sexual harassment allegations

Genevieve: Hello, I’m Genevieve Jacobs. Welcome to the HR Breakfast Club Podcast, where we focus on the world of work in Australia with a legal spin. We’ll give you an informal look at some of the hot button HR issues that you might be facing in the workplace. Our website is hrbreakfastclub.com.au and if you’d like to make contact with some questions, we’ll do our best to respond to those as well as keeping you updated on recent developments in the field.

For this episode, we’re looking at sexual harassment in the workplace. This is a discrimination law update in the context of the huge global movement that is #MeToo which has gained very significant traction on workplace harassment by the involvement of high profile celebrities on social media as well as in the mainstream.

It’s been written about extensively by barrister Kellie Edwards, who joins me shortly. We’ll also provide an HR perspective on dealing with this sometimes complex issue with an emphasis on understanding the challenges, the pitfalls, examining useful ways to resolve these matters as fairly as possible when they arise.

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Genevieve: Kellie Edwards is a Sydney barrister who works from the Greenway Chambers, largely in various employment and discrimination jurisdictions. Before she was a lawyer, Kellie worked in private enterprise, the community sector, and government. She’s also run her own consulting company providing services to those sectors. Recently she’s delivered papers on the impact of the #MeToo Movement in Australian discrimination law and changes to the Australian Human Rights Commission Act 1986. Kellie Edwards, thank you very much for joining the podcast.

Kellie: My pleasure.

Genevieve: The #MeToo Movement has at least for now focused a piercing spotlight on the incidents of sexual harassment in the workplace globally, but has there been a link to increase in the number or variety of sexual harassment claims we’ve seen in this country?

Kellie: No, it’s the long and the short of it. If you have a look at the recent statistics since the #MeToo Movement started and I guess it’s important to recognize that #MeToo didn’t just start with a Hollywood actress tweeting #MeToo one morning in October, which is the place at which it gains some traction. The hashtag was really started by a woman called Tarana Burke who was a youth worker working in areas of sexual assault and working with young women.

Nevertheless, it certainly was the case when Alyssa Milano tweeted “#MeToo” in the context of the movie industry that she ended up with 500,000 tweets between seven o’clock in the morning and three o’clock that afternoon, which gives you some indication of how widespread it was in that particular industry and the fact that it’s been taken up around the world and in all industries shows you just how enormous the problem is I guess worldwide.

Going back to your question has that resulted in any significant increase in complaints, formal complaints or litigation? The answer at this stage would have to be no. There are about an average of 20 complaints a month based on the information I’ve received from the Australian Human Rights Commission and I think had Santo for that, the present Human Rights Commissioner and that really didn’t change from immediately before September, 2017 the takeoff of the hashtag till after there’s still been a similar number of complaints.

What is interesting now is that there has been a statistically significant increase in the number of sexual harassment complaints as a proportion of sexual discrimination complaints increasing of around 2% every year. It is absolutely an issue for all human resource advisors here and around the world.

Genevieve: We’re seeing a rise in complaints, although the cases that proceed them are still quite low by the look of your figures. How difficult is it to establish a claim of sexual harassment and see it through?

Kellie: Well, there’s a lot of parts to that question I guess. One is, what’s the context within which complaints happen and the context is one in which the entire legislative regime is one that’s really adopted the approach to conciliation and arbitration that’s been adopted by the industrial relations sector over the last 100 years in Australia. What that translates into is a highly effective conciliation and mediation process, which occurs at two levels that at least at the federal level, but also at the state in the discrimination jurisdictions.

If you make a complaint to the Australian Human Rights Commission and that complaint’s accepted, they do a conciliation at that point. The reality is that the vast majority of complaints settle at that point. In any given year, the Human Rights Commission across all areas of discrimination gets around 14,000 telephone complaints. That translates into about 3,000 written complaints. Of those, sex discrimination is about third or fourth on the list depending upon the year. Sexual harassment is about a fifth of those total complaints in any given year.

Just to give you some idea about those that filter through to litigation, because you have to get a termination by the Human Rights Commission before you can commence a complaint or claim in the Human Rights Court of Federal Court jurisdictions. In any given year, only about 20 complaints of every kind of discrimination end up in application before either of those courts.

It’s a very small amount of matters that go to hearing. There’s been no real research on the efficacy of mediation. That’s because there are obvious difficulties in studying that. There were some years ago in the family court jurisdictions. I’m not aware of any in these jurisdictions. It’s very difficult to tell at what level those things are settling at, why they’re settling and the like.

What I can say is this, it is one of the most technically, legally complex jurisdictions there is. It is very difficult to run it as a non-represented litigant if not impossible because of the legal technicalities involved. Quite apart from that, and perhaps associated with the legal technicalities it’s an expensive jurisdiction. Even if you go to the Federal Circuit Court, which is supposed to be a real focus on efficiency and effectiveness, and they certainly do their best to run things in that way, as does the federal court.

It can cost a significant amount of money both to run a case and certainly to defend a case. The reality is that the respondents spend about two, three, or four times about as much as applicants do. I work on both sides and just to give you some indication about the cost involved, I represented Graeme Innes in his case against RailCorp in New South Wales, which was a disability discrimination case.

That was a five day hearing in the Federal Circuit Court and Graeme being who he is and this was published in the Sydney Morning Herald afterward, did give her application which gave him access under the freedom of information type laws in New South Wales to work out how much the respondent had spent in that case, and they’d spent $420,000.

If you lose a claim, the normal rules apply. You have to in general pay the other side’s legal costs where the other side’s legal costs are going to be around $420,000 and that’s not in every case, but that’s a five day hearing in the Federal Circuit Court. That is a very significant disincentive for people who have assets such as the family house about whether they’re going to risk it.

Genevieve: It does appear though, Kellie, that there’s greater acceptance by employees, that these are matters of consequence, that they relate to indirectly in the workplace. With regard to our focus on HR, what are the responsibilities of employers when an allegation of sexual harassment is made?

Kellie: Responsibilities are really outlined in terms of the defenses in the Sex Discrimination Act. One of the only ways you get out of a claim of sex discrimination as an employer is to prove that you’ve taken all reasonable steps to prevent it from happening. What does that translate into? Are the kinds of things that HR advisors are well aware of, good policies and procedures around what is harassment, how people go about making a complaint of sexual harassment and how complaints will be handled in a way that is appropriate and sensitive to the nature of the claim.

That’s as important, I would say for complainants as for perpetrators, as for witnesses who may well be asked to participate in that. If a complaint is a serious complaint and it’s decided to conduct an investigation, it’s very important that the investigation gives procedural fairness to all the parties involved.

If you don’t, that can result in not just discrimination claims by any complainant, but claims under the Fair Work Act for adverse action. How does that look? If you don’t give procedural fairness to a perpetrator and they’ve got a very good defense as to why something didn’t happen taken outside thing such as they were out of the country when one of the alleged events occurred and they’re not allowed to put that forward because they’re not given procedural fairness in relation to that issue. Then obviously there’s an argument that adverse action has been taken against them if they are disciplined or somehow sanctioned or even terminated because of the investigation, which is vitally flawed.

Genevieve: I guess that makes the point that effective policies and procedures are of course the foundation of good HR in this regard, but it’s effective implementation that matters as much as anything.

Kellie: That’s a very important point. Implementation is all. It’s not enough to say you’ve got policies and procedures. People need to know where they are. They need to know what they say. They need to understand how they’re going to operate and not just what their rights are, but their obligations are under them. I guess one of the real challenges that HR professionals can sometimes face, are where people come to them and say, “X, Y and Z has happened to me. I’m very upset by it, but I don’t want to be identified as making any complaint in relation to that issue.”

That can lead to some real traps for young players, in my view, not least because an HR practitioner has very clear obligations under Work Health and Safety Law to take action and reasonable steps in relation to any risks.

Clearly, sexual harassment in the workplace or discrimination of any kind is a risk to health and safety. You just can’t take it from someone who says, “X, Y, and Z has happened, which looks like sexual harassment. I’m very upset, but I don’t want you to do anything about it,” as an instruction that you can follow. Quite apart from that, under the discrimination legislation, and in particular 105 of the Sex Discrimination Act, that has a provision which has not been the subject of a huge amount of case law today, but would effectively allow HR managers to be individually drawn into litigation and liable for sexual harassment where they’re aware of it and they do nothing about it.

Genevieve: Kellie, talk to me then about the cost for employers in terms of both damages of little cost if a case proceeds, but also the broader cost across the workplace of not dealing with this well.

Kellie: Well, I can talk to you very easily about the litigation cost. The litigation costs are extensive, and I just gave an example of what one respondent spent on defending a claim under the Disability Discrimination Act. They’re really no different across the board, so there are very significant legal costs. Of course, when you’re advising any client on either end, the other thing you say to them is that there are costs that are less difficult to quantify but very real costs nonetheless.

I’ve been involved in litigation which would include people’s time off for writing statements and affidavits and the like, but in my role as a consultant before I ever became a barrister or even a lawyer, there’s been a lot of research in management theory around showing that people who are bullied or discriminated against are least productive at work. It’s a real productivity issue for employers that they should be concerned about from a money-making perspective.

Genevieve: Despite the difficulties of getting cases up, this could really cost an employer dearly in a number of ways. I mentioned reputational damage would also be significant. This is a fundamental matter for attention at the HR level, isn’t it?

Kellie: It absolutely is, and I think you’re very right that reputational damage is becoming one of the key issues for people. That’s really the lesson from the #MeToo Movement is not necessarily that employers are going to be hit by a huge number of complaints, formal complaints, or even litigation, but that their brand can suffer very significant damage as has happened to the Weinstein Corporation.

Genevieve: This is one of the points that arise out of that is that in the past, complainants have been told that this is part of a general workplace culture, you should try to fit in and not make a fuss. There are, obviously, significant risks in there, and that would imply that preventative measures are absolutely crucial.

Kellie: Absolutely. Look, what we’re really talking about here and what I used to say when I am training in these kinds of areas you’re talking about cultural change. That is about organisations asking themselves the question, what kind of culture do we want to be growing here? It doesn’t take a lot of people in a culture for this kind of behavior to become accepted.

Look, it’s a bit like when you talk about unfair dismissal laws, and one of the big failings for employers is an unwillingness to have the frank discussion with people upfront about deficiencies in people’s performance. It certainly the case that discrimination and harassment are largely written into people’s or large organisations in particular, but organisations, in general, should be in their policies and procedures.

There is a whole question about whether they’re incorporated into contracts of employment in which case if people engage in discrimination or harassment, they are often in breach of their contract of employment let alone any state or federal legislation. So, it is a performance issue, and it really is important for employers particularly small employers probably find this more difficult than larger ones, but it’s also open for larger ones to have the difficult discussions early because my experience is that where you let behaviors slide, it starts small, it gets bigger, and the longer you leave it, the more difficult it is and the more entrenched you’ve got a certain and the more acceptance you have of certain conduct.

That’s supported in psychological research to do with bullying as well of which sexual harassment is a species that people normalize behavior in a workplace, but by the time you realize the behavior really isn’t appropriate and has caused damage, people are already so bad and they’ve normalized so much that you can’t remember where the benchmark is supposed to be.

That’s the big message, I guess, for HR practitioners is don’t be afraid to have the conversations early, don’t be afraid to have regard to policies and procedures when you have those discussions. Hold people accountable to benchmarks that reflect the culture that the organisation wants to support and grow.

Genevieve: Kellie Edwards, many thanks indeed for your time. Thanks for joining us on the podcast.

Kellie: Pleasure. My pleasure. Thanks, Genevieve.

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Genevieve: There’s the legal perspective, there’s a lot more public attention around sexual harassment in the workplace, but in fact, the number of complaints has been rising for a while now. What are the challenges in the workplace, and what happens if you are the HR professional who needs to deal with these either as a possibility or a reality? Scott Diprose is with me.

He is currently an organisational development director for First Mortgage Services with a wealth of experience across the financial services and professional services sector in HR practice over the past 20 years. Scott, welcome to you.

Scott: Thank you, Genevieve.

Genevieve: We’ve just been talking about the gigantic #MeToo Movement. I wonder what your observation was about what’s changed in the past decade in how sexual harassment is viewed in the workplace?

Scott: I think from my perspective, Genevieve, what we’re probably seeing in terms of new employees entering the workplace, both men and women, is a much greater awareness of sexual harassment and its implications. The way in which the genders treat each other at work has become something that people think a lot more about than they used to.

I think particularly about two developments probably over the last five to seven years which has been the increase in awareness around unconscious bias in men and women in their approach to each other, but also I think, certainly, in the environments that I have worked in are much more heightened awareness about the impact of casual sexism and the unawareness of some people in terms the impact of statements they may consider to be quite innocent, but the way that those statements are received, I think, in the current environment and in the current state of knowledge of most people means that they don’t always land the way that they are intended to.

Genevieve: What are the first priorities for an HR professional when you receive a complaint related to sexual harassment? Maybe just walk us through this area. I think many people feel quite concerned about how to react.

Scott: Well, I think that the most important thing to remember when you are the HR professional receiving a complaint is that your job is to remain impartial and objective. It’s not your role to sympathize with anybody or encourage anything to be reported that hasn’t actually happened. What’s really important is to remember that even though your natural sympathies might go out to someone who’s either been the recipient of behavior that’s distressed them or you’re in a position of advising someone that behavior has caused someone else distress, your role is actually to remain objective.

Your role is to make sure that everyone is treated fairly and that an objective process is followed to ensure that you can in a measured way hopefully find your way to the truth of what has happened between two people.

Genevieve: Maybe to just walk back a bit, Scott, how important are the policies and procedures around sexual harassment? How much of that do you need to have very clearly in place as far as the entire workplace is concerned?

Scott: Well, I think in terms of risk management, policies and procedures are your absolute foundation stone. It’s critical that as a part of any induction process that every employee is made aware both of what behavior is expected of them, but also of what behavior is and is not tolerated within the workplace that they’ve entered. It’s really important that happens within the first one to two days of the employee entering the organisation, but as risk management to all policies and procedures and an annual refresh of training is really only a basic step or a foundation step.

What you really want to be focusing on and keeping an eye on is the culture of your organisation which you tend to get a much greater insight into as a result of climate or engagement surveys where you get a clearer measure of how people are feeling overall.

Genevieve: How important is that role of workplace culture as perhaps a preventative for harassment? Is that one of the first tools you have at your disposal?

Scott: I think so. The difficult thing I suppose about culture is it can be so ephemeral and intangible, but increasingly from a litigious standpoint, what HR professionals need to keep in mind is that if an environment or a culture exists within an organisation which appears to encourage or permit or allow sexual harassment to take place, then the workplace itself or the employer themselves can be held vicariously liable for any sexual harassment incidents that take place, or could be held primarily liable for creating what could be known as a hostile workplace.

It’s very, very critical to have in place effective tools to measure where your culture is at. It’s also I guess, an important reason why a lot of organisations over the past decade have focused very heavily around training and programs to encourage a greater understanding of diversity and inclusion, to encourage a culture that is respectful of everyone’s contribution, regardless of what they look or sound like or what their background might be.

Genevieve: It seems to me that what you’re saying there, Scott is that there are two phases to this. There are two sort of notions. One of them is policies and procedures, that’s important. The reality of culture on the ground in the workplace, as it were, is equally significant. How would you go about assessing and dealing with workplace culture if you were conscious that it was perhaps a risk?

Scott: The most effective strategies I’ve seen is that if it’s felt that perhaps there are some risks in terms of the general culture of the workplace, the most effective thing to do is to train some influential people as subject matter experts in terms of sexual harassment and its impacts and being able to detect it. I’ve seen these people set up as sexual harassment contact people.

Basically what you’re trying to achieve there is choosing people at all levels within the organisation who have been trained in a higher degree of knowledge and awareness around what does and doesn’t constitute sexual harassment and who can both play a role to call out behavior as they see it, but also play a role to be a contact person for people who might be concerned about behavior they see happening around them. In that way, you’re also building some real ownership within the business itself to manage its own culture.

Genevieve: Issues like sexual harassment allegation can cause potentially a ripple effect within a workplace concern emotions of various kinds. What kind of values do you need to bring to dealing with it as far as other staff are concerned?

Scott: I think the critical thing around this is that most policies that set out a procedure for how incidents of sexual harassment will be investigated, will state that confidentiality is guaranteed to all participants. And because people’s professional reputation is involved, when you’re dealing with issues like this, it’s very important that that is adhered to. As an HR practitioner, what you would be doing is making it clear to both parties involved, to any supervisors you have to speak to, to any witnesses that you have to speak to, that those conversations have to remain completely confidential.

There are also usually within those policies, indications that disciplinary action can be taken against people who breach that confidentiality. What you’re trying to do is to make sure that you’re able to deal with the situation sensitively and discreetly with the people involved. You need to make sure that any people in the workplace that have been exposed to that behavior, sort of are aware of the outcome, but you want to try and make sure that you contain the work that you do around that to dealing with the people directly involved.

Genevieve: Finally, Scott, what are the risks for an employer if this isn’t handled well?

Scott: There’s a number of risks. From a purely legal perspective, organisations are given the ability to put in place procedures to handle these and resolve these issues internally. However, at any point, if an employee feels that the matter is not being handled adequately or to their satisfaction, they are at liberty to go to external tribunals and bring a public claim.

In terms of I guess, reputation management, having in place a really thorough procedure, and ensuring that you get solid legal advice as you navigate through the procedure is really, really important to avoid, I suppose any public exposure of the matter which can have a very negative impact on your public reputation and your reputation as an employer.

Those are really the most important things, but also, if it’s known within your organisation that a certain behaviour is taking place and it’s not being addressed, then you’re also creating the risk of being potentially negligent as an employer by allowing a situation or a culture of behaviour to develop, which is- actually is illegal in terms of the legislation.

If you’re not doing anything to address that, then you do leave yourself exposed to claims and fines. It’s really, really important around this area to ensure that you have a really strong compliance approach which is around your foundation policies. Then it’s really important to make sure once you become aware of anything that you handle it immediately and with appropriate discretion and sensitivity.

Genevieve: Scott Diprose, so many thanks for being with us. Thanks for your time.

Scott: My pleasure. Thanks, Genevieve.

Genevieve: We’ve been discussing sexual harassment, part of the podcast series for the HR Breakfast Club. Look for us online at hrbreakfastclub.com.au. We have a series of conversations with HR people and lawyers about current issues in the HR and employment fields. If you’d like to ask some questions, suggest an idea, or perhaps offer yourself up as

talent for the series. We’d love to hear from you. I’m Genevieve Jacobs. Thanks for your time.

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