Workplace Bullying and Harassment Compliance Guide for Mental Health Tribunal Members

Bullying, harassment and work health and safety: A compliance guide for Members Mental Health Review Tribunal Cameron Dean Partner 9 October 2019

Bullying and sexual harassment in the workplace 54992832 2

MHRT Bullying and Harassment Policy All workers (including Members)must: understand what bullying and sexual harassment is not engage in behaviour that might amount to bullying and sexual harassment consider their own behaviour and its potential impact on others report behaviour that is or could be bullying or sexual harassment not encourage others to engage in conduct which is or could be bullying or sexual harassment 54992832 3

Anti-bullying and sexual harassment obligations Workers Compensation and Rehabilitation Act 2003 (Qld) Work Health and Safety Act 2011 (Qld) Guide for preventing and responding to workplace bullying Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016 (Qld) Employment contract and policies MHRT Bullying and Harassment Policy MHRT Code of Conduct Public Service Code of Conduct (Public Sector Ethics Act 1994 (Qld)) 54992832 4

Not so fun facts Bullying is frequent but not always deliberate Bullying can be overt or covert Bullies tend to be serial offenders Deliberate bullying is generally an abuse of power Bullying is gender neutral (as many women bully as men) Bullying can indicate loss of control by managers Bullying is costly (about $1,000 per employee per year) 54992832 5

What is workplace bullying? Industrial Relations Act 2016 (Qld) s272 while the employee is at work one or more individuals repeatedly behaves unreasonably towards the employee or a group of employees of which the employee is a member AND the behaviour creates a risk to the health and safety of the employee Employee broadly defined does not include a Member, but Members are covered in the MHRT policy Reasonable management action carried out in a reasonable manner' will not constitute bullying 54992832 6

Reasonable management action taken in a reasonable way Ms SB [2014] FWC 2104 test is whether management action was reasonable, not whether it could have been more reasonable or more acceptable does not need to be perfect but must be lawful course of action may still be reasonable even if a particular step was not did the action involve a significant departure from policy/procedures any unreasonableness must arise from management action not applicant s perception of it 54992832 7

What is workplace bullying? Repeated unreasonable behaviour range of behaviours over time must be more than one incidence same specific behaviour does not have to be repeated Risk (injury or loss) to health and safety, must be real Third Party 54992832 8

Bullying can take many forms Source: MHRT Bullying and Harassment Policy Unjustified blaming Inappropriate labelling Sarcasm Threats Verbal abuse Intimidation Belittling the opinions of another person Spreading lies and rumours Abuse of power, such as unfair disciplinary procedures Making worker feel isolated or alienated Inappropriate comments about personal appearance Unwarranted and/or constant criticism of work performance Consistent assignment to dirty/boring jobs Unreasonable denial of the training opportunities Denial of award conditions, such as denying paid leave Exclusion from participation in work activities Unreasonably and unfairly threatening dismissal Forcing person to resign Assault, both physical and threatened Stalking Manipulation, e.g. making frivolous or vexatious complaints Giving untrue and adverse referee report Creating or imposing unrealistic deadlines Ganging up Withholding information, and undermining work performance 54992832 9

This is not a defence to bullying ... But it is true I meant it as a compliment Starting a sentence with, No offence, but I was only joking He/she was participating/started it I was inebriated 54992832 10

Summary of application process An employee who reasonably believes the employee has been bullied in the workplace may apply to the QIRC for a stop-bullying order Potential respondents are not limited to employers or managers can be bullying by unions or other third parties Commission must be satisfied the employee has been bullied in the workplace and there is a risk that the employee will continue to be bullied in the workplace 54992832 11

One interlocutory decision in QIRC State of Queensland (Department of Justice and Attorney-General) v Campbell [2018] QIRC 82 Employee not in the workplace because she was absent for 10 months under a medical certificate Application dismissed on the basis that the Commission is restricted to making the orders established by the legislation (that is that the employee be bullied in the workplace whilst the employee is at work). 54992832 12

What is sexual harassment? You sexually harass another person if you: make unwelcome advances make unwelcome requests of a sexual nature, or engage in unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated Need not have a work connection, but an employer (e.g. MHRT) can be vicariously liable for work related behaviours and has an obligation to take steps to prevent such behaviour in the workplace 54992832 13

Behaviours that may amount to sexual harassment Sexual or suggestive remarks (direct or innuendo) Unwelcome sexual advances or propositions Constantly asking someone out after a prior refusal Spreading sexual rumours Repeated unwelcome questions about someone s personal life Unnecessary physical contact Staring or leering in a sexual manner Derogatory or admiring comments about physical appearance Displaying sexually graphic material Circulating sexually explicit emails (words and images) 54992832 14

Challenges Publicity about sexual harassment issues was heightened by the #MeToo movement Employers can be an enabler , especially at workplace functions Issues with technology and the blurring of what is work related images or comments that seem funny initially may not be so funny later used as evidence in proceedings Luke Colwell v Sydney International Container Terminals Pty Ltd [2018] FWC 174 video sent by Facebook messenger while on RDO, after hours recipients included 19 work colleagues unwelcome and offended some recipients but no formal complaint HR investigated and terminated employment dismissal upheld - sufficient connection to work 54992832 15

Bowker v DP World [2014] FWCFB 9227 and [2015] FWC 7312 FWC Full Bench considered the meaning of bullying at work Rejected the employee s argument that conduct was at work if it had a substantial connection to work The Full Bench found that at work covers conduct during employee s performance of work at any time or location when a employee is engaged in some other activity authorised or permitted by their employer (such as being on a meal or other work break, travelling for work or accessing social media while performing work) 54992832 16

Remedies for bullying and sexual harassment Potential remedies for sexual harassment include compensation for loss or hurt and humiliation, injunctions, reinstatement and punitive damages sexual harassment claims now assessed differently, leading to higher damages being available (e.g. Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82: on appeal, increase in award of damages from $20,000 to $130,000) Wide range of stop bullying orders can be made Work health and safety breaches are criminal in nature up to $600,000 and/or five years imprisonment for officers up to $300,000 and/or five years imprisonment for workers Bullying and sexual harassment are capable of amounting to misconduct under the Mental Health Act 2016 (Qld) misconduct can lead to termination of appointment as a Member 54992832 17

How do you apply these principles on a day to day basis Behaviour guidelines do not do anything to deliberately hurt someone else do not do anything that can be seen as sexual or personally invasive do not get involved in group baiting or group threats do not target just one person with a particular type of behaviour, or one person over and over again with different types of behaviour if you cannot be sure that everyone who is there or who could overhear it will like it do not do it if you would not do it to, or in front of, every member of your family, do not do it if you would not like it done to you, do not do it be extra careful when drinking alcohol it is no excuse if anyone indicates, in any way at all, that they do not like your behaviour, stop doing it, apologise sincerely, do not do it again and do not gossip about it or them 54992832 18

Things to think about As a Member you need to be mindful of your behaviour towards staff, other professionals you deal with, the public and each other Be careful about risky behaviours, such as what you might consider as banter or a joke but which might be hurtful or offensive to others If you are subjected to inappropriate conduct, consider informal resolution as a starting point calling out behaviour can be an effective way to resolve issues Take a leadership role the behaviour you ignore is the behaviour you condone 54992832 19

Work health and safety 54992832 20

MHRT Work Health and Safety Policy Hazard identification to involve regular inspection and analysis of work environment, taking into account all factors that could cause injury or illness to workers Risk assessments to be undertaken: when hazard has been identified; and when there is a change in circumstances of work area (e.g. new equipment, new location, etc.) Hazard/risk control to focus on elimination of hazards so far as reasonably possible, or if not, then minimised with a combination of controls Control measures to be reviewed periodically, following incidents, and after changes to circumstances, working environments, or legislation 54992832 21

Duty holders Duty holders include a person conducting a business or undertaking (PCBUs) workers (not just employees) officers other persons in a workplace (visitors/clients etc.) workplace is any place where workers are, or may be, for work The State (acting through Departments) is a PCBU and is capable of being found guilty of an offence under the WHS Act (section 245) The State is treated no differently than a body corporate, including for penalties that may be imposed for breaches 54992832 22

Recent experience It is our recent experience that WHSQ and the ESO have altered their approach to regulation, with an emphasis on issuing notices and commencing prosecutions - rather than education, guidance and advice are applying a focus to the Queensland Public Sector are investigating senior public sector officers and representatives, including Director-Generals 54992832 23

Section 247 Section 247 defines an officer as: A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the State is taken to be an officer of the State for the purposes of this Act Section 8(1) defines a worker : A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking Includes employees, contractors, work experience students, volunteers Based on the definitions: MHRT will be a PCBU Members will be workers 54992832 24

Principles of duties Principles of duties non transferable can have more than one duty (e.g. as an officer and a worker) can be shared duties must manage risk must consult 54992832 25

Primary duty of care for a PCBU Must ensure, so far as is reasonably practicable, the health and safety of workers and other persons while at work who may be affected by the business or undertaking Also work environment without risks provision and maintenance of plant and structures safe systems of work information, training, instruction and supervision 54992832 26

Due diligence If a PCBU has a duty or obligation under the WHS Act, an officer must exercise due diligence to ensure that the body complies with that duty or obligation Due diligence means acquire and keep up to date on WHS matters understanding of business and hazards and risks ensure all appropriate resources available (and are used) process for considering incidents, hazards and risks ensure body complies with duty or obligations under the WHS Act 54992832 27

Obligations of workers Section 28 WHS Act requires that, while at work, a worker must: take reasonable care for his or her own health and safety take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons (includes members of the public as well as other workers) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with the WHS Act co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers (e.g. MHRT s work health and safety policy) Up to $50,000 fine for individuals 54992832 28

Consider what you need to know Even if not an officer, need to refer to nature of risks and hazards roles and responsibilities (e.g. notifying incidents) the WHS matters over which you have influence Satisfy yourself that resources and processes are appropriate to eliminate/reduce hazards and risks available for use used maintained and updated 54992832 29

Process Systems in place (and working) for receiving and considering information about incidents, hazards and risks may need to consult with others e.g. HHS Systems enable timely response ensure appropriate notification cannot manage what isn t known may need to consult with others e.g. HHS 54992832 30

What is enough? Remember the focus is on what you have done to discharge your duty Compliance is everyone s responsibility, but can depend on your role and responsibilities Ignorance/delegation is risky Paper compliance will not be enough 54992832 31

Maximum penalties Offence Corporation $10 million Officers 20 years gaol* Individual Industrial Manslaughter Category 1 $3 million $600,000 $300,000 and/or 5 years gaol and/or 5 years gaol Category 2 $1.5 million $300,000 $150,000 Category 3 $500,000 $100,000 $50,000 * applies to senior officer which is broader that section 9 Corporations Act 2001 (Cth) definition Maximum Queensland prosecution to date is $1,000,000 for fatality of a roofing contractor on the Sunshine Coast Maximum interstate prosecution to date us $1.1 million for electrocution in Kenoss (ACT) 54992832 32

Offences categories Industrial manslaughter Worker dies conduct causes the death person is negligent about causing the death of the worker Category 1 Reckless conduct has a duty fails to comply exposes an individual to risk of death or serious injury person is reckless to the risk of death or serious injury Failure to comply with duty has a duty fails to comply exposes an individual to risk of death or serious injury Failure to comply with duty has a duty fails to comply Category 2 Category 3 54992832 33

Prevention is better than cure Level 1 MOST HIGHEST Eliminate the hazards The hierarchy of risk controls shows that elimination of risk is the starting point Level of health and safety protection Reliability of control measures Level 2 Substitute the hazard with something safer Isolate the hazard from people Reduce the risks through engineering controls MHRT WHS Policy requires risk controls be implemented according to this hierarchy elimination where possible minimised using level 2 controls using level 3 controls if necessary Level 3 Reduce exposure to the hazard using administrative actions Use personal protective equipment LOWEST LEAST 54992832 34

Prevention is better than cure Multiple parties can be prosecuted over the same incident (e.g. MHRT, HHS and officers and workers involved) Individuals and officers are being prosecuted, especially in serious matters Being busy is not a defence Leaving safety issues in the hands of others will not be a defence Showing no influence could be a defence but very hard to do Positive steps are your only true defence Foster a safety culture everyone to take ownership of safety issues 54992832 35

Contact Cameron Dean Partner T +61 7 3233 8619 E cdean@mccullough.com.au Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this presentation. 54992832 36