Issue 3.E - April Employment Supplement

• Sexual Harrasment
• Warnings to Bullies in the Workplace and their Employers
• Additional Public Holidays

The need for this Newsletter Supplement arose as a result of the recent minibudget announcement by the Treasurer. This displaced some articles from the newsletter regarding employment law issues. As Employment Law advice is very important to many of our clients and is a substantial platform of our firm's practice, we have issued this supplementary bulletin to ensure those issues are addressed without delay.
Please also note that this month's Newsletter was incorrectly labelled as Issue 4 - May 2004 
Survey indicates that more than 50% of Australians have suffered sexual harassment Sexual Harassment

The Human Rights and Equal Opportunity Commission (HREOC) has recently published the results of a survey conducted in 2003 which found that over half the population had experienced sexual harassment. Harassment predominantly affects women, with 41% of women having experienced sexual harassment and two thirds of those experiencing harassment in the workplace.

Almost three quarters of cases involve men harassing women, with harassment of women under the age of 45 being prevalent. Male harassers were most commonly managers or supervisors. Sexual harassment in the workplace includes both physical and non-physical conduct. Physical forms include unwelcome touching, hugging, cornering, kissing or unnecessary familiarity. Most harassment involves non-physical conduct such as suggestive comments or jokes, staring or leering, sexually explicit emails or SMS messages and sexually explicit pictures or posters.

Sexual harassment is illegal under the Sex Discrimination Act 1984 . HREOC is responsible for handling complaints under the Racial Discrimination Act 1975 , Sex Discrimination Act 1984 , Disability Discrimination Act 1992 and the Human Rights and Equal Opportunity Commission Act 1986 . Issues of sexual harassment are often indistinct from other employment areas including email use and privacy.

The implementation and managed application of tailored employment policies, including harassment and discrimination policies, will protect employers from complaints to HREOC. We are able to prepare all employment policies and provide advice upon the ongoing management of policies in place. For further information, please telephone Kevin Dwyer or email kevin@wmdlaw.com.au

Employers might be liable to victims of harassment if they dont take action Court Sounds Warnings for Workplace Bullies - and their Employers

A 2003 decision of the Australian Industrial Relations Commission lends support to the view that an employee who has been guilty of "aggressive and contemptuous" behaviour may be liable to termination of their employment and that the termination, if the correct procedure is followed, will not be able to be objected to as being harsh, unjust or unreasonable.

The case in question was concerned with a dismissed employee's behaviour which included harassing, intimidating and abusing junior employees and making offensive remarks to female employees. The case dealt with a senior Commonwealth Government Department public servant who had been with the Australian Public Service for 18 years. Under normal circumstances, the length of the employee's career might be seen as a factor which suggested that the termination was harsh or unreasonable. In this case, the Court found that the length of service was a factor which aggravated the behaviour of the employee because he ought to have known that it was unacceptable.

As well as sounding a warning to bullies within the workplace that, notwithstanding a long period of service, they may be liable to termination for their conduct, the case could serve as a warning to employers that they may be liable to the victims of the harassment if they don't take action to remove the offenders.

We remind all employers that they should:
· Fully and promptly investigate all complaints of harassment and bullying;

· Give the employee a reasonable opportunity to respond to allegations;

· Ensure findings about the allegations are based on reasonable grounds, upon the facts investigated and on the responses given by the employee about the allegations; and

· Advise the victim of the outcome of the findings so that they are involved in the process.

An important platform of workplace management is to have a written policy concerning harassment and the way in which employees are to deal with each other and with clients. We can prepare policies for your business. If you require assistance, please contact dean@wmdlaw.com.au

Local Public Holidays for 2004/2005  Additional Public Holidays

The NSW State Government has proclaimed two additional Local Public Holidays over the 2004/05 Christmas/New Year Period, being Tuesday, 27 December 2004 and Monday, 3 January 2005. The proclamation does not state that these dates are in lieu of Christmas Day or New Years Day. Local Public Holidays are gazetted under the Banks and Bank Holidays Act 1912 which requires that banks are closed on Local Public Holidays. Many industrial awards, agreements and contracts of employment confer a right of paid absence for employees on a Local Public Holiday or penalty rates in lieu thereof. In the absence of such express coverage, the benefit to employees (if any) is entirely within the discretion of individual employees.

If you are unsure about how this proclamation effects your employee's entitlements or to discuss the formulation of employment contracts to clarify absolutely this and other issues regarding leave and employee entitlements please telephone Dean Groundwater or email dean@wmdlaw.com.au

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