When a management team plays hot potato with a worker’s complaint, someone is bound to get burnt.
When a workplace complaint is escalated up the leadership ladder, you might assume the organisation is conducting a thorough investigation into the claims. But sometimes, they’re just passing the buck onto the next in command. Maybe because they’re too busy to properly intervene, or simply just not interested in doing so.
When this happens important steps can be skipped, such as remembering to properly listen to the complainant (and possible victim). Appropriate understanding of the initial situation can also diminish.
One organisation found this out the hard way, and has had to pay damages.
“Disgusting” sexual and violent comments
In February 2017 a female employee was placed into a role as a team leader in traffic control at a railway level crossing site by Marriott Support Services, an organisation that helps employees with an intellectual disability find work. The team leader’s name has been suppressed by the Victorian Civil and Administrative tribunal, so HRM will refer to her as ‘Jane’.
During one of her projects, Jane worked alongside a male worker from another organisation, Rail Safe Working Solutions. Marriott and Rail Safe were engaged by contractor Lendlease to provide traffic and pedestrian management services during the project.
According to Jane, the male Rail Safe worker repeatedly acted inappropriately. He stood too close to her and other workers, criticised the Marriott disability program she was part of – stating she was “not employed on [her] merit”– and made sexually aggressive and violent comments in her presence.
The evidence Jane provided to the tribunal accused the male worker of speaking of his preference for Asian women, stating that his wife was Filipino and that he owns “a gun and [he] admires the killer and rapist from Wolf Creek”. Jane reported feeling scared of the male worker, who also reportedly said “I own excavation equipment… it would be easy for me to bury a body in my backyard”.
Jane said she was concerned for another fellow Marriott worker, described as “an attractive 19-year-old Asian” who the male Rail Safe worker was “closely shadowing”.
The male worker was also accused of making “disgusting” comments about female pedestrians in the area. For example, he said of one pedestrian who was wearing a “see-through” blouse, “I could ride that all the way home”.
Management failed to take that extra step
Other Rail Safe employees on the site encouraged Jane to report the male worker so they could properly investigate his behaviour (he was later stood down from the site).
She reported his behaviour to her immediate manager via a phone call, stating that she felt “scared to drive home… and that she was afraid of what would happen if she made a formal complaint”. Following their call, Jane’s immediate manager sent an email to Lendlease asking them to look into this “concerning” situation, but that’s where his intervention stopped.
The immediate manager was attending a training session the day that Jane called to inform him of the situation, so he referred the matter to Marriott’s divisional manager as he “had no more time” to speak on the matter.
Alecia Thompson, solicitor for PCC Employment Lawyers, says that informal workplace complaints can be a slippery slope, but employers could avoid future liability by acting promptly and properly.
In an article for Mondaq, she says, there “tends to be a belief from managers that they must wait until a formal complaint is made before they can take any action. This belief, which is false, sometimes reinforces a business’ reluctance to investigate and can be used by a manager to stick their head in the sand about what is going on in the workplace.
“Under work health and safety legislation, contract and tort, an employer must take all reasonable steps to protect the health and safety of employees. This includes taking action as soon as becoming aware of serious workplace concerns, regardless of the way these may be communicated to the business,” Thompson says.
What not to say
Both the immediate manager and the divisional manager believed the majority of the claims made by Jane. But, according to the tribunal’s report, the divisional manager said she looked tired, and suggested that she was “being oversensitive” and may have misinterpreted the comments.
The report says the divisional manager reminded Jane that she didn’t have to make a formal statement, that she could refuse to get involved in “site politics” and it was “predominantly a working man environment in construction and that there was always going to be unwanted attention to women”.
This caused Jane to believe her complaint wasn’t being taken seriously because she was female.
“[The divisional manager’s] immediate reaction was to discredit my perception of things by claiming I was over tired and overly sensitive and that the behaviour is to an extent to be tolerated because it’s a ‘man’s working’ environment,” Jane said in a follow-up conversation with her immediate manager.
She also claimed the divisional manager said she was “putting the whole disability program at risk” by making a formal complaint. This claim was not substantiated and the divisional manager strongly denied it.
The outcome
Jane believes she wasn’t offered enough support, that the complaint wasn’t effectively documented and that she was “actively discouraged” from making the formal complaint. It seems the tribunal agreed, ordering Marriott to pay her $10,000 in damages.
The hearing was before senior member Bernadette Steele, who says: “There was no evidence that [the divisional manager] referred to any procedure for making a complaint or told [Jane] how this could be done. Rather, the interview… began with [Jane] asking how to make a complaint and ended with advice to walk away from “any sort of onsite politics”. For that reason, I prefer the [Jane’s] evidence.”
Steele added that “advice about expecting unwanted attention treated [Jane] unfavourably because of her sex. Combined with the lack of any formal registration of the complaint, it suggested to [Jane] and to [her immediate manager] that since [Jane] is female she should accept conduct which on its face amounted to sexual harassment”.
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$10,000 in damages, really!!! Is that it, the pathetic outcome for being scared for her life at work and being patronised and belittled by her companies complaint process. Why is this sort of abhorrent behaviour by the perpetrator and management who failed to take action not a criminal offence? $10,000 damages is again a patronising response.
Wow. I’m amazed that the fine was only $10,000 based on the circumstances! Maybe there is further legal action against the male worker that has not been addressed in this article (I hope there is), and t his is purely looking at the employers actions, but still, $10,000 seems low considering that they basically endorsed his behaviour by doing nothing about it, and kept her working in an environment where she feared for her own, and other’s, safety….wow.
Human Resources is not an easy discipline. Personal and professional integrity should automatically be listed first and second on the selection criteria for any supervisory position. Treat each and every complaint as legitimate until diligent examination proves otherwise
It’s interesting that no references were made to “Jane” being in a particularly vulnerable position. She experienced disability, was employed by a contractor organisation, was female in a male dominated field and all of these factors seem to have been alluded to by the employer/ respondent. These factors combine to make the inactions of the employer, and the host employer, more egregious than if the situation was less complex. I would have thought that the employer and state rail would be more at fault given that they acknowledged that there was a risk to a wider program (of inclusive employment… Read more »
Choice of jurisdiction is interesting here, because she essentially had a choice of a General Protections under the Fair Work Act, or the Sexual Harassment/Discrimination Claim under the Victorian Legislation. Under the Fair Work Act she may have had access to civil penalty remedies and possibly higher awards for compensation as well as drawing in the individuals involved under the accessorial liability provisions – but the adverse action jurisdiction has a lot of pitfalls for harassment and discrimination based claims so there may have been doubt about prospects in that jurisdiction.