DEPARTMENT OF HEALTH
PREVENTION OF HARASSMENT AND DISCRIMINATION
IN THE WORKPLACE
GUIDELINES
CONTENTS
1.
Introduction
2
2.
Definitions
2
3.
Managing Complaints
6
4.
Support Mechanisms
6
5.
Outcomes
7
6.
What if Behaviour is Not Deemed to be Harassment or Discrimination
7
7.
What To Do If Someone Complains About You
8
8.
Manager and Supervisor Responsibilities
8
9.
How to Prevent Harassment And Discrimination
9
Department of Health, Prevention of Harassment & Discrimination Guidelines
1.
INTRODUCTION
Employers have a duty under the Equal Opportunity Act (WA) (as amended) to
ensure the workplace is free of discrimination and harassment. The employer may be
held vicariously liable for acts that are carried out by employees or persons acting
under their supervision unless it can be demonstrated that all reasonable steps have
and are being taken to prevent the prohibited conduct.
The Department of Health aims to meet its responsibilities under the relevant
legislation by providing:
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A policy on the prevention of harassment and discrimination;
Information and guidance to employees and managers in the form of these
guidelines;
A grievance resolution process for dealing with complaints;
Relevant awareness education and training programs for managers, supervisors
and employees; and,
Relevant support mechanisms including internal support networks, such as,
Contact Officers, Grievance Officers or Peer Support Officers and an Employee
Assistance Program that are adequately trained to deal with incidents of
harassment and discrimination.
These guidelines provide information promoting a work environment free from
harassment and discrimination, mechanisms to resolve complaints if incidents are
reported, and strategies and options to adopt if you think you have been harassed or
experienced discrimination. These guidelines also address what you need to know if
you are the subject of a complaint.
Employees have the right to work in an environment that is free from harassment and
discrimination. All employees have a responsibility to ensure their own behaviour is
above reproach and they do not engage in harassing or discriminatory behaviour
towards other employees, potential employees, contractors, volunteers, clients or any
other person involved in providing or receiving health care or related services.
Employees who become aware of harassment or discrimination are encouraged to
report it to their manager as it may impact on other employees as well as productivity
and working relationships. In all cases of harassment and discrimination, the
grievance procedures must be complied with, confidentiality maintained and the
principles of natural justice and procedural fairness applied.
2.
DEFINITIONS
Victimisation:
Victimisation is threatening or subjecting a person to any detriment on the ground that
the person has made or proposes to make an allegation or complaint, take proceedings
against another person, provide information in relation to a complaint or act as a
witness to a complaint.
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Victimisation includes any unfavourable treatment, such as aggression, refusing to
provide information, ignoring the person (which hinders their ability to perform their
duties), refusing to renew a contract of employment, or dismissal.
Harassment:
Harassment is defined as unwelcome, offensive, abusive, belittling or threatening
behaviour or language that has the effect of intimidating, offending or humiliating a
person. Harassment may be verbal, written, visual or physical in nature. Harassment
will usually be repeated behaviour, but can also consist of a single act. It is often
based on some real or perceived difference such as a person’s sex, sexuality, race,
disability, religion or age.
Harassment is based on the perceptions and feelings of the person to whom the
behaviour is directed. What is acceptable to one person may not be acceptable to
another. It depends on the reaction of the individual and the particular circumstances
that exist.
Harassment occurs if a reasonable person would anticipate that the person harassed
could be offended, humiliated or intimidated by an action. Grounds for harassment
can exist whether the harassment was intended or unintended.
Sexual harassment can be unwelcome sexual advances, requests for sexual favours
and other verbal and physical conduct of a sexual nature. It does not arise in the
context of mutual sexual attraction and flirtation, which is based on consent and is a
private matter between the individuals concerned and does not constitute sexual
harassment.
Racial harassment is an expression of attitudes, or behaviour, based on an assumption
of the superiority of one race or group of persons of colour, ethnic origin or culture
over another. Racism may also consist of what is not done, as well as what is done.
Examples of harassment can include:
 Insulting or threatening language and or gestures;
 Pictures, posters, graffiti, letters, e-mails, phone calls or written materials which
are offensive, threatening, obscene, abusive or objectionable;
 Offensive jokes, suggestions or derogatory comments about another’s racial or
ethnic background, gender, sexual preference, disability or physical appearance;
 Unwanted sexual or physical contact, such as kissing or touching;
 Intrusive questions or comments about a person’s sex life;
 Repeated sexual invitations or unwelcome love letters;
 Intimidation, abuse or assault;
 Persistent following within, to or from work (stalking);
 Dismissive treatment or material expressing prejudice or stereotypic assumptions
about the group to which a person may belong; and,
 Ignoring or excluding a person or group from normal conversation, work or work
related social activities.
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Department of Health, Prevention of Harassment & Discrimination Guidelines
Harassment is not…
The following are not considered to be harassment, provided they are done
appropriately, with respect, courtesy and patience:
 Appropriate requests to work;
 Appropriate monitoring of a person’s work;
 Asking questions about progress at work;
 Discussions with someone about repeated lateness for work or absenteeism;
 Discussions about performance; or
 Warnings about poor performance.
Discrimination:
Discrimination occurs when a person is being treated, or believes they are being
treated, less favourably than another because of an attribute, personal characteristic or
trait.
Direct discrimination occurs when a person is treated ‘less favourably’ on the basis of
an “obvious” attribute, which that person may possess (such as race or sex).
Indirect discrimination occurs when an apparently neutral rule, policy or practice
can, in effect, have an adverse impact on a particular group, and is not reasonable in
the circumstances.
Under the Equal Opportunity Act 1984 (WA) (as amended) it is unlawful to
discriminate on the grounds of:
 Race (colour, nationality, ethnic or national origin or descent, or the race of a
relative or associate);
 Sex (gender);
 Marital status (single, married, separated, divorced, widowed, de facto);
 Pregnancy;
 Impairment (physical or intellectual disability that is current, past or imputed,
or of a relative or associate);
 Religious or political conviction;
 Age (or of a relative or associate in some areas);
 Family responsibility or family status;
 Sexual and racial harassment;
 Gender history – refers to a person who identifies as a member of the opposite
sex by living, or seeking to live as a member of the “opposite sex” and who
has undergone a gender reassignment procedure; and
 Sexual orientation – refers to a person’s actual or imputed sexuality including
heterosexuality, homosexuality, lesbianism or bisexuality.
Examples of Discrimination:
The following are examples of possible areas of discrimination:
 Failure to provide physical access to a building or to different levels of a building
for people with disabilities;
 Inadequate signage for a person with a vision impairment;
 Inadequate parking facilities for vehicles used by people with disabilities;
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Requiring a person with a mobility disability to gain access through a distant side
entrance;
An employer’s policy of not allowing employees to work part-time indirectly
discriminates against people who have family responsibilities which prevent them
from working full-time;
Unfair processes to determine who should be offered employment; and,
Denying or limiting the employee’s access to opportunities for promotion, transfer
or training based on one of the grounds above.
Disability:
The definition of disability adopted by the Department of Health is taken from the
Disability Discrimination Act 1992. It includes physical, intellectual, psychiatric,
sensory, neurological and learning disability as well as physical disfigurement and the
presence in the body of organisms causing or capable of causing disease including
HIV/AIDS. It also includes a disability that presently exists, existed in the past but
now has ceased to exist, or may exist in the future, as well as a disability that is
imputed or presumed to a person.
It is important to note the broadness of this definition is not limited to someone who
has a physical disability.
Principles of Natural Justice:
The principles of natural justice require that employees:
 Have the right to know all details about any allegation made against them;
 Have the right to be provided with the full opportunity to be heard and present
their case;
 Will not be judged by the person making the allegation/s;
 Have the right to a fair and just decision- maker;
 Have the right to obtain the advice of a suitably qualified person; and
 Are to be given an opportunity to comment on the possible bias of any person
involved in the grievance resolution procedure;
Procedural fairness:
Procedural fairness (also know as due process) is the underlying principle to be
applied in all processes and procedures involved in investigating a complaint and
making a decision which will affect employees.
The principles of procedural fairness require that:
 Employees affected or at risk receive a fair and unbiased hearing;
 All parties to the matter have the opportunity to present their case and have their
argument considered before a decision is made;
 All relevant submissions and other information are considered before a decision is
made;
 Decision makers act fairly, without bias and in a timely manner;
 All persons are informed of the basis of a decision and any outcomes, so they can
respond to the issues considered by the decision-maker;
 Parties have the right to obtain the advice of a suitably qualified person to assist in
dealing with the complaint; and
 Parties have the right to review or appeal the outcome.
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Department of Health, Prevention of Harassment & Discrimination Guidelines
3. MANAGING COMPLAINTS
Employees wishing to make a harassment or discrimination complaint will be guided
by their agency/Health Service’s grievance resolution procedure.
For more
information about this procedure, contact your Human Resource Management
Department.
The responsibility for the resolution of complaints lies with line management if a
complaint is lodged either formally or informally. Managers and supervisors will be
guided by their agency/Health Service’s grievance resolution procedure.
Important things to remember about following grievance procedures:
 The principles of natural justice and procedural fairness are observed throughout
the grievance resolution process.
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It is generally preferable to attempt to resolve an issue informally as soon as
possible after the incident occurs. When this is not possible, a formal process may
need to be instigated.
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It is recommended that all parties make a detailed record of what has happened
(place, date, time, persons involved, what was said or done). Ensure that your
records are accurate.
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Complainants may withdraw their complaint at any stage if they feel they do not
wish to proceed with the action. In circumstances where the employer believes
that the behaviour may still exist, may impact on the work environment or other
employees or, is criminal in nature, the employer may pursue the matter of their
own accord.
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Where, at any stage of an investigation or resolution process the employer is
satisfied that a complaint is frivolous, vexatious, misconceived and lacking in
substance, the employer may by written notice to the complainant, dismiss the
complaint.
4. SUPPORT MECHANISMS
4.1 Employee Friend
At any stage of the resolution process, an employee, whether the complainant or
respondent, is entitled to request the presence of a support person known as ‘The
Employee Friend’ to provide support and advice during the investigative procedure, to
be witness to the discussions which take place and to accompany the employee to
interviews. The support person (Employee Friend) must maintain confidentiality at
all stages of the process.
4.2 Internal Support Network (such as Contact Officer, Grievance Officer or
Peer Support Officer)
The internal support network generally provides support and information for
employees who have a grievance relating to discrimination or harassment in the
workplace and informs complainants of the options available to them to resolve a
complaint. In some areas they may assist the employee throughout the process of
resolving the complaint.
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For details of the internal support network at your health service contact your Human
Resource Department.
4.3 Employee Assistance Provider
An Employee Assistance Provider is a free, confidential counselling service available
to all Health employees. Your Human Resource Department will be able to provide
details of the Employee Assistance Provider for your health service. Counselling may
assist you throughout the process of resolving the complaint.
4.4 External Agencies
You may access external agencies at any time, but are encouraged to try and resolve
the matter using internal processes first. External agencies you may wish to contact
include:
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Your Union
The Equal Opportunity Commission
The Human Rights Commission
The Ombudsman
The Police if it is a criminal matter
5. OUTCOMES
For most complainants a desirable outcome from making a complaint is for the
unwelcome behaviour to stop. The outcome may vary according to the nature and
seriousness of the incident, as well as policy and legal requirements.
In situations where the employer concludes that the complaint of workplace
harassment and/or discrimination is justified, disciplinary action may be taken against
an employee in accordance with relevant policy and legislation. The employer may
also be required to make changes in policies or practices. These changes may include
counselling and appropriate training for the alleged perpetrator to enable them to
recognise and take action to change their behaviour.
6. WHAT IF BEHAVIOUR IS NOT DEEMED TO BE HARASSMENT OR
DISCRIMINATION?
In many circumstances behaviour may not constitute harassment or discrimination,
but is still unacceptable or inappropriate behaviour. It may be considered a breach
of:
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The Public Sector Code of Ethics or Department of Health Codes of Conduct;
The Public Sector Management Act (Section 9); or
The Public Sector Standards in Human Resource Management (such as
recruitment and selection, performance management and secondment).
In these cases the employee may pursue the matter as a general employee grievance or
a breach of Public Sector Standards in Human Resource Management.
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7. WHAT TO DO IF SOMEONE COMPLAINS ABOUT YOU
Employees who have a complaint made against them have rights and responsibilities
in relation to the complaint resolution process. In addition to the principles of natural
justice and procedural fairness, the following shall apply to respondents:
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They will be treated as innocent until proven guilty;
They shall not be victimised for being the subject of a complaint;
They shall be able to nominate their own witnesses if there is an investigation into
the complaint;
They shall be able to have an “Employee Friend” present at any interviews or
meetings as part of the investigation process; and
They may have an interpreter present at an investigation interview if required.
MANAGER AND SUPERVISOR RESPONSIBILITIES
Managers and supervisors hold positions of responsibility in the organisation and as
such, they are required to ensure that all reasonable steps have been taken to eliminate
harassment and discrimination in the workplace. If managers/supervisors directly
observe or are aware of harassment and/or discrimination taking place, they should
not wait for a complaint to be made before intervening but should address the matter
as a priority.
All managers and supervisors are responsible for promoting a workplace free of
harassment and discrimination, and managing grievances, misconduct and
substandard performance issues involving harassment and discrimination in the
workplace.
In situations where the employer concludes that the complaint of harassment and
discrimination is justified, disciplinary action may be taken against an employee in
accordance with relevant policy and legislation.
Managers who fail to act on witnessed incidents or complaints and consequently
allow harassment and discrimination to continue are in effect condoning the
behaviour. This is not acceptable and may lead to disciplinary action being taken
against them.
Under legislation an employer who does not take suitable precautions to prevent or
resolve cases of harassment and discrimination may be liable for any physical or
psychological injury suffered by the victim. An employer may be required to pay
penalties, pay compensation to the victim or make adjustments to the workplace to
prevent future occurrences.
Managers and supervisors have responsibility to:
 Ensure their own conduct is above reproach and that they are aware of the
behaviour of others for whom they have supervisory or management
responsibility;
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Ensure all staff are aware of the Department of Health Prevention of Harassment
and Discrimination in the Workplace Policy and understand processes for dealing
with complaints;
Ensure staff have the necessary knowledge, skills and support to make or resolve
complaints;
Encourage and facilitate the participation of employees in educational programs
designed to identify and eliminate harassment and discrimination;
Monitor the workplace environment for symptoms of potential harassment and
discrimination such as isolation and unexplained absences from work;
Take action to prevent and stop behaviour which may be offensive or
intimidating;
Maintain detailed written records of the management and resolution of complaints
of harassment and discrimination in confidence;
Follow establish grievance procedures when dealing with any complaints of
harassment and discrimination; and
Ensure that persons making a complaint of harassment and discrimination are not
victimised either immediately or anytime after the complaint has been resolved.
In most cases the Department does not have the right to intervene in harassing or
discriminatory behaviour that occurs outside of working hours. An exception to this
would be interactions between work colleagues where there is sufficient connection
with their employment, for example, an office party, business travel and
accommodation, or use of a work related facility such as a computer or mobile phone.
9. HOW TO PREVENT HARASSMENT AND DISCRIMINATION
Prevention strategies that managers may adopt include (but are not limited to) the
following:
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Provide education and awareness programs;
 Ensure all employees are familiar with the requirements of Department of
Health policies and guidelines, particularly the grievance resolution
procedures;
 Encourage all employees to attend formal awareness raising sessions;
 Encourage managers and supervisors to attend appropriate training;
Adopt open systems of communication at all levels to enable employees to voice
any concerns they may have;
Look for warning signs, such as negative relationships between employees, low
morale, high turnover and absenteeism;
Stop inappropriate behaviour, such as teasing which may develop into harassment,
as soon as it occurs;
Encourage employees to report any incidents of harassment or discrimination;
Ensure complaints are dealt with promptly and effectively and appropriate action
taken against offenders. This will demonstrate to all employees that the employer
will not tolerate such behaviour; and
Encourage employees to undertake exit interviews and follow up on any concerns
raised by them regarding another employee/manager.
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