Workplace Violence: An employment perspective - OH&S, harrassment and an employer's obligations

Workplace violence is unacceptable in all workplaces. How an employer reacts to violence in the workplace is not only critical for complying with its occupational health and safety obligations, but also for meeting obligations of fairness under industrial legislation.

The relationship with occupational health & safety

With the obligation on employers to ensure a safe workplace, an employer needs to take any breaches of safety by an employee seriously. This requires not only proper management of employees but employment policies that reflect the seriousness of such breaches especially when it comes to workplace violence.

Employment and occupational health & safety policies and practices need to be consistent and compatible. For example, a "no-bullying" policy must be supported with appropriate disciplinary measures that leave room for an employer to comply with both safety and industrial obligations.

Responding to violence

When faced with violence in the workplace an employer must respond. Complaints must be taken seriously; not to do so risks a claim and potentially the employer can be liable for the conduct of the harasser.

• Treat all matters seriously and respond promptly to any complaint;

• Thoroughly investigate any incident of violence;

• Communicate the process of handling the complaint;

• Ensure confidentiality and sensitivity in dealing with any complaint; and

• Document the process.

After an investigation how ought an employer respond? Examining some unfair dismissal cases reveals the answer lies in the particular circumstance rather than the text book.

Threats of violence

Threats of violence can justify the dismissal of employees. The difficult question is whether one threat would justify instant dismissal or whether a warning or counselling is the appropriate response.

• The dismissal of an employee for telling an employer over the phone "I am going to make you and your business go bankrupt" and "I will get you" was found to be fair. The behaviour was intimidatory and abusive (Ippolito v Oliver Pty Ltd (2003));

• The dismissal of an employee for threatening a supervisor by shouting "I kill you" was unfair because the employee had been subject to harassment, bullying and threats from the supervisor (Banh v Bridgestone TG Australia Pty Ltd (1998)).

Fighting

Fighting in a workplace is usually viewed as serious enough to warrant the summary dismissal of an employee in most circumstances.

The general attitude of industrial tribunals has been, in the absence of extenuating circumstances, that a dismissal for fighting will not be unfair. Extenuating circumstances may include, the circumstances of the fight, whether the employee was provoked, the length of service of the employee and their work record. Let’s illustrate:

• The dismissal of two employees for fighting 25 metres above the ground was found by the Full Bench of the AIRC to be fair (Demir v Holden Limited (2002));

• The dismissal of a provoked employee for assaulting a fellow employee was unfair, especially where the other employee who instigated the fight was sent to an anger management course (Milton v TransAdelaide [2003] SAIRC 15).

Harassment

Similar to fighting in the workplace, harassment is viewed as serious enough to warrant dismissal especially where it involves sexual harassment. In Markham v Grain Corp Operations Limited (2002) an employee was dismissed for banging on a fellow employee’s hotel room door and shouting "fuck the bitch, fucking slut". The Full Bench of the AIRC found the dismissal to be fair.

Sexual harassment is unlawful under discrimination legislation. Without adequate policies and proactive action taken by an employer to eliminate such conduct, an employer will be liable for the sexual harassment by co-workers.

Managerial harassment

Management can be the cause of workplace violence. While a manager can manage, an aggressive and abusive manager will be engaging in conduct that could reasonably be expected to make a person feel threatened or uncomfortable. As one judge has commented:

"In today’s Australian community it is not acceptable for a person in authority over another in a workplace to harass, belittle or demean that other as a means of enforcing [their] authority or relieving [their] frustration"

Policies need to equally apply to managers as they do employees.

Other employment consequences

Aside from the loss of productivity and increased absenteeism, allowing workplace violence to continue in the workplace may force an employee to resign. That employee may then claim a constructive dismissal and seek compensation.

What further action may an employer be required to take?

Other than dismissal an employer may need to respond with other action that is more appropriate in the circumstances, such as:

• Providing counselling to employees;

• Transferring an employee to another part of the workforce;

• Reporting the incident to the police;

• Increase security measures at the workplace; and

• In extreme cases, obtain, or assist in obtaining, an apprehended violence order against the perpetrator.

Conclusion

The gut instinct in responding to workplace violence is to dismiss. But simply dismissing an employee will not be sufficient discharge of occupational health and safety obligations and may result in a breach of an employer’s industrial obligations. The solution can be found in proper instruction, clear policies and training.