The key risk for employers is that where inappropriate behaviour is allowed to persist, this can create an unsafe working environment for staff and negatively impact customer service. Further, the business may be held vicariously liable for the actions of the offending employee, unless it can demonstrate it took “reasonable precautions” to prevent the offending behaviour from occurring.
There are, however, simple and straightforward measures an employer can implement in order to minimise the risks of these types of behaviours taking place and keep all their staff safe, supported and happy in the workplace.
1. Understand what constitutes inappropriate behaviour in the workplace
Inappropriate behaviour in the workplace can take many forms and protections arise under both state and federal legislation.
It can be overt instances of sexual harassment and direct discrimination, or other behaviours which are more subtle and difficult to detect. It can even extend beyond the workplace, with employees acting inappropriately towards a colleague out of hours, or making unacceptable comments on social media.
Only when employers are aware of the full spectrum of inappropriate workplace behaviours can they protect their employees, and their businesses, from the associated risks.
2. Set expectations regarding appropriate workplace behaviour
Employers need to recognise that employees come to the workplace with differing and diverse values, experiences and expectations. As such, it is important to set expectations regarding appropriate workplace behaviour from the outset of employment.
As a bare minimum, having appropriate workplace behaviour policies and a code of conduct can serve to clarify expectations, and in turn prevent inappropriate behaviour arising. Those policies should set out:
- What constitutes inappropriate and unlawful behaviours;
- Examples of those behaviours;
- The consequences of engaging in appropriate behaviour; and
- Processes for reporting inappropriate behaviour (both internally and externally).
Employees should be required to familiarise themselves with these policies in order to understand the standards of behaviour they are expected to model, and how to report issues that may arise.
3. Provide employees regular training on appropriate behaviour
It’s not enough to simply implement policies and take no further action. All employees should be provided with regular training on appropriate workplace behaviour. The training should confirm the contents of policies, and ideally include case studies or quizzes so employees are genuinely engaged in the process. Refresher training should be carried out at regular intervals, at least every two years.
This serves to reinforce the business’ expectations around appropriate workplace behaviour. Attendance at training should be mandatory for all staff (regardless of seniority) with records of attendance maintained.
4. Managers need to lead by example
Employers should also consider providing specific training to managers. Managers are at the frontline of interactions with staff and the decisions they make have the capacity to both create and minimise legal risks for businesses.
It is important to train managers in conduct management processes and ensure they understand the implications of taking, or failing to take, certain actions when an employee is behaving inappropriately.
In particular, they should understand their role to identify and address inappropriate workplace behaviours, and also to ensure that management action is delivered in a reasonable manner.
5. Be available and quick to respond to complaints
All complaints should be taken seriously. That does not mean that all complaints will be taken on face value to be proven. Rather, each complaint should be considered objectively and dealt with appropriately.
Failure to demonstrate to staff that complaints are being taken seriously can damage overall workplace morale and may create a toxic culture. Additionally, it can heighten legal risk if the employer is found to have adopted a cavalier approach in responding to legitimate concerns raised regarding inappropriate workplace behaviour.
In rare cases, false or vexatious complaints may be made. If, following appropriate inquiries, there is clear evidence that an intentionally false complaint was made, employers may have grounds to take disciplinary action against the person making the complaint. Employers should exercise caution in doing so, to ensure the disciplinary action is not unlawful “adverse action” or victimisation.
6. Understand how and when to investigate
In appropriate circumstances, employers may determine that an investigation is necessary in response to a workplace complaint. This can be done internally or may be referred to external investigators. Employers should retain the discretion to determine whether an investigation into a particular complaint is warranted and, if so, how the investigation is to be conducted.
Investigations should be considered whether the complaint is made formally or informally. Even where an employee is “just bringing something to your attention”, employers may have a duty of care to act if the allegations are sufficiently serious.
Investigations should, in any case, be handled with care and precision, ensuring procedural fairness and maintaining confidentiality at all times, even after the investigation is complete.
7. Maintain and follow disciplinary procedures
Once the complaint-handling process is complete, the employer will need to determine the appropriate disciplinary action. Potential disciplinary outcomes can include any or a combination of the following:
- Informal counselling;
- Training for all staff (or individuals);
- Written warning;
- Termination of employment;
- Referral to mediation between or among employees;
- Reporting to external bodies, such as the police.
Importantly, any documented disciplinary procedures should retain some flexibility so the employer is not confined to follow rigid processes in all cases, and managers can exercise some discretion as appropriate to the circumstances.
Any disciplinary action (whether formal or informal) should be documented and communicated sensitively and confidentially.
Ultimately, prevention is better than cure. Consistently reinforcing expectations regarding appropriate workplace behaviour, and responding appropriately, will assist retail employers to foster respectful and thriving workplaces, while also managing legal risk.
Georgie Chapman is a workplace relations and safety lawyer at HR Legal, which works with many organisations in the retail industry. www.hrlegal.com.au