Employment and Migration Blog

Tag: Sexual Harassment

  • Tis the season to be jolly!! Well, only if you have key workplace policies in place
    Posted by Anna Ford on 15 Dec 2014
    Christmas is always an exciting time and for many it’s the start of various festivities, catch-ups and of course the annual work Christmas party!!!
  • Sistine Chapel...Part 2
    Posted by Stephen Booth on 11 Mar 2013
    In my last post, I reported on a visit to the Sistine Chapel, and focused on the ceiling but there is much more to the Chapel than that, since most of the wall space is filled with wonderful 16th century paintings in jewel-bright colours. The most dramatic occupies the whole end wall, Michelangelo’s Last Judgment, painted 1536-41, more than twenty years after he painted the ceiling frescos. This is full of swirling energy and turmoil, with Christ hurling sinners into hell and raising the saved to paradise. It takes some effort to shift from the movement in the overall image to focus on the details - but when you do, one point in the bottom right corner has particular employment law resonance. In Hell, there is a portly figure with donkey’s ears and a large snake curled around him to cover his nakedness (actually, it is worse, but as this is a respectable professional blog I’ll leave it at that).  This is Minos, judge of the underworld, receiving the souls of the damned.  As a model, Michelangelo used Biagio de Cesena, the Pope’s Master of Ceremonies at the time, presumably without consent.  Michelangelo was always an irascible character, and Biagio was his loudest critic and objected to the many nude figures which Michelangelo included – but had his revenge in perpetuity.
  • Workplace bullying in legal terms
    Posted by Stephen Booth on 7 Sep 2012
    A prominent Melbourne employment lawyer, Josh Bornstein, has suggested that we need to rethink how we deal with workplace bullying in legal terms. He says, surely correctly, that the “Brodie’s law” approach, criminalising bullying as akin to stalking, is more symbolic (and legislative “feel good”) than of real benefit, in the vast majority of cases. And he argues that we will never make headway against workplace bullying while it is perceived as a safety issue, essentially because an OH&S focus addresses processes and implementation, and in rare cases penalties for a business that handles a bullying issue very badly, but there is generally no private right of action. But would a much broader right to make a claim about bullying be suitably calibrated to address genuine cases, or would it open floodgates to many cases that are more about general disgruntlement or workplace politics than seriously inappropriate behaviour? As we’ve seen with unfair dismissals, despite the laudable goal to avoid imperatives for employers to pay “go away money”, the simple fact is that wherever there will be costs in money and time to defend claims, money will be paid to make them go away, even in cases of low merit.  And defining bullying for the purposes of a right to make a damages claim would be a particularly perilous minefield. And what that approach ignores is that real cases of bullying generally involve deep-seated cultural issues and behavioural traits of the workplaces, bully and victim.  Might we not achieve more by focussing directly on those?  Of course, in the short and medium term, that will work in decent workplaces but not reach the toxic ones.  And discrimination legislation has certainly permeated everyone’s consciousness because of the risk of claims.  A right of action for bullying might do the same, but at what cost?
  • Crashing and burning
    Posted by Stephen Booth on 7 May 2012
    There was a flurry of media attention in 2008 when Vivienne Dye launched claims against Commsec and the Commonwealth Bank, alleging persistent predatory sexual harassment (in some instances alleging conduct amounting to rape) by two named managers. The managers’ reputations were trashed. However, in the long run it is Ms Dye who has crashed and burned, as the Federal Court dismissed all her claims last month, after a case lasting 94 hearing days! The decision includes many details which would seem far fetched if you read them in a novel, including Ms Dye attending a work party wearing a white fur G-string – as you do!
  • What do David Jones and the NSW State of Origin team have in common? Lessons on discrimination and harassment
    Posted by on 10 Dec 2010
    Within the space of a week, both have been rocked by scandals, “out of the blue” according to media reports, arising from “conduct unbecoming” – abuse based on race in one case, and sexual harassment by a senior employee of a subordinate in the other.