Unfunny Jokes: Take Action!
In this article, we examine a recent case which demonstrates how jokes and pranks in the workplace, left unchecked, can amount to sexual discrimination and harassment. We then provide practical suggestions for establishing and maintaining an appropriate workplace culture.
In the recent case of Sharma v QSR Pty Ltd t/as KFC Punchbowl [2009], the Complainant alleged that her supervisor at a KFC Restaurant, Mr Matic, had subjected her to sexual harassment and sexual discrimination. The complaint against Mr Matic included allegations of him asking the Complainant to swim nude with him on Bondi beach, pulling the Complainant along the ground by her leg, purring at her like a cat, showing her pornographic images on his mobile phone and giving her boyfriend pornographic material in her presence. The complainant was seventeen years old at the time of the alleged incidents and Mr Matic was approximately twice her age.
One witness said that Mr Matic used to “talk that dirty talk with everyone in the store the same, he was just really funny” and that he made “filthy comments” all the time in the workplace.
The complainant lodged a complaint against Mr Matic for sexual harassment which was settled. She also lodged a complaint of sexual harassment and sex discrimination against her employer, QSR Pty Ltd which was subsequently decided by the Administrative Decision Tribunal of New South Wales in June 2009.
The company, in its defence, contended that it had not authorised Mr Matic to sexually harass the complainant and had taken all reasonable steps to prevent Mr Matic engaging in any unlawful conduct. However, one of the company’s own witnesses gave evidence that Mr Matic frequently “talked dirty”, walked around the workplace watching pornography on his mobile phone and showed other staff pornography on his mobile phone.
The Administrative Decision Tribunal of New South Wales found that the allegations regarding the Bondi beach and leg pulling incident were substantiated and constituted sexual harassment. The Tribunal was satisfied that the conduct was of a sexual nature and was unwelcome. The Tribunal was also satisfied that an ordinary reasonable person would consider that the Complainant would be offended, humiliated or intimidated by such conduct.
In addition to the complaint being substantiated, the company was found to be vicariously liable for the unlawful conduct of their employee, Mr Matic, for not taking all reasonable steps to prevent the sexual harassment and sexual discrimination and had also authorised the behaviour of Mr Matic by seemingly allowing Mr Matic’s behaviour to go unchecked.
Specifically, the Tribunal made the following comments which indicate how a failure to monitor and intervene in relation to inappropriate behaviour may constitute both authorising bad behaviour and failing to take reasonable steps to prevent unlawful sexual harassment:
“While the respondent provided some training and had a policy there is little evidence that this policy was enforced and consequently it was ineffective in preventing Mr Matic’s conduct”.
While a grievance procedure is important it is not sufficient for an employer to rely on young employees to make complaints about those who manage them. We note the evidence of Mr Chandra that 60% of QSR employees are 15-18 years old. Consequently, there are many young people in their workforce. Given the age group many, like Ms Sharma, are likely to be in their first jobs.
In our view there were insufficient mechanisms to monitor the Assistant Manager’s conduct. The training and monitoring at the management level were insufficient to pick up Mr Matic’s conduct and to ensure that management could be proactive about addressing the conduct as soon as it was manifested.
We do not consider that the employer expressly authorised the unlawful conduct. However Mr Matic was able to go about the workplace openly “talking dirty”, showing employees pornography and engaging in unlawful sexual harassment seemingly unchecked. After carefully considering the evidence we are satisfied that the respondent’s failure to identify and address the conduct of Mr Matic constitutes authorising that conduct by implication”.
The Tribunal was, therefore, not satisfied that the respondent took all reasonable steps to prevent Mr Matic from contravening the Anti-Discrimination Act. The Tribunal awarded the complainant $15,000 to compensate her for the injury to her feelings and the distress she suffered as a result of the unlawful conduct.
Tips And Traps For Avoiding Vicarious Liability And Improving Workplace Culture
This case is the latest example of how a lack of monitoring and intervention can lead to problems for employers. Without giving legal advice, vicarious liability can be reduced or avoided altogether if the employer can show that they took ‘all reasonable steps’ to prevent the sexual discrimination and/or harassment, including a range of proactive and ongoing interventions.
Specific steps and interventions include:
- Staff orientation programs which comprehensively cover information on the employer’s equal opportunity and anti-discrimination policies.
- Regularly reviewing policies to reflect current anti-discrimination legislation which are readily available to employees.
- Employees are fully briefed on those policies and receive regular equal opportunity and anti-discrimination policy and legislation training. As part of that training, employees should be trained on how to conduct themselves appropriately within the workplace and should be made aware that inappropriate conduct could result in dismissal from the workplace. The policies should be regularly implemented through communication and training.
- Employers should strive to create a positive workplace environment where inappropriate behavior in the workplace is not tolerated.
- Employers intervening to deal with inappropriate behavior they witness.
- Where there are allegations of sexual discrimination and/or harassment, complaints are managed appropriately and swiftly investigated and the relevant policies enforced.
- Supervisors in a workplace with young employees should not only be trained appropriately but also monitored to ensure they are acting appropriately to enable management to respond quickly and proactively to any concerning and potentially unlawful behavior.
