Workplace harassment is unlawful when someone is made to feel offended, intimidated, insulted or humiliated because of characteristics specified under anti discrimination laws and other legislation such as the Fair Work Act.
The definition of harassment, only takes into consideration how the receiver felt and not the intentions of the person exhibiting the harassing behaviour/s. So even if the behaviour, joke or action seemed harmless or was meant to be just a passing comment or a bit of fun, the allegation of harassment may still be substantiated.
The behaviour only needs to happen once and does not need to be of a repetitive nature (as it is for the definition of bullying) for the behaviour to be considered harassment.
Because the majority of unlawful harassing behaviour in the workplace is subtle, indirect, and sometimes non-verbal in nature, the recipient while feeling the uncomfortable effects may have difficulty in explaining the situation to a manager. The flow on effect of this is that the manager may not take the complaint seriously and no action is taken. Conversely, if the complaint is investigated an inexperienced investigator is likely to find no grounds on which to substantiate the allegation and so the unlawful behaviour continues. This places all parties in a precarious position. Conflict and absenteeism are likely to escalate and work productivity decrease. The offender and management could also face the possibility of convictions and penalties if the recipient reports such behaviour to an external organization which investigates the situation finds the allegation/s substantiated.
We suggests that to minimise the risk of employees exhibiting unlawful behaviour, organisations need clear and detailed policies, procedures and expectations regarding respectful behaviour. All staff should attend a suitable training session (on the prevention of discrimination, harassment and bullying) of at least one hour with all managers/supervisors attending an advanced course to better understand their responsibilities especially in relation to vicarious liability and complaint handling.
If organisations are having difficulty (in terms of time or skill) in investigating harassment or bullying complaints, engaging an external body (like Workplace Conflict Resolution) to professionally conduct the investigation can prove to be a wise and cost effective decision.