The Anti Discrimination Act (the Act) puts an onus on all employers to ensure that none of their employees are discriminated against or harassed while at work. Furthermore, an employer can be held liable for the wrongful acts of an employee (under a legal concept known as ‘vicarious liability’).

The Act does provide a defence against a claim and the only defence is that the employer did all it reasonably could to prevent the incident.

To be able to show you have done all you reasonably could requires certain things of you:

  • You must have in place a written policy that indicates the company recognises its obligations under the Act; outlines what constitutes discrimination or harassment; assures employees that any complaint will be taken seriously, be fully investigated and action taken, and that the employee will not be victimised as a result of lodging a complaint. A complaints procedure, which nominates a contact person, should also be spelled out. The policy should be reproduced on company letterhead, signed by the chief executive officer/owner and should be made known to all employees – either by individual or group discussion. An acknowledgement by each staff member that they have been made aware of their obligations and agree to abide by the policy should be obtained from all employees and retained in their staff file. New starters must also be taken through the same procedure at induction.
  • Once implemented, the policy must remain a ‘living’ document, i.e. you must be able to show that you remained conscious of your ongoing obligations by periodically reminding staff of the requirements of the policy.
  • The job descriptions of all managerial and supervisory staff should  include an obligation to be mindful of the discrimination/harassment policy and to take steps to address any issue as soon as they become aware of it and before it escalates into a complaint.
  • If a complaint is lodged you must be able to show you followed your stated policy to the letter.
  • A thorough investigation must be conducted that respects the privacy of the complainant and only involves persons who have a direct involvement or who may be witnesses to any alleged incident.
  • The person/s against whom the complaint has been lodged must be given both the details of the complaint and the opportunity to respond.
  • Action taken after the investigation might range from issuing a warning to one or more persons, demotion, dismissal (reserved for more serious offences) or, possibly, rejection of the complaint in the absence of any evidence to support the claim.
  • Every effort must be made to ensure the complainant is not victimised as a result of lodging the complaint, particularly where the complainant is junior to the person who allegedly is guilty of the harassment or discrimination.

Ted Kowalski

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