What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 20 July 2020 – 26 July 2020

Research Shows Performance Management Can Lead to Bullying Claims

Michelle Tuckey, professor of work and organisational psychology at the University of South Australia, said that ‘performance management’ is a ‘breeding ground’ for bullying claims against managers. Performance management occurs when a manager or supervisor gives feedback on an employee’s performance. Tuckey’s research ‘analysed 342 bullying complaints lodged with SafeWork SA.’ She said that ‘[h]ow performance is managed was by far the highest risk area in work-related issues.’ Professor Tuckey explained that it’s not uncommon for people to misinterpret performance feedback as bullying. Tuckey noted that Safe Work Australia defines bullying as ‘repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.’ She argues that the ‘unreasonable’ component of the definition makes bullying tricky to classify. This is because ‘there is a bit of a ‘reasonable person’ test,’ which can be subjective. Despite subjectivity and uncertainty in the definition, Professor Tuckey said that there are factors to look out for which indicate bullying. An important one being where there is a power imbalance between employees. Professor Tuckey noted that power imbalances commonly show up in ‘everyday ways.’ Tuckey also said that bullying can show up in the form of exclusion, verbal and physical abuse and hazing. It is necessary, however, that these behaviours are ‘repetitive and persistent’ before they can be classified as bullying. Being verbally insulted once or twice may not be acceptable, but it won’t be classed as bullying. In giving her advice to managers, Professor Tuckey said that where performance feedback is delivered reasonably and respectfully, that it isn’t bullying. ‘A lot of [it] comes down to the way it’s done. If it’s not done well, sometimes people will feel bullied,’ Professor Tuckey said.

South Australian Legal Profession Committed to tackling Sexual Harassment and Bullying

Supreme Court Acting Chief Justice Trish Kelly recently presided over a meeting with key stakeholders to discuss ways to tackle inappropriate behaviour in the legal profession. The stakeholders included the Law Society of South Australia, the Women Lawyers Association of South Australia, the Australian Association of Women Judges and the Adelaide Law School. The meeting agreed on various measures including development of the complaints process, a need for the issue to be tackled in law schools and compulsory professional development and training for all lawyers. The new complaints process will allow South Australian legal practitioners to confidentially report workplace bullying or harassment and receive proper support and counselling. ‘The meeting also recognised a need for ongoing training for all practitioners to be undertaken annually and an acknowledgement of their understanding of the obligation they have in reporting inappropriate behaviour,’ a statement from the Courts Administration Authority said. ‘The training would include an individual’s responsibility, either as an employer or an employee or simple bystander, in relation to instances of bullying and sexual harassment,’ the statement continued.

Federal Court Overturns Previous Courts Finding Regarding Uni Employee Breaching Code of Conduct

Last week, the Full Federal Court handed down its decision in the Peter Ridd case. Finding in favour of Mr Ridd’s employer, the Federal Court held that James Cook University did not act unlawfully when it sacked the controversial academic for serious misconduct in 2018. This finding overturned the decision of federal circuit court judge Salvatore Vasta, who previously awarded Mr Ridd $1.2m in compensation and found that his sacking breached workplace laws. Ridd, who famously held controversial views about climate change and the health of the Great Barrier Reef, maintained that the case was about academic freedom and the validity of minority and controversial views. However, James Cook University instead argued that it had never sought to silence Ridd and that his sacking was due to ‘serious misconduct’ and breaches of the University’s code. The allegations against Mr Ridd included that he had ‘denigrated a colleague, disclosed confidential information’ and ‘failed to take reasonable steps to avoid or manage a conflict of interest between [Ridd’s] own interests and the interests of the Institute of Public Affairs and the interests of the university.’ In the judgment published last Wednesday, justices John Griffiths and Sarah Derrington found Ridd’s enterprise agreement did not give him an ‘untrammelled right’ to express professional opinions beyond the standards imposed by the university’s code of conduct. The Institute for Public Affairs, a right-wing think tank and one of Mr Ridd’s most staunch organisational supporters, described the judgment as a ‘devastating blow for mainstream Australians.’