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Mature Workers: 4. Help for Employers

Mature Workers:

4. Help for Employers

Tackling discrimination and harassment in the
workplace is legal obligation for all employers – but it’s also good
for business. It can help you get the best for person for the job and reduce the
potential for costly complaints and disruptions.

The Age Discrimination
Act protects older and
younger workers from unfair treatment in the workplace on the basis of their
age. Federal laws also protect people from discrimination on a range of other
grounds, including their sex, race or disability.

Discrimination can happen when decisions are made
about recruitment, training, promotion, terms and conditions, redundancy and
dismissal. It can also occur in the day-to-day workplace environment between
staff or between staff and supervisors.

The following information provides employers with
practical ideas for preventing discrimination and building a positive, cohesive
workplace.

More
information

Visit our Reports and
publications page for
other useful information or the Commission’s Information for
Employers portal.

4.1 Recruitment and
selection

It’s important to get the right person for
the job.

The following strategies will help you develop a
consistent method of recruitment, encourage applications from the widest
possible pool of people and meet your obligations under federal
anti-discrimination laws.

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format

Selection
criteria

  • Develop selection criteria which are consistent
    with the actual job requirements and duties.
  • Clearly distinguish between
    ‘essential’ criteria (those that the person must satisfy to be able
    to do the job) and ‘desirable’ criteria (those that will help to do
    the job)
  • Determine whether formal qualifications (academic,
    trade, etc) are essential to the job.
  • Ensure that certain skills – length of
    experience, age, English language ability, etc – are essential for
    performance of the job and not arbitrary or based on stereotypes.
  • Be specific when describing the skills required
    – for instance does, 'communications skills' refer to talking on the phone
    to customers, writing reports for management, instructing technical operators or
    discussing issues as part of a team?
  • Determine how criteria will be assessed, such as
    interview, referees' report, work record, testing.

Advertising

  • Develop a strategy that will reach the widest pool
    of applicants possible (e.g. internal applicants, informal networks, community
    groups, industry groups, trade journals, online services, ethnic media, etc ).
  • Ensure the information in the advertisement
    matches the selection criteria.
  • Do not use discriminatory language or requirements
    (e.g. 'age 30-45 years').
  • If used, ensure recruitment consultants are fully
    briefed on your requirements and have a good understanding of equal opportunity
    and anti-discrimination principles.

Short
listing

  • Develop a priority list for selection criteria and
    apply this consistently to all applications.
  • Short list applicants firstly on essential
    qualifications and then on desirable qualifications.
  • Seek more information from applicants, if
    necessary.
  • Document the decisions you make and the reasons
    for them.

Application
forms

  • Do not include any invasive or irrelevant
    questions.
  • Ensure strict confidentiality.

Testing

  • Testing should match the essential requirements of
    the job.
  • Check that tests are up-to-date and relevant.
  • Check for any bias or indirect discrimination
    (e.g. a test for potential trades apprentices which examines prior knowledge of
    the trade rather than aptitude).

Interviewing

  • Check if any applicants require specific
    arrangements to participate in the interview (e.g. physical access,
    interpreters, etc).
  • Have questions prepared in advance.
  • Ensure consistency and fairness in questioning.
  • The selection panel is entitled to ask applicants
    whether they can meet the requirements of the job (travel, work overtime,
    physical duties, etc).
  • It is also appropriate to ask people with a
    disability if they require any adjustments to be made in order to perform the
    job.
  • Don't make assumptions about a person's ability to
    do the job based on physical characteristics.
  • Do not ask invasive and irrelevant questions.
  • Keep records of questions and answers.

Referee
reports

  • Be consistent in contacting and collecting
    information from referees.
  • Develop a standard referee reporting form which
    matches the selection criteria.

Making the
decision

  • Focus on the selection criteria.
  • Rank applicants according to performance against
    essential and desirable requirements.
  • Assess all information – application form,
    interview, referee's reports, tests, etc.
  • Make a record of the decisions made and the
    reasons for them.
  • If requested, provide constructive feedback to
    unsuccessful applicants on their performance against the selection criteria.

Medical
examinations

  • It is appropriate for applicants to be medically
    examined if there are potential health risks involved in performing the job.
  • Provide the medical examiner with the job
    specifications so any recommendation made relates specifically to the job.
  • Ensure only information relevant to the position
    is sought.
  • The selection committee and medical examiner
    should be aware of technical equipment and other reasonable adjustment
    provisions for people with disabilities.
  • If there is any concern about the ability of a
    person to perform a job, the Medical Examiner should seek expert advice and
    assessment.
  • Ensure strict confidentiality in seeking,
    receiving and storing medical advice.

4.2 Developing an
anti-discrimination policy

Whether you're running a small business or CEO of a
large company, it is vital that your staff have the information they need to do
their job well. The same is true when it comes to developing a cohesive and
productive workplace, free from discrimination and harassment.

An important first step is to
develop a policy which makes it clear that your workplace does not tolerate
discrimination and harassment. A written policy makes it clear to everyone what
sort of behavior is not acceptable.

It's important that all employees – including
paid and unpaid staff and contractors – are familiar with your
anti-discrimination policy.

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What to include in a policy

1. The policy should include a strong opening
statement on the organisation’s attitude to discrimination and
harassment.

The statement should say:

  • that the organisation is committed to ensuring
    that the working environment is free from discrimination and harassment
  • that discrimination and harassment will not be
    tolerated under any circumstances
  • that disciplinary action will be taken against any
    employee who breaches the policy.

To give the policy credibility and
maximum impact, the opening statement should appear above the signature of the
chief executive officer.

2. The policy should include an outline of the
organisation's objective to eliminate discrimination and harassment.

Employers may wish to say that their
organisation aims to:

  • create a working environment which is free from
    discrimination and harassment and where all members of staff are treated with
    dignity, courtesy and respect
  • implement training and awareness raising
    strategies to ensure that all employees know their rights and responsibilities
  • provide an effective procedure for complaints,
    based on the principles of natural justice
  • treat all complaints in a sensitive, fair, timely
    and confidential manner
  • guarantee protection from any victimisation or
    reprisals
  • encourage the reporting of behaviour which
    breaches the discrimination and harassment policy
  • promote appropriate standards of conduct at all
    times.

3. The policy should include a clearly worded
definition of discrimination and harassment.

“Discrimination and harassment
occur when a person is discriminated against or harassed in the workplace and in
certain areas of public life:

  • because of their race, colour, descent or national
    or ethnic origin, as defined under the Racial Discrimination Act 1975
  • or because of their sex, marital status, pregnancy
    as defined under the Sex Discrimination Act 1984
  • or because of a disability as defined under the
    Disability Discrimination Act 1992
  • or because of age as defined under the Age
    Discrimination Act 2004
  • and some grounds under the Human Rights and Equal
    Opportunity Act 1986.”

All states and territories have their own
anti-discrimination legislation and it may be appropriate to list the
legislation for your state at the end of this definition.

4. The policy should clearly state that everyone has
a role in ensuring workplace harassment and discrimination does not
occur.

It should emphasise the primary role of
the managers and supervisors in ensuring staff and clients are not harassed or
discriminated against within the workplace or “in connection with”
the person's employment. It should also highlight the responsibility of each
employee to not participate in discriminatory or harassing behaviour within the
workplace.

5. The policy should describe the likely consequences
of discrimination or harassment.

  • Ensure staff are aware of the consequences of
    engaging in discrimination or harassment. Establish a range of consequences,
    such as an apology, transfer or dismissal.
  • Where to get help if discrimination or harassment
    occurs
  • Ensure staff are provided with the names and
    contact numbers of nominated person(s) who have been trained to assist in the
    formal or informal resolution of complaints within the workplace.
  • Ensure staff understand how complaints procedures
    operate within your organisation.

Promoting the
policy

Getting staff familiar with the policy is crucial.
Here are some ideas.

  • Launch the policy at a staff meeting, with time to
    discuss the issues and answer questions
  • Place a copy in staff pay slips
  • E-mailing a copy to all staff
  • Publish a copy on the organisation’s
    Intranet
  • Display a copy on the staff notice
    board
  • Include a copy in personnel manual.

Employers should provide the policy to
new staff as a standard part of induction. Employers may want employees to sign
a copy of the policy acknowledging that they received and understood it.

Where possible and relevant, the policy should be
translated for people with a non-English speaking background.

4.3 Handling complaints
internally

Establishing a process to resolve complaints of
discrimination and harassment in a fair, timely and confidential manner is an
important part of fulfilling your legal responsibilities as an employer and
minimising disruptions to your workplace.

Complaints can be made internally to a supervisor,
harassment contact officer, EEO office or industrial relations manager, or
externally to the Australian Human Rights Commission or your state or
territory anti-discrimination agency.

Making a complaint is a serious matter and both
parties involved may feel anxious or uneasy about what lies ahead. Whether the
complaint is made internally or externally, trained staff should be available to
ensure the issues and complaint processes are fully understood so that
complainants can make informed decisions every step of the way.

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Handling
complaints internally

Getting
started

Employers should establish
internal complaints procedures for dealing with discrimination and harassment
complaints to maximise the possibility of in-house resolution. There is no one
'right' internal complaints procedure - so employers have the flexibility to
design a system that suits their organisation's size, structure and resources.

Because of the variables that can arise in
discrimination and harassment cases (e.g. the severity and complexity of the
allegations, relative seniority of the parties, whether the allegations are
admitted or denied), employers should offer staff both informal and formal
complaint procedures.

Employers can establish a specific procedure for
discrimination and harassment complaints or, alternatively, use the procedure
that is already in place for other types of work-related grievances. However,
discrimination and harassment complaints can be complex, sensitive and
potentially volatile.

Anyone who has responsibility for dealing with them
will require specialist expertise and should receive appropriate training.

Informal complaint
procedures

Informal procedures focus on
resolving a complaint rather than factually proving or substantiating the
complaint.

Informal ways of dealing with complaints of
discrimination and harassment can include:

  • the individual who has been discriminated against
    or harassed wants to deal with the situation themselves but may seek advice on
    possible strategies from their supervisor or another officer (e.g. harassment
    contact officer, EEO officer, industrial relations manager, etc.)
  • the individual who has been discriminated against
    or harassed asks their supervisor to speak to the alleged harasser on their
    behalf. The supervisor privately conveys the individuals concerns and reiterates
    the organisation's policy to the alleged perpetrator without assessing the
    merits of the case
  • a complaint is made, the alleged harasser admits
    the behaviour, investigation is not required and the complaint can be resolved
    through conciliation or counselling
  • a supervisor or manager observes unacceptable
    conduct occurring and takes independent action even though no complaint has been
    made.

Informal action is usually appropriate
where:

  • the allegations are of a less serious nature, but
    the individual subjected to the behaviour wants it to cease nonetheless
  • the individual subjected to the behaviour wishes
    to pursue an informal resolution
  • the parties are likely to have ongoing contact
    with one another and the complainant wishes to pursue an informal resolution so
    that the working relationship can be sustained.

An employee should not be required to
exhaust informal attempts at resolution before formal action commences.
Employees have the right to formalise their complaint or approach an external
agency, such as the Australian Human Rights Commission, at any stage.

For specific information see the guide Informal
resolution of complaints by managers or
supervisors.

Formal complaint
procedures

Formal complaints procedures
focus on looking at whether a complaint can be substantiated, or at least
whether the parties can be brought together to try and reach a satisfactory
outcome.

Formal complaints procedures usually involve:

  • investigation of the allegations
  • application of the principles of natural justice
  • making a finding as to whether the discrimination
    or harassment occurred or whether it is likely it has occurred
  • submitting a report with a recommended course of
    action to the appropriate decision-maker (senior management)
  • implementation of an appropriate outcome.

Formal procedures are usually appropriate
where:

  • informal attempts at resolution have failed
  • the person alleging discrimination or harassment
    has been victimised
  • the complaint involves serious allegations of
    misconduct and informal resolution could compromise the rights of the parties
  • the complaint is against a more senior member of
    staff - formal procedures may help to ensure that the complainant is not
    victimised or disadvantaged
  • the allegations are denied and the person who
    claims to have been harassed wishes to proceed and investigation is required to
    substantiate the complaint
  • the person alleging discrimination or harassment
    wishes to make a formal complaint from the outset.

Steps involved in a formal
complaint

To ensure consistency and
fairness, employers should document the steps involved in a formal complaint.
The usual sequence of events is:

  • the complainant is interviewed and the allegations
    are particularised in writing
  • the allegations are conveyed to the alleged
    perpetrator in full
  • the alleged perpetrator is given the opportunity
    to respond and defend themselves against the allegations
  • if there is a dispute over facts, statements from
    any witnesses and other relevant evidence are gathered
  • a finding is made as to whether the complaint has
    substance
  • a report documenting the investigation process,
    the evidence, the finding and a recommended outcome/s is submitted to the
    appropriate decision-maker (senior management)
  • the decision-maker implements the recommended
    outcome/s or decides on an alternative course of action.

The parties should be permitted to have a
union official, support person, advocate or other representative accompany them
to any interviews or meetings.

Consideration of
evidence

A formal complaint should not
be dismissed on the ground that no one saw or heard the incident/s occur. Given
the nature of the offence, there are often no direct witnesses to alleged acts
of discrimination and harassment. Those responsible for investigating complaints
should consider all available evidence, including any surrounding evidence.

The following type of evidence may be relevant:

  • supporting evidence provided by a medical
    practitioner, counsellor, family member, friend or co-worker
  • supervisors reports and personnel records (e.g.
    unexplained requests for transfer or shift changes, sudden increase in sick
    leave)
  • complaints or information provided by other
    employees about the behaviour of the alleged perpetrator
  • records kept by the person claiming to have been
    discriminated against or harassed
  • whether the evidence was presented by the parties
    in a credible and consistent manner
  • the absence of evidence where it should logically
    exist.

Outcomes

Outcomes
can include any combination of the following:

  • counselling
  • formal apology
  • conciliation/mediation conducted by an impartial
    third party where the parties to the complaint agree to a mutually acceptable
    resolution
  • re-crediting any leave taken as a result of the
    discrimination or harassment
  • official warnings that are noted on the
    perpetrator's personnel file
  • disciplinary action against the person who
    complained if there is strong evidence that the complaint was vexatious or
    malicious.

Outcomes will depend on factors such as:

  • the severity and frequency of the discrimination
    or harassment
  • the weight of the evidence
  • the wishes of the person who was discriminated
    against or harassed
  • whether the harasser could have been expected to
    know that such behaviour was a breach of policy
  • whether there have been any prior incidents or
    warnings.

If there is insufficient proof to decide
whether or not discrimination or harassment occurred employers should:

  • remind those involved of expected standards of
    conduct
  • conduct further training and awareness raising
    sessions for staff
  • monitor the situation carefully.

Employers must ensure that the outcome of
a substantiated complaint does not disadvantage in any way the person who was
discriminated against or harassed.

4.4 Creating a productive
workplace

The starting point for an efficient and cohesive
workplace is to build the morale and productivity of your employees.

This helps minimise complaints, disruptions and
legal wrangles, so everyone can get on with their work. It also adds to your
bottom line and builds your reputation in the business community.

Following are some practical strategies to help you
to build and maintain a positive and productive workplace, free from
discrimination and harassment.

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Creating a
productive workplace

Induction

Induction
aims to provide new employees with information about the organisation which will
help them to be more effective in their job.

Employers should try to:

  • give balanced (job specific and social)
    information that is directly related to their role and back this up with extra
    information at a later stage
  • provide a 'mentor' who can provide additional
    information and answer questions; and/or provide formal follow-up after a few
    weeks
  • introduce new employees to their colleagues,
    explaining the role of key people, including those with whom they will be
    working closely
  • encourage new employees to ask questions
  • ensure new employees know where to go for help or
    to make a complaint
  • undertake any reasonable adjustments necessary,
    prior to the employee commencing work.

Appraisal

Good
appraisal systems meet the needs of the employer and employees.

Employers should try to:

  • ensure all employees fully understand the
    appraisal system
  • have employee records, including appraisals,
    accessible to them
  • be specific in the performance assessment rather
    than use generalities such as 'poor attitude'
  • include positive feedback about what the employee
    does well
  • train staff involved in giving appraisals
  • do not make irrelevant remarks on an employee's
    file (eg, about ethnicity, age, disability).

Promotion

Employers
should advertise vacancies widely throughout their workforce, giving all staff
members the opportunity to consider applying and to increase the pool of
applicants.

Employers should:

  • ensure all procedures are fair and unbiased
  • review each position as it becomes vacant and
    select on the real requirements of the job, not on who previously filled it
  • provide constructive post selection counselling to
    unsuccessful applicants.

Staff development and
training

Employers should regularly
examine how training is given across the organisation, particularly looking who
is receiving training (e.g. factors such as age, sex, disability, occupational
grouping) and the types of training available (e.g. internal vs external, skill
specific vs broad-based skill).

Employers should try to:

  • institute planned and on-going strategies for
    increasing the skills of the workforce
  • allocate sufficient funds for training of first
    line supervisors who can deal with many issuesas they arise
  • ensure access and reasonable adjustments are made,
    if required, to allow staff with disabilities to attend a broad range of
    training
  • avoid training after hours and on weekends or
    consider provision of child care at such training
  • consider cross-cultural training/awareness raising
    for staff.

Positive work
environment

Employers should consider
the family responsibilities of staff members and the possibility of implementing
flexible work practices, such as job sharing; leave for carers of family members
who are sick, older or who have disabilities; child care requirements and so on.

Research shows that these arrangements can increase
staff loyalty and the overall productivity of an organisation.

Employers should also:

  • examine whether or not the work environment is
    hostile (e.g. are there 'initiation rites' for apprentices, discriminatory
    graffiti, offensive posters?)
  • develop and implement policies on the prevention
    of discrimination and harassment
  • provide senior management support with the
    implementation of the policies
  • recognise that discrimination and harassment
    between staff members is not just a personal issue but one which negatively
    affects the organisation's productivity and profitability
  • aim for cessation of inappropriate behaviours now
    and in the future as a primary outcome, and discipline, if needed, as a
    secondary outcome
  • ensure that all staff have access to staff
    notices, personnel procedural manuals and any other appropriate information.

Grievance
procedures

An organisation that has
grievance procedures is healthier than an organisation that doesn't have
grievance procedures.

Employers should try to:

  • circulate policies and related information widely
    and in appropriate languages
  • institute grievance procedures which are
    accessible to all staff
  • provide education programs (training, leaflets,
    posters, etc) for all staff about their rights and responsibilities
  • provide information and support for potential
    complainants to enable the most effective resolution of the complaint
  • review procedures regularly.