Well known ride-sharing app, Uber, has been headlining publications globally as its company policies, CEO and business model are being called into question. Uber’s recent transgressions relating to sexual harassment, discrimination, unprofessionalism, bullying, employment structures and a toxic workplace culture in America challenge many Australian employment laws.
The issues at hand allow Australian businesses, small to large, to reflect on their own company policies and procedures ensuring they abide by the Fair Work Act 2009 (Cth) and reduce their risk of litigation.
The repercussions of businesses who fail to act on complaints
Employers have a statutory obligation to provide a safe workplace. If an employer fails to act on complaints raised by their employees, they are in breach of their obligation. Employers need to treat sexual harassment and other misconduct very seriously, regardless of the position of the victim and perpetrator.
An article published by The New York Times titled ‘Uber fires 20 Amid Investigation Into Workplace Culture’ exposes that 215 cases of workplace violations were investigated at Uber, of which 100 resulted in no action of investigation. Of these complaints 47 comprised sexual harassment, 54 complaints of discrimination and others included bullying, retaliation, physical security and nonsexual forms of harassment. The investigation was conducted by former U.S. Attorney General, Eric Holder.
As a result, 20 employees have been terminated for harassment and discrimination, 31 are undergoing workplace education training and seven have been given final warnings.
In Australia, employers who are found to fail to act on the complaints of employees and provide a safe working environment are at risk of litigation and penalties via regulatory agencies such as WorkSafe. Additionally, an employee may argue that their employer has been negligent in providing a safe working environment and file a worker’s compensation claim or a common law negligence claim.
Punitive action for perpetrators
The Fair Work Regulations define serious misconduct as including willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment or conduct that causes serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer’s business.
Where an employee is found to have engaged in fraud, theft, violent or threating behaviour, bullying or harassing others, the employer may immediately dismiss them.
Small businesses should make sure to properly investigate any allegations and be confident in the allegations of misconduct. If so, they are not required to provide a warning or notice period giving the perpetrator a chance to improve. They must however afford the employee procedural fairness.
Providing procedural fairness for the employee includes the right to fair notice of the allegations, the right to have a support person to attend and the right to have any response genuinely considered by the employer.
If the misconduct is found to be minor, than an employer can provide a written warning to the employee. If an employee is dismissed in the future and files an Unfair Dismissal claim, the Fair Work Commission can take the written warnings into consideration.
If you are looking for specific advice on dismissing and terminating staff, you should retain independent advice from an employer association or lawyer.
In 2014 a landmark decision by the Federal Court of Australia ordered Oracle Corporation Australia Pty Ltd to pay an employee $100,000 for pain and suffering after she was sexually harassed by a co-worker. Richardson v Oracle Corporation Australia Pty Ltd  FCAFC 82 was a turning point for employers to recognise what the Court considers to be reasonable in an employer’s steps to find an outcome to sexual harassment and misconduct.
Employees may file a complaint with the Australian Human Rights Commission if they are being sexually harassed under the Sex Discrimination Act 1984.
Common mistakes by employers shouldn’t set the standard
In December 2016 the Queensland Civil and Administrative Tribunal ordered a hotel chain to contribute $313,000 in damages to an employee who alleged she was sexually assaulted by a colleague when staying in accommodation provided by her employer.
This case highlights a common mistake that employers make when issues of sexual assault may occur at work functions, provided accommodation or afterhours. It is critical to be transparent with employees on the expected standards of behaviour beyond the usual place of work.
Employers should have clear policies that are freely available for their employees to access. These are inclusive of but not limited to:
- Sexual harassment and workplace bullying policy;
- Social media policy;
- Discrimination policy;
- Leave policy (annual and personal); and
- Complaints procedure.
Uber’s current situation is an example for business owners on why they should act on complaints and foster a safe working environment. Employers who don’t set a standard by enforcing internal policies run the risk of litigation. If an employer is unsure of their obligations, seeking legal advice is recommended.
About the author
Trent Hancock is a Senior Associate with McDonald Murholme, an employment law firm based in Melbourne and Adelaide.