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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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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 behaviour 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.