Harassment in the workplace is not always obvious. Many complaints arise from everyday interactions that some people dismiss as humour, banter, or ‘no big deal’. Here are some common workplace scenarios. See if you would consider them harassment.
Can I Say That? It Sounded Like a Good Idea at the Time…
We often have clients ask, ‘can I say this…’. It may appear like a good idea or a more honest way of dealing with the issue at the time. Frequently however it creates far greater risk than it is worth. Here are a few common examples. Test yourself to see if you would be tempted.
We have a webinar scheduled for 20 August to delve deeper into this topic. Here is a taster to get you thinking.
Highly risky.
This comment is often intended as a kindness, but it can create significant risk. An employee may reasonably conclude that you have already decided the outcome of a disciplinary process or that their position has already been selected for redundancy.
Fair processes require employers to keep an open mind until all relevant information has been considered. Even a well-intentioned comment can become evidence that the decision was predetermined.
Technically yes, but proceed with extreme caution.
Performance management and redundancy are two very different processes.
A Performance Improvement Plan (PIP) addresses concerns about an individual’s performance. Redundancy relates to the role and the needs of the business, not the person occupying the role.
Running both processes simultaneously may lead the employee to argue that the redundancy was not genuine.
I wouldn’t recommend it.
Honesty and accountability can sometimes be relevant factors when considering an outcome, i.e. a disciplinary warning or dismissal. However, promising a lighter outcome in exchange for an admission may be seen as pressure or as prejudging the matter.
Employees should feel free to provide their version of events without feeling they must confess to secure favourable treatment.
Sometimes, but there are significant limits.
Employers do not necessarily have to disclose every financial detail of the business. However, employees must generally receive enough information to understand the proposal and provide informed feedback. If the business case relies on financial pressures, employees can reasonably expect to see evidence supporting those claims.
The challenge is finding the balance between commercial sensitivity and meaningful consultation. A key question is whether employees have been given enough information to comment intelligently on the proposal.
Be very, very careful.
An employee can decide to resign at any time, but suggesting resignation during a disciplinary process is very risky. A comment intended as a practical option may later be characterised as pressure to leave or an attempt to avoid following a fair process, and lead to a personal grievance claiming constructive dismissal if they do resign.
If an employee raises resignation themselves, ensure any decision remains genuinely theirs.
Yes, but how you say it matters.
Employees must be told the potential consequences of the allegations. However, there is a significant difference between saying:
“If the allegations are substantiated, dismissal could be a possible outcome”
and
“This is probably going to end in dismissal.”
The first demonstrates openness. The second may suggest you’ve already reached a conclusion.
No. Redundancy is supposed to be about positions, not individuals.
Selection criteria should be developed before applying them. If it is discovered that you created criteria after identifying preferred employees this could be used as evidence that you engineered the selection criteria to achieve a predetermined result.
Many employment problems don’t start with bad intentions. They start with a manager or owner trying to be practical, helpful, honest or efficient.
Often the question isn’t, “Can I say that?”. It’s, “How would that comment sound in the Employment Relations Authority?”. If you are hesitating about what you should or should say, please give our team a call.
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