Managing workplace relationships: What we can learn from Barnaby Joyce

Everyone’s favourite Kiwi/Australian politician Barnaby Joyce has been in the spotlight again recently due to his upcoming interview with his partner Vikki Campion on Channel Seven’s Sunday Night program. From an employment law perspective (we always see things from an employment law perspective), it has again brought to light the topic of workplace relationships. No doubt you would recall that in February in response to the Joyce-Campion relationship, Prime Minister Malcolm Turnbull responded by banning all sexual relationships between ministers and their staffers. But is this suitable for other Australian workplaces, or is this delving a little too far into the private lives of employees?

Relationships and workplace romances have traditionally been a very sensitive issue with many employers unsure how much, or how little, they should get involved. On the one hand, they have a significant interest in not only ensuring a happy productive workplace (which may not be the case should a relationship sour) and avoiding conflicts of interest, but also an obligation to their employees in relation to sexual harassment and their health and wellbeing generally. On the other hand, many employers would be reluctant to tell consenting adults what they can and cannot do in their own time, not to mention questioning the extent to which any intervention would be enforceable anyway.

Most Australians will know of someone who has met a significant other in the workplace (there’s clearly something romantic about the water cooler and the photocopier). So whilst employers should not try and stop workplace relationships, as this would be unlikely to work anyway, there are certainly steps they can take to mitigate legal risk and also to minimise potential disruption in the workplace. One such step that employers can take is implementing a ‘Disclosure/Workplace Relationships Policy’ and a ‘Conflict of Interest Policy’. These policies should, at a minimum, address the following key issues:

1. Require self-disclosure

Employees should be required to disclose any relationships to a suitable person, such as a HR manager. A discussion can then be had about any necessary changes that may be required in order to minimise risk or disruption in relation to the relationship. The HR manager may require the employee to outline that the relationship will not influence their work or the business.

Manage any actual, or perceived, conflicts of interest

Once a disclosure has been made, changes in the workplace may need to be made to manage any actual, or perceived, conflicts of interest. This is especially the case where a relationship has formed between managers and their subordinates. Common solutions to managing conflict of interest may include reassigning one or both staff members to different departments, or removing managers from any involvement in decision making regarding performance or promotion where it relates to their partner.

Beware of power imbalances

Whilst employers should generally avoid outright banning relationships, in some circumstances it may be inappropriate for the relationship to continue. For instance, in small businesses it would be impossible to shift either employee to a different department, so from a conflict of interest perspective, the employees may face a difficult decision between continuing in their role, or their relationship.

Similarly, a high level executive such as a CEO or partner involved in a relationship with a very junior employee such as a graduate may be discouraged so as to avoid any claims to favouritism or the potentially messy fallout should the relationship sour.

Outline what is, and is not, acceptable behaviour in the workplace

Whilst employers should not try and stop relationships between employees, they can certainly manage the way it manifests in the workplace. The last thing that an employer would want is for a new relationship to spill over into the workplace, making other staff uncomfortable, and affecting morale and productivity. As such, the policy should clearly outline that all staff must interact in a professional manner at all times in the workplace. This means there should be no inappropriate physical contact (such as kissing) and personal discussions should be limited.

The policy should also address sexual harassment, and outline that although individuals may have been in a consensual relationship, that does not mean that sexual harassment may not occur when the relationship ends. Employers have a duty of care towards their employees to ensure their wellbeing, and may be vicariously liable should sexual harassment occur.

Outline the consequences of failing to follow the policy

From an employer’s perspective, there are serious issues, such as conflict of interest and sexual harassment, that can be related to workplace relationships. As such, any policy on these issues needs to expressly state that disciplinary action, including dismissal, may be taken where the Disclosure/Workplace Relationships Policy or Conflict of Interest Policy is breached. This includes where an employee has failed to adequately disclose a new relationship.

Indeed, a case in the Fair Work Commission in 2015, M v Westpac Banking Corporation [2015] FWC 2087, rejected an unfair dismissal claim where a Westpac manager was fired for failing to disclose an affair with one of their subordinates.

Final thoughts

Managing relationships in the workplace need not be the minefield that employers may expect. There are some relatively easy steps that can be implemented to help manage workplace relationships that do not deprive consenting adults of their freedom and dignity to do what they please in their own time. And who knows, if a properly managed and adhered to Disclosure/Workplace Relationships Policy had been in place in Parliament House, maybe Barnaby would still be Deputy Prime Minister.

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October 30

Workplace sexual harassment and the culture of silence: Are non-disclosure agreements to blame?

Harvey Weinstein has been in the news for all the wrong reasons recently. The New York Times investigative article on 5 October 2017 exposed Weinstein’s 30-year history of alleged sexual harassment and assault of young actresses and female employees. Since this article, many other women have come forward with their stories relating to Weinstein and his inappropriate and unacceptable behaviour. Weinstein’s demise has been swift, with his removal from the Academy of Motion Picture Arts and Sciences, the Producers Guild of America and his own film production company, Weinstein Company, firing him.

At first glance, it seems inexplicable that Weinstein could continue to allegedly sexually harass and sexually assault for over 30 years without his behaviour becoming public, or charges being laid. However, what has also recently come to light is that Weinstein has reached at least 8 settlement agreements according to The New York Times. Such settlement agreements involved Weinstein paying a sum of money to the victim, who was then prohibited from discussing the matter by a non-disclosure agreement.

Non-disclosure provisions are also common practice in settlement agreements in Australian workplaces. They often involve standard confidentiality terms that prohibit either party from disclosing certain facts such as the identity of certain people and the settlement amount. Often, both parties are satisfied with this outcome. The perpetrator protects their reputation by avoiding having criminal or civil proceedings brought against them whilst the victim avoids having to take legal action and reliving traumatic experiences in a public setting. There is also a fear that career prospects will be damaged if you have a reputation for suing.

Despite the existence of strong laws prohibiting sexual harassment, this is unfortunately also an issue in the workplace in Australia. In 2016, the Australian Human Rights Commission heard 453 complaints under the Sex Discrimination Act 1984 many of which relate to sexual harassment in the workplace. It is estimated that a staggering 25% of women are sexually harassed over the course of their employment. Whilst it is understandable that victims may wish to avoid reliving a traumatic experience, non-disclosure agreements do nothing to protect other people from becoming victims and allows the Harvey Weinstein’s of the world to continue to avoid facing scrutiny. A serious question must be asked whether employers should be able to use non-disclosure agreements to keep sexual harassment claims secret.

On moral grounds, most people would answer this in the negative since an alleged crime has been committed, and that person should have to face these allegations in a court. However, there are also compelling legal arguments that employers should not be able to cover up workplace sexual harassment using a NDA.

It is an implied term in all employment contracts in Australia that employers have an obligation to provide their employers with a safe place to work. Commonly in sexual harassment cases, such as Weinstein’s, the victim agrees to settlement terms and exits the company whilst the perpetrator, usually a senior employee or manager, remains. The employer’s decision to retain the perpetrator likely places other employees at risk of experiencing sexual harassment and thus breaches the right of employees to have a safe workplace. However, because the settlement terms are confidential, and the victim is bound by a NDA, often the employees are none the wiser and have no knowledge that this implied term of their employment contract is being breached.

There is another legal argument that that non-disclosure agreements should be void as a matter of law. It has long been recognised that contracts that are contrary to public policy, such as those that are prejudicial to the administration of justice, are unenforceable. Therefore, it stands to question, are non-disclosure agreements in confidential settlements enforceable? Clearly, there is a significant public interest in preventing persistent sexual predators like Harvey Weinstein from continuing their unsavoury behaviour. There is also clearly a public interest in allowing the administration of justice to take its course.

Despite legal arguments that employers should not be able to use NDAs, unfortunately the practical reality ultimately wins. Victims who have signed NDAs are fearful of speaking out. In addition, the potential legal repercussions for breaching a NDA, depending on the contractual terms, can be quite costly. Of course, there is also the power imbalance between the employer and employee that contributes to the culture of silence and ensures NDAs regarding sexual harassment are rarely challenged.

The current use of NDA allows persistent offenders such as Harvey Weinstein to remain unchecked. Perhaps a change in the law is necessary to protect potential future victims of serial sexual harassers in the workplace.

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January 14

Customer Service – Exactly How much should employees have to take?

Emily Capewell became famous just before Christmas for a Facebook spat on the Sydney Morning Herald’s page directed at her Jetstar customers. A computer glitch had created numerous delays, and numerous complaints – prompting Ms Capewell to describe them as a ‘bunch of whingers’. The Sydney Morning Herald immediately jumped on it as yet another example of an employee losing their cool in the face of customer adversity. We are familiar with this scenario: where the employee is sanctioned for bringing their employer into disrepute, and presumably for breaking a variety of express and implied contractual duties, codes of conduct, and workplace policies. These employee duties are clear.

But the interesting question in this increasingly common scenario is what is the nature of the employer’s duty to the employee? Exactly how much abuse should a customer service professional be exposed to before an employer assumes responsibility for stepping in. The hackneyed phrase “the customer is always right” may retain some currency when managing relations with customers, but I’m very doubtful it’s an effective policy for the management of employees. Customers are rarely “right”, and in relation to some customer services settings, namely airlines, restaurants, Emergency rooms, their conduct can be positively abusive. At some point, the implied duty to provide a safe system of work for employees must step in to override the supremacy of the customer, and to create positive duties on the employer. We also have the issue of bullying. It has been recognised for some time that employers owe a duty not to bully employees and to proactively prevent employees from bullying each other. It’s only a very small step to recognize this duty extending to the customer conduct which an employer exposes their staff to.

This will be an interesting area of law as it develops, and I’m positive there will be some case law soon.

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