Training inadequate as “reasonable steps” defence

A leading IT company found its “reasonable steps” defence to be sorely lacking when a court found the internal training it provided to be woefully inadequate.

At the Victorian Supreme Court ruling, Justice Robert Buchanan awarded $18,000 in damages to the worker who brought her sexual harassment claim to court after she was dissatisfied with an internal investigation and subsequent action of her employer. The claim was brought after the employee lodged a formal complaint at her workplace and an internal investigation was launched. The worker claimed sexual harassment against one of her co-workers who repeatedly made demeaning or suggestive sexual comments to her in front of team members and, on at least one occasion, clients.

Although the judge took the view that the HR team had acted appropriately, taken the complaint seriously and investigated accordingly, he found fault with some elements of the organisation’s wider actions to prevent inappropriate behaviour and protect its workers.

The organisation took the stance it had taken reasonable steps to prevent the harassment citing its Code of Ethics and Business Conduct policy. Also, all workers were required to undertake online sexual harassment training provided across the company’s global workforce.

In spite of this, Justice Buchanan was not satisfied that all reasonable steps had been taken; “Amongst the criticisms available of the contents of the global online training package […] are the fact that it made no reference to the legislative foundation in Australia for the prohibition on sexual harassment […]; made no clear statement that such conduct was unlawful; and made no statement that an employer might also be vicariously liable.”

This case serves to highlight the importance not only of clear and robust policies and procedures, but also to show that training must be appropriate and effective and not simply a token “tick box”.

iHR Australia’s Managing Director, Stephen Bell, says that; “Most online training fails to address the key cause of genuine cases of workplace bullying and harassment which is patterns of poor behaviour that go unchecked. That is why, in building the eLearning training programs for we have invested in 3D animation that aims to explain not only the national and state law but also how it applies within the context of Australia’s national culture.” “One of the key concepts that Australian managers need to embrace is that a banter culture can be engaging for Australian workers but also requires that clear lines of what’s OK and what’s not OK are drawn. Managers need to be sensitive to the needs of all workers rather than simply maintaining an established pattern.”