The David Jones Sexual Harassment case seems to be settled. As usual, there was no winner although the complainant left mediation with a smile on her face. The reputation of the organisation and the male respondent appear not to have been enhanced while the female complainant walked away leaving the community with more questions than answers and apparently without successfully winning the $37 million in punitive damages. In this case the issue ended up with a mediated agreement settled in the Australian Human Rights Commission, not in the federal court where the in-depth details of the complaints and responses would be on show for all to see. Fraser-Kirk (the complainant) has reportedly walked away with a settled claim in the high six figures.
The conclusion of the matter now gives us some time to reflect on the importance of workplace culture and leadership behaviour. Given that in most cases of unlawful discrimination and workplace bullying courts and tribunals apply a ‘balance of probabilities’ burden of proof (was it more likely than not that the incident occurred), many of the law fraternity believe that ultimately it is ‘culture on trial’. In cases where witnesses describe workplace culture as being ‘poisonous’, ‘harsh’ or ‘anything goes’ or management behaviour as ‘sexual; ‘uncaring’, ‘highly reactive’ or ‘highly confusing’ ; defending allegations of this nature is made very difficult indeed.
Therefore to make this article really useful, we should look at workplace culture (i.e. the way we do things around here – behavioural patterns) and leadership behaviour in the context of the management of risk. In our opinion there are three workplace cultures that heighten the risk of claims of unlawful discrimination.
Three ‘High Risk’ cultures
In iHR Australia’s anti-workplace bullying and discrimination training for managers, we identify three high risk workplace cultures.
1. The harsh culture: The harsh culture tends to be old school. Autocratic and highly directive are descriptors of the leadership style, with employees often hesitant to approach management and rarely asked for opinions. We still sometimes find harsh cultures in traditional organisations, highly entrepreneurial companies, masculine organisations, old style family companies or emergency services where leaders have not had the confidence to let go of command and control style.
The ultimate risk of the ‘harsh culture’ is two- fold. First, there can be a tendency toward reactive or stand-over management when managers fear that control is being lost. This management style on a consistent basis is inappropriate in a thinking society and can lead to dissatisfaction and/or bullying claims.
Second is that in a harsh culture many individuals do not feel comfortable coming forward when they are unhappy with the behaviours of others. This leaves the organisation with blind spots and people can tend to communicate their dissatisfactions through rumour, absenteeism of ‘presenteeism’.
2. The over-matey culture: The over-matey culture is all about unclear boundaries. Being connected to employees is important, however managers that create no or unclear lines between themselves and team members can find themselves paralysed in dealing with serious behavioural issues.
Quite often over-matey cultures are built because the manager and employees used to be peers or have personal relationships and the lines of manager/peer relationship have never been drawn. These cultures create a risk because challenging conversations about behaviour are made especially difficult! Simply put, speaking to your ‘mate’ about their poor behaviour can be more confronting than speaking to a person with whom you have nothing in common. Furthermore, over matey cultures are a breeding ground for behaviours that lead to claims of inappropriate conduct by those on the ‘outside’ such as new employees, employees who don’t fit into the group or those who used to fit into the group but have chosen to ‘move out’ of the fold. Behaviours such as detailed or graphic sex discussions, highly personal or ridiculing jokes, demeaning nicknames or humiliating rituals are all high risk. Those who advocate highly matey cultures need to remember that often behaviours that are accepted by individuals during the good times become unacceptable when things aren’t so good such as when a performance management process is underway.
Remember, if we take the banter out of Aussie workplaces people may not want to come anymore, however managers need to be in a position where they can manage the boundaries of conversation and behaviour. The capacity to have courageous conversations is essential.
3. The avoidance culture: The avoidance culture is the first cousin of the over-matey culture. If the over matey culture is about ‘I can’t do anything about poor behaviour’ the avoidance culture is ‘I don’t want to do anything about poor behaviour’. Hesitant, evasive and confusing are likely descriptors of the leadership style as the natural posture of management is to turn a blind eye or ‘let it go this time’ when behaviours are outside organisational values. In the avoidance culture the manager responds to ‘Bill is giving me a really hard time and shouted at me the other day’ with ‘Yes I know Bill is a prickly character, but you need to learn to deal with complex people like him’. It seems the complainant is often covertly punished for making a complaint simply by being indirectly blamed for bringing the matter up.
The risk of this culture is that people quickly lose confidence in management’s ability to manage issues and lead on culture. Not only are culturally destructive and potentially litigious issues left to fester, but employees become less likely to look for solutions internally when they feel aggrieved. This means that they are more likely to seek external assistance (a lawyer to assist in managing their issue)putting the organisation and individual managers and employees at higher risk of litigation.
What management should be doing
The organisation should be clear about the qualities of the culture that all employees are expected to aspire to. This can come in the form of a values and behavioural framework for leaders and employees. Leaders, especially, must clearly understand their culture and legal accountabilities. They must be able and willing to execute effectively in areas such as having courageous conversations about behaviour, coaching, performance management and handling complaints of unlawful discrimination, harassment and bullying. Furthermore, remembering their key leadership roles in building culture; role modelling, acting on what is observed and dealing with difficult matters in line with values and processes will immediately be effective in building a right culture; that being of openness, connection and fairness.