feedback

18 February 2013 What not to say in the office

By Richard Ottley, Partner and Laura Sowden, Solicitor

Why are there things I can and cannot say in the office?

What is and what is not appropriate behaviour in the workplace has traditionally been derided as simply a matter of common sense and questioned on the basis: why would we seek to prescribe common sense? In case you find yourself nodding in agreement with this sentiment - it is time to realise two things:

  • That common sense varies a good deal; and
  • Interactions in the workplace are regulated.

We spend a great deal of our time at work with colleagues. This can sometimes lead to the erroneous conclusion that we know our work colleagues quite well. To varying degrees and in various workplaces it is possible that this is true.

However, it is also possible that despite appearances there are details or parts of a colleague's life which they do not share with you, or which your conversations simply have not covered.  These gaps in your knowledge (of which you may be blissfully unaware) provide good reason for being cautious in your comments as they have the potential to insult, upset or harass.

What not to say

Currently before the Commonwealth Parliament is the proposed Human Rights and Anti-Discrimination Bill 2012 (which is likely to be passed by Parliament this year). This Bill provides a comprehensive list of attributes (below) which would be protected from discrimination, and best practice would be to avoid comments regarding these attributes which have the potential to insult, upset or harass.

 

 

Age

Nationality or citizenship

Breast feeding

Political opinion

Disability

Potential pregnancy

Family responsibilities

Pregnancy

Gender identity

Race

Immigrant status

Religion

Industrial history

Sex

Marital or relationship status

Sexual orientation

Medical history

Social origin

 

NOTE: Many of these attributes are already protected by state legislation.

Examples of definite no-no's!

Particularly avoid anything which commences by you saying;

"I am not a racist/misogynist/anti-jewish, but..."

If you are making excuses at the beginning of the sentence it is probably not worth finishing at work.

 

Mei Mei makes a remark to her colleague Nick about the builders working on her house saying;

"Those Pacific Islander and Maori people are all so lazy."

Little does Mei Mei know that her colleague Nick to whom she is talking is 2/8 of Maori descent (and identifies as Maori) and his wife is from Samoa. Mei Mei's gap in her knowledge regarding Nick may be based on her assumptions about Nick's physical appearance. Nick makes a complaint about Mei Mei's comment. She receives workplace counselling which involves her apologising to Nick.

 

Lee makes a comment to Mona about his lack of success in dating:

"If you pay for dinner at the date then she should return the favour.... women are such teases... I haven't had any sex despite all those dates I've paid for."

Lee does not realise it, but Mona is horrified, upset and insulted that he thinks paying for dinner at a date means women owe him some kind of sexual favours. The comment also makes Mona rethink how she interacts with Lee and changes her opinion of him. She also mentions this comment to her manager who agrees it is not workplace appropriate and is concerned that the comment may constitute sexual harassment.

 

Khan has been working at ScamCam for 20 years and towards his 55th Birthday his manager Jessica makes several comments to Khan about his age including:

“You’re getting old, you should retire... you’re going blind."

Khan is insulted, is afraid he will be fired and eventually resigns from his position. Khan complains to the Human Rights and Equal Opportunity Commission and after a conciliation conference ScamCam agrees to pay him compensation in relation to income he would have earned if he hadn’t felt he had been forced to resign.

 

Elise tells her manager Tahlia about her being pregnant, in response to which Tahlia makes the following comment:

"So I assume you will be leaving us soon...... mothers should really stay home with their children..... and you wouldn't be much use returning to work part time anyway."

Elise is upset that Tahlia thinks that Elise's place is at home and that Tahlia is telling her what she should be doing with her children. Elise also feels Tahlia is making it clear that any request to return to work under a flexible working arrangement would not be approved.

 

John says to his colleague Jennifer upon her return from extended leave:

"I see you have put on weight since you have been away....have you got something to tell us?"

Jennifer who is not pregnant is upset about the chauvinistic nature of the comment and complains to Human Resources.


What would the consequences be?

An incautious or in appropriate comment can constitute a breach of various laws including: anti discrimination legislation, occupational health and safety legislation or the Fair Work Act 2009 (Cth). This means that your colleague can complain to your employer, a number of external bodies or bring a claim in Court as a result of your behaviour.
Depending on your employer and the situation within the workplace, the result can range from:

  • nothing happening (except your colleague secretly hating you)
  • you being counselled about the comment and you providing an apology
  • you receiving a disciplinary warning (which stays on your record)
  • being fired.

If an employer does not act on complaints of discriminatory, harassing or bullying comments then they can find themselves involved in court proceedings and vicariously liable for their employee's conduct. Therefore in most workplaces you can rest assured that if a complaint is made disciplinary action will be taken.

For more information regarding discrimination in the workplace please contact:

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email: rbo@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

Back to publications
Association Memberships
Tristan Jepson Memorial Foundation
  • 2017 - Winner Lawyers Weekly 30 Under 30 Awards
  • 2017 - Finalist Lawyers Weekly Australian Law Awards
  • 2017 - Finalist Lawyers Weekly Women in Law Awards