Positive change in stamping out staff-on-staff harassment can only come from top, legal expert says
Sexual assault, stalking, harassment, drugs at work – recent allegations of wrongdoing pitched at some staff of Sydney-based hospitality group Swillhouse are serious.
Did the management of the six venues in its portfolio of bars and restaurants do enough to monitor the behaviour of its workers? It doesn’t sound like it.
“It brings us pain and regret knowing that there have been instances where some of our employees have felt unsupported, unheard or at risk,” the company said in a statement in August.
The problem isn’t unique to Swillhouse. In a 2023 survey by United Workers Union of hospitality workers in South Australia, 47% said they had experienced sexual harassment at work. Of those, 58% said the perpetrator was a supervisor.
Hospitality and retail are environments in which it is difficult to control interaction with customers, but employee-on-employee misconduct is a big challenge for business owners.
Baker McKenzie partner Kellie-Ann McDade says positive duty changes to the Sex Discrimination Act are a step in the right direction.
“It means moving away from a reactive-type culture into more of a proactive approach, and requiring you to do more than just deal with issues or complaints as of when they arise,” McDade told HRD. “It requires employers to go much further in training and setting a culture at the top level in an organisation and continually monitoring and evaluating how that is playing out in practice.”
Hospitality businesses are vulnerable to legal and reputational risk, with potential penalties for breaches of work health and safety legislation. A hostile work environment can be created by virtue of the culture of the industry, McDade said, which may lead workers to almost expect ill-treatment.
“It requires a whole rethink as to what is acceptable behaviour,” she said. “But as well as being an entertainment venue or somewhere people go to relax, it is also a workplace that requires protections to be put in place at the employment level.”
The importance of having dedicated HR staff and robust policies, including those addressing psychosocial hazards, is obvious. But obligations to workers start the moment an owner recruits staff, McDade said.
“If you don’t have the expertise in-house, you need to seek that expertise somehow, whether that’s by a consultant or otherwise. I don’t think there is a threshold level at which you need to start taking these things seriously,” she said.
Bars and restaurants trade on reputation. If the brand is tarnished, it won’t bode well for attracting and retaining employees.
Cases where an individual makes sexual harassment, or, in more serious cases, sexual assault-type claims can extend to an employing entity being deemed to be vicariously liable.
“That’s the usual course of action,” McDade said. “But maybe even more importantly these days is the breach of the work health and safety legislation as well. That then becomes a very serious matter, because there are criminal penalties and potential prosecution consequences for breaching health and safety legislation.”
Claims must be properly investigated, as there is potential for vexatious claims to lead to disciplinary action. “If someone is raising something speciously or with ill intent, it may be something you can look to terminate or otherwise discipline an employee in relation to,” she said. “It goes to the need to properly investigate any claims when they arise.”
Bosses who are eager to terminate someone’s employment at the allegation stage may risk a claim against them if subsequent investigation shows there was little substance or basis to the worker’s grievance. “That may have resulted in a very unfair result to an employee,” McDade said. “It goes to show that any investigator of these sorts of matters needs to come into it with an open mind and from an unbiased stance.”
The hospitality sector attracts a more vulnerable type of worker. They are often young, without much, or any, experience in professional settings, and may not have a full understanding of what is inappropriate conduct at work. They shouldn’t be expected to work everything out for themselves, according to McDade.
“It all comes back to setting the standards at a senior level and having proper policies and procedures in place as to conduct at work, and properly training people in them and holding people to them,” she said.
Managers should lead by example and pull people up if they stray from a code of conduct. Best practice occurs when health and safety is taken seriously at a high level and policies and procedures are constantly under review, she said.
Psychosocial hazards should be specifically addressed in health and safety policies and linked to sexual harassment or discrimination policies, so there is no confusion a complaint can be brought on multiple grounds, McDade said.
“The most robust policies are the ones that have thought through the particular specifics of their workplace rather than just relying upon a sort of standard issue template,” she said.
Will the hospitality industry ever change? The demographic profile and itinerant nature of many of its workers may make that a difficult task.
“It is always going to attract a younger and perhaps lower-paid worker,” McDade said. “When you have that profile workforce, that’s often when these issues are more likely to arise.”
