Common use of Racial Harassment Clause in Contracts

Racial Harassment. Racial harassment occurs when an employer or its representative uses language, visual material or physical behaviour that directly or indirectly: expresses hostility against, brings into contempt or ridicules the employee on the basis of race, colour, ethnicity or national origins is hurtful or offensive to the employee has, either by its nature or through repetition, a detrimental effect on the employee’s employment, job performance and/or job satisfaction As with sexual harassment, the harassment does not have come from the employer. An employer may be held liable if they fail to take reasonable steps to stop racial harassment against an employee. Racial harassment can include, but is not limited to, the following: derogatory comments made against the employee on the race, colour, ethnicity or national origins the existence in the workplace of written or visual items that are racially offensive and/or hurtful racial jokes that are made at the employee’s expense, or otherwise judging an employee or making decisions relating to the employee based on racial stereotypes sharing racist emails. A dismissal can be unjustified if: The reason for an employee’s dismissal is not justifiable: an employer must have sufficient evidence to establish that there are good grounds to dismiss an employee the reason for dismissal must be one that a reasonable employer would consider to be a justifiable reason for dismissal (e.g. misconduct, incapacity, bringing employer into disrepute, poor performance) prohibited grounds of discrimination as a basis for dismissal is unjustified a redundancy is not genuine (job still exists) there is a breach of an employer’s duty through a constructive dismissal The procedure used for dismissal is procedurally unfair: any issue that results in dismissal must be properly investigated if an employer is unhappy with the employee’s performance, it must tell the employee the employee must be given an opportunity to respond to the employer’s concerns the employer must have an open mind when considering the matter and act in good faith before an employer resorts to dismissal, it should consider other options: meeting with the employee additional supervision of the employee giving a formal warning suspension Employers are bound to follow the ‘fair and reasonable’ test when dealing with a potential dismissal.[10] That is, an employee should be dismissed only if dismissal is an action that a fair and reasonable employer could take, considering the circumstances of the individual employee. An unjustified disadvantage could encompass many things, and occurs when: an employee’s employment or the conditions of employment have been affected the effect is disadvantageous to the employee the disadvantage was caused by the employer Bullying is a form of unjustified disadvantage and can be a breach of health and safety legislation. Broadly, bullying is characterised by actions that are repeatedly carried out with the desire to gain power or exert dominance, or with the intention to cause fear and distress. A harsh management style alone will not constitute bullying. Bullying can immediately create grounds for a personal grievance if the employer, or a representative of the employer, is the one subjecting an employee to bullying. If a co-worker is bullying an employee, the employee should inform the employer or employer’s representative of this. If the employer or its representative does nothing or acts inadequately, this may give rise to grounds for a personal grievance. If an employee informs you that they are being bullied, you should take this seriously and investigate the issue. If an employee is undertaking bullying behaviour, then this can be grounds for misconduct. An employee with a grievance needs to take reasonable steps to raise a grievance with his or her employer. This can be done verbally or in writing. It is recommended that an employee does both, but they do not need to for it to be legally binding on the employer. The grievance must be raised no later than 90 days from when the grievance occurred or when the employee became aware of the grievance, whichever is later. A personal grievance can be raised outside this time limit if the employer agrees to this,, if you wish to respond to a personal grievance raised outside the 90 day time limit – seek legal advice before doing so. When raising a grievance, the employee should cover the following matters: Who the employer is Details of the issue leading to the grievance. The employee should set out the relevant events chronologically (or make their best attempt to do so). Specify the following details: what happened? when did it happen? who did it involve? how did it become an issue? why does this warrant a personal grievance claim? Whether the issue been raised before with the employer. If possible, the employee should provide dates, times and places. The more detail an employee can add, the more credible the grievance Whether there are documents that support the employee’s claim, such as: written evidence of sexual or racial harassment the employment agreement documents resulting from meetings relevant to the issue file notes of telephone calls relevant to the issue documents that outline the reasons for the employer taking disciplinary action (if any) Any other information that could support the employee’s claim The remedy the employee is seeking, which might be: reinstatement interim reinstatement compensation acknowledgement that the employer contributed to the issue an apology a change in working conditions/workplace policy and/or procedures If an employee raises a personal grievance, the employer can choose to try to resolve the issue informally or go through mediation. As an employer, if you are made aware of a personal grievance, it is a good idea to adopt a common sense approach. It is important to have a clear idea of the issues and what the facts are, which should involve some investigation. You should also ensure both you and the employee have time to think through the issues and get legal advice or other support if need be. You should ensure you are following any process set out in the dispute resolution clause of the employment agreement. If you are discussing the issue with the employee, it can be a good idea to have a third party present as a witness and to help prevent misunderstanding. You should advise the employee that they are entitled to bring a support person, union delegate or other representative. Both the employee and employer should take notes in any meetings and have a copy of any agreement reached.