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Tuesday 4th August 2015
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Is this the new hot-button
health and safety topic?
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In today's Health & Safety Bulletin:
- Why domestic and family violence is a workplace health and safety issue
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Dear Reader,
At the end of last month, a Fair Work Commissioner handed down the maximum amount of compensation available to him for an unfair dismissal remedy in Melbourne.
Describing the situation before him, the Commissioner described the employer’s actions as “particularly harsh” and impacting on a worker who was in an extremely vulnerable situation.
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He didn’t hesitate to award the dismissed employee $27,500 – as some perspective, her salary prior to dismissal was $55,000 per annum.
What did the employer do to attract the order? The story is simple, and sad.
Both the dismissed worker and her partner were working for the same business. After returning from a month’s authorised leave, she was subject to domestic violence from her partner overnight before her first day back at work.
She notified the police, and was successful in obtaining an intervention order. But that took time – three days away from the office.
The Commissioner found that when she came back to work, she was called into a meeting where it was decided it would not be feasible for her and her partner to keep working in the same space. She was effectively told she could no longer work for the employer.
The Commissioner found the employer’s attitude reinforced a message that the FWC, and other courts and tribunals, are increasingly unlikely to accept: that a victim of domestic violence should be removed from the workplace, and not the perpetrator.
Why what happens at home can be a workplace health and safety matter
The case I’ve just described (Moghimi v Eliana Construction and Developing Group Pty Ltd, if you’re looking) is relatively rare in that the perpetrator and the victim were sharing the same workspace.
And hopefully, it’s relatively rare that an employer would handle a matter like this quite so badly.
But what’s not rare is domestic violence’s impact on workplaces.
In a 2012 address, Australia’s Sex Discrimination Commissioner Elizabeth Broderick cited Australian Bureau of Statistics Figures that estimated approximately 800,000 women were currently in the workforce and experiencing domestic violence.
As she rightly pointed out, domestic violence’s impact on the physical and mental wellbeing of the victim can fundamentally affect their work performance: their ability to get to work on time and keep to their hours, their ability to concentrate, and their ability to carry out work-based tasks safely.
What’s more, the actual violence isn’t confined to before and after hours of work. Some perpetrators will set out to harass, threaten, and stalk a victim at work.
In one Canadian study, 95% of women with violent partners who stalked them had experienced harassment in the workplace.
Some employer groups have made the point that domestic violence is not predominantly an employment issue, particularly around the hotly-debated issue of paid additional leave entitlements for victims of domestic violence.
But leaving aside the question of leave, your health and safety obligations to your workers in a domestic violence situation are clear. You need to identify possible workplace practices or incidents that may cause or contribute to harming a worker, and take actions to eliminate or minimise those risks. |
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Click here to discover a simple way to make sure you implementfair and effective strategies for your employees with family responsibilities
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Starting the conversation
It’s difficult for an employer to know how to take appropriate and reasonably practicable steps to ensure a worker’s health and safety without a full picture of their situation. That’s why a working environment where workers feel empowered to come forward is crucial.
Australia isn’t there yet. According to a 2011 survey, less than half of working domestic violence victims have disclosed it to a manager of supervisor.
By starting a conversation about domestic violence, you can give your workers confidence that disclosing a violent situation won’t lead to adverse action in their role.
Practical ways to initiate this process include enlisting the expertise of an external domestic violence specialist, and nominating somebody connected to the organisation as an appropriate contact point for domestic violence matters. Note that this could be someone in an Employee Assistance Program (EAP), if you have one in place.
Remember that it’s essential for managers to get behind the policy too – especially because they’re the ones that will be making the decisions when specific health and safety-related actions are needed.
Taking steps to ensure a safe environment
If you’ve created an environment where domestic violence victims feel more confident coming forward, your next responsibility is to take those reasonable steps available to you to make them healthy and safe.
This means that if a violent partner or family member will attempt communication and contact with a victim in the workplace, you should have a safety plan in place.
This could include training staff for how to deal with potentially aggressive intruders to the workplace, or designating a willing co-worker to ‘buddy up’ with a vulnerable worker when they are returning to their parking spot at night.
Screening phone calls and/or using software to screen work emails can also protect a worker from the psychological harm of an abuser during their hours of work.
The other essential tool available to you is the Fair Work Act’s provision for dealing with flexible working arrangements.
Under section 65 of the Act, an employee experiencing violence from a family member may request changes in hours of work, work patterns, or their work location. This request may only be refused on reasonable business grounds.
Although it’s part of the Fair Work legislation rather than the health and safety regime, it’s an indicator that flexibility for domestic violence victims would be considered a reasonably practicable step employers should implement to minimise risk to workers.
Health and safety law recognises your limits as an employer. When it comes to domestic violence issues, you aren’t a substitute for law enforcement agencies, courts, or even concerned neighbours and family members.
But you do have the power – and responsibility – to minimise harm to a worker when they’re at work. And well-considered and well-planned actions from you could be the first step they need to seek help elsewhere.
Take care,
Joseph Nunweek
Editor,Health & Safety Bulletin
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