Monday, 1 March 2021

Discrimination, Harassment and Bullying in the ACT Legal Profession

The ACT Law Society takes a zero-tolerance approach to allegations of discrimination, harassment, and bullying in the ACT legal profession.

Allegations of bullying, discrimination, and harassment diminish public confidence in the legal profession and in the administration of justice. The Law Society expects all members of the profession to conduct themselves appropriately towards all those with whom they come into professional contact.

Contents of this page


Expectations of members

Solicitors’ Conduct Rules

Rule 42 of the Legal Profession (Solicitors) Conduct Rules 2015 provides that:

A solicitor must not in the course of practice, engage in conduct which constitutes:
42.1.1 discrimination;
42.1.2 sexual harassment; or
42.1.3. workplace bullying.

Legal practitioners have a duty to hold themselves and their peers to higher standards. Members of the profession are expected to report any inappropriate behaviour they come across in the course of legal practice.

This may include reporting via organisational frameworks in a member’s workplace or a formal complaint to the Law Society.


Discrimination

Under the Solicitors’ Conduct Rules, “discrimination” means discrimination that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.

What is workplace discrimination?

Workplace discrimination occurs when an adverse action is taken against a person who is an employee or prospective employee because of certain attributes of the person, such as race, gender, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion etc. See s 7 of the Discrimination Act 1991 (ACT) for a full list of protected attributes.

An adverse action can include:

  • dismissing an employee
  • injuring an employee in their employment
  • altering an employee’s position to their detriment
  • discriminating between one employee and other employees
  • refusing to employ a prospective employee
  • discrimination against a prospective employee on the terms and conditions in the offer of employment.

Discrimination may occur directly or indirectly (see s 8 of the Discrimination Act 1991 (ACT)):

  • direct discrimination occurs when a person treats, or proposes to treat another person unfavourably because the other person has one or more protected attributes
  • indirect discrimination occurs when a person imposes, or proposes to impose a condition or requirement that has, or is likely to have the effect of disadvantaging another person because the person has one or more protected attributes.  

See the Fair Work Ombudsman’s site for more information.

Relevant legislation

Discrimination in the workplace is unlawful under the following acts:

  • section 8 and part 3 of the Discrimination Act 1991 (ACT)
  • section 18 of the Age Discrimination Act 2004 (Cth)
  • section 15 of the Disability Discrimination Act 1992 (Cth)
  • section 15 of the Racial Discrimination Act 1975 (Cth)
  • section 5 of the Sex Discrimination Act 1984 (Cth)
  • section 351 of the Fair Work Act 2009 (Cth)
  • section 104 of the Work Health and Safety Act 2011 (Cth and ACT)

Case study

In Fair Work Ombudsman v Yenida Pty Ltd & Anor [2018] FCCA 1342, it was found that the former operators of a Tasmanian Hotel had deliberately exploited and underpaid two Malaysian employees of Chinese descent because of their race. The employer was found to have treated two Malaysian employees differently to Australian staff by underpaying them, requiring them to work extra hours and failing to record their hours of work. The employers were fined $211,104 under racial discrimination provisions of the Fair Work Act 2009 (Cth). The case highlights the unfair workplace practices overseas workers often face, and sends a clear message that workplace discrimination is a serious unlawful conduct and significant penalties apply.


Sexual harassment

Under the Solicitors’ Conduct Rules, “sexual harassment” means harassment that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.

What is sexual harassment?

A person subjects someone else to sexual harassment if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in other unwelcome conduct of a sexual nature in circumstances in which the other person reasonably feels offended, humiliated or intimidated (see s 59 of the Discrimination Act 1991 (ACT)).

The following may constitute sexual harassment:

  • sexually suggestive comments or jokes
  • intrusive questions about someone’s private life or physical appearance
  • inappropriate staring or leering
  • unwelcome hugging, kissing or cornering or other types of inappropriate physical contact
  • sexually explicit text messages, images, phone calls or emails.

Relevant legislation

Sexual harassment in any work-related context is unlawful under:

  • section 59 of the Discrimination Act 1991 (ACT)
  • section 28B of the Sex Discrimination Act 1984 (Cth)

Sexual harassment may also constitute acts of indecency, which are prohibited under s 57–60 of the Crimes Act 1900 (ACT).

Case study

In Hill v Hughes [2019] FCCA 1267, a paralegal took action against her law firm’s principal solicitor for persistent inappropriate behaviours including, intruding in her private room during work trips, sending inappropriate emails, coercing hugs and making threats that her employment depended on the two entering into a romantic relationship. The plaintiff was awarded $120,000 in general damages, and $50,000 for aggravated damages due to the principal solicitor’s abuse of power.


Workplace bullying

Under the Solicitors’ Conduct Rules, “workplace bullying” means bullying that is unlawful under the applicable state or territory anti-discrimination or human rights legislation. If no such legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms it includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimidate, offend, degrade or humiliate.

What is workplace bullying?

Under the Fair Work Act 2009 s 789FD(1), a worker is bullied at work if:

  • a person or group of people repeatedly act unreasonably towards them or a group of workers; and
  • the behaviour creates a risk to health and safety.

Examples of workplace bullying may include:

  • behaving aggressively
  • teasing or making practical jokes
  • pressuring someone to behave inappropriately;
  • excluding someone from work-related events
  • making unreasonable work demands.

For further information visit the Fair Work Commission’s website.

Relevant legislation

Part 6.4B of the Fair Work Act 2009 (Cth) regulates workplace bullying. Section 789FC allows a worker who has been bullied at work to apply to the Fair Work Commission for an order to stop bullying.

Case study

In Swarab Lata Kumar and Macquarie Partnership Lawyers [2005] NSWIR COMM 202, the Court found that the respondent engaged in a deliberate, disgraceful and relentless campaign to force the applicant’s resignation by:

  • changing work hours with one working days’ notice
  • contacting the worker’s in-laws to discuss the worker’s work performance
  • writing a letter to raise concerns about the worker’s honesty in observing her hours of work, using the firm’s resources for personal use and not accepting instructions
  • labelling the worker ‘shameless’
  • raising performance issues about inconsequential clerical mistakes
  • accusing the worker of feigning headaches after being disciplined
  • taking inconsistent disciplinary action when compared with others.

Duty to ensure a safe workplace

Employers can be held vicariously liable for an employee’s conduct if they fail to take all reasonable steps to prevent the prohibited conduct from taking place (see s 121A of the Discrimination Act 1991 (ACT)). What is considered reasonable may differ depending on the resources available to firms.

Law firms and persons in management positions in the ACT should take proactive steps to:

  • educate themselves about the extent of the issue and their legal obligations
  • establish, implement and monitor relevant internal policies, grievance protocols and complaint systems
  • provide adequate training and ensure that employees are aware of their rights and obligations
  • respond to and take appropriate action in dealing with complaints
  • provide support and ensure that retaliation behaviour does not occur. 

Case study

In Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, an employee was found to have sexually harassed another employee and the employer was held responsible for the employee’s conduct. Employers were held to have a lively and real interest in preventing occurrences of sexual harassment in the workplace. On appeal, a total of $130,000 was awarded in damages to the plaintiff (including for pain and suffering).


Finding help and support

Member support services

Members are always welcome to call our office at 6274 0300 and speak to our Professional Standards Manager about concerns or questions relating to the conduct of an employer, supervisor, colleague, other members of the profession and clients.

The Law Society’s volunteer senior counsellors can offer support. They are experienced senior practitioners who are available to give advice on personal or professional matters which you cannot discuss with a colleague or supervisor partner.  Their contact details are also available in the member’s section of our website.

The Law Society has a contract with Acacia Connection to provide a confidential counselling program for our members, available 24 hours a day by phone, text, and online. Details are available in the member’s section of our website.

Report and complaint processes

Members who feel they have been harassed or bullied are encouraged to contact the Law Society. All reports of discrimination, sexual harassment and bullying will be taken seriously, treated with respect and, where requested, in confidence.

The Law Society investigates when a person makes a formal complaint or when an informal complaint is considered by the Law Society Council and they conclude that it requires investigation. The Law Society ensures that the complainant is fully informed of the processes and potential outcomes. The following are examples of actions the Law Society may take:

  • providing confidential advice and support
  • initiating investigations
  • facilitating conciliation/mediation sessions
  • taking disciplinary actions.

Other Services

If you or someone you know experience any form of workplace harassment, you have the right to:

Useful documents

Related Links

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Guidelines