Why Just Having Policies And Procedures For Workplace Violence And Sexual Harassment Isn’t Enough?

Workplace Health and Safety (WHS) has historically been all about physical injuries and risks in factories and construction sites, but a recent decision of the NSW District Court (the Court) broadened that traditional thinking.
SafeWork NSW (SafeWork) and the Court have put employers on alert that violence and sexual harassment in the workplace are never acceptable, and that an employer’s failure to swiftly and proactively address reports of incidences will result in harsh penalties.
It is critical to have relevant and effective policies and procedures in place to address risk of such incidents. However, businesses need to actually action the policies where relevant.
What Were The Charges? 
In a recent case, SafeWork brought court proceedings against Marist Youth Care (MYC), a not-for-profit that provides residential care for young people failing to comply with their WHS duties under the Work Health and Safety Act 2011 (NSW). Those charges included WHS issues with a psychological impact – often referred to as psychosocial hazards.
While MYC had implemented a range of reporting measures for WHS and related issues, a significant issue in the case was what the employer did with the information after it had been collected. More information on this below.
Ultimately, the Court decided that the employer’s response was inadequate, and fined MYC a confronting $300,000.00 for not providing a safe workplace.
What Happened?
The Court heard that, from January to September 2019, workers made numerous reports that residents were:
  • using sexual, aggressive and threatening language toward them;
  • making inappropriate comments, frequently of a sexual nature;
  • making racial remarks;
  • cornering workers and making them fear for their safety; and
  • damaging and destroying property.
Despite numerous reports of inappropriate resident behaviour during this period, female workers were also occasionally left on their own for several hours with residents that MYC knew had a history of assault and aggression towards women.
MYC had a system in place to log these incidents, but through poor training and management disinterest, this did not translate into action.  
During the period, two separate incidents of assault were reported by two female workers. Both workers suffered ongoing psychological injuries as a result of these incidents, as well as significant impacts on their personal lives, relationships, and ability to work. One incident related to sexual touching which led to police charging a 16-year-old resident. The resident was ultimately convicted and sentenced.
The Court noted that “those incidents were recorded as required by the relevant procedures, but there were multiple failures at management levels to respond to those incidents. In particular, the Area Manager’s response was seriously inadequate.”.
The Court acknowledged that MYC had “a substantial quantity of appropriate procedures in place and it had trained the workers on them”. However, this was not enough.
The issue was what the business did in response to the information provided by the workers. The Court also stated that “the community is entitled to expect that both small and large businesses will comply with safety requirements”.
This is a clear indication that all businesses should pay attention to this case, and consider how they respond to issues that arise.
What Does This Mean For Employers?
This decision makes clear that all employers, whether large or small, in addition to having appropriate workplace procedures and trained staff must have a proactive and responsive management system and complete an adequate risk assessment of their workplace.
That risk assessment must account for worker safety, as well as recent patterns of behaviour of residents/clients/customers, and recent incident reports, amongst other relevant factors, with attention paid to psychosocial hazards.
The Takeaway
Businesses must be responsive and take action to deal with issues appropriately as they arise. This requires good business oversight, and knowledge of the underlying risks and how to address them.
Our experienced Hicksons Workplace Relations lawyers can assist you to plan for and address these critical business issues. Please get in touch with Warwick Ryan.

Authored by Partner, Warwick Ryan and Solicitor, Molly Robinson.

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