Employer investigations, employee rights and sexual harassment at work

MEAA is concerned and deeply frustrated that media companies continue to treat sexual harassment and those who are brave enough to raise it with contempt.
MEAA regularly deals with media employers who run roughshod over employees' rights when dealing with complaints to protect the company’s reputation rather than protect the health and safety of their journalists and employees.

This was certainly the case in the matter involving a now former Seven Network cadet journalist in Adelaide, whose case highlights the timely need for senior media executives – who are predominantly men – to take direct responsibility for ensuring the toxic culture that allows sexual harassment to be perpetuated, that protects perpetrators and that fails to protect the most vulnerable employees, is stamped out for good.

A survey conducted by Women in Media - an initiative developed by MEAA - and reported in Mates over Merit, found that of 1000 participants some 48% of women respondents have experienced intimidation, abuse or sexual harassment in the workplace. One in three women (34%) did not feel confident to speak up about discrimination. The incidence of harassment is somewhat lower among those who have joined the profession in the last five years (37%) but increase with tenure in the industry to nearly 60%.

MEAA Media section director Katelin McInerney says: "When we released Mates over Merit in 2016 we called media organisations to put policies into practice. Clearly this incident at Seven shows we are a long way off seeing employers implementing these policies. It is time for media executives to put their money where their mouths are: take a direct leadership approach to stamp out harassment and to support women in then media when they do come forward."

Women in Media national convener Tracey Spicer said she was “appalled” at the treatment of the cadet by the Seven Network, but she continues to hear from women working in the industry that sexual harassment is still part of the territory and companies are doing little to support women when they come forward. “We all expect that these kinds of attitudes and reactions from media companies to allegations of sexual harassment have been left in the bad old days of the 1980s and '90s. But our Women in Media research shows that simply isn’t the case. Professional women face sexual harassment and discrimination in their workplaces every day, and it is time media executives take direct ownership of the stamping out of this toxic culture that allows harassment to continue and that ensures senior, predominantly male perpetrators continue to be protected.

"It has to end, now. This destroys the lives and livelihoods of hard-working women doing great work and it has to end now,” Spicer says.

MEAA says that while there would be some variation in workplace policies, the basic principle is that procedural fairness has to apply. McInerney said: "This is an area of workplace and industrial knowledge that is generally not well known or understood my employees - and employers often ensure it stays that way in their own interests. Subsequently any policies relating to raising complaints are either hard to find or not enforced.

"If an employee makes a formal complaint to their employer, the employer has an obligation to investigate because there is a work health and safety issue and a duty of care on the employer to ensure the employee works in a safe and healthy environment. If a complaint is made against a member of staff, procedural fairness must also be afforded to them. An employee has the right during this process to be represented by their union or to have a support person present with them when making the complaint and during any subsequent investigations conducted by the employer," McInerney says.

If a formal complaint has been made, the employer is obligated to investigate. Under workplace health and safety legislation, if a hazard is identified the employer is obligated to assess the risk and take measures to mitigate and if the employer does not, then it is potentially negligent so any injury that might result from that exposes the employer to prosecution and other litigation.

If the employer fails to investigate a complaint, union members can contact their union to seek further advice and representation in the matter.

If a colleague makes a complaint against an employee, procedural fairness should apply. If there is an enterprise agreement in place there may be an additional entitlement to representation during disputes or disciplinary meetings.

MEAA has written directly to the Seven Network about various issues relating to employer investigations and sexual harassment in the workplace.

"MEAA believes in order to be afforded procedural fairness you should be notified of the meeting 24 hours in advance; you should be notified about the nature and agenda of the meeting will be and that you should be informed of your right to have a support person or a representative from your union present at that meeting. You should be afforded the opportunity to provide a considered response, particularly if the matter is disciplinary in nature."

Regarding the question of electronically recording the meeting, the relevant legislation varies from state to state. In South Australia you are entitled to record a conversation to protect your legal rights, however in NSW a conversation can only be recorded where the other party consents.

Regarding the employer accessing an employee's emails, McInerney says: "It is difficult to know how prevalent this is. However, your contract of employment and likely various workplace policies will often state that work emails are accessible by your employer at any time, and certainly MEAA's approach - particularly in the media realm - is to assume that: if you are operating on the employer's system, unless there are provisions in place that explicitly prevent your employer accessing your emails set out in your contract or enterprise agreement, the employer has unrestrained access to your work emails."

Sexual harassment in the media has been reported on a number of times in recent years - Louise North's 2012 study reported in The Australian on February 27, 2012 found that 57% of the 577 female journalists surveyed had experienced sexual harassment. An earlier MEAA survey through International Federation of Journalists in 1996 found that just under 52% of respondents reported experiencing harassment. "While the media often shine a light on gender inequality in other occupations, it has refused to act on its own dirty little secret," North said.