Pub­li­ca­tions

What not to say in the office

Why are there things I can and can­not say in the office?

What is and what is not appro­pri­ate behav­iour in the work­place has tra­di­tion­al­ly been derid­ed as sim­ply a mat­ter of com­mon sense and ques­tioned on the basis: why would we seek to pre­scribe com­mon sense? In case you find your­self nod­ding in agree­ment with this sen­ti­ment — it is time to realise two things:

  • That com­mon sense varies a good deal; and
  • Inter­ac­tions in the work­place are regulated.

We spend a great deal of our time at work with col­leagues. This can some­times lead to the erro­neous con­clu­sion that we know our work col­leagues quite well. To vary­ing degrees and in var­i­ous work­places it is pos­si­ble that this is true.

How­ev­er, it is also pos­si­ble that despite appear­ances there are details or parts of a col­league’s life which they do not share with you, or which your con­ver­sa­tions sim­ply have not cov­ered. These gaps in your knowl­edge (of which you may be bliss­ful­ly unaware) pro­vide good rea­son for being cau­tious in your com­ments as they have the poten­tial to insult, upset or harass.

What not to say

Cur­rent­ly before the Com­mon­wealth Par­lia­ment is the pro­posed Human Rights and Anti-Dis­crim­i­na­tion Bill 2012 (which is like­ly to be passed by Par­lia­ment this year). This Bill pro­vides a com­pre­hen­sive list of attrib­ut­es (below) which would be pro­tect­ed from dis­crim­i­na­tion, and best prac­tice would be to avoid com­ments regard­ing these attrib­ut­es which have the poten­tial to insult, upset or harass.

Age

Nation­al­i­ty or citizenship

Breast feeding

Polit­i­cal opinion

Disability

Poten­tial pregnancy

Fam­i­ly responsibilities

Pregnancy

Gen­der identity

Race

Immi­grant status

Religion

Indus­tri­al history

Sex

Mar­i­tal or rela­tion­ship status

Sex­u­al orientation

Med­ical history

Social origin

NOTE: Many of these attrib­ut­es are already pro­tect­ed by state legislation.

Exam­ples of def­i­nite no-no’s!

Par­tic­u­lar­ly avoid any­thing which com­mences by you saying;

​“I am not a racist/misog­y­nist/an­ti-jew­ish, but…”

If you are mak­ing excus­es at the begin­ning of the sen­tence it is prob­a­bly not worth fin­ish­ing at work.

Mei Mei makes a remark to her col­league Nick about the builders work­ing on her house saying;

​“Those Pacif­ic Islander and Maori peo­ple are all so lazy.”

Lit­tle does Mei Mei know that her col­league Nick to whom she is talk­ing is 2⁄8 of Maori descent (and iden­ti­fies as Maori) and his wife is from Samoa. Mei Mei’s gap in her knowl­edge regard­ing Nick may be based on her assump­tions about Nick­’s phys­i­cal appear­ance. Nick makes a com­plaint about Mei Mei’s com­ment. She receives work­place coun­selling which involves her apol­o­gis­ing to Nick.

Lee makes a com­ment to Mona about his lack of suc­cess in dating:

​“If you pay for din­ner at the date then she should return the favour.… women are such teas­es… I haven’t had any sex despite all those dates I’ve paid for.”

Lee does not realise it, but Mona is hor­ri­fied, upset and insult­ed that he thinks pay­ing for din­ner at a date means women owe him some kind of sex­u­al favours. The com­ment also makes Mona rethink how she inter­acts with Lee and changes her opin­ion of him. She also men­tions this com­ment to her man­ag­er who agrees it is not work­place appro­pri­ate and is con­cerned that the com­ment may con­sti­tute sex­u­al harassment.

Khan has been work­ing at Scam­Cam for 20 years and towards his 55th Birth­day his man­ag­er Jes­si­ca makes sev­er­al com­ments to Khan about his age including:

​“You’re get­ting old, you should retire… you’re going blind.”

Khan is insult­ed, is afraid he will be fired and even­tu­al­ly resigns from his posi­tion. Khan com­plains to the Human Rights and Equal Oppor­tu­ni­ty Com­mis­sion and after a con­cil­i­a­tion con­fer­ence Scam­Cam agrees to pay him com­pen­sa­tion in rela­tion to income he would have earned if he hadn’t felt he had been forced to resign.

Elise tells her man­ag­er Tahlia about her being preg­nant, in response to which Tahlia makes the fol­low­ing comment:

​“So I assume you will be leav­ing us soon.….. moth­ers should real­ly stay home with their chil­dren.…. and you would­n’t be much use return­ing to work part time anyway.”

Elise is upset that Tahlia thinks that Elise’s place is at home and that Tahlia is telling her what she should be doing with her chil­dren. Elise also feels Tahlia is mak­ing it clear that any request to return to work under a flex­i­ble work­ing arrange­ment would not be approved.

John says to his col­league Jen­nifer upon her return from extend­ed leave:

​“I see you have put on weight since you have been away.…have you got some­thing to tell us?”

Jen­nifer who is not preg­nant is upset about the chau­vin­is­tic nature of the com­ment and com­plains to Human Resources.

What would the con­se­quences be?

An incau­tious or in appro­pri­ate com­ment can con­sti­tute a breach of var­i­ous laws includ­ing: anti dis­crim­i­na­tion leg­is­la­tion, occu­pa­tion­al health and safe­ty leg­is­la­tion or the Fair Work Act 2009 (Cth). This means that your col­league can com­plain to your employ­er, a num­ber of exter­nal bod­ies or bring a claim in Court as a result of your behaviour.
Depend­ing on your employ­er and the sit­u­a­tion with­in the work­place, the result can range from:

  • noth­ing hap­pen­ing (except your col­league secret­ly hat­ing you)
  • you being coun­selled about the com­ment and you pro­vid­ing an apology
  • you receiv­ing a dis­ci­pli­nary warn­ing (which stays on your record)
  • being fired.

If an employ­er does not act on com­plaints of dis­crim­i­na­to­ry, harass­ing or bul­ly­ing com­ments then they can find them­selves involved in court pro­ceed­ings and vic­ar­i­ous­ly liable for their employ­ee’s con­duct. There­fore in most work­places you can rest assured that if a com­plaint is made dis­ci­pli­nary action will be taken.

For more infor­ma­tion regard­ing dis­crim­i­na­tion in the work­place please contact:

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.