Is employer’s defence of ‘cultural differences’ acceptable in bullying claim?

Restaurant owner says 'manhandling' part of Asian culture

Is employer’s defence of ‘cultural differences’ acceptable in bullying claim?

The workplace is an ever-evolving place where cultural differences between employers and employees can lead to misunderstandings. As different nations, regions, and communities have different values, employers and employees must become more aware of how to act and interact in this diverse environment.

In Australia, the issue of workplace bullying has become a major issue, with many employers concerned about what constitutes inappropriate behaviour. Is it okay to make jokes or engage in physical touching? Are there any clear boundaries for workplace conduct?

These questions can be difficult to answer, especially when considering the cultural differences of an organisation.

An employer needs to understand the importance of maintaining and cultivating a safe environment among workers, to avoid any serious consequences.

It is also important for HR professionals to understand the legal implications of physical contact and jokes and what constitutes bullying. HR must also have the tools to mitigate workplace bullying risks and ensure a healthy and productive workplace.

What happens when there is an apparent clash in cultures? The Fair Work Commission (FWC) recently dealt with a misunderstanding between an employer who thought his actions were harmless and an employee who no longer felt safe in the workplace.

Background of the case

The employer has a Korean background and over 20 years of experience in the hospitality industry in Korea and Australia. He manages the business with his wife. Together, they operate a Japanese-style restaurant in suburban Sydney.

The employee in this case was an 18-year-old school leaver employed as a casual waiter, with the wife as his supervisor. He worked mainly lunchtime shifts three days per week. At the date of resignation, he had been employed for two months.

During his first seven weeks of employment, the employee experienced the husband’s “habit of heavily patting him on the back two or three times while informally counselling him for errors or mistakes, such as being late for work or not working fast enough.”

On record, the employee said that at the time, he “did not take offence or feel unsafe.” He did not invite the back touching or patting, but he said nothing about it because it was not upsetting.

Later, while the employee was preparing for a lunchtime shift, the husband talked to him, and the following conversation allegedly ensued:

Employer: “You know how you work with [my wife], you know [she] is my wife? She told me that you are making her very stressed by not working fast enough. You can’t be making my wife stressed.”

Employee: “Yeah, I know. I’m going to do better today.”

Employer: “If you make my wife stressed, I’ll kill you. OK?”

Employee, after a nervous chuckle: “I hope not.”

As the employee walked past, the employer spoke to him again, simultaneously placing his right hand on his shoulder and accelerating his forward movement with a slight push. The push caused the employee to stumble between nearby chairs and tables. He was physically uninjured but “disturbed by the conversation and the subsequent push and stumble incident.”

After much reflection, the employee considered that his conversation with the employer and the push and stumble incident was a “pattern of behaviour that made him feel uneasy and unsafe about returning to the workplace.”

The employee explored his options and decided to contact the state workplace health and safety regulator, advising him that “if he considered he had been assaulted and threatened, he should report the matter to the police.”

He then went to the local police station and made a formal statement. The employee left “under the impression that the police considered it a workplace matter and were not likely to pursue an investigation into his complaint of an alleged assault and threat to life.”

Employment terminated

After communicating his concerns to the employee, his employment contract was terminated. He then filed proceedings with the FWC, alleging that he had been subject to adverse action (being dismissed) for exercising workplace rights (including the right to a safe workplace free of bullying and harassment) and sought compensation.

On the other hand, the employer raised the argument that the employee was not dismissed.

The employee argued that the employer’s conduct was “an assault that had been preceded by previous assaults and bullying  conduct.” 

He said that these incidents “made the workplace unsafe and made him fearful of the prospect of returning to the workplace in the expectation of further unreasonable and unlawful conduct to [him].”

The employee said that the employer’s action repudiated his employment contract, thus, he said that he was forced to resign.

Meanwhile, the employer submitted “that ‘the remark and the push’ may have somewhat been the product of cultural differences.”

Defining a resignation

The FWC reminded employers that a person had been dismissed if they resigned from their employment but was forced to do so because of conduct, or a course of conduct engaged by the employer.

“The test for forced resignation is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign,” the commission said.

The conduct in question was “not repudiatory as the nature and circumstances for the breach did not ‘strike directly at the heart’ of the employment relationship,” it said.

However, the FWC also said that although the employer’s actions “were deemed to be at a lower level of seriousness,” they were still unreasonable.”

Cultural differences?

It rejected the employer’s submission that his conduct was due to cultural differences.

“It matters not whether in the Korean culture, physical touching is more acceptable or commonplace as part of employee counselling, or whether extreme threats are accepted as mere frivolity, or whether doing so amongst males is tolerated,” the FWC said.

In the context of Australian workplaces and Australian law, “there is no basis on which a business owner or manager, including a person of a culturally different background, can reasonably expect to physically handle, let alone manhandle an employee as part of workplace interactions or counselling,” the commission said.

“Persons managing or in charge of businesses must adapt their cultural behaviour so as to not physically or verbally intimidate or threaten, no matter how unintended it may be. If they fail to do so, the effect will be that they may be exposed to legal action, including proceedings.

“Nor can such persons do so and only be expected to desist when told their conduct is unwelcome. It is an employer’s obligation to provide a workplace that is safe and free of bullying or harassment. That obligation is not dependent on or enlivened by being called to account by their employees.”

Moreover, the commission found there was “a material risk” that the employee could experience similar conduct in the future and “options other than resignation were, objectively, not reasonably available.”

Telling a manager to stop inappropriate conduct “was a heavy burden for young, inexperienced school leaver,” the FWC explained. Thus, it ruled that the employee “had no effective choice but to resign.”

“All forms of unwelcome touching give rise to a forced resignation. He was, therefore, dismissed,” the FWC said. As of date, the matter has been referred to a conference.

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