06 October 2020
Man with mouth taped

By Travis Schultz, Managing Partner

For those who spend their days seeking compensation for victims of workplace negligence, misconduct or abuse, the expectation that the parties will sign a settlement deed or discharge on the resolution of a claim, is well ingrained.

In Queensland, the Worker’s Compensation and Rehabilitation Act actually prescribes (in sec 293) that, “If a claim or contribution claim is settled before the start of a court proceeding, the parties to the settlement must sign a discharge for the claim”.

Then there’s the ‘standard’ WorkCover and self-insurers’ release forms for Claimants – which invariably contain a condition of confidentiality – but are these clauses simply protecting perpetrators and hindering the #metoo movement?

In your garden variety master/servant damages claim arising out of an industrial accident, terms of confidentiality rarely present a barrier to resolution. But in cases involving allegations of workplace bullying, victimisation or even sexual harassment, is it fair or proper to expect the victim to swear to secrecy about the misconduct (or in some cases, even criminal conduct) of the culprit?

Workplace sexual harassment remains a serious and systemic issue in Australia, and one very much in the spotlight. Leaders have a vital role to play in setting standards and oversight to drive real change in organisational responses.

In March this year, the Australian Human Rights Commission released Respect@Work*, a report that followed an 18-month national inquiry into workplace sexual harassment. Through its 55 recommendations, the report proposes an evidence-based framework for preventing and responding to workplace sexual harassment at the forefront.

Over the years, I’ve acted for several victims of this type of conduct and it’s fair to say that the Claimant usually feels relieved when the process concludes with a resolution but then subsequently aggrieved that the price they pay for a settlement includes a promise to protect the wrong-doer from any public awareness of their misdeeds. And in cases where the offending conduct is ingrained in organisational culture or is systemic amongst a cohort of co-workers, the confidentiality clause can be a particularly bitter pill to swallow. After all, many of these victims are motivated to bring a claim in the first instance to try and bring about the necessary change that will prevent someone else from having to go through a repeat of the same circumstances.

So why is it that in this day and age where large employers promise to be “employers of choice”, to hold values of equality, mutual respect and to stand for the protection of individual’s rights they (and their insurers) still expect to buy their victim’s silence as part of any compromise?

And in the case of the State of Queensland, which holds itself out on the Crown Law website* as the “model litigant”, how can it profess to hold such a standing when it compels any victim of abuse in any of its departments, services or bodies corporate to remain forever mute about their experience and the cross they bear as a consequence?

Needless to say, I get that allegations are just that, until proven in a very public forum. And that fairness must be extended to the alleged perpetrator as well; but isn’t that what defamation laws are designed to achieve?

It’s astounding that we can find ourselves in the 21st century where we readily accept that bullying, sexual harassment and systemic victimisation should no longer be swept under the carpet, yet still put a clamp on the voice of the brave souls who are prepared to call out this type of conduct in order to bring about change!

Covid-19 has made us all aware of the importance of organisational health and safety. The prevalence of harassment – Respect@Work revealed one in three people said they had been harassed in the previous five years – shows that organisational responses require a serious rethink.

If we’re sincere about putting an end to the toxicity of this form of cultural abuse in our workplaces, corporate and government organisations, surely it’s time that we allow the victims to retain their voice; to use if they choose and when it’s appropriate? No-one wants to air their dirty laundry, but sometimes it is the only way to enable a systemic cleansing to take place.

October is National Safe Work Month. What better time to make our commitment to improving safety and health in our workplace – and rethinking whether in this day and age we should be protecting perpetrators by insisting that victims sign up to confidentiality clauses in any settlement agreement?

*Sources:

  1. Respect@Work: Sexual Harassment National Inquiry Report (2020)
  2. Model Litigant Principles

Travis Schultz

Travis Schultz

Managing Partner