Comcare: How our workplaces ostracise sexual harassment victims

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(Image by Cristian V. via Flickr)

Luke Williams exposes Australia’s failing complaint systems, public services and legal culture when it comes to workplace sexual harassment. And if you were writing an allegory about Australia's employer-employee relations, Karen could be the main character.

KAREN HUTCHINSON MADE a sexual harassment complaint against a co-worker on behalf of three women.

Her workplace did not investigate those complaints.

Today, she is unemployed, on anti-depressants and fighting her former employer in court without a lawyer.

Karen worked for Comcare — the national body funded by taxpayers to enforce workplace safety laws and assesses worker injury claims for employees in the national public service.

Karen says three injured workers alleged their Comcare injury claims manager had repeatedly made crude and sexual remarks to them, she said:

These women were so afraid of the repercussions that he might visit on them that even when they (very reluctantly) admitted to me what he had been doing to them, they all refused to put their complaints in writing to Comcare management. That was the prompt for me to take the action on their behalf.

I spent many hours talking to Karen and she sent me a ton of documents. I can verify Karen did make a complaint to two Comcare senior managers about the alleged sexual harassment and that, 12 months later, she was informed those sexual harassment complaints had not been upheld in an internal investigation. Only, as I will explain, that turned out not to be true.

I can also verify that a month after she was told the complaints had not been upheld, Karen attended a "Respect and Diversity Training Workshop" with her Comcare colleagues.

In her group was an office director – that Karen says was a friend of the accused – who had also given Karen higher duties without pay and denied her a promotion. When the workshop leader asked for examples of bullying, that director leaned into her and whispered: “I am going to f**king kill you".

Comcare has never denied this happened but seems to imply she simply misinterpreted that statement. What we can also tell you is that Karen has been diagnosed with a major depressive disorder, panic disorder, agoraphobia and post-traumatic stress disorder — by Comcare-sponsored medics who all supported her claim, those injuries had been caused by that workplace incident.

Karen's sexual harassment complaints were never investigated

After being unable to find internal workplace justice, Karen went down what is a more or less prescribed and common route. In an era of limited strike powers, high rents, massive mortgages and atomised workers, Karen made a complaint and put in an injury claim. She was left not just unable to work — but enraged.

The Comcare director who made the “I’ll kill you” comment still holds his job.

Karen also made a Freedom of Information request that shows no investigation into her sexual harassment allegations against the claims manager happened at all. The managers she complained to never even passed on her complaints to Comcare's human resources department.

All the while, Karen has become more and more unwell. Comcare just refuses to talk about it with her and have instead hired a top-tier private law firm to fight her various claims.

The limits of an individual-based complaint system

Karen thought her complaints might hopefully make improvements to the way Comcare runs its own workplace.

Putting aside the fact Comcare is supposed to be an cccupational health and safety regulator, let’s broaden the lens and consider the tens of thousands of workers that complain as individuals each year through our anti-discrimination, anti-bullying, worker compensation and unfair dismissal systems.

These are vitally important complaint mechanisms — but do they pressure workplaces to make change collectively, do they help create a world of justice?

We asked a few different people this question.

Sarah Rey, managing partner of workplace law firm Justitia told Independent Australia:

... self-protection is the first priority for a vulnerable employee and changing organisations from within should be a lesser priority for the employee, because as a complainant/mere employee, one is not likely to effect change.

Psychologist Ellen Jackson runs a workplace consultancy called Potential Psychology; she responded:

I don’t believe change to organisational culture or practice will come from individuals taking legal action. It tends to be a David and Goliath battle which serves only to make the organisation tighten its hold on policy and procedure to avoid further legal claims. This perpetuates a negative, avoidant culture that increases the risk of workplace stress.

While according to Clare Ozich, executive director at the Australian Institute of Employment Rights:

Individual complaints are important to the individual and our system needs to improve how it deals with individual complaints as too many people are denied access to justice ... I think a lot more work needs to done on how we can promote, support and protect workplace democracy so workers can have more of a say over what happens in their workplaces.

Our democratic deficit

I almost feel the need here to go all "self-help" and talk about starting our own business, sub-contracting, living in a cheap country, taking out your super, starting meditation and so on. But I won't.

There’s a communal problem here: aggrieved workers of all varieties have been forced to over-rely on an individual complaints system. This often just lands an unemployed former worker against insurance companies, HR departments, internal lawyers and external law firms.

Ozich's use of the term “workplace democracy” got me thinking about another kind of workplace democratic deficit: stagnating wages and the public opposition to penalty rate cuts, rising profits and company tax cuts. The growing disparity between us and what the empowered elites think and do is reflected in their ideas of economic and workplace justice.

As a journalist, I've been investigating cases like Karen's for nearly 10 years and it's always, broadly, the same story. Workplaces protect the accused if they are an executive or even just in a management role; public service bodies, in particular, will spend hundreds of thousands of dollars fighting a claim that it would cost them less just to apologise for and settle.

All the while, nothing at the workplace is ever changed because they have just passed the entire matter to the lawyers who spend their time searching for tricks and technicalities to get out over it.

Then there's also the common reality of what happens to all those work colleagues they thought were their friends, as Karen has told me:

I am ashamed and embarrassed to admit that within Comcare, as a public sector employer, not a single person, no man or woman stepped up to back me. In fact, when it became clear that I had been targeted by management as someone who needed to be eviscerated from the workplace, everyone either stood by and watched it happen (the silence was deafening), or actively they fell over each other to get me out the door in an effort to show loyalty to their hiring and firing masters.

I see this happening over and over again. If ostracising a dissenting worker is done out of self-protection one could almost understand — although not agree with it. The problem, however, seems to me far deeper: so many workers have become accustomed to a conformist, authoritarian culture they genuinely seem to think that the outlying worker – the abuse victim – is the one with the problem.

The fact remains that we have strength in numbers. We just don't use them. Perhaps we can all learn from a broad principle of the #MeToo movement, what Kate Holden has called the campaign's 'cohering, adhesive' effect.

If you're a dissenting worker, I can only conclude the only way you can fight the short-term and long-term battle is to find a way to bring people on your side. If you're not a dissenting worker, I'll leave you with a question: What do you do when you see someone getting screwed over at work?

Comcare was asked for comment on Karen Hutchinson's complaint and they declined. Comcare was then asked why her sexual harassment complaints were not investigated and they did not respond at all.

Luke Williams is an author and two-time Walkley finalist.

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