What does the war have to do with work?

The war in the Middle East is causing tensions around the world, with repercussions far beyond the borders of Israel and Gaza.

We have seen an alarming increase in hate speech and hate crimes against people simply because of their race, religion or nationality.

Antisemitism in Australia is now at unprecedented levels, and continuing to escalate, as negative views and emotions towards Israel, and others, are channelled onto Jewish people and Jewish businesses. As explained by Justice Jagot of the High Court in her Sir Zelman Cowen Lecture,¹ "singling out or excluding a Jewish person because of disagreement with the policies of Israel involves the antisemitic fallacy that Jews are an indivisible and non-individuated whole that can be somehow equated with and held collectively responsible for every action of Israel". This lecture was given on 5 October 2023 - two days prior to the horrific events of 7 October 2023.

Around the world we have also seen a rise in Islamophobia, including for example calls for the deportation of people based not on their actions but solely on their country of origin.

Many people in Australia are feeling unsafe, threatened and victimised. Their security, which to now has been taken for granted, is under threat.

The images and news reports from the conflict are causing significant emotional distress, impacting people's mental and physical health. This emotional toll is filtering into our workplaces and employers must be cognisant of the potential legal issues that may flow.

Employers need to effectively manage these risks and do what they can to protect their employees. This includes:

• preventing conduct which unlawfully discriminates against or victimises an employee on the basis of their race, religion or nationality, which is unlawful under both state and federal legislation; and
• mitigating risks to employees' health and safety, including protecting employees from actions that could damage their mental health or constitute workplace bullying, as required under occupational health and safety legislation.

Unlawful discrimination

It is possible that workplaces that appear to support one side of the conflict over another may expose themselves to claims for unlawful discrimination on the basis of race, religion or nationality. An employer may also be vicariously liable for acts of discrimination that happen at or in connection with the workplace and should therefore ensure that all reasonable steps are taken to prevent racism or other discrimination among co-workers and support any complainants who come forward with a complaint.

For example, holding morning teas in support of one side of the conflict may be regarded as unlawful differential treatment on the basis of religion or national origin. Employer-sanctioned and public statements of support from employers, running fundraising campaigns, or supporting protests and marches may similarly constitute unlawful discrimination. In Victoria, such conduct may also give rise to a breach of the Charter of Human Rights (for public authorities).

Similarly, taking a less robust approach to prevention or management of the harassment or bullying of one vulnerable minority group over another, may be unlawful discrimination. This is what happened in the recent case involving Jewish students at Brighton Secondary College, where Justice Mortimer of the Federal Court found that there was a disinclination to adopt any systemic, school-wide steps to address antisemitic student behaviour, despite this having been done, appropriately, to protect other vulnerable groups.²

Workplaces may also be found vicariously liable for the conduct of individual employees who engage in conduct that unlawfully discriminates against another employee.

This may be direct conduct - such as offensive comments made to a Muslim employee about being a "terrorist" or a "supporter" of Hamas, simply because they are of Muslim faith, or indirect conduct - such as excluding a Jewish person from a group activity based on their religion.

Health and safety

All employers in Australia have an obligation to ensure the health and safety of their employees at work. Employees suffering distress from the conflict may be emotionally drained and distracted, increasing the risk of workplace accidents. Inappropriate workplace conduct by employers or colleagues (including unlawful discriminatory conduct) may also cause or exacerbate mental health conditions.

Various laws and regulations in Australia impose a positive duty to take reasonably practicable steps to ensure the psychological safety of workers. As with all safety issues, this requires a risk assessment to be undertaken, the implementation of preventive measures and providing relevant support for employees. It is not enough to simply address issues once they have been raised in a formal complaint.

In this heated environment, it is even more important to be aware of what is going on in your workplace and among your employees, which may cause a risk to their own health and safety or the health and safety of others.

This may include behaviour that constitutes bullying (which may result in both safety prosecutions under relevant state laws or orders under the Commonwealth Fair Work Act 2009), such as repeated teasing, baiting, sharing of memes or other social media posts, or other conduct that poses a risk to another employee's psychological safety.

If the stress or anxiety experienced by an employee in this context gives rise to a clinical mental health condition, the employee may have a legal right to request reasonable adjustments to accommodate this, which must be properly considered and only refused on reasonable business grounds. This might include temporary working from home arrangements or changes to work patterns or duties.

Liability for private activity?

The greatest blind spot for employers is the private activity of their employees. It is accepted that activity engaged in by employees outside of work or work hours may be subject to workplace laws and policies, particularly if the conduct bears upon the employee’s employment and is contrary to the employee’s contract of employment. This includes cases of sexual harassment which took place between employees outside of the workplace but were nevertheless found to be workplace-based harassment,³ and unfair dismissal claims which have been dismissed on the basis that the employee's out-of-hours social media conduct was a valid reason for dismissal.⁴ The High Court has found a government department was entitled to terminate the employment of an employee on the basis of anonymous tweets broadcast by that employee both during and outside of work hours.⁵

In the current context social media poses the greatest risk, for example where an employee posts something that would be unlawful in the workplace, and the post bears upon their employment or impacts on other employees.

For example, an employee who posts the slogan “from the river to the sea Palestine will be free” on their personal social media page (which is understood by many as a call for the abolition of Israel and therefore the annihilation of all Jewish people in Israel), may result in legal claims against the employer. This may be the case even if such a post is made on a private account, outside of work hours. How can a Jewish employee feel safe at work, knowing that a colleague is making racist (or worse) comments about them in their private time? Of course, the same may apply in regard to posts that are offensive towards Palestinians or that seek to minimise the impact of the conflict on Palestinians.

Conduct of this kind could constitute unlawful discrimination and racial vilification for which the employer may be held vicariously liable.

Similarly, employees who are part of a WhatsApp chat group that is used to discuss both work and private social matters can become problematic if discriminatory memes and links are being shared. In such a scenario, the workplace connection is even clearer, both in respect of the conduct itself, and any harm caused to the offended recipient.

Online conduct is obviously very difficult to monitor and mitigation strategies are very challenging to enforce. However, if an employer is unable to prove that it did all that was reasonably necessary to prevent that conduct from happening, it may be held liable. In some instances, individuals can also be found to be personally liable. In extreme cases and/or in smaller companies, this may include managers and members of senior leadership teams or the board of a company, who failed to identify and take adequate steps to prevent the conduct from occurring.

What should employers do?

From a legal perspective (morality needs its own article), employers should:

• remind employees of their obligations to ensure a harmonious workplace in this heightened environment, and to avoid any behaviour that would constitute unlawful discrimination or bullying;
• ensure that employees are aware of any employee assistance program (EAP) or other support services that are available to them;
• ensure that all employees (including volunteers, contractors and others in the workplace) are appropriately trained in workplace safety and appropriate workplace behaviour (including discrimination and bullying);
• ensure that managers or others who receive complaints are adequately trained in how to manage such complaints and have appropriate escalation and investigation processes in place;
• review their social media policy to ensure that it covers all platforms to which they and their employees have access and use to communicate with one another (in some circumstances including private chat groups and social media pages);
• take all employee complaints seriously and not brush these off as not being a workplace issue or not wanting to interfere with "freedom of speech"; and
• conduct risk assessments, including speaking to relevant employees to identify potential areas of concern to ensure their health and safety at work.

To proactively manage risks, employers might also consider more robust policies to monitor internal communications, and address social media activity and recruitment strategies to ensure that not only all current employees but the next group of graduates display the values consistent with a respectful and tolerant workplace culture.

¹ Sir Zelman Cowen Lecture, 5 October 2023, "Trying to understand antisemitism today"

² Kaplan v State of Victoria (no 8) [2023] FCA 1092

³ For example, Ewin v Vergara (No 3) [2013] FCA 1311

⁴ For example, Corry v Australian Council of Trade Unions [2022] FWC 288

⁵ Comcare v Banerji [2019] HCA 23

Photo by ehmitrich on Unsplash