One way of dealing with this dispute about what is reasonable is to firstly look at what the law says and find out what you can and can’t do. From your research you find out that you might be able to direct all staff to speak English, because:
- They can all speak English; and
- Your request is an attempt to resolve conflict and not related to race / ethnicity or origin.
However, you also find out that banning employees from speaking their first language all the time might be unreasonable and may constitute racial discrimination.
You find out that you need to exercise caution when issuing directives to employees and need to make sure it is made on grounds other than the ground of the employee’s race.
You decide that it is reasonable to instruct staff to speak English when they are in the presence of other staff who can only speak English. However, on tea breaks or when there aren’t other staff around then staff can speak in their first or alternative language, as long as it doesn’t exclude anyone. Everyone agrees (at least to your face) that this seems like a reasonable compromise.
However, over time the relationships between staff seem to grow more tense. You notice that the friendly bantering has stopped and that the tea room has started to be segregated. You enquire and find out that there is a lot of resentment about not being able to speak their native language between each other without restriction. There is a perception that this has been created because the business doesn’t support diversity and that you have unfairly favoured an employee who is hypersensitive and has made a complaint that was unfair and unwarranted. You find out that the instruction you considered reasonable and entirely lawful has caused even more division between the staff.
Sometimes being ‘right’ and administering the law in a reasonable way still leaves you with dissatisfied staff, complaints and ongoing problems with the potential to escalate into expensive litigious claims or absenteeism, dysfunctional presenteeism, work cover claims, stress and anxiety leave, allegations of bullying and discrimination, an increasing need for formal performance management protocols, and perhaps a toxic workplace culture. All of these are very difficult to manage and can be highly expensive.
The problem is that just instructing staff to do something quite reasonable doesn’t necessarily mean that they will embed that into their behaviour, just because you said so. They may not necessarily ‘get it’. They will do it, at least superficially. But underneath, there are underlying unresolved complaints, thoughts, opinions, beliefs and judgements that will eventually leak out into damaging non-verbal and verbal communications. Maybe not all staff involved feel this way, but some will – often enough to cause a serious enough issue to contaminate the broader team.
Whenever there is conflict between staff about anything, an essential option to always consider is whether or not to give them a structured opportunity to sort the issues out between themselves in the first instance, before issuing definitive employment directives. Understanding what the law requires is important and can be a benchmark against which to test any agreements or to refer to as guidelines if agreements can’t be reached. However, even more powerful is providing safe spaces for staff to reach these resolutions on their own.
It’s not only providing them with time and space to discuss the issues but also providing them with a trained and experienced workplace mediator / facilitator who is able to manage the potentially fractious conversation in a safe and constructive way. If you don’t have any specialised training and expertise in managing conflict, here are some of the most common risks that you expose yourself to:
- Escalating the complaint (making it worse),
- Becoming part of what the complaint is about (which can lead to lodging of external complaints such as with the Fair Work Commission),
- Isolating one or a group of employees (who may feel you are unfairly ‘siding’ with one group or another),
- Exposing yourself or others to psychological harm (even though it’s unintentional),
- Complaint fatigue (issues not being resolved and requiring your ongoing involvement to the point of becoming exhausting).
The significant advantage of using a skilled workplace mediator to facilitate the conversation could well be having staff actually embrace and embed into their behaviour the self-regulated use of language taking into account genuine consideration of co-workers, instead of the potential resentment and negative discourse because of being compelled to comply with a perceived unfair even if lawful instruction.
Some of the most powerful moments that I have been involved in, is where a person is able to openly express and share what their experience has been and for the other to recognise and honestly share their own experience. It is in those moments of mutual recognition and acceptance that the communication pathways become unblocked – and then you can effect creative, real and lasting change.
National Practice Manager
Emverio Workplace Solutions
Workplace Mediations, Workplace Investigations, External Whistleblowing and Complaints
Equal Opportunity Tribunal of Western Australia, in the case of The Western Australian Mint & Industrial Personnel Company Pty Ltd v Jinda Tuinaphiang and Siriphon Linda Schulze, 2002
Australian Human Rights Commission, Racial Discrimination Act, 1975