ETHICAL EMPLOYMENT PRACTICES AND THE LAW 97One of the most important of these areas is in relation to occupational
health and safety. Employers, and other duty holders, are now placed under
a broad range of obligations that can be seen to be intended to protect the
health, safety, and welfare of employees and other persons to whom they can
properly be seen to owe a duty of care. This forms part of a continuum from
the nineteenth century British factory legislation which was discussed earlier
in this chapter, but with a much greater emphasis on the establishment and
maintenance of safe systems of work, rather than the observance of detailed
rules which characterized the traditional system.
Employer obligations under occupational health and safety legislation also
interact with their obligations under legislation which has been adopted at
State and federal level that is intended to promote equal opportunity in
employment, and to protect employees against discriminatory treatment on
grounds such as race, gender, ethnicity, sexual preference, disability, age,
etc. (Bourke and Ronalds 2002). Such provision clearly proceeds from the
assumption that discriminatory treatment on the basis of arbitrary criteria
is unethical, and that employers should be encouraged to afford equality
of opportunity to all employees or potential employees. It interfaces with
occupational health and safety legislation in relation to issues such as sexual
harassment and workplace bullying. For example, sexual harassment, whether
by a member of management or a fellow-worker can clearly constitute a threat
to the health and safety of the person to whom the harassment is directed,
and equally clearly can constitute a breach of the employer’s obligations under
equal opportunity and anti-discrimination legislation. The same is true for
workplace bullying, where the victim is often selected because they possess a
particular attribute that makes them stand out from their fellows and/or that
makes them particularly vulnerable to physical or mental abuse.
One of the harshest effects of the application of laissez-faire contractualism
to the work relationship was in relation to termination of that relationship.
On the basis of contract principle, all an employer had to do in order lawfully
to terminate an employment relationship was to adhere to those terms of the
contract which dealt with termination, and that was the end of the matter.
Procedural or substantive fairness were entirely beside the point—unless rel-
evant standards were in some way incorporated in the contract. This meant,
for example, that if a contract provided for termination on one week’s notice
on either side then the employer could lawfully terminate the employment
of an employee who had rendered many years’ loyal service on nothing more
than the whim that the employer disliked the colour of the employee’s tie on
a particular morning, provided the employee was given the requisite notice or
payment in lieu thereof.
Not surprisingly, arbitrary termination of employment was a frequent
source of industrial disruption over the years. More surprising, perhaps, it
was not until the 1980s that it became clearly established that the forerunner