7 Deadly Sins Committed by Employers – Workplace Investigations

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7 Deadly Sins Committed by Employers – Workplace Investigations

Employers commonly make a number of mistakes when dealing with issues of employee complaints, grievances or allegations of misconduct. However, there are ways to reduce the potential of costly lawsuits, industrial action and an unhappy workplace.

Employment lawyers are often asked to advise on workplace issues or disputes after the “horse has bolted”. Unknowingly, employers can have potential time bombs that explode into costly litigation. It’s difficult, if not impossible, to unravel or manage the paper trail of damaging admissions and dealings with employees and unions.

So how can you avoid making similar mistakes? Here are 7 mistakes employers often make and how to avoid them.

1. Failing to discipline employees and document poor performance in the first place:

In unfair dismissal claims, it’s common to find that the employer’s records don’t always demonstrate that there was a valid reason or a fair process for the dismissal. A common response to questions is; “oh, yes, I had a chat to them about that.” The problem with this approach is that, down the track, when the employee keeps on engaging in misconduct or when the employer can no longer tolerate the unsatisfactory performance, the employee’s personal file fails to show properly recorded documentation detailing the problems.

As a result, it is much more difficult for the employer to demonstrate that there were grounds to justify the termination or other disciplinary action. Vague recollections of chats at unspecified dates, are not very persuasive for courts and tribunals.

2. The “shotgun” or “knee-jerk” approach:

One of the biggest mistakes employers make is being reactive and not strategic about actual and potential workplace issues. An aggrieved employee will often take a “shotgun” approach in relation to a complaint or grievance by, for example; lodging a workers’ compensation claim, engaging their union, stating their intention to lodge an unfair dismissal claim or law suit.

These situations can often be overwhelming for employers, but it is important that employers do not have a “knee jerk” response, and jump straight into an investigation or legal action, without first following the appropriate procedures. Seek advice and address potential problems early and quickly.

Plan for this by having a grievance /complaint management procedure in place, so you can deal with issues as they arise.

3. Not having appropriate policies or procedures in place:

Following allegations of discrimination or harassment, policies are often found to be inadequate, employees have had no recent training (or no training at all), and managers and supervisors have let problems get out of hand. Implementing effective policies and procedures for dealing with such issues is vital.

Employers should ensure that their policies and procedures are comprehensive and up-to-date. It’s also essential to regularly train managers and employees on these policies and procedures. For example; an effective Grievance Resolution Procedure, should be a staple in every workplace.

It is recommended that grievances are managed via the following process.

Step 1: Informal Discussion;
Step 2: Raise Informal Grievance;
Step 3: Lodge Formal Grievance;
Step 4: Conciliation and Mediation;
Step 5: Investigation. (However, this should not be initiated until steps 1-4 have been attempted and documented.)

4. Failing to properly investigate employee grievances/complaints:

Managers and supervisors take shortcuts in investigations far too often. Typical mistakes when investigating a formal grievance may include;

  • Failing to understand and apply the principles of natural justice and procedural fairness;
  • Failing to plan an investigation methodically, or at all;
  • Not following a grievance management procedure; and
  • Failing to engage a suitably qualified Investigator.

5. Not managing staff effectively during an investigation:

Employers need to be aware of potential stress that may be suffered for those involved in an investigation, and have mechanisms in place to deal with it should it arise. Such as, access to Employee Assistance Programmes, counsellors or grievance officers. Staff morale is crucial and it is important to communicate with staff and be open with them about the investigation, without breaching confidentiality.

It often helps for the manager to give staff a brief explanation of what may be occurring in their work area to avoid the ‘rumour mill’ and avoid the workplace becoming toxic. When an investigation is completed, it is important to conduct a debriefing session, especially if the investigation involves misconduct. Remember, managers and supervisors need to ‘walk the talk’.

6. Not implementing recommendations:

An essential phase of any investigation is the implementation of change stemming from the recommendations in a report. It is a common re-occurrence that many employers fail to implement recommendations. The results of any major report or enquiry, should serve to generate improvements to the workplace and implement strategies to manage future complaints/issues.

7. Viewing an investigation negatively:

Employers should not look at a workplace investigation as an inconvenience or major problem. Treat an investigation as an opportunity to effect change if something is not working or, to strengthen existing processes, policies, procedures and overall functionality of your workplace. After all, a workplace investigation is just another managerial tool.

Avoid the Stress

Workplace investigations can be a stressful undertaking for all those involved. Get it right and systemic and endemic problems may be addressed. Get it wrong and you run the risk of creating a toxic dysfunctional workplace, so let INVision help!

INVision’s licensed Investigators have successfully conducted over 1000 workplace investigations, and offer over 45 years combined experience in working for various state and local government agencies, and private companies throughout Australia.

As such, we have a broad knowledge base, a comprehensive understanding and working knowledge of contemporary investigative techniques and relevant legislation.

If you have any questions regarding your workplace investigations, please contact one of INVision’s Directors via our website at www.inv.com.au
References:
http://www.humanresourcesmagazine.com.au/articles/d2/0c01d8d2.asp, authors Craig Taylor, Julia Sutherland and Marie-Claire Foley
http://www.wiseinvestigations.com.au, author Jo Kamira

Social Networking Sites – Dangers for Employers and Employees

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New workplace legislation has made online social networking communication between work colleagues more dangerous for employers. These days, more employees have easy access to email and the internet. It has become a social trend to participate in social networking websites such as Twitter, Facebook, MySpace, Bebo and YouTube.

An ‘adverse action’ clause in the Fair Work Act 2009, means that employer/employee social interaction on these websites could have wider implications.

What may be meant as an innocent comment via social media by an employer to an employee, may lead to bosses facing lawsuits for unlimited damages for harassment, bullying or discrimination. Allens Arthur Robinson Partner and head of the firm’s Workplace Relations Group Adam Lunn said;

‘Employers need to think very carefully before they allow employees to become ‘friends’ on their social networking site. Allowing employees to openly access your Facebook or MySpace account, opens you to defamatory material being placed on there, or just the perception your engagement with some employees is more favourable to them than to other employees. You could be seen to be discriminating against an employee that you don’t befriend. It is important to remember that the employer-employee relationship doesn’t stop at the office door.’

Under the Fair Work Act’s ‘adverse action’ clause, workers can sue for unlimited damages over actions that adversely affect their job, injures or discriminates, or threatens such actions.

Case Law

• ‘Nurse Ratched’ – An employee in Canada started a personal blog about running. The blog was available to anyone with access to the internet. The employee used her real name and alluded to her employer. She commented about her managers and colleagues in unflattering terms, referring to her supervisor as ‘Nurse Ratched’ and her workplace as a lunatic asylum. The court concluded that her dismissal was justified on several grounds, including the fact that her colleagues no longer wanted to work with her.

• ‘Diary of a Flight Attendant’ – A Delta flight attendant was dismissed after she started a blog entitled, ‘Diary of a Flight Attendant’, in which she posted what were considered to be ‘inappropriate’ photos of herself in her Delta uniform. These photos showed her relaxing on a jet on the ground in between flights. One photo depicted her leaning over her seat with a patch of her brassiere showing. The flight attendant claimed sex discrimination because Delta allegedly failed to discipline male employees who had posted pictures of themselves in uniform. The case was not heard due to Delta filing for bankruptcy.

• ‘Work Sux’ – A Warehouse employee was dismissed for writing on her Bebo page that ‘work sux’, and working until midnight was ‘gay like the management’. When the employer read the comments, she was fired for serious misconduct. The employer said the online comments had brought The Warehouse into disrepute.

• ‘Blackmailed by Management’ – An employee who worked as a personal carer at an aged care facility, created a website accessible by anyone. On her website, the employee published resident information and pictures without resident consent, and made inappropriate comments such as referring to her shifts as a ‘bitch’, and alleging that she was ‘blackmailed by management’. She was terminated for breaching the confidentiality agreement and for insubordination. Her dismissal was upheld.

In the above cases, some of the material was posted using the employer’s internet access, and during work time, but much was not. The employee used their own computer, outside work hours.
However conversely, many organisations view social networking websites as a potential forum to recruit suitable candidates, to network with like minded persons or to send a themed message.

So what can you do?

Employers need to think very carefully before they allow employees to become ‘friends’ on their social networking sites.

Recommendations

• Develop a social media policy which outlines precisely what is acceptable and unacceptable, in regards to the use of social media both during business hours and after hours.

• Train and educate your staff via short awareness raising sessions, or at staff meetings. Don’t just simply write a policy, email it to your staff, and except everyone will read it. Make sure they know their obligations.

• Don’t limit yourself to just the internet; decide your position on text messaging and portable devices like iPods and memory sticks.

• Be fair; if you decide to discipline one employee, make sure you are treating all your employees fairly, and in a similar manner subject to the facts of each case. Generally, if the conduct damages the employer’s reputation or business relationships, or internal employment relationships, then the employee’s employment may be in jeopardy. Each case should be dealt with on its own merits.

• Watch your back; if Managers/Supervisors have a social networking account, then don’t invite your employees to become your ‘friends’ and vice versa. Do you really want your employees reading everything you post on your site?

“Don’t let an online social networking site become a web trap for you or your staff.”

If you have any questions regarding social networking issues within your organisation, or other concerns in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au
References
(Lawyers Weekly) http://www.lawyersweekly.com.au/blogs/for_employers/archive/2009/11/24/managers-warned-to-watch-their-backs-on-facebook.aspx
(Phillips Fox) http://www.dlaphillipsfox.com/content/upload/files/NZ_Employment_Bulletin_DPF2085_March_2010_U.pdf
(Allens Arthur Robinson) http://www.aar.com.au/med/pressreleases/pr02nov09.htm

Employer Liability at Christmas Parties

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With the festive season fast approaching, employers are arranging their annual Christmas functions. While these celebrations provide staff, employers and clients with a great opportunity to relax and enjoy themselves in a social environment, away from the normal the constraints of work, they also have the potential to become a venue for undesirable conduct, which could lead to situations with serious legal implications.

Employers are increasingly faced with the consequences of the inappropriate conduct of their employees at employer sponsored Christmas parties. These parties can provide fertile grounds for litigation against employers who fail to take basic precautions.

Employers must be able to demonstrate they took reasonable steps to educate and inform their staff about the requirement to maintain reasonable standards of behaviour, with respect to their work colleagues, and other guests at work related functions, irrespective of whether the function is held at the work place or at another location. It is important to remind all staff that while it may be a time for celebration, it is still essential that their conduct is such, as to maintain a safe workplace. Reasonable steps mean pro-active preventative measures, as lack of awareness is not in itself a defence.

Take precautions before your work Christmas party, and take time to ensure your staff understand that there are limits on their revelry, so that you and your employees don’t end up with more than just a hangover!

What are the Risks?

Some recent examples provided by the Victorian Employers’ Chamber of Commerce and Industry of Christmas parties gone wrong include:

  • An employee ended up in hospital for two weeks, after suffering burns following Christmas party “festivities.” WorkSafe subsequently initiated successful prosecutions against four of the employees involved.
  • Another employee, in a separate incident, was injured by a propeller after being pushed off a pontoon boat at a Christmas party. The employer was subsequently found liable for the injury caused.
  • An offensive Christmas card left anonymously on an employee’s desk led to a successful claim for compensation.
  • A successful sexual harassment claim was brought following inappropriate behaviour on the dance floor at a Christmas function.

REMEMBER! Sexual harassment can constitute anything from an off-colour joke, to an ill thought out Kris Kringle gift, to dance floor hi-jinks.

When is an Employer Liable for Employees ‘Out-of-Work’ Conduct?

Where a Christmas party is funded and organised by the employer, the employer will typically be liable, unless the employer can show it took all reasonable precautions to prevent the incidents.
As well as conduct which might infringe sexual harassment or discrimination laws, employers need to be conscious of their obligations to ensure the health and safety of their employees. Another significant risk is that of physical injury, which might result in the employer being in breach of Occupational Health and Safety legislation or at common law for negligence.

Discrimination laws at both Federal and State levels, expose an employer to liability for employee conduct outside the workplace, as long as there is a “sufficient connection” to the employment or the employee’s duties.

All of the current case law demonstrates that the term, “in connection with” is given a broad interpretation.

Employer’s liability also extends to the responsible serving of alcohol, and also ensuring that staff return home safely, after having hosted a work function at which large amounts of alcohol are served.

If an employee has “behaved badly” outside work hours, what sanctions can the employer impose?
The answers to these questions are often difficult and confusing for an employer to navigate, and are best dealt with on a case-by-case basis, however, some of the recent case law below may provide some guidance.

Case Law

Does a staff Christmas Party constitute the ‘workplace’?

There are many cases where an employer has been found liable for out of work conduct of its employees.
In the recent case of Streeter v Telstra Corporation Ltd (2007) AIRC 679, “an employee was found to have been unfairly dismissed after being summarily terminated for having sex in front of other employees”, disrespecting other employees and lying during an investigation into the allegations. The Australian Industrial Relations Commission (“AIRC”) held that Ms Streeter’s conduct was not so serious as to warrant termination, and ordered that she be re-instated to a similar position in another Telstra store.

Facts

On 24 February 2007, a party was held by the employees of the Telstra Shop in Miranda as a belated Christmas party and to celebrate the promotion of the Store Manager. Telstra contributed $25 per head on the company credit card towards the dinner. The employee who organised the party, Ms Hyett, booked a hotel room for four Telstra employees for later in the evening.

After the party, three employees, including Ms Hyett, returned to the hotel room. They were joined later by Ms Carlie Streeter and two male employees. The following day, Ms Hyett complained that during the course of the evening, Ms Streeter sexually harassed her by being naked in the bath and engaging in sexual intercourse with the two male employees in the hotel room.

Telstra conducted an investigation into the complaint, and subsequently summarily dismissed Ms Streeter for serious misconduct. Ms Streeter lodged an unfair dismissal application on the basis that the alleged misconduct did not occur at a work-related function and did not amount to sexual harassment. Telstra argued that Ms Streeter’s conduct occurred in a work-related context, breached her duty of good faith and fidelity and breached Telstra’s code of conduct and workplace policies.

Decision

The AIRC considered that the central issue to be decided was whether Telstra had a valid reason for the termination of Ms Streeter’s employment. The AIRC agreed with Telstra’s assertion that it would be ‘extraordinary if an employer could be held liable for an employee’s conduct under the Sex Discrimination Act but that same conduct could not constitute a valid reason for termination of employment.’

The AIRC also confirmed that for sexual harassment to occur, there must be conduct of a sexual nature, it must be unwelcome and in relation to the person harassed. The conduct must occur in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

However, the AIRC concluded that Ms Streeter’s conduct did not constitute sexual harassment, or only did so in a ‘relatively marginal way’. Although it was sexual conduct and unwelcome, it was not ‘in relation to’ Ms Hyett. The AIRC held that it was not enough that the sexual conduct offended another person, the conduct must either be done with that person in mind or have a connection with that person. The AIRC ordered that Ms Streeter be reinstated to a nearby Telstra Shop and be paid compensation for remuneration lost as a result of her termination.

However, another example is found in Lee v Smith & Ors [2007] FMCA 59 where the Federal Magistrates Court held the Department of Defence was liable for the actions of an employee raping a fellow employee after a private function. Ms Lee was a naval officer who had previously made a compliant of sexual harassment against Mr Smith. Ms Lee, Mr Smith and others attended a dinner party at which Ms Lee was intoxicated, became unconscious and woke to find herself being sexually penetrated by Mr Smith. The court held that the rape of Ms Lee occurred “in connection with” the employment of Mr Smith. The rape “arose out of” a work situation as it was the culmination of a series of sexual harassments that took place in the workplace.

Having found that the out of work conduct had ‘sufficient nexus’ to the employment, the court then discounted the Commonwealth’s defence that it had taken “all reasonable precautions” to prevent the conduct, despite having “detailed, comprehensive and appropriate equity and diversity provisions in place”. Ms Lee was awarded $100,000 for hurt, suffering and humiliation.

Implications
Employers should ensure careful consideration is given to all the circumstances surrounding the particular conduct in determining whether disciplinary measures are justifiable.

To provide guidance, workplace policies should be clear on what constitutes unacceptable behaviour.
Employers should be aware that inappropriate behaviour by employees at Christmas functions and other work-related parties may result in the employer being vicariously liable for the behaviour.

However, whether disciplinary measures may be taken against the offending employee is complex. Before dismissing an employee, employers should ensure the conduct has a sufficient connection to the employee’s employment.

Planning Your Work Christmas Party

How can I take “reasonable” precautions to reduce the risk of such issues arising?

Some Practical Tips

In the context of the work Christmas party, employers would be well advised to take the following measures:

  • Remind all staff by memo, email or notice board about the standards of behaviour expected.
  • Ensure employees are aware that compliance with your organisations policies across the spectrum of; anti-discrimination and harassment, occupational health and safety, drugs and alcohol and codes of conduct, is required during work functions and work sponsored events.
  • Employees should be aware that if they breach these policies during a work function, they may be subject to disciplinary action including dismissal.
  • Keep consumption of alcohol to reasonable and responsible levels; ensure you are in a position to stop service if necessary and supply enough low or non-alcoholic beverages. Be prepared to “call last drinks” if necessary.
  • Make sure you provide a way for people to get home safely, whether that’s a pre-organised bus, uber, a taxi voucher or a limousine.
  • Make sure you serve plenty of food and make sure it’s served according to applicable food safety standards.
  • Make sure everyone is aware of the location of fire exits and any other precautions, particular to the venue. Ensure someone monitors hazards such as wet floors, loose electrical cables etc .

If you are concerned about certain aspects of your Christmas function planning, please contact one of INVision’s Directors via our website at www.inv.com.au

Sources:
Fisher, Cartwright, Berrimen, Discrimination Services -http://www.fishcart.com/newsletters/DQ_1.pdf –
McCullough Robinson -http://www.mccullough.com.au/publications/publications.aspx?p=47&itm=1975 – Employment & Industrial Relations Publication
Deacons- http://www.deacons.com.au/legal-services/workplace-relations/legal-updates. Authors: Maria Saraceni & Lucy Bochenek. Workplace Relations Legal Update.
Smart Company – http://www.smartcompany.com.au/legal/xmas-party-perils.html – Author: Peter Vitale