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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

What is Bullying?

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Could you identify a bully in your workplace? What is Bullying?

‘Workplace bullying means any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine or threaten and which creates a risk to health and safety.’

Repeated refers to the persistent or ongoing nature of the behaviour and can refer to a range of different types of behaviour over time.

Systematic refers to having, showing or involving a method or plan. Whether behaviour is systematic or not will depend on an analysis of the circumstances of each individual case with the general guideline in mind.

Risk to health and safety includes the risk to the emotional, mental or physical health of the person(s) in the workplace.

“Bullying” can be serious misconduct, and may, subject to the particular circumstances, be a valid reason for termination. Bullying behaviour can be obvious and aggressive.

Examples could include:

  • Abusive, insulting or offensive language;
  • Behaviour or language that frightens, humiliates, belittles or degrades;Teasing or regularly making someone the brunt of practical jokes;
  • Displaying material that is degrading or offending;
  • Spreading gossip, rumours and innuendo of a malicious nature.

NB: Violence, assault and stalking are extreme forms of bullying that constitute a criminal offence. Such behaviour should be reported directly to the police.

Workplace bullying can also be subtle and could include behaviour such as:

  • Deliberately excluding, isolating or marginalising a person from normal workplace activities;
  • Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment;
  • Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism. Covert behaviour that undermines, treats less favourably or disempowers others, is also bullying, for example:
  • Overloading a person with work;
  • Setting timelines that are very difficult to achieve, or constantly changing deadlines;
  • Setting tasks that are unreasonably beyond a person’s ability;
  • Ignoring or isolating a person;
  • Deliberately denying access to information, consultation or resources;
  • Unfair treatment in relation to accessing workplace entitlements, such as leave or training.

What Isn’t Bullying

  • Reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline, counsel, retrench or dismiss an employee;
  • A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with an employee’s employment;
  • Reasonable administrative action taken in a reasonable manner by an employer in connection with an employee’s employment; or
  • Reasonable action taken in a reasonable manner under an Act affecting an employee.

Bullying as Serious Misconduct Justifying Dismissal

In 2008, the Australian Industrial Relations Commission (AIRC) considered whether bullying constituted serious misconduct to justify dismissal in the matter of Karen Sinapi v Coles Supermarkets Australia Pt y Ltd [2008] AIRC 405.

The story …..

Ms Sinapi was a Store Manager at Coles’ Campbellfield and had been employed by Coles in various roles over 24 years. Following an internal investigation, Coles terminated Ms Sinapi’s employment for serious misconduct. Ms Sinapi sought compensation in the AIRC, alleging the termination of her employment was harsh, unjust or unreasonable. Coles argued that Ms Sinapi’s behaviour on several occasions justified dismissal including that she had:

o Used offensive language to a sales representative;
o Adopted a demeaning and belittling attitude towards another employee (Ms Thompson) including, grabbing her ponytail and pulling her towards a store display; and
o Engaged in “flirtatious and inappropriate behaviour” with a subordinate employee on
a number of occasions which was observed by other employees and captured on security video footage.

Ms Sinapi admitted using offensive language but said that she had spoken in an “amiable and jocular manner”. She admitted pulling her colleague’s hair, but claimed that it was “gentle” in nature and that there was “a prevailing mood of jocularity”. Ms Sinapi claimed her behaviour towards the subordinate employee had been consolatory in nature.

The result ……

In rejecting Ms Sinapi’s application, the AIRC commented that any one of the incidents would be sufficient to justify termination of employment, and together, constituted a valid reason for termination. Given Ms Sinapi’s position as Store Manager, the AIRC held that it was reasonable to expect that she would be an exemplar of the behaviour expected of employees. Further, Coles was under an obligation to act where behaviour of an employee breached normal standards of professional courtesy and etiquette and had the potential to damage its reputation, both in the market place and in the community.

Why bullying goes unreported

There are many reasons why workers may not report bullying or cooperate in inquiries. These include:
lack of response by employer;

  • lack of knowledge about bullying behaviours and their effects;
  • uncertainty about the correct procedure or where to seek help;
  • fear of retribution from the bully or bullies;
  • feelings of intimidation or embarrassment;
  • belief that the behaviour is part of the workplace culture;
  • feeling that nothing will change; or
  • feeling that their opportunities for promotion in the organisation or the industry will be affected.
  • Some workers may not be aware that the organisation they work for has established bullying prevention and management procedures and that their reports will be dealt with in a proper manner.

How to prevent bullying

Although primarily a psychological issue, workplace bullying should be managed like any other occupational health and safety hazard. That is, once identified the degree of risk should be assessed and the risk controlled and reviewed to ensure that workplace bullying does not become, or continue to be, a problem within the workplace.

Consider the following:

1) Consult with workers and safety and health representatives

Employers should establish whether bullying exists in their workplaces or whether there is the potential for bullying to occur. Employers may seek the cooperation of workers to identify bullying behaviour. Bullying is more likely to be reported and cooperation achieved if managers, supervisors and other workers have been involved in the process from the beginning.

2) Develop a prevention policy

A bullying prevention policy, developed by employers in consultation with workers and safety and health representatives, should aim to eliminate existing workplace bullying, if any, and prevent it in the future.
The policy should include a bullying prevention policy, directed at promoting principles of decency and mutual respect and combating discrimination in the workplace. The policy can be developed on its own, or may be included in an occupational safety and health policy or code of conduct.

Workers should be aware of policies and the need to follow them in performing their jobs. Preventative measures may involve an organisation-wide response as well as addressing symptoms in a specific area.

3) Provide information and training

Employers should make information on workplace bullying available to all workers, supervisors and managers. If necessary, the information should be provided in languages other than English.
Information on the bullying prevention and management policy should be widely promoted in the organisation through information sessions, staff meetings, newsletters, etc. The policy should be included in the induction package for all new workers.

Workers should also be provided with information on points of contact within the organisation, such as contact officers or grievance officers.

4) Monitor the effectiveness of action taken

The bullying prevention plan should be regularly evaluated to ensure that it remains appropriate and it prevents bullying at the workplace.

Responding to Incidents

Informal resolution process

An informal resolution process aims to ensure that the bullying incident is resolved as quickly as possible. Although an employee has the right to make either a formal or an informal complaint, they should be encouraged to commence with the informal process first, as this can usually achieve a more timely and satisfactory resolution for both parties.
If the informal resolution process fails to provide an agreed outcome then the employee should be told that they could pursue a formal complaint leading to investigation.

Formal investigation process

It is important that employees clearly understand what to expect from making a formal complaint. You may wish to inform employees that:

  • The investigation procedures will adhere to natural justice principles and ensure fairness for all concerned;
  • An investigation will occur as soon as possible after the complaint is received;
  • An impartial person who can carry out the investigation without hindrance will conduct the investigation.

What are your obligations?

Occupational Health, Safety and Welfare

Due to the effect on the safety and health of employees and others at the workplace, bullying is unlawful under the Occupational Safety and Health Act 1984 (WA).

Equal Opportunity

Equal Opportunity Act 1984 (WA) Bullying behaviour can involve elements of discrimination. The types of discrimination covered by West Australian law include disability, race, sex, age, sexuality, pregnancy and marital status. Employees being bullied on any of these grounds can make complaints to the Equal Opportunity Commission, who will attempt to resolve the complaint privately by conciliation. If settlement cannot be reached, cases can be referred to the Equal Opportunity Tribunal for a public hearing and decision.

Worker’s Compensation

Although the Workers Compensation and Injury Management Act 1981 (WA) does not mention bullying specifically, psychiatric disabilities caused by bullying at work, are compensable, if and only if, the employment was a substantial cause of the disability. An employee may make a claim for compensation regarding any compensable injury that arises out of, or in the course of their employment.

Industrial Relations

There is no specific provision in the Industrial Relations Act 1979 (WA) that deals with workplace bullying, however, where an employee is dismissed or forced to resign as a result of workplace bullying, the worker may be entitled to make a claim under the unfair dismissal provisions of that Act.
Where it can be demonstrated that an industrial dispute exists between an employer and employee and all of the necessary requirements of the Act have been met, a notice of industrial dispute can be lodged with the Industrial Relations Commission of Western Australia to seek its assistance to resolve the dispute.

Criminal Law

Workplace bullying may also amount to criminal behaviour in breach of the Criminal Code Act 1913 (WA) various criminal legislation. Examples include assault and unlawful threats.

Sources:
Department of Commerce WA – Code of Practice Violence Aggression and Bullying at Work 2006.
Preventing Bullying in the Workplace – A Practical Guide for Employers, Equal Opportunity Commission of South Australia.
Heidi Fairhall, Lawyer, Blake Dawson, Sydney (case law)

Age Discrimination in the Workplace

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Age Discrimination in the Workplace – Too old to work?

Ageism is essentially bias against a person or group on the grounds of age. An ageing society means that greater numbers of older people may want, or need to remain in the workforce for longer periods. However, older people often encounter barriers to full participation in society. This is most marked with respect to employment.

In the workplace, we need age diversity to profit from the invaluable contributions that each age group can offer. Ageism is present in every stage of employment, from recruitment and selection to terminations.

It seems that ageism permeates our culture and society. It is exacerbated by negative connotations in our language, literature and media. Myths and stereotypes about older people in the workplace continue to present a barrier for older workers in obtaining and retaining employment. Some stereotypes tend to present older workers as being; “unadaptable to change”, “set in their ways”, “technologically illiterate”, “dependent” or “irrelevant.”

Despite an increase in mature age workers in the workforce over the last two decades, the biggest hurdle that these individuals face continues to be discrimination, with some essentially coerced out of the workforce. If older workers are perceived as less productive and are forced to retire, the idea that older workers are not productive, is reinforced and further perpetuates discrimination.

What are the Statistics?

According to a 2004 survey conducted by the Australian Bureau of Statistics ‘Mature Age Person Statistical Profile’, out of 1500 people surveyed aged between 45 and 74, 67% had concerns about the prospect of re-entering the workforce or advancing in their current jobs. In 2004, close to one-third (32%) of people participating in the labour force were aged 45-64 years, up from 24% in 1983. This increase not only reflects larger numbers of people entering this age group as the baby boomers age, but also changes in labour force participation over the period.

Another 2004 survey conducted by Hudson Global Resources and Human Capital Solutions, also found that less than one-third of organisations proactively seek to attract and retain mature age workers.

What are the Age Discrimination Laws?

All States and Territories have legislation in place, which, at least in theory, protects people from discrimination on the grounds of age. In 2004, the Federal Government passed the Age Discrimination Act. The act seeks to protect the interests of both younger and older Australians, and covers areas such as; employment, education, provision of goods and services and facilities and accommodation etc.

In Western Australia, the Equal Opportunity Act 1984 (WA) covers grounds of unlawful discrimination such as; sex, sexual orientation, marital status, pregnancy, race, religious or political conviction, age, racial harassment, impairment, family responsibility or family status, gender history.

Case Law

Even though potential employers cannot advertise age preferences for jobs, some advertisements still provide numerous clear messages about the preferred age range, through the use of age specific descriptors, such as ‘a young, exciting environment’ etc. While such language or criteria can be used legitimately for employers to find a suitable employee, they can also hide ageist biases.

For example, in Hopper & Others v Virgin Blue Airlines Pty Ltd [2005] QADT 28, the Queensland Tribunal found that Virgin Blue had discriminated against eight female complainants, who had applied for the positions of “cabin crew member”, because they were over the age of 35. While the criteria of ‘Virgin Flair’ did not contravene anti-discrimination laws per se, the assessors’ application of their preference for younger people, was more in line with the concept of ‘Virgin Flair’, described as – ‘a desire to create a memorable, positive experience for customers: the
ability to have fun, making it fun for the customer.’

In Gilshenan v P.D. Mulligan (Newcastle) Pty Ltd (1995) EOC 92-781 a 64-year-old butcher was transferred from the butcher’s shop to a sausage-making factory. He alleged that the transfer was intended to induce him to retire; the respondent however claimed that he was too slow at his job and was not fulfilling the inherent requirements of the position. The Tribunal found that he was competent at his previous position, and ruled that the respondent had discriminated against him on the basis of his age.

Similarly in Goodworth v Marsdens Motors Pty Ltd (No 1) [1996] NSWEOT; EOC 92-837. Ms Goodworth was forced to retire after six years of employment with the respondent. The company claimed she was inefficient, incompetent and the office was overstaffed. The Managing-Director however purportedly told a trainee that Ms Goodworth was ‘older and her health is not good. We want someone younger. You can do the same job that she did.’

Skinner v Lightning Bolt Pty Ltd [2001] EOC 93-167. The complainants, aged 58 and 57 were laid off after three months of employment. The respondents claimed there was not enough work for them due to a down turn in trade, as a large client had gone into liquidation. When one of the complainants returned to the respondent to get a reference, he noticed two younger men aged 36 and 21 doing the jobs of the two complainants. The Tribunal found that there was no shortage of work for the complainants, and that they were in fact discriminated against because of their age.

Solutions to Ageism in the Workplace

While a well implemented ageing strategy will improve morale, teamwork, cooperation and productivity across all levels of the organisation, workplace policies must be framed carefully. Ageism is just one of the many challenges organisations must address in order to embrace one of the only remaining segments of the workforce in which participation can be increased.

The following HR practices are important;

1. Introduce measures to combat ageism such as education and awareness programs;
2. Restructure work practices to accommodate emerging population trends;
3. Train staff to enhance the organisational skill set; and
4. Train managers in age management strategies and age discrimination.

Just as organisations put in place strategies and policies to address issues such as workplace bullying or harassment, employers must consider the same in order to prevent age discrimination from gaining a foothold in their workplace.

Tailoring policies and practices for age diversity is an important emphasis in the management of staff, and can be a demonstration of management and organisational flexibility. Organisations that discriminate on the basis of age, are limiting their chances of recruiting and retaining the best people.

As people live longer, engage in lifelong learning and pursue intellectual and skill growth throughout life, diversity in the workplace will become more common. In their quest to open doors to employment, development and opportunities for all working people, human resources specialists should not be constrained by age issues.

If you have any questions regarding issues of ageism, or other concerns in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

References:

http://www.smartmanager.com.au/web/au/smartmanager/en/pages/111_age.html
http://www.austlii.edu.au/au/journals/QUTLJJ/2007/6.html
http://au.hudson.com/documents/emp_au_18_august_2004.pdf
http://au.hudson.com/documents/emp_au_Whitepaper_ageism.pdf
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Workplace Investigations – The Employee and the Employer

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The workplace is becoming an increasingly challenging environment for both staff and management alike, with grievances and the reporting of allegations of inappropriate behaviour on the rise. Coupled with the rise in regulatory requirements, there are expectations for greater levels of responsiveness, accountability and transparency. Increasingly, organisations are recognising the need to respond to these situations in a timely and appropriate manner.

However, a very important element in the employment relationship, is the trust an employee has in the employer that he or she will not be treated unfairly, and on the part of the employer, that the employee with not act unfairly in a manner detrimental to the employer.

Why Would I Need to Conduct a Workplace Investigation?

Often these issues can pose significant risks to an organisation. It is important, that unless workplace issues are dealt with quickly and effectively, the effect upon the organisation can be costly in terms of loss of valuable personnel, time, money and productivity, and may adversely affect an organisation’s good reputation.

Who Should Conduct the Investigation?

A common response in the past was to have the complaint or issue investigated by a Supervisor, Manager or a HR consultant, using an informal approach to resolve the situation. The experience of many is that once inquiries are commenced, and the lid is lifted from the proverbial ‘can of worms’, matters become much more complex than the initial information may have indicated.

Do They Have the Right Skills and Experience?

The organisation needs to satisfy itself that the person asked to carry out the task, has the necessary skills and knowledge to be able to conduct the investigation, in accordance with the principles of Natural Justice and Procedural Fairness.

It is essential that issues such as potential conflicts of interest are identified. A perception of bias on the part of the Investigator held by the complainant, respondent, witness or observer can undermine and taint the entire investigation and any outcomes.

Although not every workplace inquiry needs to be conducted as a full and formal investigation, where a full investigation is required, then it is paramount that the person conducting the investigation is seen to all those involved and observers as being unbiased and skilled to undertake the task. The perception that an investigation is being conducted fairly is just as important as the reality that it is being done so.

What are the Benefits of Appointing an External, Independent Investigator?

The investigation may identify systemic problems within the workplace which could lead to criticism of the organisation. In many instances, an internal Investigator may find it difficult to raise issues that they feel may not be popular with their Managers or Directors.

Adverse findings may result in ill feelings against the Investigator, which may cause further difficulties if the Investigator is required to work with those involved in the investigation during the normal course of business.

It will often be the case, that in serious matters resulting in an investigation, there are distinct advantages in an independent external Investigator being appointed. An independent Investigator will only be influenced by the evidence, they are removed from the organisational culture and politics, and the findings will be based on facts, enabling the organisation to make appropriate decisions.

Do You Have Policy Governing the Conduct of Investigations?

As an employer, you can prevent unnecessary disputes and stress in the workplace, by ensuring that your organisation has clear and transparent policies, and procedures in place governing the conduct of an investigation. The policies should apply equally to investigations conducted by another employee, or an independent Investigator.

Case Law – The Importance of Conducting a Proper Workplace Investigation

The case of Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784, relates to company policies, and also highlights important lessons in investigating workplace grievances, and in particular, the requirement to resolve factual disputes, make clear findings and the importance of a formal framework.

The Facts:

Mr Nikolich worked as a client financial adviser for Goldman Sachs JB Were. In Canberra, advisers service a portfolio of clients, the success of which impacts on their remuneration. Mr Nikolich formed a team of advisers to improve the level of customer service.

When one of the team members left, Mr Nikolich understood that the departing employee’s clients would continue to be serviced by the remaining team members. However, Mr Nikolich’s manager, Mr Sutherland, reallocated the clients largely outside the team. Mr Nikolich lodged a formal complaint about the reallocation and alleged victimisation and intimidation by Mr Sutherland following the reallocation.

The grievance was handled by an HR manager based in Sydney. She immediately contacted Mr Nikolich and arranged a telephone conference. Mr Nikolich was unsure what outcomes he sought, although he wanted something done and did not want his position jeopardised.

The HR manager checked the reallocation with senior management, who said it was appropriate for the branch manager to allocate clients. However, Mr Sutherland handled the reallocation poorly and morale was suffering as a result. Around August 2003, the HR manager sought a response from Mr Sutherland, who denied most allegations. Mr Nikolich subsequently raised a new complaint about Mr Sutherland allegedly transferring one of Mr Nikolich’s clients to himself.

In December 2003, the HR manager provided written outcomes of the investigation. She acknowledged a lack of transparency. However, she determined that: management’s decision to reallocate the clients was “appropriate”; there was no attempt by Mr Sutherland to intimidate or cause stress to Mr Nikolich; and Mr Sutherland had stepped down from his management role.

The Result

Mr Nikolich suffered a depressive condition, which led to the termination of his employment. He brought a claim for breach of contract in the Federal Court.

The Federal Court found that the handling of Mr Nikolich’s complaint was “extremely inept” because there was no recognition of the seriousness of the complaint (an alleged abuse of power), the HR manager should have travelled to Canberra to conduct interviews (if necessary, a venue should have been hired for interviews to ensure confidentiality) and no effort was made to resolve the factual conflict between Mr Nikolich and Mr Sutherland. In particular, key witnesses were not interviewed.

The Cost

The process was found to be in breach of the company’s grievance handling procedure and the employee was awarded $515,869 in damages. The employer is currently appealing the decision.

If you are concerned about any aspect your workplace investigations, please contact one of INVision’s Directors via our website at www.inv.com.au

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

Cyber Bullying in the Workplace

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While the subject of cyber bullying of children and adolescents has begun to be addressed, there has been less attention on cyber bullying in the workplace. Adults in the workplace are not immune to cyber bullying, and it can manifest itself in many different forms.

With the Information and Communication Technology revolution over the last decade, there has been a rapid growth in the number of people interacting using modern technologies, such as the Internet and mobile phones. As of 2010, there are almost 2 billion Internet and mobile phone users worldwide.

This widespread access to modern communication devices has provided an alternative medium for bullies to target their victims. Various terms have been used to describe this new phenomenon including; cyber bullying, electronic bullying, e-bullying, SMS bullying, mobile bullying, online bullying, digital bullying, and Internet bullying.

What is Cyber Bullying?

Remember! – workplace bullying can be defined as … “Repeated, unreasonable or inappropriate behaviour directed towards a worker, that creates a risk to health and safety”

Cyber bullying involves the use of information and communication technologies to support deliberate, repeated, and hostile behavior by an individual or group, that is intended to harm others.

Forms of Cyber Bullying

Cyber bullying can be accomplished in many different forms using modern technology. Although cyber bullying is becoming more prevalent in the workplace, but is not only limited to the work environment, some examples include;

E-mails – sending emails containing material of an offensive or inappropriate nature. These may include, but is not limited to, offensive jokes, images or pictures. An unfortunate yet emerging trend, is for the bully to digitally manipulate photos or images of the victim, depicting them in a derogatory or humiliating light.

  • Cyber Stalking – the transmission of messages to intimidate and/or threaten the victim, resulting in that person to have concerns about their personal safety and well being.
  • SMS/Text Messages – threats, harassment, offensive or insulting messages sent to mobile phones, is also a form of cyber bullying. This behaviour becomes more distressing when victims are bombarded with constant text messages, at all hours of the day.
  • Social Networking Sites/Blogs – in some instances, a person may not experience a direct form of cyber bullying, but instead, the bully may leave nasty or offensive comments about the victim on blogs and social networking sites, which can be easily viewed by others.
  • Impersonation – in some instances fake profiles are created by the bully on these social networking sites, where they may post personal details about the victim, or worst still, post malicious lies, gossip and defamatory remarks about the victim.
  • Password Theft – gaining access to the victim’s passwords for their computer logon, email account or other online accounts. The bully can use this to lock the victim out, and/or allow others to hack the account.

Dealing with Cyber Bullying at Work

Firstly, try to resolve the problem with the person directly, if you know their identity. If the bullying persists, report the behaviour to your Manager or Supervisor, and look at what avenues are available to you to persue the matter via your organisations complaints management or grievance procedures. Also inquire as to your organisation’s policies on email and Internet use.

Remember, once you have asked the person to desist from cyber bullying, and it still continues, DO NOT continue to engage the bully by responding to offensive emails or text messages – this is what the bully wants -IGNORE IT!

It is important to report this behaviour, because workplace bullying can have negative consequences for not only the victims, but also bystanders. Victims can have emotional and physical symptoms, it can affect their social and family lives and future career advancements. For those who have to witness the bullying, it affects their moral, it reduces commitment to the organisation, lowers job satisfaction and has negative consequences for teamwork and work relationships.

Case Law
In 2005, a high profile case of cyber bullying in the workplace involved that of former Queensland Chief Magistrate Di Fingleton. She was alleged to have threatened and intimidated a work colleague via a strongly worded email, and was subsequently charged with retaliating against a witness.
Although the High Court unanimously found that Ms Fingleton should never have been brought before a court, because her position entitled her to immunity from prosecution, the case reflects the sort of considerations people need to have when communicating via the Internet, email or mobile phone.

Legislative Changes

Presently in Western Australia, the terms “workplace bullying” or “cyber bullying” are not specifically covered by a single piece of legislation. However, there are a number of Acts by through which workplace bullying complaints can be made.

These are as follows:
o Fair Work Act 2009 (Cth)
o Industrial Relations Act 1979 (WA)
o Occupational Health and Safety Act 1984 (WA)
o Worker’s Compensation and Injury Management Act 1981 (WA)
o Equal Opportunity Act 1984 (WA)

If you have any questions about the impacts of Cyber Bullying in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

Sources:
http://www.safeworkers.co.uk/cyber-bullying-work.html
Privitera, C., & Campbell, M.A. (2009). Cyberbullying: The new face of workplace bullying? CyberPsychology and Behavior, 12, 395-400.
http://ezinearticles.com/?Types-of-Cyber-Bullying-and-Examples-of-Cyber-Bullying&id=4614885
http://pre2005.flexiblelearning.net.au/newsandevents/features/featuresjuly05.htm
http://www.theglobalist.com/globalicons/syndication/sample.htm

Managing Workplace Conflict

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When people work together in groups, there are bound to be occasions when individuals have different points of view. This can lead to disagreements which may develop into conflicts in the workplace. Whether these disagreements become full-blown feuds or instead, fuel creative problem solving, is in a large part, up to the person in charge.

Organisation leaders are responsible for creating a work environment that enables people to develop and thrive. You can do a lot to ensure that your employees deal with disagreements in proactive, productive ways, by knowing when and how to intervene — and when to let things be.

If workplace conflicts escalate – you must intervene immediately. In a climate where employees are becoming more and more litigious, doing nothing is not an option.

This blog will identify strategies for you to manage workplace conflict, before it gets out of control.

Identify the signs and causes of conflict

What are the signs of conflict?

Pay attention. The sooner you see the signs, the sooner you can intervene, resolve the conflict, identify the underlying causes, and reach a sustainable agreement.

Obviously, some signs of conflict will be more visible than others. For example, you might; witness a heated exchange between colleagues. Conversely you may note some of the following more subtle symptoms; motivation drops and productivity falls, where fewer people volunteer to take on new tasks, and there is little employee input at team meetings or briefings; behaviour changes, where people may start to make derogatory remarks towards each other, and there are fewer social events organised; the level internal and external complaints increase; and absenteeism increases.

Although some managers will find it easier than others to pick up signs of conflict, you are more likely to be able to interpret the behaviour of your employees, if you have regular channels for open communication and consultation. By listening to the views of your employees at an early stage – before issues become potential problems – you can gauge future reaction to proposed changes.

Identify who and/or what is causing conflict?

Ascertain whether the conflict is between; individuals, teams or groups; managers, or between large groups of employees and management. Conflict can stem from a wide range of causes. Some of these may relate to:

  • health and safety issues;feelings of unfair or discriminatory treatment;
    perceived workplace bullying and harassment;
  • poor communication;
  • lack of equitable employment al opportunities;
  • skill deficiencies and inadequate training opportunities;
  • perception of poor management decisions; and
  • discontent over rates of pay and conditions.

However, sometimes, the real causes of conflict can be an underlying or long standing issue, and may relate to;

  • A long standing rivalry or a clash of personalities between employees;
  • A disagreement or differences of opinion over a work related matter (eg) a project or work assignment
  • Resentment towards an individual or the organisation;
  • A ‘spill over’ from personal issues outside work; and
  • Unresolved problems from the past.

Important! Conflict between work colleagues can often lead to accusations of bullying or harassment. Good managers should always be ready to talk. Try to create a climate of open and positive dialogue. If an employee feels able to approach you at an early stage, then problems can often be nipped in the bud before they become formal grievances.

Managing conflict between individuals

Have an informal discussion with the parties involved.
This stage simply involves discussing, talking, and listening to employees. Giving people the time and space to express their feelings and concerns, can often help to clear the air. It is important employees know who they can go to if they have a problem at work, and that their concerns are taken seriously.
However, it is also recommended you keep a record of when these meetings take place, who attended, what the result was etc. These records may be helpful later on, if the matter escalates to a formal grievance or potential workplace investigation. This will at least indicate what initial steps were taken in order to resolve the matter.

During these discussions, managers should encourage individuals to express their opinions and views, clearly identify the problem, identify their needs, and any potential resolution to the problem. You should attempt to:

Allow every person involved to clarify his or her perspectives and opinions about the problem. Make sure everyone has an opportunity to express an opinion. It is your responsibility to make sure all participants feel safe and supported.

Identify the ideal end result, from each party’s point of view. It might surprise everyone to discover that their visions are not so far apart after all.

Identify what can realistically be done to achieve each individual’s goals. If action is taken, how will this affect other projects and objectives? Will the end result be worth the time and energy spent? If the attempt fails, what’s the worst that can happen?

Find an area of compromise. Is there some part of the issue on which everyone agrees? If not, try to identify long-term goals that mean something to everyone, and start from there.

Having these conversations with employees is not easy, and requires a great deal of sensitivity and empathy. You need to:

  • listen to what employees say, and
  • try and pick up on any underlying causes of unhappiness or stress.
  • question employees in a measured and calm way, putting them at ease, and giving them the chance to speak freely.
  • reframe what’s been said, so that problems can be seen in a different light
  • lead by example, and set the right tone for the way people communicate with each other.

Feel a little out of your depth? That’s okay, but consider getting the help of a professional trained consultant, and engage in training to assist you in building your own skills. There is a wide range of highly trained consultants that specialise in mediation, conciliation, and/or other dispute-resolution processes.

Managers who successfully manage conflicts in their organisations, will generally experience lower rates of complaints than managers who fail to do so. Informal resolution of complaints, significantly reduces the potential for further conflict, time lost in dealing with issues and further administrative processing and related costs.

Important! While employees should be encouraged to try and attempt to resolve matters informally, employees should also be reminded, that it is the responsibility of all staff to behave in a responsible and professional manner in the work place at all times, and treat others with respect and dignity.

Prevention Strategies

  • Bring issues out in the open before they become problems.
  • Be aware of triggers, and respond to them when you first notice them.
  • Have a process for resolving conflicts — bring up the subject at a meeting, and get agreement on what people should do in cases of differing viewpoints.
  • Make sure everyone understands the organisation’s goals and expectations, including what’s expected of each individual. Be as clear as you can about job descriptions, and areas of responsibility.
  • Provide appropriate training opportunities for all employees. Provide training and coaching in conflict-resolution skills, and expect people to use them.
  • Recognise and praise accomplishment. If employees feel valued and appreciated for the work they do, they are less likely to jockey for position and become involved in disruptive behaviours.
  • Discourage gossip, and don’t put people in the position of spying or reporting on each other.
  • Create consistent performance review procedures that apply to everyone equally.
  • Make sure expectations are realistic and consistent with job descriptions.

If you have any questions regarding your conflict resolution in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

References:
http://bollettinoadapt.unimore.it/allegati/07_17_41_CONFLITTI_DI_LAVORO.pdf
http://www.allbusiness.com/human-resources/workforce-management-conflict-resolution/12260-1.html