FREE White Paper on
 Workplace Misconduct Cases in Review 2016
Buy your copy now

WISE Training:
Government accredited, diplomas, certificates and more

Enrol now

The Latest from the Blog

What Does Child Protection Look Like in 2017?

Harriet Witchell - Wednesday, February 15, 2017

There is no doubt that the sobering outcomes of the Royal Commission into Institutional Responses to Sexual Abuse have caused Australian organisations to take stock of their child protection strategies. Investigating and preventing abuse in care has become a non-negotiable priority issue for many citizens and institutions across the nation. So what is the current state of play?

Abuse in Care: NSW initiatives

We reported in 2016 that the NSW legislature had made considerable headway into strengthening the state’s response to allegations of child abuse. NSW was the first state to draft and implement Reportable Conduct laws, which set out details of the types of events, behaviours and history that require reporting. This can include the insidious phenomenon of grooming conduct, whereby children are encouraged to trust a person who later engages in child abuse. Boundary violations are also one of the many behaviours that employers now must monitor. Last year, we also saw the powers and involvement of the NSW Ombudsmen gain traction, with better coordination of information around reports of child abuse in care

Child protection developments nation-wide

As we head into 2017, we are seeing some further promising action happening in other Australian states and territories. The ACT is leading the charge to stamp out child abuse, with the introduction of its own Reportable Conduct legislative scheme. Working off the NSW model, the ACT is embedding similar mandatory reporting mechanisms into the fabric of the territory government’s business-as-usual practices, yet as with NSW, there are inevitable challenges around information sharing across agencies.

Victoria has begun its own task of developing and implementing a range of up-to-date laws dedicated to fighting child abuse in care environments. The state is not as far advanced as the ACT in these initiatives, but there are positive signs that the state government will do what it can to improve information sharing within the bounds of privacy requirements.

Protecting against abuse in 2017 and beyond

The work ahead is considerable. As we can see, not all states and territories are currently on board with the necessary structures to counter child abuse. Yes, it is certainly a considerable task – to implement new legislation on reportable conduct, to link agencies more effectively and to update enforcement knowledge and skills. And for those employers investigating child abuse, any uncertainty around legal requirements can create unique investigative challenges. 

As the Royal Commission has painfully shown, no work is too arduous when it comes to protecting Australia’s children from abuse – and indeed protecting any vulnerable individual such as the elderly or disabled in institutional settings.

Harmonisation of anti-child abuse measures

One major outstanding task is the harmonisation of child protection legislation and policies around Australia. There is little hope of tightening the system if alleged perpetrators can simply cross borders into ‘’more relaxed” jurisdictions. COAG has ear-marked this coordination of child abuse responses as a priority area in 2017. We are hopeful that the council will show the necessary chutzpah to pull the states and territories into line on this urgent task of protecting children against abuse.

Even if the federal nature of Australian government makes Commonwealth measures difficult to implement in this space, harmonisation of separate schemes is far from impossible. There are many precedents demonstrating that the states can unify when the subject matter is sufficiently pressing. Surely this is perhaps the most pressing issue imaginable?

Investigating the abuse of children and other vulnerable people

At Wise Workplace, we help employers to monitor and investigate alleged abuse at the ground level. While various governments around Australia are doing their best to learn and act from the Royal Commission, we are determined to give every employer the opportunity to establish the strongest possible strategies against child abuse that they can – right now.

Whether you are seeking advice on workplace audits, workplace investigations into abuse of children or others, the current legal state-of-play on reportable conduct – or indeed all of the above, then please do not hesitate to give us a call.

We’re also excited to announce our first training offerings in NSW and Victoria on the particulars of the abuse in care schemes, successful investigations and some important steps to take in every workplace. We can’t emphasise how important this is for all employers to take on board. Make sure you book in soon, as numbers are limited. Hope to see you there!

 

 


Unpacking the Concept of Reasonableness

Vince Scopelliti - Wednesday, February 08, 2017


Across all Australian workplaces the phenomenon of bullying is without doubt a front-and-centre topic. And as a result, overt instances of bullying in the workplace now tend to be more readily identified than ever before. 

One challenging idea for all concerned however is this; is it possible that management action that is entirely reasonable could be misconstrued by a worker as an act of bullying? In both workers’ compensation matters and industrial relations more broadly, the linked concepts of ‘reasonable management action’ carried out in a ‘reasonable manner’ have certainly been difficult to pin down. 

We take this opportunity to explore the complex concept of reasonableness as it related specifically to management action and workplace bullying. 

Workplace bullying - the basics

When proposals arose to include bullying within Fair Work’s mandate, employers were understandably uncertain. ‘Bullying’ has a very broad and subjective interpretation among the general public; surely one person’s harmless banter could be another person’s bullying?

Yet when changes to the Fair Work Act were made and the commission explained the new initiative to stakeholders, it was clear that the definition under 789FD(1)contained certain helpful boundaries. Significantly, the unreasonable behaviour needed to be repeated and not just a one-off incident. Further, the activity needed to cause a demonstrable risk to workplace health and safety. The description of particular unacceptable behaviours – such as belittling, humiliating, spreading rumours and having unrealistic expectations – also went some way to assisting employers in the creation of sound anti-bullying mechanisms.

Reasonable management action…

Yet what about business-as-usual management? – for example when a worker needs constant reminders and oversight by management in order to fulfil their role? Could this type of standard management action actually be construed as ‘bullying’? 

The commission foresaw this potential for definitional constraints to disrupt the operational needs of many businesses. Consequently, garden-variety management action such as performance management, work monitoring, instruction, direction and disciplinary action are generally outside of the definition of bullying. These actions are simply the core of most management roles. However, the analysis doesn’t end there.

Carried out in a reasonable manner

A full understanding of the interplay between alleged bullying and reasonable management action requires that employers be aware of the crucial third element of the equation – was the reasonable management action carried out in a reasonable manner? This might seem like splitting definitional hairs, but it is this particular nuance that sometimes gets overlooked. Let’s take an example:

The employer receives notification of a bullying claim from the FWC, made against a manager by a worker. The action in question appears to be quite reasonable management action – let’s say a routine performance management process has been commenced. HR assisted with documentation and there was clear objective evidence of the worker’s underperformance. This was clearly – in and of itself – reasonable management action on the part of the manager.

However, what can lead to difficulties for any employer is when the management action is not carried out in a reasonable manner. If the manner is found to be oppressive, aggressive, belittling and/or with completely unrelenting expectations regarding outputs – then there is a high likelihood that a bullying claim can be substantiated. In other words, all the good work involved in reasonable management action can come undone if it is administered in a bullying manner.

Train for reasonable management action

Most employers have become adept at the creation of healthy and safe workplaces. Layout and resource issues are quickly dealt with and the corporate culture is usually a point of workplace pride. 

It pays however to ensure that the less-obvious hazards are still kept in focus. While employees might generally be monitored to prevent bullying issues, it is the manner in which managers carry on their tasks that also has ramifications for employers. 

Our consultants have over 10 years of experience in determining what is and what is not ‘reasonable management action’ so if you have a matter where you need clarification or an investigation, talk to one of our consultants for advice on 1300 580 685. 

If you think your managers could benefit from toolbox training on successful performance management, managing bullying complaints or ‘bullying, harassment and discrimination’ awareness, talk to one of our training consultants about our HR Pop-Up Professional Development initiatives and toolbox training.


Inference or Evidence? Professionals Know the Difference

Vince Scopelliti - Thursday, February 02, 2017


In the conduct of any workplace investigation, it can sometimes be tempting to hurry past those alleged facts that appear “perfectly clear”. Such perceptions arise when we draw together two or more related elements from an investigation, add our own assumptions on the matter, and infer from this a particular conclusion.

Unfortunately, such inferences almost certainly arise off the back of faulty logic. A high-quality workplace investigation requires that we objectively seek and present only irrefutable and fully corroborated evidence.

In the recent case of Walker v Salvation Army, the Fair Work Commission (FWC) pointed to the problem of drawing inferences within an investigation, particularly when these are presented as “evidence” to prove an employee’s misconduct. 

The determination of Senior Deputy President Hamberger in the 2017 matter of Walker also highlights the important role a professional investigator can play in ensuring a highly objective workplace investigation.

Clear evidence vs clouded perception

In Walker, a long term employee of the Salvation Army in NSW was dismissed for her alleged theft of money from a Salvos Store. Central to the employer’s case was the existence of CCTV security camera footage that the employer described as being clear proof of the misconduct. 

Certain images on film included Walker having interactions with a customer, and then later putting into her apron pocket what appeared to be cash. The employer argued that this clearly constituted evidence that theft had occurred, yet did not allow the worker to view the footage and respond. Instant termination was then instigated.

The employee argued at the FWC that the dismissal was unfair, due to false inferences that had been drawn by the employer from the CCTV footage. Walker stated that at the relevant time she had in fact been putting in place a hold for a customer. 

She made a note of items and gave this to the customer. Portions of her time were off-camera. Later she appeared to put a $50 note in her apron pocket, an amount actually representing the delivery fee for another customer, but which the employer held to be several notes of misappropriated money. 

Walker was initially unsure due to her eyesight whether it was an Australian banknote pad she had used on the shop floor, which had the appearance of a $50 note. It was finally established that it was a single $50 note relevant to the second customer’s delivery, which was due to be given to the delivery driver.

FWC – Investigations must be fair

SDP Hamberger expressed surprise at the fact that the employer appeared to rely so significantly on arguable CCTV footage, without objectively and thoroughly questioning Walker herself about the allegations. 

The worker was a long-term member of the Salvos team and the inference drawn by the employer was not reasonable, as other available explanations were available for consideration and were ignored. 

Indeed, it was noted that: “[t]he alacrity with which the respondent accepted Mr Shiraz’s version of events over that of a long standing employee is certainly surprising”.

The worker was awarded payment by the FWC in excess of $20,000 – part of which included recognition of her lengthy service with the charity.

Traps for non-professional investigators

It might seem obvious, but the best way to escape the error of drawing false inferences is to source a professional workplace investigator. There are myriad subtleties and traps embedded within investigative work, particularly when a water-tight report is required for later action. 

A key mistake made by untrained workplace investigators is the drawing of premature inferences, without seeking explanations from all available sources of data. Natural justice requires an even-handed approach to be used in relation to all persons involved.

The professional investigative edge

When a job is on the line or serious allegations are made, every workplace investigation requires utmost skill and objectivity. 

At Wise Workplace, we offer exemplary, nationally-recognised investigator training courses. We can also provide your workplace with professional workplace investigators should you choose to utilise an objective external professional. 

Differentiating a dubious inference from actual evidence is just one of many crucial skills in the tool kit of a professional investigator. We look forward to assisting you with the workplace investigation and training services that best suit your business needs.

Training  

See how our trainers provide expert one on one feedback on investigative interviewing practicals...