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The Latest from the Blog

The Repercussions of Strong Words in the Workplace

Harriet Stacey - Wednesday, May 25, 2016
The Repercussions of Strong Words in the Workplace

We see many cases where negative emotions arise at work. And it’s certainly not unusual for employees and employers to sprinkle angry discussions with yelling and/or expletives. Yet when does bad language warrant a strong reaction from the employer – or even dismissal?

Two recent cases demonstrate that violent or offensive communication can certainly lead to punitive repercussions. Of course, no two workplaces are the same and it is inevitable that some ‘blue’ language will enter a legal grey area. 

We examine the potential fall-out from angry (and sometimes threatening) words spoken in the workplace.
Case 1 – The Downside of Anger
In the matter of Hennigan v Xmplar Building Solutions, an Irish migrant worker was dismissed for using a phrase that the employer perceived to be particularly threatening. As background, the male Irish worker Hennigan was relying upon the employer’s alleged earlier undertaking to support his section 186 permanent residency application, as well as that of Hennigan’s partner.

The employer denied that any such undertaking had been made. Faced with being forced to leave Australia, Hennigan confronted the employer and unleashed a tirade of anger and accusations. Crucially, Hennigan uttered the phrase “I’ll fix you up,” which the employer took to be a clear threat. The worker was instantly dismissed. 

The Fair Work Commission (FWC) took evidence from both parties regarding the circumstances and meaning of the phrase used. The employer maintained that this was a clear threat by Hennigan to inflict some form of vengeful violence on the employer. Yet the worker’s representatives noted that in Irish vernacular, the colloquialism “I’ll fix you up” means something less aggressive and would not actually constitute a threat.

FWC Deputy President Kovacic decided in favour of the employer, noting the definite threat that was implied by the worker in promising to “fix you up.” In this way, instant dismissal by the employer was considered appropriate in the circumstances.
Case 2 – Extreme Language 
We were interested to see that in Hain v Ace Recycling, the FWC took a different view to an angry exchange between worker and CEO, which culminated in extreme insults and dismissal of the worker. 

The subject matter of the discussion centred upon overtime payments allegedly owing to Hain. Both Hain and the CEO swore during the conversation, using phases such as “f***ing money” and “not my f***ing problem”. 

The worker at some stage called the CEO an “old c***t.” The CEO later informed the worker via text message that he was dismissed. 

In examining the worker’s inappropriate language, FWC Deputy President Asbury conceded that this would ordinarily constitute a valid reason for instant dismissal. However, considering the employer’s own use of strong language and the inappropriate method of communicating the dismissal, the FWC established that the employer’s actions were unreasonable in the circumstances.
Careful With Our Words
Time and again we see situations where emotions have boiled over in the workplace. The outcomes in Hennigan and Hain demonstrate that when it comes to deciding dismissal cases, the FWC can indeed go either way in condoning the employer’s decision to dismiss. Important elements to be considered include the general culture of the workplace relevant to swearing, the size of an organisation, any danger or threats detected in a worker’s words, plus the manner of dismissal. 

It reminds us that clear policies around acceptable behaviour for everyone in the workplace are a must-have for all employers, regardless of size or industry. Similarly, we recommend to employers that an audit of their termination policies and procedures be undertaken regularly. This is vital to ensure that when dismissal becomes necessary, employers have up-to-date guidance on the best action to take in the circumstances.

For employers, instigating a dismissal will ideally be done with cool heads and reasonable actions. Swearing, yelling or threats by a worker are certainly all undesirable behaviours. Yet context is key in these situations; it pays for employers to look carefully at the bigger picture within which the conduct occurred.

If you'd like assistance with putting clear policies and procedures around acceptable behaviour into place, Wise Workplace can help.  Check out our new Workplace Investigation Toolkit and streamline your investigation process.

Wall of Silence: Banding Together to Avoid Detection

Andrew Hedges - Wednesday, May 18, 2016
Protection from Detection

The saying “safety in numbers” can apply to so many situations. For example, a group of students may be more empowered than an individual to stand up to a school bully. Walking dark city streets with a group of people may be safer than walking alone. The list goes on.

But the term can also be turned on its head and applied in more sinister circumstances. We have seen this in instances of workplace corruption, in which a group of corrupt employees commits workplace fraud and then closes ranks to prevent detection. It is a wall of silence that enables powerful alliances to be formed. Its success depends upon members keeping quiet about the activities of the group.  

Strength of the “in” group

We think of these alliances as “in” groups. Their power is derived from peer group pressure, and mutual benefit of identifying within the group which is a concept explored in social identity theory.

But it goes further than this. In cases where there has been a complaint or an investigation by management, the “in” group can close ranks by providing false evidence or even applying upward pressure on management to abandon the investigation. 

The “in” group may also work to ensure that there are narrow terms of reference for any investigation into corrupt conduct. This may have the effect of limiting the number of witnesses who can be interviewed or limiting the questions that can be asked. As a result, the investigation may be rendered ineffective. 

The group may ensure that any complaints to a human resources manager are filed as trivial. In our article on alliances and networks, we illustrated how a web of corruption can be extended to include managers and additional departments as a corrupt employee is promoted through the ranks. 

In this scenario, the HR manager would be part of the “in” group. They can create the impression that they properly investigated the complaint by informally discussing the matter with some witnesses and making a file note that the matter has been considered and closed. But in reality the issue still exists.

 Is it really an issue?

Because corrupt conduct can be so difficult to detect, it is hard to determine how bad it really is. 

In its Global Economic Crime Survey 2016, PwC reported that there has been a marginal decrease in economic crime. 

But it noted that this may have been due to organisational detection and control programs failing to keep pace with changes in the ways that economic crimes are now being committed. 

As evidence of this, around 22% of respondent organisations said that they had not conducted any fraud risk assessments in the two years prior. This was despite more than one-third of respondents saying that they had experienced economic crime in that same period. And it also appeared that one in ten economic crimes were accidentally discovered, rather than being uncovered by management controls. 

What can be done?

We’ve said it before and we’ll say it again – preventing workplace corruption lies in effective management controls and early detection. 

Early detection can be assisted by organisations implementing:

  • Supervision and checking processes.
  • Sound internal reporting systems.
  • Complaint and grievance procedures that are properly followed.
  • Internal audits.
  • Work review programs. 

Corruption is ever-changing. It is clear that if organisations are to be successful in detecting and combatting corruption, their safeguards must also evolve and be checked regularly. Otherwise, detecting corruption becomes a matter of luck which is ideal for networks of employees who rely on a wall of silence to protect each other from detection.

WISE Workplace has much experience in investigating corruption issues and also developing and implementing anti-corruption strategies. Call us today to discuss the issues that are affecting your organisation. 

Corruption in Company: The Use of Alliances and Networks

Andrew Hedges - Wednesday, May 11, 2016
Corruption in Company: The Use of Alliances and Networks

Teamwork. It can really lift the performance of an organisation. But what happens when employees use teamwork to act against an employer or other employees who refuse to engage in corrupt conduct? 

When employees start using their alliances and networks for corrupt activities, we have seen the concept of teamwork sour – and organisations can suffer huge financial losses when this behaviour goes unnoticed or unchecked. 

How alliances and networks are used

Corruption can range from minor things like using a company credit card to buying a small personal item, to major fraud involving millions of dollars. Because it is difficult to define, it is also difficult to detect. And when employees form alliances and networks, they can work together to both facilitate the corrupt acts and also cover up the corrupt activities of a group. 

The group gains its strength from ensuring that no one speaks out about its activities. There are many ways that this can happen and some include: 

  • Promotion: If a corrupt employee is promoted, the promotion brings the opportunity to further extend the employee’s network of friends. This means more people to assist with the perpetration of corruption. The promotion of a corrupt employee also means that corrupt activities become an accepted part of the organisation’s culture – the worse the person’s behaviour, the more they are rewarded.
  • Jobs for mates: There is also the ‘jobs for mates’ concept. To protect a corrupt activity from being detected, a group of employees may put pressure on management to appoint a friend into the role. Or a corrupt manager may ensure that only friends are appointed, in order to assist with the corrupt activity. The effect can be that people are appointed to roles for which they are not qualified. 
  • Greater scope in roles: Sometimes in the public sector, the scope of a role may be increased. For example, an assistant commissioner role might turn into a deputy commissioner role. On paper, the role has expanded to include new tasks befitting a deputy commissioner. But in reality, the job has stayed the same. The upshot is that the employee is performing the same job with better pay and more seniority. 
  • Acting positions: The same is true of an acting position. For example, if someone is appointed as an acting deputy commissioner, there is no requirement for transparency. It is an acting role so there is no need to advertise. In some cases, public sector acting positions can go on for years without being reviewed. 
The key is the network of like-minded employees – ensuring there are plenty of people in place to engage in the corruption or help conceal it. 

The relationship with bullying

There can be a close relationship between a group engaging in corrupt conduct and bullying.

For example, if an employee is new to a workplace, a corrupt group may seek to enlist their help to conceal the conduct or to take part in it. If the employee refuses, or threatens to expose the conduct, they may be subject to bullying by the group until they eventually resign or are transferred. Spreading of gossip or rumours and damaging professional reputations by the group is one way that group bullying can occur. 

The employee may complain about the bullying, only to be ignored if the corrupt network extends to management and they protect the group.

Because so many aspects of bullying can be corrupt conduct, it is important that organisations have in place a range of preventative measures to deal with both issues. 

A 2009 University of Western Sydney study into the bullying of nurses found that: 

"… the nexus between bullying, group anti-social behaviour and the need for trust and networking aligns as the abuse of official power for personal gain - a recognised feature of corruption."

This research makes it clear that while organisations must be vigilant in trying to prevent corrupt conduct, they must also tackle bullying. Both issues must be properly addressed in order to minimise harm, or potential harm, to an organisation. 

At WISE Workplace, we have significant experience in dealing with bullying and corruption, and can assist you to implement a custom-designed strategy for your organisation.

Harriet Stacey 

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