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WISE Workplace is a multidisciplinary organisation specialising in the management of workplace behaviour. We investigate matters of corporate and professional misconduct, resolve conflict through mediation and provide consultation services for developing effective people governance. 

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The Latest from the Blog

Navigating the Choppy Waters of Mental Illness at Work

Vince Scopelliti - Wednesday, December 06, 2017

Mental Illness is highly prevalent in our society - 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their lives, and 20% will suffer from mental health issues during any given year. 

Given these statistics, employers will likely deal with at least a few employees who have mental health issues annually. 

So, what is expected of an employer in this situation? 

understanding mental illness

The first step is to understand that there are many types of mental illness. Depression and anxiety are very common, and fall into the category of mood disorders. Other types of mental illness include personality disorders or psychotic disorders, amongst others. 

Generally speaking, a person getting appropriate treatment for a mental illness can be an active contributor in the workforce and the community, and the vast majority of people suffering from mental illness do not pose any risk to others. 

A mental illness may develop separately from the workplace, for example due to issues stemming from the sufferer's personal life. However, the average employee loses 3.2 work days per year due to the impact of dealing with workplace stress - so it is clear that the workplace can be a significant contributing factor in mental health issues. 

managing the contributing factors at work

An employer has a duty of care to ensure that the workplace is safe and healthy for employees. Employers need to identify workplace practices or actions which could cause or contribute to mental illness, and eliminate or significantly reduce the risks associated with these. 

This includes preventing bullying or harassing behaviours, ensuring that managerial staff are trained in properly dealing with performance management and with staff who are experiencing mental health issues, and even limiting situations where excessive alcohol use may be encouraged.

supporting workers who disclose a mental illness

Employers should take steps to ensure that those workers who are suffering with their mental health have access to appropriate resources, including flexibility to attend medical appointments, ease in accessing days off when necessary, and perhaps in-house counselling sessions or a mentoring program. 

When dealing with an employee who has reported their mental illness, employers should be prepared to ask questions such as: 

  • How can we help?
  • How can we make you feel more supported?
  • What are your triggers and how can we manage these in the workplace?
  • Are you coping, and if not, what strategies can we implement to help you stay on top of things?

From a legal perspective, an employer is also required to ensure that workers are not discriminated against or subjected to any adverse action because of their mental health status.

what happens if a worker doesn't disclose? 

In developing a strategy for dealing with mental health issues in the workplace, employers should consider how they can encourage workers to be comfortable in disclosing their status. This will require members of the HR team to be equipped with the skills to ask the right questions. 

Employers can also inform staff who they suspect may be struggling with their mental health about an option to seek confidential support for an Employer Assistance Program or external professional advisor.

In circumstances where an employer is concerned about a worker who is displaying symptoms of mental illness but has not disclosed any conditions, the supervisor should be appropriately trained and prepared to open a dialogue with the employee. 

Alternatively, an employer could monitor data such as employee workload, unexplained absences or lack of productivity, and seek the employee's consent to obtain medical information. Armed with this information, an employer can create a flexible environment within which each worker can be encouraged to perform at their best. 

protecting all employees

It is incumbent on employers to remember that they must balance the potential risks to all of their employees. 

Although they cannot discuss an employee's mental health status, if the employer is genuinely concerned about the potential impact on colleagues or the business itself, appropriate steps can be taken to performance manage or otherwise discipline the employee. 

However, in taking such action, it is crucial for an employer to ensure that it is poor performance or risky behaviour which is managed or disciplined, and that the worker concerned is not discriminated against on the grounds of their mental health status. 

Employers should also consider developing a mental health policy. This document can be used to demonstrate that all staff are entitled to confidential support free from discrimination, harassment or bullying, regardless of their mental health status. 

It can also be used to demonstrate that staff who are acting inappropriately in the workplace cannot simply rely on their mental illness as an excuse to endanger themselves or others on an ongoing basis. 

Key issues which should be address in the policy include: 

  • Access to confidential support and consultation for all staff
  •  Anti-harassment and bullying protocols
  • Policies and procedures relating to reasonable adjustments which may be required to assist staff with a mental illness
  • Identification of risks in the workplace and strategies for minimising the potential impact on staff if they are exposed to those risks (such as a death, or trauma in the workplace)

How can we help

Navigating your way to a mentally healthy workplace isn't easy. If you'd like assistance in encouraging a supportive work environment in your organisation, including drafting mental health and anti-bullying policies and creating appropriate performance management programs, contact us

Crossing the Line: Flirting vs Sexual Harassment

Vince Scopelliti - Wednesday, November 29, 2017

The recent media attention on sexual misconduct in Hollywood is a turning point; what may have been considered 'innocent flirting' in the 70s and 80s is increasingly being called what it is - unwanted harassment. The public condemnation of film mogul Harvey Weinstein's conduct has emboldened people to come forward with allegations of sexual misconduct against other celebrities, in what some have described as the 'Weinstein ripple effect'. 

There has been a significant shift in recent years in the way the criminal justice system conceptualises consent, and this has likewise affected the perception of harassment. 

Although the Hollywood allegations are of a serious nature, with some amounting to sexual assault and rape, they have also cast the spotlight on work relationships in journalism, entertainment, politics and the everyday workplace -'the office'. The question arises: what constitutes sexual harassment in 2017?

legal definition of sexual harassment in australia

Although many assume that sexual harassment must occur between a man and a woman, in Australia this is not the case - it can take place between persons identifying with any sex or any gender. 

According to the Sex Discrimination Act 1984 (Cth), 'sexual harassment' includes unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature - the key element being that the behaviour is not welcomed by the recipient. 

The conduct needs to be assessed from the viewpoint of a reasonable person and whether the reasonable person would consider, in all the circumstances, that the recipient might be 'offended, humiliated or intimidated' by it. 

Even more seriously, sexual assault includes a person being forced, coerced or tricked into a sexual act against their will and without their consent. If the victim is a child, it's sexual assault regardless of any apparent consent. 

In cases where sexual assault is alleged in the workplace, the complainant needs to be advised that they can make a complaint to the Police. 

Should the conduct involve a minor, it may constitute 'reportable conduct' - which is required to be reported in accordance with the relevant state legislation, as well as to the Police. 

SO, is it flirting - or harassment?

Many interpersonal interactions between employees are, particularly in their early stages, subtler and more ambiguous than clear examples of harassment. Smiles, winks, compliments, sexual innuendo and humour, suggestive glances, or even a touch on the arm or shoulder could be seen by some as innocent flirting - but perceived by others as harassment. Recipients of such behaviour may wonder whether these comments and behaviours are friendly or sinister in nature, intentional or accidental, a one-time event or likely to persist. 

When determining whether behaviour might be sexual harassment, it can be made clearer by answering some important questions, such as: 

  • Does the recipient seem uncomfortable or fail to respond to comments or discussions?
  • Is one person involved in the conversation in a position of authority?
  • Could the person making the overtures impose real professional consequences on the recipient if they were turned down?

the role of touching in sexual harassment

It is clear that engaging in unwanted touching is an even more serious offence than making offensive or inappropriate comments or suggestions. For this reason, many employers consider it prudent to ban physical contact in the workplace beyond simple handshakes. Of course, this can also have an impact on how friendly the workplace is perceived as being, so depending on your workplace, it may be more appropriate to closely monitor physical interaction rather than ban it outright. Generally speaking, however, those in positions of power such as managers or supervisors should avoid physical contact where possible. 

the role of power and status

Interestingly, studies have revealed that some men in positions of power find their roles inextricably linked to sex - meaning that they struggle to differentiate between women (or other men, if that lines up with their sexual orientation) who are sexually responsive, or who are simply being friendly. For many reasons, not least to protect a business against potential claims of harassment, employers must do their best to minimise the potential for any inappropriate conduct to occur between managers and supervisors and staff. 

So what should employers do?

Employers have a duty of care to their employees to make sure that they are safe and protected while at work. Employers must have clear policies in place on what types of behaviour are considered to be sexual harassment, and how complaints can be made. Policies should be well communicated to all staff, and staff should be educated on what is expected of them regarding behaviour in the workplace. 

In order to protect your business and staff against flirting going too far and turning into sexual harassment, contact WISE Workplace today for expert assistance with workplace investigations, anti-sexual harassment training and assistance with reviewing or drafting your policies.  

Workplace Party Pitfalls and Perils (A Christmas Story)

Vince Scopelliti - Wednesday, November 15, 2017

At a time when workers increasingly work remotely, communicate online or use hot desks, the annual staff Christmas party is a valuable opportunity to get everyone interacting face to face. 

A Christmas party is also a good way of getting staff who rarely see one another during the working week to meet, to reward staff for hard work, to celebrate the success of the past year, and to motivate employees for the year ahead. 

At the same time, it is essential that reasonable steps are taken to manage the risk to the organisation's reputation, to provide an environment free from discrimination and to protect the health and safety of all involved in the Christmas party. 

Small wonder then that there is a fine line between potentially permitting a situation to get out of hand, and being so risk averse that you kill the fun of the party altogether. 

Here's a quick guide for employees and employers on how to avoid the potential perils of the work Christmas party.

when is a party classed as a workplace event?

First, in order for a business to be legally liable for events that occur at a Christmas party, it must be considered a 'workplace event'. However, this can extend beyond something which is specifically labelled an 'end of year function' or 'Christmas party', and can include something as informal as a picnic or a sporting activity - or even an unplanned and spontaneous event like an after party. 

The factors that determine whether something is defined as a workplace event include:

  • Whether the employer sponsored or funded the event.
  • If the employer was involved in organising the event or issued invitations.
  • Whether attendance was voluntary or whether the employer expected attendance - for example, by requiring employees who did not attend to take annual leave or work instead. 
  • If employees consider it a 'perk' of employment to attend the event.
  • Whether the employer benefitted from the event, for example by having the opportunity to present awards or network with clients.  

SO HOW CAN THINGS GO WRONG?

Some notable mishaps from past Christmas parties include: 

  • The dismissal of an employee for haranguing and then pushing a fully clothed co-worker into a swimming pool. That decision was upheld by the Fair Work Commission, despite noting that the employer should not have provided virtually unlimited alcohol. Another factor was that the employee was asked to leave by the general manager, but refused to do so, engaging in a physical altercation with him. 
  • An employee urinating off a balcony on Darling Harbour onto dining patrons below was sacked for misconduct. 
  • A formal warning was given to a police officer who used a genital piercing to open beer bottles during a party. 
  • Another employee lost his job after faking his wife's illness to miss his own Christmas party - only to attend that of a competitor.   

how employees can have fun and stay out of trouble

There are a few important things employees should be aware of: 

  • What happens at the party will almost certainly not stay at the party. Quite apart from water-cooler gossip and the potential repercussions of people remembering what you said or did after that fifth glass of wine, there's also potential for humiliating photographs or embarrassing posts to be shared on social media. 
  • Employees should set and stick to limits. Good working relationships can be quickly destroyed, and respect lost, through foolish or careless behaviour by those who have over-imbibed. 
  • Once your reputation has been damaged, it can be incredibly difficult to repair it. Remember that you will need to see your colleagues and any other guests again - if not on Monday, certainly after the Christmas break. 

Instead of overdoing the alcohol, use the party as an opportunity to network with other people in your organisation whom you may not know as well. The Christmas party should be an opportunity to have fun and form more personal connections, with a view to improving your overall work life.

WHAT EMPLOYERS MUST DO

In order to minimise any potential pitfalls from the Christmas party, employers need to know a few key things:

  • If a function is deemed to be a workplace event, then the employer owes a duty of care to employees. This includes being held vicariously responsible for any injuries, discrimination, harassment, or potentially for anything the employees do wrong, such as breakages. 
  • Service of alcohol is the responsibility of the employer. Although employees should feel free to have a good time without undue restrictions, it is up to the employer to ensure that nobody is excessively intoxicated. Some employers may also wish to provide alternative transport home, such as Cabcharge vouchers. 
  • Employers should make it clear exactly when the function starts and finishes. Setting a specific end time for the festivities assists with limiting the employer's duty of care to a finite window, after which point anything that happens at a different venue could be considered to be 'off the clock'. 
  • Employees should be reminded that, even though the event may not be held at the workplace, the usual rules of conduct apply. This includes reminding employees of the company's sexual harassment, bullying and anti-discrimination policies. 
  • Remind employees to be culturally sensitive, especially noting that not all people celebrate Christmas, and ensure that any gifts sanctioned at the workplace event, such as Secret Santa, are not inappropriate or offensive. 

How to deal with any misconduct 

If something does go wrong at the Christmas party, it is important for employers to deal with potential misconduct swiftly and fairly in order to minimise any fallout. WISE Workplace can assist with a professional and unbiased workplace investigation. 

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