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The Latest from the Blog

Our tradition of whistle blowing

Harriet Witchell - Wednesday, September 21, 2016


By Andrew Hedges

Whistle blowing is a part of who we are
Australia is no stranger to a tradition of whistle blowing and it comes in various forms. They can be individuals who speak out against fraud, wrongdoing, illegal activities and corruption in the workplace.

But, while that whistle blowing tradition has probably been around since Federation, it has to be said that there are various points of view about whether whistle blowing is well regarded by society and organisations at large, and what its role is in relation to corruption in the workplace.

After all, what do we mean by corruption in the workplace? Do we mean white-collar crime? Or something far more subtle such as turning a blind eye to fiddling with timesheets or a full-time employee applying for sick leave when they’re in fact working a second job or simply wanting to go to the beach (and everyone else at work knows it). What are the ramifications for the whistle blower if these dishonest behaviours are uncovered in the workplace and he or she is blamed?

There are some arguments that unless the behaviour is widely condemned, it can become a part of the corporate culture and therefore can be hard to systematically uncover, let alone break the cycle of corruption in the workplace.

Whistle blowers are marginalised
Indeed, current newspaper reports suggest whistle blowers are not well regarded in Australia and a recent case has brought this to light. An Australian employee acted as a whistle blower in the US about BHP Billiton’s mining activities overseas several years ago. While the culture in the US favours and protects whistle blowers, several cases found that Australian workers are often not well protected here.

These cases in Australia since 2014 revealed that “those who flag corruption inside companies receive limited or no protection and are often sacked or mistreated, while in the US, which paid for evidence that exposed alleged bribery by BHP Billiton, whistle blowers are encouraged to come forward,” the   newspaper report found.

It would be naïve to think corruption in the workplace does not occur in both the private and public sectors.  Traditionally, though, it is often the government sector which has difficulties dealing with these issues. There are a variety of reasons for this, they include poor management skills, poor training in dealing with whistle blowers and corruption in the workplace, the organisation is too big for managers to keep a close eye on individual teams or there is a culture of sweeping everything under the carpet.

Just as inappropriate behaviours such as alcoholism, bullying or sexual harassment can be tolerated in the workplace for quite some time because workers are worried about the implications of “dobbing someone in” ,  a corporate culture can exist where employees are encouraged to support corruption in one way or another.  It can often have to do with individuals wanting to feel as if they belong to the team. Are they accepted by their colleagues, or do they fear rejection if they don’t toe the line?

Wanting to fit in
If there is an accepted mode of behaviour, such as filling in timesheets incorrectly for personal gain, would the newcomer be accepted if he or she said something about it? They can be encouraged to join in to be a part of the group, or be intimidated into silence, and decide to comply with the “norm” rather than face being ostracised. These group dynamics can have a big influence on how co-workers are expected to behave.  Workers who have been engaging in corrupt conduct in one way or another may use their power to assert their views on others.

Corruption can thrive in a collaborative environment where team members unite to continue the corrupt way of doing things. If exaggerated travel or lunch expenses forms, for example, need to be signed off, there could be a secretive and collaborative way of ensuring that they go through the system.  These dishonest networks can grow and prosper within an organisation as long as no-one rocks the boat.  Another aspect is that ignorance can play a part, too.

Don’t rock the boat
If a newcomer is told that this is the way things have always been done, there is no reason for them to question it even if it seems odd or contrary to how things are done in other workplaces.  And even if some dubious methods are questioned, cunning workers who know how to manipulate the system are able to cover their tracks, pressure others to keep quiet or fabricate evidence so no-one is the wiser. It can prevent or severely hinder an investigation from uncovering anything untoward and it explains why our tradition of whistle blowing is a complex one.

To find out more about corruption in workplace download this free Whitepaper here.

Corruption and misconduct are often hard to detect without the assistance of employees. A well supported confidential hotline is an essential component of your risk management strategy. Research how our hotline service can assist. Whistleblowerhotline.com.au

The Implications of ‘Fun Loving’ Behaviour in Management

Harriet Witchell - Tuesday, September 13, 2016


Do you remember the "sneaky nuts" craze? If you do, you can blame the character of Daniel as created and brought to life by Australian comedian Chris Lilley in the mockumentary series Angry Boys. He introduced us to sneaky nuts photo bombs in 2011. For those of you who have no idea what we are on about – search YouTube, if you dare! 

But recently, engaging in such apparently innocent antics sealed the fate of a general manager who was dismissed from his employment for inappropriate conduct. 

How sneaky nuts came to be part of a Federal Court case

Mr McGowan was terminated from his employment in November 2014, ostensibly for a lack of sales performance and "HR skills in relation to the way [he spoke] to staff and clients." Mr McGowan pursued a claim in the Federal Court seeking 12 months termination of employment (as reasonable notice) and claimed that he had been dismissed in actual fact for making a complaint. 

In its response, his former employer argued that Mr McGowan had engaged in "rude and crude conduct", including making highly offensive comments to the pregnant wife of an employee and generally making critical comments in an inappropriate fashion to subordinates.
 
Amongst various other matters, Mr McGowan was also criticised for emailing a photograph to a business development manager with the subject line “sneaky nut,” which showed him seated on the toilet and exposing parts of his genitalia through the sides of his shorts. Mr McGowan claimed that he and the male business development manager had a "boisterous" and "fun loving" friendship outside of work but always maintained their professionalism in the workplace. This was not disputed by the recipient of the email. 

Sneaky nuts ultimately responsible for downfall

Although the sneaky nuts email was not relied upon by the respondent company in its decision to dismiss Mr McGowan, and the court did not consider it as part of the body of evidence against him, Judge McNabconcluded that his decision to send such an email demonstrated "such a lack of judgment" that he accepted the evidence of other witnesses in relation to Mr McGowan's conduct generally, despite Mr McGowan's denials. 

His Honouralso concluded that sending a sneaky nuts email in the context Mr McGowan did was "completely anathema to the notion of providing some sort of sensible leadership and commanding respect from employees."Ultimately, this tarnishment of Mr McGowan's character and general conduct was such that it was found that his employment had been appropriately terminated, and in circumstances where the court was clearly disinclined to grant any leniency to Mr McGowan in making its decision. 

The potential pitfalls of viral crazes in the workplace

Over the past few years we have seen many viral crazes – sneaky nut, the ice bucket challenge, planking... the list goes on, and there are many more surely yet to come. So what is the message of this recent Federal Court decision? 
It demonstrates the negative impact of employees, and in particular senior management, allowing their impulses to run free in the spirit of workplace good humour or popularity. 

Where there is a conflict between doing something "all in good fun" and the adult responsibilities of work, management and leadership expected of employees while engaged in their employment, staff must be aware that employers and courts will not look favourably upon a larrikin approach to life. 

If you are concerned about your workplace culture or whether your employees have gotten the memo on what is appropriate workplace behaviour, Wise Workplace can help your business develop and implement the policies you need to regulate acceptable behavioural standards. 

Check out these short courses for more information regarding behaviour in the workplace.


Procedural Fairness its history and Central Tenet

Harriet Witchell - Wednesday, September 07, 2016


Procedural fairness (or ‘natural justice’ as it is otherwise known) has ancient origins, dating back to the Greek philosopher, Plato and Roman philosopher, Seneca 1  It applies in situations where there is a decision to be made which could have an adverse outcome on the rights, interests or legitimate expectations of a person. Historically this concept applied to formal legal decision-making processes, but these principles also apply to administrative decision-making processes carried out by government officials and agencies and have spread into all applications of employee related decisions including the application of the Fair Work Act and Work Health and Safety Legislation.  Procedural fairness is observed for individuals and organisations in all levels of government complaint management being observed in commissions of inquiry and Ombudsman investigations. 

Since the House of Lords decision in Ridge v Baldwin 2 , a case concerning the decision of a police authority to dismiss an employee, common law jurisdictions accepted that principles of procedural fairness apply to government decisions affecting employment. 

In Australia it has become standard best practice to apply principles of procedural fairness to workplace investigations into employee misconduct, particularly where a likely outcome of the process is dismissal or demotion of the employee. 3

In Lohse v Arthur, the Court described procedural fairness as a flexible and practical obligation to adopt fair proceduresappropriate to and adapted to the circumstances of the case – in essence this means that the employee under investigation be given a ‘fair go'. 

In practice procedurally fair workplace investigations reflect the following principles (which are discussed in detail in the following Part): 

1. A fair hearing 
2. Independent and unbiased decision makers 
3. A decision based on evidence

Indeed, the FWA stipulates that for those organizations covered by the FWA 4 , when considering whether dismissals are unfair, the concept of a ‘fair go all round’ is a paramount consideration. 5  Under section 387 of the FWA, some of the criteria to be taken into account in determining whether a dismissal was harsh, unjust or unreasonable reflect common law principles of procedural fairness, thereby underscoring the importance of these principles. 

How to implement the principles of procedural fairness in your workplace practices and investigation procedures is explained in detail during our investigation training courses.  Visit our website for more information here
 
AUTHOR: Alison Page, Legal Council | WISE Workplace
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1 See Creyke, Robin and McMillan, John. 2009. Control of Government Action Text, Cases and Commentary Second Edition, Lexis Nexis Butterworths pages 683, 689 citing Callinan J in Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam (2003) 214 CLR 1

[1964] AC 40
 
3 See for example Jarratt v Commissioner for Police [2005] HCA 50
 
4 According to the Federal Government website, https://www.fairwork.gov.au/ most Australian workplaces are covered by the FWA. Those that aren’t are covered by their state system. Those not covered include:
  • employees employed by state government and local governments (unless their employer has a registered agreement in the national system)
  • many employees employed in Western Australia.

5 See FWA section 381(2) which refers to Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR(NSW) 95

 

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