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The Latest from the Blog

The Reasonable Person Test Explained

Harriet Stacey - Monday, September 22, 2014

The Reasonable Person Test Explained

The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. One human causing damage to another is certainly a tale as old as history itself. And judges in various forms have always had the task of determining if the damage caused was something that the ‘damager’ is liable to remedy. In a way, a bit of retrospective risk assessment has to be carried out by the courts in these cases. What exactly happened here? Who was involved? Was it an accident? Is anyone hurt? How can we fix things? Certainly, most torts (the kinds of acts or omissions that cause damage) are caused by pure accidents or mistakes.

Yet it’s never as simple as ‘oh, look, a mistake was made – let’s all move on’. A more nuanced examination of the relevant circumstances and risks has woven its way into these types of legal cases, both in Australia and abroad. Due to the fact that within law the ‘reasonable person’ has a hypothetical presence in workplaces, schools, homes, streets and venues, it pays to understand the basic ideas and applications embedded within this legal standard. And in the context of workplace risks and potential litigation, it is particularly useful benchmark for employers and managers to keep in mind.

Does reasonable mean average?

The short answer to this is – no. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) ‘the man on the Clapham omnibus’. In Australia’s case, NSW courts modified this to ‘the man on the Bondi tram’, while in the matter of Re Sortirios Pandos and Commonwealth of Australia, the ‘man on the Bourke St tram’ made a Victorian appearance. These descriptions are certainly a good starting point for determining what a reasonable person would have done during the risky event that caused the damage. But the ‘reasonable person’ is actually a little better than the ‘average’ one. He or she will be quite risk-conscious, a little careful with activities, and very thoughtful when it comes to looking out for possible risks and dangers. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Our reasonable person is certainly quite prudent – but not invincible.

The ‘reasonable person’ in the workplaces

Risky and unfortunate situations arise everywhere in life - and of course the workplace is no exception. Injuries happen, enmity arises, harassment can occur, and unwanted advances are made. And the possibilities for damage, loss and distress to workers, contractors, visitors and clients are so extensive that some days, business owners can question their decision to open the doors! Yet in remembering the careful and prudent ways of the ‘reasonable person’ when it comes to workplace risks, employers can successfully prepare for and respond to hazardous scenarios. Importantly, remember that ‘action’ by an employer also includes ‘inaction’. Turning a blind eye to harassment between co-workers, putting off fixing the air conditioner in summer due to cash flow, and forgetting to wind up the extension cord in the hallway are the sorts of omissions that our ‘reasonable person’ in your situation wouldn’t neglect. Positive actions to prevent harm, such as sexual harassment training and reasonable warning of organisational changes, are examples of the way the ‘reasonable person’ carries on their business.

Going forward, make a rolling risk assessment part of your ‘reasonable’ workplace strategy.

Confidentiality Should Be No Surprise

Harriet Stacey - Tuesday, September 16, 2014

Confidentiality Should Be No Surprise

In a recent case involving a union delegate acting as a support person and a breach of confidentiality, the Fair Work Commission noted that those acting as support people during workplace disciplinary processes must be clearly informed by the employer about their obligation to maintain confidentiality. This might seem to some to be a fairly common-sense proposition, hardly requiring particular clarification on the part of the employer. That is, if asked to support a colleague during a disciplinary interview, it should be quite obvious that the sensitive subject matter indicates a need for utmost confidentiality. And, if following a disciplinary meeting, the worker’s support person then provides that confidential material to others, it would perhaps be no surprise if the employer took action against the support person.

Making it clear

Yet, in CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 (MSS), a support person named Leighton did in fact express such surprise about the confidentiality requirements arising from his involvement in a colleague’s disciplinary interview. Leighton was asked by his co-worker Arnold to attend the interview as Arnold’s support person. After attending the meeting in this capacity, Leighton then proceeded to distribute to colleagues via email certain written information provided in confidence during the disciplinary process. The core issue in the case was actually whether the employer’s decision to issue Leighton with a final written warning was unnecessarily harsh in the circumstances. Before traversing that issue, Commissioner David Gregory was very clear in noting the basic remit of any support person’s obligations in the context of a workplace investigation:

Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times. [at 49]
Clarity of roles

Commissioner Gregory noted that Leighton’s particular role in the workplace required some consideration. He was a union delegate of the CFMEU at the MSS worksite, as well as being actively involved in other union activities across Victoria. The Commissioner stated that this position in the workplace could be seen in two lights. As a delegate, he should have been aware of the requirements flowing from workplace investigations. Yet considering his natural tendency to want to actively assist all workers at the site, his dissemination of this particular information arising from Arnold’s meeting was perhaps understandable.

A duty to inform

Other elements of Leighton’s behaviour and work history were noted, including a formerly unblemished employment record and his apology for the unintended breach. He maintained throughout that he simply did not understand the need for confidentiality in the disciplinary context. On this point, the Commissioner noted that employers are obliged to inform workers clearly and unequivocally of the need to maintain confidentiality about any information that arises in their capacity as a workplace support person. This should occur at a number of junctures during employment, including at the commencement of any workplace investigation in which they are involved. The FWC ordered a lessening of Leighton’s sanction, from final written warning to a written warning.

Support with information

As can be seen from this case, even for those regularly involved in workplace investigations, employers must take care to clearly and unambiguously set out the requirement of confidentiality. It can never be assumed that a person would ‘naturally’ be aware of their obligations in this context. It is common for union delegates to be involved in workplace investigations as support people. Such workers should be reminded that once in the role of support person, they are in attendance purely to support their colleague and to ensure a fair process. Clarify that any impulse to disseminate meeting outcomes for the perceived good of all colleagues, for example, must be resisted. Setting out possible actions to be taken in the case of a breach of confidentiality would also go some way to assisting support people to exercise the discretion required in workplace disciplinary investigations.

Keeping confidence

For employers or HR departments working through a workplace investigation, or simply wanting to enhance employee knowledge of confidentiality requirements, it is essential that the information provided is clear and accurate. To avoid any ‘surprises’ about the need to maintain confidence in investigative processes, get in touch to see how we can assist with your specific requirements. WISE Workplace provides a number of one-day investigation programs. To find out more information about programs tailored to your workplace, contact Harriet Stacey on 1300 580 685.

Basic Risk Assessment for Employees Working with Children

Harriet Stacey - Tuesday, September 09, 2014

Basic Risk Assessment for Employees Working with Children

It’s a testament to how far we have come as a society that we now work tirelessly to ensure the protection of our children. And in Australia, each state government has answered the call to assist in this endeavour by introducing rigorous background checks and mandatory certification for all adults who care for or engage with our kids.

Yet while the current basic card system has been incredibly useful in preventing certain undesirables from obtaining paid or volunteer work with children, it pays for employers to take further steps whenever your employees are to be working with children. Here, we run through the elements of a basic risk assessment.

Who will be working with children?

Let’s say that you are considering taking on a person to work for your organisation. At this early stage of interacting with a prospective recruit, it is crucial to gain a rounded picture of who he or she is. The first step of course is to obtain a certified copy of their working with children card (however it is named in your jurisdiction), plus check the number online to assess validity. This is a non-negotiable component of your risk assessment. It is sad but true that some of the least-appropriate persons seeking child-related work can seem quite nice or normal in settings such as employment. An objective check of their historical behaviour cuts through any uncertainty. It is also essential to conduct thorough referee checks, particularly mentioning to the former employer that there are children in your workplace. And don’t underestimate the interview process for ascertaining their history and motivations for working with children.

And children might not only be clients of your business – you might in fact employ children or have them on site on a work experience, volunteer or trainee basis. When employing adults to work beside children in this capacity, it is vital that you maintain a similar vigilance at recruitment and beyond. Unfortunately, some predatory types can target not only children but also other relatively vulnerable individuals in the workplace. For many children in a new role or work experience placement, they can be very keen to be seen as bright, friendly, willing and capable. This can provide a window for immoral adult employees to take advantage of such enthusiasm. Knowing that abusive behaviours towards children can commence with seemingly innocuous - yet insidious - grooming behaviours, it is crucial to monitor employees for any signs of potential impropriety.

Be sure also to keep age differences in mind, and note the differing needs for care and protection dependent upon the age of the child in question. For instance, a friendship between 17 and 19-year-old workmates might not have the same implications as that of a 14-year-old work experience child under the management of a 40-year-old manager.

What is the child-related work at your workplace?

Employers shouldn’t just be analysing risk in relation to potential dangers to children. At a broader level, you might also need to gauge the suitability of the person to be interacting with small, active, rowdy and sometimes stressful young humans! Risk in this context can be a two-way street. Your risk assessment should include an activity-based analysis of the match between your organisation and the potential recruit’s competencies. Considering the physical and mental stamina required in some child-related work, it is important to assess the employee’s capabilities related to the particular child age group/s and activities. For example in sports-based environment with teenagers operating as both staff and clients, you will need an analysis and strategy regarding any adult employees who also work in that space. For any employees engaged to care for very small children and babies, be sure to examine all regulations concerning child/carer ratios and physical safety requirements.

Where are employees working?

The place where your employees are working with children is also an important consideration within your risk assessment. For all people in attendance on the site – adults and children alike - it is of course essential that your premises are safe and conducive to the activities undertaken. Ensure that employees, particularly any new ones who are engaged in activities with children, are closely supervised in the employment space. It is important to assess if the skills and temperament presented at the recruitment stage are present and appropriate once in your specific workplace. If your employees are working with the children off-site, strategies around privacy, multiple workers with children and rigorous supervision of new recruits should be developed. Risk assessment of any non-employees who are near the children is also a necessary and related assessment that must be undertaken.

When are your employees working with children?

Pay attention to when your employees will be working with children. While it certainly pays to reduce risk as far as possible, stringent vetting requirements might not be applicable where contact with children is negligible or rare. For those employees who will be more regularly and closely involved in working with children, it is important to conduct an assessment of the timing of work, for example across the day or night. In long-hour crèches and youth housing sites, night-time work with children will require a careful risk analysis of suitability, safety and privacy issues..

Assessing risk, protecting children

For those employing staff to work with children, it is certainly prudent to conduct a basic risk assessment. Decisions regarding an appropriate level of risk that an organisation might carry must be balanced carefully.

In the context of employing people to work with children, the likelihood of the event occurring and the outcome if that event did occur will necessarily be weighed to establish risk.

Businesses have an understandable desire to succeed, just as charities, schools, not-for-profits and so on want to deliver excellent services. Yet when it comes to employing people who will be working with children, it is of course important to place child safety front-and-centre in all deliberations. Where or when you start with your risk assessment will vary. You might be starting a new venture, or conducting a risk assessment in relation to a going concern. First, write a list of all child-related activities and contacts known to occur in the organisation. Then collate all known requirements for child safety in both your area and your industry. Ask yourself to consider the likelihood of an adverse event occurring, should you not meet the standards set out. And the next question will be - if such an outcome eventuates, is this one that your organisation is prepared to carry?

As examples - the risk of abusive behaviours arising because you’ve recruited someone without a card, or have employed an adult to work unsupervised with children, or have left mixed ages on site in the evening – must be weighed against the legal, social and financial outcomes if any unfortunate event occurs. Only then can risk be meaningfully assessed.

By analysing the potential risks that arise when employees work with children, all people (big and small) can thrive in our workplaces.

Harriet Stacey 28 Jan 2014

Following the recent anti-bullying amendment to the Fair Work Act, WISE CEO Harriet Stacey talks about the importance for employers to be proactive and effective in how they deal with workplace bullying.