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The Latest from the Blog

Nepotism and Bias in Volunteer Organisations: A Thorny Issue

Vince Scopelliti - Wednesday, January 18, 2017


Managers within volunteer organisations are renowned for their ability to run operations with incredibly limited resources. Working with both paid staff and volunteers, there is a sense of needing ‘all hands on deck’ within busy community and charity groups. 
We explore today some of the hidden dangers of unconscious bias and nepotism that can arise in volunteer organisations, particularly when time is stretched and personnel decisions need to quickly be made.
The easy decision
It is perhaps not surprising then that particular workers– paid or otherwise – are more likely to receive preferential treatment. With an eye to quality service provision and being as efficient as possible, management might unwittingly be biased towards promoting the ‘easy going’ people – those with the same thoughts, ideas and humour as themselves.  And if the volunteer organisation is all about saving time, money and energy, then surely there is no necessity to run through a long and bureaucratic recruitment process? 
Problems with the ‘in group’?
Yet this is a dangerous way to think about differential treatment of paid and voluntary staff. What is occurring in these situations is the phenomenon known as ‘in-group bias’ or alternatively unconscious bias. Volunteer managers might unconsciously favour certain people or groups within the organisation – and these become the ‘in-group’, being given opportunities that the corresponding ‘out-group’ cannot access. 

The changes can be slow to build – for example, official recruitment processes can be short cut once a favourite is chosen, and information on transfers and training opportunities might only become known by a chosen few.  But what is the actual problem with this scenario?
Favouritism causes fractures
The idea of one person being more deserving than another will inevitably cause serious fractures to appear within the organisation. 

If objective merit is overlooked within volunteer organisations, then the unfortunate consequences are rather predictable. 

Accusations of nepotism and bias within management can begin as a whisper on the organisation’s shop floor – but then soon occupy much of the energy of both paid and unpaid workers. 

While everybody is on the same side when it comes to helping others, it can become acutely demoralising to be left out of management’s favoured group. Clients can also suffer as the outflow of acrimony from paid and unpaid staff begins to affect the very quality of the organisation’s good work.
Unhealthy biases
Equally substantial are the possible repercussions for workplace health and safety. As with any organisation, volunteer groups have an obligation to ensure a safe workplace, wherein bullying and discrimination are not tolerated. Safe Work Australia notes that volunteer organisations have a duty to guard against the possibility of these damaging problems arising in the workplace. 

Importantly, having the organisation located within a common law state does not mean that these obligations can be avoided. Specific advice on the WH&S requirements for your actual volunteer organisation is a must-have. 
The merit-based volunteer organisation
Nepotism and bias can certainly creep up upon the culture of volunteer organisations. With such great work being done, it can be disheartening to see one group of people getting just that bit more of a ‘fair go’ than another. 
Attention to the details of recruitment, training and other opportunities becomes necessary, in order to ensure that all decisions are made with a clear view of individual merit. 

Unconscious bias and nepotism in decision-making can be difficult to see from our own vantage point. Most managers do not deliberately set out to recruit a work mate or nephew over other people. 

Yet, ensuring that all hiring decisions and opportunities are dealt with purely on the basis merit can sometimes require a fresh pair of eyes. Our professional workplace trainers, advisors and investigators can provide custom-made strategies and preventative measures for a truly fair volunteer-based workplace. When these elements are in place, the important work of the group can continue without any unnecessary internal challenges.

Key Take-Home Messages from the Employment Law Cases of 2016: Part 2

Harriet Witchell - Wednesday, January 11, 2017

Some of the important decisions handed down in the employment law world during 2016 would have left more than one employer very glad that they were not the ones facing the Fair Work Commission! 

In part 1 of our year-end review of the cases of 2016, we covered the interplay between employment law and other legal areas. In part 2, we take a look at cases where employers have reacted impulsively and failed to afford employees appropriate procedural fairness before dismissal – and borne the consequences.

Think before you act – keeping emotion out of the workplace

When suspected serious misconduct occurs in the workplace, employers often feel that they have no choice but to act swiftly and deal with the offending employee once and for all. 

The unspoken motivation is often that employers and co-workers may simply stop liking an employee once the basis for suspicions is laid, rendering a continuing relationship near impossible.

Keeping procedural fairness at the centre of decisions

The decision in Platypus Shoes illustrates that suspicions of serious misconduct are not enough to warrant summary dismissal. Instead, the Fair Work Commission found that employers must demonstrate a willingness to listen to any response to allegations made against an employee before determining a course of action.

The employer's failure to ensure that the employee was afforded procedural fairness meant that he was found to have been incorrectly terminated. The employer would have been within their rights to effect a summary dismissal if the employee had been given adequate opportunity to respond to the allegations of misconduct levelled against him.

A defence straight out of a Monty Python sketch

Another case where an employer made a rash decision based on an entrenched point of view was in the matter of Somasundaram.

This involved the dismissal of a teacher for reasons which the Department of Education and Transport conceded (after the unfair dismissal proceedings had already commenced) were less than adequate.

Despite this concession, the department maintained that the employee should not be reinstated and kept this position through several levels of appeals.  

Ultimately, the department was ordered to pay the teacher's significant costs of almost $90,000, all because it refused to accept that the teacher should be reinstated because of the improper dismissal.

The vexing question of blue language

There were two cases involving language inappropriate for the workplace in 2016.

So what happens when an employer feels threatened by the words of an employee?

In Hennigan, the use of the expression "I'll fix you up" by an employee was considered to be a sufficient threat to warrant summary dismissal. However, this was in response to one-sided threats from the employee against the employer.

By contrast, when strong language was used by both parties involved in an argument in Hain – and the dismissal was communicated informally through a text message – this was considered insufficient grounds for dismissal and the employee was reinstated.

The clear lesson here is that, if employers are seeking to dismiss employees, they must ensure that they keep a cool head and avoid entering into a heated argument which might taint the dismissal.

The need to consider mitigating factors in dismissal

The decision of Anders is particularly important for employers trying to establish whether an employee has shown mitigating factors which should be taken into account when considering a dismissal.

A teacher who had suffered a breakdown and consequently aired her frustrations with her employer on social media was summarily dismissed.

However, the commission considered that the employer should have taken into account various mitigating factors, including the employee's mental health diagnosis, her husband's poor health and her employer's failure to intervene when the employee's relationship with co-workers began to break down.

Her termination was considered invalid, and compensation was ordered.

The take-away lessons from 2016

These decisions all demonstrate why employers must remember to play devil's advocate before terminating an employee, and must consider whether there is any argument which the employee might use in their favour to demonstrate that their dismissal was inappropriate.

Once a dismissal has occurred, an employer must be prepared to accept that the dismissal may have been unjust – or risk bearing the significant financial ramifications of holding an unreasonable entrenched position.

As we launch into 2017, these cases are a timely reminder of the need for fairness in workplace investigations. If you’d like assistance with an investigation or training in how to conduct a thorough one, contact us.

To read more about some of 2016’s interesting cases in fair work and employment law, check out this free whitepaper here.

Key Take-Home Messages from the Fair Work and Employment Law related Cases of 2016: Part 1

Harriet Witchell - Wednesday, January 04, 2017

As another year gets underway, it’s timely to look back at some of the most significant fair work and employment law-related decisions handed down during 2016, and the lessons employers can take away from these cases. In this two-part series, we first look at how general legal principles fit into the sphere of employment law. In the second instalment, we’ll explore cases which are all about emotion and personal opinions – and what happens when these cloud workplace and legal decisions.
IMPORTING CRIMINAL AND OTHER LEGAL PRINCIPLES INTO INDUSTRIAL LAW

Most employers are familiar with the basic principles of what could constitute unfair dismissal. But one particularly unusual circumstance of an unfair dismissal case was considered by the full bench of the Fair Work Commission during 2016.

The employee at the centre of the case had caused a motor vehicle accident on his way home from work, and subsequently admitted to police that he had been smoking synthetic cannabis.

In Colin Wright v AGL Loy Lang, the dismissed employee argued that the employer could not rely on his admissions to the police, claiming that the Pfitzner principle preventing admissions from being used in later proceedings applied in his circumstances. When considering whether a criminal law principle could be applied in civil proceedings, the commission upheld the earlier decision, and found that it could not.

Another significant decision of 2016 considered whether intent to harm – generally a criminal concept –is required in workplace bullying matters. In the Carroll decision, it was found that even innocent behaviours could constitute workplace bullying. The commission focused particularly on the accused manager's micromanagement and monitoring of staff, and the cumulative effect of this managerial style.

The question of privilege

Anyone who watches legal and crime dramas on television is familiar with the existence of legal professional privilege (LPP)– however what is less well known are the circumstances in which such privilege can be and is waived.

In Kirkman, the issue was whether an investigation report into an employee's behaviour had to be produced to the employee after certain allegations addressed in the report were put to him.

In reaching its decision, the commission spelled out the key principles surrounding LPP and pointed out that LPP can be easily waived if one of the parties acts in a way which is inconsistent with the maintenance of the privilege.

In Kirkman, even though the allegations contained in the report were put to the employee, this was not considered sufficient to waive privilege.

The importance of following the rules of evidence

Many tribunals and similar bodies, including the commission, are not bound by the rules of evidence. However, in the case of Wong, an application was made to the Federal Court seeking permission for a layperson employer to defend an adverse action claim.

The court held that various components of the evidence were inadmissible and failed to comply with requirements of the court, and accordingly legal advice had to be obtained for the case to proceed. Importantly, the decision in Wong sets out various principles relating to obtaining and providing appropriate evidence in industrial proceedings.

The need for rigorous workplace investigations

Finally, the recent decision of Hedges involved a dismissal which had occurred after an external investigator had failed to include essential and relevant material in their report.

The employee was terminated following an altercation with another employee, but the investigator had downplayed what could have amounted to provocation by another employee.

This decision demonstrates that employers must take care to ensure that workplace investigations are unbiased, comprehensive and transparent – otherwise the dismissed employee could well be reinstated, as in Hedges.

Lessons to take from the year that was

Although each of these five cases involves a very different set of circumstances, employers would do well to remember that:

  • Industrial and employment law has its own legal principles, which cannot be easily mixed with criminal or other legal doctrines.

  • Simply appointing third party investigators or solicitors is not sufficient to ensure that any dismissal will be upheld – their work must be transparent and unbiased.

  • Legal advice should be obtained at an early stage to avoid any complications.

Significant employment decisions can provide valuable feedback for all employers. We’ll cover further decisions of note in part 2 of our series, and if you’d like to start the year off on a positive footing with training in investigations, contact us.

To read more about some of 2016’s interesting cases in fair work and employment law, check out this free whitepaper here.

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