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The Latest from the Blog

Within ‘Spitting Distance’ of a Fair Investigation?

Harriet Witchell - Wednesday, December 07, 2016

Most workplace investigators operate fairly and thoroughly, producing high quality reports following each investigation. Yet oversights do occur – and some investigators have been known to miss vital clues or pieces of the workplace puzzle.Similarly, even though all essential material might be uncovered during an investigation, it still might not be accurately incorporated into the final report.

The latter problem clearly arose in the November 2016 case of Hedges v Wakefield Regional Council, where an external investigator failed to include essential material in the report. The outcome was a finding by Commissioner McMahon that the dismissal of the worker by the council was unfair in the circumstances. Reinstatement and payment of lost wages were ordered.
The facts of the case
Two workers for the Wakefield Regional Council became engaged in an altercation, one of these being general hand Kieran Hedges. An unfortunate aspect of this event was that the applicant spat at his co-worker. This fact was included in the investigator’s report with an indication that this amounted to a criminal offence. The employer consequently made the decision to dismiss Mr Hedges.

Interestingly however, it was revealed at the Fair Work Commission (FWC) that a crucial act occurring prior to the spitting had been played down in the investigator’s report. 

Specifically, Mr Hedges’ co-worker had first flicked a lit cigarette directly at him. Mr Hedges then reacted angrily by spitting back. In the actual report, the cigarette incident was played down as merely involving a cigarette being directed at the dirt somewhere in the applicant’s vicinity. Further, the co-worker was himself disciplined by the employer – a fact that was also not included in the investigation report.
Omitted information
Commissioner McMahon noted that the newly-presented information made a significant difference to the matters in question. He states: "So on the one hand the report raises the fact that spitting is a criminal offence and an assault but no mention is made that flicking a cigarette at somebody could also be deemed a criminal offence and an assault as well…it is unfortunate that this fact was not provided in the report."

The commissioner went on to conclude that the overall complexion of the report in contrast to later-revealed facts“cast grave doubts” upon the entire investigation and the resultant dismissal of Mr Hedges. The FWC accordingly ordered reinstatement and the reimbursement of wages lost.
Independent and unbiased
The matter of Hedges v Wakefield Regional Council brings into sharp focus the need for employers to facilitate a comprehensive and appropriate workplace investigation. 

In the Hedges case, an external law firm had been brought in to investigate – yet even in the face of such seemingly expert advice, quite essential information had been detrimentally excluded from the report.

Workplace investigations must necessarily proceed in a careful and even-handed manner. As part of this, it is far from satisfactory to concentrate upon facts that might favour the employer’s position. In Hedges, the worker had been immediately dismissed by the employer for spitting. Yet, as was seen, the failure of the investigator to include other relevant information in the report cast doubt upon the entire process.
Sourcing the right workplace investigator
In selecting a workplace investigator, employers have several variables to consider. The investigator might be internal or external, depending upon the nature and extent of the issues under investigation. 

In both cases, the question of objectivity must be addressed – can the investigator remain sufficiently impartial during the carriage of the task? Further, the methods of investigation must be tailored to the particular witnesses in question. Techniques applicable in one situation might well be inappropriate for another. Very importantly, the final investigative outcome – the report – must reflect accurately and fairly the entire situation under examination. 

It is a balancing act that can have serious consequences in future proceedings unless your workplace investigator meets all necessary standards of professionalism, experience and objectivity. 

Protecting and Managing Volunteers in the Workplace

Vince Scopelliti - Monday, November 28, 2016

Most of us agree that volunteer work is an excellent initiative; one of those ‘win-win’ situations where both the organisation and the community benefit from the unpaid work of kind citizens.

We also understand that even the best work-related relationships have their challenges. These include issues around workers compensation, clashes between paid and voluntary workers, navigating child protection requirements, plus the spectres of nepotism and bias in volunteer organisations.

Liability for workers compensation and volunteers

It is not surprising that for some employers, it can be a little unsettling to think about workers compensation and related implications that come with having volunteers on board. After all, when goodwill brings people to your organisation, the last thing on your mind might be the possible costs of work-related injuries.

Across Australia, workers compensation and/or public liability regulations relevant to volunteers tend to vary, with jurisdictions and insurers assessing coverage and liability in different ways. But the overall repercussions tend to be the same for employers – volunteers who suffer a workplace injury are entitled to seek compensation under the organisation’s relevant insurance cover, whether public liability or workers compensation. This can have obvious impacts on staff levels, premium costs and overall levels of productivity.

For some employers, this aspect of securing volunteer workers can go overlooked. It is certainly a much-appreciated boon when volunteers come on board in organisations. Yet, like any aspect of a corporate endeavour however, the possibility of injured volunteers should be viewed from all angles.

Cultural clashes between volunteers and professionals

When volunteers come to provide help within an organisation, the reception from paid staff can sometimes be mixed. First of all, new volunteers need training and help with integration into the site’s culture and systems. Regular staff can feel burdened with the extra work and time that this entails. An ‘us and them’ culture can also lead to silos of information, based upon a sense of ownership.

This can emanate from both categories of staff – paid workers may feel like the ‘real’ employees, while volunteers might have a sense of being there for the ‘right’ reasons.

At a more particular level, awards and industrial organisations might have varying conditions relevant to the two groups of workers.

Should this be cause for concern? Bearing in mind that such issues of cultural clash can often lead to stress claims and overall disruption of productivity, the answer must surely be yes. We perhaps do not have to look any further than the current Victorian CFA fire fighter dispute to see the powerful and potentially damaging results of volunteer-versus-paid worker clashes.

Getting culture right in a volunteer-led group is no easy task and the dissatisfaction of unpaid workers is one of the first signs that problems are developing.

Further, if paid or volunteer workers develop a psychological injury from work-related stress, bullying or inept change-management, then employers certainly have a problem on their hands – and more than one claim arising from the situation is a definite possibility.

Child protection and volunteer organisations

Having volunteer workers available can be a definite plus for businesses and community alike. Undoubtedly, the positives inherent in volunteer arrangements are well known. One volunteer situation that requires close analysis, however, is the protection of children in any scenario where volunteers are involved. In churches, sports organisations and youth clubs for example, there is significant reliance upon the assistance and kindness of volunteer workers.

It is essential for employers in such organisations to ensure that all legislative and practical measures are employed to ensure the safety of children. A targeted workplace audit of policies, procedures and work practices relevant to volunteers and children can help to ensure that unnecessary risks are eliminated. Necessary alterations might include Blue Card applications or shift work controls – as examples – or indeed might extend to more far-reaching initiatives relevant to child safety. Sourcing expert advice on these issues is paramount.

Nepotism and bias in volunteer organisations

A further issue that can infiltrate volunteer-based organisations involves favouritism, both real and perceived.

While volunteers are not paid, they certainly devote themselves to their chosen organisation. The desire to be treated fairly is shared by both paid and volunteer workers. Accordingly, employers need to be aware that treating workers with equal respect can be an essential part of ensuring workplace cohesion.

Any impulse to ‘cut corners’ in volunteer situations in order to employ, train or favour certain people must be carefully avoided. Nepotism and bias in work allocation can be real temptations when one or two people seem particularly competent.

When the financial situation is challenging it can seem like an obvious solution to rely on ‘unpaid’ workers rather than rostering paid employees on shifts. Yet the ethos of volunteer organisations generally requires a more nuanced approach to staffing arrangements. For example, when a rare paid position arises in the organisation employers should ensure that no bias is exhibited towards any particular volunteer. In order to prevent cultural problems arising, clearly articulated policies and procedures are a necessity.

Practical solutions

In organising workplaces to successfully accommodate both paid and unpaid workers, attention to detail is paramount. What may appear on the surface to be an industrial ‘good news’ story in fact has the potential to foster resentment, tension and even bullying.

Volunteer-based organisations have the challenging task of juggling safety and compensation issues, as well as cultural and merit-based concerns. It pays to thoroughly audit the processes and safety mechanisms currently in place, keeping in mind the delicate nature of staff-volunteer relationships. Experts in the field of volunteer workplaces can give employers the peace of mind necessary to navigate this specialised work environment.

How to Handle Complaints in the Aged Care Sector

Harriet Witchell - Monday, November 14, 2016

With Australia’s aging population, it comes as no surprise that the demand for various aged care services continues to escalate. It is also somewhat inevitable that complaints will rise, as aged clients and their loved ones navigate their expectations and emotions in a relatively challenging time. 

We examine the latest work of the aged care complaints commissioner, and how aged care providers can create their own best-practice system for handling complaints.

The current state of play

As noted in the 2015-2016 Aged Care Complaints Commissioner Annual Report, some 2,153 official complaints were made in the six months to June 30, 2016. Once a complaint is in train with this external body, the age care service provider must be ready for any and all actions to be taken by the commissioner. For example, Notices of Intention to Provide Directions are formal requests that providers can respond to with their version of events, plus plans for rectification where needed. 

It is therefore vital that any systems, investigations or responses developed internally hold up to scrutiny in terms of fairness and transparency. Matters can go further from this point, with the commissioner able to make referrals to the Aged Care Quality Agency. Complainants can also take their matter to the Commonwealth Ombudsman – and even to court.

It is clear that the best defence against external complaints is a pro-active internal mechanism for managing complaints. So – what might this entail?

A user-friendly aged care complaints system

The best complaints system is of course one that initially involves open listening by a provider on a daily basis. Are there issues brewing, or are the same informal ‘gripes’ being heard from different sources, for example? In aged care environments, it is important to establish a culture of openness, and to inform residents and their families of the various ways in which they might like to raise concerns. 

Secondly, an ideal complaints system will adopt the ‘no wrong door’ policy whereby staff are equipped to identify any complaints, no matter how or when they arise. Independence around sensitive issues is essential. Bringing those complaints back through the ‘right’ system channels – and getting the formal documentation right – will be the responsibility of the aged care provider and not the service user.

In this way, if or when complaints arise they can be dealt with in a swift and congenial manner. 

The need for a quality independent investigation

Knowing where and how to start investigating a complaint is a crucial first step. There are issues around privacy and procedural fairness that must be squarely faced, to ensure that all internal processes appear adequate to the parties – as well as to outside sources.

One aspect to take care with is verbal evidence provided by parties to the complaint. There is much to consider regarding permission to record, clarity around the issues and fairness in collection of details. Whether utilising an internal or professional external investigator, it is essential to understand the nuances of appropriate workplace investigation. 

Remember that any witnesses – staff, residents, volunteers and visitors – all need to be given a fair and consistent chance to be heard. Case law in the area demonstrates that the mishandling of evidence at this early stage by the service provider can have a direct impact upon the outcome of matters down the track.

In many cases, complaints within the aged care sector can reflect frustration, disappointment and other emotions related to service and care. At first instance, a listening ear and direct internal action will reduce the need for further escalation on a complaint. Yet sorting the serious from the less-so can be a challenge in these situations. 

A professional and independent workplace investigator can assist greatly in identifying limits within current complaints procedures, as well as ensuring vital consistency in the investigation of individual matters. 


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