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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. 

Through the delivery of professional development opportunities and self published practitioner guides, we are the centre of excellence for the ongoing professionalisation of workplace investigations across Australia.

The Latest from the Blog

Managing Volunteers in the Workplace

Vince Scopelliti - Thursday, January 16, 2020

Volunteers can be a fabulous resource in any business. Generally, they bring enthusiasm, true passion for the organisation's ethos and purpose, and a "can-do" attitude to the job.

However, volunteers in the workplace can also bring their own set of challenges for organisations. Even though they are not on the payroll, volunteers enjoy the same protections as paid workers are entitled to. Indeed, the Work Health and Safety Act 2011 (Cth) defines volunteers as "workers", thereby putting them on equal footing.

So let's look at some tips and tricks for managing volunteers in the workplace.

Employee and volunteer conflict

One of the risks inherent in relying on volunteers is conflict with employees. In part, this may be due to a "us against them" perception. Further, staff who are employed in the business on a daily basis, may perceive that volunteers have less of an understanding or practical knowledge of how tasks should be completed, or how things are done. Employees may also resent the apparent flexibility afforded to volunteers. A pertinent example is the longstanding feud between paid and volunteer Country Fire Authority staff in Victoria, which resulted in the CFA being devolved into a volunteer-only organisation in early 2019.

Difficulties managing volunteer conflict

In addition to the everyday personnel issues facing organisations, additional challenges involving volunteers include:

  • An unwillingness of volunteers to raise concerns or "rock the boat", largely due to the fact that they may already feel isolated or otherwise segregated from employees. Any conflicts or issues may not be raised with management, for fear of reprisals or concerns about not being taken seriously.
  • A lack of understanding of protections. Many volunteers may not be aware that they are entitled to the same protections as paid staff, and may consider it pointless to raise any conflicts or concerns with management.
  • Lower priority for the organisation. Even if volunteers do raise concerns, management may deal with these issues less expeditiously, because volunteers could be perceived as being easily replaceable. 

responsibilities of volunteer-active workplaces

Employers who rely on volunteers or who are considering welcoming them into the workplace, have a duty of care to provide a safe work environment. They must therefore take steps to protect volunteers from bullying and harassment.

In the same fashion, employers remain vicariously liable for volunteer's conduct and behaviour. For example, if a volunteer engaged in an activity on behalf of the organisation and negligently or otherwise causes injury to a third party, the employer could be found liable. This is despite the absence of any financial relationship between the volunteer and the business.

Organisations need to ensure that policies are updated (where required) to identify that they also encompass volunteer staff. Volunteers should be provided with copies of all policies, and their workplace rights and obligations should be clearly communicated.

When commencing a relationship with a volunteer, it is also important to ensure that there are very clear volunteer engagement "Agreements" in place. These should be carefully drafted to ensure that both parties are well aware of their rights and obligations under the agreement.

Volunteer-based organisations, like all workplaces, have a responsibility to provide a safe environment for all their workers. All conflict and alleged misconduct should be taken seriously, whether it relates to paid staff and/or volunteers. If your organisation needs assistance managing a challenging workplace conflict, WISE offers both supported and full investigation services to provide you with the flexibility you need. 

Managing Misconduct over the Holidays

Vince Scopelliti - Wednesday, December 18, 2019

The festive season is fraught with concern for employers. With many staff on leave and those who remain letting their proverbial hair down (often with a beverage or three!) the holiday period can be a minefield.

We take a look at when employees are still considered to be "at work", define misconduct and provide some tips for dealing with poor behaviour in the workplace over the holidays. 

When are employees still 'at work'?

A workplace is where people perform their jobs, undertaking their contracted hours of work. However, a work function held outside the office and outside regular business hours, is considered to be an extension of the workplace.

A general rule of thumb is, that if an event is organised and paid for by an employer, it's officially sanctioned. Liability therefore remains with the employer for any misconduct that occurs. This is likely to be the case, regardless of how many pre-event warnings have been issued to staff, and how many times staff have been reminded of the applicable policies and codes of conduct.

It is also important to keep in mind that employers may bear third party liability, to family members who attend a staff Christmas party, functions held in public venues (where people other than staff could get injured) and in circumstances where a worker causes injury to another person, when leaving an event in a state of intoxication.

defining misconduct in the workplace

Misconduct over the holiday period generally refers to inappropriate behaviour such as discrimination, workplace harassment and bullying, or sexual harassment. This type of behaviour is often associated with the Christmas party, where people have consumed alcohol and have lowered inhibitions.

It is important for employers to remember that the definition of sexual harassment, for example, includes but is not limited to, conduct of a sexual nature which is offensive, humiliating or embarrassing to the person complaining of the behaviour. Crucially, it is irrelevant if the behaviour was intended to offend - it is the opinion of the "victim" and not the "perpetrator" which is relevant.

Other types of misconduct include staff pulling "sickies" due to hangovers, or poor behaviour such as sharing inappropriate stories or having general disagreements between co-workers boil over.  

why is there a prevalence of misconduct over the holidays?

As noted, there is often an increased incidence of misconduct in circumstances where staff are consuming (potentially excessive) amounts of alcohol and otherwise lowering inhibitions.

There is also a general misapprehension amongst employees to the effect that a Christmas party is not considered to be related to employment - which is not the case.

This is part of the reason why employers should also give serious consideration as to whether they wish to gift alcohol, either to their staff or to clients or business associates. While alcohol is a convenient and often appreciated gift, it can create an impression that an employer is not concerned about responsible service of alcohol.

mitigating the risk of misconduct

There are numerous ways that employers can mitigate the risk of misconduct during the holidays. 

Before a function, employers should take steps to remind staff (generally via an email) that it is to be treated as a workplace event, and therefore the usual policies and procedures remain in place. It is also timely to recirculate documents such as code of conduct, sexual harassment or bullying policies and procedures.

During the work function, employers should consider ensuring that at least one (if not more) senior personnel are in a position to remind staff who have over-consumed alcohol, that they should stop drinking and/or perhaps even leave the event.

Similarly, companies should ensure that there are sufficient taxi vouchers or other safe methods of transport home, for all employees who want them. This ensures that the business cannot be responsible for any employees who injure themselves and/or others on the way from the party.

If allegations of misconduct do arise from a Christmas function, employers must ensure that due process and fair procedures are implemented. This includes taking into account the fact that staff may be on leave or have applied to be on leave.

Although the investigative process should not be unnecessarily drawn out, staff who have pre-booked leave, should not be prejudiced by the fact that they are unavailable at that time of year. They should have the same opportunity to prepare a response to allegations as at any other time of year.

Managing staff and keeping in touch with staff over a quieter holiday period can be a challenge. If you need assistance reviewing and managing staff behaviour in your workplace, WISE Workplace provides expert external investigation services to meet your needs. 

Managing Risks in Workplace Investigations

Vince Scopelliti - Wednesday, December 11, 2019

managing risks in workplace investigations?

By its very nature, a workplace investigation involves sensitive and contentious information.

When a workplace investigation is required, whether this is outsourced to an external investigator or conducted in-house, it is necessary to be aware of the risks which could eventuate.

What are the key risks?

These include: 

  • Potential Breaches of confidentiality

Each party involved has the right to confidentiality. A breach of confidentiality occurs when other people/ parties are made aware of the investigation, which could cause "injury" to the complainant or the accused. Types of injury include reprisal, injury to reputation, defamation, ostracising the employee, physical altercations, or the exacerbation of mental health issues such as depression or anxiety. Of course, this is not an exhaustive list of consequences that could arise if confidentiality is breached.

  • Failing to take "timely and determinative" action

In a situation where disciplinary action such as dismissal is ultimately required, delaying action could potentially prejudice the company's position in any subsequent legal proceedings. This is because a tribunal is likely to find that, if the behaviour was sufficiently serious to warrant dismissal, it would/should have been dealt with as soon as possible. Further, if matters remain open and are not dealt with in an appropriate timeframe, there are greater chances of the issue causing conflict, uncertainly and humiliation within the workplace.

  • Risk of litigation
In matters where the actions and integrity of individuals are likely to be called into question, the risk of litigation is always significant. It is crucial that steps be taken at all times to minimise this risk, or position the company in such a way that it has a defence towards any litigation. 

  • Risk of further costs

Certainly, in situations where a company tries to save on costs by minimising the expenses of investigations, and subsequently needs to "fix" the investigation by engaging external investigators or solicitors, expenses are likely to increase. In many cases, it is better to incur appropriate fees and expenses at the outset, rather than having to pay reparatory costs.

How can you mitigate these risks?

In order to minimise the risks associated with investigations, it is prudent to follow a consistent process for each and every one. This includes:
  • Having a process map, which identifies what evidence should be obtained and which witnesses should be interviewed. 
  • The collation and review of evidence by the investigator. 
  • Interviews being conducted by an investigator, who also catalogues facts.
  • Analysis of the information acquired, in addition to determining if additional fact-finding will be necessary.
  • A determination, made by the investigator and relevant parties based on a review of the findings. Internal stakeholders will work with the investigator to determine how best to communication the decision to concerned parties. 
  • A resolution, where the investigator will document the steps and actions taken. The investigator will also arrange required follow-ups with involved parties to ensure that effective remediation has occurred as planned. 
In addition, it is essential to ensure the investigative process is comprehensive and compliant with the requirements of procedural fairness, as well as sticking to the principles of confidentiality. 

By following these steps, a company ensures that, even if litigation becomes inevitable, it is "court ready" and has a legally sound investigative process and findings which it can demonstrate to lawyers. 

Additional steps to minimise the risks of an investigation being challenged include:

1. Ensuring that all allegations are particularised before they are provided to a respondent. By doing this, a company ensures that a respondent cannot say that they were ambushed or otherwise unable to prepare a defence. 

2. Providing clear and transparent information about the investigation process, including how and when it will occur. A respondent should never be engaged in informal interviews as a way to test the waters, as this could result in subsequent complications. By the same token, arranging for external investigators from the outset can substantially lessen risks such as allegations of bias against internal investigators. 

3. Ensuring that nothing suggests that a 'predetermined outcome' has been arrived at. This includes removing any wording such as "bullying" from the complaint document. Instead, such matters should be framed, for example, as "allegations of alleged bullying".

4. Effectively balancing the need of timeliness in the investigatory process against ensuring that respondents have sufficient time to respond allegations. 

If you are concerned about the investigation process at your workplace, you can take simple and active steps to address these concerns. WISE Workplace is an expert within the field of workplace investigations and also offers training for your staff. 
 

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