Bullying eBook

WISE eBook:
How to Respond to Workplace Bullying.
Only $14.99!

Buy your copy now

WISE Training:
Government accredited, diplomas, certificates and more

Enrol now

The Latest from the Blog

Shades of Grey: Raunchy Material and the Lessons from Shea

Harriet Stacey - Tuesday, October 21, 2014
Lessons from Shea
Shades of Grey: Raunchy Material and the Lessons From Shea

In the recent costs hearing for Shea v EnergyAustralia Services Pty Ltd, Federal Court Justice Jessup helpfully took the opportunity to summarise the findings of Justice Dodds-Streeton regarding the original unfair dismissal proceedings. There, Ms Shea had unsuccessfully sought relief against alleged adverse action on the part of her employer. 

In a bad light

 Ms Shea’s accusations were substantial and relied upon various sources of information for purported corroboration. In his findings against the applicant, Justice Jessup spoke with evident disapproval regarding both the quality and the means of acquisition of Ms Shea’s evidence. Of particular note, sexually explicit text messages between two staff members had been retrieved forensically by Ms Shea as purported proof of sexual harassment in the workplace. His Honour stated that Ms Shea’s methods of obtaining both the phone and text messages ‘did not show her in a good light’, aligning with the substantive trial judgement as to the ‘irregular’ nature of the acquisition [57-58]. 

Unseemly acts 

But the inadmissibility of the texts – and the resultant forensic report – was not the only issue in question. Justice Jessup quoted with approval the original finding of Justice Dodds-Streeton – the text messages represented nothing more than ‘a private exchange between consenting adult sexual partners’ [quoted at 56]. Further, this private nature actually placed a duty of confidentiality upon any readers of the texts. 

Thus, not only was the material found to have been obtained abnormally, usage of the forensic report was both irrelevant to the workplace issue at hand, and malicious in nature. His Honour went even further in his disapproval, noting the ‘unseemly manner’ in which the phone was obtained, with a very obvious agenda in play to cause ‘embarrassment and humiliation’ to the other party [59]. 

Eyes on the court

In administrative proceedings, the rules of evidence don’t formally apply. So there is a sense in mediations, conciliations and reviews that parties can place it all on the table in order to find resolution. The idea here is that people can often experience a greater sense of procedural fairness in a less formal environment. Yet Shea reminds us of the considerable pitfalls that can occur in court proceedings when undetected irregularities have coloured earlier processes – inadvertently or otherwise. It is crucial that internal and external workplace investigators establish quality control mechanisms throughout all stages of information collection. Keeping any future court proceedings front of mind can assist investigators in overcoming the kinds of evidentiary taints that befell the applicant in Shea.   

Quality counts 

And where certain key material can only be collected in an unusual manner, corroboration of the information obtained can assist in enhancing overall quality and future admissibility. Potential evidence should be free of irregularity, irrelevance, confidentiality breaches and/or personal agendas. Certainly, administrative processes won’t require the stringent attention to rules of evidence that apply in court. Yet the ‘juiciest’ piece of information brought out at in an administrative forum might well become the trial stage’s most useless piece of scurrilous and ultimately inadmissible evidence. Worse – if found to be obtained for personal or ‘unseemly’ reasons, a hefty costs ruling is certainly a possibility for the parties involved.

What are Terms of Reference? Do You Need Them?

Harriet Stacey - Tuesday, October 14, 2014
Terms of Reference
What Are Terms of Reference? Do You Need Them?

Terms of reference (TOR) form a foundation stone for the commencement of any workplace investigation. Much like a recipe, they set out the core people and components of the investigation, as well as the boundaries and methods to be utilised. Without solid terms of reference, an employer’s well-meaning attempt to gather information and fix a workplace problem can fail, or cause even more problems. As well as establishing an understanding of what is required and by when, TOR create an excellent framework for the more detailed investigation plan. Terms of reference can prevent such pitfalls as misunderstandings, unintended breaches of privacy, and negative effects on relationships. 

When should the TOR be developed?

There are no hard and fast rules regarding how and when TOR should be drafted. Some employers start with a Statement of Complaint and flesh out the terms of the proposed investigation based upon this central concern. Others call upon the services of a workplace investigator to actually assist in drafting TOR, particularly where a workplace problem is vast, sensitive, and/or complex. Sometimes it is important to wait and collate some preliminary materials prior to pinning down the exact terms of the investigation. In any event, it is important to start working on your TOR sooner rather than later, and certainly once a workplace investigation is confirmed.  

what will the tor include?
The terms of reference represent what the employer and the workplace investigator have agreed upon. Not surprisingly, both parties are entering into a human territory where all sorts of sensitivities can crop up – emotional, occupational and legal. It is common sense that the TOR will be designed with these issues in mind, creating a clear framework for the investigation. In essence, the TOR should contain the ‘three R's’ of an investigation – the reason, the remit (or scope) and the report. 

The reason section of a workplace investigation TOR will include the general purpose of the investigation, the people and incidents known to be involved, and the types of questions that need answering. The remit or scope sets out the boundaries of inquiry, including documents, people and activities that can be explored by the investigator – and those that cannot. It also includes what is required from the investigator in terms of deliverables, such as interim reports and final actions. For example, this part of the TOR will specify if the investigator is simply fact-finding or is working with a view to dispute resolution or discipline. The TOR then specify what form the final report will take, who can be supplied with copies, and when it is due. Where no report is required and an oral discussion is preferred, the scope and purpose of this discussion should be noted.

What can the TOR achieve?
 As mentioned above, the circumstances leading to the need for a workplace investigation can be quite fraught. Concise and clear terms of reference help to ensure the smooth running of the investigation. They can prevent irrelevant issues being raised (such as old wounds) and provide an element of professional objectivity. Considering the need for procedural fairness in all aspects of employment law, TOR provide the means by which emotive or biased considerations can be eliminated from the investigation. Further, sound terms of reference provide an excellent starting point for the drafting of a workable investigation plan. For both employer and investigator, the chances of misunderstandings are reduced in relation to the many aspects of the investigation’s reasons, remit and desired report. Put simply, good terms of reference can be a guiding light through the sometimes-choppy seas of a workplace investigation.


Is an Employee Obliged to Divulge Facts About Their Partner?

Harriet Stacey - Tuesday, October 07, 2014
Divulging information
is an employee obliged to divulge facts about their partner?

In a recent matter before the Fair Work Commission – Lakatos v Termicide Pest Control Pty Ltd – the short answer to the above proposition was ‘yes’. The employee, Ms Lakatos, refused at first instance to answer questions posed by her employer regarding her fiancé’s new employment. Her fiancé, Mr McKay, had in fact previously worked for Termicide. And as the owner of Termicide correctly suspected, Mr McKay was now working for a competitor in the pest control industry. Of particular concern to the employer was the possibility of threats to his business posed by Mr McKay’s position, including his access to confidential information. Eventually, Ms Lakatos provided the information about her fiancé’s new workplace, but was nevertheless dismissed. The Commission found that the employer possessed a valid reason for the dismissal. 

Keeping quiet

Senior Deputy President Richards’ finding that Ms Lakatos was obliged to provide an explanation about her partner’s activities certainly raises some interesting points. What exactly are employees obliged to divulge about their partners? How far does fidelity to the employer reach? Until very recently in Australia, courts have recognised what is known as ‘spousal privilege’ in criminal matters – that is, a spouse cannot be called upon to give evidence against their partner. In the 2011 Stoddart case, however, the High Court greatly diminished this privilege – leaving jurisdictions rather uneven in their application of the principle. Even putting the criminal law viewpoint to one side, the idea of being compelled to provide private information about a spouse or partner to a third party certainly causes general discomfort. And being confronted with such questions by an employer would no doubt be rather unsettling for the worker involved. How and when it is appropriate to expect an employee to respond to a request for such information is certainly no ‘one-size-fits-all’ scenario. 

Answering and cooperating
Information began to surface about Mr McKay’s new place of employment, after which Ms Lakatos was asked direct questions by her employer about her partner’s activities. She refused to respond at first – and was later dismissed for failing to comply with a reasonable request. In his reasoning, Commissioner Richards noted that the circumstances were such that the employer was within his rights to request the information, as it concerned possible significant threats to the business. It was in fact a part of Ms Lakatos’ role to identify such commercial threats, and her refusal to provide relevant information in this regard was deemed unacceptable. As the Applicant, Ms Lakatos was seeking a finding by the Commission that her dismissal from Termicide was ‘harsh, unjust or unreasonable’ in accordance with s394 of the Fair Work Act 2009. She was unsuccessful. In rejecting the Application, Commissioner Richards stated that the employee’s actions in withholding crucial information about her fiancé and his employment with a competitor were unreasonable: “…she refused to provide her employer with any answer to those inquiries, or to cooperate with him at the most elemental level…this was a damaging position for the Applicant to have adopted. Following the Applicant’s refusal to cooperate, [the employer] thereafter lost confidence in the Applicant as an employee who would serve him with all due fidelity.” [63-64 in part]

Questions, questions…
An employer cannot reasonably expect an answer to any and every question that might be put to an employee. There are personal and private issues in any person’s life that do and should remain outside the scope of an employer’s ‘business’. Walking the line between appropriate questioning relevant to the business and an inappropriate inquisition can be a delicate exercise. While finding in favour of Termicide, it is worth noting that Commissioner Richards did opine that: “…there were elements of harshness to the manner of the Applicant’s dismissal.” [80]

The particular circumstances in this case – including a discernible urgency regarding potential commercial damage by the Applicant and her fiancé – made the position of the employer more palatable to the Commission.

It certainly appears that information regarding a spouse or partner cannot reasonably be withheld by an employee where legitimate business concerns are involved. This is an evolving area of the law. As in most workplace issues, careful consideration and planning will go a long way to ensuring that the correct approach is taken in similar circumstances.

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.