How to Prevent Sexual Harassment in the Workplace

Vince Scopelliti - Wednesday, October 16, 2019

Unfortunately, dealing with allegations of sexual harassment in the workplace is an issue for many employers. Sexual harassment can take many forms, and cases are rarely "open and shut".

Once allegations of sexual harassment or misconduct have been made, they must be appropriately investigated and dealt with. However, prevention is always better than cure.

Let's take a look at employer obligations, the scale of the problem and how employers can help prevent sexual harassment in the workplace.

obligation to provide a safe workplace 

Employers are required by law to provide a safe workplace for all employees. This is enshrined in the workplace health and safety legislation throughout Australia (for example, s19 of the Workplace Health and Safety Act 2011 (NSW)).

Legislation requires employers to provide for physical safety, for example, by preventing unsafe worksite practices which could cause injuries to employees. It also extends to ensuring that employees are protected against physical and psychological harm caused by sexual harassment or assault, and mental harm (such as could be caused by bullying or harassment).

The facts - workplace sexual harassment

A 2018 sexual harassment study conducted by the Australian Human Rights Commission, found that one in three Australian workers claim to have been sexually harassed in the workplace in the past five years. This figure has increased from one in five workers in 2012, and one in ten in 2003. Of course, this may be due to employees becoming more aware of what sexual harassment is and what their rights are in relation to reporting or taking steps to report and prevent it. However, it is still a worrying statistic.

Interestingly, although sexual harassment affects both genders (with 26% of men and 39% of women interviewed reporting experiences of sexual harassment), those most likely to be harassed in the workplace are aged between 18 and 29. Moreover, despite the fairly equal gender split in victimology, the overwhelming majority (80%) of harassers are men.

Tips for preventing sexual harassment in the workplace 

There are a number of strategies that can help employers nip sexual harassment in the bud. These include:

  • Management support. It is essential that all levels of management, but particularly the highest levels of the executive team, embrace an anti-harassment culture. This is particularly important when one considers that, at least anecdotally, there may be a perception that sexual victimisation is a top-down phenomenon. It is important for management to demonstrate that no type of sexual harassment will be tolerated in the workplace. Similarly, the executives of any workplace must demonstrate that they will deal swiftly and appropriately with those who have been found to have engaged in sexual harassment. Ultimately, it is essential that the entire business receives the message that sexual victimisation will not be tolerated on any level. This also means that appropriate conduct by managers should always be encouraged.
  • Creation of a sexual harassment policy. A clear, detailed and easily accessible sexual harassment policy should be created, setting out exactly what the company's position on such harassment is. This should include the specific behaviours that will constitute sexual harassment and will not be tolerated. It must also be widely circulated amongst staff, ideally with a sign-off required confirming that staff have read and understood the policy.
  • Provision of training. Again, this should be rolled out company-wide, and conducted on a regular basis. It is important that there is general awareness, not only of what is defined to be sexual harassment, but an understanding of what rights and remedies are available to those who feel that they have been a victim of this type of harassment.
  • Encouraging a positive workplace environment. By implementing the above steps, a positive environment will be fostered, which will also encourage staff at all levels to be proactive about preventing sexual harassment or calling it out when it occurs.

the need for employer action

In addition to the general requirement to provide safe working conditions for staff, there are other positive obligations on employers in relation to sexual harassment.

For example, in Victoria, the Equal Opportunity Act 2010 (VIC) imposes a positive duty on employers to prevent any sort of sexual harassment from occurring.

Similarly, employers Australia-wide may be deemed to be vicariously liable for the conduct of their employees, if it can be demonstrated that they did not take reasonable steps to prevent sexual harassment (per the Sex Discrimination Act 1984 (Cth)).

In order to protect the business, it is crucial that immediate and appropriate action by way of response to a sexual harassment notification occurs. Training managers and staff about sexual harassment and the company's stance on it is vital.

Sexual harassment in the workplace continues to be a great concern for both employees and employers. Taking active steps and educating staff is crucial in reducing the prevalence of sexual harassment in the workplace. Accordingly, WISE Workplace offers employers training programs to address and investigate workplace sexual harassment, as well as independent investigation services to review such behaviours. 


Supporting Mental Health in the Workplace

Vince Scopelliti - Wednesday, October 09, 2019

Employers understand that it is their responsibility to provide a safe workplace. Yet unlike physical health safety concerns and hazards such as lifting, tripping, sun exposure and dust reduction, many employers find themselves uncertain about how to support the mental health and wellbeing of their staff.

The first and most powerful antidote to this uncertainty is becoming informed. For business owners and managers, this includes stepping up and finding answers about common mental health challenges, causes and implications in the workplace.

Let's take a look at some of these factors, and how employers can support their workers' mental wellbeing.

COMMON TYPES OF MENTAL HEALTH ISSUES 

Thankfully, many mental health disorders have become better understood and less stigmatised. While not perfect, attitudes towards mental illnesses such as anxiety and depression have changed and are better understood now, than even a decade ago.

However, even though there is understanding that 1 in every 4 Australians will experience some form of mental health issue during their lives, the cliches about non-physical illnesses still abound. This can include the idea that all depressed people are sad, or that anxious people just need to learn to calm down. Another painfully familiar idea is that people with a mental illness are inherently unstable.

For less-understood conditions such as bipolar disorder, schizophrenia, OCD, ADD and PTSD, the accommodation of these and the provision of necessary reasonable adjustments where required in the workplace and beyond, remains incredibly low. Between 6-8% of all adult mental illnesses will be one of these mentioned, so there is every chance that a person in your workplace is currently living with such a challenge on a daily basis.

One common misconception is that people with such mental health conditions are somehow defective - and can't or won't work. Yet the reality is that many high functioning people being treated for mood disorders and other chronic mental health conditions are living and working effectively around Australia at this moment.

Step out against stigma

Sadly, Australians who are working despite carrying a mental health issue often feel that they need to work faster/harder/longer/more to prove their worth - and keep their 'problem' quiet. Women, migrants and those with disabilities can certainly understand this kind of historical over-compensation in the workplace. So, when events arise that could exacerbate the situation, employers might only find out once the worst of the damage has already been done. It is vital therefore to build preventative mechanisms, systems and practises for reducing the kinds of workplace behaviours that can both create and exacerbate mental health issues. 

the key contributors to mental health issues 

The key contributors to workplace mental issues include bullying and harassment, excessive workload, repetitive work routines, and stress. The painful and devastating effects of bullying and harassment are difficult for any worker to face. For employees burdened with a mental health challenge, the impacts can be debilitating.

As mentioned, mental illness can often be carried silently in the workplace, largely due to stigma. If a workload becomes excessive, an employee might not speak up for fear of reprisal. Employers need to put in place systems to monitor these burdens. Repetitive, mundane work can also lead to health and safety issues for workers. One problem that was identified in the Industrial Revolution is that humans need variety! And stress is another 'top 5' cause or primary exacerbator of mental health problems in the workplace: uncertainty, discord and constant change can all build up and cause health concerns.  

adverse outcomes for the workplace

Absenteeism is an unfortunate but not surprising outcome when people are not supported in the workplace. For those with an existing mental health issue, workplace stressors such as bullying and harassment can cause  an exacerbation of the illness. At times like these, attendance can be extremely difficult, if not impossible for an unwell worker to maintain. In a similar way, when mental health issues are not supported in the workplace, reduced productivity is the inevitable consequence. To produce the goods and services at a high and continuous level, workers need to feel well and to feel supported, safe and valued. 

employer obligations to health and safety 

It can be somewhat more familiar for employers to think about workplace health and safety only in terms of physical wellbeing. This narrow notion is not correct and a safe workplace also requires understanding and protection of all workers and particularly those with mental health needs. This necessitates taking the time to understand particular mental health conditions more thoroughly, and to take steps towards ensuring a safer and healthier workplace.

Providing safety to employees from direct and indirect mental harm in the workplace involves much more than merely paying lip service to the notion of promoting good mental health and the occasional 'Are you okay'? query. When an employee develops or divulges a mental health issue, the first step is to provide and encourage open communication. Employers can show their interest in learning more about the condition and what might be done to assist the employee at a practical level.

They should make any and all reasonable adjustments required, to support the employee which may include offering or organising flexible working arrangements, if this is something that might assist the worker in question. Anti-bullying policies should be regularly reviewed and strengthened to ensure that the chances of a workplace mental injury occurring are reduced.

An audit to identify a comprehensive suite of risk strategies and processes should be undertaken, to ensure that the workplace is the safest and healthiest that it can be - from any standpoint.

stepping up to a well workplace 

It makes sense for employers to make a commitment to the mental health and wellbeing of staff. As well as producing excellent improvements in absenteeism, reduction in staff turnover, productivity and injury rates, it's also simply the right thing to do. If you'd like more information and education on mental health in the workplace, check out our series of articles on this topic, starting with Mental Health in the Workplace


Outsourcing or In-House Investigations?

Vince Scopelliti - Thursday, October 03, 2019

For many businesses, one of the critical HR questions is whether investigations into alleged employee misconduct or misbehaviour should be outsourced or conducted in-house.

Depending on the nature of the business and the complaint, it may not always be appropriate or cost-effective for investigations to be referred externally.

However, in other circumstances, particularly when the allegations involve potential criminal conduct or there is an actual or perceived conflict, outsourcing may be the best option.

We examine the different circumstances in which investigations might best be outsourced or kept in-house.

outsourcing vs internal 

The key benefit of conducting workplace investigations internally is the ability to potentially deal with a matter swiftly and cost-effectively. The obvious reason here is that staff tasked with conducting an internal investigation, already have an understanding of the internal processes and procedures of the business. Although time away from normal duties is likely to be required, there is no additional cost associated with tasking existing staff to conduct an internal investigation.

On the other hand, depending on the nature of the allegation, existing staff may be lacking in capacity or capability to properly conduct the investigation. This is particularly likely to be the case if the allegations relate to potential criminal conduct which requires police involvement.

In addition, if the allegations are sensitive or have been made against a staff member who would ordinarily be involved in conducting the investigation, it may not be appropriate for the investigation to occur internally.

Whether the investigation is outsourced or conducted internally, it is essential that there are clear delineations as to who will be conducting the investigation. Further, the ultimate investigator must be provided with the applicable investigation policy and procedures which must be followed.

risks of handling an investigation in-house

As noted, there are numerous potential risks of handling an investigation in-house. Chief amongst these is the fact that the internal staff may lack the necessary skills or training to adequately understand the complex nature of the investigation. This could have significant ramifications if there are demonstrable gaps in the process, as this may ultimately invalidate the findings and any final decision which is made.

Having staff without the requisite experience or skills, conducting an investigation may also mean a failure to comply with legal obligations. In the event that the investigatory process results in termination of employment, litigation or other legal action, any failure to duly comply with all the legal and regulatory requirements, may potentially result in an adverse decision for the company.

The possible apprehension of bias in an internal investigation is significant, particularly if the employees who are conducting the investigation have a close personal or professional relationship with the complainant, the respondent or any of the witnesses. In a small company, or in a situation where a member in a senior leadership position has allegations levelled against them, this potential apprehension of bias is even greater.

This could also result in complaints of pre-determined outcomes, where staff involved in the process may argue that the investigation was not conducted in accordance with the principles of procedural fairness. Any relationship (whether positive or negative) between the investigatory staff and the parties involved in the investigation is likely to come under significant scrutiny. This may open up the investigatory team to suggestions that the investigation was not conducted impartially or fairly.

Factors for considering whether to outsource 

Impartiality and transparency in the investigative process are always crucial considerations. In situations where there are especially sensitive allegations or the staff involved are likely to resort to post-investigatory litigation, any potential concerns regarding failures in process or impartiality can be addressed by outsourcing the entire investigation.

Similarly, if time is of the essence (particularly when staff have been temporarily stood down and it is important that the investigation process is concluded in an expeditious fashion) outsourcing the investigation may be the preferable outcome. 

This is because external investigators are able to devote themselves completely to the investigation process, while existing employees will most likely need to continue on with their day-to-day work.

the benefits of outsourcing

Although there is a cost associated with the outsourcing of an investigation, there are added benefits. Investigators with specialist expertise are able to deal with complex matters, and are best placed to provide reports which are more likely to be relied upon by the Fair Work Commission.

The majority of contemporary workplace investigations come with their own set of challenges and complexities. If you do not have the time or resources to conduct an investigation or you require an experienced investigator, WISE offers both supported and full service investigations to best assist.  

Police Involvement in Workplace Investigations

Vince Scopelliti - Wednesday, September 25, 2019

On occasion, police will become involved and/or need to be involved in the allegations from a workplace matter. In this situation, it's important for employers to know what their obligations are, and to be aware of some of the challenges that can arise. 

So, let's take a look at when police are or may need to be called in and what should happen once they are. 

WHAT matters require the police? 

Generally speaking, any allegation of a serious or potentially criminal nature necessitates the involvement of police. This includes allegations of physical assault, sexual assault, stalking, child abuse, significant fraud or theft. 

In the event that a complaint could have criminal implications, it is always a good idea to get the police involved as soon as possible. This helps ensure that any police investigation is not hampered by destroyed evidence, ongoing delays or similar interference. 

the employer's obligations

If police have become involved in a workplace matter, the police investigation takes precedence over the internal one. 

However, while the police investigation does take priority, an employer must still carry out an internal investigation. This is to afford the employee who is the subject of the investigation due process and procedural fairness. 

The internal investigation and a police investigation must both be treated entirely separately, but run in tandem. The internal investigation must be managed without impeding the police investigation. It is essential for the employer to communicate closely with police and provide assistance wherever required.

It is also important for an employer to remember that one of their paramount obligations is to provide a safe working environment for staff. This means that if there have been serious allegations such as physical or sexual abuse, the complainant and respondent must be separated in the workplace. Generally, staff against whom allegations have been made should be suspended on full pay, pending the outcome of the police investigation. 

the challenges involved 

It is likely that the police investigation will require the use of resources that would otherwise be engaged in conducting the internal investigation. For this reason, it can be difficult to actively investigate a workplace matter internally while the police are undertaking their own investigation. 

It can also be difficult for employers to balance the need to assist police with their legal obligations to their employees.

a case in point

This balancing act is demonstrated in the matter of Wong v Taitung Australia Pty Ltd [2016] FWC 7982. In this matter, Mr Wong, an employee who was accused of theft, named several other employees allegedly involved in a criminal enterprise. 

Police suggested that the employer not take disciplinary action in relation to the employees, in order to obtain and preserve the evidence against them. This meant that the employer permitted Mr Wong to continue working with no warnings, despite having sufficient evidence to conduct a summary dismissal.

The police were unable to obtain sufficient evidence to charge him, however he was ultimately terminated. However, the Fair Work Commission found that the summary dismissal of Mr Wong was unjust in the circumstances. 

The added factor of police involvement while undertaking internal workplace investigations presents unique challenges for employers. The balancing of police intervention into serious criminal allegations, with the strict employment principles and procedures, is both challenging and essential to ensure employers' actions are reasonable. WISE provides external investigation services as well as training in conducting investigations necessary to manage the workplace-police dynamic. 

Elder Abuse in Care

Vince Scopelliti - Wednesday, September 18, 2019

The most vulnerable members of our society are generally those with disabilities, the very young and the elderly. People who are vulnerable are at greater risk of being abused or otherwise mistreated, especially in residential care facilities. This is currently being made distressingly clear at the aged care Royal Commission. 

We discuss what elder abuse in care looks like, how it can occur and what factors can make an impact on the investigation of alleged abuse.

WHAt is elder abuse? 

"Elder abuse" is an umbrella term, which encompasses a number of forms of abuse, including but not limited to:

  • Physical abuse. This means that a person, often a carer or loved one, is deliberately inflicting physical injury or pain on an elderly person. Importantly, this also includes the use of physical and chemical restraints.
  • Psychological/emotional abuse. It is difficult to define exactly what constitutes emotional abuse. However, examples include making threats or intimidation, humiliating the elderly patient, failing to provide access to services (such as restricting access to clean clothing or washing facilities) or telling the patient that they have dementia when they don't.
  • Social abuse. This includes restricting a patient the right to see or interact with their family or loved ones.
  • Financial abuse. This is one of the most common types of elder abuse. It involves mismanaging, improperly using or otherwise dealing dishonestly with an older person's financial assets. Examples include forcing the elderly patient to provide bank details so that the carer can use them for their own purposes. Another example is forcing the patient to sign over money or goods in their will.
  • Sexual abuse. This is dealing with an elderly person in a sexual way without consent. It ranges from speaking about sexual activities to inappropriate sexual contact.
  • Neglect. Another very common type of elder abuse, this involves withholding basic human rights such as food, shelter, hygiene or medical assistance from the patient.
Like many other types of abuse, elder abuse is significantly under-reported. This is because of shame, fear of reprisal, or in certain circumstances the elderly patient not understanding that they are being abused. However, according to a report published by the Australian Institute of Family Studies, up to 14% of older Australians may be subjected to elder abuse.

In late 2018, a Royal Commission into Aged Care Quality and Safety was announced. Amongst its terms of reference is the specific requirement to consider poor care, including "mistreatment and all forms of abuse". An interim report commenting on initial findings is due to be published by 31 October 2019.

WHAt are the signs of elder abuse? 

Determining whether an elderly Australian in care is the victim of abuse can be extremely difficult. However, some key factors which can cause a suspicion of abuse include:

  • Sudden personality changes such as unusual anger, anxiety, fear or depression;
  • Obvious poor personal hygiene;
  • Changes in eating and sleeping patterns;
  • Changes in social activity and interaction such as becoming non-verbal, becoming isolated and lack of motivation;
  • A failure for simple medical conditions to clear up as expected (indicating maltreatment);
  • Inexplicable disappearance of money or possessions; and
  • Visible signs of injury or trauma.

Who is most at risk? 

Although potentially all older Australian in residential care facilities are at risk, those with mental health issues are at greater risk of being abused. This is because the victim may be confused themselves, about whether the abuse is even occurring. Further, even if the victim does make a complaint, those with organic brain issues and diseases or significant mental health problems may not be believed.

Challenges of an investigation 

Investigations into elder abuse are challenging due to a number of different factors. These include low reporting rates and difficulty in obtaining accurate reporting and evidence about the specific details of abuse. There are unlikely to be third party witnesses because abuse can and often does, occur in the victim's private room. Victims may also be poor witnesses due to difficulties with memory and recall or other mental health illnesses and conditions.

The Royal Commission into Aged Care Quality and Safety has revealed how the treatment of the elderly in aged care facilities can go unnoticed. If you require assistance into the investigation of elderly abuse complaints in a care setting, contact WISE to discuss your needs, and how we can help. Alternatively, we provide Investigating Abuse in Care training.

How to Move Forward After a Workplace Investigation

Vince Scopelliti - Wednesday, September 11, 2019

A workplace investigation can be a traumatic and emotional event for everyone involved. 

Let's take a look at how an organisation can move forward after a workplace investigation, regardless of whether the complaint has upheld or if any disciplinary action has been taken. 

WHAT happens when an investigation is concluded? 

After the investigative process has finished it is important for all parties involved to be updated on the outcome. This includes the complainant, the accused and potentially in some circumstances, witnesses who have been heavily involved in the process. It is important that the parties are kept in the loop and do not find out from each other or another source, that the investigation has concluded. 

Any concerns arising out of the investigative process and findings which are raised by the parties, should also be dealt with. This may include questions of how confidentiality is to be maintained; details of how any disciplinary action will be implemented and work in practice; concerns about how the parties are to continue to work together (if possible); and how an organisation will be able to support all of the parties affected by the investigation findings and outcomes. 

Once these concerns have been identified and addressed to the best of management's abilities, the outcome of the investigation should not be shared with the workplace generally. However should be communicated with the applicable parties, where appropriate to do so, that does not breach any parties confidentiality.  

Having a communication strategy will avoid rumour or conjecture.   

what are some common complications? 

It may be tempting for management not to share the outcome of an investigation with staff. This approach is usually taken in an effort to avoid breaching confidentiality or to squash gossip. 

However, poor communication generally results in a growing mistrust of management - especially if a decision is made to terminate a respondent's employment. If they are simply there one day and gone the next, this can have a negative impact on staff confidence levels. 

Communication is particularly crucial if the investigation has led to changes in the management structure. These changes could occur, for example, because there is a termination of employment in a team, or it has become apparent that the 'old' structure isn't efficient. These types of changes require extremely good communication at all times. 

Similarly, the temptation for staff to breach confidentiality and gossip is extreme after an investigation. This is especially so if the outcome is perceived as being unfair or inappropriate. In order to minimise the spread of gossip, management should ensure that as much information that is appropriate and maintains confidentiality, is distributed to the business in a timely fashion. All parties involved in the investigation, regardless of the nature of their involvement, should be reminded of their confidentiality obligations and the potential consequences of breaching them. 

Another common post-investigation outcome is the desire for retribution. This may occur regardless of what the findings were, because for example a peer may consider that a colleague has been treated unfairly. Alternatively, a colleague may form the view that the investigation has not been through or harsh enough or has come to the wrong conclusion. Regardless of the motivation, management must be cautious to avoid and identify any retribution and manage any issues that arise swiftly if this behaviour occurs. 

post-investigation strategies 

Even if an investigation has been run thoroughly and 'cleanly', it is important for post-investigation strategies to be in place to avoid potentially negative consequences. 

As noted, these strategies include excellent communication on a 'top down' basis. This is to minimise gossip and to ensure that confidence in management is restored. 

Additional strategies may include arranging mediation for the involved parties, to ensure that any concerns are voiced before an independent third party. 

The post-investigative period is also a good time for the organisation to pull together as a whole and discuss workplace values and standards. This can be an opportunity to reflect on the nature of the allegations (to the extent that they are disclosable) and to reaffirm the organisation's approach towards such behaviours.

If the alleged behaviour is particularly offensive, and strict action was taken as a result, this can also serve as a timely reminder for the organisation to reinforce and remind all staff, that code of conduct or criminal breaches are taken extremely seriously. 

Similarly, any changes in company culture or procedures that are clearly required in the wake of the investigation, can best be introduced in this timeframe. 

If you need effective resolution of workplace disputes following an investigation, WISE Workplace provides advice coupled with mediation services on how to best resolve post-investigation concerns.

How to Deal with Workplace Conflict

Vince Scopelliti - Wednesday, September 04, 2019

Any sphere in which humans interact with each other is likely to involve certain levels of conflict. This is certainly the case in the workplace, where employees are required to spend significant amounts of time with people they may not otherwise choose to be involved with. 

Although workplace conflict is unavoidable, it does need to be dealt with to ensure that staff remain engaged and productive. We take a look at the best strategies for resolving issues amongst employees.  

WHAT IS WORKPLACE conflict?

There are two broad types of conflict which can occur in the workplace. These include conflict of ideas, and personality clashes. 

By and large, a conflict of ideas can be a force for positive change in the office. This type of conflict generally arises when two or more employees feel strongly about the way something is done. One staff member may like following detailed processes to the absolute letter, while another staff member 'wings it'. Although these different working styles are likely to result in conflict and frustration, it is important that all workplaces embrace differences in employees, for the betterment of the organisation. 

A much more negative type of conflict, however, arises from personality clashes. While not all staff will get along all of the time, it is important that a minimum level of appropriate behaviour is insisted upon within the workplace. This includes always treating colleagues with respect, being polite and courteous.  

consequences of workplace conflict

Negative workplace conflict, which typically arises from personality clashes, results in reduced productivity and the creation of a toxic workplace. It goes without saying that staff who are locked in unhealthy relationships with their colleagues are more likely to take sick leave to avoid seeing their co-worker. Alternatively, there may be increased levels of presenteeism, where staff attend work but are not providing their best work. Even staff who are not directly involved in the conflict will likely feel increasingly stressed due to the negative atmosphere, and ultimately this will result in higher levels of staff turnover. 

Situations where there are high levels of conflict could also potentially result in more serious types of negative behaviours being engaged in, such as bullying, victimisation or harassment.

Resolving the conflict

There are many techniques and strategies available to employers to manage workplace conflict. Mediation utilising an independent third party can be particularly helpful, especially in cases where traditional management action has not been successful. 

Through mediation, staff members can ventilate their concerns and feel they have been adequately heard. As the mediator is generally an external party, employees are also less likely to feel that biased decisions are being made against them. 

Additional techniques include ongoing training for staff, in particular as to what types of behaviour will and will not be tolerated in front of peers. All expectations on behaviour must be recorded in clear policies and procedures. 

It is also important for employers to improve communication, so that staff know what is expected of them and what type of behaviour will not be tolerated. Management must also take clear steps to nip intolerable levels of workplace conflict in the bud, as soon as it becomes apparent.

Team bonding activities can also be a helpful way for staff to get to know their colleagues better, and perhaps develop an understanding of their motivations and concerns. 

By following these techniques, unnecessary and toxic workplace conflict and culture can be minimised. This in turn will have a positive impact on any organisation. 

Conflict among staff can easily fuel larger problems within an organisation, stunting productivity and quality of services. If your workplace is experiencing internal conflict and requires independent and expert support, WISE Workplace houses experienced mediators to help facilitate the resolution of workplace conflict.

How and When to Report Workplace Bullying

Vince Scopelliti - Wednesday, August 28, 2019

Workplace bullying can sometimes be difficult to identify. After all, people from many different walks of life are thrown together in a working environment, and this will often result in personality clashes and natural disagreements. Not everybody in the office will be friends with each other. 

So how can you tell when something has strayed into the area of workplace bullying? And how do you know when to deal with it formally? 

what is workplace bullying?

The simple definition of bullying in the workplace is 'repeated and unreasonable behaviour' directed towards an individual or a group of workers that is ultimately posing a risk to their health and/or safety. 

This may mean pranks or 'hazing', which threaten the physical health and/or safety of an individual can constitute bullying. Other types of bullying include psychological harm caused by aggressive behaviour, abusive comments, unjustified criticism, or subtler behaviours, such as excluding and isolating colleagues from activities in the workplace. 

In 2017, Safe Work Australia published statistics which showed that 39% of all mental disorder claims arising from the workplace, involved harassment or bullying. However not everything which is unpleasant or creates conflict in the workplace constitutes bullying. 

Management staff are entitled to engage in 'reasonable management action', intended to deal with workplace issues. Similarly, disagreements between co-workers which are appropriately managed or resolved need not constitute workplace bullying. 

On the other side of the coin, conduct which involves the victimisation of a person in a way that constitutes discrimination, is a separate category of workplace offence. Although clearly very serious, allegations of discrimination should not be conflated with the concept of workplace bullying. 

when should bullying be reported?

It is clear that the effects of workplace bullying can be far reaching. Bullying not only affects the mental and physical health of the employees directly involved, but can impose additional stressors on all staff and create disharmony in the workplace. 

A good litmus test for determining whether behaviours should be reported or formally dealt with as workplace bullying, is if the behaviours occur repeatedly. If the behaviour is repeated this suggests a wilful or reckless disregard for the needs of the bullied colleague and demonstrates a clear pattern of poor and inappropriate behaviour. 

In any event, reporting matters which make the workplace a less pleasant environment, is always a prudent course of action.

how to report workplace bullying

There are many different ways to report bullying in the workplace. Perhaps the simplest way is by reporting it directly to a supervisor, who then has a duty to pass the information further up the line. 

Of course, this can be problematic if the allegations of bullying involve the supervisor in question or someone even further up the hierarchy of an organisation. Alternatively, a report may be made to a Health and Safety Officer, or directly to the Human Resources team. As a last resort an individual could report the conduct to the Fair Work Commission, or the appropriate state agency such as SafeWork NSW, Victoria, SA etc. 

Depending on the nature and seriousness of the allegations, it may be appropriate to make the report in writing. 

There may well be circumstances, however, where it is preferable to make an anonymous report or otherwise not become too involved in the formal process. In these circumstances, a whistleblowing action may be the more appropriate way to make a disclosure. 

One of the key advantages of whistleblowing is that the bullying behaviours can be reported to a greater selection of people, including senior managers, officers of the company or any other person authorised to receive 'protected disclosures'. This can lessen any discomfort about reporting direct supervisors. The process is also confidential, and reporting can occur anonymously, which is likely to assist in the event of concerns about potential reprisals. 

If there are concerns about bullying in your workplace, there are simple and active measures that can be taken to address any concerns reported. WISE Workplace is an expert within the field of workplace bullying and offers organisations both investigation and whistleblowing services.  

Ruling on Anonymous Social Posts a Warning for Employees

Vince Scopelliti - Wednesday, August 21, 2019

In the highly-anticipated decision of Comcare v Banerji, the High Court has found it is not unconstitutional for the federal government to restrict the rights of public servants to express their political views in a public forum. 

So what does this decision mean for employees, freedom of political communication and the right to free speech? 

The facts of the matter

The respondent in Comcare v Banerji [2019] HCA 23, Ms Michaela Banerji, was employed by the Department of Immigration and Citizenship until September 2013. At this time, her employment was terminated for having breached the Australian Public Service's social media policy and code of conduct. 

Specifically, it was claimed that Ms Banerji had 'tweeted' several thousand posts under an anonymous handle. Those posts commented explicitly on the federal government; Australian immigration policy; ministers; opposition spokespeople and her specific department. 

Following her dismissal, Ms Banerji pursued a number of legal proceedings, claiming that her termination had breached her implied right to freedom of political communication. 

Ms Banerji was successful in her argument before the Administrative Appeals Tribunal, which held that the anonymity of her Twitter account meant that she could not be identified as a public servant and the policy of her employer had been applied too strictly. 

However, this decision of the AAT was ultimately overturned on appeal to the High Court.

the findings of the high court

In determining in favour of Ms Banerji's employer, the High Court explicitly found that, although the Australian Constitution provides a freedom of political communication, this 'is not a personal right of free speech'.

It was further concluded that, anonymous or not, the tweets threatened the 'integrity and reputation' of the Australian Public Service. Moreover, it was of relevance that Ms Banerji was a public servant, which would become topical if her anonymity was ever threatened.  

the wider implications of the case

As stated in the Administrative Appeals Tribunal's decision, placing such significant restrictions on - anonymous - public servants could be considered akin to dealing with 'thoughtcrime'. This means that society is imposing rules and punishments on people who have 'done nothing' other than have differing opinions. 

Ultimately, the decision means that employees, whether in the public or private spheres must carefully consider expressing opinions, be they political or otherwise, which differ from those of their employer. It is clearly unwise to post controversial personal opinions under a readily identifiable name, which could in turn identify and embarrass a worker's employer and lead to a conclusion that the opinions have caused damage to an employer's reputation for example. However, of some concern is the decision of the High Court in applying the Australian Public Service's standard and code of conduct requirements to anonymous tweets. 

This decision is particularly topical given the controversy over the recent legal proceedings involving Rugby Australia and Israel Folau, a devout Christian, 'cut and pasted' text on social media about homosexuality and hell. Given Folau's high profile as a rugby player, his employer Rugby Australia, terminated his employment. Folau is pursuing legal proceedings, arguing that his religious freedom has been interfered with as a result of his termination. 

Although the nature of the defence differs from that put forward by Ms Banerji, the ultimate concept is the same: private individuals are putting forward commentary on personal beliefs and opinions, but on a public forum, and are being penalised by losing their employment as a result. Rugby Australia maintains that Folau's breaches of conduct occurred repeatedly, and that he had been warned on several prior occasions about posting such commentary on social media. 

While it is not yet known what the outcome will be for Folau, it is clear that these cases have wide-ranging implications for organisations and employees. 

WISE Workplace is highly experienced at conducting investigations and the surrounding complexities of contemporary legal issues. If your organisation holds concerns regarding inappropriate social media use, WISE can conduct investigations and analysis of electronic evidence to establish defensible findings.

The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.