How Can Employers Assist Workers with Acquired Brain Injury

Vince Scopelliti - Wednesday, August 16, 2017

A decision by the Queensland Court of Appeal highlights why employers must take into account the needs of workers with an acquired brain injury, in order to avoid being considered to have discriminated against them. 

In Chivers v State of Queensland (Queensland Health), the Court of Appeal heard a case pursued by Ms Chivers, who was employed as a registered nurse with Queensland Health (QH). She had an acquired brain injury from a horse riding accident in 2004. As a result of her accident, she experienced headaches and nausea and was unable to work night shifts. 

QH initially accommodated her working requirements. However, despite QH's apparent support of Ms Chivers, her probationary period was extended on three separate occasions, ostensibly to allow an assessment of her ability to work nights. Eventually, after one year, Ms Chivers resigned and claimed that QH had discriminated against her by failing to confirm her employment. 

In its defence, QH argued that working nights was a 'general occupational requirement' for registered nurses who were employed in 24/7 wards, and that Ms Chivers failed to comply. But Ms Chivers presented evidence of other nurses in permanent employment who were not required to work across all shifts, despite being employed in the same 24/7 wards. 

The Court of Appeal held that the ability to work across all shifts was not a genuine occupational requirement. 

Although there can be specific challenges when working with people suffering from an acquired brain injury, this does not mean that they can or should be discriminated against in the workforce - including when it comes to conducting workplace investigations. 

What is an acquired brain injury?

Acquired Brain Injury (ABI) is the term used for any brain damage, which is sustained after birth. Causes include physical head trauma, strokes, brain tumours, brain infections, alcohol and drug abuse or neurological diseases such as Parkinson's disease. This term is used to describe both permanent and temporary injuries. 

Those suffering from an ABI are likely to experience ongoing difficulties with: 

  • Concentration
  • Processing information at speed
  • Fatigue
  • Memory
  • Problem Solving and lateral thinking
  • Organisation of thoughts and activities 
  • Planning
  • Self-control and monitoring
  • Insight into personal behaviours
  • Emotional lability
  • Restlessness (physical and emotional) 

tips for managers of employees with an abi

Perhaps the greatest potential challenges are difficulties with memory, cognition and communication. When communicating with people with a disability, it is important for managers not to focus on the potential restrictions of their employees, but to consider how to get the best out of their workers. 

In the context of an ABI, this is likely to take the form of:

  • Flexible working arrangements, such as part-time or reduced hours, or the ability to call in sick with short notice. From a recruitment perspective, one of the best ways to ensure that everybody's needs are met is to ask potential employees who have declared an ABI to provide any assessment or medical treatment reports which could provide guidance as to their capacity and daily needs. New employees should be encouraged to undergo a work trial period, during which both employer and employee can consider what tweaks might be necessary to ensure that the arrangement works optimally for both parties. 
  • Developing appropriate risk mitigation strategies. This includes ensuring that both employer and employee are aware exactly what is and might be required of the employee with the ABI, so that their role is clear. Other strategies include making sure that workers compensation and medical leave certificates are appropriately filled in, even if the employee is required to take a lot of sick leave. This will help to ensure that events are well documented in case a dispute arises. 
  • Ensuring that instruction manuals and written directions are easily accessible and clear. People who suffer from an ABI may require frequent reminders and mnemonics to perform their job to their full ability, and facilitating this will help an employer to best unlock an employee's potential. 
  • Implementing a workplace buddy system. A dedicated buddy can not only provide ongoing emotional and personal support, but also assist with simple memory jogging and reminders when needed.

undertaking workplace investigations involVing an ABI

The difficulties inherent in the workforce for people suffering from an ABI are magnified when a workplace investigation needs to be conducted - regardless of whether the employee with an ABI is the victim, the respondent or a witness. 

In order to counter difficulties associated with an ABI, employers engaged in investigative interviewing should consider strategies including: 

  • Prior to conducting an interview with a person with an ABI as part of an investigation, the investigator should make an assessment about the witness' communication, including skills, abilities and whether they use any types of communication aids. 
  • Talk to other staff or human resources to obtain some further information that can assist in understanding how best to work with the employee with an ABI. 
  • Reducing distractions during the interview (for example, make sure the radio is turned off and there are no unnecessary staff sitting in on the interview). 
  • Using short and simple sentences to avoid confusion, especially when putting allegations to the interviewee. This should also include presenting information slowly and one bit at a time.
  • Giving frequent reminders of the next step - this is particularly important from a procedural perspective. From an employer's perspective, this is also important to avoid any allegations of abuse of process or discrimination. 
  • Being prepared to repeat information as often as necessary until the employee clearly understands what is being conveyed. 
  • When the employee is clearly distracted, ensuring that they are brought back to focus on the matter at hand. 

Interviewing an employee with an ABI is challenging and can be very difficult to get right. If you require a highly experienced interviewer to assist with a workplace investigation involving a person with an ABI, or any other disability, contact our investigations team today for expert assistance.

Complaints Management Under the NDIS

Vince Scopelliti - Wednesday, August 09, 2017

The National Disability Insurance Scheme (NDIS) was introduced in mid-2013 to facilitate a support system for disabled Australians. In many ways, this has begun to streamline and simplify the process whereby many thousands of Australians under the age of 65, who have sustained a permanent and residual disability, are able to access healthcare services. But what happens when the system goes wrong and complaints need to be made about behaviour occurring within the purview of the scheme?  

REGULATORY FUNCTIONS OF THE NDIS

Broadly, the NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth). It is administered by the National Disability Insurance Agency (NDIA), which holds all funds in a single pool, manages funds, administers access and approves the payment of support packages. The NDIA Board, which is advised by the National Disability Insurance Scheme Independent Advisor Council, ensures the strategic direction and general performance of the NDIA. 

The NDIS Quality and Safeguarding Framework has been set up to ensure a nationally uniform approach as to how participants of the scheme will be assisted and supported. 

The NDIS Complaints Commissioner, the NDIS Registrar and the Senior Practitioner hold important roles in the complaints process under the NDIS.

Providers who wish to operate within the NDIS must:

  • Comply with all state and federal laws
  • Participate with the NDIS Code of Conduct
  • Engage in the NDIS Resolution Process

mandatory reporting regime

In NSW, the Disability Inclusion Act 2014 requires mandatory reporting for serious incidents of abuse or neglect of the disabled in the supported group accommodation setting. If this is suspected, an investigation must take place. 

Any such serious incidents must be reported to the NSW Ombudsman within 30 days of the incident occurring. 

In Victoria, The Department of Health and Human Services has developed a new Client Incident Management System (CIMS) to improve the safety and wellbeing of clients. In addition, they have recently established a Reportable Conduct Scheme (RCS) under the Child Wellbeing and Safety Act 2005 to improve on how organisations prevent and respond to allegations of abuse. This came into effect on 1 July 2017. 

Under the NDIS, registered providers must also notify all 'serious incidents' to the NDIS Complaints Commissioner. 

These include: 

  • Fraud-related incidents
  • Alleged physical or sexual assault by an employee against a resident or scheme participant, or by one participant against another while both are in the care of a provider
  • Obvious neglect
  • Serious unexplained injury
  • The death of a scheme participant (This must be notified regardless of how the participant died)
  • Unauthorised use of restrictive practices

It is particularly important for employers to monitor staff to ensure that they are compliant with their obligations under the NDIS, and other legal frameworks.

How the ndis complaints procedure works

Generally speaking, any complaints regarding providers of NDIS-funded support systems go directly to the Commissioner, who triages cases and makes an assessment of who should deal further with the complaint. 

The Commissioner will also:

  • Investigate serious incident reports
  • Review breaches of the NDIS Code of Conduct

In order to undertake this role, the Commissioner has commensurate powers of investigation and information-sharing with appropriate industry bodies. 

In the event that the Commissioner does not wish to hear a matter, the NDIS Registrar is empowered to hear matters related to non-compliance of requisite standards by providers under the NDIS. 

Finally, the Senior Practitioner is entitled to hear matters relating to:  

  • Inappropriate or unauthorised use of a restrictive practice
  • Unmet disability support needs. 
The Commissioner is also entitled to refer matters to such external agencies as considered necessary, including the police, the Australian Health Practitioners Regulatory Agency (AHPRA) or other relevant regulatory bodies. 

Individual participants of the NDIS who are self-managed can make complaints about providers directly to the Commissioner. This complaint mechanism can be utilised even if the provider is not directly registered with the NDIS. Further, complaints may be made to other industry bodies, such as AHPRA or industry-specific organisations. 

The ability to make a complaint is also not limited to recipients of services under the NDIS - any person can make a complaint about an action taken by a NDIS provider. 

A separate complaint process is required if a scheme participant is concerned about decisions made by the NDIA (as opposed to inappropriate behaviour being engaged in by a service provider). 

WHAT ARE PROVIDERS REQUIRED TO DO?

It is a requirement for NDIS providers to have in place an effective internal complaints management scheme, and they must commit to maintaining a detailed schedule of complaints received and responses proffered, specifically in order to assist the Commissioner if necessary. 

Employees who report inappropriate behaviour or otherwise raise concerns about their workplace to the Commissioner are entitled to whistleblower protections as enshrined in the relevant legislation.

WHAT HAPPENS IF A PROVIDER ISN'T COMPLIANT? 

In the event that employers or providers of NDIS-related services are not complying with the applicable Code of Conduct, the Commissioner, or the Registrar can step in to review the provider's adequacy. 

In addition to assessing providers against adherence to the Code of Conduct, the Commissioner will consider whether providers have duly complied with mandatory reporting requirements, or have otherwise had complaints made against them. 

If either the Registrar or the Commissioner determines that a breach has occurred, the provider may be required to undergo additional education and training, operate subject to various conditions, or in the worst circumstances, be excluded from participation in the NDIS. 

It is essential for providers of services under the NDIS to have a strong complaints management focus in order to ensure ongoing compliance with the requirements of the NDIS and NDIA. If your organisation has received a complaint of disability abuse or other concerns relating to your management and implementation of the NDIS, and you require assistance with a workplace investigation, contact us

Investigating Allegations of Abuse in Care in Aged Care Facilities

Vince Scopelliti - Wednesday, August 02, 2017

Aged care providers have been in the media spotlight in recent weeks. While some are alleged to have financially exploited the elderly others are alleged to have provided a substandard level of care. Research conducted by Curtin University in 2015 suggests that some 167,000 older Australians may be subject to abuse annually.

Like many other types of domestic or sexual violence, it is also likely that elder abuse is significantly under-reported, so the true scope of abuse may be far greater.

what is elder abuse?

According to the World Health Organisation, elder abuse is 'a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.' The perpetrators of elder abuse can include children, spouses, friends and neighbours, or staff at care facilities where the victims reside. 

There are many different forms of elder abuse, including:   

  • Physical Abuse - Inflicting physical pain, injury or impairment. Can include forcibly restraining or inappropriately requiring the consumption of drugs. 
  • Emotional or Psychological Abuse - especially through intimidation, humiliation, mockery, isolating, ignoring, or menacing the elderly person. In a care facility, this could include repeatedly and intentionally ignoring calls for assistance. 
  • Sexual Abuse - apart from the obvious, this can include forcing the elderly to watch pornographic material, or even forcing them to take their clothes off without legitimate reasons. 
  • Neglect or Abandonment - failing to provide a requisite standard of care. 
  • Financial Abuse - includes outright theft, coercing elderly people into handing over funds or altering wills. Of particular concern are situations where carers are granted enduring powers of attorney, which enable the holder to undertake all legal actions that the person otherwise would be entitled to. Enduring guardianships relate to the right to make medical or health-related decisions on behalf of another person. 
  • Healthcare Fraud - such as billing for services which have not been provided, or intentionally over/under-medicating for a self-interested reason such as 'kickbacks' from pharmaceutical providers.

what are the signs?

Potential signs of the various types of elder abuse include:

  • A bad or unusual relationship between a care provider and recipient. 
  • Unexplained injuries
  • Insistence by the caregiver that the victim is never attended to without them being present.
  • Behaviour mimicking dementia (even when the victim does not suffer from this condition), which may suggest an emotional regression due to ongoing abuse. 
  • Ongoing poor hygiene and living conditions.
  • Significant financial withdrawals being made from the victim's accounts, or noticeable and inexplicable generosity by the suspected victim towards a specific caregiver. 

Of course, this is not an exhaustive list. Care providers and employers should ensure that any behavioural or physical changes in their clients are observed and monitored, particularly sudden ones, which occur without explanation. 

In terms of the Aged Care Act 1997, Section 63-1AA the definition of a mandatory reportable incident for persons in residential care include unlawful sexual contact and unreasonable use of force on a resident. 

Providers are required to report to the Department of Health and the Police within 24 hours if they have any suspicion or allegation of reportable assault. 

For person receiving home or flexible care, reportable incidents to the Department of Health include financial abuse. This does not extend to residents in aged care facilities, however, residents' financial abuse still needs to be reported to the Police. 

common risk factors for elder abuse

In the context of care facilities, the greatest risk factors for elder abuse include: 

  • Poor staff training or lack of awareness about what type of treatment is expected to be provided. 
  • Unhappy working conditions, contributing to staff feeling that they need to 'lash out' at clients.
  • Excessive responsibilities and inadequate levels of support. 
  • Inappropriately vetted staff, including those with substance abuse issues. 
  • Inadequate policies and procedures related to the protection of vulnerable people and a lack of staff awareness of these policies. 
  • Inadequate complaint handling mechanisms. 

Residents who may be particularly likely to become victims of elder abuse include those who are physically or mentally frail, or those who may be perceived as being very unpleasant to work with - causing care workers to demonstrate inappropriate frustration or aggression.   

How to prevent the risk of ELDER ABUSE

Apart from remaining vigilant about the potential risk factors and apparent signs of elder abuse, care facilities must ensure that:

  • All resident and staff concerns are appropriately listened to and noted. 
  • All staff have have undergone criminal checks.
  • Intervention occurs immediately when elder abuse is suspected and workplace investigations are thorough and swift. 
  • All staff are appropriately trained in the relevant policies and procedures and how to recognise and prevent elder abuse.  

COMPLICATIONS ARISING FROM THE AGEING MEMORY

Mild memory loss and a slowing down of thinking is a natural part of ageing. But while many elderly people are still capable of managing their own affairs, others who have serious conditions such as dementia may lose the capacity to do so.

In some cases, the simple fact that a person has an ageing memory may mean that they are treated as though they do not have any capacity to make decisions for themselves, and are thus at greater risk of elder abuse. 

In the context of patients with dementia or other serious memory loss issues, any complaints they raise may be discounted out of hand as being fabricated. However, when coupled with other signs of potential elder abuse, they should be investigated. 

Complications can also arise around eyewitness memory and conducting interviews in workplace investigations. In such cases, cognitive interviewing techniques can be helpful. 

This may include allowing a witness to draw a sketch or use visualisation techniques, asking them to explain everything that occurred, taking them over events in reverse order, and asking them about how they were feeling at the time of the event can all assist in memory recall. 

Conducting investigations into elder abuse in care contexts can be challenging. The WISE Workplace team is experienced in conducting independent, competent and unbiased investigations into reportable conduct and abuse complaints in care settings. Contact us to discuss your needs, and how we can help. 

Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

Vince Scopelliti - Wednesday, July 26, 2017

In a recent decision of the Fair Work Commission (FWC), a nurse has been reinstated following her termination in circumstances where covert video surveillance was the 'sole foundation' of allegations against her. The FWC also found that her employer's human resources department acted incorrectly and inappropriately in the circumstances surrounding her dismissal.

facts of the case

Ms Tavassoli, an Iranian refugee, was employed as a nurse at a Bupa Aged Care Australia Pty Ltd nursing home located in Mosman, NSW. 

In Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200, she claimed that she had been constructively dismissed after being falsely accused of serious misconduct by her employer. 

A colleague of Ms Tavassoli's had secretly recorded her on a personal mobile phone, which allegedly showed Ms Tavassoli:    

  • Making fun of a resident
  • Singing select, mocking lyrics from a musical including "Anything you can do, I can do better."
  • Continuing to drink tea with another co-worker while residents were calling for help.
  • Laughingly telling a colleague that she was lucky to have swapped a shift during which two patients passed away. 

Ms Tavassoli's colleague took the footage to the facility's acting general manager and care manager. 

In response, the very next morning, the general manager took Ms Tavassoli, off-site for a disciplinary hearing. Despite pulling Ms Tavassoli out of a training session the general manager did not inform her what allegations had been made against her, and caused her to wait for two hours before the meeting actually took place. 

During that time, Ms Tavassoli thought about what accusations may have been made against her and became concerned that she would be accused of theft after a patient had gifted her with some beer. Accordingly, Ms Tavassoli drafted a resignation letter. 

When the meeting finally took place, Ms Tavassoli was accused of various types of misconduct. Although she didn't fully understand the accusations against her, Ms Tavassoli tendered her resignation, providing four weeks' notice. However, the general manager advised her that the resignation would be effective immediately, and requested that Ms Tavassoli amend the resignation letter to remove the reference to a four-week notice period. 

Ms Tavassoli attempted to withdraw her resignation only two days later but was denied this right. 

decision of the commission

In deciding to order that Ms Tavassoli be reinstated to her former position, Commissioner Riordan determined that:

  • Ms Tavassoli had been constructively dismissed
  • The general manager acted without due procedural fairness when he refused to permit Ms Tavassoli to withdraw her resignation and return to her former position. 

A particular factor taken into account by Commissioner Riordan was that Bupa is a large organisation, with considerable resources. As a result, he concluded that the human resources department should have followed appropriate processes in dealing with Ms Tavassoli, and crucially should have shown Ms Tavassoli the video evidence collected against her. This was heightened by the employer's knowledge that Ms Tavassoli's English skills were poor. 

The decision not to show the footage was considered to deny Ms Tavassoli the right to know what case she had to answer. Indeed, Commissioner Riordan went so far as to suggest that the human resources department failed in their obligations to Ms Tavassoli and committed 'a form of entrapment' by not showing her exactly what information had been gathered against her. 

He found that the employer had made a determination of Ms Tavassoli's guilt immediately upon seeing the footage, and had failed to undertake any proper investigation as to the circumstances surrounding the behaviour. 

Commissioner Riordan further noted that, by requesting that Ms Tavassoli amend the terms contained in her resignation letter, the general manager effectively 'took over' the termination, which supported a finding of constructive dismissal. 

He was also highly critical of Ms Tavassoli's colleague who had taken the recordings, but accepted that the Commission did not have any rights to proceed against the colleague.

Against this background, Commissioner Riordan ordered that Ms Tavassoli be returned to her former role. 

Legality of secret recordings

Perhaps the most crucial factor in Commissioner Riordan's decision was his concern that the video recordings breached the Workplace Video Surveillance Act 1998 (NSW)

According to the Act, any surveillance conducted by an employer in the workplace is considered 'covert' unless the employee:  

  • Is notified in writing, before the intended surveillance, that it will take place.
  • The surveillance devices are clearly visible.
  • Signs are clearly noticeable at each entrance which point out that employees may be recorded in the workplace. 

Even though the employer did not take the footage in this case - with the recordings instead being made by a colleague of Ms Tavassoli - the fact that the employer relied upon the footage to discipline Ms Tavassoli was considered by Commissioner Riordan to be a sufficient breach of her privacy to run afoul of the Act. 

The Key message FOR EMPLOYERS

The takeaway message for employers here is twofold. Firstly, it is always essential that employees have the opportunity to respond, in detail, to allegations which are made against them, as well as being presented all the evidence which is being relied upon to support the allegations. Secondly, employers must be careful not to rely upon inappropriately obtained evidence which contravenes privacy legislation or any other relevant laws. Employers must comply with any applicable surveillance laws when relying on such evidence.   

Should you require an external workplace investigation into allegations of misconduct, contact WISE Workplace

Performance Management to Avoid Bullying Complaints

Vince Scopelliti - Wednesday, July 19, 2017

Staff who are subject to increased employer supervision or performance management may feel that they are being personally victimised, attacked or even bullied.

It may be difficult to distinguish between reasonable performance management and bullying, especially when the worker involved is sensitive by nature, has personal stress factors, fails to acknowledge their own performance shortcomings or is emotionally reactive. This leads to an increased risk of bullying complaints when staff members are being performance managed. 

So how can employers use performance management steps to manage their staff to meet operational requirements without risking censure, criticism or complaints of workplace bullying?

When is performance management reasonable?

The following guidelines apply to reasonable performance management:

  • 'Reasonableness' should be judged objectively, rather than basing it on the worker's perception;
  • Management actions do not need to be perfect or ideal to be considered reasonable;
  • A particular course of action may still be 'reasonable action' even if all the separate steps, when seen in isolation, are not;
  • Consideration may be given to whether the management action was a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. 

To guard against the perception of bullying, employers need to ensure that they: 

  • Provide clear instructions, information and training to all employees;
  • Establish that employees are aware of and understand the business' performance and disciplinary policies and procedures;
  • Take management action that is justified and follow a process that is procedurally fair and consistent;
  • Provide timely feedback to staff when the issues arise
  • Document all performance matters and disciplinary steps clearly. 

Even though the process is designed to be cooperative and consultative, employees may still object to performance management and complain that they are being bullied, victimised or harassed.

The Commonwealth at section 789FD Fair Work Act 2009, specifically states that an employer is not bullying their staff if they engage in 'reasonable management action carried out in a reasonable manner.'

In practice, reasonable management (as opposed to bullying) means that:

  • A course of action can be considered reasonable from an objective examination even if an individual step in the process is not.
  • Any action taken must be lawful and not 'irrational, absurd or ridiculous'
  • Management should ensure compliance with policies or procedures that are established and already in place. 

Regardless of how aggrieved the employee feels, or how they perceive their employers actions to be intended, a tribunal will consider the reasonableness of the performance management action objectively.  

WHAT IS A REASONABLE MANNER?

What is 'reasonable' is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. 

This may include consideration of:

  • The particular circumstances of the individual involved
  • Whether anything should have prompted a simple inquiry to uncover further circumstances
  • Whether established policies or procedures were followed, and
  • Whether any investigations were carried out in a timely manner. 

The Role of the performance improvement plan (pip)

When used to its maximum potential, a PIP can: 

  • Identify areas where individual employees are under performing or failing. 
  • Provide suggested methods whereby employees can improve their performance, whether to meet minimum required competency levels or, at the other end of the spectrum, or to assist employees to excel in their roles. 
  • Provide objective evidence in circumstances where an employee's performance is substandard and it is anticipated that their employment may eventually need to be terminated;
  • Help managers and employers observe patterns in employee behaviours and performance to identify factors contributing to poor performance. 

 It is important that PIPs are drafted in accordance with the organisation's workplace behaviour management policy. 

Managers should take the time to:

  • Determine the specific root cause of the poor performance;
  • Communicate with the employee in an open, clear and practical manner;
  • Focus on the problem, not the person; and
  • Set goals in consultation with the employee so that the employee knows what the specific concerns are and how to improve their performance. 

tHE three golden rules for employers

To guard against the increased risk of performance management bullying complaints, employers seeking to implement a performance management regime must ensure that:

1. Each employee has a clear, logical, objective and easily accessible position description according to which they can be measured (and self-measure). 

2. The employer's desired improvement outcomes are objective, have been explained to the employee, and are clearly understood. 

3. The employee is provided with employer, and where appropriate, peer support, and guidance to assist them in achieving the desired performance outcomes. 

Following the three golden rules can help employers avoid unfounded claims of workplace bullying when they are improving the effectiveness of their business through performance management procedures. 

Should you require a workplace investigation to determine whether management action has been reasonable or whether it constitutes bullying, contact WISE Workplace

Protecting Whistleblowers During Workplace Investigations

Vince Scopelliti - Wednesday, July 12, 2017

Feedback from employees is crucial to employers wanting to keep their finger on the pulse of a business. It is essential for management to be aware of risky behaviours occurring within a workplace, such as bullying, circumstances giving rise to easily preventable worker's compensation claims, failure to comply with regulations, corruption, or even criminal activities such as embezzlement, theft or fraud. In many circumstances, this information will only become available through the cooperation of whistleblowers. 

In order to ensure that accurate information is conveyed, it is essential for businesses to make sure that potential whistleblowers are protected from persecution, ridicule or reprisals during the investigation. But how does this occur in practice?

WHAT IS A WHISTLEBLOWER?

A whistleblower is somebody who reports internal wrongdoing within an organisation, either to a senior member of the organisation or to an external authority, such as the police or the Australian Securities and Investment Commission (ASIC). 

Generally speaking, protection is afforded to those who are current employees, officers or even contractors who are engaged in providing goods or services to an organisation. 

Information which is provided to an employer by a whistleblower is considered a 'protected disclosure', which must remain confidential and which can only be passed on if specifically authorised by law or by the whistleblower. 

how are whistleblowers protected?

There are various sets of state-based legislation which provide different types of protection for whistleblowers operating in the public sector. However only in South Australia are those working in the private sector afforded similar protections. In SA, the Whistleblowers Protection Act steps in to protect people who provide information:
  • Which the genuinely believe is true.
  • Which can be considered to be in the 'public interest'.
  • Which is provided to an appropriate authority. 
Nationally, the Australian Standard AS 8004-2003 sets requirements for the implementation of whistleblowing schemes in private enterprises. Under these requirements, the identity of the whistleblower must not be disclosed unless specifically authorised by law, and the information provided must also be kept confidential. 

At federal level, the Commonwealth Corporations Act 2001 also provides specific protections for whistleblowers, which prohibits any action, including personal or professional retaliation, from being taken against a person who has disclosed wrongdoing. In the event that any such retribution occurs, the Act provides a civil right for whistleblowers to sue reinstatement of employment. 

Alternatively, if a whistleblower suffers any other loss as a result of their disclosure, they can claim compensation for damages suffered directly from the alleged wrongdoer. 

The Act stipulates that whistleblowers cannot be subjected to criminal prosecution or civil litigation because of their involvement in providing protected information.    

However in order to fall within the protections set out in Paragraph 1317AA of the Act, it is necessary for:
  • The whistleblower to provide their name.
  • There to be reasonable grounds to suspect a breach of the Act and the report is to be made in good faith.
  • The whistleblower to be a current employee or director (of course, this is problematic in circumstances where the person was recently sacked or otherwise resigned from their employment)
In June 2017, the federal government announced its intention to introduce legislation which updates and improves on whistleblower protections, including potentially incentivising whistleblowers with financial rewards for providing information which has resulted in successful prosecutions.   

HOW YOUR ORGANISATION CAN ASSIST WHISTLEBLOWERS

Although Australia has some legal provisions in place to ensure that whistleblowers are protected from reprisal or other involvement in litigation, there is still much more that can be done to encourage the reporting of wrongdoing observed within a company. 

If you are concerned that your workplace may not provide sufficient incentive to employees to report wrongdoing, or provides insufficient support to those who do reveal sensitive information, sign up to WISE Workplace's 24/7 whistleblower program, Grapevine. The program offers independent monitoring of complaints and assessments of appropriate methods of dealing with complaints, as well as advice on how best to advise your employees that they are entitled to whistleblower protections. 

Ensure that your organisation is strengthened internally by implementing a strong whistleblower policy to guarantee that all staff feel comfortable providing information relating to misconduct or inappropriate behaviour. 

Is Your Complaints Procedure Effective?

Vince Scopelliti - Wednesday, July 05, 2017

Risk management is an important aspect of running a successful business: Whether this takes the form of ensuring compliance with corporate governance programs, reducing instances of workplace fraud or financial misconduct, or eliminating bullying or other forms of harassment. 

Having a strong and coherent whistleblower program in place can help protect your organisation's interests in all of these situations. 

An ineffective complaints system could in fact be preventing your employees from raising any complaints. 

So what are the hallmarks of an effective whistleblower program?

Provide confidentiality and support

An effective complaints system should enable your business to identify hotspots, respond to critical incidents and communicate confidentially with reporters. It should also provide employees with a safe and secure environment to report misconduct, enable insightful management and the ability to bring about real cultural change, and reduce corporate risk. 

Perhaps the most crucial component of a successful complaints system is that complainants are guaranteed confidentiality and employer support throughout the whole process. This is particularly important as those who are considering blowing the whistle on co-workers or supervisors may be concerned about reprisals or the potential impact on their employment. 

This is especially likely to be the case in circumstances where the reported conduct involves sexual harassment, workplace bullying or criminal behaviour, such as fraud or theft. Employees considering making a complaint should be offered the opportunity to make anonymous complaints to reduce the fear of retaliation. 

The following statistic are particularly insightful: 

  • A third  of all reports made through whistleblower programs relate to bullying and harassment
  • 67% of people experiencing bullying or harassment do not report it
  • 42% do not report it for fear of negative consequences
  • 49% of misconduct is reported by employees. 

ESTABLISH CLEAR PROCEDURES AND GUIDELINES

It is crucial that reporting systems in your workplace are clearly identified and communicated to all staff. This includes making it clear to all employees how a complaint should be made (including an anonymous complaint), to whom, and what the follow-up process will be once a complaint has been lodged. 

This information should be readily available and easily accessible. 

DON'T MAKE EMPTY PROMISES

Once a whistleblower program is in place in your business, it is important for those utilising the service to feel that their complaints are being taken seriously and will be dealt with and responded to in an appropriate fashion.  

Privacy concerns and operational strategies may mean that complainants are not privy to all aspects of any ultimate disciplinary or punitive processes imposed on those against whom complaints are sustained. It is nonetheless important to confirm with the complainant that it has been duly and independently investigated, and that it has been resolved to the business' satisfaction.

CRACK DOWN ON REPRISALS

It is equally important for your organisation to have a strong and transparent policy to deal with reprisals or victimisation of whistleblowers. In some circumstances, even if confidentially is offered, only a little bit of logic may be required to deduce who made a complaint against another staff member. This maybe particularly relevant if your business is small or if the circumstances surrounding an allegation involve only a few people with detailed knowledge of the facts. 

If anyone involved seeks to retaliate either physically, verbally or by affecting the whistleblower's employment, it is crucial for your organisation to demonstrate a swift and clear zero-tolerance response.  

IMPLEMENTING A PROGRAM CAN BE CHALLENGING

Ensuring easy communication and the ability for staff to raise complaints where necessary, benefits all employees by improving an organisation's ability to deal with risks and increasing employee satisfaction. 

However, implementing an effective whistleblower program can be difficult, particularly in a smaller business with limited resources. It can also be a complicated task to provide a program that responds quickly and is impartial. 

At WISE Workplace, we offer an independent whistleblower hotline program that is ready to take complaints 24/7, provide assessments on the urgency of complaints, and offer expert advice on the dealing with complaints. Contact us to find out more.   

How Can HR Support Staff During a Workplace Investigation?

Harriet Witchell - Wednesday, June 28, 2017

Where a complaint has been made by one staff member against another, and a workplace investigation takes place, all kinds of emotions can be running high. 

People participating in a workplace investigation, whether as complainants, respondents or even witnesses, can suffer symptoms of mental health issues such as depression and anxiety, as well as emotional distress. 

Respondents in particular can feel abandoned and cold-shouldered, especially in cases where HR departments decide to take a 'hands-off' approach while the investigation is being conducted. If a respondent is also suspended from work during the process, they may also feel prejudged and already declared guilty. 

In light of this, it's extremely important that employers ensure that investigations are handled fairly and impartially, and that all participants are supported. 

Here's how HR can help support participants throughout a workplace investigation.

THROUGH TRANSPARENCY AND COMMUNICATION

First and foremost, effective communication and transparency are vital from the outset. A failure to communicate can worsen distress and lead to participants thinking the worst. 

Decide on being transparent from the beginning. This involves taking the complaint seriously, listening to all sides, and making sure all participants know how the complaint will be handled. It's also important to check back that they have understood what was said and address any misunderstandings (something that can easily happen when emotions and tensions are high!)   

SETTING OUT THE PROCESS

It's important to get to work quickly, appoint an investigator, and make decisions regarding the scope of the investigation, the timeframe, and actions to be taken after completion. However, do be prepared for the process possibly taking longer than anticipated. 

Once you've decided on the process, make sure to keep everyone informed of how the investigation will be conducted and what they can expect, and aim to keep communication lines open throughout. Also reassure the respondent that they are not in any way being prejudged, even if they have been suspended for a time during the investigation. 

APPOINTING A SUPPORT PERSON

Participants need to know they have someone to go to for emotional support, who can also explain the process and answer any questions they may have. 

One thing to note here is that employees may not necessarily show their emotions at work and this could lead you to think they are fine and don't need assistance, when in fact the opposite is true. 

Appoint a support person whose role it is to regularly check up on the person and provide support without taking sides. 

CONDUCTING INTERVIEWS WITH RESPECT 

Interviews need to be conducted fairly and withe respect and non-partiality. 

It's important to avoid acting like an interrogator; your job is to uncover the facts and truth of the matter and not to extract a 'confession'. This means all participants should be treated with respect and empathy, and given breaks during interviews if required. 

OFFERING POST-INVESTIGATION SUPPORT

An investigation can affect everyone and can reduce morale and trust in a workplace. It may in some cases even lead to employees seeking work elsewhere after feeling demoralised by the whole experience. 

In a case where the respondent has been restored to duty, it may be hard for them to simply go back to 'business as usual'. The same may also apply to complainers, particularly if the investigation did not go the way they wanted. 

Be prepared for it to take some time for trust and morale to be restored, and offer mentoring and support after the process to anyone who needs it. Be proactive in rebuilding trust and positive relationships. 

Lastly, we can provide expert assistance with workplace investigations. Feel free to contact us for more information.  

Handling a Paranoid Response to Workplace Investigations

Harriet Witchell - Wednesday, June 21, 2017

In conducting workplace investigations, both the alleged victim and perpetrator and potentially even witnesses may have an intensely personal reaction to the accusations. But what happens if one of the people involved in a workplace investigation has a mental illness or otherwise suffers from poor mental health? 

In this situation, a workplace investigation can be perceived as a direct personal attack - for example, a complainant may feel that the mere fact of an investigation means that they are not taken seriously or believed in their allegations. A respondent to a complaint may feel vilified or victimised by having to respond to the claims at all. In these circumstances, it could be easy for paranoia to creep in during the investigative process. 

So what additional steps should a prudent employer take during the investigative process when dealing with an employee who struggles with their mental health? 

POTENTIAL CONSEQUENCES OF FAILING TO CONSIDER MENTAL HEALTH

The State of Workplace Mental Health in Australia report, released by TNS Australia and Beyond Blue, has found that 45% of all adult Australians will experience a mental health condition at one point in their lives. In addition, untreated mental illness costs Australian Workplaces almost $11 billion annually.  

This financial cost (calculated on the basis of absentee figures, 'presenteeism' where employees are physically present but not performing to their maximum capabilities, and compensation claims) is reason enough to take mental health in the workplace seriously, and to ensure that workplace investigations do not run roughshod over the rights of employees with mental health concerns. 

However, even more concerning is the potential for a poorly handled workplace investigation to exacerbate an employee's mental illness or even to cause a new psychological injury. 

It is crucial for employers to ensure that workplace investigations are conducted sensitively and have regard to any disclosed or hidden mental health issues suffered by employees. This is particularly the case given that it is an employer's legal obligation to ensure that workplaces are free from conduct which could reasonably be foreseen to cause injury, including psychological injury, to employees. A failure to do so can leave the employer exposed to a compensation claim.  

WHAT SHOULD AN EMPLOYER'S RESPONSE BE?

Employers must ensure that investigators don't dismiss signs of paranoia as an employee being 'silly' or simply difficult. 

It's important to recognise that the employee does genuinely feel under threat, without agreeing with them, and to lay out any evidence clearly. 

It can also be helpful to detail how the investigation will proceed to avoid the risk of misunderstandings, for example an employee deciding that more than a week has passed therefore an adverse finding must have been made against them. 

Honesty and fairness are key in any workplace investigation, but it is particularly important to demonstrate both when dealing with an employee who is feeling under attack. It's essential to remain patient, and work on building trust and rapport in interviews.  

Employees should also be able to access a support person of their choice to participate in any interviews or other formal steps of the investigation. 

Being available and following through on any actions that have been decided on, however minor, may also help lower a fearful employee's anxiety. 

If the initial complaint has caused or substantially contributed to an employee's poor mental health, and this has resulted in the employee receiving a medical certificate, an employer should consider not permitting the employee to return to work until the investigation has been resolved. Any decision along those lines should be made strictly in consultation with the employee's medical team and the employee themselves.  

    HOW WE CAN HELP

    Taking these simple steps will help to ensure that your staff do not feel victimised and do not become unduly paranoid or concerned about the investigative process and potential outcomes.  

    At WISE Workplace, we can help you navigate your way through the potential minefield of workplace investigations. We offer full investigation services if you prefer to outsource, and also training to assist you in running your own investigations.

    When the Line Blurs: Restrictive Practices vs Assault

    Harriet Witchell - Wednesday, June 14, 2017

    It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.  

    As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client's own safety or to protect another person. 

    However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.   

    WHAT ARE RESTRICTIVE PRACTICES?

    According to the Australian Law Reform Commission, the definition of 'restrictive practices' are actions which effectively restrict the rights or freedom of movement of a person with a disability.

    This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions). 

    Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.

    Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute 'best practice' for disability support.

    KEY CONCERNS WITH RESTRICTIVE PRACTICES

    As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault. 

    While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred. 

    Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening. 

    While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.

      WHAT IF AN ALLEGATION OF ASSAULT DOES ARISE?

      The provision of disability services is a challenging industry at the best of times. It's important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault. 

      Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients. 

      At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.