Power and sexual harassment in the workplace

Eden Elliott - Wednesday, July 01, 2020

Despite decades of effort and improvement in Australian workplace legislation and culture, sexual harassment is, unfortunately, still a real and prevalent issue, mostly recently for a former High Court justice. This case highlights the link between power imbalances and harassment behaviour. 

In 2018, the Australian Human Resources Commission published a national survey which found that one in three people experienced sexual harassment in the workplace. The likelihood of victimisation increases for people who are female, aged 18-29, not cisgendered or heterosexual, Aboriginal or Torres Strait Islander, or have a disability. These are all qualities that are recognised by most workplace equal opportunity and anti-discrimination policies, demonstrating the importance of promoting and ensuring workplace equality overall as a means of preventing sexual harassment. Workplaces need to ensure that their policies on equality include these intersectional issues, so that increased likelihood is balanced by comprehensive and specific protections.

The link between inequality and sexual harassment

A recently published study by the Victorian Legal Services Commission indicated that an average of 2 out of 3 female and 1 in 10 male legal practitioners had experienced sexual harassment in their workplaces. The study also found that power imbalances were a key ingredient for instances of sexual harassment for the legal professional, again placing equality at the heart of the issue.

What can your leaders do to prevent sexual harassment?

Industries built around professional services and hierarchical workplace dynamics take note: your people are more likely to experience harassment from senior members of your profession. However, these dynamics can also present opportunities for your senior team members to provide cultural leadership, by representing and committing to a zero tolerance attitude towards sexual harassment. Prevention is better than cure, and it is crucial for workplaces to provide the right support, education and development of team members at all levels so they can manage their own behaviour, understand the realities of sexual harassment, and fulfil their role in creating a culture which leaves no room for predatory behaviour. 

What can everyone do to prevent sexual harassment?

The AHRC’s national survey also identified a decrease in reporting of sexual harassment incidents by witnesses and reporting by less than a quarter of complainants. Here is another opportunity for workplaces to ensure their complaint processes include protections for reporters, in particular by ensuring complete confidentiality. Complaint processes should also recognise and preserve the distinction between taking a complaint seriously and supporting a complainant and failing to afford the accused person with full procedural fairness.

Preventing sexual harassment in the workplace starts with a culture of equality, built on strong policies, processes and leadership. Employees have the power both to report harassment when they see it, and to use their own conduct to demonstrate to offenders what is not acceptable. If your workplace would benefit from better insight into your existing workplace culture, refreshed policies or training for your cultural leaders, WISE Workplace can assist. Contact us on 1300 580 685 to talk about your needs.

Substantive, Not Superficial: A Call to Improved Procedural Fairness

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

The FWC recently found SA CARE’s dismissal of a casual disability care worker to be unfair and ordered compensation.

The employee in question was warned off tube-feeding clients due to her lack of certification. In response, she advised that she had been signed off on two appropriate training courses, had experience providing gastronomic care at another facility and had been approved by Disability SA. She believed she had been approved to provide that care.

Two days later, the employee was called without warning into a disciplinary meeting with HR where her lack of certification and other qualifications were discussed again.

The HR officer stepped out of the disciplinary meeting for five minutes.

On return, the officer handed the employee a summary dismissal letter which recorded that the employee had received an opportunity to respond to a serious misconduct allegation. the letter terminated her employment with immediate effect.

FWC’s Deputy President Anderson stated the “shocked” care worker was then “escorted off the premises in the knowledge and view of clients and staff, causing them further distress.”

FWC Findings

Ordinarily, an employee performing a medical procedure on a client, knowing they lacked the required certification would justify summary dismissal. Anderson acknowledges the care worker’s assumptions can be reasonably criticised, but also found that the “unique circumstances of this matter” with factors that significantly “mitigate the seriousness of the conduct.”

Anderson found the lack of notice and the timing of only 48 hours between the instruction and the disciplinary procedure to be harsh and unfair. The process also had only superficial procedural fairness, since the employee’s ability to respond was limited and she was not fully warned of the risks to her employment or afforded the right to support during the process.  Anderson also found that the urgent treatment of the matter was unnecessary. 

Anderson awarded the care worker four weeks compensation minus 25% for misconduct with SA CARE paying over $5830.74 in compensation. If you would like to read more about this case, please see: Chioma Okoye v SACARE Supported Acomodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020).

what can we learn from this case? 

Matters involving dismissal must be handled with utmost sensitivity, caution and procedural fairness even in matters of perceived urgency. There is often grey area in matters of misconduct that may seem black and white. To ensure you are best informed and equipped to handle these challenging circumstances, WISE offer expert third party HR services including training, investigations and reviews.

Our Approach to COVID-19

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

Reliable solidarity in the face of covid-19:

We take the health and wellbeing of our people, clients and the broader community seriously. Our risk management team are meeting daily to ensure our continued service, support and protection to our clients, team and community.

We are acting in line with government guidelines and have taken additional steps to minimise risk of infection and impact on our community. We will evaluate and act on updates and changes to the COVID-19 situation as they occur, modifying our approach as necessary.

business continuity - supporting you.

We are fully resourced to support clients. We are monitoring the development of COVID-19 daily and will keep clients informed if there are any changes to our operational approach or capacity.

Our team are fully equipped to work remotely, with security and technological support in place to ensure our customer service continues to exceed expectations with care, teamwork and integrity.

Our ability to conduct business is unchanged, and we will continue to work together to care for each other and for our clients and investigators, with heightened and ongoing health and safety measures in place and a focus on customer service.

In line with this, when conducting workplace investigations, our investigators will now enquire about Covid-19 risks at workplaces, homes and other locations prior to their attendance in order to minimise risk to all parties, as well as taking additional hygiene precautions. Where risk are identified, we will be conducting interviews via video or teleconference form to ensure the health and safety of our team, clients and community.

Rest assured we are able to continue to support our clients during this period of uncertainty. We are available for contact as normal, and encourage you to reach out if you require further support.

How Fact-Finding and Disciplinary Investigations Differ

Vince Scopelliti - Tuesday, February 25, 2020

When dealing with allegations of staff misconduct, employers must be able to clearly delineate between fact-finding and disciplinary investigations. 

This includes communicating the difference to staff involved in the process.

fact-finding vs formal investigation

A 'fact-finding' process is often a necessary preliminary step in determining whether a disciplinary investigation is warranted. Following an incident or complaint, a third-party must interview involved parties to obtain objective information and determine whether the event merits a more detailed investigation.

Alternatively, the results may be sufficient to establish that there was no misconduct, or that the results of any further investigation are unlikely to provide any clear determination. Fact-finding may initially be a fairly informal process, although it should still be clearly documented.

It is extremely important that staff are made aware that a fact-finding process is simply that - not accusatory but only to gather information. This should be clearly spelled out in the organisation's policies and procedures, which staff participating in the process should be pointed towards.

By contrast, once an investigation has commenced, the process becomes much more detailed and formal. This includes the preparation of specific witness statements, collection of detailed information and supporting evidence, and the preparation of a report. That report will be relied upon by management and other decision-makers in determining the consequences following an investigation.

Disciplinary investigations are formal processes that involve specific allegations being put to employees. They are surrounded by confidentiality obligations, and are intended to determine whether an incident was a breach of policy which warrants disciplinary action, and not whether an incident actually occurred.

It is important to bear in mind that the point of a disciplinary investigation is to protect the rights of an individual subject to potential disciplinary proceedings.

communicating the process to the employees involved

Parties engaged in a fact-finding process should be advised clearly why they are involved.

Although it is an informal process, staff should be told that they are being interviewed to outline and assess matters of concern before management can determine a course of further action.

The purpose of the meeting should also be clearly outlined, as well as its status as part of a preliminary assessment or a potential precursor to a formal investigation. However, although the general nature of the query needs to be raised, there is no need for specific information to be divulged.

Before potential respondents are interviewed during the fact-finding process, management should give serious consideration to whether it is essential to do so. If it really is required, the potential respondent must be told that the next steps could involve moving to a formal investigative process and potentially the issue of misconduct allegations which will require a formal response.

what happens when the line becomes blurred

At any point when fact-finding starts getting too close to asking specific questions related to the subject nature of any potential complaint, it is straying towards an informal disciplinary investigation.

This is rife with potential implications for the business, particularly if formal disciplinary processes are commenced as a result. The rights of the accused employee are at risk, and any conduct endorsed by the business could result in unfair dismissal or similar actions by the employee. At this stage, it is recommended that a business involve the services of a formal, external investigator to finalise the process.

If you want to protect your business, draw a real distinction between fact-finding and disciplinary investigations. This can be achieved by using an external provider for all disciplinary proceedings. WISE Workplace offers independent, unbiased and expert third-party investigation services to support you every step of the way - from unpacking the facts of a workplace problem to analysing all sources of evidence raised in relation to misconduct. 

Sacked on Leave: Procedural Fairness and Unfair Dismissal

Natasha Kennedy-Read and Vince Scopelliti - Wednesday, February 19, 2020

The rules around when staff can be terminated while they are on leave can be a source of consternation for management and human resources professionals. 

The consequences of getting it wrong are demonstrated in the recent Fair Work Commission decision of Tuan Nguyen v Adelaide Fencing and Steel Supplies Pty Ltd [2020] FWC 79 (30 January 2020). 

In this case, the employer was ordered to pay compensation to an employee deemed to have been unfairly terminated. 

The Facts of the matter

Mr Nguyen was a business manager for Adelaide Fencing and Steel Supplies who was dismissed from his employment following allegations of fraud and dishonesty associated with the supply of products to a customer. 

Following his termination, he lodged an application for unfair dismissal, arguing that the seriousness of the allegations levelled against him were not supported by the available evidence. 

Although the Commission found that there was legitimate cause for concern about Mr Nguyen’s reckless conduct, and he had been validly terminated, it was ultimately held that due process had not been followed in effecting the termination. 

This was because Mr Nguyen was found not to have been given prior warning or a “genuine opportunity” to deal with the serious substance of the allegations, particularly given as Mr Nguyen was on extended sick leave at the time of the termination. 

Accordingly, the dismissal was found to have been harsh, unreasonable and unfair, with the Commission ordering compensation in the sum of $10,000. 

key lessons employers can learn

Employers should take note of a few key principles which underpinned the decision in Nguyen, namely:

  • The Commission expects employers to provide a “fair go all round”. In practice, this means that decisions in relation to employment status cannot be made arbitrarily. Instead, they must take into account a balanced, practical and common sense method to ensure that both the employer and the employee are treated fairly. Notably, this includes an opportunity to respond to allegations made against the employee by the business.
  • Procedural fairness is king. Although it is certainly understandable that employers wish to exit staff who are underperforming or otherwise breaching workplace practices or even the law as expeditiously as possible, there is no excuse to “rush” the process, at the cost of following due process. This means providing employees with clearly articulated warnings, notice of the reasons for dismissal, ensuring a legitimate and practical opportunity has been given for them to respond, and permitting the employee to have a support person of their choosing attend any interviews. 
  • In addition, objectivity is crucial. When making decisions as to ongoing employment, it is essential that the results of any investigation can stand up to objective standards of evidence, and will not be undermined by allegations of subjectivity or bias. 
  • Take your time. Unless there are urgent reasons to immediately terminate employees (such as serious criminal activity), there is no benefit in terminating too quickly. This is especially the case when employees are on sick leave, as in most cases the Commission will determine that due process has not been followed in dealing with those staff. 
  • Engage in performance management early. Although there may be a concern that a documented performance management process will further alienate an unhappy or recalcitrant employee, engaging in this process at appropriate times and in a correct fashion will bolster any ultimate termination, should this become necessary. It also affords the employer a reasonable management defence when challenged. 
In unfair dismissal claims, the Commission will prioritise “a fair go all round” and not hesitate to find in favour of an applicant (notwithstanding that they may have engaged in legitimate misconduct) if procedural fairness is not followed. To ensure procedural fairness when dealing with misconduct, contact WISE for resources, expert advice and independent, unbiased investigation services.


How to Navigate Counter Allegations in Investigations

Natasha Kennedy-Read and Vince Scopelliti - Friday, February 14, 2020

It is not unusual when investigating allegations such as sexual harassment, bullying or theft for the person accused of the misconduct to make a counter allegation.

This in turn can generate further counter allegations, making it difficult for investigators to keep track of a growing litany of wrongdoings!

Steering through the sea of counter allegations means handling each complaint separately, being mindful of procedural fairness and adhering to the civil standard of proof. 

Divide ALLEGATIONS into separate incidents

It is important not to conflate cause and effect when it comes to counter allegations. If the allegation is that person A slapped person B, who, according to A, retaliated by stealing A’s smartphone, these two allegations must be investigated separately.

It may be that that person B had nothing to do with the smartphone’s disappearance, or the slap never happened. 

By looking at them as two unrelated incidents, investigators will not ‘miss’ important evidence, such as A accidentally leaving their phone in a meeting room.

keep procedural fairness top of mind 

The smartphone theft/disappearance may only come up when B is being investigated for the alleged slap. The alleged wrongdoer makes the counter claim in an interview that was up to that point unknown.

In effect, this means there are two allegations under investigation. Depending on the circumstances, this new information may require the interview to be suspended while further inquiries are made by the investigator. 

While it may be tempting to view the counter allegation as 'tit for tat' failing to investigate this new complaint could be viewed by a court or tribunal as a denial of procedural fairness by the employer.

Many unfair dismissal claims are successful because the employer in question failed to afford procedural fairness to the alleged wrongdoer.

The civil standard of proof

While investigating allegations and counter allegations, compartmentalising each alleged incident, its timings and events ensures impartiality and clarity.

This means taking care with unwitnessed and testimonial evidence (hearsay). Vivid descriptions of events may sometimes be compelling yet have no bearing on actual events. Finding an impartial witness to an event can short-circuit this problem, but it can be difficult. Just because person C saw B running from the bathroom crying does not mean the cause was a slap from A. 

Investigators should apply the civil standard of proof when assessing evidence. This means that for an allegation to be substantiated, the evidence must establish that it is more probable than not that the incident occurred.

The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: 

  • Relevance of the evidence to the allegations. 
  • Seriousness of the allegations.
  • Inherent probability of an event occurring.
  • Gravity of the consequences flowing from a finding.
  • The likelihood that the required standard of proof will be obtained.

Employers and management must at all times remain unbiased. Just because a counter allegation is made during an investigation does not mean it lacks substance. It may be that the counter allegation carries more weight and is of a more serious nature than the initial claim.

It can be challenging for investigators when presented with counter allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, as well as formal qualifications such as Certificate IV and Diploma in Government Investigations.



Racial Discrimination at Work

Natasha Kennedy-Read and Vince Scopelliti - Wednesday, February 05, 2020

We are all familiar with the more obvious signs of workplace discrimination; but with targeted racism and xenophobia spreading faster than the Coronavirus, it is vital to be aware of the more nuanced and subtle acts of discrimination at work. 

Queensland has seen MP Duncan Pegg slam a phoney health department bulletin that warned online communities to avoid areas with high proportions of Chinese residents. In France, East-Asian communities began the now global #imnotavirus campaign, highlighting discriminatory comments from “are you dangerous if you cough?” to “stop eating wild animals then infecting everyone around you.” 

This problem is not new. In Canada in 2003, a similar wave of outbreak-fuelled xenophobia cost Toronto an estimated C$1bn, prompting public health officials to remind Canadians not to let ignorance triumph over respect in their communities.  

This viral endemic has already had a global impact on small businesses, schools and communities around the world, and workplaces are far from immune. Queensland surgeon Dr Rhea Liang said that “misinformation” on the virus has led to racially motivated remarks such as were made to her at work last week. Dr Liang’s patient refused her routine handshake, saying “you might have coronavirus” in front of her colleagues and several medical students. 

Most Australian workers are not at significant risk of infection, and employers and employees alike should be aware of the legal pitfalls they may encounter, and harm they may inflict, in attempts to protect themselves from the virus. In Dr Liang’s case, her colleagues were immediately supportive, but she worries about more vulnerable people exposed to racism that results from the stereotyping. 

The Racial Discrimination Act 1975 (RDA) makes it unlawful to discriminate against a person because of his or her race, colour, descent, national or ethnic origin or immigrant status. This extends to expressions of racial hatred against another person, and discriminating in the provision of services, entertainment and facilities or on less favourable terms and conditions. 

WHAT Does this mean for you?

We are all familiar with the obvious signs of racial or xenophobic discrimination, like slurs, segregation, targeted aggression and spreading racist rumours. Refusing to serve or deterring customers on the basis of their nationality or race, out of fear of Coronavirus is also an obvious and unlawful form of discrimination. However as a modern employer, it’s important to recognise the more subtle and nuanced forms of racism which can go unnoticed, and therefore be more damaging than overt behaviours. 

It is likely that racism at work is vastly underreported. 20% of Australians experience racism every year, but the Australian Human Rights Commission receives just several hundred racial discrimination complaints annually. 
More subtle and dangerous examples of discrimination include:

  • Xenophobic or racist ostracism of, or hostility towards, colleagues or customers in their workplace.
  • Avoiding contact or proximity with, or hostile body language towards people on the basis of their skin colour or nationality 
  • Unintentional or subconscious behaviour 

Subconscious biases and assumptions, even with positive intentions regarding safety or risk to others can all be considered racist behaviour. 

Prevention is always better than cure, and as an employer, workplace culture starts with you. If you are worried about your workplace culture, contact us to organise a Cultural Review. 

SO, how can i prevent racial discrimination from infiltrating my workplace? 

Education: 

Education on racial discrimination at work empowers employee understanding, sensitivity and conversation. Training programs are an important tool for eliminating more subtle discriminatory behaviours, by highlighting the nuanced nature of racial and cultural experience and necessity for sensitivity, and avoiding unintentional or subconscious infliction of harm. This can not only reduce incidences of discrimination but also create a positive culture where employees support each other, demonstrate and monitor their own standards of conduct and can minimise the emotional and psychological impact of external harm to their peers.

Conversation:

Creating space for productive conversations about race and discrimination at work is vital to a positive workplace culture. To encourage employee participation and make the most of these conversations, frame them in a positive and constructive way.

Outline the purpose and goals of the conversations from the outset:

  • Discuss views and experiences relating to racism in a non-judgmental and safe environment 
  • Learn from each other’s experiences and gain understanding that people experience racism in different ways
  • Reflect on intention and how we can unintentionally cause racial harm to our peers or colleagues 
  • Identify opportunities for growth within the organisation and develop systems for positive change 

Be prepared to support employees who may lack understanding of the real prevalence of racism and need for proper attention. People who are not part of a minority group are likely to have less experience of racism, so the nuanced nature of modern discrimination might come as a surprise. Constructive conversations can help these team members challenge their preconceptions, and help them to approach the issues with awareness and understanding. 

For tailored, expert and neutral third-party training programs or conversational facilitators to improve your workplace culture and tackle complex issues such as racial or xenophobic discrimination, contact WISE Workplace today. Working with an experienced facilitator or training provider such as WISE minimises the risk of tricky power imbalances countering your efforts to eliminate racial discrimination at work. 




Unfair Dismissal: Case Studies from the FWC

Vince Scopelliti - Wednesday, January 29, 2020

Perhaps one of the most vexed issues employers face is how to terminate employees without exposing the organisation to the risk of a successful unfair dismissal action. 

In light of the 15 January updates to the Fair Work Commission (FWC) Unfair Dismissals Benchbook, these two unfair dismissal cases at the FWC demonstrate the importance of employers being on safe legal ground before dismissing an employee. This is particularly important in circumstances where successful actions could result in a significant compensatory payment, or the employer being forced to re-hire a terminated staff member.  

1. The sleeping ferry master

In the decision of Sclater v Transdev Harbour City Ferries Pty Ltd [2019] FWC 7968, it was found that a ferry master who fell asleep during his shift had been appropriately terminated and not unfairly dismissed. 

In this matter, Mr Sclater was discovered to be asleep on a bench in the wheelhouse during the course of his shift travelling from the Pyrmont Bay Wharf to McMahons Point Wharf in Sydney. Instead of Mr Sclater, the ship’s engineer Mr Drygajlo was manning the helm. 

It was subsequently discovered that Mr Sclater, who was on numerous different types of medication due to a (disclosed and medically cleared) heart condition, had been taking a cough medicine for approximately a week. 

Despite warnings regarding potential drowsiness, Mr Sclater claimed not to have noticed that part of the label and had suffered no ill effects. However, on the date of Mr Sclater’s transgression, he had forgotten to take his heart medication but remembered to take the cough syrup. As a result, Mr Sclater suddenly felt extremely drowsy and sat down to “close his eyes”. By his own estimation, he was only unconscious for about five minutes.

The employer, Transdev, argued that Mr Sclater had both breached the company’s Drug and Alcohol Policy and had given dishonest evidence about whether he had in fact been asleep, and for how long. Although the FWC did not find any dishonesty in Mr Sclater’s evidence regarding how long he had been asleep, it was concluded that he had breached the relevant policy. 

This was because Mr Sclater: 

  • Did not obtain proper advice from the pharmacist about contraindications with his existing medicine and the cough syrup.
  • Exceeded the prescribed dosage of the cough medicine.
  • Did not read the information about the potential side effects. 

Ultimately, the FWC determined that, given Mr Sclater’s role as ferry master, there was no option but for him to remain fully alert at all times when on duty. His failure to do so in the circumstances meant that he had been validly dismissed.

2. Beers before work

By contrast, in the matter of Morcos v Serco Australia Pty Ltd [2019] FWC 7675, Mr Morcos was reinstated to his employment after being found to have been unfairly dismissed. 

Employed at the Villawood Detention Centre, Mr Morcos was on a rostered day off and had consumed two beers when he received a telephone call and was asked to come in for a shift. He agreed, believing that his blood alcohol concentration would have returned to 0.00 before his shift commenced. However, following a random alcohol test at work, Mr Morcos recorded two readings of 0.037 and 0.032. He was sent home (notably by driving his car!). 

Mr Morcos worked one further shift but was then terminated for breaches of the Drug and Alcohol Policy. 
The FWC found in Mr Morcos’ favour, however, noting that:

  • A blood alcohol reading between 0 and 0.005 could (and at that workplace previously had) result in a written warning and not an immediate termination. 
  • Mr Morcos had consumed a reasonable amount of alcohol on a rostered day off, believing that he would not be required to work after consuming the beers.
  • Mr Morcos was allowed to work the next day for an entire shift and was not subjected to alcohol testing on that occasion. 

The FWC therefore concluded that the nature of Mr Morcos’ alleged misconduct was not sufficiently serious to warrant termination. It ordered the employer to reinstate Mr Morcos to his former role. 

Employers, are you facing an unfair dismissal allegation? WISE investigators are experts in this field. They have years of experience in undertaking even the most complex workplace investigations, and are able to ensure your investigation is fair and legally sound. If your organisation needs assistance with a workplace investigation, WISE provides full as well as supported investigation services.

Whistleblowing in 2020: Is Your Organisation Ready?

Vince Scopelliti - Thursday, January 23, 2020

The concept of whistleblowing was once frowned upon, or at the very least looked upon with trepidation. However, in recent years, the value of promoting whistleblowing as an acceptable way to improve corporate regulatory compliance and culture has been demonstrated. In this changing landscape, organisations are embracing whistleblowing - and many also have new obligations to comply with. 

Is your organisation ready for whistleblowing in 2020? Let's look at who can be a whistleblower; who is authorised to receive disclosures; and which organisations must have a whistleblower platform in place. 

What is whistleblowing?

Whistleblowers are individuals with some connection to an organisation, who choose to report corporate misconduct or illegal activities. 

Legislation, including new legislation which came into force on 1 July 2019, provides extended rights and protections to whistleblowers. Ultimately, the intent of the legislation is to ensure that whistleblowers are protected against reprisals, legal action, or general detriment, such as disciplinary action taken by the employer. 

Whistleblower protection may be afforded to various categories of people, including: 

  • Current employees of a company (or a related company)
  • The spouses or relatives of employees 
  • Officers of a company 
  • Contractors who have dealt with the company (potentially including volunteers)
  • General associates of the company

Whistleblowing also includes public interest disclosures. An example of a public interest disclosure might be an employee making a report about a bank which has been consistently charging members fees for no service. These apply in circumstances where a previous report has been made to ASIC or APRA and not actioned within 90 days, and the whistleblower is of the view that the information is of such importance to the public interest that it would be worthwhile reporting concerns to a journalist or a parliamentarian. 

Alternatively, emergency disclosures may be made if concerned parties have reasonable grounds to believe that the matters to be reported concern substantial or imminent danger to health and safety of people or the environment. 

how the disclosure process works

Disclosure about misconduct may be made anonymously, but must be reported to a specific group of people, including: 

  • Directors, company officers or senior managers
  • Auditors of the company 
  • Actuaries associated with the company 
  • A person specifically authorised to receive disclosures (generally a Human Resources officer) 
  • Regulatory authorities such as ASIC or APRA
  • Legal practitioners

Concerns can be reported internally using pre-determined organisational systems such as phone or online reporting. At the very least, an organisation should publish its whistleblowing policy and identify the people who are entitled to receive reports. 

Within a company, those authorised to receive disclosures must act on disclosures by investigating and protecting whistleblowers. 

WHY IS A WHISTLEBLOWING PLATFORM IMPORTANT?

The new legislation means that all public companies, large proprietary companies and corporate trustees of superannuation funds must have a whistleblower policy from January 1, 2020. Large proprietary companies are classed as those that have a consolidated annual revenue of at least $25 million, consolidated gross assets of at least $12.5 million or at least 50 employees.  

In addition to the legislative requirements, there are reasons why all organisations should have a strong platform for whistleblowing. 

These include increasing public and employee confidence in the desire of the organisation to “do the right thing”, and ensuring that senior personnel are safe in the knowledge that, if anybody is committing wrongdoing, staff and related persons can be confident to report those matters without fear of reprisals. 

One of the most effective ways to deal with whistleblowers is to set up an external hotline. This means that reports can be made anonymously. People can avoid potential embarrassment or concerns about making a report in circumstances where they potentially see the people whose conduct they are reporting on a daily basis.

WISE is a leading provider of whistleblowing services in Australia, offering organisations a secure service known as ‘Grapevine’ for staff to report concerns. 

Grapevine allows for anonymous reporting via phone call or online report. Reporters are enabled to provide supporting evidence, and can also choose whether to remain anonymous or leave their contact details. Each report is assigned a case number so it can be tracked throughout the whistleblowing and assessment process. Reports are reviewed by a highly trained and experienced team, and the organisation's nominated contact person is notified within 24 hours. Updates are available online. Depending on the level of service, the Grapevine team can also follow up and take action according to an organisation's whistleblower policy.

For more information on complying with whistleblower legislation, please download our free whistleblowing whitepaper which can answer your questions regarding the changes. If you would like an obligation-free cost estimate to implement a confidential hotline in your workplace, contact us here.

Managing Volunteers in the Workplace

Vince Scopelliti - Thursday, January 16, 2020

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

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

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

Employee and volunteer conflict

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

Difficulties managing volunteer conflict

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

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

responsibilities of volunteer-active workplaces

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

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

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

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

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