When Workplace Relationships Go Wrong

Vince Scopelliti - Wednesday, May 30, 2018

Given how much time employees spend at work every week, it is hardly surprising that romantic relationships develop in the workplace. 

But what happens when a romance is inappropriate, or attraction crosses the line into sexual harassment?

inappropriate vs unlawful

While there is nothing illegal about a workplace relationship between two consenting adults, in some circumstances it can be inappropriate, for example a romance between a manager and a subordinate. 

There is also a significant difference between mutual and enacted sexual attraction, and unlawful conduct such as unwanted sexual advances, sexual harassment or even abuse or assault. Sexual harassment is unlawful under both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 2010 (Vic). Sexual abuse and/or assault is a criminal offence.

the issues and consequences

Workplace relationships can become problematic, particularly in situations where a relationship involves two employees, one of whom oversees the other's performance, management or appraisal. 

Other co-workers may feel aggrieved by a real or perceived bias involving any decisions made by the more senior worker involved in the relationship. Team morale can suffer if one member is seen to be treated more favourably than the rest when it comes to performance appraisals, the allocation of work and promotional opportunities. 

Partly for this reason, employers may be tempted to dismiss employees who have not disclosed the nature of their romantic relationships. The legality of any such dismissal is questionable - however, previous decisions of the Fair Work Commission have suggested that employees may be dismissed in cases where employees are untruthful when they are challenged about the existence of workplace relationships. 

Employees may also make unwanted advances to other employees, as a result of innocently misinterpreting signs of perceived sexual interest. While there's nothing wrong with a co-worker asking a colleague out on a date or making an advance, there is a problem if the 'advancer' fails to accept and move on from any rebuff. 

The potential for negative fallout when a relationship ends is also a key concern for most employers. This is particularly the case if one party wants the relationship to continue while the other party wants to move on - ongoing attention may tip over into sexual harassment. 

According to the Australian Human Rights Commission, sexual harassment is 'any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual'.

From an employer's perspective, if sexual misconduct occurs in the workplace (or at employer-sanctioned events such as Christmas parties or other functions) then the business may well be vicariously liable.

There is certainly potential for litigation or unwanted media attention and brand damage as a consequence of sexual misconduct or an inappropriate relationship.    

what can an employer do to minimise the fallout? 

From a risk mitigation perspective, employers should ensure that they have adequately drafted and communicated workplace policies.

At a minimum, these policies should include: 

  • Clear guidelines on the permissibility of relationships between co-workers and when such relationships should be disclosed; 
  • Procedures for what should happen when such a relationship is disclosed, for example when a change in reporting structure is required;
  • A clause addressing conflict of interest and perceived bias (especially when relationships occur between senior and junior staff);
  • A clause defining sexual misconduct, highlighting the definition of sexual harassment and what kind of behaviour will not be tolerated in the workplace. 
  • Workplace policies that promote awareness of all gender related issues, including sexual harassment. 

It is common for relationships and attractions to develop in the workplace. As an employer, it is important to ensure that these circumstances do not lead to incidents of sexual harassment or perceptions of conflict of interest. 

Employers should ensure that they address all complaints of sexual harassment with care. If you have had complaints regarding sexual harassment, or are concerned about potential bias, WISE provides full and supported investigation services

Issues with Intoxicated or Hungover Staff? What to do

Vince Scopelliti - Wednesday, May 23, 2018

Most adults like to indulge in the use of alcohol from time to time. Some even like to partake a little more frequently - which is generally not problematic, in the privacy of one's own home and social sphere.

But occasionally problems with alcohol or even drug consumption can creep into the workplace, with staff under the influence while at work or under performing because of the after-effects. 

Employers have an OHS duty of care to all employees so they need to ensure that alcohol in the workplace does not give rise to safety risks. Employees also have a duty of care to themselves. Let's take a look at how employers can manage alcohol and drug-related issues in the workplace.

underlying factors and potential consequences

Alcohol and drug-related problems can occur in any workplace, across different industries. They can arise due to any number of factors, including personal issues experienced by the employee, stress, ongoing addiction, or poor workplace culture, to name a few. 

The potential consequences of alcohol or drug consumption - whether recreational or prescription - include the risk of injuries sustained by other staff and customers, absenteeism, lost production or general lack of competence, and a reliance on rehabilitation or workers compensation. 

The cost of these problems to business varies, however 1 in 10 workers say they have experienced the negative effects of a co-worker's misuse of alcohol.   

identifying alcohol or drug-related risks

One of the best ways to avoid difficulties with drugs and alcohol in the workplace is to identify potential risks and develop workplace policies that address these. 

These are some of the factors to consider when determining the level of risk facing your business:

  • Are your workers engaged in a high-stress environment? 
  • Is the operation of heavy machinery, vehicles or other equipment a requirement of your business?
  • Are there legislative or safety requirements to ensure that anybody operating this equipment is free from the influence of substances? 
  • Do staff potentially have access to illegal or significant amounts of pharmaceutical drugs, whether for their own consumption or for resale?

implementing a workplace drug and alcohol policy

At a minimum, your workplace policies should spell out:

  • Whether your company has a zero-tolerance policy for any types of drug or alcohol consumption;
  • Whether staff are required to declare reliance on specific pharmaceutical medications;
  • If random drug or alcohol testing is undertaken in the workplace; 
  • What expectations are placed on drug and alcohol consumption at work-related functions;
  • What the potential consequences of intoxication in the workplace could be

It is important to note that Section 12 of the Fair Work Act defines "serious misconduct" to include an employee being intoxicated at work. It would therefore be reasonable to dismiss an employee under those circumstances. 

It is also worthwhile ensuring that HR and other executive employees have undergone training in identifying staff who are intoxicated in the workplace or have perhaps formed habits of dependence. 

how to approach a worker who is under the influence 

When staff members suspect that a colleague may be under the influence of drugs or alcohol, it is important to be extremely sensitive in approaching that person. The specific approach will, of necessity, be dictated by various factors, including:

  • The relevant industry;
  • The workplace culture and structure;
  • The employee's role and seniority; 
  • The personal circumstances of the employee;
  • Whether the occurrence is 'once off' of suggests a pattern of behaviour; 
  • The legal environment;
  • The duties and responsibilities of the employee.

An employee is likely to be more responsive if they are approached from the perspective of a safety concern rather than an accusation. This is particularly the case where the behaviour or intoxication may arise from physical injuries, acute distress or prescribed medication which the patient is reacting badly to. 

During the process of drafting a workplace policy relating to drug and alcohol consumption, management should consider appointing and training specific staff members whose role it is to approach employees who are suspected to be under the influence of substances. 

These staff members could include managers, counsellors, health and safety representatives or HR representatives. A chain of command should also be instituted so that staff who have been tasked with making initial contact have somebody else to turn to for assistance if their initial approach fails.

If an employer dismisses an employee for drug/alcohol abuse and ends up with a claim for unfair dismissal, then a good employer defence would include that they had a workplace policy and approach that not only included clear consequences but also emphasised that the employer views abuse as a health issue and therefore seeks to help the employee overcome their abuse (this would be in cases where abuse outside of work is affecting performance as opposed to being intoxicated or high at work). 

This can be done by having an Employee Assistance Program (provided by an external provider); having a mental health and wellbeing policy; and an 'RUOK' approach - whereby managers encourage a culture of everyone looking out for each other and literally asking, are you ok? After all, such welfare approaches are exhausted over a reasonable period of time an employer would be safe to move to disciplinary approaches. 

Employers may also need to assess whether the issue is widespread, ie. a workplace culture of abuse. If this is the case, then there maybe engrained cultural issues that need to be investigated and remedied.   

What can employers do?

Workplaces are encouraged to establish a workplace drug and alcohol policy and procedure that can be followed in the event of a drug or alcohol-related incident in the organisation. 

WISE can assist you in drafting these policies, or assessing your current policy, and training staff. Alternatively, we can provide investigative services for any incidents that have occurred in the workplace. 

Failing to Involve HR and Other Investigation Mistakes

Vince Scopelliti - Wednesday, May 16, 2018

Being able to conduct a competent workplace investigation is essential for employers, especially when allegations of bullying, misconduct or inappropriate office behaviour are made. 

Mistakes made during an investigation may result in serious consequences, including legal action. 

Let's take a look at the basics of an investigation, and some key mistakes to avoid.

WHy are workplace investigations necessary?

Workplace investigations are used to establish whether conduct or incidents occurred as alleged by the complainant, and to ensure that appropriate action is taken. 

Investigations are necessary when:

  • An employee may have engaged in behaviour which could result in disciplinary action or termination;
  • Complaints or reports of inappropriate conduct are received;
  • Allegations have been made by one staff member against another - such as claims of workplace bullying, harassment or unreasonable performance management.
  • There is evidence of breaches of safety provisions or other procedures.
  • There are allegations of child abuse. 

what does an investigation involve?

An investigation involves the unbiased gathering and evaluation of relevant and objective evidence, for example by interviewing witnesses and involved parties, reviewing documentary evidence, and or doing a site inspection. 

The conduct, once it established that it occurred, is then measured against the organisation's policies and procedures, Code of Conduct, regulations or legislation, to determine whether a breach has occurred.

what are some key investigation mistakes?

Significant mistakes which can occur during an investigation include:

  • Failing to consider all the relevant evidence - for example, by failing to interview all relevant parties, not asking appropriate questions or failing to document all information collected;
  • Appointing the wrong investigator - for example, by appointing an investigator who is not seen to be independent or who lacks experience in conducting workplace investigations; 
  • Not reporting a complaint to Human Resources and a failure to seek advice;
  • Not allowing the participants procedural fairness by failing to inform them accurately of the complaint against them, failing to give them adequate time to prepare a response or failing to inform them of their right to have a support person present. 
  • Failing to anticipate all the potential risks that could arise during an investigation
  • Failing to provide appropriate notification to all the relevant parties; and
  • Breaching privacy obligations 

so, who should investigate?

The appropriate person to investigate is often determined by the nature of the complaint or allegation - depending on the situation, it may be appropriate to have a senior manager or a member of the Human Resources department review an allegation. 

Avoid actual, perceived or potential conflicts of interest. The investigator must be a neutral party, not someone who is closely connected to the matter, who has had prior involvement in it, who has a direct interest in the outcome or may be a witness in the matter.

When determining who to appoint as an investigator, it is also crucial to assess who has the right level of experience and appropriate skills. 

This was highlighted in a High Court case involving Patrick Stevedores, where an HR manager was appointed to conduct a serious misconduct investigation. However, her lack of experience meant that she failed to gather crucial evidence supporting the dismissal of an employee - who was ultimately found to have been unfairly dismissed.

Should an external or internal investigator be appointed?

In some circumstances, it may not be appropriate to investigate a complaint in-house. Some reasons to appoint an external investigator include; 

  • Internal staff may lack the required skills or knowledge;
  • There is insufficient internal capacity to focus on an investigation; 
  • Allegations have been made against a senior employee, who in other circumstances may be the one tasked with an investigation; 
  • There are concerns an internal investigator may be perceived as being biased and a higher level of neutrality and objectivity is required.
  • The issues raised are complex and/or involve a large number of people in the organisation or significant external oversight. 

If the allegation involves an internal procedure or a matter involving particular expertise (such as a medical incident occurring in a hospital) then it may be more appropriate to engage an internal investigator, or have both external and internal investigators working together. 

Risks of an investigation being conducted incorrectly

There are many situations in which a poor workplace investigation can have serious consequenced for a business. It can lead to adverse legal action - such as in the Patrick Stevedores case. It can also result in serious mental health implications for staff who are unfairly treated during the investigative process, with a subsequent increase in resignations or terminations. It can also result in failure to meet legal or procedural requirements set by external oversight bodies. 

Lesson for employers

When making decisions in relation to workplace investigations, employers should:

  • Ensure that employees are aware of existing internal policies about harassment and discrimination and conduct regular training in these areas;
  • Have a regular system for updating and reviewing policies and procedures, including complaints procedures;
  • Select an appropriate and impartial investigator;
  • Respond promptly and undertake enquiries in relation to each complaint or allegation to determine whether a formal investigation is required;
  • Evaluate all facts with a view to reaching an adequately reasoned conclusion in the circumstances of an allegation;
  • Inform the parties involved of the outcome of the investigation.  

Are you concerned about a lack of knowledge or the risk of making mistakes in your workplace investigations? WISE Workplace is able to offer both full and supported investigation services. In addition, we can train your staff in how to conduct effective workplace investigations.

Identifying a Toxic Worker

Vince Scopelliti - Wednesday, May 09, 2018

Getting the mix of personalities in the workplace right can be extremely challenging. 

Creating a harmonious workplace is difficult at the best of times, and if a toxic personality is thrown into the equation, it can disturb the equilibrium of the workplace. 

Let's take a look at how you can identify and deal with a toxic worker in your organisation. 

what are the traits of a toxic worker?

Essentially, a toxic employee is one who puts their own needs above those of their co-workers, and negatively influences those around them. 

There is no central factor that necessarily determines whether somebody is a toxic worker. But according to a paper published by Harvard Business School, 'key' toxic personality traits include: 

  • Strong adherence to rules, causing inflexibility; 
  • Emphasis on achieving a greater output than other workers, leading to rivalry and friction;
  • Worse qualitative output of work compared with other colleagues; 
  • Overrated understanding of their own skills;
  • Self-centredness and a lack of self-awareness regarding their impact on others. 

 The paper also identified a number of other potential signs of a toxic personality:

  • Perfectionism - those who are hyper-sensitive to criticism; 
  • Emotionally over reactive "drama queens";
  • Sociopathic, remorseless behaviour;
  • Paranoia and a failure to trust others;
  • Gossiping and manipulating;
  • Passive aggression

impact of toxic personalities in the workplace

Having a worker with a combination of these personality traits can lead to significant issues for an organisation, including a loss of clients, worsening reputation, poor morale or all the above. 

Toxic workers can cause an increase in bullying and harassment complaints being received and unsafe work practices, which may result in physical or mental harm to other employees. 

This type of employee can also be "contagious". An unhappy or unpleasant co-worker can spark dissatisfaction amongst employees, and result in high staff turnover. 

sO can you avoid a toxic worker?

It can be extremely difficult to recognise some of these personality traits in an interview process. 

For this reason, it's important for human resources teams to not only have training in how to identify toxic staff, but also in how to deal with their performance if they have been hired. The emphasis during reasonable performance management steps need to focus not only on the employee's output, but also on the conduct issues observed. 

One of the strongest defences against toxic workers is a strong culture that focuses on employee wellbeing, openness and transparency and the avoidance of competition between staff. 

Conducting regular staff surveys and business "health checks" by touching base with your workers, finding out what motivates them and ensuring that they are satisfied in their relationships with co-workers can also keep your organisation protected from the influences of toxic employees. 

how wise can help

One solution to spotting a problem in your workplace is a cultural survey. If your organisation has a concern about a toxic worker, or staff are making complaints, we recommend conducting one of these surveys. If you would like assistance with this, contact WISE today!  

Why Forced Mediations are Doomed to Fail

Vince Scopelliti - Wednesday, May 02, 2018

Mediation can offer effective resolution of workplace disputes. It's a fair process that allows parties to be heard and encourages them to find a resolution both sides are satisfied with. 

Mediation should only be used when parties are willing to discuss their differences. In the case of a bullying complaint, an investigation is required in the first instance, to determine whether there is an active grievance or complaint afoot, causing one of the parties to feel unsafe in the workplace. 

Forcing an unwilling employee to the mediation table can lead to resentment and even legal action. 

How does mediation work?

In mediation, a third party facilitates an open discussion between two parties to help settle a dispute rather than going to court. Both sides are encouraged to reach an acceptable compromise. For employers, the idea is to resolve a dispute quickly and economically. 

while there are pros and cons for mediation, one positive is that a verdict is never 'handed down' but rather, the parties come to the decision together. It's an empowering process, giving the parties input into the outcome. 

The advantage of mediation is that disputes can be reexamined and reframed in order to find the appropriate solution. It's a flexible process that can be tailored to the needs of the players involved. 

A key aspect though, is that all parties need to act in good faith, and be open to discussion and negotiation. If mediation is forced upon an employee, they are likely to feel that the process isn't fair, leading to resentment, a difficult negotiation and disagreement with the outcome. 

Can an employer compel an employee to attend mediation?

While an employer can enforce mediation, and take disciplinary action if an employee fails to attend, there must be grounds to do so, and these grounds must be established. Without grounds, an employer may be left open to a claim of adverse action or victimisation. 

It's important in these situations, however, to carefully consider the reasons why the employee may not wish to be part of mediation. For example, they may fear a power imbalance or bias against them or may feel unsafe in their workplace, due to a bullying complaint which has not been addressed. 

Outlining the process: the role of the mediator

A mediator is appointed to facilitate the process. The mediator does not provide legal advice, nor do they offer legal counsel. A neutral third party, the mediator's role is not to make a decision, but to encourage the parties to come to their own, mutually agreed-upon resolution. 

In most cases, the mediator will make an opening statement and then give each party the opportunity to do the same. During this time, each party will share why they have agreed to the mediation and what they would like to achieve from it. This is not the time to air grievances. 

Just as a meeting is kept on track with an agenda, it's best to have a mediation meeting framework in place to ensure all steps are taken care of and all issues are dealt with accordingly. The agenda should be clearly spelt out and followed. The mediator will help determine what should and shouldn't be discussed and it's the mediator's role to keep the discussion on track. 

During the mediation, private sessions may also be helpful so parties can refresh and refuel. The mediator will meet with the individual parties one at a time to discuss how they are feeling. This process may be repeated if necessary. 

Once each agenda item has been addressed and discussed, a decision will be mutually agreed upon. The mediator will review, finalise and capture the agreement in writing. 

Approaching mediation

Asking an employee to mediate their grievance is a reasonable request - after all, restoring the peace between employees is important for business, and ensuring employees relations are happy and healthy is paramount. 

However, mediation will only work if the parties truly want to mediate. This means they want to come to an agreement together, and there's no possible reason why one party may be afraid or uncomfortable during the process. 

Forced mediation is not likely to be effective, as it is one-sided. 

When expert assistance is required

If the parties cannot find agreement on all agenda items, or there are behavioural concerns, it may be necessary to explore possible resolution options with an experienced external workplace mediator. 

If you need some support in how to conduct a mediation, need to engage a mediator, or would like to resolve a workplace conflict, contact WISE