Learning HR Lessons from Real World Cases

Vince Scopelliti - Wednesday, January 30, 2019

In recent years, there have been a number of cases heard in the Fair Work Commission and the courts which have resulted in important practical outcomes and learnings for employers, particularly in the area of workplace bullying. 

Let's take a look at some of these seminal cases.

volunteers can pursue bullying claims

The decision in Ryan v Returned & Services League of Australia (Queensland Branch) [2018] FWC 761 demonstrates that volunteers who are unpaid are entitled to pursue claims of bullying in the workplace. 

In this case, there was some dispute as to whether RSL Queensland, for which Mr Ryan volunteered, was a 'person conducting a business or undertaking' and a 'constitutionally covered business', within the meaning set out in the Work Health and Safety Act 2011

The commission ultimately determined that Mr Ryan was clearly a 'worker' within the meaning of the WHS Act, and held that the Pension Advocacy and Welfare Services (for which Mr Ryan worked, and which was under the aegis of RSL Queensland), was a constitutionally covered business at all relevant times when Mr Ryan was performing volunteer work. On this basis, it was found that Mr Ryan had sufficient standing to pursue a bullying complaint against RSL Queensland.

employer's failure to consider mental health

In Wearne v State of Victoria [2017] VSC 25, the Supreme Court of Victoria determined that an employer could be in breach of its duty to prevent injury to employees in circumstances where an employee complained of bullying and the employer failed to act on the complaints. 

Of particular significance for the court was the fact that the employee had advised her employer some years before she ceased work that she was suffering from occupational stress, was 'anxious about any ongoing contact' with former colleagues and experienced stress as a result. 

In particular, the court concluded that the worker's employers had 'lost sight of the goal of creating a workplace environment that was safe for the [worker's] mental state and minimised the risk of psychiatric injury'

Recommendation of workplace culture improvement plan

The Fair Work Commission determined in Sheikh v Civil Aviation Safety Authority & Ors [2016] FWC 7039 that while the specific circumstances of the employee's workplace did not support a finding of workplace bullying, there was sufficient evidence to suggest that some sort of remedial or consequential action was required. 

Accordingly, the employer was to design and implement a workplace culture improvement plan, which should focus on interpersonal relationship training, the introduction of a facilitated workshop regarding acceptable norms of behaviour, and the development of an appropriate and agreed work allocation protocol.

age discrimination 

A fairly significant compensatory award of $31,420 was awarded to the complainant in the NSW decision of McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273, following his allegations that his employment had been terminated when he was aged 62, because the worker had 'a bad back, bad hearing and was too old'.   

Although the company denied the worker's allegations, the NSW Civil & Administrative Tribunal (NCAT) found that the evidence suggested that it was 'more probable than not' that the worker was treated less favourably than he would have been if he had been younger.

reasonable management actions vs workplace bullying

In Ms SB [2014] FWC 2104, the Fair Work Commission considered what factors should be taken into account when determining whether an action was bullying or 'reasonable management behaviour'. 

An objective assessment must be made having regard to the circumstances and knowledge of those involved at the time, including what led to the management action, what occurred while it was in progress and what happened subsequently. Having regard to these factors, the Commission determined on this occasion that there was not sufficient evidence to support a finding of workplace bullying. 

It can be difficult for employers to interpret the findings and application of decisions made by the Fair Work Commission and various courts throughout Australia. If you require assistance in conducting workplace investigations, and making sound defensible findings, contact WISE today. 

Addressing Post-Investigation Workplace Culture

Vince Scopelliti - Wednesday, January 23, 2019

Workplace investigations may cause disruption and even animosity in the workplace. An incident occurred and a workplace investigator must attempt to get to the heart of the problem. Once the investigation is over, there will inevitably be fallout in the workplace, which any employer would be well advised to address actively. 

We examine the pitfalls facing managers after a workplace investigation, and the best methods for getting the organisation on track once again.

dealing with the fallout

It is unfortunate that in the aftermath of a workplace investigation, some tension and negative emotions will almost certainly remain. Staff might be left stressed about the findings of the investigation itself and/or the possible ramifications into the future. Yet on the plus side, a workplace investigation has the potential to generate excellent learnings - and to guide the organisation to a fresh start and positive future. 

It is important that managers resist the temptation to 'let sleeping dogs lie' at the conclusion of the investigation. An outcome has been obtained, but how can the lessons learnt be put into practice, relationships repaired and morale improved?

learning from the investigation

Regardless of how discreet a workplace investigator might be, rumours related to the investigation can run riot both during and after the fact. Damage to workplace relationships is a distinct possibility in this environment. 

For example - learning that allegations have been substantiated against a colleague can lead to dismay, disbelief or even counter-attacks against the suspected informant. Management must face the post-investigation issues and ensure that communication with staff is as comprehensive and transparent as possible. 

And even after explanations are provided, a negative workplace culture can linger and should be addressed on an ongoing basis. Regular team meetings, one-on-ones and whole-group discussions should be open and encouraging. The best way to dispel a negative workplace culture is to candidly shine a light on post-investigation issues as and when they arise.

addressing policy shortcomings 

It is important to ensure that issues are not simply aired: policy shortcomings must also be clearly identified and a plan of action put in place. This can have two benefits. Firstly, a plan that reflects the input of staff will foster confidence that grievances have actually been heard and considered by management. And even if not all aspects of the plan are desired by employees, there is at least some certainty about what the future holds. 

communicating with staff

An important aspect of communicating post-investigation is to redefine expectations. For example, if the investigation uncovers inappropriate behaviours that have developed across time, management needs to redefine and effectively explain what the 'new normal' looks like in this area. Where policy shortfalls are found, it is important that management acknowledges this and explains clearly how new behavioural expectations and standards will be put in place. 

Addressing staff concerns and providing support where needed is crucial in the aftermath of a workplace investigation. Don't bury your head in bureaucracy - take action! Let staff know that you are aware of the impacts of the investigation, and that their input matters. As the dust settles, feedback processes should be ongoing, and include staff wherever appropriate. This will be an important time for rebuilding work relationships.

leading an organisation into a positive culture future

In the aftermath of a challenging workplace investigation the future can feel somewhat uncertain. The process may have been unsettling and it is possible that colleagues have been on either side of accusations and recriminations. 

In order to lead the organisation into a positive-culture future, managers should be candid about the past but also hopeful about the organisation's potential. When carried out effectively, workplace investigations can sweep out undesirable cultural elements and provide a fresh start for policies, procedures, ways of working and overall workplace relationships. Leaders need to focus on this capability, and reiterate to staff the positives for the organisation into the future. 

Redefining workplace culture following an investigation can be a challenge. For strategies and advice to help your organisation re-establish strong workplace culture, contact WISE.

Whistleblower Changes - Getting Your Policies Right

Vince Scopelliti - Wednesday, January 16, 2019

With the new changes to whistleblower legislation soon to be debated and enacted, it's essential to assess whether or not your business is compliant. An important part of ensuring compliance with the changes lies in the development of robust policies to protect whistleblowers. The Human Resources function has a central role in preparing staff for the new approach to whistleblowing in the workplace. 

We examine best-practice policy development for the support of whistleblowers in the workplace, including compliance hazards to watch out for as the new legislation takes effect. 

recapping the changes

We have previously examined the architecture of the new regime, due to be enacted in early 2019. The proposed changes to legislation emphasise the need to not only protect workplace whistleblowers when they speak up, but to penalise organisations that fail to provide protection from harm. As part of these new requirements, whistleblower policies must be current, workable and robust. Tokenist policies and procedures that fail to effectively protect whistleblowers are no longer acceptable. 

how can hr guide the process

The most important focus for Human Resources departments will be the development and maintenance of a whistleblower-friendly culture: This is a good news story, the government has recognised the importance of whistleblowers in the fight against corporate wrongdoing and has acted in a positive way to encourage and support this practice. 

In developing quality training, in-house publicity, policies and procedures, HR needs to ensure that they guide staff and management towards a more supportive and knowledgeable stance in relation to whistleblower protections. 

best-practice in policy design - are you compliant? 

In view of the legislative changes due to be delivered, organisations are clearly required to 'get their house in order' when it comes to the development and maintenance of appropriate policy instruments. It is not sufficient for example to have policies that merely provide lip service to the ideal of whistleblower protections. 

There must be clear and user-friendly mechanisms for anonymous reporting and disclosure - even if there is a mere suspicion of corruption, graft, fraud or other foul play in the organisation. 

Importantly, it is no longer necessary to approach a direct supervisor to report an issue - the new legislation reflects a growing understanding that ostracism and discrimination can and does occur if a whistleblower is limited in terms of reporting mechanisms. 

Now is the time to examine your organisation's policies around whistleblower protection, to establish if they comply with the widened scope of the new legislation.

compliance hazards to watch out for

In developing the mechanisms to protect whistleblowers, there are a number of potential pitfalls to be aware of. Firstly, organisations can be liable if they fail to prevent harm to a whistleblower as a result of workplace reprisal. Reporting structures must be watertight in terms of anonymity and discretion. The smallest leak can lead to significant emotional and career harm for those brave enough to blow the whistle. 

A second related hazard is policies that are too general to be of any real use to potential whistleblowers. Policy documents should clearly and distinctly answer the 'what, how, who, when' of whistleblowing; when time is of the essence, it is important that staff can act immediately with their concerns. Further, whistleblower policies and training should explain clearly to all staff the repercussions for any harm caused to a whistleblower due to their disclosure. The key is a strong culture, where encouragement and protection of whistleblowers is a core element of business-as-usual.

how WISE's grapevine hotline can help

WISE is well versed in the changes of the whistleblowing legislation, and has recently published a whitepaper that can help answer all your questions regarding these changes. In addition, we have a whistleblower hotline, known as Grapevine, which has been running since 2016. The service is entirely professional and anonymous, and available 24/7 to concerned whistleblowers.

If you would like to know more or would like a cost estimate to implement our confidential hotline in your workplace, contact WISE now. By including the Grapevine Whistleblower Service in your whistleblower policy framework, your organisation can go a long way to fulfilling its requirements under the new legislation.

How to Transform a Toxic Workplace for a Productive 2019

Vince Scopelliti - Wednesday, January 09, 2019

A toxic workplace culture can place significant barriers in the way of achieving business objectives. If toxicity has invaded your office, it is likely that you are dealing with staff who are unproductive, resentful, unmotivated and perhaps difficult to discipline - and it can affect senior managers to junior employees. 

This can have significant effects on all areas of the business, and can even impact your bottom line. We give you tips on how you can start 2019 with a new, improved workplace culture - even if you're already seeing signs of disharmony.

signs your workplace culture is toxic

Psychologists and workplace consultants have long analysed the circumstances which cause a business to develop a toxic culture. Obvious signs that your company is affected may include:

  • Development of silos - This is demonstrated when workers fail to collaborate with each other or stick to their individual teams without sharing information, work or projects across the whole business. 
  • Drama - When 'business as usual' can't continue because histrionics and obstructive behaviour set agendas and cause issues and hypersensitivity. 
  • Lack of trust and 'backstabbing' - A little gossip is normal in any group environment. But when employees undermine each other regularly and fail to communicate effectively, it can be impossible to build or maintain a strong team culture. 
  • High leadership turnover - This can be a strong sign that either the business continues to select the wrong people for leadership positions (which is likely to have a negative impact on their direct reports) or the business does not support people who are trying to effect positive change. Either way, this does not bode well for success. 
  • Refusal to change - All businesses need to adapt, whether it is to keep up with technology, implement new ideas or listen to the needs of customers. A business where change is impossible is unable to grow; and this attitude suggests that management is perhaps not functioning optimally either. 

identifiying a toxic employee

Generally, a toxic culture starts with a small number of toxic employees, whose negative influence spreads throughout the office. Although there are no defined criteria for a toxic worker, they may display traits of:

  • Insistence on following 'rules' in an inflexible and unproductive manner;
  • Turning in work which is of a poorer quality than that of their colleagues;
  • Overrated belief in their own skills;
  • Self-centredness and arrogance;
  • Hypersensitivity to criticism;
  • Disruptive, dramatic or obstructive behaviour;
  • Paranoid tendencies; 
  • Gossip and general unpleasantness towards others;
  • Passive aggression displayed towards co-workers. 

If any of your staff are displaying a number of these behaviours, it would be wise to ensure that Human Resources is aware of, is monitoring the situation and that a strategy to address the behaviour is formulated immediately.

strategies for implementing a better culture

You can deal with a toxic workplace by:

  • Offering purpose-driven work (so that all staff can see how they are assisting the company and providing clear outputs)
  • Encouraging cultural improvements (by offering rewards for staff who have the right attitude or engage in positive actions)
  • Improving leadership (staff are more likely to listen to senior management who set a good example, engage them and inspire them to perform better). 

WHERE DO I START? 

Once you have identified that your workplace culture is toxic, it is time to disrupt the negativity. A cultural or climate survey may assist in pinpointing particular areas of or reasons for malcontent. 

One of the most important things to do in this scenario is to be honest with your staff about your assessment of the culture. Indicate that senior management is aware of the issues and is going to take steps to effect changes. 

This will likely encourage those staff who are committed to a fresh start, while at the same time causing those who are unwilling to cooperate to either resign or be adequately and reasonably performance managed. 

All staff should be involved in these announcements at the same time, ideally in the same room, so that the business develops a new, shared vision and has a joint positive attitude. All executives and senior management should be setting a clear example and be well versed in the proposed new company direction, so that everybody is reading from the same runsheet, and change really is demonstrated to be 'top down'.

Importantly, once an action plan for repairing the toxic culture is developed, it should immediately be implemented, so that enthusiasm and motivation does not wane. 

It takes commitment and determination to disrupt a toxic culture. It's best undertaken by moving ahead quickly with a clear course of action and employee buy-in. As employees practise the new rules and behaviours, your culture will become self-reinforcing. If you have allegations that demonstrate a toxic workplace culture, and would like a cultural survey or fact-finding investigation into the circumstances done - contact WISE today!