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.

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.


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.

Managing Misconduct over the Holidays

Vince Scopelliti - Wednesday, December 18, 2019

The festive season is fraught with concern for employers. With many staff on leave and those who remain letting their proverbial hair down (often with a beverage or three!) the holiday period can be a minefield.

We take a look at when employees are still considered to be "at work", define misconduct and provide some tips for dealing with poor behaviour in the workplace over the holidays. 

When are employees still 'at work'?

A workplace is where people perform their jobs, undertaking their contracted hours of work. However, a work function held outside the office and outside regular business hours, is considered to be an extension of the workplace.

A general rule of thumb is, that if an event is organised and paid for by an employer, it's officially sanctioned. Liability therefore remains with the employer for any misconduct that occurs. This is likely to be the case, regardless of how many pre-event warnings have been issued to staff, and how many times staff have been reminded of the applicable policies and codes of conduct.

It is also important to keep in mind that employers may bear third party liability, to family members who attend a staff Christmas party, functions held in public venues (where people other than staff could get injured) and in circumstances where a worker causes injury to another person, when leaving an event in a state of intoxication.

defining misconduct in the workplace

Misconduct over the holiday period generally refers to inappropriate behaviour such as discrimination, workplace harassment and bullying, or sexual harassment. This type of behaviour is often associated with the Christmas party, where people have consumed alcohol and have lowered inhibitions.

It is important for employers to remember that the definition of sexual harassment, for example, includes but is not limited to, conduct of a sexual nature which is offensive, humiliating or embarrassing to the person complaining of the behaviour. Crucially, it is irrelevant if the behaviour was intended to offend - it is the opinion of the "victim" and not the "perpetrator" which is relevant.

Other types of misconduct include staff pulling "sickies" due to hangovers, or poor behaviour such as sharing inappropriate stories or having general disagreements between co-workers boil over.  

why is there a prevalence of misconduct over the holidays?

As noted, there is often an increased incidence of misconduct in circumstances where staff are consuming (potentially excessive) amounts of alcohol and otherwise lowering inhibitions.

There is also a general misapprehension amongst employees to the effect that a Christmas party is not considered to be related to employment - which is not the case.

This is part of the reason why employers should also give serious consideration as to whether they wish to gift alcohol, either to their staff or to clients or business associates. While alcohol is a convenient and often appreciated gift, it can create an impression that an employer is not concerned about responsible service of alcohol.

mitigating the risk of misconduct

There are numerous ways that employers can mitigate the risk of misconduct during the holidays. 

Before a function, employers should take steps to remind staff (generally via an email) that it is to be treated as a workplace event, and therefore the usual policies and procedures remain in place. It is also timely to recirculate documents such as code of conduct, sexual harassment or bullying policies and procedures.

During the work function, employers should consider ensuring that at least one (if not more) senior personnel are in a position to remind staff who have over-consumed alcohol, that they should stop drinking and/or perhaps even leave the event.

Similarly, companies should ensure that there are sufficient taxi vouchers or other safe methods of transport home, for all employees who want them. This ensures that the business cannot be responsible for any employees who injure themselves and/or others on the way from the party.

If allegations of misconduct do arise from a Christmas function, employers must ensure that due process and fair procedures are implemented. This includes taking into account the fact that staff may be on leave or have applied to be on leave.

Although the investigative process should not be unnecessarily drawn out, staff who have pre-booked leave, should not be prejudiced by the fact that they are unavailable at that time of year. They should have the same opportunity to prepare a response to allegations as at any other time of year.

Managing staff and keeping in touch with staff over a quieter holiday period can be a challenge. If you need assistance reviewing and managing staff behaviour in your workplace, WISE Workplace provides expert external investigation services to meet your needs. 

Dealing with Pornography in the Workplace

Vince Scopelliti - Thursday, November 21, 2019

Unsurprisingly, the access to pornography can be extremely problematic in the workplace. Not only does the access to pornography at work open up a minefield of possible harassment and other sexually motivated complaints, it contributes significantly to presenteeism (where staff are physically present but not concentrating on their jobs).

Indeed, according to a report in the Financial Times, 45% of daily viewers of popular pornography compilation site Pornhub, accessed the site between standard business hours of 9am to 6pm. In addition, staff accessing using company resources to access unauthorised websites, can pose a significant cyber security risk to businesses.

Given the almost ubiquitous presence of smartphones and tablets in the workplace, it is becoming increasingly difficult for employers to address and manage the increasing issues related to pornography access in the workplace. Nonetheless, care and consideration must be taken when investigating allegations of employees having accessed pornography while at work. 

what does the fair work commission think?

The Australian employment relations tribunal has made its position on pornography being accessed in the workplace clear. For example, in the decision of Allan Croft v Smarter Insurance Brokers Pty Ltd (U2016/4415), Commissioner Cambridge commented that: "particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/or storing hard-core pornographic material on the employer's equipment, whether such conduct occurred within or outside of the ordinary hours of work"

It follows that there is clear support for termination of employment on the basis of accessing pornography - but only if there is a clearly drafted behaviour policy which explicitly prohibits the accessing of pornography on work equipment or during work hours. 

What role does company policy play?

It is not sufficient for an employer to simply discipline or dismiss an employee for accessing pornography at work, without having provided adequate notice of the company's position on pornographic materials.

This means that employers should have in place a clearly articulated and freely available policy on the topic of unacceptable workplace behaviour and conduct. That policy should explicitly set out what is considered improper use of company equipment, technology and Internet access. There should also be a statement to the effect that the use of company equipment and resources should be confined to work-related activities.

In addition to drafting the policies, it is essential that employees are both made aware of and understand them. Ideally, there should be regular training on what is considered to be acceptable behaviour in the workplace.

Action by employers 

Notwithstanding the support of case law, employers should still tread with caution in relation to disciplining or terminating employees for accessing and/or downloading pornography.

It is crucial that employers not act rashly by summarily dismissing staff without following due investigatory processes. When making decisions in relation to discipline or dismissal, the procedures set out in the relevant company policy must be adhered to. This will best protect the employer against subsequent proceedings for unfair dismissal.

Although employers should not deviate from usual investigation practices when dealing with pornography in the workplace, it is important that this type of behaviour is dealt with swiftly and decisively. This is in part because other employees who may be sent or otherwise exposed to pornography could also make claims for sexual harassment.

Addressing employee conduct regarding matters of internet usage and technology is a challenge for all modern workplaces. If your organisation requires assistance in enforcing policies to ensure matters of misconduct are dealt with in a fair and considered manner, WISE delivers training as well as investigation services to help you meet the challenges that arise in contemporary workplaces.

How to Move Forward After a Workplace Investigation

Vince Scopelliti - Wednesday, September 11, 2019

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

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

WHAT happens when an investigation is concluded? 

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

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

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

Having a communication strategy will avoid rumour or conjecture.   

what are some common complications? 

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

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

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

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

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

post-investigation strategies 

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

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

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

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

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

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

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

How to Prepare for a Difficult Conversation

Vince Scopelliti - Wednesday, November 28, 2018

Engaging in a difficult workplace conversation is one of those tasks that most managers and business owners would prefer to avoid. Yet the reality is that from time to time, workplace behaviour or performance will be below par and will need to be addressed. 

The key to conducting a challenging conversation at work that is both professional and productive lies in thorough preparation - the three W's of when, where, and what.

WHen is the best time to have the conversation?

Timing is everything when preparing to discuss a difficult issue. Ask yourself a deceptively simple question - why am I instigating this particular conversation right now? If the answer is that you are annoyed, aggravated or otherwise emotionally charged by an employee's behaviour or performance, then this can often be a bad time to attempt a challenging conversation. 

Difficult conversations that are planned and delivered in a calm and considered manner have a much greater chance of producing desired outcomes. Conversely, conversations that are started impulsively, out of anger or frustration can often lead to later accusations of abuse and unfairness. This is particularly so where no warnings or offers of support are given. 

Putting difficult conversations off indefinitely is not productive either. This may create the impression that the conduct is tolerated or accepted. So, ask yourself - is now the right time?

where should i hold the difficult conversation? 

Much like timing, you should carefully prepare the venue for these challenging work conversations. One golden rule is - not in front of a worker's colleagues. Entering a work station and immediately delivering difficult words can be seen as disrespectful or even as an abuse of power. 

In some workplaces, it might be best to email the worker and request that they come to your office or a designated neutral space. Depending upon the gravity of the topic of discussion, it might also be suggested that the worker bring along a support person. 

When you are anxious about the need to have a difficult conversation, you might prefer to just go for it on the spot and begin, but take a deep breath and ensure that the venue is appropriate.

what is the topic of the difficult conversation?

This again might seem like a question that has a simple answer. It might seem obvious to you that the problem is bad performance, bad behaviour - or both. Such general labels however can appear to be an attack on the person, with no real way for them to reply in a meaningful way. And broad admonitions to 'shape up or ship out' are not only unproductive performance guidance - they can be seen as real threats to a worker's employment and do not meet the requirements of reasonable management action. 

Try to have a basic agenda prepared and distil the 'what' of the discussion into two or three clear and succinct points. 

For example, the conversation might cover a tangible issue such as the three late starts since last Thursday; the 30% dip in sales since June; the four separate reports of disrespectful behaviour in the workplace. Specificity assists in driving a conversation that is fair, transparent and likely to deliver a sustainable outcome. 

Choose words which are neutral and not emotionally laden. Avoid descriptive words such as appalling, dreadful, bad or shocking. Try to be rational, measured and neutral in your language and approach. If you are able to deliver a clear and rational statement of what the employee has failed to do or what they have done wrong and invited a response, you are well on your way to having an open discussion and finding a resolution. 

And lastly - listen! A conversation, by definition, involves two or more people. Don't be tainted by pre-judgement.

DIFFICULT CONVERSATIONS AS PART OF THE PERFORMANCE MANAGEMENT PROCESS 

Humans avoid conflict. We are community-based creatures and prefer to have things just tick along nicely. Yet these difficult conversations are important, having the overall goal of improving performance, getting to the bottom of troubling issues and smoothing the rougher edges of behaviour. 

Acting in anger is inadvisable, as are publicly-heard conversations and sweeping accusations. Clear guidelines for such communication should be set out in the organisation's policies and procedures, with training and resources available to assist. 

Should your difficult conversation form part of a performance management process, make sure that you are adhering to your organisations' relevant policies and procedures. This may include drafting a performance improvement plan if informal performance counselling is not effective. 

Without these structures, organisations are left open to complaints of unfairness or a failure to take reasonable management action. 

Expert help in getting it right

The reality is that difficult conversations are inevitable in the workplace, and it is important that they are conducted well. At WISE, we specialise in the management of workplace behaviour. We can investigate matters of misconduct, resolve conflict through mediation and provide consultation services for effective people governance. Call us at any time to discuss your requirements.  

22 Types of Workplace Bullying Behaviour

Vince Scopelliti - Wednesday, November 21, 2018

Bullying is the scourge of many workplaces. There are few things which destroy office morale, tear apart team cohesion or cause good staff to leave as quickly as victimisation and harassment in the workplace. Interestingly, research has identified 22 different types of bullying conduct which might be encountered in the average workplace. 

We outline these different types of bullying and provide tips on how to avoid situations that cause this type of conflict in the workplace. 

What is the legal definition of bullying?

According to Fair Work Australia, a person is bullied in the workplace if they are repeatedly subjected to unreasonable behaviour by another person or group of people, or if that behaviour creates a risk to the health and safety of the bullied employee. 

Bullying includes teasing, exclusion and unreasonable work demands, but does not include reasonable disciplinary action or control of workflow. 

types of bullying behaviour

Research conducted by the University of Wollongong into 500 Australian employees over a 12-month period identifies the following different types of bullying behaviour: 

  • Withholding information (relevant to a person's employment or role)
  • Humiliation and ridicule
  • Tasking a person with work that is below their level of competence
  • Removing responsibility from a person who has earned it
  • Spreading gossip or rumours 
  • Ignoring or excluding a worker
  • Making personal insults
  • Shouting at or otherwise berating a person
  • Intimidating behaviour
  • Providing hints or signals that a person should resign or abandon their job
  • Reminding a worker constantly of errors or mistakes they have previously made
  • Persistently criticising an employee
  • Ignoring a worker hostile behaviour towards a worker
  • Ignoring a worker's opinion
  • Playing practical jokes or pranks
  • Imposing unreasonable deadlines
  • Making unfounded allegations
  • Excessively monitoring an employee's work
  • Putting pressure on an employee not to claim entitlements such as annual leave, personal leave or carer's leave
  • Teasing an employee
  • Imposing unreasonable workloads
  • Making threats of violence or engaging in actual abuse

These types of conduct, if repeated, generally present themselves in categories of limited indirect bullying, task-related bullying, or occasional bullying, or frequent bullying. Regardless of the cause, bullying results in increased absenteeism as a result of physical and mental health consequences on the worker who is affected. 

The risks of bullying

Apart from the obvious risks of employees resigning or taking extended periods of leave due to bullying, employers should also be aware of the potential for presenteeism - where staff turn up but are too affected by the bullying to effectively perform their work. 

Should employers fail to deal with bullying behaviour, they may be in non-compliance with their duty of care and their obligation to provide a safe and healthy workplace.

What can employers do? 

It is essential for employers to set clear boundaries on what sort of behaviour is and is not acceptable in the workplace. The most effective way to do this is to create clear and direct policies which are well publicised to all staff, ensuring awareness. 

Staff should also be trained in dealing with subtle acts of bullying, which could over time escalate into more serious types of bullying. 

Employers can best combat bullying by fostering a positive workplace culture as a whole, and encouraging strong leadership and communication. This includes giving staff sufficient resources to do their jobs effectively, providing positive feedback and resisting the urge to micromanage. 

WISE Workplace is against workplace bullying and provides training for employers on how to investigate allegations of bullying in the workplace. If your organisation wants to create a workplace environment that is free from discrimination, harassment and misconduct, contact us today!