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. 

Managing Relationships in the Workplace

Vince Scopelliti - Wednesday, April 11, 2018

Anyone who has been following the news recently will be aware that scandalous sexual relationships in the workplace have become something of a common theme. 

The stories of Seven West Chief Executive, Tim Worner and his former executive assistant (a relationship which ended in legal action), the forced resignations of senior AFL executives over their relationships with younger staff, and the notorious pregnancy of former Deputy Prime Minister Barnaby Joyce's staffer have all been highly publicised. 

The ironic fallout of Mr Joyce's relationship is the so-called "bonk ban", instituted by Prime Minister Malcolm Turnbull. That ban is intended to prevent all relationships between ministers and their staff, and presumably avoid another scenario such as Mr Joyce's extra-martial affair. 

But is this something which employers can actually impose? Particularly in circumstances where many romantic relationships are forged in the workplace?

can employer prohibit relationships in the workplace?

Although it is virtually unheard of for blanket bans on all relationships to be imposed in any workplace, it is not uncommon for disclosure policies to be introduced. 

The intention of such policies is to require staff members to disclose sexual relationships which could result in a conflict of interest, for example when the relationship is between a supervisor and their subordinate.

Such a code of conduct is designed to manage situations where the interests of the business may be in direct conflict with the romantic or personal interests of the employees. 

Actual conflicts of interest vs perceived conflict of interest

Arguably any relationship in the workplace - not necessarily even a romantic one - could lead to a conflict, particularly when the relationship falls apart or ends badly. This can result in staff feeling unable to work together or believing that they are being victimised by their former lover or friend. 

However, it is important to understand the difference between an actual conflict, and a perceived conflict. 

The Fair Work Commission's decision of Mihalopoulos v Westpac Banking Corporation [2015] FWC 2087 illustrates the difference. In this case, a Westpac bank manager was dismissed from his role due to his conduct arising out of his relationship with one of the bank's employees. 

According to Westpac, Mr Mihalopoulos was dismissed because he was dishonest about his relationship with the worker, breached an apprehended violence order imposed by the worker (after the relationship ended) and inappropriately discussed details of their relationship with his subordinates. 

During the course of the hearing, Mr Mihalopoulos admitted that he had put forward his lover for promotions while they were in a relationship, despite denying their relationship to superiors. 

The Fair Work Commission ultimately determined that employers were entitled to expect that their workers were honest about the nature of relationships that had formed, so that any conflicts of interest arising from these relationships could be managed. 

Further, Mr Mihalopoulos' ongoing and repeated dishonesty about the circumstances of his relationship meant that the business was not in a position to appropriately manage conflicts and therefore manage its own risk. Accordingly, Mr Mihalopoulos' unfair termination application was ultimately dismissed. 

How can relationships be managed in the workplace?

In order to manage the minefield of personal relationships in the workplace, Human Resources departments should ensure that both conflict of interest and disclosure policies are in place, which employees should sign up to as part of their terms of employment. 

Once a disclosure has been made, the conflict of interest policy should provide steps to be taken to minimise ongoing risks to the business. For example, staff might be reassigned to different supervisors to ensure that appropriate disciplinary action can still be taken. 

It is critical not only that these policies exist but that they are clearly communicated to all staff, and that staff are made aware of the potential consequences of failing to adhere to these policies, including redeployment or dismissal. 

If you need assistance in managing workplace relationships at your organisation, contact us. Our team can help formulate policies around disclosure and conflict of interest, and can investigate allegations of misconduct. 

How to Implement and Promote Workplace Policies

Vince Scopelliti - Wednesday, April 04, 2018

A suite of robust policies and procedures is an essential element of good governance in any organisation. Often employers discover that their policies and procedures are inadequate, only once their actions are reviewed by a tribunal or court. 

Adequate workplace policies are key mechanisms for outlining exactly what the standards of conduct are in your organisation. Workplace policies should clearly and succinctly explain the topic covered and provide the procedures that need to be followed in a given area. 

Let's take a look at the features of a well-written policy, plus the best ways to implement, promote and review these important business documents.

the benefit of a well-written policy

The benefits of a well-written policy cannot be overstated. Sometimes policies are mistakenly seen as 'stating the obvious' in the workplace. Yet, without workplace policies that set out clear requirements and processes, confusion and mismanagement can spread across the organisation. 

A good place to start when developing a policy or procedure is to seek the ideas and input from the key people involved. This can improve staff commitment to the policy if they observe in the final document that their voice has been heard. 

In terms of style, a well-written policy must demonstrate clarity and specificity. While it is in order to outline at the beginning of a policy where it 'fits' into organisational objectives, generalisations should be avoided. 

For example, rather than requesting that 'staff should make sure that they respect client privacy when it comes to using files', a well written policy is likely to include specific directives such as 'Hardcopy client files must be stored in the section F compactus within 30 minutes of use'.

developing policies to suit your workplace

There is an art to developing and introducing workplace policies that will be read, understood, accepted and actually used. 

Firstly, all stakeholders in the organisation - staff, suppliers, clients, contractors - need to see that management is fully in support of the policy's content. Policies without perceived support and commitment from management are unlikely to gain traction with staff. 

Similarly, policy developers must consult effectively with staff about the proposed policies and welcome their comments; after all, they are the ones likely to be dealing with the contents on a day-to-day basis. 

A well-written workplace policy needs to clearly define key terms within the policy. New employees will need to familiarise themselves with expectations of their role and responsibilities as quickly as possible, without the confusing jargon. Defining 'the obvious' terms can save frustration and costs down the track. 

introducing policies and procedures

Once the scope and substance are ascertained, the policy must be documented and distributed effectively. 

Make sure that the initial publicity effort is multi-media and ensure that during induction of new employees, in team meetings, on the intranet, at training, in the staff bulletin and on the kitchen cork board (plus anywhere else that works), you give clear information about the policy and where to find it. 

Following up on your publicity about the policy and refresher training is essential and should be carried out regularly across the organisation.

Evaluation and review

No matter how well written, a good policy or procedure will still need to be evaluated and reviewed. 

A logical starting point can be to check effectiveness against key objectives. For example, injury rates or client complaint numbers might be used to gauge the success or otherwise of a particular policy. 

Another good source of information to help you assess the policy will be the people actually impacted by its wording. 

Policy developers need to be truly open to ideas when it comes to reviewing existing policies. Good governance and strong organisational achievement will often depend upon robust, realistic and clearly-worded policy documents. 

WISE Workplace can review your current policies, advise you on their appropriateness and update your suite of policies and procedures. Contact us today!

The Cost of Aggressive Leaders

Vince Scopelliti - Wednesday, January 24, 2018

There are many different skills which are required for an effective leader - such as excellent communication skills, perseverance, the ability to inspire and motivate staff, clarity of thought, and efficiency. But one detrimental trait that many leaders may possess is aggression.

Although it is often accepted that a domineering personality seems to go hand in hand with successful leadership, in many situations it can actually get in the way of optimal and effective management.

a bad habit or a behavioural strength? 

There are different levels on the scale of aggression - and indeed, for some jobs a level of combativeness is almost an essential quality. From a CEO accustomed to facilitating hostile takeovers, to a litigator who must take charge of a courtroom, to a police officer, in these careers, behavioural traits which are more closely aligned with aggression can be helpful. 

Contrast this with "softer" jobs, such as a primary school teacher, a nurse, a psychologist or a social worker, and it becomes apparent that certain personality traits are much better suited to some industries than others. 

Hiring managers and HR managers responsible for recruitment and selection of managers need to be aware of the difference between simple assertiveness and unbridled aggression or even narcissism.

the difference between assertive and aggressive

A "positive" and assertive boss might:

  • Engage in competition against external competitors, but support a whole team ethos;
  • Be forthright and open, including potentially critical - but be equally willing to accept criticism of their own methods;
  • Seek facts;
  • Respect the rights of staff to their own opinions. 

In comparison, a "negative" aggressive or narcissistic boss may:

  • Constantly compete with their own staff;
  • Belittle or punish those who disagree with the leader;
  • Base decisions on their emotions or feelings rather than rational or logical conclusions;
  • Mock or otherwise put down staff; 
  • Yell, gesture, stride around or otherwise engage in physically intimidating behaviours.

the downsides of aggressive behaviour in the workforce

In its most basic form, employees who work for aggressive leaders can be uninspired and unhappy, often not wishing to come to work. A leader who storms around like a bear with a sore head, as the expression goes, is likely to cause, or at the very least contribute to, a toxic workplace. 

This, in turn, can lead to significant losses in productivity, high rates of absenteeism or presenteeism (where staff physically turn up but do not properly fulfil their duties) and excessive staff turnover. 

changing leadership behaviour 

It can be difficult to modify leadership behaviour, particularly when it comes to leaders with type-A personalities, which will likely mean that they are reluctant to accept criticism or receive feedback well. 

Strategies for changing leadership behaviour, or at least improving the ability of staff to deal with aggressive leaders, include:

  • Building a strong relationship between the leader and the rest of their team, including by encouraging open communication and fostering the ability for human resources staff as well as team members to provide feedback on decisions made by the leader. 
  • Appeal to the leader's sense of logic and highlight the potential impact of their actions on the business.
  • In the case of narcissistic leaders, it can be helpful to frame feedback on their behaviour in terms of how it might negatively affect their goals, rather than as a direct personal criticism.
  • Stop supporting this type of behaviour by refusing to promote or reward leaders who are aggressive, and who refuse help to modify their behaviour. 

Taking a few simple steps towards correcting the ongoing behaviour of an aggressive leader, while still highlighting the importance of strength in decision-making, can help to significantly improve the satisfaction, productivity and quality of your workers. If you believe you have an aggressive leader or a toxic workplace where an investigation or cultural review would help, contact WISE today for an obligation free quote. 

Tackling a Toxic Workplace Culture

Vince Scopelliti - Wednesday, January 17, 2018

Many people start off each year with a bundle of resolutions - to eat better, to exercise more, to spend more time with the kids... the list goes on. The start of a new calendar year is also a fantastic time for businesses to take stock and reassess. If your workplace culture is getting in the way of your business fulfilling it's potential, make change your top New Year's resolution for 2018.

what is workplace culture? 

Culture is loosely defined as the beliefs and behaviours that govern how people act in an organisation. 

While it is often considered to be a vague concept, how workers interact with each other is an incredibly important part of work life. Good organisational culture is now believed to be a key factor in a business' success or failure. 

If staff feel uncomfortable, unhappy or excluded, they will obviously not enjoy coming to work - which generally means that they will be less motivated, less productive and reluctant to go beyond the call of duty when asked.

how to identify if your workplace culture is bad

Whether a workplace is toxic or not is difficult to define. Generally speaking, if people are unhappy at work more often than not, you are dealing with a poor workplace culture. 

Factors that can contribute to a toxic culture include:

  • Staff not being trusted to take calculated risks or perform their jobs without being micromanaged.
  • Workers constantly being asked to perform under significant pressure and without adequate resources being allocated to assist them.
  • A lack of clarity or top-down direction.
  • Poor leadership behaviour or interaction 

what happens when workplace cultures are toxic

Toxic cultures can breed hostile, pessimistic team members, drive away top talent and prevent organisations from reaching their full potential. 

Some signs and consequences of toxicity include:

  • Increasing staff conflict
  • High staff turnover
  • High levels of absenteeism
  • Presenteeism (where people physically show up at work, but don't perform their duties to the best of their abilities)
  • Increased workers' compensation claims
  • Complaints of bullying or other types of harassment 

HOW to chage a negative workplace culture

In order to address workplace toxicity, employers need to be prepared to tackle issues head-on. 

These 10 steps towards changing workplace culture for the better can help make the task less daunting.

  1. Identify and assess the underlying problems. This is best achieved by issuing a staff survey, conducting exit interviews to determine why staff are leaving, or otherwise encouraging open and honest feedback. 
  2. Establish a concrete company vision. Ensure that all employees are engaged with the vision and understand where the business is headed.
  3. Rinse and repeat - ideally, make sure that surveys and opinion polls are conducted on a regular basis to identify what factors may be improving or worsening the workplace culture.
  4. Encourage consultation and open communication. In addition to helping filter ideas and feedback up to the leadership team, this makes staff feel valued and assists in reducing emotions such as frustration or anger.
  5. Facilitate friendships and encourage team building. If your staff actually like each other, they are much more likely to take additional steps to support co-workers and the business. 
  6. Be consistent and fair. One of the biggest gripes of staff who feel they operate in a toxic environment is that their supervisors seem to change attitudes on a regular basis, or that responses are likely to vary depending on what mood the boss is in. 
  7. Maintain a sense of fun - all work and no play makes Jack a dull boy, as the saying goes, and creating a workplace where staff feel at home is much more likely to improve morale. 
  8. Pick your team wisely. When selecting and hiring new staff, consider how they will fit into the team and how they will get on with your other workers.
  9. Be physically present. Although senior staff will doubtless have different hours and regimes to stick to than average workers, it is disheartening to see supervisors roll in regularly at 11am with coffee in hand, head out for long lunches and then leave in the early afternoon. Allow your staff to see that you are working just as hard as they are. 
  10. Recognise the efforts of staff. Whether this is through an employee of the month program, an annual awards dinner or simply ongoing quiet acknowledgement of good performance, ensure that staff know they are appreciated. 

So, start this year the right way - make your workplace somewhere your staff want to be, instead of somewhere they have to be. And if you're having difficultly with a toxic workplace culture, WISE can help, through out investigation, mediation and governance services. 

2017: The Year Sexual Harassment Claimed the Public Spotlight

Vince Scopelliti - Wednesday, January 03, 2018

It seems that as 2017 gathered steam, more and more brave survivors of sexual harassment in the workplace gained the courage to name their alleged harassers. 

From Hollywood bigwigs and actors to Australian TV personalities; it seems that a vast array of perpetrators and inappropriate actions within the entertainment industry have finally come to light. 

There is no doubt that any move to identify and eliminate sexual harassment at work is a good thing. However, what is important as we close the 'year of the Weinstein' is that we don't forget some of the less obvious - but no less damaging - manifestations of sexual harassment in the workplace. 

The reach of Australian legislation protecting workers is impressive. Yet many workers and employers still fail to recognise that sexual harassment is occurring on a regular basis. For example - a workplace might tacitly support that 'touchy feely' manager, or the 'jokey' worker who pushes the line on blue humour. What is certainly not acceptable under law, can in some contexts become normalised. 

Developing broad-ranging understanding of what is and what is not sexual harassment, can be quite challenging. How to combat this lack of knowledge is the next frontier for employers and workers alike.

Key definitions of sexual harassment

The Federal Sex Discrimination Act contains the following definition of sexual harassment: 

28A - Meaning of Sexual Harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engaged in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Importantly, 28A(1)(b) provides for the broader "unwelcome conduct of a sexual nature." 

Both workers and employers alike face some knowledge gaps in terms of the reach of the definition. And what could mistakenly be thought of as 'just mucking around' or 'a harmless Aussie joke' might in fact fall squarely within the meaning of sexual harassment. 

As seen in the legislation, it is not a matter of whether the person harassing might have anticipated an adverse reaction from the person harassed. The relevant threshold in gauging the reaction from the viewpoint of the ubiquitous 'reasonable person'. 

global reach - the #metoo campaign

We watched the tsunami of the '#metoo' campaign encouraging women across the globe to share their experiences of sexual harassment, by using the simple hashtag across social media. The campaign has shed valuable light upon the prevalence of sexual harassment in society. 

Both women and men have been subjected to unacceptable words and acts - often without support or a sufficient avenue for redress. We are beginning to understand that sexual harassment is blind to gender, with men becoming susceptible to this behaviour - as the matter of Kordas shows. 

Unique questions arise for employers when we consider the various social media platforms being used by women to spread this message. If a person hashtags #metoo from a workplace, the employer might well have an obligation to follow up on this informal notification. Certainly, if there are subtle or overt signs of a connection between the claim and work, an investigation of possible workplace sexual harassment might well be advisable.

THE extreme and the ugly...

As noted, 2017 could certainly be considered the year in which the issue of sexual harassment hit the headlines in a major way. In the United States, the verbal and physical exploits of Hollywood's Harvey Weinstein became part of a horrifying litany of sexual harassment occurrences in the workplace. Similarly in Australia, media personality Don Burke has faced extensive allegations of sexual harassment in the workplace, stemming across many years in his work as the nation's 'gardening guru'. 

Yet it is arguable that such extreme cases do little to assist the public's understanding of the more fine-grained aspects of workplace sexual harassment. Across Australian workplaces, only a small percentage of workers who have been sexually harassed will report the behaviour. In general, this is due to the fact that sexual harassment is only understood to be the kinds of egregious, physical acts that have made media headlines in 2017. 

The subtler acts of sexually-based joking, leering, cornering, propositioning and unwanted affection are less likely understood by workers (and even some employers) as being what they are - sexual harassment. How to keep such harassment at the forefront of employer thinking into 2018 and beyond, is the challenge. 

risk of ignorance 

When whispers and talk arise about an incident of sexual harassment, employers need to pay close attention. If an employee approaches management with a concern, it is important to understand that verbal notification of sexual harassment is generally all that is needed. 

Those subject to harassment are not required to make a formal, written complaint. The risks of not acting on an informal, verbal notification of unacceptable behaviour can be high, as demonstrated by the cases of Trolan and Matthews. Employers in this situation have faced mounting costs associated with statutory and common law claims - not to mention the operational costs of allowing sexual harassment to occur in the workplace initially.

workplace vulnerabilities 

Workplaces where rank and hierarchy exist - such as emergency services and the armed forces - can be particularly susceptible to occurrences of sexual harassment. In the recent NSW case of Torres v Commissioner of Police [2017] NSWIRC 1001, the Commission noted that part of the problem with the senior constable's lewd behaviour stemmed from these displays being forced upon more junior colleagues. His dismissal was found to be warranted in light of the gravity of his sexual harassment at work. Those in lower positions can feel that they have no option but to accept the behaviour. 

Taking advantage of junior and/or more vulnerable workers can also be evident in low-paid and transient industries. Recent unsavoury cases of sexual harassment have been found to have occurred in farming and horticultural industries where transient workers are open to abuses by employers and permanent staff. Similarly, in hospitality workplaces, junior staff are particularly prone to sexual harassment. Age, time in the role, and financial necessity are just some of the vulnerabilities that can lead to harassment.

workplace sexual harassment policies crucial

The importance of having meaningful and accessible workplace sexual harassment policies cannot be overstated. It is not enough to simply email staff about a generic policy on sexual harassment in the workplace. And it is also not satisfactory to do the bulk of education activities at the point of recruitment. 

Like any workplace risk, sexual harassment needs to be monitored across time and in the context of each individual work site. Policies should remain living documents that provide robust responses to any unacceptable workplace behaviours. 

The costs of failing in this area include not only money and time, but also that most valuable of corporate commodities - reputation.

strong but subtle RESPONSES

2017 brought sexual harassment in the workplace front-and-centre for the global viewing public. Tales of power gone astray and a culture of staying quiet have all led to the situations that have dominated the headlines in recent months. There is no denying the importance of bringing such stories to light. However appropriate workplace responses will not simply engage with the worst types of sexual harassment, such as we have heard about recently in the media. Active employers will necessarily source the best and most responsive policies, addressing all issues that might allow sexual harassment to fester and grow in the workplace. 

Hopefully, 2018 will be the year in which all employers develop responsive workplace systems designed to detect the earliest threat of sexual harassment across every site. If you need assistance, WISE Workplace can help with sexual harassment policies, training and investigations.

Navigating the Choppy Waters of Mental Illness at Work

Vince Scopelliti - Wednesday, December 06, 2017

Mental Illness is highly prevalent in our society - 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their lives, and 20% will suffer from mental health issues during any given year. 

Given these statistics, employers will likely deal with at least a few employees who have mental health issues annually. 

So, what is expected of an employer in this situation? 

understanding mental illness

The first step is to understand that there are many types of mental illness. Depression and anxiety are very common, and fall into the category of mood disorders. Other types of mental illness include personality disorders or psychotic disorders, amongst others. 

Generally speaking, a person getting appropriate treatment for a mental illness can be an active contributor in the workforce and the community, and the vast majority of people suffering from mental illness do not pose any risk to others. 

A mental illness may develop separately from the workplace, for example due to issues stemming from the sufferer's personal life. However, the average employee loses 3.2 work days per year due to the impact of dealing with workplace stress - so it is clear that the workplace can be a significant contributing factor in mental health issues. 

managing the contributing factors at work

An employer has a duty of care to ensure that the workplace is safe and healthy for employees. Employers need to identify workplace practices or actions which could cause or contribute to mental illness, and eliminate or significantly reduce the risks associated with these. 

This includes preventing bullying or harassing behaviours, ensuring that managerial staff are trained in properly dealing with performance management and with staff who are experiencing mental health issues, and even limiting situations where excessive alcohol use may be encouraged.

supporting workers who disclose a mental illness

Employers should take steps to ensure that those workers who are suffering with their mental health have access to appropriate resources, including flexibility to attend medical appointments, ease in accessing days off when necessary, and perhaps in-house counselling sessions or a mentoring program. 

When dealing with an employee who has reported their mental illness, employers should be prepared to ask questions such as: 

  • How can we help?
  • How can we make you feel more supported?
  • What are your triggers and how can we manage these in the workplace?
  • Are you coping, and if not, what strategies can we implement to help you stay on top of things?

From a legal perspective, an employer is also required to ensure that workers are not discriminated against or subjected to any adverse action because of their mental health status.

what happens if a worker doesn't disclose? 

In developing a strategy for dealing with mental health issues in the workplace, employers should consider how they can encourage workers to be comfortable in disclosing their status. This will require members of the HR team to be equipped with the skills to ask the right questions. 

Employers can also inform staff who they suspect may be struggling with their mental health about an option to seek confidential support for an Employer Assistance Program or external professional advisor.

In circumstances where an employer is concerned about a worker who is displaying symptoms of mental illness but has not disclosed any conditions, the supervisor should be appropriately trained and prepared to open a dialogue with the employee. 

Alternatively, an employer could monitor data such as employee workload, unexplained absences or lack of productivity, and seek the employee's consent to obtain medical information. Armed with this information, an employer can create a flexible environment within which each worker can be encouraged to perform at their best. 

protecting all employees

It is incumbent on employers to remember that they must balance the potential risks to all of their employees. 

Although they cannot discuss an employee's mental health status, if the employer is genuinely concerned about the potential impact on colleagues or the business itself, appropriate steps can be taken to performance manage or otherwise discipline the employee. 

However, in taking such action, it is crucial for an employer to ensure that it is poor performance or risky behaviour which is managed or disciplined, and that the worker concerned is not discriminated against on the grounds of their mental health status. 

Employers should also consider developing a mental health policy. This document can be used to demonstrate that all staff are entitled to confidential support free from discrimination, harassment or bullying, regardless of their mental health status. 

It can also be used to demonstrate that staff who are acting inappropriately in the workplace cannot simply rely on their mental illness as an excuse to endanger themselves or others on an ongoing basis. 

Key issues which should be address in the policy include: 

  • Access to confidential support and consultation for all staff
  •  Anti-harassment and bullying protocols
  • Policies and procedures relating to reasonable adjustments which may be required to assist staff with a mental illness
  • Identification of risks in the workplace and strategies for minimising the potential impact on staff if they are exposed to those risks (such as a death, or trauma in the workplace)

How can we help

Navigating your way to a mentally healthy workplace isn't easy. If you'd like assistance in encouraging a supportive work environment in your organisation, including drafting mental health and anti-bullying policies and creating appropriate performance management programs, contact us

Crossing the Line: Flirting vs Sexual Harassment

Vince Scopelliti - Wednesday, November 29, 2017

The recent media attention on sexual misconduct in Hollywood is a turning point; what may have been considered 'innocent flirting' in the 70s and 80s is increasingly being called what it is - unwanted harassment. The public condemnation of film mogul Harvey Weinstein's conduct has emboldened people to come forward with allegations of sexual misconduct against other celebrities, in what some have described as the 'Weinstein ripple effect'. 

There has been a significant shift in recent years in the way the criminal justice system conceptualises consent, and this has likewise affected the perception of harassment. 

Although the Hollywood allegations are of a serious nature, with some amounting to sexual assault and rape, they have also cast the spotlight on work relationships in journalism, entertainment, politics and the everyday workplace -'the office'. The question arises: what constitutes sexual harassment in 2017?

legal definition of sexual harassment in australia

Although many assume that sexual harassment must occur between a man and a woman, in Australia this is not the case - it can take place between persons identifying with any sex or any gender. 

According to the Sex Discrimination Act 1984 (Cth), 'sexual harassment' includes unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature - the key element being that the behaviour is not welcomed by the recipient. 

The conduct needs to be assessed from the viewpoint of a reasonable person and whether the reasonable person would consider, in all the circumstances, that the recipient might be 'offended, humiliated or intimidated' by it. 

Even more seriously, sexual assault includes a person being forced, coerced or tricked into a sexual act against their will and without their consent. If the victim is a child, it's sexual assault regardless of any apparent consent. 

In cases where sexual assault is alleged in the workplace, the complainant needs to be advised that they can make a complaint to the Police. 

Should the conduct involve a minor, it may constitute 'reportable conduct' - which is required to be reported in accordance with the relevant state legislation, as well as to the Police. 

SO, is it flirting - or harassment?

Many interpersonal interactions between employees are, particularly in their early stages, subtler and more ambiguous than clear examples of harassment. Smiles, winks, compliments, sexual innuendo and humour, suggestive glances, or even a touch on the arm or shoulder could be seen by some as innocent flirting - but perceived by others as harassment. Recipients of such behaviour may wonder whether these comments and behaviours are friendly or sinister in nature, intentional or accidental, a one-time event or likely to persist. 

When determining whether behaviour might be sexual harassment, it can be made clearer by answering some important questions, such as: 

  • Does the recipient seem uncomfortable or fail to respond to comments or discussions?
  • Is one person involved in the conversation in a position of authority?
  • Could the person making the overtures impose real professional consequences on the recipient if they were turned down?

the role of touching in sexual harassment

It is clear that engaging in unwanted touching is an even more serious offence than making offensive or inappropriate comments or suggestions. For this reason, many employers consider it prudent to ban physical contact in the workplace beyond simple handshakes. Of course, this can also have an impact on how friendly the workplace is perceived as being, so depending on your workplace, it may be more appropriate to closely monitor physical interaction rather than ban it outright. Generally speaking, however, those in positions of power such as managers or supervisors should avoid physical contact where possible. 

the role of power and status

Interestingly, studies have revealed that some men in positions of power find their roles inextricably linked to sex - meaning that they struggle to differentiate between women (or other men, if that lines up with their sexual orientation) who are sexually responsive, or who are simply being friendly. For many reasons, not least to protect a business against potential claims of harassment, employers must do their best to minimise the potential for any inappropriate conduct to occur between managers and supervisors and staff. 

So what should employers do?

Employers have a duty of care to their employees to make sure that they are safe and protected while at work. Employers must have clear policies in place on what types of behaviour are considered to be sexual harassment, and how complaints can be made. Policies should be well communicated to all staff, and staff should be educated on what is expected of them regarding behaviour in the workplace. 

In order to protect your business and staff against flirting going too far and turning into sexual harassment, contact WISE Workplace today for expert assistance with workplace investigations, anti-sexual harassment training and assistance with reviewing or drafting your policies.  

When Gender is Irrelevant: Male-On-Male Workplace Harassment

Vince Scopelliti - Wednesday, November 08, 2017

Sexual harassment and predatory behaviour can happen to anybody. When most people think about this type of conduct, it is generally in the context of male-to-female harassment or, perhaps more rarely, female-to-male harassment. However, this is simply not the case - sexual harassment can be perpetrated by anybody towards anybody. 

A recent decision of the Civil and Administrative Tribunal of NSW highlights the potential for employees to be victims of sexual harassment and victimisation in the workplace, regardless of their gender. 

The decision in Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty also affirms the entitlement of workers to financial compensation when they have been subjected to sexual harassment. 

Inappropriate behaviour

In Kordas, the worker complained about various instances of inappropriate behaviour and sexual harassment during his employment as an apprentice hairdresser working for the respondent. 

The behaviour complained of by the worker included:

  • Being told by his employer that workers were similar to racehorses because 'they need a pat on the bum to go faster'.
  • Having his supervisor tell clients that he and the worker were similar to a gay couple and that they were very 'close'. 
  • Being followed into a private area, slapped on the buttocks with a ruler by his trainer and being asked to smack him back because the trainer 'like[d] being slapped on the bum'.
  • Humiliation by the trainer when he threw a hair clip onto the ground, in the worker's opinion, because the employer wanted to see him bend over. 
  • The trainer complaining that the worker had incorrectly clipped a cape onto a client
  • Feeling harassed when the worker asked the trainer if he felt they got along and the response was yes, because 'you're my bitch'. 
  • Upon complaining to his employer and asking why he was referred to as the salon 'bitch', being told 'I used to work in a restaurant. All the boys used to grab me by my boobs'. 
  • Being grabbed around the waist and physically moved by his supervisor instead of being asked to move out of the way. 
  • Having his palm stroked in a flirtatious manner by his employer when he was handed money for errands. 

The worker had initially complained to his boss, who was also the director and owner of the business running the hair salon, about being victimised. But no action was taken, and the worker was ultimately dismissed. 

The history of complaints

The apprentice stated that he had not complained initially about the inappropriate behaviour because he had wanted to keep his job. 

However, in February 2015, the worker finally complained to the employer about various issues he was experiencing, including very low wages, ongoing harassment and feeling that he was being sabotaged. Although the employer initially promised that everything would be sorted out, he then made the above mentioned comment, likening hairdressers to racehorses. 

At this time, the worker demanded changes in his treatment, but the employer denied ever having received any complaints or personally witnessed any harassment. 

The employer then advised the worker that there were no senior staff available to continue his training and dismissed him. The stress and emotions suffered by the worker as a result of this treatment ultimately caused him to leave his chosen profession of hairdressing, working instead as a barber. 

Findings of the tribunal

Upon hearing the complaints, Tribunal Senior Member Scahill and General Member Newman commented that although the harassing behaviour was not the worst they had ever seen, it had clearly impacted upon the apprentice in a very significant way and had caused him to change his future career plans. 

The nature of some of the inappropriate behaviour was found to be sexual harassment, particularly the physical contact and comments regarding being a 'bitch' and a 'gay couple'. Moreover, the significant disparity in power between an employer or senior employee and an apprentice was such that the worker was reasonably and clearly intimidated, humiliated and harassed. 

The employing business was also held vicariously liable for the conduct on the basis that it had failed to ensure a workplace free of harassment and had failed to appropriately respond to the worker's complaints. 

The worker was awarded compensation comprising:

  • $5,000 in general damages for the sexual harassment by the employer
  • $10,000 in damages for the trainer's sexual harassment
  • $15,000 for victimisation

As this case demonstrates sexual harassment and inappropriate conduct can occur in any workplace, and between any gender. If you are concerned about a case of potential harassment at your organisation, contact us for assistance. We offer both supported and full workplace investigation services. 

Grooming, or an Error in Judgment?

Vince Scopelliti - Wednesday, October 18, 2017

No employer likes to think that one of their staff members might deal inappropriately with a client, or even could possibly commit a criminal act. But all employers need to be aware of the potential for professional boundaries to be crossed in these ways. This is particularly important for organisations that work directly with vulnerable members of society, including children, the elderly, and the disabled 

We take a look at when certain behaviours might be deemed to be significant errors of judgment, or in the worst-case scenario, grooming.

The definitions 

In NSW, the Child Protection (Working with Children) Act 2012 sets out the requirements for people who work with children. It defines misconduct involving children to include the action of 'grooming'. 

Similarly, Section 25A (1) of the Ombudsman Act 1974 (NSW) considers 'reportable conduct' to include: 

  • Any sexual offence or misconduct committed against, with or in the presence of a child, including child pornography. Grooming, sexually explicit comments and other overtly sexual behaviour, as well as crossing professional boundaries are included in the definition of sexual misconduct. 
  • Any assault, ill-treatment or neglect of a child.
  • Any behaviour, which causes psychological harm to a child, even if the child agreed to that behaviour. 

In NSW, the offence of grooming is set out in Section 66EB of the Crimes Act 1900. It is defined as behaviour by an adult who exposes a child to indecent material or provides a child with an intoxicating substance with the intention of making it easier to procure the child for unlawful sexual activity. 

A child is defined as being under the age of 16, however the maximum penalty for the offence of grooming is higher (up to 12 years), if the child is under 14. This is very similar to the definition contained in the Commonwealth Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010

By contrast, in Victoria the Crimes Amendment (Grooming) Act 2014 defines grooming as 'predatory conduct' engaged in to prepare a child for participation in sexual activity at a later time. What is relevant in Victoria is the intention in the interaction. 

For example, even if nothing sexual is ever explicitly discussed or implied, shown or raised, the conduct can still be considered 'grooming' if the person befriends a child or their parent with the intended, hidden purpose of later pursuing sexual activity. 

grooming children - examples of common behaviours

Specific instances of grooming are likely to differ depending on the circumstances, but examples could include:

  • Creating a belief in a child or group of children that they are in a special relationship with the 'groomer', whether by participating in particularly adult conversation or providing 'special' gifts or activities. 
  • Permitting testing of boundaries, such as engaging in adult or inappropriate behaviours, including jokes, sexual displays or nudity in front of a child. 
  • Establishing an inappropriate relationship outside of work, including inappropriate or excessive text, email or social media contact, or developing unnecessary and close friendships with family members. 
  • Targeting children who are particularly vulnerable due to disability, history of trauma or previous emotional, physical or sexual abuse.  

a case in point

A recent decision of the Victorian County Court highlights some of the difficulties in determining whether behaviour constitutes grooming, or simply a person creating a bond because they want to help out a vulnerable child. 

In this case, reported by The Age, a troubled student was mentored by a teacher in his mid-20's There was never any sexual contact between them, but the teacher provided numerous gifts and engaged in regular excursions with the pre-teen boy, eventually turning into 'sleepovers'.

The accounts of the boy suggest that the sleepovers included physical contact and sexual discussion, which was completely denied by the teacher. Although the teacher was ultimately acquitted of charges, his life and livelihood were destroyed.  

gROOMING THE ELDERLY - FINANCIAL ABUSE

Another, less well-known example of grooming involves a specific type of behaviour, by carers or medical staff, towards elderly patients. These actions are designed to foster unnaturally close relationships between the caregiver and the client, with the intention of obtaining financial gain. This could occur through:

  • Traditional theft, such as taking money or items from a client's room.
  • Misusing financial information, such as PIN numbers or cheque books, to take out unauthorised funds. 
  • In extreme cases, procuring powers of attorney, or ensuring inclusion into wills in order to obtain a significant portion or the entirety of a financial estate. 

THE DIFFERENCE BETWEEN GROOMING AND AN ERROR IN JUDGMENT

A finding that behaviour constitutes grooming, as opposed to a simple error of judgment, is likely to depend on the intention and the degree of the wrongdoing. Circumstances, which could contribute towards a finding of grooming include:

  • Whether an action is a 'once off' or a repeated pattern. For example, one ill-considered movie outing between a teacher and a student, or a series of meetings outside school hours. 
  • Whether there is any ulterior motive, particularly a sexual one, or if a decision was simply made rashly.
  • Whether the person in a position of authority intentionally pursued or sought out a relationship with the vulnerable person. 
  • Whether there may be a reasonable alternative explanation for the behaviour.
  • Whether there was a request/coercion for the vulnerable person to keep any aspect of the relationship secret.
  • Whether there was repeated conduct despite previous warnings from supervisors/managers. 

why codes of conduct are important

If your organisation works with vulnerable persons such as children, specific Codes of Conduct, which set out the professional boundaries expected between staff and clients, and the consequences for any breach of these, can be very useful. 

If you require assistance drafting a Code of Conduct, which meets all of your organisation's needs, or have received a complaint that professional boundaries may have been crossed in your workplace and need to undertake a workplace investigation, contact WISE Workplace. We offer full or supported investigation services and can also assist with investigation training, awareness training.