The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.

Social Media Misconduct: The Need for a Fair Investigation

Vince Scopelliti - Wednesday, June 19, 2019

An ever-increasing key dilemma for employers in the modern age is how to deal with the misconduct by staff through their use of social media platforms. 

The list of potentially offending conduct is lengthy. For example, staff might call in sick but then post details of their activities on social media. Employees could post inappropriate, defamatory or confidential information on their accounts. One high-profile example is the sacking of a PayPal executive in 2014 who publicly ranted about his co-workers on Twitter, or more recently the well publicised matter regarding Israel Folau and his instagram post. 

Given such a potential minefield, we look at what employers should do to ensure a fair investigation relating to allegations of social media misconduct.

procedural fairness key in australian case

The matter of Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186 highlights the importance of ensuring that an investigation is thorough and involves appropriate levels of procedural fairness. This requirement applies in social media misconduct, as in all other cases.

Mr Singh was dismissed from his role as a baggage handler in October 2015. Although the reasons for his dismissal were not made immediately clear to him, after proceedings had been issued in the Fair Work Commission, the employer alleged that Mr Singh had breached its social media policy by publicly supporting ISIS and known associates. 

It was also claimed that he had made radicalised comments against the Australian Government. Of particular relevance and concern was Mr Singh's status as an airline employee. 

Before he was terminated, Mr Singh was advised that there had been complaints involving his social media posts and that there would be an investigation. However, Commissioner Hunt found no evidence that Mr Singh was told he could bring a support person to the investigation meetings. Further, although the termination related to a number of posts on social media, Commissioner Hunt accepted that not all posts were shown to Mr Singh for his response. 

Factors in the decision

Relevant factors taken into account by the Commission in determining whether conduct occurring away from the workplace can invoke disciplinary action, include conduct that is: 

  • Likely to cause serious damage to the employer/employee relationship; or
  • Damaging to the employer's interests; or
  • Incompatible with the employee's duty as an employee. 

Before the Commission, Mr Singh's evidence was to the effect that he was against ISIS and radical Islam, and that his comments had been sarcastic. 

the outcome of the case

It was concluded that the employer had not spent sufficient time investigating whether or not Mr Singh was in fact opposed to ISIS. Commissioner Hunt accepted, that if there had been sufficient evidence to demonstrate that Mr Singh had a radicalised perspective on Islam, there would have been too great a risk for an employee with these views to continue working at the airport. 

However, it was determined that in the circumstances the employer should have gone to greater effort to investigate Mr Singh's Facebook newsfeed. If that had occurred, it was considered that it would have been clear that Mr Singh's claimed sarcasm was the true motivation behind his postings. 

Accordingly, the Commission determined that, if a proper investigation had taken place, it would have been apparent that Mr Singh was not radicalised. Therefore, Mr Singh's dismissal was deemed harsh, unjust and unreasonable. 

Instead of terminating his employment, it was considered that an appropriate disciplinary action commensurate with the misconduct would have been reiterating the social media policy of the employer and insisting that Mr Singh refrain from posting incendiary material.

need help in ensuring a fair investigation? 

This case demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action. In unfair dismissal claims, the Commission will not hesitate to award judgments in favour of the applicant where it is determined that the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair and enforceable, WISE Workplace provides investigation services, as well as 'conducting workplace investigations' training. 

Legal Professional Privilege and Workplace Investigations

Vince Scopelliti - Wednesday, April 10, 2019

When a workplace investigation is required, there may occasionally be good reason to seek legal professional privilege regarding the findings. This is particularly the case in matters that may require criminal investigation, such as fraud, theft or sexual harassment. 

So, is it sufficient to engage a law firm when undertaking workplace investigation if you wish to attract legal professional privilege? We take a look at the what privilege means, and its role in investigations.

what exactly is legal professional privilege? 

The concept of legal professional privilege means that communications between an employer and their engaged lawyers are confidential and need not be disclosed, for example to another party or in a court, if the communications have been created for the 'dominant' purpose of providing legal advice or in anticipation of legal proceedings.  

What is the significance of legal professional privilege? 

In many circumstances, an employer's inner workings and thought processes may be something that is best kept private. Ultimately, the key purpose of legal professional privilege is to permit employers and other parties, such as external investigations, to freely discuss information with their solicitors in order to obtain legal advice, without being concerned that the material will form evidence in legal proceedings. 

Employers may wish to maintain privilege and keep parts of certain documents confidential if, for example, there are issues with disclosing identities of complainants or witnesses, or permitting potentially inflammatory or commercially sensitive information being disseminated through the workplace and beyond. 

how can workplace investigations attract legal professional privilege? 

If an organisation wishes to obtain privilege over communications, it is not sufficient simply to engage a law firm to undertake or oversee the workplace investigation. The law firm's engagement must be able to be demonstrated as being for the dominant purpose of preparing for imminent legal proceedings, or providing advice in relation to those proceedings.

This was demonstrated in the decision of Gaynor King [2018] FWC 6006, in which Commissioner Wilson determined that the engagement of law firm Minter Ellison to conduct an investigation, under the auspices of providing legal advice, was really an investigation into workplace conduct within the employer council's policies and procedures. Accordingly, it was determined that legal professional privilege did not exist in those circumstances.      

loss of privilege

Legal professional privilege can be easily lost or waived. This can occur if a party explicitly states that they waive privilege, or if they provide a document to another party which would ordinarily attract privilege. It is important to note that it is generally irrelevant if the information was intentionally or accidentally provided - once that has occurred, it is hard to argue that the privilege should be maintained. Further, if a party attempts to rely on the contents of a document, it is rare that privilege will be successfully kept over the document. 

This was the case in the decision of Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517, in which the employer attempted to rely on the contents of an investigation report but did not wish to disclose it. It was held that relying on a document without providing access to Mr Bartolo was unfair, and the document had to be produced. 

WISE Workplace is highly experienced across all steps of the investigation process, including legal professional privilege implications. If you are seeking a robust, defendable investigation, contact us today!      

When to Use an External Investigator

Vince Scopelliti - Wednesday, April 03, 2019

Using in-house resources to sort out organisational problems certainly makes a lot of sense. HR departments tend to be well equipped to receive and manage internal complaints, facilitating solutions as they go. 

But while sourcing external assistance can seem unnecessary, there are certain serious workplace situations where calling in specialist investigative expertise will be the preferable solution.  

Internal or external: making the decision

When an event in the workplace requires investigation, questions arise that require timely answers. One of these will be - who should carry out the investigative process? Less impactful events such as personal differences, disputes or general rumours might naturally fall to an internal workplace investigator. After all, they will have inside knowledge of the culture and dynamics that possibly led to these ripples and allegations. 

Yet when alleged events are more serious in nature and/or the scope of the problem is potentially vast, engaging the expertise of a specialist external workplace investigator can not only relieve the internal workload. It can also mean the difference between smooth resolution of a workplace situation - or the unfortunate escalation of a matter into the costly adversarial realm. The more serious the allegation, the more important it can be to secure professional advice.    

workplace investigations - pitfalls to avoid

Whether internal or external, workplace investigators work hard to carry out investigations fairly and efficiently. In a well-run investigation, all involved will be treated in a professional and objective manner, with no overt bias towards one party or another. 

Yet unfortunately perceived bias can be just as damaging to the final collated report. One pitfall with using an internal investigator is that a perception might arise that one party was favoured over another, due to position, workplace friendship, or longevity within the organisation - just as examples. 

Similarly, if an internal workplace investigation is rushed or not provided with sufficient resources, outcomes can be similarly tarnished. It can be tempting to keep things in-house in order to save money. Yet in the long run, the overall quality of the investigative report can be tarnished, leading to the high likelihood of expensive actions by the aggrieved party.  

the expert investigator 

A further consideration when deciding whether to engage an internal or external investigator is the level of expertise. Invariably, internal investigators have other tasks and roles that take up their time in organisations. 

This is not the case for external workplace investigators. As trained professionals they have the in-depth specialist experience and up-to-date knowledge that is necessary for a fair and impartial investigation. For example, maintaining confidentiality within and across the workplace is a challenging task. An external investigator has the ability to coordinate the process in such a way as to preserve the integrity and confidentiality of all discussions.

The investigator's capability is particularly important when it comes to both the finality and reliability of the investigative report. Should an appeal of the decision eventuate, commissions, tribunals and courts will expect to see a level of thoroughness and objective detail that demonstrates adherence to the principles of procedural fairness throughout. 

In the 2017 matter of Anthony King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017], the Fair Work Commission certainly made it clear that imperfect investigations will be viewed dimly, stating: 'some investigation reports seen by the Commission in this jurisdiction fail to get to the heart of such a situation and rarely undertake a true balancing of the evidence seen by them'. 

Support and expertise

Yet it need not be a black-and-white choice between an internal or external workplace investigator. It is possible to access a supported investigation service. In this framework, the organisation gains assistance from an expert regarding the more complex aspects of the process, while carrying out other tasks internally. 

WISE Workplace is able to offer both full and supported investigation services. If you are concerned about making an error or a lack of knowledge in conducting your own investigation, or would like to train your staff in conducting workplace investigations, contact WISE today.  

The Legality of Recording Conversations

Vince Scopelliti - Wednesday, March 20, 2019

How many times have you wished you had a record of a conversation? Perhaps you would have liked evidence of what was said, or you would have appreciated being able to play a conversation back for training purposes. 

Whatever the reason, we examine the legality of recording conversations in Australia. 

when can you record a conversation?

The legality of recording a conversation in Australia depends entirely on the jurisdiction. Each state and territory has separate legislation which sets out the law on surveillance and listening devices. 

Residents of Victoria, Queensland and the Northern Territory may be concerned to learn that there is no legislation prohibiting the recording of a private conversation (as long as the person recording is involved in that conversation). By contrast, recording conversations without permission of all parties is prohibited in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. 

Regardless of the jurisdiction, there is a prohibition on persons who are not party to a conversation, secretly recording or using a device to listen in on a conversation (with the exception of law enforcement). The obvious example here would be listening or recording devices being covertly installed in hotel rooms. 

what about recordings in the workplace? 

Conversations in the workplace come under the same legislation, which means whether or not it is legal to make a recording depends on jurisdiction. Covert recordings are against the law in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. But employers in Victoria, Queensland and the Northern Territory are permitted to record termination conversations, for example, without advising the employee that they are doing so. This recording can then be used to demonstrate that the employee was afforded due process prior to their termination. 

It is also legal for an employee in these states to record a conversation they are having with a colleague. However, it is important to note that, even though the recording of such a conversation may not necessarily be a criminal act, it is certainly frowned upon in the workplace. 

This was highlighted in the Fair Work Commission decision of Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878

In that decision, Mr Gadzikwa took a period of unpaid sick leave arising from a mental health condition. After a certain time, that leave was deemed to be unauthorised, and he was ultimately dismissed for non-performance of duties. 

During the course of the hearings, Mr Gadzikwa (who worked in Victoria) admitted that he had developed a practice of secretly recording conversations with his colleagues. While it is relevant that this practice did not form part of the employer's motivation in terminating Mr Gadzikwa's employment, the employer did submit that this was an inappropriate practice, regardless of Mr Gadzikwa's contention that he recorded conversations 'to protect himself'. 

Deputy President Colman criticised Mr Gadzikwa for his actions in doing so, noting that secret recordings are 'unfair to those who are being secretly recorded'. Ultimately, in the absence of any decent justification for recording the conversations, Deputy President Colman determined that Mr Gadzikwa's actions in doing so effectively diluted points in his favour which would have suggested that he had been inappropriately terminated.

covert recordings inadvisable at work

The warning contained in this decision is clear: everybody in the workplace, whether employer or employee, should be aware that even if it is not illegal to secretly record colleagues, bosses, or staff members, it is considered inappropriate, and may have negative ramifications in any dismissal or similar proceedings. If an individual has formed the view that a recording of a conversation is appropriate and necessary, the other participants should be advised in advance that the conversation is to be recorded, so that any objections can be voiced. 

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct and the surrounding legal issues. If you are looking for assistance to help navigate the challenging and complex issues of workplace misconduct, contact WISE today.

Briginshaw Applied: Weighing Up The Evidence

Vince Scopelliti - Wednesday, February 13, 2019

For those involved in workplace investigations, one court case seems to be of central importance - Briginshaw v Briginshaw. Interestingly, this 1938 case is actually about alleged adultery in the context of divorce! So the question immediately arises - why do the concepts in Briginshaw seem to hold sway in the context of workplace investigations? 

In a nutshell, the Briginshaw principle acknowledges that evidentiary requirements in civil cases will necessarily vary, depending upon the gravity of allegations made. Yet it is also important to know the difference between Briginshaw and the actual standard of proof that applies in all civil cases, such as workplace wrongs - namely the balance of probabilities.

is the balance of probabilities the same thing as briginshaw?

To speak of the Briginshaw 'standard' can cause unnecessary confusion. It is the balance of probabilities that is the standard of proof in civil matters, such as workplace disputes. The Briginshaw principle simply helps courts and tribunals to evaluate available evidence when considering this standard - particularly where serious accusations are made.

Think of the types of grave allegations or proposed actions that can occur in civil contexts: child sexual abuse, the need to deprive a mental health patient of their liberty, being labelled as a bully or harasser in the workplace, and so on. 

In such serious matters, it is clear that available evidence must be strong, cogent and objective. Thus while the standard of proof always remains the same, the Briginshaw principle requires serious allegations to be backed by particularly compelling evidence.

serious allegations - establishing the facts 

In Natalie Bain v CPB Contractors Pty Ltd [2018] FWC 6273 (9 October 2018) the plaintiff's colleague Mr Skinner accused Ms Bain of trying to hit him while she was driving a heavy truck at full speed. The Commission expressed concern at the very grave nature of these accusations, and the severe consequences for Ms Bain should such facts be established. 

In assessing the evidence both from Mr Skinner and two witnesses, Senior Deputy President Hamberger described Mr Skinner's evidence as 'inherently implausible', noting that he also had 'reason to seriously doubt the veracity of the evidence' put forward by two alleged witnesses.

SDP Hamberger provides an excellent nutshell summary of Briginshaw: 'Consistent with the principle in Briginshaw, therefore, one would need very good evidence before accepting that such an allegation is true on the balance of probabilities.' 

When we consider the task of a workplace investigator, the principle in Briginshaw - as we have seen played out in the Bain matter - requires investigators to ensure that all evidence is elicited in a manner that is mindful of fairness and veracity. Bain reminds us that poorly presented allegations and unreliable witnesses will hamper any attempt to prove, on the balance of probabilities, that an event actually occurred. Investigators need to bear in mind that the quality of evidence obtained can seriously affect success in later proceedings.

an unfortunate reaction

In Shakespeare v Director General, a NSW teacher alleged as part of her grievance that colleagues had deliberately or recklessly exposed her to items - oranges and mandarins - which caused a severe allergic reaction. The implication was that fellow teachers had deliberately or recklessly placed Ms Shakespeare in medical peril - something that the worker strongly believed to be true. 

However, the NSW ADT stated that even though a party might believe passionately that they have been seriously wronged, this is not sufficient in itself to meet the necessary standard: 'we see no reason to doubt the sincerity or the strength of [the teacher's] belief that she was the victim of deliberate conduct. But this belief on her part, standing alone, does not constitute probative evidence on the question.' 

Making defensible findings 

This is a good reminder of the need for workplace investigators to elicit cogent, comprehensive and objective evidence from a number of sources when making findings. In the face of serious allegations, numerous sources of data and testimony should be gathered prior to findings being made. 

Distinguishing Briginshaw from the standard of proof might seem like splitting hairs, yet a solid understanding of Briginshaw in action will assist investigators to gather and analyse evidence fairly and correctly. 

If you are unsure of how to use Briginshaw when making findings for investigations, WISE provides independent, supported investigation services. Contact us today!

Why Counter Allegations Must Be Investigated

Vince Scopelliti - Wednesday, February 06, 2019

In the usual course of workplace investigations, it is often one person's word against another's. This is particularly the case when a serious allegation such as sexual misconduct has been made, and there are unlikely to be any witnesses to the event. 

When a serious allegation has been made, often the 'accused' then makes their own claims against the accuser, resulting in cross and counter-allegations.

the difficulty this causes for investigators

Occasionally, counter allegations are made immediately after the investigation is made known to the respondent, and this can make it more difficult for even the most experienced investigator to determine the true course of events leading up to that point. Counter-allegations also sometimes surface once an investigation is already in progress, making it harder for investigators to discern whether they are legitimate or simply made with the objective of revenge. 

The most important thing is that each allegation should be investigated independently. 

the danger of not investigating counter complaints 

A recent decision of the Fair Work Commission demonstrates the importance of ensuring that all allegations are thoroughly and independently investigated, regardless of the circumstances in which they are made. 

In the decision of Watts v Ramsay Health Care it was determined that an employer's failure to investigate complaints of bullying was in itself a form of bullying. 

In these circumstances, Ms Watts repeatedly advised her employer that she was feeling harassed and bullied by her peers, including her co-workers making accusations of Ms Watts smoking cigarettes past her allocated break, smelling of alcohol and failing to perform her duties adequately. 

Ms Watts raised those concerns in the context of a formal investigation by her employers into her own conduct. 

However, her employers failed to investigate Ms Watts' counter complaints on the basis that there was insufficient information and evidence to support Ms Watts' allegations, against a background where she did not name the offenders. 

The Fair Work Commission ultimately determined the failure to investigate the bullying investigations was an inappropriate and unreasonable management decision, and a breach of the employer's own discrimination, bullying and harassment policy.

what are the key lessons?

Perhaps the most important aspect of undertaking fair workplace investigations is ensuring that internal policies are followed, in particular focusing on:

  • Determining and implementing the threshold requirement for commencing an investigation, for instance requiring a formal written complaint before management action can be taken;
  • Being flexible in interpreting the information provided and not imposing arbitrary minimum standards, for instance requiring direct evidence of wrongdoing;
  • Taking into account the context surrounding the making of the allegations. 

 Employers and management should also ensure that they do not make early judgments or allow themselves to be biased in the context in which the allegations are made. In the case of Ms Watts, for example, her employers appear to have judged her allegations on the basis that they were made during the course of her own performance management process. 

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

Learning HR Lessons from Real World Cases

Vince Scopelliti - Wednesday, January 30, 2019

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

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

volunteers can pursue bullying claims

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

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

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

employer's failure to consider mental health

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

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

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

Recommendation of workplace culture improvement plan

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

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

age discrimination 

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

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

reasonable management actions vs workplace bullying

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

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

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

Putting the 'Reasonable Person' to the Test

Vince Scopelliti - Wednesday, December 19, 2018

When determining what led to a certain set of events or making an important decision, it is essential for investigators and decision makers to have regard to an objective standard. 

In trying to get to the bottom of a situation or establishing an appropriate course of action, relying on the 'reasonable person' ensures that a broader perspective is taken. 

We look at exactly what this involves and how it can assist in achieving a fair and balanced outcome.  

What is the reasonable person test?

In Australian law, the reasonable person has been characterised as "the man on the Bondi tram" - an average member of society, who has various generalised attributes including risk aversion, sound judgment and a sense of self-preservation, which prevents them from walking blindly into danger. 

This reasonable person standard can be used to put a situation in context and to ensure that the decision maker does not rely on his own, perhaps limited or skewed, perspective. 

In a workplace investigation, taking the reasonable person test into account will assist an investigator in determining whether a respondent's conduct is reasonable or appropriate in the specific circumstances, and whether the complainant is being reasonable in their response or in feeling affronted or aggrieved.

a practical application of the test

One circumstance in which the reasonable person test was applied was in the Fair Work Commission's judgment in CFMEU v MSS Strategic Medical Pty Ltd; MSS Security Pty Ltd. In that case, the worker objected to the discipline imposed on her in relation to a number of performance issues, including: 

  • Breaching safety procedures by climbing on top of a water tank.
  • Slamming a refrigerator door.
  • Unsafely removing a splinter.
  • Not going home when she was unwell at work.
  • Acting inappropriately during an emergency response debrief.
  • Proving an incorrect response in relation to an eye treatment test.
  • Removing statistical information without authority and lying about it.
  • Being disrespectful to a colleague.  

Applying the reasonable person test, Commissioner Gregory found that the issues complained of were trivial, not worthy of discipline, and most importantly a reasonable person would not have responded with the same level of discipline in the same circumstances.

WHAT can we learn from this?

The reasonable person test has significant utility in the workplace context and it is important to remember that its application differs depending on the circumstances. 

For example, the response of a 'reasonable person' in a Chief Surgeon's position to any given situation is likely to differ substantially to that of an Assistant in Nursing. The question is: What would a reasonable Chief Surgeon in those circumstances have done? 

Similarly, higher standards of reasonable behaviour must necessarily be applied to those in more senior roles or with greater levels of responsibility. 

obtaining assistance with investigations 

When allegations of misconduct arise, the possibilities for distress to workers are extensive. 

If you are conducting an investigation, are unsure of what standard to apply, and are hoping to avoid a costly mistake, contact WISE today. We can conduct a full investigation or alternatively support your organisation in the investigation process.    

Dealing with Absconding Staff over Christmas

Vince Scopelliti - Wednesday, December 12, 2018

The Christmas period tends to bring out the best- and worst - in people. It is a time of year filled with parties, merriment, laughter, great weather and a lot of socialising. 

But Christmas can also be a challenging time in the workplace, as employees may engage in inappropriate conduct at work related social events, may suffer the after-effects of excessive partying or may be generally less productive or effective than usual. 

It can also result in staff not turning up altogether. We take a look at what employers should do if staff abscond from their roles over the end of year period.

Absenteeism, absconding and desertion: what's the difference? 

Many workers may be tempted to add to their public holidays by taking additional days off after Christmas, especially if they feel that they have been unfairly denied leave over the Festive Season. 

Workers 'pulling sickies' without consent is a type of absenteeism. In order to avoid situations where staff are calling in sick for less than legitimate reasons, employers should remind staff that the usual sick leave policies apply over Christmas. 

Employees must obtain doctor's certificates or other acceptable evidence of genuine illness, even though it may be an inconvenient time for them to do so. It should also be reiterated that failing to attend work after key social functions - such as the annual Christmas party - will be frowned upon and could result in disciplinary consequences. 

Unauthorised leave is a serious enough matter, but what happens if the absence drags on? An employee 'absconds' from work in circumstances where they have been absent, without explanation, for sufficiently long that the employer is entitled to infer that they have no intention of returning. This would apply if the employee has failed to attend for a number of days, without making contact with the employer (who has been unable to make contact in return). 

In cases of desertion, an employee implicitly or explicitly demonstrates that they have no intention of returning to work. Advising co-workers that they will not come back from leave, emptying their work station of personal belongings, and failing to respond to attempts to contact them are all signs of desertion.  

what steps should an employer take?

Although it is generally clear by implication that an employee has no intention of returning to work, employers must still follow due dismissal procedures to ensure that the employee is terminated correctly and fairly. 

This requires several documented attempts to contact the employee. Initial contact should be by phone, followed up by written correspondence notifying that the employee's position will be terminated if they do not explain their actions and return to work immediately. Written correspondence should be sent both to a personal email if possible, and the employee's registered postal address.

what the fair work commission says

A Fair Work Commission decision handed down in January 2018 noted that an employee's absence from work, without consent or notification, for three working days or more constituted sufficient evidence of abandonment. 

If an employee has not provided a satisfactory explanation for their absence within 14 days of their last attendance at work, an employee will be deemed to have formally abandoned their employment and their position will be considered to have been duly terminated. 

why do employees abscond?  

Although the reasons for employees absconding are many and varied, some examples are:

  • They have obtained employment elsewhere (and accordingly do not feel that they have any need for positive references);
  • They are dealing with personal issues which exceed their desire or ability to be present at work over the holiday period; 
  • They feel that they have engaged in particularly embarrassing or career limiting behaviours over the festive season. 

In particular, the Christmas period often makes people re-evaluate their life decisions and take stock of what they want (and don't want) in the New Year. Terminating a working situation that doesn't suit them, could potentially be at the top of their list. 

How to keep staff engaged and avoid staff going AWOL

Although most organisations strive to be an employer of choice throughout the year, it is important for staff to be reminded at the end of the year that they are valued, and their hard work has been appreciated. 

Celebrate the achievements of the past year, and if appropriate, reward staff with a festive bonus. Organisations should also strive to offer a fun, slightly more relaxed environment over the festive season. This might include offering extra snacks in staff common areas, and holding informal social events. This can carry over into the New Year, to help ease the way back into work. Another suggestion is to allow staff to dress casually in January and keep things fun with a holiday photo competition or barbecue lunch. 

Employers should approach the festive season proactively, reminding staff of the conduct expected of them, and the requirements around leave during this period. If your organisation encounters an issue with staff, WISE investigates matters of misconduct and can assist in establishing the facts. Contact us for an obligation-free investigation quote.