How to Take Action when Employees and Alcohol Mix

Vince Scopelliti - Wednesday, March 27, 2019

Alcohol and workplaces never mix well. No matter the sort of work they do, employees should not be in the workplace when they are under the influence or still suffering the effects of alcohol consumption. This includes drinking at work or immediately before starting work, and those who are still impacted by a big night out. 

So what steps should an employer take when dealing with a worker who they suspect is intoxicated in the office?

approaching an intoxicated employee

Occupational health and safety legislation throughout Australia places an obligation on employers to protect not only the safety of the intoxicated employee, but that of all other employees as well. 

This means making sure that an intoxicated employee can't hurt themselves or anyone else. Accordingly, employers have an obligation to approach intoxicated employees and ask them to leave work immediately (without driving a vehicle, of course!). 

However, being intoxicated at work does not necessarily mean that employees can be terminated immediately. When determining whether a dismissal for intoxication in the workplace is 'valid' or can be upheld, courts will consider several factors. These include whether the company's drug and alcohol policy or any contractual arrangements in place with the employee are sufficiently clear to demonstrate that there is a 'zero tolerance' policy for alcohol in the workplace. 

Although employees should certainly be disciplined for being intoxicated at work, employers who are wishing to avoid claims for unfair dismissal should consider interim steps such as clearly worded warnings rather than summarily dismissing staff.

factors that may contribute to alcohol abuse

Of course, prevention is always better than cure. Employers should give some thought to factors that may encourage their staff to over-indulge in alcohol to the extent that they are intoxicated in the workplace. 

Key risk factors include:

  • Age, gender and socio-economics. According to the Alcohol.Think Again campaign, young men who work in lower skilled or manual occupations are statistically most likely to be involved in 'risky drinking'.
  • Isolation (geographical isolation or social isolation within work peer groups)
  • Bullying, harassment and other interpersonal difficulties
  • Poor supervision, or support in the workplace
  • Difficult working conditions
  • High levels of stress 

How alcohol use can impact the workplace

An intoxicated employee can pose a risk to the safety of themselves and others. This is magnified when the employee is in a customer-facing role, or they are required to do manual work involving precision or machinery. 

Regardless of the nature of the work however, job performance can suffer as a result of the poor concentration and low productivity that will likely result from intoxication.

Steps to address alcohol use in the workplace

In addition to mitigating workplace risk factors, employers should ensure that they have clear and detailed drug and alcohol policies which identify under what conditions an employee would be determined to be 'intoxicated'. Policies should also clearly spell out the consequences of breaching those conditions. 

Employers must ensure that any breaches of the policy are thoroughly and objectively investigated, and any required disciplinary action is taken swiftly. 

If you would like to know more about risk management and creating effective drug and alcohol policies, or you require assistance with investigating an incident involving an intoxicated employee, contact WISE today.

How to Transform a Toxic Workplace for a Productive 2019

Vince Scopelliti - Wednesday, January 09, 2019

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

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

signs your workplace culture is toxic

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

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

identifiying a toxic employee

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

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

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

strategies for implementing a better culture

You can deal with a toxic workplace by:

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

WHERE DO I START? 

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

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

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

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

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

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

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.  

Work Christmas Parties: 3 Tips for a Fun Festive Function

Vince Scopelliti - Wednesday, November 14, 2018

It's the end of a long year. Employers and staff alike have worked hard and are looking forward to the opportunity to catch up, celebrate, network and relax.

The work Christmas party is often anticipated as an ideal way to farewell the working year, reward staff, and anticipate the year ahead. However, employers must understand that a successful - and incident-free - Christmas party is dependent upon good planning and a sound understanding of the unique risks of work-related events. 

We provide our three best tips for ensuring a fun, safe and low-risk festive event. 

1. uNDERSTAND YOUR UNIQUE OBLIGATIONS 

One unfortunate mistake that we see in December is employers putting on a 'knees up' for staff without fully understanding the obligations involved. Importantly, it is not only parties held in the workplace that require careful consideration of an employer's legal obligations to staff. Festive functions that are off-site, yet employer sanctioned generally attract the full suite of workplace legalities. Required attendance or strong encouragement to attend, combined with free catering and in-built networking opportunities can all indicate that the Christmas party is indeed a work-related event, wherever it might be held.

Workplace safety usually brings to mind ideas of trip hazards and work station alignment. However, when it comes to the work Christmas party, some hazards are very particular. An open bar is a definite no-no. While some staff might groan about the lack of generosity, the relationship between alcohol and poor Christmas party behaviour is well-documented. It is no laughing matter for those employers who are faced with issues of alleged harassment, staff abuse and injury to workers in the wake of a Christmas 'cracker'.

2. Prepare, Prepare and prepare!

Clear communication to all staff about the nature of the upcoming Christmas party is essential. Without seeming like a kill-joy, it is important to outline in writing the expected behaviour of staff, venue rules and general housekeeping such as the end time of both the bar tab and the function itself. A good idea is to build a basic run-sheet into the invitation. Indicate a start time, any speeches and awards, food presentation, bar hours and offerings and close of proceedings. Preparing staff mentally beforehand will discourage untoward behaviour. 

The importance of limiting alcohol and providing professional function staff at Christmas parties was made painfully clear in the recent case of Sione Vai v Aldi Stores. An inebriated worker became extremely agitated when refused service of alcohol by a responsible bar worker. 

As part of his inappropriate and drunken behaviour, the employee threw a full glass of beer towards a security officer, which sprayed co-workers before smashing into a lamp. He was later dismissed. In appealing this decision, the worker claimed that he lost his job as a direct result of this employer-sanctioned party. 

However, Commissioner David Gregory considered that the provision of professional security and bar staff - trained in Responsible Service of Alcohol (RSA) - as well as a limited supply of alcohol all indicated that the employer had acted with care and diligence. The dismissal was upheld. 

3. respond swiftly to christmas party incidents

As seen in the above case study, preparation and quick action at the time of the function is essential. The aftermath of the party is also a crucial time to consider any necessary responses to incidents that come to light, whether by rumour or direct report. Unfortunately, sexual harassment, verbal abuse, alcohol-related injuries and culturally inappropriate behaviour can all rear their ugly heads at the very function that is designed to foster fun, camaraderie, reflection and unity. Employers should swiftly respond to any Christmas party incidents, ensuring that matters are investigated in a fair, professional and transparent manner. 

decking the halls (safely!)

Equipped with a strong understanding of legal obligations, some sound preparation and prompt responses to any incidents, employers can create a Christmas party that is enjoyable, safe and memorable for all the right reasons. 

If you need assistance to prepare for your Christmas party, or dealing with any issues, which arise from the Christmas party, contact WISE for assistance

Managing Mental Illness in the Workplace

Vince Scopelliti - Wednesday, October 17, 2018

What can employers do to support and effectively manage employees who may be struggling with their mental health?

With an estimated one in five Australian adults suffering from a mental illness in any given year, this is becoming an increasingly important question for organisations to answer. 

From talking to an employee with a mental illness to addressing performance concerns, here's how employers can help support workers with mental health issues. 

how to talk about mental illness with a worker? 

Employers can't be expected to be experts, but when speaking with an employee about a mental health issue, it is helpful to have a basic understanding of the condition in question. This might include any symptoms, specific terms that relate to the condition and types of medications the employee is likely to be prescribed. 

How conversations are framed is crucial - employers should refer to employees as 'having' mental health conditions, as opposed to 'being' schizophrenic or depressed. Employers should also understand the difference between episodic and chronic mental health issues. 

Prior to conversations with employees about their mental health, employers need to ensure that they are prepared, have planned what they wish to discuss and offered the employee the opportunity to bring a support person with them. Employers may also make use of the assistance of a qualified mental health professional when approaching these meetings. 

concerns regarding an employee's mental health

While a physical injury might be obvious, it can be much more difficult to determine if an employee is struggling with their mental health. It is important for employers to remember that there isn't always an obligation for employees to disclose their mental health status. 

In these circumstances, an employer concerned about an employee's mental health can speak confidentially with them and advise them that they may be able to access support from a formal Employee Assistance Program (EAP). The employer may also wish to ask whether there is anything that they can do to modify or improve the workplace to assist the staff member. 

what to say to other employees

If an affected employee has volunteered details of their mental illness, and has agreed to disclosure, employers may wish to sensitively and respectfully disseminate information about the specific condition, or even arrange for mental health specialists to attend the workplace and provide information. 

Employers must not breach an affected worker's privacy and disclose matters that are personal to them. On some occasions, however, an employee's mental health condition may potentially impact other colleagues, or health and safety and must be disclosed. 

When a disclosure has been made, employers need to ensure co-workers:

  • Are supported in relation to any increased workload arising from their colleague's absence;
  • Have their concerns addressed and discussed in an appropriate forum;
  • Are offered access to internal or external counselling services;
  • Are protected from possible harm. 

Making reasonable adjustments

Workers who are struggling with mental health issues may find that they are able to contribute in a much more substantial way if their employer is prepared to make reasonable adjustments. These could include:

  • Flexible working hours or working from home arrangements
  • Moving an employee's physical location (i.e. into a quieter area, closer to a window, away from a co-worker who is triggering their condition)
  • Permitting employees to record meetings or take electronic notes if they are concerned about their memory. 

Addressing performance concerns

When an employer has concerns about an employee's capacity or capability to perform their duties, it is appropriate to apply the organisation's standard performance management system, and provide support to assist the employee. This support should be offered regardless of whether or not the employee has disclosed a mental health condition. 

Employers should consider:

  • Personal circumstances that may contribute to a worker's performance issue, as would be the case for all workers; 
  • Whether a mental illness may be contributing to the poor performance;
  • The seriousness of the performance concern (as for more serious matters, such as violence, there may be no option but to take strong disciplinary action regardless of whether there is a reason, such as a mental illness); 
  • Whether the performance concern relates to a key part of the job or whether reasonable adjustments can be made;
  • Encourage and enable the worker to discuss the performance concerns and whether there are any health issues that may have impacted on their performance. 

If the concern doesn't resolve and the adjustments don't work, employers may need to revisit the issue at a later date. 

If you'd like more information, check out our series of articles on this topic, starting with Mental Health in the Workplace. WISE can also assist with drafting and implementing policies and guidelines around disclosure, reasonable adjustments and speaking to colleagues about mental health.

Job Stress, or Psychological Injury?

Vince Scopelliti - Wednesday, October 03, 2018

Being aware of job stress, and proactive about its potential effect on staff and their ongoing mental health, is an important component of ensuring employee satisfaction and OHS in any business. 

But it is crucial not to confuse job stress with a psychological injury, which may or may not have been caused by the work environment. 

the difference between the two

A psychological or mental disorder includes a range of cognitive, emotional and behavioural symptoms which ultimately interfere with an employee's functioning and can significantly affect how they feel, think, behave and interact with others. 

This is to be contrasted with job 'stress', which can be better described by referring to physical and emotional symptoms arising in work situations. 

For example, an employee who is experiencing conflict with their manager and feels mildly apprehensive about working shifts with the manager, including feeling physical symptoms such as a slightly increased heart rate or perhaps perspiration, is likely to be suffering from job stress. 

An employee who has sustained a psychological injury may well experience 'stronger' symptoms more commonly associated with a diagnosis of anxiety or post-traumatic stress disorder arising from their interactions with their manager. 

Examples of psychological disorders

Psychological disorders can generally be grouped into three types: mood disorders (such as depression or bipolar disorder), anxiety disorders (including anxiety and post-traumatic stress disorder), and psychotic disorders (such as schizophrenia or borderline personality disorder). 

There is a wide spectrum according to which the severity of any condition can be assessed, and simply because an employee has been diagnosed with a condition that is generally perceived to be 'serious', such as schizophrenia, this certainly does not preclude them from being fully functioning members of your team. 

early signs and symptoms of psychological disorders

It goes without saying that the signs and symptoms of a psychological disorder differ depending on the type of injury. Although far from an exhaustive list, some symptoms could include:

  • Depression: significant changes in behaviour including difficulty concentrating, drinking more alcohol as a means of self-medicating, lack of energy, finding it difficult to manage tasks which were previously easily handled, increased absenteeism. 
  • Bipolar disorder: extraordinary levels of energy, dramatic change in personality in the workplace, struggling to meet reasonable deadlines, and symptoms of depression (when the employee is 'down')
  • Anxiety disorders: unusual irritability, anxiety attacks, excessive worrying about workload or specific tasks.
  • Schizophrenia: demonstrated suspicion of co-workers, 'odd' ideas or erratic behaviours, talking to themselves. 

Tactful and considered interventions are encouraged in circumstances where employers, managers or HR initially begin to notice signs of distress or job stress.

Although intervention and assisting an employee in seeking professional assistance can in some cases possibly prevent symptoms from deteriorating, and the employee from developing a full psychological illness, this should only be undertaken by qualified and sympathetic staff. Care also needs to be taken to maintain the privacy of the employee at all stages of the intervention process. 

how is a psychological injury diagnosed?

Only an appropriately licensed medical practitioner, such as a psychiatrist, psychologist or general practitioner should diagnose a psychological injury. It is anticipated that, if required, this medical practitioner will either prescribe appropriate therapy, pharmaceutical relief or both. Further, that practitioner should also conduct a 'capacity for work' assessment, if this is required before the employee is able to return to their usual duties. 

With appropriate support, even employees with significant psychological injuries or disorders should be able to continue working. Of course, this will require support from the employer in ensuring that potential 'triggers' are avoided as much as possible. 

Key determinants in assessing whether employees with psychological injuries are able to continue working include an assessment of their interpersonal functioning with their co-workers, the risks to the personal safety of any other employees, and the potential side effects of any medications. 

Our article Mental Health in the Workplace offers more information on mental health issues. Contact us to find out how we can assist with the trickier aspects of ensuring that your staff are as healthy, happy and productive as possible.

Mental Health in the Workplace

Vince Scopelliti - Wednesday, September 26, 2018

Making sure that your staff are fit and healthy, enabling them to perform their duties at an optimal level, forms an essential part of being an employer of choice. But beyond ensuring that your staff are physically capable, it is essential to also look after their mental wellbeing. 

Underestimating the importance of mental health in the workplace is likely to have lasting impacts on your workers, your business and clients. 

OHS legislation requires employers to provide a safe and healthy work environment for all workers, which does not cause ill health or aggravate existing conditions.

In a series of articles, we'll examine the impact of mental health issues in the workplace, how to take appropriate steps to support staff suffering these conditions, and how you can promote mental wellness in your organisation. 

WHAT IS mental health?

Mental health is about emotional, psychological and social wellbeing. For an employer, this means keeping an eye on whether your staff are struggling to keep on top of things inside and outside of work, and taking steps to assist them with dealing with any difficulties that may be impacting their productivity. 

There are many types of mental illness, including depression, anxiety, obsessive compulsive disorder, personality disorders (such as borderline personality disorder), bipolar disorder, and schizophrenia.

the scope of the issue

According to the Australian Human Rights Commission (AHRC), around 45% of Australians aged between 16 and 85 will suffer from the symptoms of mental illness at some point during their lives. In any given year, one in five adults will deal with a mental illness. 

Some workers will commence their employment already suffering from symptoms of mental illness, while others may develop their mental illness while at work. 

In many cases, the mental illness will develop separately from circumstances in the workplace. In others, a negative or "unhealthy" work environment will contribute to staff developing mental health issues or may exacerbate underlying conditions. 

Some factors which can contribute to poor mental health in the workplace include job stress, poor workload management or unrealistic deadlines, poor communication, bullying and an overall lack of support.

the impact of poor mental health

Research shows that the cost to business of failing to pay proper attention to mental health is significant. 

The AHRC reports that workers compensation claims relating to stress and associated mental illnesses cost Australian businesses $10 billion every year. The failure of businesses to recognise the potential impact of mental health issues and failure to implement preventative or remedial measures such as early intervention, has been estimated to cost over $6.5 billion per annum. 

Absenteeism due to mental illness is another issue, with an estimated 3.2 days lost each year per worker. 

The difference between job stress and psychological injury

When it comes to identifying mental health issues in the workplace, there is a difference between work stress and psychological injury. 

Psychological injury includes behavioural, cognitive and emotional symptoms which have the potential to significantly impact a worker's ability to perform their job and interact with co-workers. 

This can be distinguished from job stress, which is generally a reaction to a specific situation which can be resolved, and is not a standalone injury.

To disclose or not to disclose 

In some circumstances, it is important for employees to disclose their mental health status. This is particularly the case if they are taking medication which could affect their ability to perform their usual employment, or if there are general concerns about safety or interactions with other staff. 

An employer has an obligation not to discriminate against staff because of their physical or mental attributes, including their mental health.

Managing and supporting mental health in the workplace

Employers can provide support by having guidelines in place for how to talk to a worker who has disclosed that they are suffering from mental health difficulties, and how employees can adjust to dealing with a colleague with a mental health issue. 

It's also essential for employers to know how to address performance concerns involving employees who are experiencing mental health struggles, without discriminating or taking ill-considered disciplinary steps.

Creating a safe and healthy workplace for all

This starts with non-discriminatory employment practices and implementing long-term strategies to promote a healthy culture and a positive workplace where staff feel they are making a meaningful contribution to an overall goal, are supported and happy to come to work. 

It's also important to create direct services to assist workers with mental health issues who require support and adjustments in the workplace. According to the AHRC, every dollar spent on identifying, supporting and managing workers' mental health issues, yields nearly a 500% return in increased productivity. 

It is highly likely that at least one worker in your workplace will, at some point in time, have a long or short-term mental illness. While you do not need to become an expert in mental health, having a better understanding of what mental illness is (including its possible effects on a worker) enables you to be more effective in handling issues that may arise.  

Common Issues with Workplace Mediations

Vince Scopelliti - Wednesday, August 08, 2018

Occasional conflicts and disputes are a fact of life in all workplaces. One of the best ways to defuse difficult situations, resolve office concerns and keep your staff happy is mediation. But even though this is a potentially very effective device in the employer's toolkit, workplace mediations can go wrong.

Let's take a look at the process of mediation, and some of the issues which might arise. 

What is mediation? 

The mediation process requires all parties involved in a dispute or issue to meet in the presence of a third party (the mediator), to try and come up with mutually acceptable solutions.

The mediator is trained and is required to be neutral. Unlike a judge, they will not make a determination or decision - instead, a mediator will listen to all parties and suggest objective solutions and options. 

what happens during mediation?

During the actual process of mediation, the parties are encouraged to ventilate their respective viewpoints. Each party then has the opportunity to have private discussions with the mediator, after which the mediator will discuss any commonalities and the key differences in each party's attitude, while suggesting potential resolutions.

Outcomes are flexible and are really only limited by the willingness of the involved parties to cooperate. In the employment context, this means that mediations may result in agreement to apologise, or more novel outcomes such as crediting or debiting leave hours, returning property, or providing work references. Mediations are confidential, which also makes them an extremely attractive option. 

key issues with mediation

Mediation can be extremely helpful by providing a positive communication and solution tool in circumstances where there are no easy answers.

However, mediation may not be as successful if one or both of the parties are extremely entrenched in their viewpoint and are unlikely or unwilling to compromise. This is particularly the case because mediation is a voluntary process - so if staff are reluctant to participate, they cannot be forced to engage.

Further, where matters of serious misconduct or illegality are involved, it may be inappropriate to attempt to find novel solutions to workplace issues. In those circumstances, it is generally appropriate to follow the traditional paths of discipline, incentivisation or other resolution methods.

There can also be issues if parties don't comply with any agreed upon outcomes of the mediation process. 

potential for problems after mediation

Any agreement which is reached during the mediation process can be as formal or as informal as the parties and workplace prefer: from a simple verbal agreement all the way through to a Deed of Settlement recording the negotiated terms or contract stipulating future actions.

Should a formal agreement be executed and one of the parties subsequently reneges on the terms of settlement, the aggrieved party can pursue legal action through the court system to force compliance.

If you have an issue in your workplace regarding employee conflict, it may be useful to discuss these issues with an external, experienced workplace investigator or mediator. If you need support in how to conduct an investigation or need to engage a mediator, contact WISE.

Managing Complaints - How To Find The Positive

Vince Scopelliti - Wednesday, June 13, 2018

When an employee complaint alleging workplace discrimination or harassment is lodged, it is usually seen as a negative moment in the life of the organisation.

However, it is possible for an employer to view this as a positive phenomenon, rather than a sign of complete failure. This is because well-handled complaints can illuminate hidden corporate weaknesses, as well as any lurking issues affecting staff morale or motivation. Such information can become a valuable catalyst for positive change across the broader business - a win-win for internal and external stakeholders alike.

Best-practice in complaints handling is dependent upon a structured complaints process that includes two key ingredients: the quality of investigation process and the structure of the complaints process itself.

1. A thorough high-quality workplace investigation is an essential tool in the management of internal complaints, including allegations of discrimination and harassment.

2. The structural framework of internal complaints policies and procedures will necessarily be clear, accessible and well-publicised. A well-managed complaint can be a good news story not only for the people involved, but for the broader success of the business.

INVESTIGATING DISCRIMINATION AND HARASSMENT 

When an employee complains that they have been the subject of discrimination or harassment, it is highly likely that there will be differing opinions and perspectives as to whether or not this is actually the case.

As a result, best-practice workplace investigation requires fair, open and even-handed treatment of all who are involved in the investigative process. Further, it is important for investigators to move at a reasonable and logical pace, first making preliminary enquiries before deciding on any next steps.

But what does a good investigation mean on the ground? One key concept is procedural fairness. This means that parties involved are equally able to access the process, to be heard in a substantive way and to be given a fair opportunity to understand and respond adequately to any claims made against them. Under procedural fairness parties have the right to an impartial decision-maker and to having a support person present during their interview. Professional investigators must be seen to be unbiased in every phase of the workplace investigation.

Added to this, a high-quality workplace investigation will ensure that all relevant and reliable evidence has been carefully obtained, anaylsed and included appropriately in the final report. There can be no room for short cuts or preferential treatment in workplace investigations.       

Robust complaints policies and procedures

Employers, investigators, complainants and witnesses alike should ideally all have access to a durable set of internal policies and procedures covering common areas of complaint.

A strong policy document detailing how and to whom to make a complaint should be accessible, user-friendly and up-to-date. The policy should also direct the reader to one or more procedures that need to be followed in the event that an alleged instance of harassment or discrimination has occurred. This is often a time of great stress, and instructions to complainants should be clear and helpful.

Internal policies and procedures that are complicated, badly written or tucked away in a dusty filing cabinet are of little-to-no assistance to the individual seeking to make a complaint.

This is why good investigations and good complaints policies go hand-in-hand: even the best investigator will struggle to keep things fair if complaints policies are convoluted or absent, or if procedures leading up to the investigation are sub-optimal.

Perhaps most importantly, managers and employees should be trained in practically accessing and using these documents, at all stages being assured that complaints are taken seriously and are indeed welcomed by the organisation.

Step by step pathways

A sound complaints process begins with employees first being made aware of a useable and fair pathway for their grievance. A good internal complaints system will work step-by-step through a logical process. This means initially providing clear and succinct information on the nature of common complaints, some definitions where appropriate, the bigger picture of the complaints process and - perhaps most importantly - who to speak with in the first instance about the particular concern.

An internal complaint is a golden opportunity for employers to gain important information about people and workplaces. For this reason, the internal complaints system should be presented in a simple, cordial and helpful format.

Problems arise every day that require the existence of an effective complaints and investigations pathway. Thankfully many complaints can be quickly and easily resolved. However, if you need to undertake investigations or a review of your HR policies, and want to ensure you are conducting it with best practice, our training is developed by investigators for investigators. Contact WISE today to find out more.

Failing to Involve HR and Other Investigation Mistakes

Vince Scopelliti - Wednesday, May 16, 2018

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

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

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

WHy are workplace investigations necessary?

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

Investigations are necessary when:

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

what does an investigation involve?

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

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

what are some key investigation mistakes?

Significant mistakes which can occur during an investigation include:

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

so, who should investigate?

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

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

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

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

Should an external or internal investigator be appointed?

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

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

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

Risks of an investigation being conducted incorrectly

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

Lesson for employers

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

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

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