The Reasonable Person Test Explained

- Wednesday, July 06, 2016

The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. One human causing damage to another is certainly a tale as old as history itself. And judges in various forms have always had the task of determining if the damage caused was something that the ‘damager’ is liable to remedy. In a way, a bit of retrospective risk assessment has to be carried out by the courts in these cases. What exactly happened here? Who was involved? Was it an accident? Is anyone hurt? How can we fix things? Certainly, most torts (the kinds of acts or omissions that cause damage) are caused by pure accidents or mistakes.

Yet it’s never as simple as ‘oh, look, a mistake was made – let’s all move on’. A more nuanced examination of the relevant circumstances and risks has woven its way into these types of legal cases, both in Australia and abroad. Due to the fact that within law the ‘reasonable person’ has a hypothetical presence in workplaces, schools, homes, streets and venues, it pays to understand the basic ideas and applications embedded within this legal standard. And in the context of workplace risks and potential litigation, it is particularly useful benchmark for employers and managers to keep in mind.

DOES REASONABLE MEAN AVERAGE?

The short answer to this is – no. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) ‘the man on the Clapham omnibus’. In Australia’s case, NSW courts modified this to ‘the man on the Bondi tram’, while in the matter of Re Sortirios Pandos and Commonwealth of Australia, the ‘man on the Bourke St tram’ made a Victorian appearance. These descriptions are certainly a good starting point for determining what a reasonable person would have done during the risky event that caused the damage. But the ‘reasonable person’ is actually a little better than the ‘average’ one. He or she will be quite risk-conscious, a little careful with activities, and very thoughtful when it comes to looking out for possible risks and dangers. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Our reasonable person is certainly quite prudent – but not invincible.

THE ‘REASONABLE PERSON’ IN THE WORKPLACES

Risky and unfortunate situations arise everywhere in life - and of course the workplace is no exception. Injuries happen, enmity arises, harassment can occur, and unwanted advances are made. And the possibilities for damage, loss and distress to workers, contractors, visitors and clients are so extensive that some days, business owners can question their decision to open the doors! Yet in remembering the careful and prudent ways of the ‘reasonable person’ when it comes to workplace risks, employers can successfully prepare for and respond to hazardous scenarios. Importantly, remember that ‘action’ by an employer also includes ‘inaction’. Turning a blind eye to harassment between co-workers, putting off fixing the air conditioner in summer due to cash flow, and forgetting to wind up the extension cord in the hallway are the sorts of omissions that our ‘reasonable person’ in your situation wouldn’t neglect. Positive actions to prevent harm, such as sexual harassment training and reasonable warning of organisational changes, are examples of the way the ‘reasonable person’ carries on their business. 

Going forward, make a rolling risk assessment part of your ‘reasonable’ workplace strategy.   WISE Workplace can assist with independent investigations and expert advice.  

Corrupting Legitimate Processes: What's Really Going On?

Jill McMahon - Wednesday, June 29, 2016
Corrupting Legitimate Processes

Corruption is a huge problem for Australian organisations because it exists in so many places and in so many forms that the average manager may not even consider it an issue. 

Left unchecked, even minor corrupt behaviour can spiral out of control. 

Using legitimate processes is one way that corruption can be concealed, making it easy to justify and difficult to detect.  

Defining corruption and legitimate processes

Workplace corruption can be broadly defined as behaviour that violates the trust that organisations place in their workers. It can range from serious fraud and abuses of power to minor issues such as fraudulently claiming sick leave. 

Legitimate processes are processes, policies and procedures that a workplace uses to function. They can sometimes be manipulated for corrupt purposes. 

For example, an employee who makes a complaint about a manager may be transferred to another work station, have their overtime hours reduced, or be placed on continuous night shift. The decision-maker justifies the change by saying that there was an operational need for the change, but the timing indicates that it was made because the employee complained.

Detection is difficult
Because the corrupt activity is concealed by legitimate processes, it can be very difficult to prove. It is only by uncovering the background to the decision that corruption may be established.

For example, if our employee was put on permanent night shift just a week after making the complaint against the manager, surrounding relevant factors may be: 
  • There was no warning that the decision was about to be made. 
  • No one discussed the matter with the employee. 
  •  The manager and the shift manager are known to be good friends. 
  • There are emails between the managers about changing the employee’s shift because of the complaint. 
All of these factors are important to consider as they establish context for the decision being made.

Other legitimate processes

Corrupt legitimate processes can also exist in other forms. For example, there might be a strict requirement for payment of invoices to be signed off by two people before being approved. If two employees work together to create and approve false invoices and then pay the money into their bank accounts, this is corruption of a legitimate process. 

If a group in a workplace regularly engages in corruption, for example using a company credit card to buy items for personal use, there may be pressure on other workers to join in or collude. If they refuse, the group may organise for the workers to be transferred.
What is the impact?
Incidents of workplace corruption in Australia are increasing. The Transparency International Corruption Perception Index recently noted that in the past four years, Australia has dropped from 8th to 13th position. Public sector corruption is a key contributor, the ABC reports, but there are also widespread problems in the private sector, notably the banking industry. There have been recent calls for a Royal Commission into the industry to investigate its practices. 

The impact of corruption is huge. In 2012, KPMG’s survey of fraud, bribery and corruption estimated that Australian and New Zealand organisations lost $373 million to corruption. Employees were thought to be responsible for 75% of corrupt activities.
What can be done?
It is important to understand that corruption is usually not spontaneous. There is often a perfect storm of events and situations that causes employees to engage in corrupt activities. 

Understanding what constitutes corruption and taking preventative measures to avoid corruption can help organisations to minimise its effects.   

Corruption is an important issue for all organisations and the better it is understood, the greater the chance of minimising the harm that it can cause. Using legitimate processes is a great cover for corrupt employees. Detection is difficult and there are usually plausible explanations for their actions. If you suspect corruption in your organisation, WISE Workplace can assist with independent investigations and expert advice.  

Intent to Harm: Does it Matter in Workplace Bullying Cases?

- Wednesday, June 22, 2016
Intent to Harm: Does it Matter in Workplace Bullying Cases?

We understand that it can seem unfair when the label ‘bully’ crops up in the workplace – particularly when no harm was ever actually intended. We’re all aware of the importance of intent when we look at matters in the criminal space; without identifiable intent, any prosecution team certainly faces an uphill battle. 

However in the civil sphere where workplace law resides, intent is generally not an issue. With some understanding of the risks of running a business, the law aims to provide a relatively even-handed method for sorting out accidents, injuries and mistakes at work. Intention to cause harm tends to go on the backburner in these situations.

Various forms of harm

In the case of bullying claims, it can come as a surprise for many employers that innocent slip-ups and unpopular leadership methods on the part of management can nevertheless be construed as bullying. The recent matter of Carroll v Karingal Inc [2016] FWC 3709 (8 June 2016) demonstrates that even though no harm might be intended, the words and actions of managers and employees can certainly lead to a successful claim of bullying. 

In this matter, Commissioner Tanya Cirkovic heard numerous reports from staff about unfair process requirements, micromanagement and inappropriate comments that accompanied the appointment of the business’s audit and risk manager in 2013. His staff pointed to a manager who ‘said all the right things’ yet embarked on a process of markedly inefficient changes, unrealistic expectations for the team and troublingly racist remarks directed towards a team member.

Inappropriate behaviour and humour

Significant issues identified by Commissioner Cirkovic included the introduction of an inefficient system that resulted in double-handling and a demoralising spate of under-performance for the team. Further, inappropriate remarks and behaviour included laughing at an employee’s accent and remarking on her “Checklish” – a comment on her Czech heritage.

Crucial – avoiding micromanagement

Most significantly, the Fair Work Commission (FWC) took note of the manager’s relentless micromanagement of the employees under his supervision. Ultimately, faced with a sub-standard new system and a supervisor who both demanded compliance and monitored staff with excessive attention to detail, two staff members were able to successfully establish that workplace bullying had occurred.

A cumulative effect

Interestingly, the FWC noted that in all probability the manager had not intended to cause harm through his behaviour. His endeavours to please the employer and provide strong leadership were clear in the evidence produced. However, his seemingly innocent and even industrious intentions were irrelevant to the finding of bullying. The cumulative nature of his indiscretions was also key. 

"I am satisfied that the cumulative effect of his conduct and behaviours was one of significant and systematic micromanaging," Commissioner Cirkovic said.

Bullying – reducing the risks

Carroll v Karingal Inc provides a salutary example of the complex realm of workplace bullying claims. For employers, it pays to understand which behaviours within the team could be seen as bullying – no matter how well intentioned. Nuanced training regarding appropriate behaviour and potential bullying in supervisory roles should be provided throughout the organisation. 

Workplace bullying can be a subtle situation of human interaction gone wrong, and should be front-of-mind in any analysis of potential risks in the workplace. 

If you need to address bullying issues at your organisation, Wise Workplace can provide risk analysis and tailored training. Contact us to find out how.

Uncovering Key Causes of Work-Related Psychological Injury

- Wednesday, June 15, 2016
Uncovering Key Causes of Work-Related Psychological Injury

We know that for many employers, it can be rather challenging to face the complexities of work-related psychological injury claims. 

For decades, trip and fall incidents, burns, bending and other visible physical injuries all tended to dominate workplace safety concerns for both employers and insurers alike. Now, with medical advances drawing solid links between employment issues and psychological conditions, claims for work-related injuries have grown exponentially in this area. 

We examine the key causes of many work-related psychological injuries.

Sources of injury

As described by Comcare, the two greatest contributors to the development of these injuries are the combined forces of work pressure and workplace bullying and harassment. These factors together comprise a startling 75% of all work-related psychological injury claims, with other issues such as witnessing violence or experiencing traumatic events at work being significantly less relevant to claims for psychological injury.

Distilling the key causes

We understand that it can be somewhat overwhelming to consider and address the many possible ways in which workers could sustain a psychological injury at work. Yet understanding the causes and risk mitigation strategies relevant to psychological injuries can be crucial for the modern employer. 

While claim numbers for psychological injury are relatively small in number across Australian jurisdictions, their complexity and ultimate cost to insurers and employers is truly phenomenal. To understand the many possibilities for psychological harm in the workplace, we can consider causes within the broad categories of work context and work content.

Work context as contributor

The people, environment and methods of communication that ‘come with the job’ can have a profound effect on workers. As a rather communal species, humans can be strongly affected by the treatment of others, including the way that we are spoken to, included (or excluded) and generally dealt with in the workplace. Poor communication, ambiguous role descriptions and ineffective personal career development opportunities are all examples of detrimental contexts that can surround the core work itself. 

Uncertainty, isolation and bullying – subtle or otherwise – can also be extremely damaging risk factors in the context of psychological health and safety. Couple these negative phenomena with a job that demands up-beat client care and service, and employers may well find themselves with the key ingredients for a work-related psychological injury.

Stress and the content of work

So we have looked at the contextual factors of workplace stress. Yet are there aspects of the work itself – the content – that can lead to the development of work-related psychological injury? Absolutely. How and when work must be completed can have a demonstrable effect on worker psychological health. 

Shift work, fragmentation of work and hours, plus unremittingly meaningless work can also create the perfect storm for psychological injuries. Being required to produce high-quality outputs – fast – in the face of inappropriate facilities and/ or sub-standard equipment can also produce the type of work-related stress that can eventually devolve into a psychological injury.

Just toughen up?

For some employers, it might be tempting to dismiss these facts as simply an inability for employees to toughen up to the realities of work. Yet for better or worse, the medical evidence pointing to the link between psychological injury and some workplace issues is powerful – and continues to grow. The content of the work itself, as well as the context in which that work takes place, can both have strong implications for psychological health in the workforce.

Assessing the risk factors

Tackling the risk management of work-related psychological injuries can certainly take significant time and energy for most employers. For some, a comprehensive psychological risk audit designed to locate and address potential problem areas can be a sensible starting point. Yet it can certainly prove difficult to track down the source of more insidious undercurrents, such as bullying and harassment in the workplace. In these cases, engaging a skilled workplace investigator will ensure that your findings accurately represent the psychological reality of your particular workplace. 

However tackled, the effort to develop a resilient workplace with strong preventative strategies for psychological wellness can certainly pay dividends into the future – for the organisation and for workers alike. Understanding the key causes of psychological injury can be a valuable starting point for mitigating any potentially damaging features within the workplace.  

WISE Workplace provides a suite of courses from 2 hours to 1 day that can help educate and skill employees around bullying and harassment and equip managers in early intervention and prevention strategies to help your workplace remain bully free.  For more information on how WISE Workplace can help you please contact Harriet on 1300 580 685 or visit our website www.wiseworkplace.com.au

How Silence and Censorship Can Enable Workplace Corruption

Jill McMahon - Wednesday, June 08, 2016
How Silence and Censorship Can Enable Workplace Corruption

While workplace corruption can take many forms, it can also exist in silence and censorship. A corrupt group of workers may keep silent about their activities, or they may impose silence or censorship on others to ensure that their conduct is not reported. 

This makes corruption very difficult to detect, and it also leads to other issues such as workplace bullying and worker safety. 

How does it happen?

Workplace corruption can be very effective when perpetrated by a group of workers. Once a group is operating within a workplace, they can cover up their own activities and insist on the silence of others. This is often closely linked to bullying.

The activity may be concealed by the attitude ‘this is how we do things around here’.

Employees may be pulled into a web of corruption because the behaviour is seen as normal, fear of bullying or the desire to be accepted by the corrupt group. If left unchecked, it can be a cycle that becomes entrenched. 

Why does it happen?

In addition to the pressures that can be applied by a corrupt group, there may be other issues at play when an employee is silenced or censored, and they may occur well before the corruption becomes apparent. 

Organisations naturally depend on employee input to improve services and efficiency. But sometimes employees don’t feel that they can speak up. 

There may be a range of contributing factors to this, including fear that:

  • Any suggestions for change will be viewed as a personal criticism of the manager or boss.
  • Any suggestions for change must fully solve the problem and strong evidence of this is needed before the employee has the right to speak up.
  • Any suggestion will be viewed as insubordination or embarrassing to the boss or manager.
  • There may be retribution or negative career consequences for speaking out. 

According to an article in the US Journal of Organisational Behaviour, there is also evidence that reluctance by employees to speak out may result in stress and depression, poor job satisfaction and lowered commitment to the job and organisation.

From here, it’s a slippery slope to corruption. 

The spiral into corruption

Just think. An employee, Dave, notices that five colleagues take petty cash on a daily basis to buy their lunch. It doesn’t appear to be sanctioned by the company. As the colleagues are good mates with the manager, Dave is concerned that telling the manager would create trouble for him. Dave worries that going to the manager’s manager would be seen as insubordinate, and in any event, he doesn’t have a bulletproof suggestion for how to fix the problem. He thinks the company is losing around $300 per week in petty cash.

As a result of his concerns, Dave chooses to say nothing and becomes increasingly stressed that if the employees get caught, he’ll be blamed for not speaking up. He’s also scared that he will be bullied as he’s seen this happen to another worker. Dave keeps quiet and by his silence, acquiesces in the corruption. 

How to stop it from happening

In our previous articles on corruption, we have canvassed a number of ways to stop the practice from spiralling out of control. 

More: Corruption and Deviant Behaviour in the Public Sector.

Building stronger relationships with employees can also go a long way towards keeping things in check.

Managers and supervisors can: 

  • Encourage employees to speak up when they see something that can be changed.
  • Reward suggestions for change.
  • Talk honestly to employees about the desire to have their input and how those strategies might be implemented.
  • Tell employees that they want to know what they observe and keep in touch with employees about the progress of their suggestions for change. 

Silence and censorship of employees as a means to cover-up corruption is a well-used strategy that means that organisational corruption remains difficult to detect. But organisations that adopt a “grassroots” approach by encouraging employees to participate in organisational improvements may find that they have developed an effective means of preventing and detecting corruption. 

WISE Workplace has much experience in developing such strategies. Call us today to discuss your options. 

The Repercussions of Strong Words in the Workplace

- Wednesday, May 25, 2016
The Repercussions of Strong Words in the Workplace

We see many cases where negative emotions arise at work. And it’s certainly not unusual for employees and employers to sprinkle angry discussions with yelling and/or expletives. Yet when does bad language warrant a strong reaction from the employer – or even dismissal?

Two recent cases demonstrate that violent or offensive communication can certainly lead to punitive repercussions. Of course, no two workplaces are the same and it is inevitable that some ‘blue’ language will enter a legal grey area. 

We examine the potential fall-out from angry (and sometimes threatening) words spoken in the workplace.
Case 1 – The Downside of Anger
In the matter of Hennigan v Xmplar Building Solutions, an Irish migrant worker was dismissed for using a phrase that the employer perceived to be particularly threatening. As background, the male Irish worker Hennigan was relying upon the employer’s alleged earlier undertaking to support his section 186 permanent residency application, as well as that of Hennigan’s partner.

The employer denied that any such undertaking had been made. Faced with being forced to leave Australia, Hennigan confronted the employer and unleashed a tirade of anger and accusations. Crucially, Hennigan uttered the phrase “I’ll fix you up,” which the employer took to be a clear threat. The worker was instantly dismissed. 

The Fair Work Commission (FWC) took evidence from both parties regarding the circumstances and meaning of the phrase used. The employer maintained that this was a clear threat by Hennigan to inflict some form of vengeful violence on the employer. Yet the worker’s representatives noted that in Irish vernacular, the colloquialism “I’ll fix you up” means something less aggressive and would not actually constitute a threat.

FWC Deputy President Kovacic decided in favour of the employer, noting the definite threat that was implied by the worker in promising to “fix you up.” In this way, instant dismissal by the employer was considered appropriate in the circumstances.
Case 2 – Extreme Language 
We were interested to see that in Hain v Ace Recycling, the FWC took a different view to an angry exchange between worker and CEO, which culminated in extreme insults and dismissal of the worker. 

The subject matter of the discussion centred upon overtime payments allegedly owing to Hain. Both Hain and the CEO swore during the conversation, using phases such as “f***ing money” and “not my f***ing problem”. 

The worker at some stage called the CEO an “old c***t.” The CEO later informed the worker via text message that he was dismissed. 

In examining the worker’s inappropriate language, FWC Deputy President Asbury conceded that this would ordinarily constitute a valid reason for instant dismissal. However, considering the employer’s own use of strong language and the inappropriate method of communicating the dismissal, the FWC established that the employer’s actions were unreasonable in the circumstances.
Careful With Our Words
Time and again we see situations where emotions have boiled over in the workplace. The outcomes in Hennigan and Hain demonstrate that when it comes to deciding dismissal cases, the FWC can indeed go either way in condoning the employer’s decision to dismiss. Important elements to be considered include the general culture of the workplace relevant to swearing, the size of an organisation, any danger or threats detected in a worker’s words, plus the manner of dismissal. 

It reminds us that clear policies around acceptable behaviour for everyone in the workplace are a must-have for all employers, regardless of size or industry. Similarly, we recommend to employers that an audit of their termination policies and procedures be undertaken regularly. This is vital to ensure that when dismissal becomes necessary, employers have up-to-date guidance on the best action to take in the circumstances.

For employers, instigating a dismissal will ideally be done with cool heads and reasonable actions. Swearing, yelling or threats by a worker are certainly all undesirable behaviours. Yet context is key in these situations; it pays for employers to look carefully at the bigger picture within which the conduct occurred.

If you'd like assistance with putting clear policies and procedures around acceptable behaviour into place, Wise Workplace can help.  Check out our new Workplace Investigation Toolkit and streamline your investigation process.

Corruption in Company: The Use of Alliances and Networks

Jill McMahon - Wednesday, May 11, 2016
Corruption in Company: The Use of Alliances and Networks

Teamwork. It can really lift the performance of an organisation. But what happens when employees use teamwork to act against an employer or other employees who refuse to engage in corrupt conduct? 

When employees start using their alliances and networks for corrupt activities, we have seen the concept of teamwork sour – and organisations can suffer huge financial losses when this behaviour goes unnoticed or unchecked. 

How alliances and networks are used

Corruption can range from minor things like using a company credit card to buying a small personal item, to major fraud involving millions of dollars. Because it is difficult to define, it is also difficult to detect. And when employees form alliances and networks, they can work together to both facilitate the corrupt acts and also cover up the corrupt activities of a group. 

The group gains its strength from ensuring that no one speaks out about its activities. There are many ways that this can happen and some include: 

  • Promotion: If a corrupt employee is promoted, the promotion brings the opportunity to further extend the employee’s network of friends. This means more people to assist with the perpetration of corruption. The promotion of a corrupt employee also means that corrupt activities become an accepted part of the organisation’s culture – the worse the person’s behaviour, the more they are rewarded.
  • Jobs for mates: There is also the ‘jobs for mates’ concept. To protect a corrupt activity from being detected, a group of employees may put pressure on management to appoint a friend into the role. Or a corrupt manager may ensure that only friends are appointed, in order to assist with the corrupt activity. The effect can be that people are appointed to roles for which they are not qualified. 
  • Greater scope in roles: Sometimes in the public sector, the scope of a role may be increased. For example, an assistant commissioner role might turn into a deputy commissioner role. On paper, the role has expanded to include new tasks befitting a deputy commissioner. But in reality, the job has stayed the same. The upshot is that the employee is performing the same job with better pay and more seniority. 
  • Acting positions: The same is true of an acting position. For example, if someone is appointed as an acting deputy commissioner, there is no requirement for transparency. It is an acting role so there is no need to advertise. In some cases, public sector acting positions can go on for years without being reviewed. 
The key is the network of like-minded employees – ensuring there are plenty of people in place to engage in the corruption or help conceal it. 

The relationship with bullying

There can be a close relationship between a group engaging in corrupt conduct and bullying.

For example, if an employee is new to a workplace, a corrupt group may seek to enlist their help to conceal the conduct or to take part in it. If the employee refuses, or threatens to expose the conduct, they may be subject to bullying by the group until they eventually resign or are transferred. Spreading of gossip or rumours and damaging professional reputations by the group is one way that group bullying can occur. 

The employee may complain about the bullying, only to be ignored if the corrupt network extends to management and they protect the group.

Because so many aspects of bullying can be corrupt conduct, it is important that organisations have in place a range of preventative measures to deal with both issues. 

A 2009 University of Western Sydney study into the bullying of nurses found that: 

"… the nexus between bullying, group anti-social behaviour and the need for trust and networking aligns as the abuse of official power for personal gain - a recognised feature of corruption."

This research makes it clear that while organisations must be vigilant in trying to prevent corrupt conduct, they must also tackle bullying. Both issues must be properly addressed in order to minimise harm, or potential harm, to an organisation. 

At WISE Workplace, we have significant experience in dealing with bullying and corruption, and can assist you to implement a custom-designed strategy for your organisation.

Outsourcing investigations? Top 5 Tips on selecting an investigator

- Wednesday, May 04, 2016

 

Sometimes you just can’t or shouldn’t conduct a misconduct investigation in-house.  Where there are conflicts of interest or specialist skills required, organisations may be best suited to engaging the services of a private provider to obtain the information required for the business to make the right decisions.

But how do you know if the service you contract will be provided? Investigations are notorious for over-running on budget, exploding the terms of reference and, if not handled correctly, can cause more problems than they solve.

So how do you make sure the investigation company you use can deliver what it promises? 

The most important thing is TRUST.  You have to trust someone else with one of the most delicate and important aspects of your business. If they get it wrong it could lead you down an expensive path of litigation and court hearings.

How do you find them?

Personal referral - a tried and tested method, but limits your pool to your personal contacts.  Linkedin has extended this pool but wherever you get a personal referral make sure it is from personal experience and not just a friendship. 

Google is goodCheck out a company’s online presence.  A company can provide the reliability and consistency that sole practitioners may lack. Companies also have resources to maintain skill levels and ensure business continuity in case of misadventure. Search terms such as ‘workplace investigator’, ‘bullying investigations’, ‘HR investigator’ or ‘investigations’ should all turn up results.  Don’t forget to add your location, country or state for local service providers.

Conduct an interview – once you have narrowed down the field for 2 or 3, give them a ring. Interview the firm or the individual.  Find out how they manage investigations and sound out their expertise. Ask for estimates and quotes, investigation plans and other information. Professionalism shown here is a good indication that the company will provide you with excellent customer service. 

Are they qualified?

Make sure the company and the investigator you use has a current private inquiry licence. It is little known and little adhered to, but across Australia individuals conducting workplace investigations must either be practising solicitors or licenced investigators.  Ensuring minimum levels of training and a code of conduct, licensing demonstrates the commitment of the individual and company to provide quality investigation services. 

Trust doesn’t stop with a licence however, you also need a business that can demonstrate:

Sincerity

 Reliability

 Commitment

Integrity

 Competence

Consistency

What sets one company above another?

This will depend on the case you have and your company priorities. Some of the typical issues are speed, cost and sensitivity.  You will need to identify which service provider will meet your priorities and provide an investigator with the best matched set of skills and expertise for your case.

So – In short,  here are my Top 5 tips! 

  1. Don’t just rely on personal referral
  2. Check relevant experience
  3. Make sure the business is licenced and individuals qualified
  4. Ensure they can meet your priorities
  5. Place focus on excellent customer service

Harriet Stacey has been managing workplace investigations for 15 years. She has developed a reputation for high ethical standards and quality investigations. Best practice protocols can be invaluable resources to business. So we have developed a Workplace Investigations Toolkit to help support in house management of investigations. See our free investigations flow chart and many more useful resources on our website Wise Workplace.

 

 

How to protect yourself from upward bullying

- Wednesday, April 27, 2016

 

A quarter of Australian bosses are the targets of upward bullying according to a study conducted by Griffith University. Upward bullying occurs when a manager is subjected to bullying behaviour by their subordinates.   Recent research presented at the 10th International Conference on Workplace Bullying in Auckland last week presented new research on the dynamics of upward bullying.

The study conducted by Eileen Patterson, Sara Branch, Sheryl Ramsay and Michelle Barker investigated the power dynamics of upward bullying cases through qualitative research methods involving semi-structured  interviews with six managers from different levels and industries. The research findings indicate that for upward bullying to occur, the normal power imbalance in favor of the manager or supervisor has to be undermined  and the legitimate authority of the manager has to be diminished or removed.

As I have stated in previous blogs,

“One of the main triggers for upward bullying is organisational change.”

This may be a change of working conditions, management or processes.  The influence of one or two disgruntled, negative employees can be profound.  New managers stepping into entrenched group dynamics stand little chance if the team is determined to make life difficult for the new manager. Employees may blame their manager and respond by bullying them.

Upward bullying has the potential to damage a manager's mental health and well-being.  It can cause psychological stress, anxiety, and even depression.  Managers may also lose confidence in their abilities and feel less satisfied in their jobs. Upward bullying also has the potential to impact the bottom line. It can result in lost productivity, increased absenteeism and higher staff turnover, as well as the cost of intervention programs.  

Bullying of managers is characterised by gossip, back stabbing, disrespect, disobedience and a failure to comply with rules. Bullies will question competence and influence newer staff through misinformation. Strong existing or out-of-office relationships with senior managers can also have a significant negative effect on the ability of a manager to manage.

Patterson et al found that the loss of a manager’s legitimate power was caused by a lack of organisational support or staff members perceiving the manager to be an illegitimate leader. Once this swing in power occurs, the manager becomes vulnerable to bullying behaviour from subordinates. The type of behaviours often inflicted include:

  • use of an organisation’s policies and procedures
  • coercive tactics such as humiliation and intimidation
  • use of expertise or access to information to gain an advantage; and
  • ingratiation to those in important positions to gain access to formal power
Strong support for managers by senior management is critical in preventing upward bullying.  So, let’s say you are a manager and you find yourself in this position with little support and disgruntled employees?   Here are my tips based on the studies so far that might help:
  1. Seek support from your management
  2. Develop and maintain close working relationship with your senior managers and powerful people in the business
  3. Ask for coaching or seek mentors to assist with your self-confidence – you’re going to need it!
  4. Resist fighting back with bullying behaviour towards your team
  5. Don’t make significant changes to existing work practices until you have established your credibility
  6. Find a legitimate way to demonstrate your value to the team – find your thing!
  7. Bluff – it might just be a long game of poker.

Self-confidence, awareness of team dynamics and ability to manage recalcitrant and possibly underperforming staff are necessary in these cases.

So it might be a case of keeping your enemies close, your bosses closer and bluffing your way through until you prove your worth!

Supporting new leaders and managers in your business will go a long way to helping them build and maintain legitimate authority within the workplace. WISE Workplace together with its allied businesses can help you provide the right type of support - be it coaching, leadership skills or managing under adversity. For more information on how we may be able to support legitimate leadership contact 1300 580 685.  

Action Needed on Bullying in Victorian Public Health Sector

- Wednesday, April 27, 2016
Bullying Entrenched in Victorian Public Health Sector

The larger the organisation, the greater the potential for bullying and harassment to become ingrained in workplace culture. When this happens, the victim can become the perpetrator, and the cycle continues. The situation may be made worse by management acquiescence, especially if the attitude is “if you can’t stand the heat, get out of the kitchen.”

The Victorian Auditor-General released its report into Bullying and Harassment in the Health Sector recently. It made many findings about how widespread the problem is, and also some strong recommendations for change. 

Background to the report

The Victorian Government commissioned a series of audits that looked at the occupational health and safety of Victorian public sector health workers. One audit considered whether the risk of workplace bullying and harassment was being effectively managed. 

This was the subject of the report. The report noted that serious harm can be caused by bullying and harassment. In 2010, it was estimated to have cost the Australian economy up to $36 billion per annum.  

The report also noted that the problem hits the public health sector particularly hard with:

  • Staff retention issues. 
  • Cost of recruitment and training. 
  • Low morale.
  • Management time spent dealing with the issue. 
  • Legal costs.
  • Damage to reputation. 

A disappointing reflection on leadership
The Auditor-General did not mince words, saying: 

“The leadership of health sector agencies do not give sufficient priority and commitment to reducing bullying and harassment within their organisations.”

The report also found that there were no proper processes in place for early intervention of bullying and harassment issues. More guidance and support was required to improve the public health sector’s management of inappropriate behaviour.

The more specific findings included that:

  • Management did not take bullying and harassment seriously as an OHS issue.
  • Steps were not being taken to identify and minimise risks.
  • There was a consistent failure to hold senior staff accountable.
  • Incidents were under-reported, possibly because of fear of repercussions, the mistrust of human resources staff, or the normalisation of the behaviour. 
  • Policies and procedures were ineffective at regulating inappropriate behaviour because of lack of understanding, ineffective implementation and failure to comply. 
  • Training and education were ineffective because of being voluntary, inconsistent or insufficient. 
  • Early intervention was generally inadequate and staff mistrusted the process.
  • There was no systematic or effective response to formal complaints.
  • There was ineffective guidance and assistance to help the sector implement best practice measures. 

The report noted that in 2013, more than one quarter of Victoria’s public health employees had experienced bullying or harassment. 

The report’s recommendations

With such troubling findings, it is no surprise that the report has made a long list of recommendations. They include:

  • Implementing risk management procedures to identify and minimise inappropriate behaviours.
  • Implementing policies and procedures that are clear and set out accountability for dealing with complaints. Ensuring compliance with policies and procedures.
  • Fostering a positive workplace. 
  • Encouraging reporting of behaviour by taking action on complaints. 
  • Developing and implementing mandatory training on bullying and harassment issues. 
  • Proper documentation of any issues concerning inappropriate behaviours. 
  • Striving for early intervention to minimise damage.
  • Implementing a formal complaints procedure. 
  • Making human resource departments more effective in dealing with the issues. 

The Victorian health sector certainly has a huge job ahead of it. With so many employees having first-hand experience, there is little doubt that there is an entrenched culture of inappropriate behaviour in many of the public health agencies. 

However, the report and its ensuing publicity is perhaps a positive first step in fixing the issues and there is potential to implement sweeping change. We will monitor the progress of the reforms with great interest. 

In the meantime, we know that effective policies and workplace culture play a huge role in the prevention of bullying and harassment. If any of these issues are ringing alarm bells for you and your organisation, WISE Workplace can help. We have vast experience in dealing with bullying and harassment issues and we are just a phone call away.