Putting the 'Reasonable Person' to the Test

Vince Scopelliti - Wednesday, December 19, 2018

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

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

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

What is the reasonable person test?

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

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

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

a practical application of the test

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

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

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

WHAT can we learn from this?

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

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

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

obtaining assistance with investigations 

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

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

Dealing with Absconding Staff over Christmas

Vince Scopelliti - Wednesday, December 12, 2018

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

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

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

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

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

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

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

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

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

what steps should an employer take?

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

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

what the fair work commission says

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

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

why do employees abscond?  

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

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

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

How to keep staff engaged and avoid staff going AWOL

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

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

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

Protecting Whistleblowers: Are You Ready for the Changes?

Vince Scopelliti - Wednesday, December 05, 2018

With new whistleblower protections to take effect in early 2019, it is essential that organisations understand the broad legislative changes to the Corporations Act 2001 due to be debated in Parliament. In addition to the requirement for formal mechanisms and strategies to protect and assist whistleblowers, both public and large private corporations will need to be able to 'spread the word' to staff in a practical way. 

Successfully embedding the changes to whistleblower protections into your organisation requires clear understanding, action and communication. With 2019 just around the corner, the time is right to ensure that you have all the information that you need to meet the new obligations.

WHat is the definition of a 'whistleblower'? 

Blowing a whistle has always been a common method for citizens to warn others of significant problems such as overcrowding, bad sportsmanship or dangerous waters. Whistleblowing has nevertheless developed some negative connotations in the corporate world. 

Despite the need to guard against corruption and corporate wrongdoing, corporations have in the past done little to actively protect those who speak up from being harmed. The new regime, due to be enacted in early 2019, includes compensation for any whistleblower who suffers statutorily-defined 'detriment'. 

No longer will the definition of whistle blower be restricted to current employees: past and present contractors, workers, suppliers, family members and many other stakeholders can rely upon the new protections.

who the changes apply to 

The proposed changes to the Corporations Act 2001 will effectively ensure that large employers provide the incentive, means and protection for individuals to blow the whistle when corporate wrongdoing is suspected. The changes formalise the legal protections that have been available in a relatively piecemeal manner across time. 

The new regime will mandate that all Australian public companies, large proprietary companies, and registerable superannuation entities will have compliant whistleblower policies in place by early 2019. Further, it will be necessary to demonstrate that stakeholders can safely and anonymously exercise their right to blow the whistle on corrupt practices. 

reach of the new bill

The demands on corporations flowing from the changes to whistleblower laws via the Treasury Laws Amendment (Enhancing Whistle-blower Protections) Bill 2017 can certainly seem daunting. As an example, the new Bill requires that corporations provide clear, comprehensive and anonymous pathways for any staff or stakeholders who wish to report suspected wrongdoing. 

This includes demonstrating that policies and procedures designed to promote and protect whistleblowing are accessible by all stakeholders. Further, access to an anonymous helpline is crucial to ensure that parties can talk freely about any suspicions of wrongdoing. 

The reach of the new Bill includes the ability to look at past corruption and in some cases to award damages to workers or others who have suffered detriment in the past as the result of blowing the whistle.

next steps? 

In the short time remaining between now and when the new whistleblower changes come into being, it is essential that all relevant organisations audit their current practices relevant to the new Bill. To assist our clients in understanding the proposed changes, we have published a white paper, which is available for free download. 

One core offering that we provide is our industry-leading Grapevine Confidential Whistleblower Hotline. Staffed 24 hours a day, 7 days a week, Grapevine provides employees with the opportunity to make anonymous complaints to trusted and experienced operators. 

WISE has provided Grapevine since 2016, and the hotline enhances the way our clients manage their business, but also allows them be legally compliant with the new regulations. January 2019 is fast approaching. If you would like any additional information or an obligation free proposal, contact WISE today! 

How to Prepare for a Difficult Conversation

Vince Scopelliti - Wednesday, November 28, 2018

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

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

WHen is the best time to have the conversation?

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

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

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

where should i hold the difficult conversation? 

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

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

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

what is the topic of the difficult conversation?

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

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

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

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

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

DIFFICULT CONVERSATIONS AS PART OF THE PERFORMANCE MANAGEMENT PROCESS 

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

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

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

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

Expert help in getting it right

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

22 Types of Workplace Bullying Behaviour

Vince Scopelliti - Wednesday, November 21, 2018

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

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

What is the legal definition of bullying?

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

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

types of bullying behaviour

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

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

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

The risks of bullying

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

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

What can employers do? 

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

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

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

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

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

Overcoming Unconscious Bias

Vince Scopelliti - Wednesday, November 07, 2018

When conducting investigations or otherwise making determinations in the workplace, it is essential to avoid bias, whether conscious or unconscious. It is equally important to avoid a situation where co-workers believe decisions made in the workplace are biased - whether real or perceived.

What is unconscious bias? 

Unconscious bias may take a number of different forms, including:

  • Preferring or tending to support people who are similar to us (for example, people who attended the same high school, or who share the same ethnic background or sexual preference)
  • 'The beer test', also known as the 'in group' versus the 'out group' - having a bias in favour of people you would enjoy spending time with yourself.
  • The halo effect - where a specific characteristic or attribute of a person dominates impressions formed about that person. For example, if somebody is physically attractive this may increase their inherent like-ability, without merit. 
  • Confirmation bias - effectively, making judgements which support existing, previously held beliefs. 

For investigators, objectivity and drawing reasonable and unbiased conclusions is an essential component of a fair investigation. This doesn't alter the fact that everybody has unconscious biases. In order to remain neutral, investigators should take careful stock of what those biases may be for them specifically and ensure that they do not allow bias to influence their analysis of a party's credibility or their ultimate conclusions.

the effects of bias 

From an investigator's perspective, a failure to be objective may mean that they have subconsciously drawn premature conclusions about the outcome of the investigation. 

A common example involves a situation where a senior executive has been accused of serious wrongdoing, and the investigator understands that the removal or significant disciplining of the executive is likely to result in immediate negative effects for the business. 

Against that background, the investigator may be more likely to conduct the investigation in such a way that it justifies a decision which has already been made - namely that the executive will not be terminated or otherwise harshly disciplined. 

It is incumbent on impartial investigators to seek to uncover all facts that will help them determine the credibility of the parties involved, and assist in reaching a fair conclusion. It is equally important for investigators to remember that all evidence (however unpalatable) uncovered during an investigation must be taken into account in making a final determination, regardless of whether the information supports or contradicts the allegations. 

what is best practice?

Forming an inherent bias is a completely natural human response. It is important to ensure, however, that it does not lead or alter the outcome of an investigation. To this end, strategies for preventing inherent bias include:

  • Scheduling 'interrupters' - these are regular pauses in the process which are designed to force a decision-maker to step back and take an overview of how they have progressed with the investigation, as well as consciously consider whether they are being influenced by bias or not. 
  • Ensuring that the investigator's approach is as transparent as possible, and ideally an investigator should not be required to investigate people with whom they have ties. 

what can employers do?

Employers need to facilitate open and honest communication about the potential of bias affecting a decision-making process. This includes ensuring that all staff who are likely to conduct investigations or make sensitive decisions are aware of the potential impacts of bias, and take steps to avoid it. 

Another important stratagem is to ensure that investigators are not required to conduct investigations involving those with whom they have a prior relationship, to avoid any perception of bias. 

Investigations are an important tool for companies dealing with breaches of policy misconduct. If an employee views a process as fair and unbiased they will be more likely to report concerns. If you think there is an issue in your workplace and are concerned about potential or perceived bias, WISE can conduct independent and unbiased investigations. Contact us today for an obligation-free cost estimate.  

Procurement and Corruption - The Warning Signs

Vince Scopelliti - Wednesday, October 31, 2018

Effective procurement requires the ability to foster productive relationships and to secure the best possible terms within a contract or project. However, there can be a fine line between savvy negotiation and a gradual descent into corrupt and/or fraudulent behaviour. 

Despite robust legal and policy requirements relating to procurement activity, fraud is nevertheless an ever-present problem within the supply chain sector. We examine some of the danger signs of corruption to consider within any procurement arrangement.

procurement fraud

Corruption and fraud go hand in hand. In procurement work, tender processes can be circumvented or omitted altogether, documents altered subtly to benefit internal operatives, and bids and contracts massaged to create mutually beneficial gains. Fraud can begin with lazy practices or commercial white lies, growing to a tipping point where procurement officers enable a status quo of daily corruption. By favouring existing contractors or accepting inducements to deal with others, procurement divisions can become riddled with fraudulent and self-serving behaviour.

red flags of corruption 

So what are some of the conditions that enable procurement fraud? Time and money lie at the heart of procurement activities, and both can usefully serve as red flags for possible corruption. Shorter-than-usual timeframes for tender processes can be a tell-tale sign of a strategy to reduce competitive bids and give favour to a particular supplier. 

Similarly, the acceptance of a higher bid with no meritorious justification can and should ring alarm bells. Other red flags include: poor communication protocols regarding procurement management; a lack of well-documented processes and outcomes concerning payment agreements and project costings.

a complex framework

In NSW, the procurement policy framework provides an extremely complex set of legal, governance and administrative requirements around procurement activities. 

While this has brought various authoritative sources of information into one structure, the framework does place considerable administrative demands on staff at the coalface. 

Management should understand and champion the framework, providing effective training and support to staff around ongoing issues of transparency and integrity.

Solutions to fraud and corruption

Establishing the right culture is the number one weapon against corruption. This includes fostering a work environment where transparency and integrity are at the core of business-as-usual. Staff training should be in depth and ongoing, with refreshers provided at regular intervals. Organisations need to audit and assess current internal controls, taking nothing for granted when designing mechanisms for combatting fraud. 

Anti-corruption controls already in place must be monitored for strength and efficacy at regular intervals. When red flags go up, a fraud response plan should be accessible, relevant and understood by the entire procurement division. Further, a thorough knowledge of current and potential suppliers should be developed and maintained, including detailed information on supplier capacity and sub-contracting. 

Perhaps most importantly - yet often overlooked - the procurement process itself must be monitored each step of the way, both for individual contracts and in terms of ongoing operations within the procurement division. A further enhancement possibility exists within business analysis programs; harnessing the power of data can provide an incredible means of monitoring procurement processes, picking up any suspicious activities through detailed analytics.

hear it on the grapevine

Grapevine is owned and operated by WISE Workplace. In 2016, we launched Grapevine to enhance the way our clients manage their businesses. The Grapevine Confidential Whistleblower Hotline provides employees with a safe and secure environment to report misconduct, enabling insightful management of complaints and the ability to bring about real cultural change and reduce risk. 

The Grapevine call centre is located in Queensland and staffed by trusted and experienced operators. The call centre is manned 24/7 and receives over 1,000 calls per week. For a free quote, call WISE today. And should you wish to learn more about methods for assessing potential fraud within your current procurement practices, we will be happy to assist.  

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.

To Disclose or Not to Disclose

Vince Scopelliti - Wednesday, October 10, 2018

For many employees, one of the most difficult aspects of navigating the modern workplace is deciding whether to disclose a mental health issue.

Not every employee is required to be open about their condition, and there is often a fear of the potential consequences for their career if they are. 

We take a look at when an employee is obligated to disclose, what employers must do, and the pros and cons of disclosure. 

what does the law say about the employee's responsibility? 

When dealing with mental illness in the workplace, employees are not required to share details of their condition with employers unless there are legitimate concerns that it may affect their ability to perform their role properly. 

For example, employees who operate heavy machinery but are struggling with alcoholism, drug addiction or are reliant on certain types of medication should advise their employers, so that they do not risk their safety or that of their colleagues. 

Failing to share this information could mean that the employee is in breach of their obligations under Work Health and Safety legislation.

what must employers do?

Commonwealth legislation determines that it is unlawful for employers to discriminate against their employees for a variety of reasons, including discrimination on the basis of a mental health condition. 

According to the Disability Discrimination Act 1992 (Cth), employers cannot act in a discriminatory fashion towards employees based on past or future conditions, temporary or permanent conditions, or actual or imputed disabilities. 

Types of discrimination which employees with mental health conditions may face include:

  • Direct discrimination, for instance when a candidate is not hired or an employee is disciplined inappropriately because of their mental health. 
  • Indirect discrimination, for example requiring all employees to eat lunch in the staff lunchroom - which for instance might cause difficulties for employees with anxiety. 

Choosing not to make adjustments for an employee who is struggling with their mental health is a form of discrimination. 

There are also obligations on employers around disclosing an employee's mental health status to others in the organisation. All employment relationships include an inherent requirement of confidentiality, which means that employers are prevented from discussing or disseminating information about their employees' mental health. 

Exceptions can be made in circumstances where the information must be shared in order to prevent or lessen a serious and imminent threat to the life or health of the employee or as required by law.

pros and cons of disclosure

Workers who don't have an obligation to disclose often struggle with the pros and cons of sharing this information with their employers and co-workers. 

A clear advantage of disclosing this information is that colleagues are aware of the circumstances under which the employee is operating and can provide a level of social support. Managers who know that a team member is struggling with mental health issues may well be more sympathetic, and can assist by providing more flexible working arrangements, lessening workloads in times of crisis, or otherwise ensuring that the workplace is generally accommodating of the employee's needs. 

Further, ill-founded rumours or gossip may be avoided by an employee being open about the difficulties they are facing and could help de-stigmatise mental health issues in the workplace. 

Disadvantages include sharing very private information with colleagues, which may be disseminated to other people in the organisation and have the potential to result in harassment or discrimination. This may be particularly relevant in circumstances where the mental health condition is temporary or does not affect the ability of the employee to perform their duties adequately.

mental health and wellbeing in the workplace

Employees can contribute to good mental health at work by:

  • Taking care of themselves
  • Avoiding known triggers
  • Participating in exercise
  • Taking regular breaks during the work day
  • Staying up to date with any medication 
  • Relying on a support network (both inside and outside work)
  • Avoiding external influences like excessive alcohol or drugs. 

If you would like more information on mental health in the workplace, check out our series of articles on Mental Health in the Workplace. WISE Workplace can also assist employers with drafting and implementing policies relating to mental health disclosure.