Tackling a Toxic Workplace Culture

Vince Scopelliti - Wednesday, January 17, 2018

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

what is workplace culture? 

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

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

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

how to identify if your workplace culture is bad

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

Factors that can contribute to a toxic culture include:

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

what happens when workplace cultures are toxic

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

Some signs and consequences of toxicity include:

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

HOW to chage a negative workplace culture

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

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

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

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

How Can HR Support Staff During a Workplace Investigation?

Harriet Witchell - Wednesday, June 28, 2017

Where a complaint has been made by one staff member against another, and a workplace investigation takes place, all kinds of emotions can be running high. 

People participating in a workplace investigation, whether as complainants, respondents or even witnesses, can suffer symptoms of mental health issues such as depression and anxiety, as well as emotional distress. 

Respondents in particular can feel abandoned and cold-shouldered, especially in cases where HR departments decide to take a 'hands-off' approach while the investigation is being conducted. If a respondent is also suspended from work during the process, they may also feel prejudged and already declared guilty. 

In light of this, it's extremely important that employers ensure that investigations are handled fairly and impartially, and that all participants are supported. 

Here's how HR can help support participants throughout a workplace investigation.

THROUGH TRANSPARENCY AND COMMUNICATION

First and foremost, effective communication and transparency are vital from the outset. A failure to communicate can worsen distress and lead to participants thinking the worst. 

Decide on being transparent from the beginning. This involves taking the complaint seriously, listening to all sides, and making sure all participants know how the complaint will be handled. It's also important to check back that they have understood what was said and address any misunderstandings (something that can easily happen when emotions and tensions are high!)   

SETTING OUT THE PROCESS

It's important to get to work quickly, appoint an investigator, and make decisions regarding the scope of the investigation, the timeframe, and actions to be taken after completion. However, do be prepared for the process possibly taking longer than anticipated. 

Once you've decided on the process, make sure to keep everyone informed of how the investigation will be conducted and what they can expect, and aim to keep communication lines open throughout. Also reassure the respondent that they are not in any way being prejudged, even if they have been suspended for a time during the investigation. 

APPOINTING A SUPPORT PERSON

Participants need to know they have someone to go to for emotional support, who can also explain the process and answer any questions they may have. 

One thing to note here is that employees may not necessarily show their emotions at work and this could lead you to think they are fine and don't need assistance, when in fact the opposite is true. 

Appoint a support person whose role it is to regularly check up on the person and provide support without taking sides. 

CONDUCTING INTERVIEWS WITH RESPECT 

Interviews need to be conducted fairly and withe respect and non-partiality. 

It's important to avoid acting like an interrogator; your job is to uncover the facts and truth of the matter and not to extract a 'confession'. This means all participants should be treated with respect and empathy, and given breaks during interviews if required. 

OFFERING POST-INVESTIGATION SUPPORT

An investigation can affect everyone and can reduce morale and trust in a workplace. It may in some cases even lead to employees seeking work elsewhere after feeling demoralised by the whole experience. 

In a case where the respondent has been restored to duty, it may be hard for them to simply go back to 'business as usual'. The same may also apply to complainers, particularly if the investigation did not go the way they wanted. 

Be prepared for it to take some time for trust and morale to be restored, and offer mentoring and support after the process to anyone who needs it. Be proactive in rebuilding trust and positive relationships. 

Lastly, we can provide expert assistance with workplace investigations. Feel free to contact us for more information.  

The Risk of Ignoring Reports of Sexual Abuse

Harriet Witchell - Wednesday, May 31, 2017

The matter of  Matthew v Winslow Constructions Pty Ltd brings to light the importance of duty of care in a sexual harassment matter. The Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, 

This case bares similarities to Trolan v WD Gelle Insurance and Finance Brokers notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. 

Long gone are the days when a written complaint of such behaviour is needed. The Trolan and Matthews matters both demonstrate that where such extreme behaviour is occurring in the workplace, employees don’t need to put concerns to the employer in written form in order to ‘inform’ the employer of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

Courage TO TELL 

In August 2008, Ms Matthews commenced working as a labourer with Winslow Contractors. Between August 2008 and early July 2010, Ms Matthews was subjected to a relentless assortment of unwanted and lewd sexual advances from a number of site workers, including by her foreman. The behaviour included several threats of physical and sexual assault, intimidation, and bullying. On occasions when Ms Matthews verbally complained to management, nothing appeared to be done about her complaints. In September 2009, Ms Matthews was moved to a different site crew and the behaviour stopped. However, in late June 2010 Ms Matthews was moved back to the original site and the behaviours resumed, including the threat of rape. Ms Matthews reported the matters over the telephone, on 1 July 2010, to whom she believed was the person in charge of HR. Instead of a change in the behaviours occurring, Ms Matthews was further harassed and asked to 'come round, we will have a drink and talk about it'

SILENT DAMAGE

Ms Matthews did not return to work after 1 July 2010 and was found by her doctor to have suffered a severe work-related injury, with an incapacity to work again. The essential cause of her diagnosed psychiatric illnesses, including PTSD, was the sexual harassment and bullying that she had endured over a period of time while working at Winslow Contractors. And for part of this time, it was with the full knowledge of her employer. 

LISTEN OUT

Busy employers can be tempted to argue that they can’t be everywhere at once. Although employers are certainly not blind to the potential for unacceptable behaviour, there can however be an built-in assumption that if someone has a problem in the workplace, they should go through formal channels to remedy this. Generally, this would include submitting a written complaint about the alleged conduct. Yet as seen in Matthews the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Matthews had two discussions with a representative of the employer was certainly sufficient grounds to say she provided notice about the offending conduct. 

LINGERING PAIN

The consequences of such a failure to respond to sexual harassment and bullying in the workplace can be wide-reaching. Where an injury is suffered, as in Matthews, compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures to follow workplace health and safety procedures can lead to considerable penalties, compliance orders and fines. As well as requiring a substantial workplace investigation to ascertain the details of the alleged behaviour, criminal charges might ensue and/or civil action on grounds of negligence might be brought against the employer to remedy the failure to act; A complex and damaging array of legal and financial consequences indeed. 

WORDS ARE ENOUGH 

It is that failure to act that can cause so much preventable harm. At the moment when the Area Site Manager was told verbally of the conduct, the employer was officially informed and was required to act. Yet this damaging and ultimately costly chain of events was allowed to continue, causing a serious breach of the employer’s duty to protect. Employers are obliged to create a workplace free from harm. And when an employee has the courage and strength to report the offending behaviour, employers must both listen and respond. Written notes, formal documents or approved forms need not be furnished in circumstances such as those faced by Ms Matthews. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 

ACT EARLY 

The lesson from Matthews? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $1.3 Million for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, or if it is observed, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

For information on how WISE Workplace can assist to develop your business's ability to respond to complaints of seriousness misconduct, call 1300 580 685 or visit our website

Bullying: I've Been Talking to HR but Nothing's Happening

Harriet Witchell - Wednesday, May 24, 2017

If you have been the victim of bullying, the HR department in your organisation is generally the first port of call for raising your concerns. 

It can be mentally or emotionally challenging to make a complaint to HR. You may feel exposed or vulnerable because you are concerned that your complaint may not be believed, or that the person about whom you have made a complaint has been told that you have "dobbed" on them.

Depending on the nature of your complaint, or the relationship of the HR personnel with the person or people about whom the complaint has been made, you may have concerns that a workplace investigation will not be conducted thoroughly or your grievance not taken seriously. In any event, your working life can become very uncertain after you have made a complaint to HR. 

Taking a company issue to the HR team can also be a lengthy process, and it may feel like nothing is happening as time ticks by. But it's important to remember that much of the HR investigation will be taking place without you being directly aware of it. 

Here is a brief look at how the process works.

THE FIRST STEP

After you have aired your grievance, it's important to try and remain focused and perform your job to the best of your ability. If you feel you are unable to do so, it may be best to take a few days off work on sick leave until you feel stronger, and better able to approach your tasks or face your co-workers.    

THE COMPLAINT PROCESS 

There are certain steps which a diligent HR team must follow once a complaint has been brought to their attention. Initially, the complaint must be assessed. 

Next, the HR department will meet with relevant senior staff, who must make a decision as to what the appropriate follow-up actions will be.

Depending on the severity of the alleged behaviour, this may involve HR having a quiet word to the other person or the initiation of formal disciplinary proceedings. The latter is more likely to be the case if the person being complained about is already being performance-managed in relation to prior issues. 

Be aware that it may well take HR a week or even longer to finalise the preliminary investigation process, and make and communicate a decision on the best way forward. 

Privacy obligations to the other employees involved may also mean that you are not entitled to know the full details of what further action will be taken.

WHAT CAN HR TELL YOU?

At a minimum, HR is required to advise you of: 

  • The fact that it has received your complaint, is taking it seriously and is conducting appropriate levels of investigation. 
  • What Employee Assistance Programs are available. 
  • Who the liaison person for these programs is (if your organisation has one) and how to contact them. 

WHAT IF THERE IS A FORMAL WORKPLACE INVESTIGATION? 

For serious complaints, your company may engage the services of a third party workplace investigator. 

If this occurs, then you are entitled to: 

  • Be one of the first people interviewed if a detailed investigation is commenced. 
  • Receive a copy of your interview transcript or detailed statement, which you should sign if you agree that it is an accurate record of what you told HR

If your complaint is sufficiently serious, then the respondent facing your allegations will be advised of the exact complaints against them. Although they are also likely to be interviewed, you are not entitled to a copy of their transcript or statement. If you are concerned about any bias, however, be aware that their interview will be recorded.

Once these steps have been finalised, the investigator will draft a report for the review and consideration of the HR department. That report (hopefully completed within a timeframe of less than three weeks) will then be provided to the relevant decision-makers within your organisation for a final determination. 

You will generally be advised that the investigation has been completed, what the findings are, and of any further action steps as they concern you. But in most cases, you will not be specifically advised of any punishment to be meted out to the respondent. 

BE PREPARED FOR WORKPLACE CHANGES

If your complaint is serious, you may be asked to move or transfer offices or departments. This is not a punishment, but is designed to ensure that your wellbeing is protected, generally by reducing the likelihood of any contact occurring between you and the respondent. 

Try not to respond by being offended or otherwise feeling indignant. All businesses, regardless of their size, have legal obligations to all employees. Your employer cannot simply fire workers who have issues with other employees, and other considerations may mean that the respondent cannot be moved. Bear in mind that your organisation is simply trying to find the best outcome for all concerned. 

If you are nervous about making a complaint or otherwise wish to obtain guidance on how whistleblowers should be dealt with, contact WISE Workplace today for detailed assistance with all aspects of the workplace investigation process.  

So You've Been Accused of Bullying - What Now?

Harriet Witchell - Wednesday, May 03, 2017

The issue of workplace bullying is much more openly discussed these days, and most employees are aware that they can make a formal complaint to their employers and have the matter investigated – with appropriate resolution to follow.

But what happens if you are not the victim, but instead have been accused of being the bully?

HOW TO DEAL WITH AN OVERWHELMING EXPERIENCE

Being accused of bullying is never pleasant. It can create a number of confusing feelings, including concerns about your job security, a sense of lost control over your workplace and working experience, and frustration or even anger towards your accuser.

This can particularly be the case if you dispute that the alleged behaviour occurred or took place as claimed, and feel that you have been wrongly accused.

In some circumstances, those accused of workplace bullying may even develop feelings of depression or anxiety.

But there are strategies which you can employ to stay focused and keep your emotions under control while the investigation process is underway.

These include:

  • Remembering that the accusation is only an allegation and does not mean that anything has or will be proven against you.

  • Understanding that there is an investigation process which needs to be followed to ensure fairness is afforded to both parties. Your organisation will need to investigate the allegations and talk to staff before they get your side of the story.

  • Avoiding interfering in the investigation, as this will risk a finding of bias and will only extend the process.

YOUR RIGHTS AND RESPONSIBILITIES

As the alleged perpetrator of the workplace bullying, you are entitled to be advised of what the allegations made against you are, although you cannot be provided with a copy of the initial letter of complaint.

This is to ensure that the complainant maintains some privacy and avoids potential further harassment. Once you have been advised of the complaint and the details of the allegation, it is a good idea to make a written record of your version of events.

You have the right to participate in an interview and, if you take up this right, it is important to calmly address the facts and provide a rational, not emotional, response to the allegations.

You are also entitled to request that you have a support person to sit in on interviews and provide you with moral support throughout the investigation process.

The key thing to remember is that you have the right to an unbiased investigation. If you genuinely believe that the investigator or somebody with the power to make the final determination is prejudiced against you or otherwise has a conflict of interest, you should set out your concerns, preferably in writing, and request that another person becomes involved in the process.

If you continue to feel that the process is tainted by bias, you can contact the Fair Work Commission's Help Line or obtain independent legal or consulting advice to ensure that your rights are protected.

By the same token, you should avoid discussing the complaint at all with co-workers or decision-makers, and certainly should not engage in discussions with the complainant under any circumstances. Any attempt to do so may be perceived as an attempt to influence witnesses or otherwise interfere with the investigation.

REMEMBER THAT THE INVESTIGATION CAN TAKE TIME

It's important to be aware that the workplace investigation process can be lengthy, and more serious allegations of bullying might take six or more weeks to investigate. Factors such as the victim (or you) going on stress leave or annual leave can also affect the timeframe of the investigation.

Although it is certainly justifiable to feel stressed, and you should seek support if you feel unwell, going on medical leave in response to the complaint will only prolong the investigation. Your health is likely to be better served in the long-term by assisting in the process, enabling a quicker resolution.

Being accused of workplace bullying and the subsequent investigation process can be an upsetting experience. If you are the subject of a workplace bullying complaint, we can provide you with advice on the investigation process, and help you to make a full and articulate response to the allegations against you. Feel free to contact us here.

A Perplexing Problem: Protecting Children Overseas

Harriet Witchell - Thursday, April 20, 2017


Every year billions of Australian dollars are provided to fund aid projects overseas. The money is targeted to assist developing countries with education, housing, health and community projects. Naturally children are a prime target group for these aid programs.  The majority of these organisations are funded by the Australian public via donations and government funding provided to not-for-profit organisations, many of them faith based organisations.

International rules and expectations govern the protocols for handling and responding to allegations related to child protection, however, enforcing these laws is a tricky business often involving multiple jurisdictions and multiple agencies who may disagree around responsibilities and liabilities.

Policies and procedures are not enough to protect children who are by definition amongst the most vulnerable in the world.

Small operations, voluntary management and high dependency on the goodwill of front end service delivery mitigate against strong child protection regimes. Poor oversight due to long distance, remoteness and cultural differences are also key features of this problem.

Funding bodies in Australia are expected to have high quality child protection systems and policies in place to gain government funding but the challenge of enforcing or even providing adequate training in the expectations to the end providers of the service can be beyond reach.

Now that we know that we cannot unquestioningly depend on the nature of goodly people to act without harming children, what cost do we place on the need to provide secure safe environments for children receiving charitable services?

Documents provided to the Guardian relating to the level of abuse within detention centres on Nauru demonstrate the abject failure of outsourced government funded programs. How then do we expect small voluntary projects to be faring against these standards?

It is clear that policies and procedures are woefully inadequate yet how much of the donated money do we want spent on compliance when it comes to protecting children?

WISE Workplace is regularly requested to undertake investigations of allegations made against staff overseas who are working or administering charitable projects. The work requires a high level understanding of the environment, the agency, funding requirements, boards and community management structures, and the local culture and cultural background of staff and service recipients. The work remains some of the most challenging to investigate. Weak employment relationships can lead to inconclusive outcomes and an inability to enforce any restrictions on volunteers in the field.

For those organisations with managers in Australia trying to manage complaints or allegations arising from activities overseas, using the support of experienced investigators can be a godsend melding the investigative skills of experienced child protection investigators with the cultural and service delivery expertise of the coordinators working for the agency.

Our top 10 list of must do’s if you are a coordinator of a charity funded project overseas:

  1. Nominate a single contact person with responsibility for dealing with complaints related to child protection within your agency

  2. Have clearly articulated Child Protection Standards and Guidelines

  3. Have clearly articulated procedures for dealing with complaints

  4. Understand the criminal law in the country of service delivery

  5. Understand the employee relationship between the funding body and the service providers on the ground

  6. Know your legal obligations under your primary funding agency agreement

  7. Respond quickly to complaints

  8. Conduct a risk assessment and take protective action if necessary

  9. Identify a suitable contact person on the ground in the foreign country to be a liaison pain

  10. Seek specialist help when complaints are serious or complex to investigate.

WISE Workplace runs regular training programs on the principles of undertaking workplace investigations. Our facilitators have extensive experience and expertise in managing all kinds of challenging investigations including running operations overseas via Skype using local contacts. Our unique Investigating Abuse in Care course provides valuable skills in how to assess complaints, reporting obligations, drafting allegations, interviewing victims and respondents, making decisions and maintaining procedural fairness. Book now for courses in May 2017.

Key Take-Home Messages from the Employment Law Cases of 2016: Part 2

Harriet Witchell - Wednesday, January 11, 2017

Some of the important decisions handed down in the employment law world during 2016 would have left more than one employer very glad that they were not the ones facing the Fair Work Commission! 

In part 1 of our year-end review of the cases of 2016, we covered the interplay between employment law and other legal areas. In part 2, we take a look at cases where employers have reacted impulsively and failed to afford employees appropriate procedural fairness before dismissal – and borne the consequences.

Think before you act – keeping emotion out of the workplace

When suspected serious misconduct occurs in the workplace, employers often feel that they have no choice but to act swiftly and deal with the offending employee once and for all. 

The unspoken motivation is often that employers and co-workers may simply stop liking an employee once the basis for suspicions is laid, rendering a continuing relationship near impossible.

Keeping procedural fairness at the centre of decisions

The decision in Platypus Shoes illustrates that suspicions of serious misconduct are not enough to warrant summary dismissal. Instead, the Fair Work Commission found that employers must demonstrate a willingness to listen to any response to allegations made against an employee before determining a course of action.

The employer's failure to ensure that the employee was afforded procedural fairness meant that he was found to have been incorrectly terminated. The employer would have been within their rights to effect a summary dismissal if the employee had been given adequate opportunity to respond to the allegations of misconduct levelled against him.

A defence straight out of a Monty Python sketch

Another case where an employer made a rash decision based on an entrenched point of view was in the matter of Somasundaram.

This involved the dismissal of a teacher for reasons which the Department of Education and Transport conceded (after the unfair dismissal proceedings had already commenced) were less than adequate.

Despite this concession, the department maintained that the employee should not be reinstated and kept this position through several levels of appeals.  

Ultimately, the department was ordered to pay the teacher's significant costs of almost $90,000, all because it refused to accept that the teacher should be reinstated because of the improper dismissal.

The vexing question of blue language

There were two cases involving language inappropriate for the workplace in 2016.

So what happens when an employer feels threatened by the words of an employee?

In Hennigan, the use of the expression "I'll fix you up" by an employee was considered to be a sufficient threat to warrant summary dismissal. However, this was in response to one-sided threats from the employee against the employer.

By contrast, when strong language was used by both parties involved in an argument in Hain – and the dismissal was communicated informally through a text message – this was considered insufficient grounds for dismissal and the employee was reinstated.

The clear lesson here is that, if employers are seeking to dismiss employees, they must ensure that they keep a cool head and avoid entering into a heated argument which might taint the dismissal.

The need to consider mitigating factors in dismissal

The decision of Anders is particularly important for employers trying to establish whether an employee has shown mitigating factors which should be taken into account when considering a dismissal.

A teacher who had suffered a breakdown and consequently aired her frustrations with her employer on social media was summarily dismissed.

However, the commission considered that the employer should have taken into account various mitigating factors, including the employee's mental health diagnosis, her husband's poor health and her employer's failure to intervene when the employee's relationship with co-workers began to break down.

Her termination was considered invalid, and compensation was ordered.

The take-away lessons from 2016

These decisions all demonstrate why employers must remember to play devil's advocate before terminating an employee, and must consider whether there is any argument which the employee might use in their favour to demonstrate that their dismissal was inappropriate.

Once a dismissal has occurred, an employer must be prepared to accept that the dismissal may have been unjust – or risk bearing the significant financial ramifications of holding an unreasonable entrenched position.

As we launch into 2017, these cases are a timely reminder of the need for fairness in workplace investigations. If you’d like assistance with an investigation or training in how to conduct a thorough one, contact us.

To read more about some of 2016’s interesting cases in fair work and employment law, check out this free whitepaper here.

Key Take-Home Messages from the Fair Work and Employment Law related Cases of 2016: Part 1

Harriet Witchell - Wednesday, January 04, 2017

As another year gets underway, it’s timely to look back at some of the most significant fair work and employment law-related decisions handed down during 2016, and the lessons employers can take away from these cases. In this two-part series, we first look at how general legal principles fit into the sphere of employment law. In the second instalment, we’ll explore cases which are all about emotion and personal opinions – and what happens when these cloud workplace and legal decisions.

IMPORTING CRIMINAL AND OTHER LEGAL PRINCIPLES INTO INDUSTRIAL LAW

Most employers are familiar with the basic principles of what could constitute unfair dismissal. But one particularly unusual circumstance of an unfair dismissal case was considered by the full bench of the Fair Work Commission during 2016.

The employee at the centre of the case had caused a motor vehicle accident on his way home from work, and subsequently admitted to police that he had been smoking synthetic cannabis.

In Colin Wright v AGL Loy Lang, the dismissed employee argued that the employer could not rely on his admissions to the police, claiming that the Pfitzner principle preventing admissions from being used in later proceedings applied in his circumstances. When considering whether a criminal law principle could be applied in civil proceedings, the commission upheld the earlier decision, and found that it could not.

Another significant decision of 2016 considered whether intent to harm – generally a criminal concept –is required in workplace bullying matters. In the Carroll decision, it was found that even innocent behaviours could constitute workplace bullying. The commission focused particularly on the accused manager's micromanagement and monitoring of staff, and the cumulative effect of this managerial style.

The question of privilege

Anyone who watches legal and crime dramas on television is familiar with the existence of legal professional privilege (LPP)– however what is less well known are the circumstances in which such privilege can be and is waived.

In Kirkman, the issue was whether an investigation report into an employee's behaviour had to be produced to the employee after certain allegations addressed in the report were put to him.

In reaching its decision, the commission spelled out the key principles surrounding LPP and pointed out that LPP can be easily waived if one of the parties acts in a way which is inconsistent with the maintenance of the privilege.

In Kirkman, even though the allegations contained in the report were put to the employee, this was not considered sufficient to waive privilege.

The importance of following the rules of evidence

Many tribunals and similar bodies, including the commission, are not bound by the rules of evidence. However, in the case of Wong, an application was made to the Federal Court seeking permission for a layperson employer to defend an adverse action claim.

The court held that various components of the evidence were inadmissible and failed to comply with requirements of the court, and accordingly legal advice had to be obtained for the case to proceed. Importantly, the decision in Wong sets out various principles relating to obtaining and providing appropriate evidence in industrial proceedings.

The need for rigorous workplace investigations

Finally, the recent decision of Hedges involved a dismissal which had occurred after an external investigator had failed to include essential and relevant material in their report.

The employee was terminated following an altercation with another employee, but the investigator had downplayed what could have amounted to provocation by another employee.

This decision demonstrates that employers must take care to ensure that workplace investigations are unbiased, comprehensive and transparent – otherwise the dismissed employee could well be reinstated, as in Hedges.

Lessons to take from the year that was

Although each of these five cases involves a very different set of circumstances, employers would do well to remember that:

  • Industrial and employment law has its own legal principles, which cannot be easily mixed with criminal or other legal doctrines.

  • Simply appointing third party investigators or solicitors is not sufficient to ensure that any dismissal will be upheld – their work must be transparent and unbiased.

  • Legal advice should be obtained at an early stage to avoid any complications.

Significant employment decisions can provide valuable feedback for all employers. We’ll cover further decisions of note in part 2 of our series, and if you’d like to start the year off on a positive footing with training in investigations, contact us.

To read more about some of 2016’s interesting cases in fair work and employment law, check out this free whitepaper here.

Protecting and Managing Volunteers in the Workplace

Vince Scopelliti - Monday, November 28, 2016



Most of us agree that volunteer work is an excellent initiative; one of those ‘win-win’ situations where both the organisation and the community benefit from the unpaid work of kind citizens.

We also understand that even the best work-related relationships have their challenges. These include issues around workers compensation, clashes between paid and voluntary workers, navigating child protection requirements, plus the spectres of nepotism and bias in volunteer organisations.
Liability for workers compensation and volunteers

It is not surprising that for some employers, it can be a little unsettling to think about workers compensation and related implications that come with having volunteers on board. After all, when goodwill brings people to your organisation, the last thing on your mind might be the possible costs of work-related injuries.

Across Australia, workers compensation and/or public liability regulations relevant to volunteers tend to vary, with jurisdictions and insurers assessing coverage and liability in different ways. But the overall repercussions tend to be the same for employers – volunteers who suffer a workplace injury are entitled to seek compensation under the organisation’s relevant insurance cover, whether public liability or workers compensation. This can have obvious impacts on staff levels, premium costs and overall levels of productivity.

For some employers, this aspect of securing volunteer workers can go overlooked. It is certainly a much-appreciated boon when volunteers come on board in organisations. Yet, like any aspect of a corporate endeavour however, the possibility of injured volunteers should be viewed from all angles.
Cultural clashes between volunteers and professionals

When volunteers come to provide help within an organisation, the reception from paid staff can sometimes be mixed. First of all, new volunteers need training and help with integration into the site’s culture and systems. Regular staff can feel burdened with the extra work and time that this entails. An ‘us and them’ culture can also lead to silos of information, based upon a sense of ownership.

This can emanate from both categories of staff – paid workers may feel like the ‘real’ employees, while volunteers might have a sense of being there for the ‘right’ reasons.

At a more particular level, awards and industrial organisations might have varying conditions relevant to the two groups of workers.

Should this be cause for concern? Bearing in mind that such issues of cultural clash can often lead to stress claims and overall disruption of productivity, the answer must surely be yes. We perhaps do not have to look any further than the current Victorian CFA fire fighter dispute to see the powerful and potentially damaging results of volunteer-versus-paid worker clashes.

Getting culture right in a volunteer-led group is no easy task and the dissatisfaction of unpaid workers is one of the first signs that problems are developing.

Further, if paid or volunteer workers develop a psychological injury from work-related stress, bullying or inept change-management, then employers certainly have a problem on their hands – and more than one claim arising from the situation is a definite possibility.
Child protection and volunteer organisations

Having volunteer workers available can be a definite plus for businesses and community alike. Undoubtedly, the positives inherent in volunteer arrangements are well known. One volunteer situation that requires close analysis, however, is the protection of children in any scenario where volunteers are involved. In churches, sports organisations and youth clubs for example, there is significant reliance upon the assistance and kindness of volunteer workers.

It is essential for employers in such organisations to ensure that all legislative and practical measures are employed to ensure the safety of children. A targeted workplace audit of policies, procedures and work practices relevant to volunteers and children can help to ensure that unnecessary risks are eliminated. Necessary alterations might include Blue Card applications or shift work controls – as examples – or indeed might extend to more far-reaching initiatives relevant to child safety. Sourcing expert advice on these issues is paramount.
Nepotism and bias in volunteer organisations

A further issue that can infiltrate volunteer-based organisations involves favouritism, both real and perceived.

While volunteers are not paid, they certainly devote themselves to their chosen organisation. The desire to be treated fairly is shared by both paid and volunteer workers. Accordingly, employers need to be aware that treating workers with equal respect can be an essential part of ensuring workplace cohesion.

Any impulse to ‘cut corners’ in volunteer situations in order to employ, train or favour certain people must be carefully avoided. Nepotism and bias in work allocation can be real temptations when one or two people seem particularly competent.

When the financial situation is challenging it can seem like an obvious solution to rely on ‘unpaid’ workers rather than rostering paid employees on shifts. Yet the ethos of volunteer organisations generally requires a more nuanced approach to staffing arrangements. For example, when a rare paid position arises in the organisation employers should ensure that no bias is exhibited towards any particular volunteer. In order to prevent cultural problems arising, clearly articulated policies and procedures are a necessity.
Practical solutions
In organising workplaces to successfully accommodate both paid and unpaid workers, attention to detail is paramount. What may appear on the surface to be an industrial ‘good news’ story in fact has the potential to foster resentment, tension and even bullying.

Volunteer-based organisations have the challenging task of juggling safety and compensation issues, as well as cultural and merit-based concerns. It pays to thoroughly audit the processes and safety mechanisms currently in place, keeping in mind the delicate nature of staff-volunteer relationships. Experts in the field of volunteer workplaces can give employers the peace of mind necessary to navigate this specialised work environment.

Investigating Workplace Bullying

Harriet Stacey - Tuesday, July 12, 2011
Radion National has just aired an excellent report on the challenges facing people investigating workplace bullying. The discussion covers Brodie's Law in Victoria but also the issues for WorkSafe in making determinations in bullying cases. 

Recommended listening