A Perplexing Problem: Protecting Children Overseas

- 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

- 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

- 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

- 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