Managing Volunteers in the Workplace

Vince Scopelliti - Thursday, January 16, 2020

Volunteers can be a fabulous resource in any business. Generally, they bring enthusiasm, true passion for the organisation's ethos and purpose, and a "can-do" attitude to the job.

However, volunteers in the workplace can also bring their own set of challenges for organisations. Even though they are not on the payroll, volunteers enjoy the same protections as paid workers are entitled to. Indeed, the Work Health and Safety Act 2011 (Cth) defines volunteers as "workers", thereby putting them on equal footing.

So let's look at some tips and tricks for managing volunteers in the workplace.

Employee and volunteer conflict

One of the risks inherent in relying on volunteers is conflict with employees. In part, this may be due to a "us against them" perception. Further, staff who are employed in the business on a daily basis, may perceive that volunteers have less of an understanding or practical knowledge of how tasks should be completed, or how things are done. Employees may also resent the apparent flexibility afforded to volunteers. A pertinent example is the longstanding feud between paid and volunteer Country Fire Authority staff in Victoria, which resulted in the CFA being devolved into a volunteer-only organisation in early 2019.

Difficulties managing volunteer conflict

In addition to the everyday personnel issues facing organisations, additional challenges involving volunteers include:

  • An unwillingness of volunteers to raise concerns or "rock the boat", largely due to the fact that they may already feel isolated or otherwise segregated from employees. Any conflicts or issues may not be raised with management, for fear of reprisals or concerns about not being taken seriously.
  • A lack of understanding of protections. Many volunteers may not be aware that they are entitled to the same protections as paid staff, and may consider it pointless to raise any conflicts or concerns with management.
  • Lower priority for the organisation. Even if volunteers do raise concerns, management may deal with these issues less expeditiously, because volunteers could be perceived as being easily replaceable. 

responsibilities of volunteer-active workplaces

Employers who rely on volunteers or who are considering welcoming them into the workplace, have a duty of care to provide a safe work environment. They must therefore take steps to protect volunteers from bullying and harassment.

In the same fashion, employers remain vicariously liable for volunteer's conduct and behaviour. For example, if a volunteer engaged in an activity on behalf of the organisation and negligently or otherwise causes injury to a third party, the employer could be found liable. This is despite the absence of any financial relationship between the volunteer and the business.

Organisations need to ensure that policies are updated (where required) to identify that they also encompass volunteer staff. Volunteers should be provided with copies of all policies, and their workplace rights and obligations should be clearly communicated.

When commencing a relationship with a volunteer, it is also important to ensure that there are very clear volunteer engagement "Agreements" in place. These should be carefully drafted to ensure that both parties are well aware of their rights and obligations under the agreement.

Volunteer-based organisations, like all workplaces, have a responsibility to provide a safe environment for all their workers. All conflict and alleged misconduct should be taken seriously, whether it relates to paid staff and/or volunteers. If your organisation needs assistance managing a challenging workplace conflict, WISE offers both supported and full investigation services to provide you with the flexibility you need. 

Managing Misconduct over the Holidays

Vince Scopelliti - Wednesday, December 18, 2019

The festive season is fraught with concern for employers. With many staff on leave and those who remain letting their proverbial hair down (often with a beverage or three!) the holiday period can be a minefield.

We take a look at when employees are still considered to be "at work", define misconduct and provide some tips for dealing with poor behaviour in the workplace over the holidays. 

When are employees still 'at work'?

A workplace is where people perform their jobs, undertaking their contracted hours of work. However, a work function held outside the office and outside regular business hours, is considered to be an extension of the workplace.

A general rule of thumb is, that if an event is organised and paid for by an employer, it's officially sanctioned. Liability therefore remains with the employer for any misconduct that occurs. This is likely to be the case, regardless of how many pre-event warnings have been issued to staff, and how many times staff have been reminded of the applicable policies and codes of conduct.

It is also important to keep in mind that employers may bear third party liability, to family members who attend a staff Christmas party, functions held in public venues (where people other than staff could get injured) and in circumstances where a worker causes injury to another person, when leaving an event in a state of intoxication.

defining misconduct in the workplace

Misconduct over the holiday period generally refers to inappropriate behaviour such as discrimination, workplace harassment and bullying, or sexual harassment. This type of behaviour is often associated with the Christmas party, where people have consumed alcohol and have lowered inhibitions.

It is important for employers to remember that the definition of sexual harassment, for example, includes but is not limited to, conduct of a sexual nature which is offensive, humiliating or embarrassing to the person complaining of the behaviour. Crucially, it is irrelevant if the behaviour was intended to offend - it is the opinion of the "victim" and not the "perpetrator" which is relevant.

Other types of misconduct include staff pulling "sickies" due to hangovers, or poor behaviour such as sharing inappropriate stories or having general disagreements between co-workers boil over.  

why is there a prevalence of misconduct over the holidays?

As noted, there is often an increased incidence of misconduct in circumstances where staff are consuming (potentially excessive) amounts of alcohol and otherwise lowering inhibitions.

There is also a general misapprehension amongst employees to the effect that a Christmas party is not considered to be related to employment - which is not the case.

This is part of the reason why employers should also give serious consideration as to whether they wish to gift alcohol, either to their staff or to clients or business associates. While alcohol is a convenient and often appreciated gift, it can create an impression that an employer is not concerned about responsible service of alcohol.

mitigating the risk of misconduct

There are numerous ways that employers can mitigate the risk of misconduct during the holidays. 

Before a function, employers should take steps to remind staff (generally via an email) that it is to be treated as a workplace event, and therefore the usual policies and procedures remain in place. It is also timely to recirculate documents such as code of conduct, sexual harassment or bullying policies and procedures.

During the work function, employers should consider ensuring that at least one (if not more) senior personnel are in a position to remind staff who have over-consumed alcohol, that they should stop drinking and/or perhaps even leave the event.

Similarly, companies should ensure that there are sufficient taxi vouchers or other safe methods of transport home, for all employees who want them. This ensures that the business cannot be responsible for any employees who injure themselves and/or others on the way from the party.

If allegations of misconduct do arise from a Christmas function, employers must ensure that due process and fair procedures are implemented. This includes taking into account the fact that staff may be on leave or have applied to be on leave.

Although the investigative process should not be unnecessarily drawn out, staff who have pre-booked leave, should not be prejudiced by the fact that they are unavailable at that time of year. They should have the same opportunity to prepare a response to allegations as at any other time of year.

Managing staff and keeping in touch with staff over a quieter holiday period can be a challenge. If you need assistance reviewing and managing staff behaviour in your workplace, WISE Workplace provides expert external investigation services to meet your needs. 

Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

When a Pre-Determined View Leads to an Unfair Investigation

Vince Scopelliti - Thursday, October 31, 2019

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural fairness when conducting a workplace investigation is highlighted in the Fair Work Commission decision of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). 

the facts of the matter 

The applicant, Mr Andrawos, commenced employment at MyBudget in July 2016. He came to his role, ultimately as a personal budget specialist, with a significant financial industry background, and was supported by tertiary qualifications. During his employment, he received numerous compliments, but was also informally and formally counselled for behaviour including "corner cutting", lateness and a failure to follow procedures correctly.

Mr Andrawos received a total of twelve informal warnings and eventually three written warnings for a variety of misdemeanours, including inappropriate comments made to a female client, resulting in a final written warning being issued. Despite having received the final warning, Mr Andrawos was subsequently involved in two further disciplinary processes. The first regarding his punctuality and the second related to inappropriate conduct with a female colleague.

Mr Andrawos then formed a friendship with a young man, Mr McBryde-Martin, which ultimately led to him providing financial recommendations as to what Mr McBryde-Martin should do with a sizeable inheritance he had received. Eventually, Mr Andrawos suggested that his friend come to MyBudget as a client, on a "friends and family" discount. Mr McBryde-Martin subsequently received financial advice and recommendations.

At one point, Mr Andrawos suggested that Mr McBryde-Martin transfer some $90,000 into a MyBudget account and offered to act as co-signatory. This upset Mr McBryde-Martin's mother (against a background where there was, although ultimately unfounded, some suggestion that Mr Andrawos had been drinking and gambling with Mr McBryde-Martin). His mother complained to MyBudget and Mr Andrawos was immediately escorted from the building and suspended. After some investigation, Mr Andrawos was dismissed from his employment. 

THE need for procedural fairness

The Fair Work Commission considered that Mr Andrawos' suspension and ultimately termination had occurred without sufficient procedural fairness.

Specifically, it was concluded, that he had not been afforded the opportunity to provide the necessary response and context to his employer.

Evidence supporting this conclusion included the fact that Mr Andrawos was initially given less than 24 hours to prepare a response to the allegation letter he had been issued.

Further, despite requesting statements provided by his colleagues, Mr Andrawos was denied access to this information and to the telephone call recordings with Mr McBryde-Martin, and the screenshots of text messages, which were being relied on by MyBudget as evidence in the disciplinary proceedings.

Taking a pre-determined view 

The Fair Work Commission was critical of the fact that there was evidence supporting the finding that a pre-determination had been made by the employer, before the investigative process has occurred. It was particularly noted that the employer appeared to be prepared to only undertake an investigation in form and not in substance - that is, that the employer had already decided to terminate Mr Andrawos. It was also held that Mr Andrawos was also prevented from putting forward his "defence" to his managers at an early stage, which reinforced the conclusion of the existence of a pre-determined outcome.

The evidence put forward to the Fair Work Commission suggested that a key decision-maker at MyBudget, had not been briefed with all relevant information prior to conducting a fact-finding interview, again critical in supporting a conclusion that a pre-determination had already been made. Moreover, no additional enquiries were made after the conclusion of the fact-finding process, most notably that no attempts were made by the employer to speak with Mr McBryde-Martin, regarding the nature of his mother's allegations. 

THE need for separation between investigator and decision-maker

The fact that the investigation was conducted internally at MyBudget by two people who ultimately were also the key decision-makers in the termination process, was criticised by the Fair Work Commission. This perceived conflict of interest tainted the investigation process and the termination decision and was directly related to the conclusion that, while Mr Andrawos' dismissal was neither unreasonable or unjust, it was deemed to be harsh. This highlights the importance of an investigative team, whether internal or external, collecting information and material on an objective basis, before providing it to the ultimate decision-makers for a determination.

This case demonstrates the importance of observing the elements of procedural fairness when investigating workplace matters. A former employee will likely be successful in an unfair dismissal claim, where an employer has entered the investigation process with a pre-determined view of the outcome. To assist your organisation with following a fair and reliable investigation process, WISE offers both training services and external investigation services

Outsourcing or In-House Investigations?

Vince Scopelliti - Thursday, October 03, 2019

For many businesses, one of the critical HR questions is whether investigations into alleged employee misconduct or misbehaviour should be outsourced or conducted in-house.

Depending on the nature of the business and the complaint, it may not always be appropriate or cost-effective for investigations to be referred externally.

However, in other circumstances, particularly when the allegations involve potential criminal conduct or there is an actual or perceived conflict, outsourcing may be the best option.

We examine the different circumstances in which investigations might best be outsourced or kept in-house.

outsourcing vs internal 

The key benefit of conducting workplace investigations internally is the ability to potentially deal with a matter swiftly and cost-effectively. The obvious reason here is that staff tasked with conducting an internal investigation, already have an understanding of the internal processes and procedures of the business. Although time away from normal duties is likely to be required, there is no additional cost associated with tasking existing staff to conduct an internal investigation.

On the other hand, depending on the nature of the allegation, existing staff may be lacking in capacity or capability to properly conduct the investigation. This is particularly likely to be the case if the allegations relate to potential criminal conduct which requires police involvement.

In addition, if the allegations are sensitive or have been made against a staff member who would ordinarily be involved in conducting the investigation, it may not be appropriate for the investigation to occur internally.

Whether the investigation is outsourced or conducted internally, it is essential that there are clear delineations as to who will be conducting the investigation. Further, the ultimate investigator must be provided with the applicable investigation policy and procedures which must be followed.

risks of handling an investigation in-house

As noted, there are numerous potential risks of handling an investigation in-house. Chief amongst these is the fact that the internal staff may lack the necessary skills or training to adequately understand the complex nature of the investigation. This could have significant ramifications if there are demonstrable gaps in the process, as this may ultimately invalidate the findings and any final decision which is made.

Having staff without the requisite experience or skills, conducting an investigation may also mean a failure to comply with legal obligations. In the event that the investigatory process results in termination of employment, litigation or other legal action, any failure to duly comply with all the legal and regulatory requirements, may potentially result in an adverse decision for the company.

The possible apprehension of bias in an internal investigation is significant, particularly if the employees who are conducting the investigation have a close personal or professional relationship with the complainant, the respondent or any of the witnesses. In a small company, or in a situation where a member in a senior leadership position has allegations levelled against them, this potential apprehension of bias is even greater.

This could also result in complaints of pre-determined outcomes, where staff involved in the process may argue that the investigation was not conducted in accordance with the principles of procedural fairness. Any relationship (whether positive or negative) between the investigatory staff and the parties involved in the investigation is likely to come under significant scrutiny. This may open up the investigatory team to suggestions that the investigation was not conducted impartially or fairly.

Factors for considering whether to outsource 

Impartiality and transparency in the investigative process are always crucial considerations. In situations where there are especially sensitive allegations or the staff involved are likely to resort to post-investigatory litigation, any potential concerns regarding failures in process or impartiality can be addressed by outsourcing the entire investigation.

Similarly, if time is of the essence (particularly when staff have been temporarily stood down and it is important that the investigation process is concluded in an expeditious fashion) outsourcing the investigation may be the preferable outcome. 

This is because external investigators are able to devote themselves completely to the investigation process, while existing employees will most likely need to continue on with their day-to-day work.

the benefits of outsourcing

Although there is a cost associated with the outsourcing of an investigation, there are added benefits. Investigators with specialist expertise are able to deal with complex matters, and are best placed to provide reports which are more likely to be relied upon by the Fair Work Commission.

The majority of contemporary workplace investigations come with their own set of challenges and complexities. If you do not have the time or resources to conduct an investigation or you require an experienced investigator, WISE offers both supported and full service investigations to best assist.  

How to Move Forward After a Workplace Investigation

Vince Scopelliti - Wednesday, September 11, 2019

A workplace investigation can be a traumatic and emotional event for everyone involved. 

Let's take a look at how an organisation can move forward after a workplace investigation, regardless of whether the complaint has upheld or if any disciplinary action has been taken. 

WHAT happens when an investigation is concluded? 

After the investigative process has finished it is important for all parties involved to be updated on the outcome. This includes the complainant, the accused and potentially in some circumstances, witnesses who have been heavily involved in the process. It is important that the parties are kept in the loop and do not find out from each other or another source, that the investigation has concluded. 

Any concerns arising out of the investigative process and findings which are raised by the parties, should also be dealt with. This may include questions of how confidentiality is to be maintained; details of how any disciplinary action will be implemented and work in practice; concerns about how the parties are to continue to work together (if possible); and how an organisation will be able to support all of the parties affected by the investigation findings and outcomes. 

Once these concerns have been identified and addressed to the best of management's abilities, the outcome of the investigation should not be shared with the workplace generally. However should be communicated with the applicable parties, where appropriate to do so, that does not breach any parties confidentiality.  

Having a communication strategy will avoid rumour or conjecture.   

what are some common complications? 

It may be tempting for management not to share the outcome of an investigation with staff. This approach is usually taken in an effort to avoid breaching confidentiality or to squash gossip. 

However, poor communication generally results in a growing mistrust of management - especially if a decision is made to terminate a respondent's employment. If they are simply there one day and gone the next, this can have a negative impact on staff confidence levels. 

Communication is particularly crucial if the investigation has led to changes in the management structure. These changes could occur, for example, because there is a termination of employment in a team, or it has become apparent that the 'old' structure isn't efficient. These types of changes require extremely good communication at all times. 

Similarly, the temptation for staff to breach confidentiality and gossip is extreme after an investigation. This is especially so if the outcome is perceived as being unfair or inappropriate. In order to minimise the spread of gossip, management should ensure that as much information that is appropriate and maintains confidentiality, is distributed to the business in a timely fashion. All parties involved in the investigation, regardless of the nature of their involvement, should be reminded of their confidentiality obligations and the potential consequences of breaching them. 

Another common post-investigation outcome is the desire for retribution. This may occur regardless of what the findings were, because for example a peer may consider that a colleague has been treated unfairly. Alternatively, a colleague may form the view that the investigation has not been through or harsh enough or has come to the wrong conclusion. Regardless of the motivation, management must be cautious to avoid and identify any retribution and manage any issues that arise swiftly if this behaviour occurs. 

post-investigation strategies 

Even if an investigation has been run thoroughly and 'cleanly', it is important for post-investigation strategies to be in place to avoid potentially negative consequences. 

As noted, these strategies include excellent communication on a 'top down' basis. This is to minimise gossip and to ensure that confidence in management is restored. 

Additional strategies may include arranging mediation for the involved parties, to ensure that any concerns are voiced before an independent third party. 

The post-investigative period is also a good time for the organisation to pull together as a whole and discuss workplace values and standards. This can be an opportunity to reflect on the nature of the allegations (to the extent that they are disclosable) and to reaffirm the organisation's approach towards such behaviours.

If the alleged behaviour is particularly offensive, and strict action was taken as a result, this can also serve as a timely reminder for the organisation to reinforce and remind all staff, that code of conduct or criminal breaches are taken extremely seriously. 

Similarly, any changes in company culture or procedures that are clearly required in the wake of the investigation, can best be introduced in this timeframe. 

If you need effective resolution of workplace disputes following an investigation, WISE Workplace provides advice coupled with mediation services on how to best resolve post-investigation concerns.

How to Deal with Workplace Conflict

Vince Scopelliti - Wednesday, September 04, 2019

Any sphere in which humans interact with each other is likely to involve certain levels of conflict. This is certainly the case in the workplace, where employees are required to spend significant amounts of time with people they may not otherwise choose to be involved with. 

Although workplace conflict is unavoidable, it does need to be dealt with to ensure that staff remain engaged and productive. We take a look at the best strategies for resolving issues amongst employees.  

WHAT IS WORKPLACE conflict?

There are two broad types of conflict which can occur in the workplace. These include conflict of ideas, and personality clashes. 

By and large, a conflict of ideas can be a force for positive change in the office. This type of conflict generally arises when two or more employees feel strongly about the way something is done. One staff member may like following detailed processes to the absolute letter, while another staff member 'wings it'. Although these different working styles are likely to result in conflict and frustration, it is important that all workplaces embrace differences in employees, for the betterment of the organisation. 

A much more negative type of conflict, however, arises from personality clashes. While not all staff will get along all of the time, it is important that a minimum level of appropriate behaviour is insisted upon within the workplace. This includes always treating colleagues with respect, being polite and courteous.  

consequences of workplace conflict

Negative workplace conflict, which typically arises from personality clashes, results in reduced productivity and the creation of a toxic workplace. It goes without saying that staff who are locked in unhealthy relationships with their colleagues are more likely to take sick leave to avoid seeing their co-worker. Alternatively, there may be increased levels of presenteeism, where staff attend work but are not providing their best work. Even staff who are not directly involved in the conflict will likely feel increasingly stressed due to the negative atmosphere, and ultimately this will result in higher levels of staff turnover. 

Situations where there are high levels of conflict could also potentially result in more serious types of negative behaviours being engaged in, such as bullying, victimisation or harassment.

Resolving the conflict

There are many techniques and strategies available to employers to manage workplace conflict. Mediation utilising an independent third party can be particularly helpful, especially in cases where traditional management action has not been successful. 

Through mediation, staff members can ventilate their concerns and feel they have been adequately heard. As the mediator is generally an external party, employees are also less likely to feel that biased decisions are being made against them. 

Additional techniques include ongoing training for staff, in particular as to what types of behaviour will and will not be tolerated in front of peers. All expectations on behaviour must be recorded in clear policies and procedures. 

It is also important for employers to improve communication, so that staff know what is expected of them and what type of behaviour will not be tolerated. Management must also take clear steps to nip intolerable levels of workplace conflict in the bud, as soon as it becomes apparent.

Team bonding activities can also be a helpful way for staff to get to know their colleagues better, and perhaps develop an understanding of their motivations and concerns. 

By following these techniques, unnecessary and toxic workplace conflict and culture can be minimised. This in turn will have a positive impact on any organisation. 

Conflict among staff can easily fuel larger problems within an organisation, stunting productivity and quality of services. If your workplace is experiencing internal conflict and requires independent and expert support, WISE Workplace houses experienced mediators to help facilitate the resolution of workplace conflict.

How and When to Report Workplace Bullying

Vince Scopelliti - Wednesday, August 28, 2019

Workplace bullying can sometimes be difficult to identify. After all, people from many different walks of life are thrown together in a working environment, and this will often result in personality clashes and natural disagreements. Not everybody in the office will be friends with each other. 

So how can you tell when something has strayed into the area of workplace bullying? And how do you know when to deal with it formally? 

what is workplace bullying?

The simple definition of bullying in the workplace is 'repeated and unreasonable behaviour' directed towards an individual or a group of workers that is ultimately posing a risk to their health and/or safety. 

This may mean pranks or 'hazing', which threaten the physical health and/or safety of an individual can constitute bullying. Other types of bullying include psychological harm caused by aggressive behaviour, abusive comments, unjustified criticism, or subtler behaviours, such as excluding and isolating colleagues from activities in the workplace. 

In 2017, Safe Work Australia published statistics which showed that 39% of all mental disorder claims arising from the workplace, involved harassment or bullying. However not everything which is unpleasant or creates conflict in the workplace constitutes bullying. 

Management staff are entitled to engage in 'reasonable management action', intended to deal with workplace issues. Similarly, disagreements between co-workers which are appropriately managed or resolved need not constitute workplace bullying. 

On the other side of the coin, conduct which involves the victimisation of a person in a way that constitutes discrimination, is a separate category of workplace offence. Although clearly very serious, allegations of discrimination should not be conflated with the concept of workplace bullying. 

when should bullying be reported?

It is clear that the effects of workplace bullying can be far reaching. Bullying not only affects the mental and physical health of the employees directly involved, but can impose additional stressors on all staff and create disharmony in the workplace. 

A good litmus test for determining whether behaviours should be reported or formally dealt with as workplace bullying, is if the behaviours occur repeatedly. If the behaviour is repeated this suggests a wilful or reckless disregard for the needs of the bullied colleague and demonstrates a clear pattern of poor and inappropriate behaviour. 

In any event, reporting matters which make the workplace a less pleasant environment, is always a prudent course of action.

how to report workplace bullying

There are many different ways to report bullying in the workplace. Perhaps the simplest way is by reporting it directly to a supervisor, who then has a duty to pass the information further up the line. 

Of course, this can be problematic if the allegations of bullying involve the supervisor in question or someone even further up the hierarchy of an organisation. Alternatively, a report may be made to a Health and Safety Officer, or directly to the Human Resources team. As a last resort an individual could report the conduct to the Fair Work Commission, or the appropriate state agency such as SafeWork NSW, Victoria, SA etc. 

Depending on the nature and seriousness of the allegations, it may be appropriate to make the report in writing. 

There may well be circumstances, however, where it is preferable to make an anonymous report or otherwise not become too involved in the formal process. In these circumstances, a whistleblowing action may be the more appropriate way to make a disclosure. 

One of the key advantages of whistleblowing is that the bullying behaviours can be reported to a greater selection of people, including senior managers, officers of the company or any other person authorised to receive 'protected disclosures'. This can lessen any discomfort about reporting direct supervisors. The process is also confidential, and reporting can occur anonymously, which is likely to assist in the event of concerns about potential reprisals. 

If there are concerns about bullying in your workplace, there are simple and active measures that can be taken to address any concerns reported. WISE Workplace is an expert within the field of workplace bullying and offers organisations both investigation and whistleblowing services.  

Ruling on Anonymous Social Posts a Warning for Employees

Vince Scopelliti - Wednesday, August 21, 2019

In the highly-anticipated decision of Comcare v Banerji, the High Court has found it is not unconstitutional for the federal government to restrict the rights of public servants to express their political views in a public forum. 

So what does this decision mean for employees, freedom of political communication and the right to free speech? 

The facts of the matter

The respondent in Comcare v Banerji [2019] HCA 23, Ms Michaela Banerji, was employed by the Department of Immigration and Citizenship until September 2013. At this time, her employment was terminated for having breached the Australian Public Service's social media policy and code of conduct. 

Specifically, it was claimed that Ms Banerji had 'tweeted' several thousand posts under an anonymous handle. Those posts commented explicitly on the federal government; Australian immigration policy; ministers; opposition spokespeople and her specific department. 

Following her dismissal, Ms Banerji pursued a number of legal proceedings, claiming that her termination had breached her implied right to freedom of political communication. 

Ms Banerji was successful in her argument before the Administrative Appeals Tribunal, which held that the anonymity of her Twitter account meant that she could not be identified as a public servant and the policy of her employer had been applied too strictly. 

However, this decision of the AAT was ultimately overturned on appeal to the High Court.

the findings of the high court

In determining in favour of Ms Banerji's employer, the High Court explicitly found that, although the Australian Constitution provides a freedom of political communication, this 'is not a personal right of free speech'.

It was further concluded that, anonymous or not, the tweets threatened the 'integrity and reputation' of the Australian Public Service. Moreover, it was of relevance that Ms Banerji was a public servant, which would become topical if her anonymity was ever threatened.  

the wider implications of the case

As stated in the Administrative Appeals Tribunal's decision, placing such significant restrictions on - anonymous - public servants could be considered akin to dealing with 'thoughtcrime'. This means that society is imposing rules and punishments on people who have 'done nothing' other than have differing opinions. 

Ultimately, the decision means that employees, whether in the public or private spheres must carefully consider expressing opinions, be they political or otherwise, which differ from those of their employer. It is clearly unwise to post controversial personal opinions under a readily identifiable name, which could in turn identify and embarrass a worker's employer and lead to a conclusion that the opinions have caused damage to an employer's reputation for example. However, of some concern is the decision of the High Court in applying the Australian Public Service's standard and code of conduct requirements to anonymous tweets. 

This decision is particularly topical given the controversy over the recent legal proceedings involving Rugby Australia and Israel Folau, a devout Christian, 'cut and pasted' text on social media about homosexuality and hell. Given Folau's high profile as a rugby player, his employer Rugby Australia, terminated his employment. Folau is pursuing legal proceedings, arguing that his religious freedom has been interfered with as a result of his termination. 

Although the nature of the defence differs from that put forward by Ms Banerji, the ultimate concept is the same: private individuals are putting forward commentary on personal beliefs and opinions, but on a public forum, and are being penalised by losing their employment as a result. Rugby Australia maintains that Folau's breaches of conduct occurred repeatedly, and that he had been warned on several prior occasions about posting such commentary on social media. 

While it is not yet known what the outcome will be for Folau, it is clear that these cases have wide-ranging implications for organisations and employees. 

WISE Workplace is highly experienced at conducting investigations and the surrounding complexities of contemporary legal issues. If your organisation holds concerns regarding inappropriate social media use, WISE can conduct investigations and analysis of electronic evidence to establish defensible findings.

The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.