COVID-19 decision making: Who is essential?

Eden Elliott - Tuesday, September 01, 2020

As employers, it can be difficult to classify any of your employees’ work as non-essential when every member of your team brings valuable individual strengths. These decisions can also pose significant risks where employers and employees want different things, sometimes leading to employees submitting appeals or complaints about their employer’s determination.

Image: balanced decision-making

We have all been surprised by COVID-19, and many employers have found a need to quickly develop  working from home and pandemic policies to support their decision-making around who stays home and who goes to work. What should these policies include?

  • Employers should always base their decision making on government directions at the applicable time, and appoint a designated officer to monitor and record new guidelines as they are issued. You don’t want to get caught having relied on old advice, or missed a crucial development. Any policies should be driven by this process of checking and applying guidelines, and identifying responsible decision-makers.
  • Review your other policies and make sure they capture the right circumstances. Does your definition of misconduct or bullying include online and remote behaviour? How are you upholding your data privacy obligations for staff working from home? Does your sick leave policy accommodate staff getting tested and waiting for results?
  • For larger organisations, it might be appropriate to decide working arrangements based on specific employee roles, which can provide employees with certainty and consistency around their futures. This can also increase practicality by allowing simpler identification of the working from home needs of each role.
  • Consultation is key to avoiding complaints, which means the policy should provide for employees to have the opportunity to request and make their case for how they prefer to work regardless of their role. These submissions should be kept private and confidential, and should invite employees to nominate practical, health & wellbeing, productivity and any other reasons. However, employers must take care to demonstrate that these submissions have been considered in any subsequent decision, and not ignored.
  • Put measures in place to support your staff while working from home and from the office in pandemic circumstances. Check in with them regularly, acknowledge the difficulties they face, and never forget to recognise their successes. Consider Employee Assistance Programs. Many employers have increased accountability measures for staff working at home, and it is  important to minimise feelings of micromanagement by recognising that these can also be a tool for identifying & addressing increased stressors and other difficulties that take up your employees’ time.
  • Put your duty of care first. At the end of the day, the wellbeing and safety of employees must take precedence, regardless of the short term frustration, decreased productivity and cultural changes to which working from home can contribute. The pandemic will not last forever, and an employer’s response to crises can have a significant impact on employee loyalty, retention and recruitment options in the future.
  • Get expert advice. If you find it difficult to build your processes, or if you receive complaints from staff, WISE can assist in reviewing decisions and policies to help meet employer obligations.

Call WISE on 1300 580 685 to help you develop your pandemic policy or respond to staff complaints.

Substantive, Not Superficial: A Call to Improved Procedural Fairness

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

The FWC recently found SA CARE’s dismissal of a casual disability care worker to be unfair and ordered compensation.

The employee in question was warned off tube-feeding clients due to her lack of certification. In response, she advised that she had been signed off on two appropriate training courses, had experience providing gastronomic care at another facility and had been approved by Disability SA. She believed she had been approved to provide that care.

Two days later, the employee was called without warning into a disciplinary meeting with HR where her lack of certification and other qualifications were discussed again.

The HR officer stepped out of the disciplinary meeting for five minutes.

On return, the officer handed the employee a summary dismissal letter which recorded that the employee had received an opportunity to respond to a serious misconduct allegation. the letter terminated her employment with immediate effect.

FWC’s Deputy President Anderson stated the “shocked” care worker was then “escorted off the premises in the knowledge and view of clients and staff, causing them further distress.”

FWC Findings

Ordinarily, an employee performing a medical procedure on a client, knowing they lacked the required certification would justify summary dismissal. Anderson acknowledges the care worker’s assumptions can be reasonably criticised, but also found that the “unique circumstances of this matter” with factors that significantly “mitigate the seriousness of the conduct.”

Anderson found the lack of notice and the timing of only 48 hours between the instruction and the disciplinary procedure to be harsh and unfair. The process also had only superficial procedural fairness, since the employee’s ability to respond was limited and she was not fully warned of the risks to her employment or afforded the right to support during the process.  Anderson also found that the urgent treatment of the matter was unnecessary. 

Anderson awarded the care worker four weeks compensation minus 25% for misconduct with SA CARE paying over $5830.74 in compensation. If you would like to read more about this case, please see: Chioma Okoye v SACARE Supported Acomodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020).

what can we learn from this case? 

Matters involving dismissal must be handled with utmost sensitivity, caution and procedural fairness even in matters of perceived urgency. There is often grey area in matters of misconduct that may seem black and white. To ensure you are best informed and equipped to handle these challenging circumstances, WISE offer expert third party HR services including training, investigations and reviews.

How to Navigate Counter Allegations in Investigations

Natasha Kennedy-Read and Vince Scopelliti - Friday, February 14, 2020

It is not unusual when investigating allegations such as sexual harassment, bullying or theft for the person accused of the misconduct to make a counter allegation.

This in turn can generate further counter allegations, making it difficult for investigators to keep track of a growing litany of wrongdoings!

Steering through the sea of counter allegations means handling each complaint separately, being mindful of procedural fairness and adhering to the civil standard of proof. 

Divide ALLEGATIONS into separate incidents

It is important not to conflate cause and effect when it comes to counter allegations. If the allegation is that person A slapped person B, who, according to A, retaliated by stealing A’s smartphone, these two allegations must be investigated separately.

It may be that that person B had nothing to do with the smartphone’s disappearance, or the slap never happened. 

By looking at them as two unrelated incidents, investigators will not ‘miss’ important evidence, such as A accidentally leaving their phone in a meeting room.

keep procedural fairness top of mind 

The smartphone theft/disappearance may only come up when B is being investigated for the alleged slap. The alleged wrongdoer makes the counter claim in an interview that was up to that point unknown.

In effect, this means there are two allegations under investigation. Depending on the circumstances, this new information may require the interview to be suspended while further inquiries are made by the investigator. 

While it may be tempting to view the counter allegation as 'tit for tat' failing to investigate this new complaint could be viewed by a court or tribunal as a denial of procedural fairness by the employer.

Many unfair dismissal claims are successful because the employer in question failed to afford procedural fairness to the alleged wrongdoer.

The civil standard of proof

While investigating allegations and counter allegations, compartmentalising each alleged incident, its timings and events ensures impartiality and clarity.

This means taking care with unwitnessed and testimonial evidence (hearsay). Vivid descriptions of events may sometimes be compelling yet have no bearing on actual events. Finding an impartial witness to an event can short-circuit this problem, but it can be difficult. Just because person C saw B running from the bathroom crying does not mean the cause was a slap from A. 

Investigators should apply the civil standard of proof when assessing evidence. This means that for an allegation to be substantiated, the evidence must establish that it is more probable than not that the incident occurred.

The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: 

  • Relevance of the evidence to the allegations. 
  • Seriousness of the allegations.
  • Inherent probability of an event occurring.
  • Gravity of the consequences flowing from a finding.
  • The likelihood that the required standard of proof will be obtained.

Employers and management must at all times remain unbiased. Just because a counter allegation is made during an investigation does not mean it lacks substance. It may be that the counter allegation carries more weight and is of a more serious nature than the initial claim.

It can be challenging for investigators when presented with counter allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, as well as formal qualifications such as Certificate IV and Diploma in Government Investigations.



Racial Discrimination at Work

Natasha Kennedy-Read and Vince Scopelliti - Wednesday, February 05, 2020

We are all familiar with the more obvious signs of workplace discrimination; but with targeted racism and xenophobia spreading faster than the Coronavirus, it is vital to be aware of the more nuanced and subtle acts of discrimination at work. 

Queensland has seen MP Duncan Pegg slam a phoney health department bulletin that warned online communities to avoid areas with high proportions of Chinese residents. In France, East-Asian communities began the now global #imnotavirus campaign, highlighting discriminatory comments from “are you dangerous if you cough?” to “stop eating wild animals then infecting everyone around you.” 

This problem is not new. In Canada in 2003, a similar wave of outbreak-fuelled xenophobia cost Toronto an estimated C$1bn, prompting public health officials to remind Canadians not to let ignorance triumph over respect in their communities.  

This viral endemic has already had a global impact on small businesses, schools and communities around the world, and workplaces are far from immune. Queensland surgeon Dr Rhea Liang said that “misinformation” on the virus has led to racially motivated remarks such as were made to her at work last week. Dr Liang’s patient refused her routine handshake, saying “you might have coronavirus” in front of her colleagues and several medical students. 

Most Australian workers are not at significant risk of infection, and employers and employees alike should be aware of the legal pitfalls they may encounter, and harm they may inflict, in attempts to protect themselves from the virus. In Dr Liang’s case, her colleagues were immediately supportive, but she worries about more vulnerable people exposed to racism that results from the stereotyping. 

The Racial Discrimination Act 1975 (RDA) makes it unlawful to discriminate against a person because of his or her race, colour, descent, national or ethnic origin or immigrant status. This extends to expressions of racial hatred against another person, and discriminating in the provision of services, entertainment and facilities or on less favourable terms and conditions. 

WHAT Does this mean for you?

We are all familiar with the obvious signs of racial or xenophobic discrimination, like slurs, segregation, targeted aggression and spreading racist rumours. Refusing to serve or deterring customers on the basis of their nationality or race, out of fear of Coronavirus is also an obvious and unlawful form of discrimination. However as a modern employer, it’s important to recognise the more subtle and nuanced forms of racism which can go unnoticed, and therefore be more damaging than overt behaviours. 

It is likely that racism at work is vastly underreported. 20% of Australians experience racism every year, but the Australian Human Rights Commission receives just several hundred racial discrimination complaints annually. 
More subtle and dangerous examples of discrimination include:

  • Xenophobic or racist ostracism of, or hostility towards, colleagues or customers in their workplace.
  • Avoiding contact or proximity with, or hostile body language towards people on the basis of their skin colour or nationality 
  • Unintentional or subconscious behaviour 

Subconscious biases and assumptions, even with positive intentions regarding safety or risk to others can all be considered racist behaviour. 

Prevention is always better than cure, and as an employer, workplace culture starts with you. If you are worried about your workplace culture, contact us to organise a Cultural Review. 

SO, how can i prevent racial discrimination from infiltrating my workplace? 

Education: 

Education on racial discrimination at work empowers employee understanding, sensitivity and conversation. Training programs are an important tool for eliminating more subtle discriminatory behaviours, by highlighting the nuanced nature of racial and cultural experience and necessity for sensitivity, and avoiding unintentional or subconscious infliction of harm. This can not only reduce incidences of discrimination but also create a positive culture where employees support each other, demonstrate and monitor their own standards of conduct and can minimise the emotional and psychological impact of external harm to their peers.

Conversation:

Creating space for productive conversations about race and discrimination at work is vital to a positive workplace culture. To encourage employee participation and make the most of these conversations, frame them in a positive and constructive way.

Outline the purpose and goals of the conversations from the outset:

  • Discuss views and experiences relating to racism in a non-judgmental and safe environment 
  • Learn from each other’s experiences and gain understanding that people experience racism in different ways
  • Reflect on intention and how we can unintentionally cause racial harm to our peers or colleagues 
  • Identify opportunities for growth within the organisation and develop systems for positive change 

Be prepared to support employees who may lack understanding of the real prevalence of racism and need for proper attention. People who are not part of a minority group are likely to have less experience of racism, so the nuanced nature of modern discrimination might come as a surprise. Constructive conversations can help these team members challenge their preconceptions, and help them to approach the issues with awareness and understanding. 

For tailored, expert and neutral third-party training programs or conversational facilitators to improve your workplace culture and tackle complex issues such as racial or xenophobic discrimination, contact WISE Workplace today. Working with an experienced facilitator or training provider such as WISE minimises the risk of tricky power imbalances countering your efforts to eliminate racial discrimination at work. 




Whistleblowing in 2020: Is Your Organisation Ready?

Vince Scopelliti - Thursday, January 23, 2020

The concept of whistleblowing was once frowned upon, or at the very least looked upon with trepidation. However, in recent years, the value of promoting whistleblowing as an acceptable way to improve corporate regulatory compliance and culture has been demonstrated. In this changing landscape, organisations are embracing whistleblowing - and many also have new obligations to comply with. 

Is your organisation ready for whistleblowing in 2020? Let's look at who can be a whistleblower; who is authorised to receive disclosures; and which organisations must have a whistleblower platform in place. 

What is whistleblowing?

Whistleblowers are individuals with some connection to an organisation, who choose to report corporate misconduct or illegal activities. 

Legislation, including new legislation which came into force on 1 July 2019, provides extended rights and protections to whistleblowers. Ultimately, the intent of the legislation is to ensure that whistleblowers are protected against reprisals, legal action, or general detriment, such as disciplinary action taken by the employer. 

Whistleblower protection may be afforded to various categories of people, including: 

  • Current employees of a company (or a related company)
  • The spouses or relatives of employees 
  • Officers of a company 
  • Contractors who have dealt with the company (potentially including volunteers)
  • General associates of the company

Whistleblowing also includes public interest disclosures. An example of a public interest disclosure might be an employee making a report about a bank which has been consistently charging members fees for no service. These apply in circumstances where a previous report has been made to ASIC or APRA and not actioned within 90 days, and the whistleblower is of the view that the information is of such importance to the public interest that it would be worthwhile reporting concerns to a journalist or a parliamentarian. 

Alternatively, emergency disclosures may be made if concerned parties have reasonable grounds to believe that the matters to be reported concern substantial or imminent danger to health and safety of people or the environment. 

how the disclosure process works

Disclosure about misconduct may be made anonymously, but must be reported to a specific group of people, including: 

  • Directors, company officers or senior managers
  • Auditors of the company 
  • Actuaries associated with the company 
  • A person specifically authorised to receive disclosures (generally a Human Resources officer) 
  • Regulatory authorities such as ASIC or APRA
  • Legal practitioners

Concerns can be reported internally using pre-determined organisational systems such as phone or online reporting. At the very least, an organisation should publish its whistleblowing policy and identify the people who are entitled to receive reports. 

Within a company, those authorised to receive disclosures must act on disclosures by investigating and protecting whistleblowers. 

WHY IS A WHISTLEBLOWING PLATFORM IMPORTANT?

The new legislation means that all public companies, large proprietary companies and corporate trustees of superannuation funds must have a whistleblower policy from January 1, 2020. Large proprietary companies are classed as those that have a consolidated annual revenue of at least $25 million, consolidated gross assets of at least $12.5 million or at least 50 employees.  

In addition to the legislative requirements, there are reasons why all organisations should have a strong platform for whistleblowing. 

These include increasing public and employee confidence in the desire of the organisation to “do the right thing”, and ensuring that senior personnel are safe in the knowledge that, if anybody is committing wrongdoing, staff and related persons can be confident to report those matters without fear of reprisals. 

One of the most effective ways to deal with whistleblowers is to set up an external hotline. This means that reports can be made anonymously. People can avoid potential embarrassment or concerns about making a report in circumstances where they potentially see the people whose conduct they are reporting on a daily basis.

WISE is a leading provider of whistleblowing services in Australia, offering organisations a secure service known as ‘Grapevine’ for staff to report concerns. 

Grapevine allows for anonymous reporting via phone call or online report. Reporters are enabled to provide supporting evidence, and can also choose whether to remain anonymous or leave their contact details. Each report is assigned a case number so it can be tracked throughout the whistleblowing and assessment process. Reports are reviewed by a highly trained and experienced team, and the organisation's nominated contact person is notified within 24 hours. Updates are available online. Depending on the level of service, the Grapevine team can also follow up and take action according to an organisation's whistleblower policy.

For more information on complying with whistleblower legislation, please download our free whistleblowing whitepaper which can answer your questions regarding the changes. If you would like an obligation-free cost estimate to implement a confidential hotline in your workplace, contact us here.

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. 

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.  

Receiving Workplace Complaints

Vince Scopelliti - Wednesday, July 03, 2019

Employers should be well aware of the legal and associated requirements that come into play when someone in the workplace raises their hand with a grievance. 

Complaints about unacceptable and/or inappropriate behaviour can arise from any work area, and in regard to a wide variety of issues. Grievance handling needs to be fair and consistent - yet with each situation being approached on an individual basis. 

We take a look at creating a sound process for the receipt of complaints, which reflects and follows existing policies and procedures.

types of complaints

Complaints can be made in relation to all manner of behaviours. Examples include allegations of bullying, harassment and sexual harassment and even - in workplaces involving children - child abuse. 

Harassment itself covers a wide range of behaviours that could occur on or offsite, including those via digital communication such as email, social media platforms and messaging. 

Employers should note that alleged perpetrators can be colleagues, managers and even occasionally worksite personnel such as contractors.

steps to take when receiving a complaint 

For employers it can sometimes be difficult to know just where to begin once a complaint has been received. At a basic level, all internal procedures and policies should be carefully followed to ensure fairness and consistency. 

A clear and well-understood complaints process needs to be in place prior to the (inevitable) receipt of a workplace complaint. All those involved should receive even-handed treatment, with any decisions being made in a defined and measured way. 

In some instances, the alleged behaviour will constitute reportable conduct, with an employer obliged to notify a specified body about the allegation under a compulsory reporting regime. 

As society comes to grips with some of the behaviours that can occur in relation to our most vulnerable individuals, more stringent reporting requirements for employers continue to be developed. For example, the National Disability Insurance Scheme has been designed to ensure that employers take timely and objective steps upon receipt of any relevant complaint

key principles when responding to complaints 

In the case of complaints, it pays to ask some basic questions about the situations such as:

  • Is the behaviour unacceptable or not?
  • Does the situation warrant measures to minimise the risk of ongoing harm?
  • Do I have a clear understanding of the issues?
  • Do I need additional information or assistance?
  • Can the matter be safely resolved between the parties or at a team level?
  • Should the matter be progressed to an investigation? 

A key issue is the manner in which the people involved in a complaint are treated and how any required information is communicated.

At all times, employers should take the matter seriously, refrain from victimising any individual and ensure the same treatment for all personnel involved.

Confidentiality should be maintained at all times and support mechanisms put in place for what is, inevitably, a difficult time in the workplace. 

Taking the right approach

It is vital for employers to be aware of their legal obligations and best practice when it comes to addressing workplace complaints. Complaint handling can become quite complex depending on the type of complaints and the number of people involved. 

WISE provides professional and up-to-date training on conducting workplace investigations. Our courses are specifically designed for those engaged in the investigation of workplace misconduct, including bullying and harassment. Please call us if you would like expert assistance around complaints processing and the best way to ensure fairness if - and when - a workplace complaint is received.  In addition keep an eye out over the next seven weeks, as we will be publishing a series of articles, in which we examine the workplace investigation process.