Work Christmas Parties: 3 Tips for a Fun Festive Function

Vince Scopelliti - Wednesday, November 14, 2018

It's the end of a long year. Employers and staff alike have worked hard and are looking forward to the opportunity to catch up, celebrate, network and relax.

The work Christmas party is often anticipated as an ideal way to farewell the working year, reward staff, and anticipate the year ahead. However, employers must understand that a successful - and incident-free - Christmas party is dependent upon good planning and a sound understanding of the unique risks of work-related events. 

We provide our three best tips for ensuring a fun, safe and low-risk festive event. 

1. uNDERSTAND YOUR UNIQUE OBLIGATIONS 

One unfortunate mistake that we see in December is employers putting on a 'knees up' for staff without fully understanding the obligations involved. Importantly, it is not only parties held in the workplace that require careful consideration of an employer's legal obligations to staff. Festive functions that are off-site, yet employer sanctioned generally attract the full suite of workplace legalities. Required attendance or strong encouragement to attend, combined with free catering and in-built networking opportunities can all indicate that the Christmas party is indeed a work-related event, wherever it might be held.

Workplace safety usually brings to mind ideas of trip hazards and work station alignment. However, when it comes to the work Christmas party, some hazards are very particular. An open bar is a definite no-no. While some staff might groan about the lack of generosity, the relationship between alcohol and poor Christmas party behaviour is well-documented. It is no laughing matter for those employers who are faced with issues of alleged harassment, staff abuse and injury to workers in the wake of a Christmas 'cracker'.

2. Prepare, Prepare and prepare!

Clear communication to all staff about the nature of the upcoming Christmas party is essential. Without seeming like a kill-joy, it is important to outline in writing the expected behaviour of staff, venue rules and general housekeeping such as the end time of both the bar tab and the function itself. A good idea is to build a basic run-sheet into the invitation. Indicate a start time, any speeches and awards, food presentation, bar hours and offerings and close of proceedings. Preparing staff mentally beforehand will discourage untoward behaviour. 

The importance of limiting alcohol and providing professional function staff at Christmas parties was made painfully clear in the recent case of Sione Vai v Aldi Stores. An inebriated worker became extremely agitated when refused service of alcohol by a responsible bar worker. 

As part of his inappropriate and drunken behaviour, the employee threw a full glass of beer towards a security officer, which sprayed co-workers before smashing into a lamp. He was later dismissed. In appealing this decision, the worker claimed that he lost his job as a direct result of this employer-sanctioned party. 

However, Commissioner David Gregory considered that the provision of professional security and bar staff - trained in Responsible Service of Alcohol (RSA) - as well as a limited supply of alcohol all indicated that the employer had acted with care and diligence. The dismissal was upheld. 

3. respond swiftly to christmas party incidents

As seen in the above case study, preparation and quick action at the time of the function is essential. The aftermath of the party is also a crucial time to consider any necessary responses to incidents that come to light, whether by rumour or direct report. Unfortunately, sexual harassment, verbal abuse, alcohol-related injuries and culturally inappropriate behaviour can all rear their ugly heads at the very function that is designed to foster fun, camaraderie, reflection and unity. Employers should swiftly respond to any Christmas party incidents, ensuring that matters are investigated in a fair, professional and transparent manner. 

decking the halls (safely!)

Equipped with a strong understanding of legal obligations, some sound preparation and prompt responses to any incidents, employers can create a Christmas party that is enjoyable, safe and memorable for all the right reasons. 

If you need assistance to prepare for your Christmas party, or dealing with any issues, which arise from the Christmas party, contact WISE for assistance

Overcoming Unconscious Bias

Vince Scopelliti - Wednesday, November 07, 2018

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

What is unconscious bias? 

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

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

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

the effects of bias 

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

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

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

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

what is best practice?

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

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

what can employers do?

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

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

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

Procurement and Corruption - The Warning Signs

Vince Scopelliti - Wednesday, October 31, 2018

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

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

procurement fraud

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

red flags of corruption 

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

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

a complex framework

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

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

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

Solutions to fraud and corruption

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

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

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

hear it on the grapevine

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

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

Is Briginshaw Still the Best Way of Solving the Puzzle?

Vince Scopelliti - Wednesday, September 19, 2018

As any HR manager will testify, conducting workplace investigations is one of the most important but vexed aspects of ensuring that an organisation runs smoothly. 

This is particularly the case when the various parties involved in an investigation are putting forward different versions of events - who do you know who to believe? For many years, workplace investigators have employed the Briginshaw test. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1930) 60 CLR 336 is generally regarded as authority for the proposition that if a finding, on the balance of probabilities, is likely to produce grave consequences the evidence should be of high probative value.

But how is this test applied to resolve disputes and make findings in workplace enquiries?

what is it?

The Briginshaw test refers to the civil standard of proof employed in the legal system, specifically in the 1938 divorce case of Briginshaw v Briginshaw. A 'standard of proof' refers to the evidence required by a court or, in the workplace context, an employer or investigator, to make a determination as to the likely truth or otherwise of allegations. 

Although the criminal burden of proof requires evidence to support a finding of 'beyond reasonable doubt', the civil standard only requires an assessment on the balance of probabilities - that is, whether it is more likely than not that one version of events occurred rather than another. 

In Briginshaw, the High Court warned that making a decision on the balance of probabilities does not require a purely mathematical 'weighing up' of the likelihood of one version of events being true over another. Instead, the decision in Briginshaw supports a conclusion that sufficient evidence has been provided if "the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal". In the workplace context, the tribunal determining the matter is the investigator. 

CASE STUDY - SEXUAL HARASSMENT IN CITY HALL

In workplace investigations, individuals are required to respond to allegations, as was the case with the (now former) Lord Mayor of Melbourne. In late 2017, Robert Doyle was accused of having sexually harassed two female councillors by inappropriately touching them. 

In March 2018, an investigation conducted by a Queen's Counsel was finalised, although Mr Doyle had already resigned by this time. Given the seriousness of the allegations and the potential consequences, the investigation relied on the Briginshaw test, and applied a standard whereby the investigator was 'reasonably satisfied' that the specific allegations of sexually inappropriate conduct related to Mr Doyle in his role as Lord Mayor. 

In Mr Doyle's case, the investigators accordingly based their determination on being "satisfied to a level which goes beyond the mere likelihood that something happened" that the allegations could be substantiated. 

The findings included that specific allegations were substantiated. More specifically the investigator made three adverse findings of sexually inappropriate conduct, and a fourth finding that the three matters occurred in the context of the Mayor having consumed substantial amounts of red wine. 

Factors which were taken into account in making this determination, included the likelihood of Mr Doyle having engaged in the behaviour because he had consumed significant amounts of red wine, and his credibility as a witness. The investigation also noted that one of the complainants made contemporaneous complaints and was consistent in her allegations. 

The report stated no findings had been made by a court or tribunal based on the information reported on as part of the investigation, however, if proven the behaviour could constitute sexual harassment within the Victorian Equal Opportunity Act 2010, and gross misconduct under the Local Government Act 1989.

what can we learn?

One difficulty with applying the Briginshaw test in workplace investigations, is that an investigation does not constitute a judicial process. Accordingly, participants give information on a voluntary basis only. 

This inability to compel testimony or information from witnesses may mean that a determination is made on the balance of probabilities - but without having all information available. Indeed, in the absence of a court or the threat of perjury, there is no real compulsion for accurate information to be given in a workplace investigation. Undue reliance on such information could result in an unjust determination. 

Failure to recognise the difference between a court and the role of an investigator can lead to mistakes, and allegations can be left unsubstantiated in circumstances when they may have occurred. In circumstances where the investigator is inexperienced or does not have access to all required information, it may well result in an inequitable outcome, or a situation where a conclusion is made based on partial information or poor facts. 

When a workplace or employee faces allegations, its important for the investigator to ask the relevant questions, examine documents, and analyse all relevant evidence carefully when making conclusions about what occurred. Making findings using the Briginshaw principle and explaining the reasoning behind the outcomes of the investigation can assist employers in considering what further action needs to be taken in light of the findings. 

It is important for employers and investigators to ensure that findings of workplace investigations will withstand the highest level of scrutiny. A higher level of skill will be required from an investigator when circumstantial or uncorroborated evidence is being considered. 

If you require assistance analysing evidence, or conducting an investigation, contact WISE today!  

Common Issues with Workplace Mediations

Vince Scopelliti - Wednesday, August 08, 2018

Occasional conflicts and disputes are a fact of life in all workplaces. One of the best ways to defuse difficult situations, resolve office concerns and keep your staff happy is mediation. But even though this is a potentially very effective device in the employer's toolkit, workplace mediations can go wrong.

Let's take a look at the process of mediation, and some of the issues which might arise. 

What is mediation? 

The mediation process requires all parties involved in a dispute or issue to meet in the presence of a third party (the mediator), to try and come up with mutually acceptable solutions.

The mediator is trained and is required to be neutral. Unlike a judge, they will not make a determination or decision - instead, a mediator will listen to all parties and suggest objective solutions and options. 

what happens during mediation?

During the actual process of mediation, the parties are encouraged to ventilate their respective viewpoints. Each party then has the opportunity to have private discussions with the mediator, after which the mediator will discuss any commonalities and the key differences in each party's attitude, while suggesting potential resolutions.

Outcomes are flexible and are really only limited by the willingness of the involved parties to cooperate. In the employment context, this means that mediations may result in agreement to apologise, or more novel outcomes such as crediting or debiting leave hours, returning property, or providing work references. Mediations are confidential, which also makes them an extremely attractive option. 

key issues with mediation

Mediation can be extremely helpful by providing a positive communication and solution tool in circumstances where there are no easy answers.

However, mediation may not be as successful if one or both of the parties are extremely entrenched in their viewpoint and are unlikely or unwilling to compromise. This is particularly the case because mediation is a voluntary process - so if staff are reluctant to participate, they cannot be forced to engage.

Further, where matters of serious misconduct or illegality are involved, it may be inappropriate to attempt to find novel solutions to workplace issues. In those circumstances, it is generally appropriate to follow the traditional paths of discipline, incentivisation or other resolution methods.

There can also be issues if parties don't comply with any agreed upon outcomes of the mediation process. 

potential for problems after mediation

Any agreement which is reached during the mediation process can be as formal or as informal as the parties and workplace prefer: from a simple verbal agreement all the way through to a Deed of Settlement recording the negotiated terms or contract stipulating future actions.

Should a formal agreement be executed and one of the parties subsequently reneges on the terms of settlement, the aggrieved party can pursue legal action through the court system to force compliance.

If you have an issue in your workplace regarding employee conflict, it may be useful to discuss these issues with an external, experienced workplace investigator or mediator. If you need support in how to conduct an investigation or need to engage a mediator, contact WISE.