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.

How to Take Action when Employees and Alcohol Mix

Vince Scopelliti - Wednesday, March 27, 2019

Alcohol and workplaces never mix well. No matter the sort of work they do, employees should not be in the workplace when they are under the influence or still suffering the effects of alcohol consumption. This includes drinking at work or immediately before starting work, and those who are still impacted by a big night out. 

So what steps should an employer take when dealing with a worker who they suspect is intoxicated in the office?

approaching an intoxicated employee

Occupational health and safety legislation throughout Australia places an obligation on employers to protect not only the safety of the intoxicated employee, but that of all other employees as well. 

This means making sure that an intoxicated employee can't hurt themselves or anyone else. Accordingly, employers have an obligation to approach intoxicated employees and ask them to leave work immediately (without driving a vehicle, of course!). 

However, being intoxicated at work does not necessarily mean that employees can be terminated immediately. When determining whether a dismissal for intoxication in the workplace is 'valid' or can be upheld, courts will consider several factors. These include whether the company's drug and alcohol policy or any contractual arrangements in place with the employee are sufficiently clear to demonstrate that there is a 'zero tolerance' policy for alcohol in the workplace. 

Although employees should certainly be disciplined for being intoxicated at work, employers who are wishing to avoid claims for unfair dismissal should consider interim steps such as clearly worded warnings rather than summarily dismissing staff.

factors that may contribute to alcohol abuse

Of course, prevention is always better than cure. Employers should give some thought to factors that may encourage their staff to over-indulge in alcohol to the extent that they are intoxicated in the workplace. 

Key risk factors include:

  • Age, gender and socio-economics. According to the Alcohol.Think Again campaign, young men who work in lower skilled or manual occupations are statistically most likely to be involved in 'risky drinking'.
  • Isolation (geographical isolation or social isolation within work peer groups)
  • Bullying, harassment and other interpersonal difficulties
  • Poor supervision, or support in the workplace
  • Difficult working conditions
  • High levels of stress 

How alcohol use can impact the workplace

An intoxicated employee can pose a risk to the safety of themselves and others. This is magnified when the employee is in a customer-facing role, or they are required to do manual work involving precision or machinery. 

Regardless of the nature of the work however, job performance can suffer as a result of the poor concentration and low productivity that will likely result from intoxication.

Steps to address alcohol use in the workplace

In addition to mitigating workplace risk factors, employers should ensure that they have clear and detailed drug and alcohol policies which identify under what conditions an employee would be determined to be 'intoxicated'. Policies should also clearly spell out the consequences of breaching those conditions. 

Employers must ensure that any breaches of the policy are thoroughly and objectively investigated, and any required disciplinary action is taken swiftly. 

If you would like to know more about risk management and creating effective drug and alcohol policies, or you require assistance with investigating an incident involving an intoxicated employee, contact WISE today.

Mental Health in the Workplace

Vince Scopelliti - Wednesday, September 26, 2018

Making sure that your staff are fit and healthy, enabling them to perform their duties at an optimal level, forms an essential part of being an employer of choice. But beyond ensuring that your staff are physically capable, it is essential to also look after their mental wellbeing. 

Underestimating the importance of mental health in the workplace is likely to have lasting impacts on your workers, your business and clients. 

OHS legislation requires employers to provide a safe and healthy work environment for all workers, which does not cause ill health or aggravate existing conditions.

In a series of articles, we'll examine the impact of mental health issues in the workplace, how to take appropriate steps to support staff suffering these conditions, and how you can promote mental wellness in your organisation. 

WHAT IS mental health?

Mental health is about emotional, psychological and social wellbeing. For an employer, this means keeping an eye on whether your staff are struggling to keep on top of things inside and outside of work, and taking steps to assist them with dealing with any difficulties that may be impacting their productivity. 

There are many types of mental illness, including depression, anxiety, obsessive compulsive disorder, personality disorders (such as borderline personality disorder), bipolar disorder, and schizophrenia.

the scope of the issue

According to the Australian Human Rights Commission (AHRC), around 45% of Australians aged between 16 and 85 will suffer from the symptoms of mental illness at some point during their lives. In any given year, one in five adults will deal with a mental illness. 

Some workers will commence their employment already suffering from symptoms of mental illness, while others may develop their mental illness while at work. 

In many cases, the mental illness will develop separately from circumstances in the workplace. In others, a negative or "unhealthy" work environment will contribute to staff developing mental health issues or may exacerbate underlying conditions. 

Some factors which can contribute to poor mental health in the workplace include job stress, poor workload management or unrealistic deadlines, poor communication, bullying and an overall lack of support.

the impact of poor mental health

Research shows that the cost to business of failing to pay proper attention to mental health is significant. 

The AHRC reports that workers compensation claims relating to stress and associated mental illnesses cost Australian businesses $10 billion every year. The failure of businesses to recognise the potential impact of mental health issues and failure to implement preventative or remedial measures such as early intervention, has been estimated to cost over $6.5 billion per annum. 

Absenteeism due to mental illness is another issue, with an estimated 3.2 days lost each year per worker. 

The difference between job stress and psychological injury

When it comes to identifying mental health issues in the workplace, there is a difference between work stress and psychological injury. 

Psychological injury includes behavioural, cognitive and emotional symptoms which have the potential to significantly impact a worker's ability to perform their job and interact with co-workers. 

This can be distinguished from job stress, which is generally a reaction to a specific situation which can be resolved, and is not a standalone injury.

To disclose or not to disclose 

In some circumstances, it is important for employees to disclose their mental health status. This is particularly the case if they are taking medication which could affect their ability to perform their usual employment, or if there are general concerns about safety or interactions with other staff. 

An employer has an obligation not to discriminate against staff because of their physical or mental attributes, including their mental health.

Managing and supporting mental health in the workplace

Employers can provide support by having guidelines in place for how to talk to a worker who has disclosed that they are suffering from mental health difficulties, and how employees can adjust to dealing with a colleague with a mental health issue. 

It's also essential for employers to know how to address performance concerns involving employees who are experiencing mental health struggles, without discriminating or taking ill-considered disciplinary steps.

Creating a safe and healthy workplace for all

This starts with non-discriminatory employment practices and implementing long-term strategies to promote a healthy culture and a positive workplace where staff feel they are making a meaningful contribution to an overall goal, are supported and happy to come to work. 

It's also important to create direct services to assist workers with mental health issues who require support and adjustments in the workplace. According to the AHRC, every dollar spent on identifying, supporting and managing workers' mental health issues, yields nearly a 500% return in increased productivity. 

It is highly likely that at least one worker in your workplace will, at some point in time, have a long or short-term mental illness. While you do not need to become an expert in mental health, having a better understanding of what mental illness is (including its possible effects on a worker) enables you to be more effective in handling issues that may arise.  

Why Employers Can't Afford to Ignore Procedural Fairness

Vince Scopelliti - Wednesday, August 01, 2018

It is important for employers to keep procedural fairness top of mind when conducting workplace investigations or taking disciplinary action.

Failing to do so can result in terminations being deemed unfair, as the recent Fair Work Commission decision of Nicholas Jarmain v Linfox Armaguard Pty Ltd [2018] FWC 3255 (14 June 2018) shows. 

background of the case 

Linfox Armaguard dismissed casual employee Nicholas Jarmain in October 2017 for serious misconduct. While the Fair Work Commission found the termination was justified, it determined that Mr Jarmain had been unfairly dismissed due to insufficient procedural fairness.

Mr Jarmain was dismissed after a client complained that he was "overly engaged in interaction and discussion" and generally inappropriate with staff members and customers of the client.

In response to the allegations, Mr Jarmain was asked to undergo an interview with a security officer and a union support person present. Explanations for his behaviour were sought (and his answers recorded) during the interview, and Mr Jarmain was then suspended from duty.

At a meeting three weeks later, Mr Jarmain was given further opportunity to explain the circumstances giving rise to the complaints against him. However, as his preferred union delegate was injured and unable to attend, the employer substituted their own preferred union official for that meeting.

The employer terminated Mr Jarmain's casual employment the next day, citing wilful and deliberate breaches of safety and security procedures. 

Breaches of procedural fairness

In the interest of procedural fairness, Mr Jarmain's employer should have advised him what claims were being investigated before asking him to participate in a recorded interview.

This was considered to be particularly egregious given that the employer is a big company with sufficient access to HR professionals. HR could (and indeed should) have been relied upon to ensure that Mr Jarmain was afforded procedural fairness when facing disciplinary action.

While the employer's reasons for dismissing Mr Jarmain were "sound, defensible and well-founded", especially given the job involves loaded weapons, the Commission concluded that the flaws in procedure, such as failing to provide any formal warnings or reprimands, were significant. 

The Commission determined that Mr Jarmain had not been given sufficient notification of the circumstances surrounding the complaints against him, or indeed the events giving rise to the complaints - and that he had effectively been ambushed, without sufficient information to defend himself against the claims. 

This meant that both Mr Jarmain's interview and ultimate dismissal were contrary to the requirements of procedural fairness.

Additional failures included the employer selecting the support person assisting Mr Jarmain in the second interview (as opposed to permitting the employee to pick his support person). By making such a decision it was akin to removing Mr Jarmain's right to have a support person present at all.

Further, the employer should not have suspended Mr Jarmain without pay.

the final decision

Ultimately, given the nature of the industry in which Mr Jarmain was employed, Commissioner Cambridge declined to order reinstatement of the employment but ordered compensation payments to the tune of $8,592.

This case demonstrates that having a valid reason to dismiss is only one factor that is considered in unfair dismissal claims. The Commission will not hesitate to award judgments in favour of the applicant where the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair, WISE provides full and supported investigation services, as well as training.  

Inside the Fair Work Commission: How it Operates

Vince Scopelliti - Wednesday, March 14, 2018

Most employers and employees are likely have at least some contact with the Fair Work Commission (FWC) during their working lives. 

This might be as simple as obtaining information about award conditions and employee rights, or as contentious as appearing before the FWC in a workplace dispute or unfair dismissal matter.

So how does the Fair Work Commission work?

The basics of the fwc

The FWC is the national workplace relations tribunal. Created by the Federal Government, it is an independent body that oversees a range of employment-related matters.

Its members are independent office holders who are appointed by the Governor-General on the recommendation of the Federal Government. Members work in a panel system, which aims to ensure that matters are heard by members with specific expertise in the relevant area. 

The FWC is not to be confused with the Fair Work Ombudsman, whose role it is to enforce compliance with the Fair Work Act and associated legislation, as well as provide advice to employers and employees on industrial relations matters. Unlike the FWC, the Ombudsman cannot conduct investigations or hearings.

what matters does the fwc deal with?

The FWC has the right to make decisions on a wide range of employment issues, including:

  • Determining minimum wage and working conditions
  • Hearing disputes in relation to unfair dismissals or other disciplinary actions
  • Making decisions in relation to appropriate industrial action
  • Conducting and facilitating alternative resolution methods in relation to general workplace disputes and workplace protections  

When making decisions, the FWC is required to take into account factors such as:

  • The principles of equity and good conscience
  • An assessment of the merits of the case before it
  • Avoiding any type of discrimination in the workplace, whether that be sexual, religious, disability or age based, to name a few

how to get a matter heard before the fwc

In order for a matter to be heard by the FWC, an appropriate form needs to be submitted in accordance with the applicable Fair Work Commission Rules.

In certain circumstances, such as when conducting reviews into awards or wage reviews, the FWC is empowered to launch its own action. 

fairness a key focus of hearings

The FWC is obliged by legislation to facilitate reasonably swift actions, and operate informally - without resorting to complicated legal concepts which could make it difficult for the ordinary worker to participate in proceedings. 

One of the central tenets of the FWC requires that hearings be conducted impartially and fairly. During hearings, the members are required to determine the facts and make decisions based on the information put before them. Ultimately, the main purpose of a hearing is to facilitate dispute resolution between the parties. 

Can the FWC dismiss an application? 

An application may be dismissed outright by the FWC in circumstances where it is:

  • Frivolous or vexatious
  • Contrary to the applicable legislation
  • Doomed to fail
  • Clear that one of the parties has unreasonably failed to attend hearings or comply with orders or directions of the FWC. 

What the FWC can't do

Despite being a quasi-legal body, the FWC is not entitled to provide legal advice, or assistance.

It is also not permitted to act in a partisan fashion by representing any particular political party. It must focus on impartial and objective decision making.

Do you need assistance in dealing with the FWC?

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct across government, education, not-for-profit and private sectors. 

We are proud that none of our decisions have been challenged by the FWC. If you are looking for assistance to navigate the challenging issues of workplace misconduct, we provide investigation services and training - Contact WISE today.  

Conducting Workplace Investigations: What You Need to Know

Vince Scopelliti - Wednesday, January 31, 2018

Part of running an effective organisation is ensuring that all staff are held accountable for their actions in the workplace, and are able to air grievances and raise complaints in a safe forum. This means that employers may need to undertake investigations into staff misconduct from time to time. 

Managing an unbiased and thorough workplace investigation can be a challenging and complicated process, particularly given the need to deal with sensitive topics and personal feelings. 

So, what are the most important things you need to be aware of when conducting a workplace investigation?

understanding why an investigation is necessary

All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the Fair Work Commission. 

Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with co-workers. If the alleged behaviour is serious enough (such as sexual harassment or assault for example) the employer could become civilly or even criminally liable. 

Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused worker has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.

how can your human resources team support you?

If your organisation is large enough to have a dedicated Human Resources officer or even an HR team, it can be extremely helpful to have them involved in an investigation. 

Your HR team can facilitate a successful investigation by:

  • Keeping open channels of communication with both the complainant and the respondent (as long as confidential information is kept private);
  • Providing a clear timeline and outline of processes;
  • Ensuring that staff are aware of their rights to have support persons involved;
  • At all times maintaining respectful contact and a clear demonstration of objectivity when dealing with witnesses or parties involved.  

fact finding vs formal investigation

Any workplace complaint requires a process of fact-finding or initial enquiry, whereby a third party interviews both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can for instance be deemed trivial or minor in nature and can be dealt with on that basis. 

A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.

The need for procedural fairness 

A key element of any workplace investigation is to ensure that all parties are afforded procedural fairness - a failure to do this could result in criticism of any decision taken by the employer after the investigation and could expose the organisation to legal liability.

The key elements of procedural fairness include:

  • Providing adequate information about the allegations, generally in written form, and the potential consequences if the employee is found to have engaged in the alleged behaviour;
  • Permitting a reasonable amount of time for the employee to respond to the allegations;
  • Allowing a support person to be present during interviews and providing adequate notice to the interviewee to arrange a support person of their choice;
  • Ensuring that the investigator as well as the ultimate decision-maker is unbiased and objective;
  • Ensuring that decisions effecting the employee are based on evidence. 

So what is involved in conducting a workplace investigation?

The key elements of an effective investigation include:

1. Planning the Investigation

  • Adequate planning before the investigation starts, including considering any potential conflicts of interest;
  • The investigator familiarising himself/herself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed;
  • Preparing a list of interview questions for each witness;
  • Gather and review relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents and information;
  • Notify all parties of there involvement, rights and obligations. 

2. Interviewing

  • Provide sufficient notice and make appropriate arrangements with all witnesses
  • Conducting formal interviews objectively and sensitively, having regard to the circumstances;
  • Checking that representation or support has been offered and outlining the investigation process and timeline;
  • Obtaining as much detailed evidence as possible

3. Analysing and Weighing the Evidence

  • Assessing the evidence with regard to reliability, consistency and credibility;
  • Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy;
  • Coming to a conclusion and making a finding, based on the evidence gathered. 

4. Facilitating a Resolution

  • This could include making amendments to business policies, training improvements, broad disciplinary action, mediation and counselling. 

When to ask for help

The consequences of a flawed investigation can be serious: decisions can be challenged in the courts, reputations can suffer and employee morale can take a nose-dive. 

In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process. 

This could include situations where: 

  • Serious allegations are made and there is a potential risk of criminal or civil litigation;
  • Complaints are made against senior employees;
  • A real or perceived conflict of interest exists, meaning complaints cannot be investigated objectively internally; 
  • There is a need for legal privilege to cover the circumstances;
  • There are insufficient internal resources, where your organisation is simply not able to investigate a complaint thoroughly, due to a lack of expertise, particularly if it involves multiple parties or complex issues that require specialist knowledge. 

If you require assistance with investigating allegations of misconduct, contact WISE Workplace. We offer full investigation services, supported investigations and staff training on how to conduct workplace investigations. 

A Modern Problem: The Face of Workplace Bullying in 2017

Vince Scopelliti - Wednesday, December 20, 2017

Workplace bullying comes at a high price for Australian businesses and employees, costing billions and leaving a trail of physical and mental health issues in its wake. 

Even though employers are becoming increasingly conscious about bullying and most have anti-bullying policies in place, it is still very prevalent in 2017. 

We take a look at what types of behaviour constitute workplace bullying, its magnitude, and some of the key cases heard by the Fair Work Commission (FWC) this year.

the nutS and bolts of it

Workplace bullying can come in many forms. It can be broadly defined as repeated unreasonable conduct and can include different types of abusive behaviour, whether physical, verbal, social or psychological, that occurs at work. It does not matter whether the behaviour is engaged in by a manager, a boss, or co-worker, or what the employment status of the victim is. 

Many different types of behaviours can fall within the meaning of workplace bullying. Some of the most obvious ones include:

  • Physical intimidation or violence
  • Excluding co-workers from social or work-related interactions
  • Mocking or joking at the expense of somebody in the workplace
  • Spreading gossip or rumours
  • Threats of violence or abuse

There are also a number of more subtle types of abuse frequently being employed in workplaces. According to research released in June 2017, these include: 

  • Unnecessarily micro-managing an employee so that they cannot perform their role effectively - or not providing enough supervision and support in order to permit a job to be performed competently
  • Consistently providing work well below an employee's competency 
  • Frequent reminders of errors or mistakes
  • Setting unreasonable deadlines or timeframes
  • Ignoring opinions or input
  • Exclusion from work or social events. 

what is the extent of workplace bullying

Workplace bullying is prevalent in Australia. 

According to research undertaken for BeyondBlue, almost half of Australian employees will report experiencing some type of bullying during their working lives. Workplace bullying can impact performance and career progression, and result in a range of physical and mental health issues. 

It is estimated to cost Australian organisations up to $36 billion a year. 

the need for an anti-bullying culture

In order to appropriately respond to the many different types of bullying - including some of the more hidden, indirect types of bullying set out above - employers must implement clear and direct anti-bullying policies outlining what type of behaviour is considered to be unacceptable. 

Rather than solely focusing on punitive measures for dealing with inappropriate behaviour, employers are also encouraged to attempt to build a positive workplace culture through feedback, independence and trust. 

WHen employers are accused of bullying 

Given that almost anything could potentially lead to allegations of bullying, it is not surprising that many employers are concerned about being unable to treat employees with anything other than kid gloves. 

However, employers are within their rights to performance manage, discipline, retrench or otherwise alter the employment conditions of an employee in appropriate and legally permitted circumstances.  

how did the fair work COMMISSION view bullying in 2017

A number of cases before the FWC this year highlighted the need for fair and unbiased investigation of bullying allegations, and demonstrated that employers taking appropriate steps to discipline or dismiss an employee won't be penalised. 

Case Study 1: The email is mightier than the sword

In early 2017, FWC upheld a ruling that Murdoch University was right to terminate an employee for serious misconduct. That employee had sent a number of abusive emails - from his university work account - to the chief statistician of the Australian Bureau of Statistics (ABS). 

Even after complaints were forwarded by the ABS directly to the University, the employee continued to send emails to the chief statistician, and forward those on to third parties, including a federal member of parliament. In one of those emails, the worker tacitly acknowledged that his behaviour was bullying, and stated that 'bullying is the only way to deal with bullies'. 

Prior to his correspondence with the ABS, the employee had already emailed another colleague and accused her of being deliberately dishonest and suffering from mental health issues. 

Ultimately, Murdoch University stood down the employee on full pay while an investigation was conducted. It also took steps to change investigators on more than one occasion, after the employee complained about the staff investigating the matter, before ultimately dismissing the employee. 

This case is an important reminder for employers that taking appropriate and lawful steps to investigate and, if necessary, terminate employment will not constitute bullying.

Case Study 2: Lawful adversaries - bullying in law school

In another bullying case involving a university, a Deakin University law lecturer sought the imposition of anti-bullying orders on a co-worker.

Although the accused professor had previously been charged with misconduct while working at another university, the FWC refused to allow the provision of materials relating to those earlier allegations. It noted that previous management behaviours of the professor were not relevant to new claims of bullying. 

Those materials also reportedly contained commercially sensitive information regarding other employees. This reinforces the message that employers and senior staff should not feel as though they are prevented from taking steps to discipline staff without being accused of bullying, despite any previous allegations. 

Case Study 3: A failure to properly investigate

Employers must take care to properly investigate all allegations of bullying within the workplace, not only to protect the victim but also to afford due process to the accused. 

This was the case in a recent FWC decision, which determined that a mother and daughter had been unfairly terminated amidst allegations of bullying and fraud. 

The director of the abortion clinic in which the mother and daughter worked had terminated their employment after registered nurses made various complaints about the duo, including that they took excessive smoke breaks, failed to record information properly in time sheets, and had made inappropriate threats of dismissal to the nurses. 

The director failed to appropriately investigate the allegations and, crucially, did not give the terminated employees sufficient time to properly respond. The FWC found that this demonstrated favouritism and nepotism (in circumstances where the director had apparently wanted to install his own wife and daughter in the newly available roles). 

Case Study 4: Getting it both right and wrong

Even when an employer's disciplinary actions are ultimately deemed to be appropriate in all relevant circumstances, their response may still fall far short of best practice. 

That was the case when the Paraplegic and Quadriplegic Association of NSW (Paraquad) was held to have properly dismissed a carer whose major depressive disorder meant that she no longer had the capacity to properly fulfil her role. 

However, the employee complained before her dismissal that she had suffered years of bullying and harassment which had exacerbated her psychiatric condition. This was not properly taken into account by Paraquad's HR department - even when provided with medical evidence supporting the employee's allegations as to the source of her condition. 

The FWC was particularly critical of the HR department's decision not to properly investigate the bullying allegations, because the employee had not followed workplace protocol in making her complaints. 

Case Study 5: Lessons in discourse

 Another interesting development this year revolved around language. Fair Work Commissioner Peter Hampton explained at the annual Queensland IR Society Convention in October 2017 that he eschews the use of words such as 'bully', 'victim', or 'allegeable'. It is advisable to avoid unhelpful labels which might shoehorn parties into certain roles. 

A similar approach is being encouraged in the Queensland Public Service Commission, particularly when dealing with domestic violence, where labels such as 'perpetrator' are actively discouraged and a rehabilitative approach is desired. 

The take home message

So what lessons can employers take away from the way the FWC has dealt with bullying in 2017? In summary employers should:

1. Take all complaints of bullying seriously, and conduct unbiased, fair investigations

2. Ensure that those accused of offences are afforded due process and have the opportunity to respond to allegations against them

3. Take positive steps to devise and implement workplace policies which make it clear that bullying behaviour will not be tolerated and will be investigated as necessary

4. Ensure that any action taken to discipline or dismiss an employee is reasonable and appropriate. 

For expert assistance with these and any other matters related to workplace investigations and how to respond to workplace bullying complaints, contact WISE Workplace today.  

Navigating the Choppy Waters of Mental Illness at Work

Vince Scopelliti - Wednesday, December 06, 2017

Mental Illness is highly prevalent in our society - 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their lives, and 20% will suffer from mental health issues during any given year. 

Given these statistics, employers will likely deal with at least a few employees who have mental health issues annually. 

So, what is expected of an employer in this situation? 

understanding mental illness

The first step is to understand that there are many types of mental illness. Depression and anxiety are very common, and fall into the category of mood disorders. Other types of mental illness include personality disorders or psychotic disorders, amongst others. 

Generally speaking, a person getting appropriate treatment for a mental illness can be an active contributor in the workforce and the community, and the vast majority of people suffering from mental illness do not pose any risk to others. 

A mental illness may develop separately from the workplace, for example due to issues stemming from the sufferer's personal life. However, the average employee loses 3.2 work days per year due to the impact of dealing with workplace stress - so it is clear that the workplace can be a significant contributing factor in mental health issues. 

managing the contributing factors at work

An employer has a duty of care to ensure that the workplace is safe and healthy for employees. Employers need to identify workplace practices or actions which could cause or contribute to mental illness, and eliminate or significantly reduce the risks associated with these. 

This includes preventing bullying or harassing behaviours, ensuring that managerial staff are trained in properly dealing with performance management and with staff who are experiencing mental health issues, and even limiting situations where excessive alcohol use may be encouraged.

supporting workers who disclose a mental illness

Employers should take steps to ensure that those workers who are suffering with their mental health have access to appropriate resources, including flexibility to attend medical appointments, ease in accessing days off when necessary, and perhaps in-house counselling sessions or a mentoring program. 

When dealing with an employee who has reported their mental illness, employers should be prepared to ask questions such as: 

  • How can we help?
  • How can we make you feel more supported?
  • What are your triggers and how can we manage these in the workplace?
  • Are you coping, and if not, what strategies can we implement to help you stay on top of things?

From a legal perspective, an employer is also required to ensure that workers are not discriminated against or subjected to any adverse action because of their mental health status.

what happens if a worker doesn't disclose? 

In developing a strategy for dealing with mental health issues in the workplace, employers should consider how they can encourage workers to be comfortable in disclosing their status. This will require members of the HR team to be equipped with the skills to ask the right questions. 

Employers can also inform staff who they suspect may be struggling with their mental health about an option to seek confidential support for an Employer Assistance Program or external professional advisor.

In circumstances where an employer is concerned about a worker who is displaying symptoms of mental illness but has not disclosed any conditions, the supervisor should be appropriately trained and prepared to open a dialogue with the employee. 

Alternatively, an employer could monitor data such as employee workload, unexplained absences or lack of productivity, and seek the employee's consent to obtain medical information. Armed with this information, an employer can create a flexible environment within which each worker can be encouraged to perform at their best. 

protecting all employees

It is incumbent on employers to remember that they must balance the potential risks to all of their employees. 

Although they cannot discuss an employee's mental health status, if the employer is genuinely concerned about the potential impact on colleagues or the business itself, appropriate steps can be taken to performance manage or otherwise discipline the employee. 

However, in taking such action, it is crucial for an employer to ensure that it is poor performance or risky behaviour which is managed or disciplined, and that the worker concerned is not discriminated against on the grounds of their mental health status. 

Employers should also consider developing a mental health policy. This document can be used to demonstrate that all staff are entitled to confidential support free from discrimination, harassment or bullying, regardless of their mental health status. 

It can also be used to demonstrate that staff who are acting inappropriately in the workplace cannot simply rely on their mental illness as an excuse to endanger themselves or others on an ongoing basis. 

Key issues which should be address in the policy include: 

  • Access to confidential support and consultation for all staff
  •  Anti-harassment and bullying protocols
  • Policies and procedures relating to reasonable adjustments which may be required to assist staff with a mental illness
  • Identification of risks in the workplace and strategies for minimising the potential impact on staff if they are exposed to those risks (such as a death, or trauma in the workplace)

How can we help

Navigating your way to a mentally healthy workplace isn't easy. If you'd like assistance in encouraging a supportive work environment in your organisation, including drafting mental health and anti-bullying policies and creating appropriate performance management programs, contact us

Professional Distance and Conflict of Interest at Work

Vince Scopelliti - Wednesday, September 20, 2017

During the seventies and eighties, organisations started to realise that the improper use of power and authority and undeclared and/or ineffectively managed conflicts of interest, posed a significant risk to their integrity and public trust. 

The requirement for ethical business dealings focuses the spotlight on conflicts of interests and the factors involved in creating the perception of conflicts of interest in the workplace. 

It can be difficult to maintain a suitable professional distance with colleagues, subordinates and suppliers, particularly if a significant friendships have been formed outside the workplace. There is an increased risk when managers, employees and co-workers communicate on social media. Employers must also be vigilant about the risks of inappropriate levels of professional distance with clients or colleagues, especially in circumstances where such behaviour may lead to, or can be perceived as, grooming of vulnerable persons. 

When it comes to conflicts of interest, it is best to completely avoid any behaviour, which may result in the creation of a real or perceived conflict of interest. For this reason, many professions address this specifically in their Codes of Conduct or may draft specific conflict of interest policies, which set out expected and appropriate standards of behaviour. 

In our planned six-part series we'll unpack the key elements of professional distance and conflict of interest, from maintaining professional boundaries to determining the difference between a lapse of judgement and grooming. 

breaching professional boundaries   

According to Dr. Anna Corbo Crehan, from the Centre for Applied Philosophy and Public Ethics at the University of Melbourne, questions of professional distance occur when two or more people involved in a professional relationship also have an additional relationship, such as one based on love, attraction, friendship or family. "So then, professional distance is the space a professional must keep between their professional relationship with another, and any other relationship they have with that person. By keeping this space, a professional can fulfil their professional and personal obligations, and be seen to do so, in a way that is impartial and/or non-exploitative in regard to the other in the relationship", she says. 

Breaching professional boundaries can also refer to the failure to manage conflicts of interest. A particularly close relationship between co-workers, especially those involving persons in a position of authority, may create the perception (whether real or imagined) of inappropriate work-related benefits or advantages being bestowed on a close associate because of the friendship. 

The most common types of conflict of interest are financial, such as where a monetary advantage is bestowed or a financial saving made, and personal, where a clear benefit is provided to the recipient such as a promotion or an opportunity for advancement or training and development. 

The best way to avoid perceived conflicts of interest is by maintaining clear professional boundaries, especially by those in a position of power, such as employers, supervisors, managers, or instructors. In extreme circumstances it may be prudent to completely avoid forming any relationships with colleagues outside of work.

codes of conduct and different professions 

Many professions abide by specific Codes of Conduct, which set out and govern acceptable standards of behaviour in their specific industry and provide comprehensive guidelines as to what is considered appropriately maintained levels of professional distance in that industry. 

For example, an inappropriate level of closeness may mean one thing in the context of a school teacher, and another thing in the context of a physical therapist. Professions such as nursing, teaching and social work need to have an additional emphasis on protecting vulnerable persons (such as children, the elderly, the disabled, of the mentally ill) from unscrupulous persons of the effects of inappropriately close relationships. 

In other professions, such as aged care or legal services, it is vital that professional distance is maintained to avoid any perception (whether actual or imagined) of financial abuse and conflicts of interest, when a client confers excessive financial benefits on the service provider. 

One recent example of a breach of an industry specific Code of Conduct involved a police officer who sold confidential information and provided accident locations to a tow truck driver, who gained a financial advantage from arriving on the scene ahead of competitors. 

On many occasions, a failure to maintain an appropriate professional distance occurs inadvertently or without any intentional wrongdoing. While it is beneficial for colleagues to develop good relationships with their co-workers, it is important for all employees to be able to maintain a perception of professional distance so that it does not appear as though they are incapable of making impartial business related decisions. 

professional distance and social media 

In the modern workplace, social media has become a virtually omnipresent phenomenon. With the advent of many different types of social media platforms, including LinkedIn and Facebook, there are many opportunities for workers to remain connected. 

Most employers recognise that social media is a platform that is both complimentary to, and additional to, other methods of communication and engagement used by them. Most employers also understand the beneficial networking functions of social media, particularly in the case of LinkedIn, however there is a far greater risk of boundaries being crossed or lines being blurred when communicating through social media. 

There can be particular difficulties in utilising social media when dealing with vulnerable people such as students, the disabled or persons with mental health issues. As a general rule, it is inappropriate for work colleagues or employers to share overly personal information or material on social media. Most workplaces have a clearly set-out social media policy. It is important that employees are made aware of its contents and application and are encouraged to use social media in a responsible, reasonable and ethical manner, in accordance with the employer's Code of Conduct. 

Broadly, if content is critical of a colleague, affects his/her reputation, is personal, hurtful, potentially embarrassing to a co-worker, or otherwise inappropriate, it could easily breach the requirements of professional distance.   

determining grooming, or an error of judgement. 

An important aspect of maintaining professional distance involves taking steps to avoid situations where it could be perceived that 'grooming' is taking place. This is essential not just in the context of children, but other people who are deemed to be vulnerable, including the elderly, those with disabilities, or those involved in situations where there is a power imbalance. 

The act of grooming is a criminal offence in many Australian states. It is a term which generally refers to deliberate and sustained contact with a vulnerable person in order to obtain their trust and prepare them to participate in the groomer's intended purpose, which may be sexually, financially or otherwise motivated. 

As a responsible employer, if somebody reports concerns about potential grooming, or you observe the possibility of such behaviour occurring, it is important that a workplace investigation is conducted to determine whether the contact is in fact grooming, or merely represents a lapse in judgement.

Dealing with a breach of boundaries 

The best litmus test when assessing appropriate levels of professional distance between managers and employees, between co-workers or between employees and clients, is whether there could, in the view of a reasonable person, be a perception of inappropriate behaviour, conflict of interest, favouritism, nepotism, or even grooming. 

If there is any possibility that such assumptions could be made, then it is likely that professional boundaries are being crossed. 

If you have doubts regarding a potential conflict of interest or breach of professional distance, then it is best to get an impartial third party to investigate. Our services include full and supported workplace investigations and training. Contact WISE Workplace today to find out how we can best be of assistance.

Bullying in High Stress Workplaces: Can an Investigation Help?

Vince Scopelliti - Wednesday, August 30, 2017

A disproportionately high number of allegations of bullying in emergency services and other high stress environments have led to a referral to the NSW parliament for an inquiry in May 2017, looking at the policy response to bullying, harassment, and discrimination in certain emergency services. A review is also being conducted by the Victorian Equal Opportunity and Human Rights Commission of allegations of bullying and harassment into the MFB and CFA. 

The very nature of the tasks undertaken in these workplaces understandably provokes a variety of extreme responses in both senior and lower-level staff. A combination of observed trauma, time-critical demands and associated spikes in adrenaline for individual professionals can lead to tense communication and decision-making.

It is essential that Human Resource (HR) managers take an objective approach towards all issues raised by the parties when allegations of bullying in emergency services arise. 

In many cases, a well-planned workplace investigation will mark the difference between costly repercussions and an efficient resolution of issues within these high stress environments. 

Alarming workplace reports

Incidents of workplace bullying are on rise across Australian emergency contexts. A 2017 report on emergency departments highlighted the deplorable extent of workplace bullying reported amongst emergency doctors. Shaming, verbal abuse and sexual harassment were just some of the parlous behaviours reported by 1/3 of survey participants.

Similarly, NSW has announced that the extent of workplace bullying within emergency services now requires a dedicated investigation. There are indications that the hierarchical nature of these services leads to the depersonalised treatment of personnel involved. 

Submissions for the NSW Parliament inquiry closed in July, with hearings scheduled for September - October 2017. During the inquiry, police, ambulance and fire services will each be scrutinised in relation to allegations of bullying and the troubling aftershocks that can accompany such incidents. 

Workplace bullying and hr responses

The importance of HR departments in recognising and dealing promptly with allegations of workplace bullying in emergency services cannot be overstated. 

As part of this focus, it is essential that any workplace investigation into alleged bullying be carried out in a professional and objective manner. Moreover, important decisions need to be made about an organisation's capacity to conduct an investigation that complies with the demands of procedural fairness. 

In some matters that are likely to prove particularly complex or sensitive it might be preferable to source the expertise of a trained workplace investigator. 

If HR managers can find prompt and accurate answers to these questions, any future costs of workplace disputes are likely to be mitigated. 

THE good and the bad of workplace investigations

Unfortunately, even a workplace investigation, if carried out without careful preparation and execution can be entirely unproductive - or even a costly blow to the organisation. At times, employers can underestimate their own lack of objectivity during investigations of workplace bullying. Unlike many workplace procedures, knowing the people involved can actually prove a hindrance to workplace investigations. The ability to see things in a truly fresh and clear manner is crucial to investigations; and sometimes hard to muster if preconceptions exist. 

Some employers are fortunate enough to have within their ranks staff that are fully trained in the nuances of workplace bullying allegations and the right way to conduct workplace investigations. When carried out correctly, an in-house investigation can do all that is necessary to produce a fair and accurate investigation report. 

Yet if any doubt remains about the potential bias, pre-judgement or lack of resources within the organisation, then an external workplace investigation will pay dividends. If an investigation has fatal flaws that are later picked up in official proceedings, then employers will find themselves in an unenviable position.  

investigation woes: a case in point

In a recent Federal Court matter, Justice North made a piercing analysis of the deficiencies in one organisation's methods of investigation. Victoria's Royal Women's Hospital conducted a workplace investigation into the alleged contribution made by a neonatologist to the deaths of two infants. His Honour explained that the deficiencies within the investigation report were significant. Vague allegations against the worker and the lack of specifics concerning event, time and place led to a report that was devilled by 'apparent holes' as well as 'pollution' from fraught relationships. 

The case highlights the importance of gaining true objectivity from the situation whenever a workplace investigation is undertaken.

Care at every turn

Employers understand that when allegations of workplace bullying arise it becomes essential to keep the elements of procedural fairness front-and-centre. HR and senior management must make fast and accurate decisions about how and when to activate a workplace investigation. 

Considering the disproportionately high number of allegations of workplace bullying in emergency services, it is hoped that good decisions are made around the best way to investigate these troubling situations. 

Should you or your organisation be seeking clarity on the best way to conduct a workplace investigation, please get in touch with us.