How Can HR Support Staff During a Workplace Investigation?

Harriet Witchell - Wednesday, June 28, 2017

Where a complaint has been made by one staff member against another, and a workplace investigation takes place, all kinds of emotions can be running high. 

People participating in a workplace investigation, whether as complainants, respondents or even witnesses, can suffer symptoms of mental health issues such as depression and anxiety, as well as emotional distress. 

Respondents in particular can feel abandoned and cold-shouldered, especially in cases where HR departments decide to take a 'hands-off' approach while the investigation is being conducted. If a respondent is also suspended from work during the process, they may also feel prejudged and already declared guilty. 

In light of this, it's extremely important that employers ensure that investigations are handled fairly and impartially, and that all participants are supported. 

Here's how HR can help support participants throughout a workplace investigation.

THROUGH TRANSPARENCY AND COMMUNICATION

First and foremost, effective communication and transparency are vital from the outset. A failure to communicate can worsen distress and lead to participants thinking the worst. 

Decide on being transparent from the beginning. This involves taking the complaint seriously, listening to all sides, and making sure all participants know how the complaint will be handled. It's also important to check back that they have understood what was said and address any misunderstandings (something that can easily happen when emotions and tensions are high!)   

SETTING OUT THE PROCESS

It's important to get to work quickly, appoint an investigator, and make decisions regarding the scope of the investigation, the timeframe, and actions to be taken after completion. However, do be prepared for the process possibly taking longer than anticipated. 

Once you've decided on the process, make sure to keep everyone informed of how the investigation will be conducted and what they can expect, and aim to keep communication lines open throughout. Also reassure the respondent that they are not in any way being prejudged, even if they have been suspended for a time during the investigation. 

APPOINTING A SUPPORT PERSON

Participants need to know they have someone to go to for emotional support, who can also explain the process and answer any questions they may have. 

One thing to note here is that employees may not necessarily show their emotions at work and this could lead you to think they are fine and don't need assistance, when in fact the opposite is true. 

Appoint a support person whose role it is to regularly check up on the person and provide support without taking sides. 

CONDUCTING INTERVIEWS WITH RESPECT 

Interviews need to be conducted fairly and withe respect and non-partiality. 

It's important to avoid acting like an interrogator; your job is to uncover the facts and truth of the matter and not to extract a 'confession'. This means all participants should be treated with respect and empathy, and given breaks during interviews if required. 

OFFERING POST-INVESTIGATION SUPPORT

An investigation can affect everyone and can reduce morale and trust in a workplace. It may in some cases even lead to employees seeking work elsewhere after feeling demoralised by the whole experience. 

In a case where the respondent has been restored to duty, it may be hard for them to simply go back to 'business as usual'. The same may also apply to complainers, particularly if the investigation did not go the way they wanted. 

Be prepared for it to take some time for trust and morale to be restored, and offer mentoring and support after the process to anyone who needs it. Be proactive in rebuilding trust and positive relationships. 

Lastly, we can provide expert assistance with workplace investigations. Feel free to contact us for more information.  

Handling a Paranoid Response to Workplace Investigations

Harriet Witchell - Wednesday, June 21, 2017

In conducting workplace investigations, both the alleged victim and perpetrator and potentially even witnesses may have an intensely personal reaction to the accusations. But what happens if one of the people involved in a workplace investigation has a mental illness or otherwise suffers from poor mental health? 

In this situation, a workplace investigation can be perceived as a direct personal attack - for example, a complainant may feel that the mere fact of an investigation means that they are not taken seriously or believed in their allegations. A respondent to a complaint may feel vilified or victimised by having to respond to the claims at all. In these circumstances, it could be easy for paranoia to creep in during the investigative process. 

So what additional steps should a prudent employer take during the investigative process when dealing with an employee who struggles with their mental health? 

POTENTIAL CONSEQUENCES OF FAILING TO CONSIDER MENTAL HEALTH

The State of Workplace Mental Health in Australia report, released by TNS Australia and Beyond Blue, has found that 45% of all adult Australians will experience a mental health condition at one point in their lives. In addition, untreated mental illness costs Australian Workplaces almost $11 billion annually.  

This financial cost (calculated on the basis of absentee figures, 'presenteeism' where employees are physically present but not performing to their maximum capabilities, and compensation claims) is reason enough to take mental health in the workplace seriously, and to ensure that workplace investigations do not run roughshod over the rights of employees with mental health concerns. 

However, even more concerning is the potential for a poorly handled workplace investigation to exacerbate an employee's mental illness or even to cause a new psychological injury. 

It is crucial for employers to ensure that workplace investigations are conducted sensitively and have regard to any disclosed or hidden mental health issues suffered by employees. This is particularly the case given that it is an employer's legal obligation to ensure that workplaces are free from conduct which could reasonably be foreseen to cause injury, including psychological injury, to employees. A failure to do so can leave the employer exposed to a compensation claim.  

WHAT SHOULD AN EMPLOYER'S RESPONSE BE?

Employers must ensure that investigators don't dismiss signs of paranoia as an employee being 'silly' or simply difficult. 

It's important to recognise that the employee does genuinely feel under threat, without agreeing with them, and to lay out any evidence clearly. 

It can also be helpful to detail how the investigation will proceed to avoid the risk of misunderstandings, for example an employee deciding that more than a week has passed therefore an adverse finding must have been made against them. 

Honesty and fairness are key in any workplace investigation, but it is particularly important to demonstrate both when dealing with an employee who is feeling under attack. It's essential to remain patient, and work on building trust and rapport in interviews.  

Employees should also be able to access a support person of their choice to participate in any interviews or other formal steps of the investigation. 

Being available and following through on any actions that have been decided on, however minor, may also help lower a fearful employee's anxiety. 

If the initial complaint has caused or substantially contributed to an employee's poor mental health, and this has resulted in the employee receiving a medical certificate, an employer should consider not permitting the employee to return to work until the investigation has been resolved. Any decision along those lines should be made strictly in consultation with the employee's medical team and the employee themselves.  

    HOW WE CAN HELP

    Taking these simple steps will help to ensure that your staff do not feel victimised and do not become unduly paranoid or concerned about the investigative process and potential outcomes.  

    At WISE Workplace, we can help you navigate your way through the potential minefield of workplace investigations. We offer full investigation services if you prefer to outsource, and also training to assist you in running your own investigations.

    When the Line Blurs: Restrictive Practices vs Assault

    Harriet Witchell - Wednesday, June 14, 2017

    It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.  

    As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client's own safety or to protect another person. 

    However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.   

    WHAT ARE RESTRICTIVE PRACTICES?

    According to the Australian Law Reform Commission, the definition of 'restrictive practices' are actions which effectively restrict the rights or freedom of movement of a person with a disability.

    This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions). 

    Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.

    Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute 'best practice' for disability support.

    KEY CONCERNS WITH RESTRICTIVE PRACTICES

    As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault. 

    While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred. 

    Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening. 

    While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.

      WHAT IF AN ALLEGATION OF ASSAULT DOES ARISE?

      The provision of disability services is a challenging industry at the best of times. It's important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault. 

      Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients. 

      At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.   

      ACT Launches Reportable Conduct Scheme

      Harriet Witchell - Wednesday, June 07, 2017

      If there's one thing that's been made clear from the recent Royal Commission, it's that the protection of children and the reporting procedures around child abuse need to be improved. 

      In August 2016, largely in response to the commission, the ACT Government passed legislation designed to cast a 'wider net' when it comes to the scrutiny of child abuse and the protection of children within certain organisations.

      The ACT Reportable Conduct Scheme will take effect from July 1 2017. The scheme is designed to ensure that there are processes in place for allegations of employee abuse of children, and that these allegations are independently reviewed. 

      In essence, it provides a mechanism for employers to report employee misconduct in relation to children, with the ACT Ombudsman acting in the role of independent oversight body.   

      WHICH EMPLOYERS DOES THIS APPLY TO?

      Certain types of employers that work with children will be covered under the scheme, including health service providers, foster care and out-of-home services, residential care providers, schools and educational services. 

      In general, religious organisations (other than schools), instructional services (such as teachers of sports and music), scouts/guides and universities will not be included under the scheme. 

      The term 'employee' in this instance refers not only to workers but also to contractors and volunteers within the relevant organisation, whether or not they work directly with children. This means conduct may be reported even if it is of a personal and non-professional nature.  

      WHAT ABOUT OTHER REPORTING PROCESSES? 

      It's important to be aware that the scheme will not override other reporting obligations - such as that of suspected crime to the police, or mandatory reporting of serious abuse or neglect of children to the Child and Youth Protection Services (CYPS). However, it does cover a wider range of behaviours in relation to children, and also provides a mechanism for employers to report conduct not covered under other mandatory reporting programs. 

      WHAT EMPLOYERS NEED TO DO

      ACT employers covered by the scheme will need to notify the Ombudsman within 30 days of suspected or actual misconduct by an employee in relation to children. These acts of misconduct include neglect, mistreatment, psychological harm, sexual misconduct or inappropriate discipline. 

      Employers will also need to:  

      • Perform investigations into alleged reportable conduct and provide a written report to the Ombudsman. 
      • Report to other bodies as required - including the police, the human rights commission, CYPS and others. 
      • Review and amend their organisational policies and procedures where necessary.
      • Inform and educate employees regarding any new or amended policies and responsibilities. 

      THE OMBUDSMAN'S ROLE

      The scheme is designed to go beyond just reporting misconduct. For instance, the Ombudsman's role in regard to this is also to monitor and analyse trends, share information with other authorities as required, provide guidance to organisations regarding child protection, and monitor the practices of employers in relation to child safety and prevention of abuse.

      WHERE TO FROM HERE?

      WISE Workplace provides independent investigation services for organisations into reportable conduct, and training on how to respond and investigate allegations. 

      The Risk of Ignoring Reports of Sexual Abuse

      Harriet Witchell - Wednesday, May 31, 2017

      The matter of  Matthew v Winslow Constructions Pty Ltd brings to light the importance of duty of care in a sexual harassment matter. The Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, 

      This case bares similarities to Trolan v WD Gelle Insurance and Finance Brokers notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. 

      Long gone are the days when a written complaint of such behaviour is needed. The Trolan and Matthews matters both demonstrate that where such extreme behaviour is occurring in the workplace, employees don’t need to put concerns to the employer in written form in order to ‘inform’ the employer of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

      Courage TO TELL 

      In August 2008, Ms Matthews commenced working as a labourer with Winslow Contractors. Between August 2008 and early July 2010, Ms Matthews was subjected to a relentless assortment of unwanted and lewd sexual advances from a number of site workers, including by her foreman. The behaviour included several threats of physical and sexual assault, intimidation, and bullying. On occasions when Ms Matthews verbally complained to management, nothing appeared to be done about her complaints. In September 2009, Ms Matthews was moved to a different site crew and the behaviour stopped. However, in late June 2010 Ms Matthews was moved back to the original site and the behaviours resumed, including the threat of rape. Ms Matthews reported the matters over the telephone, on 1 July 2010, to whom she believed was the person in charge of HR. Instead of a change in the behaviours occurring, Ms Matthews was further harassed and asked to 'come round, we will have a drink and talk about it'

      SILENT DAMAGE

      Ms Matthews did not return to work after 1 July 2010 and was found by her doctor to have suffered a severe work-related injury, with an incapacity to work again. The essential cause of her diagnosed psychiatric illnesses, including PTSD, was the sexual harassment and bullying that she had endured over a period of time while working at Winslow Contractors. And for part of this time, it was with the full knowledge of her employer. 

      LISTEN OUT

      Busy employers can be tempted to argue that they can’t be everywhere at once. Although employers are certainly not blind to the potential for unacceptable behaviour, there can however be an built-in assumption that if someone has a problem in the workplace, they should go through formal channels to remedy this. Generally, this would include submitting a written complaint about the alleged conduct. Yet as seen in Matthews the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Matthews had two discussions with a representative of the employer was certainly sufficient grounds to say she provided notice about the offending conduct. 

      LINGERING PAIN

      The consequences of such a failure to respond to sexual harassment and bullying in the workplace can be wide-reaching. Where an injury is suffered, as in Matthews, compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures to follow workplace health and safety procedures can lead to considerable penalties, compliance orders and fines. As well as requiring a substantial workplace investigation to ascertain the details of the alleged behaviour, criminal charges might ensue and/or civil action on grounds of negligence might be brought against the employer to remedy the failure to act; A complex and damaging array of legal and financial consequences indeed. 

      WORDS ARE ENOUGH 

      It is that failure to act that can cause so much preventable harm. At the moment when the Area Site Manager was told verbally of the conduct, the employer was officially informed and was required to act. Yet this damaging and ultimately costly chain of events was allowed to continue, causing a serious breach of the employer’s duty to protect. Employers are obliged to create a workplace free from harm. And when an employee has the courage and strength to report the offending behaviour, employers must both listen and respond. Written notes, formal documents or approved forms need not be furnished in circumstances such as those faced by Ms Matthews. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 

      ACT EARLY 

      The lesson from Matthews? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $1.3 Million for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, or if it is observed, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

      For information on how WISE Workplace can assist to develop your business's ability to respond to complaints of seriousness misconduct, call 1300 580 685 or visit our website

      Protecting and Managing Volunteers in the Workplace

      - Monday, November 28, 2016



      Most of us agree that volunteer work is an excellent initiative; one of those ‘win-win’ situations where both the organisation and the community benefit from the unpaid work of kind citizens.

      We also understand that even the best work-related relationships have their challenges. These include issues around workers compensation, clashes between paid and voluntary workers, navigating child protection requirements, plus the spectres of nepotism and bias in volunteer organisations.
      Liability for workers compensation and volunteers

      It is not surprising that for some employers, it can be a little unsettling to think about workers compensation and related implications that come with having volunteers on board. After all, when goodwill brings people to your organisation, the last thing on your mind might be the possible costs of work-related injuries.

      Across Australia, workers compensation and/or public liability regulations relevant to volunteers tend to vary, with jurisdictions and insurers assessing coverage and liability in different ways. But the overall repercussions tend to be the same for employers – volunteers who suffer a workplace injury are entitled to seek compensation under the organisation’s relevant insurance cover, whether public liability or workers compensation. This can have obvious impacts on staff levels, premium costs and overall levels of productivity.

      For some employers, this aspect of securing volunteer workers can go overlooked. It is certainly a much-appreciated boon when volunteers come on board in organisations. Yet, like any aspect of a corporate endeavour however, the possibility of injured volunteers should be viewed from all angles.
      Cultural clashes between volunteers and professionals

      When volunteers come to provide help within an organisation, the reception from paid staff can sometimes be mixed. First of all, new volunteers need training and help with integration into the site’s culture and systems. Regular staff can feel burdened with the extra work and time that this entails. An ‘us and them’ culture can also lead to silos of information, based upon a sense of ownership.

      This can emanate from both categories of staff – paid workers may feel like the ‘real’ employees, while volunteers might have a sense of being there for the ‘right’ reasons.

      At a more particular level, awards and industrial organisations might have varying conditions relevant to the two groups of workers.

      Should this be cause for concern? Bearing in mind that such issues of cultural clash can often lead to stress claims and overall disruption of productivity, the answer must surely be yes. We perhaps do not have to look any further than the current Victorian CFA fire fighter dispute to see the powerful and potentially damaging results of volunteer-versus-paid worker clashes.

      Getting culture right in a volunteer-led group is no easy task and the dissatisfaction of unpaid workers is one of the first signs that problems are developing.

      Further, if paid or volunteer workers develop a psychological injury from work-related stress, bullying or inept change-management, then employers certainly have a problem on their hands – and more than one claim arising from the situation is a definite possibility.
      Child protection and volunteer organisations

      Having volunteer workers available can be a definite plus for businesses and community alike. Undoubtedly, the positives inherent in volunteer arrangements are well known. One volunteer situation that requires close analysis, however, is the protection of children in any scenario where volunteers are involved. In churches, sports organisations and youth clubs for example, there is significant reliance upon the assistance and kindness of volunteer workers.

      It is essential for employers in such organisations to ensure that all legislative and practical measures are employed to ensure the safety of children. A targeted workplace audit of policies, procedures and work practices relevant to volunteers and children can help to ensure that unnecessary risks are eliminated. Necessary alterations might include Blue Card applications or shift work controls – as examples – or indeed might extend to more far-reaching initiatives relevant to child safety. Sourcing expert advice on these issues is paramount.
      Nepotism and bias in volunteer organisations

      A further issue that can infiltrate volunteer-based organisations involves favouritism, both real and perceived.

      While volunteers are not paid, they certainly devote themselves to their chosen organisation. The desire to be treated fairly is shared by both paid and volunteer workers. Accordingly, employers need to be aware that treating workers with equal respect can be an essential part of ensuring workplace cohesion.

      Any impulse to ‘cut corners’ in volunteer situations in order to employ, train or favour certain people must be carefully avoided. Nepotism and bias in work allocation can be real temptations when one or two people seem particularly competent.

      When the financial situation is challenging it can seem like an obvious solution to rely on ‘unpaid’ workers rather than rostering paid employees on shifts. Yet the ethos of volunteer organisations generally requires a more nuanced approach to staffing arrangements. For example, when a rare paid position arises in the organisation employers should ensure that no bias is exhibited towards any particular volunteer. In order to prevent cultural problems arising, clearly articulated policies and procedures are a necessity.
      Practical solutions
      In organising workplaces to successfully accommodate both paid and unpaid workers, attention to detail is paramount. What may appear on the surface to be an industrial ‘good news’ story in fact has the potential to foster resentment, tension and even bullying.

      Volunteer-based organisations have the challenging task of juggling safety and compensation issues, as well as cultural and merit-based concerns. It pays to thoroughly audit the processes and safety mechanisms currently in place, keeping in mind the delicate nature of staff-volunteer relationships. Experts in the field of volunteer workplaces can give employers the peace of mind necessary to navigate this specialised work environment.

      A Perplexing Problem: Protecting Children Overseas

      Harriet Witchell - Wednesday, August 10, 2016


      Every year billions of Australian dollars are provided to fund aid projects overseas. The money is targeted to assist developing countries with education, housing, health and community projects. Naturally children are a prime target group for these aid programs.  The majority of these organisations are funded by the Australian public via donations and government funding provided to not-for-profit organisations, many of them faith based organisations.

      International rules and expectations govern the protocols for handling and responding to allegations related to child protection, however, enforcing these laws is a tricky business often involving multiple jurisdictions and multiple agencies who may disagree around responsibilities and liabilities.

      Policies and procedures are not enough to protect children who are by definition amongst the most vulnerable in the world.

      Small operations, voluntary management and high dependency on the goodwill of front end service delivery mitigate against strong child protection regimes. Poor oversight due to long distance, remoteness and cultural differences are also key features of this problem.

      Funding bodies in Australia are expected to have high quality child protection systems and policies in place to gain government funding but the challenge of enforcing or even providing adequate training in the expectations to the end providers of the service can be beyond reach. 

      Now that we know that we cannot unquestioningly depend on the nature of goodly people to act without harming children, what cost do we place on the need to provide secure safe environments for children receiving charitable services?

      Documents provided today by the Guardian relating to the level of abuse within detention centres on Nauru demonstrate the abject failure of outsourced government funded programs. How then do we expect small voluntary projects to be faring against these standards?

      It is clear that policies and procedures are woefully inadequate yet how much of the donated money do we want spent on compliance when it comes to protecting children? 

      WISE Workplace is regularly requested to undertake investigations of allegations made against staff overseas who are working or administering charitable projects. The work requires a high level understanding of the environment, the agency, funding requirements, boards and community management structures, and the local culture and cultural background of staff and service recipients.   The work remains some of the most challenging to investigate.  Weak employment relationships can lead to inconclusive outcomes and an inability to enforce any restrictions on volunteers in the field.

      For those organisations with managers in Australia trying to manage complaints or allegations arising from activities overseas, using the support of experienced investigators can be a godsend melding the investigative skills of experienced child protection investigators with the cultural and service delivery expertise of the coordinators working for the agency.

      Our top 10 list of must do’s if you are a coordinator of a charity funded project overseas:

      1. Nominate a single contact person with responsibility for dealing with complaints related to child protection within your agency
      2. Have clearly articulated Child Protection Standards and Guidelines
      3. Have clearly articulated procedures for dealing with complaints
      4. Understand the criminal law in the country of service delivery
      5. Understand the employee relationship between the funding body and the service providers on the ground
      6. Know your legal obligations under your primary funding agency agreement
      7. Respond quickly to complaints
      8. Conduct a risk assessment and take protective action if necessary
      9. Identify a suitable contact person on the ground in the foreign country to be a liaison pain
      10. Seek specialist help when complaints are serious or complex to investigate.

      WISE Workplace runs regular training programs on the principles of undertaking workplace investigations. Our facilitators have extensive experience and expertise in managing all kinds of challenging investigations including running operations overseas via Skype using local contacts.  Our unique Investigating Abuse in Care course provides valuable skills in how to assess complaints, reporting obligations, drafting allegations, interviewing victims and respondents, making decisions and maintaining procedural fairness. Book now for courses in March and May 2017.

      3 Strategies For Handling Mental Illness in the Workplace

      Harriet Witchell - Wednesday, July 20, 2016
      3 Strategies For Handling Mental Illness in the Workplace

      It is heartening to see that the stigma around mental illness is slowly reducing, both in workplaces and the broader community. Yet when it comes to identifying and monitoring mental illness at work, many employers are uncertain of the best mechanisms to use. 

      We understand that employers want to do the right thing by their employees, yet they can sometimes mistakenly see mental illness as a non-work issue. And with community knowledge still rather generalised when it comes to mental health, it can be quite a challenge to know where to start when it comes to providing relevant workplace assistance.

      The mounting evidence

      We are often asked – is mental illness really a problem for employers? As the Australian Human Rights Commission notes – not only will 45% of Australians be impacted by mental illness in their life, but around half of all workers’ compensation claims will involve a psychological injury. And Australian business loses some $6.5 billion each year by failing to provide early mental wellness assistance to staff. So in short – yes. It pays to keep mental health a front-and-centre issue within every business! 

      In fact, there is every chance that a proportion of workers in every workplace is currently dealing with a mental illness – regardless of appearances. Without proper strategies in place to handle current and future mental health issues in the workplace, it is sadly inevitable that some employers will face considerable business challenges related to operations, costs and staff attrition.

      Strategies for managing mental health
      1. Audit your mental health resources 

      The importance of a thorough and practical audit of your current workplace mental health resources can’t be overstated. The existence of formal HR policies on staff health, email bulletins about bullying, and provision of external counselling services might seem like a reasonable mix of strategies. 

      However, while such standard mechanisms are certainly essential, each particular business might also need additional resources and initiatives to meet employees’ mental health requirements. For example, both a hospital emergency department and a high school might present considerable workplace stressors for workers – yet they will inevitably have unique needs in terms of resources needed. It is important to seek the services of a workplace audit professional, with current-day knowledge of mental illness risk management in varying business environments. 

      2. Train for mental health 

      Staff development aimed at the management of workplace mental illness must be multi-pronged. Those in upper-management can access high-quality courses designed to assist with understanding and appropriately supporting workers who are suffering mental illness. 

      These can range from first-aid type training – to enable a ‘triage’ type approach to symptom manifestation in the workplace – through to more general education around the interplay between the modern workplace and mental health conditions. Depending upon business size, general staff must also be provided with ongoing training and awareness resource on workplace mental health. This includes the correct (and incorrect!) ways to approach a workmate who might be suffering from a mental illness. 

      3. Develop a ‘mental wellness’ culture 

      Good workplace culture around mental health must start at the top. It is next-to useless to develop resources for general staff if upper management seems disinterested in tackling mental health issues at work – or even worse, if they make ‘jokey’ comments on the subject. The astounding rise of work-related mental illness and associated compensation claims is at least partly attributable to some rather out-dated and incorrect assumptions made regarding mental illness among workers. 
      Getting The expert know-how
      We understand that knowing where to start with a ‘tune-up’ of workplace culture is more easily said than done. But with a good mental health snap-shot taken via professional audit, plus some up-to-date training on best-practice, a ‘healthy’ approach to mental illness in the workplace is certainly achievable. Add to this a well-structured program aimed at growing a culture of inclusion for those staff currently dealing with mental illness, and organisations will certainly be on the road to a healthier, happier and more productive workforce.

      Monty Pythonesque Defence of Case Costs $87,000

      Harriet Witchell - Wednesday, July 13, 2016
      Monty Python-esque Defence of Case Costs $87,000

      An “absurd” defence of an unfair dismissal case, which a Fair Work Commissioner likened to a Monty Python sketch, has ended up being very costly for one employer, and provides an important lesson for any organisation involved in legal action. 

      The recent decision on costs in Somasundaram v Department of Education & Training,North-Eastern Victoria Region, handed down at the end of June, highlights the need for organisations to appreciate that in some circumstances they will not succeed in litigation. Whether in the role of applicant or respondent, it is an essential element of participating in legal proceedings to understand the difference between an appropriately maintained claim/defence or one which is without merit. 

      It is then essential for an organisation to take steps and make decisions based on appropriate legal advice, a coherent strategy and an honest assessment of the likelihood of success – and never on the desire to be "right" or because of "the principle.”

      Somasundaram demonstrates just how horribly wrong it can go when a party remains entrenched in its position despite its better judgment – to the tune of almost $90,000. 
      The background of the case
      Ms Somasundaram was a teacher at Sherbrooke Community School. She had previously made bullying complaints. In 2015, Ms Somasundaram's employment at the school was terminated for "disgraceful, improper or unbecoming" conduct. Her apparent crimes? Airing a list of grievances at a school meeting, emailing complaints and criticisms of colleagues and the school's leadership to the teaching distribution list, and then ignoring an instruction to cease. Ms Somasundaram accordingly filed an application for Orders to Produce against the Victorian Department of Education & Training (DET). 

      After the hearing had already begun, the DET conceded that the dismissal could be considered harsh and accepted that reinstatement was appropriate. The DET further withdrew the assistant principal's evidence and other witness statements as it concluded that there was no need for hearings to continue. 

      However, despite these concessions, the DET attempted to maintain an argument that the teacher should not be reinstated because there had been an "irretrievable breakdown of trust and confidence" between the school and the teacher. The DET then sought to introduce new evidence and attempted to file new submissions as to what constituted harshness. 

      In July 2015, Commissioner Ryan determined that the DET was unreasonable in attempting to force the teacher to reply to its arguments and respond to its defence in circumstances where it had already conceded that the dismissal could be considered harsh. 

      Indeed, Commissioner Ryan considered it inappropriate that the DET had responded to the remedy application at all, given its concessions and acknowledgement that doing so was "without reasonable cause", and concluded that the DET's attempts to introduce new witnesses and evidence at a late stage in the proceedings was inappropriate. He therefore ruled that Ms Somasundaram's dismissal was "harsh, unjust and unreasonable." 

      In October 2015, the DET was ordered by FWC Deputy President Anne Gooley to reinstate the employment of Ms Somasundaram. In addition, Ms Somasundaram was awarded full back-pay of her salary to the date of her dismissal in February 2015.
      So what did the DET do so wrong?
      According to Commissioner Ryan's first decision on costs in March 2016, the DET's arguments that Ms Somasundaram should not have her job back and attempts to maintain that the DET had a valid reason for her dismissal were akin to the insistence of the shopkeeper in the much-loved Monty Python "Dead Parrot" sketch that the titular bird was not in fact deceased but was simply "resting", despite the bleedingly obvious evidence to the contrary. 

      The DET may have been able to maintain this argument – if it had not already conceded that its decision for terminating the employment was harsh, and withdrawn evidence. 

      Commissioner Ryan also made reference to the Black Knight sketch, saying “The humour in both of those Monty Python sketches arises from the sheer absurdity of the situation portrayed. The same sense of absurdity is found in the actions of the respondent.”
      Lessons for all employers
      The FWC ordered that the DET pay $87,000 towards the legal costs of Ms Somasundaram. If the DET had accepted early on that it had harshly dismissed the employee and submitted to the FWC for sentencing, it could have saved almost $90,000. The lesson here? Decisions are ultimately decided on fairness, and organisations must reflect at every stage of a case on the reasonableness of their actions.        

      The Reasonable Person Test Explained

      Harriet Witchell - Wednesday, July 06, 2016

      The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. One human causing damage to another is certainly a tale as old as history itself. And judges in various forms have always had the task of determining if the damage caused was something that the ‘damager’ is liable to remedy. In a way, a bit of retrospective risk assessment has to be carried out by the courts in these cases. What exactly happened here? Who was involved? Was it an accident? Is anyone hurt? How can we fix things? Certainly, most torts (the kinds of acts or omissions that cause damage) are caused by pure accidents or mistakes.

      Yet it’s never as simple as ‘oh, look, a mistake was made – let’s all move on’. A more nuanced examination of the relevant circumstances and risks has woven its way into these types of legal cases, both in Australia and abroad. Due to the fact that within law the ‘reasonable person’ has a hypothetical presence in workplaces, schools, homes, streets and venues, it pays to understand the basic ideas and applications embedded within this legal standard. And in the context of workplace risks and potential litigation, it is particularly useful benchmark for employers and managers to keep in mind.

      DOES REASONABLE MEAN AVERAGE?

      The short answer to this is – no. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) ‘the man on the Clapham omnibus’. In Australia’s case, NSW courts modified this to ‘the man on the Bondi tram’, while in the matter of Re Sortirios Pandos and Commonwealth of Australia, the ‘man on the Bourke St tram’ made a Victorian appearance. These descriptions are certainly a good starting point for determining what a reasonable person would have done during the risky event that caused the damage. But the ‘reasonable person’ is actually a little better than the ‘average’ one. He or she will be quite risk-conscious, a little careful with activities, and very thoughtful when it comes to looking out for possible risks and dangers. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Our reasonable person is certainly quite prudent – but not invincible.

      THE ‘REASONABLE PERSON’ IN THE WORKPLACES

      Risky and unfortunate situations arise everywhere in life - and of course the workplace is no exception. Injuries happen, enmity arises, harassment can occur, and unwanted advances are made. And the possibilities for damage, loss and distress to workers, contractors, visitors and clients are so extensive that some days, business owners can question their decision to open the doors! Yet in remembering the careful and prudent ways of the ‘reasonable person’ when it comes to workplace risks, employers can successfully prepare for and respond to hazardous scenarios. Importantly, remember that ‘action’ by an employer also includes ‘inaction’. Turning a blind eye to harassment between co-workers, putting off fixing the air conditioner in summer due to cash flow, and forgetting to wind up the extension cord in the hallway are the sorts of omissions that our ‘reasonable person’ in your situation wouldn’t neglect. Positive actions to prevent harm, such as sexual harassment training and reasonable warning of organisational changes, are examples of the way the ‘reasonable person’ carries on their business. 

      Going forward, make a rolling risk assessment part of your ‘reasonable’ workplace strategy.   WISE Workplace can assist with independent investigations and expert advice.