Intent to Harm: Does it Matter in Workplace Bullying Cases?

- Wednesday, June 22, 2016
Intent to Harm: Does it Matter in Workplace Bullying Cases?

We understand that it can seem unfair when the label ‘bully’ crops up in the workplace – particularly when no harm was ever actually intended. We’re all aware of the importance of intent when we look at matters in the criminal space; without identifiable intent, any prosecution team certainly faces an uphill battle. 

However in the civil sphere where workplace law resides, intent is generally not an issue. With some understanding of the risks of running a business, the law aims to provide a relatively even-handed method for sorting out accidents, injuries and mistakes at work. Intention to cause harm tends to go on the backburner in these situations.

Various forms of harm

In the case of bullying claims, it can come as a surprise for many employers that innocent slip-ups and unpopular leadership methods on the part of management can nevertheless be construed as bullying. The recent matter of Carroll v Karingal Inc [2016] FWC 3709 (8 June 2016) demonstrates that even though no harm might be intended, the words and actions of managers and employees can certainly lead to a successful claim of bullying. 

In this matter, Commissioner Tanya Cirkovic heard numerous reports from staff about unfair process requirements, micromanagement and inappropriate comments that accompanied the appointment of the business’s audit and risk manager in 2013. His staff pointed to a manager who ‘said all the right things’ yet embarked on a process of markedly inefficient changes, unrealistic expectations for the team and troublingly racist remarks directed towards a team member.

Inappropriate behaviour and humour

Significant issues identified by Commissioner Cirkovic included the introduction of an inefficient system that resulted in double-handling and a demoralising spate of under-performance for the team. Further, inappropriate remarks and behaviour included laughing at an employee’s accent and remarking on her “Checklish” – a comment on her Czech heritage.

Crucial – avoiding micromanagement

Most significantly, the Fair Work Commission (FWC) took note of the manager’s relentless micromanagement of the employees under his supervision. Ultimately, faced with a sub-standard new system and a supervisor who both demanded compliance and monitored staff with excessive attention to detail, two staff members were able to successfully establish that workplace bullying had occurred.

A cumulative effect

Interestingly, the FWC noted that in all probability the manager had not intended to cause harm through his behaviour. His endeavours to please the employer and provide strong leadership were clear in the evidence produced. However, his seemingly innocent and even industrious intentions were irrelevant to the finding of bullying. The cumulative nature of his indiscretions was also key. 

"I am satisfied that the cumulative effect of his conduct and behaviours was one of significant and systematic micromanaging," Commissioner Cirkovic said.

Bullying – reducing the risks

Carroll v Karingal Inc provides a salutary example of the complex realm of workplace bullying claims. For employers, it pays to understand which behaviours within the team could be seen as bullying – no matter how well intentioned. Nuanced training regarding appropriate behaviour and potential bullying in supervisory roles should be provided throughout the organisation. 

Workplace bullying can be a subtle situation of human interaction gone wrong, and should be front-of-mind in any analysis of potential risks in the workplace. 

If you need to address bullying issues at your organisation, Wise Workplace can provide risk analysis and tailored training. Contact us to find out how.

Uncovering Key Causes of Work-Related Psychological Injury

- Wednesday, June 15, 2016
Uncovering Key Causes of Work-Related Psychological Injury

We know that for many employers, it can be rather challenging to face the complexities of work-related psychological injury claims. 

For decades, trip and fall incidents, burns, bending and other visible physical injuries all tended to dominate workplace safety concerns for both employers and insurers alike. Now, with medical advances drawing solid links between employment issues and psychological conditions, claims for work-related injuries have grown exponentially in this area. 

We examine the key causes of many work-related psychological injuries.

Sources of injury

As described by Comcare, the two greatest contributors to the development of these injuries are the combined forces of work pressure and workplace bullying and harassment. These factors together comprise a startling 75% of all work-related psychological injury claims, with other issues such as witnessing violence or experiencing traumatic events at work being significantly less relevant to claims for psychological injury.

Distilling the key causes

We understand that it can be somewhat overwhelming to consider and address the many possible ways in which workers could sustain a psychological injury at work. Yet understanding the causes and risk mitigation strategies relevant to psychological injuries can be crucial for the modern employer. 

While claim numbers for psychological injury are relatively small in number across Australian jurisdictions, their complexity and ultimate cost to insurers and employers is truly phenomenal. To understand the many possibilities for psychological harm in the workplace, we can consider causes within the broad categories of work context and work content.

Work context as contributor

The people, environment and methods of communication that ‘come with the job’ can have a profound effect on workers. As a rather communal species, humans can be strongly affected by the treatment of others, including the way that we are spoken to, included (or excluded) and generally dealt with in the workplace. Poor communication, ambiguous role descriptions and ineffective personal career development opportunities are all examples of detrimental contexts that can surround the core work itself. 

Uncertainty, isolation and bullying – subtle or otherwise – can also be extremely damaging risk factors in the context of psychological health and safety. Couple these negative phenomena with a job that demands up-beat client care and service, and employers may well find themselves with the key ingredients for a work-related psychological injury.

Stress and the content of work

So we have looked at the contextual factors of workplace stress. Yet are there aspects of the work itself – the content – that can lead to the development of work-related psychological injury? Absolutely. How and when work must be completed can have a demonstrable effect on worker psychological health. 

Shift work, fragmentation of work and hours, plus unremittingly meaningless work can also create the perfect storm for psychological injuries. Being required to produce high-quality outputs – fast – in the face of inappropriate facilities and/ or sub-standard equipment can also produce the type of work-related stress that can eventually devolve into a psychological injury.

Just toughen up?

For some employers, it might be tempting to dismiss these facts as simply an inability for employees to toughen up to the realities of work. Yet for better or worse, the medical evidence pointing to the link between psychological injury and some workplace issues is powerful – and continues to grow. The content of the work itself, as well as the context in which that work takes place, can both have strong implications for psychological health in the workforce.

Assessing the risk factors

Tackling the risk management of work-related psychological injuries can certainly take significant time and energy for most employers. For some, a comprehensive psychological risk audit designed to locate and address potential problem areas can be a sensible starting point. Yet it can certainly prove difficult to track down the source of more insidious undercurrents, such as bullying and harassment in the workplace. In these cases, engaging a skilled workplace investigator will ensure that your findings accurately represent the psychological reality of your particular workplace. 

However tackled, the effort to develop a resilient workplace with strong preventative strategies for psychological wellness can certainly pay dividends into the future – for the organisation and for workers alike. Understanding the key causes of psychological injury can be a valuable starting point for mitigating any potentially damaging features within the workplace.  

WISE Workplace provides a suite of courses from 2 hours to 1 day that can help educate and skill employees around bullying and harassment and equip managers in early intervention and prevention strategies to help your workplace remain bully free.  For more information on how WISE Workplace can help you please contact Harriet on 1300 580 685 or visit our website www.wiseworkplace.com.au

The secret to a successful investigative interview – building rapport

- Wednesday, June 01, 2016

 

We’re all guilty of it: we ask a question that we don’t really expect to be answered in full. We’ve been socialised to do this; “how’s it going?” really means “I see you.” The usual answer “good” completes the interaction, but often isn’t even true!

Investigators have to learn to listen. And listening well means going beyond just hearing and recording and actually building a relationship of trust, that leads to mutual understanding.

That relationship, or sense of “closeness,” is called rapport. It’s one of the most important skills an investigator can develop. It needs to be authentic – it can’t be forced. Genuine rapport produces results.

Importantly, it creates an environment where the interviewee can be heard without judgement and helps the investigator establish any cognitive limitations in the interviewee.

 Professor Ray Bull gives advice on how to best build rapport.

Rapport is not about being “soft”; it doesn’t mean fake encouragement or comments that create an impression that you’re on their side. And it certainly doesn’t mean avoiding tough questions.

To build rapport, an investigator needs to show competence, confidence, empathy, interest and a willingness to listen. It requires both verbal and non-verbal techniques.

Simple things such as personal introductions, smiling, leaning forward, paying attention to an interviewee, using moderate eye contact and a warm voice, help create rapport.

Rapport-building typically starts with the investigator providing a welcome and introductions, supported by positive non-verbal communication that can include physical contact, such as a handshake or some other culturally-appropriate gesture. In this way, the two parties are welcomed into the interview and a tone is set.

Next, the investigator takes the lead by showing interest in the interviewee, by asking questions about them. This could include asking where they’re from, what they do and about their work history.
 
The conversation initially should be unrelated to the matter under investigation, but not so disassociated that it’s difficult to bring the conversation back to the primary reason for the interview – and not so long that the interviewee becomes impatient.

Rapport-building doesn’t stop after introductions are complete, but should continue throughout the interview.

The goal is always to go beyond a mere question-answer “transactional” approach to information gathering, but instead move towards a proper conversation, that engages the interviewee and elicits the most complete account possible. Because “Good” just isn’t good enough!

The Repercussions of Strong Words in the Workplace

- Wednesday, May 25, 2016
The Repercussions of Strong Words in the Workplace

We see many cases where negative emotions arise at work. And it’s certainly not unusual for employees and employers to sprinkle angry discussions with yelling and/or expletives. Yet when does bad language warrant a strong reaction from the employer – or even dismissal?

Two recent cases demonstrate that violent or offensive communication can certainly lead to punitive repercussions. Of course, no two workplaces are the same and it is inevitable that some ‘blue’ language will enter a legal grey area. 

We examine the potential fall-out from angry (and sometimes threatening) words spoken in the workplace.
Case 1 – The Downside of Anger
In the matter of Hennigan v Xmplar Building Solutions, an Irish migrant worker was dismissed for using a phrase that the employer perceived to be particularly threatening. As background, the male Irish worker Hennigan was relying upon the employer’s alleged earlier undertaking to support his section 186 permanent residency application, as well as that of Hennigan’s partner.

The employer denied that any such undertaking had been made. Faced with being forced to leave Australia, Hennigan confronted the employer and unleashed a tirade of anger and accusations. Crucially, Hennigan uttered the phrase “I’ll fix you up,” which the employer took to be a clear threat. The worker was instantly dismissed. 

The Fair Work Commission (FWC) took evidence from both parties regarding the circumstances and meaning of the phrase used. The employer maintained that this was a clear threat by Hennigan to inflict some form of vengeful violence on the employer. Yet the worker’s representatives noted that in Irish vernacular, the colloquialism “I’ll fix you up” means something less aggressive and would not actually constitute a threat.

FWC Deputy President Kovacic decided in favour of the employer, noting the definite threat that was implied by the worker in promising to “fix you up.” In this way, instant dismissal by the employer was considered appropriate in the circumstances.
Case 2 – Extreme Language 
We were interested to see that in Hain v Ace Recycling, the FWC took a different view to an angry exchange between worker and CEO, which culminated in extreme insults and dismissal of the worker. 

The subject matter of the discussion centred upon overtime payments allegedly owing to Hain. Both Hain and the CEO swore during the conversation, using phases such as “f***ing money” and “not my f***ing problem”. 

The worker at some stage called the CEO an “old c***t.” The CEO later informed the worker via text message that he was dismissed. 

In examining the worker’s inappropriate language, FWC Deputy President Asbury conceded that this would ordinarily constitute a valid reason for instant dismissal. However, considering the employer’s own use of strong language and the inappropriate method of communicating the dismissal, the FWC established that the employer’s actions were unreasonable in the circumstances.
Careful With Our Words
Time and again we see situations where emotions have boiled over in the workplace. The outcomes in Hennigan and Hain demonstrate that when it comes to deciding dismissal cases, the FWC can indeed go either way in condoning the employer’s decision to dismiss. Important elements to be considered include the general culture of the workplace relevant to swearing, the size of an organisation, any danger or threats detected in a worker’s words, plus the manner of dismissal. 

It reminds us that clear policies around acceptable behaviour for everyone in the workplace are a must-have for all employers, regardless of size or industry. Similarly, we recommend to employers that an audit of their termination policies and procedures be undertaken regularly. This is vital to ensure that when dismissal becomes necessary, employers have up-to-date guidance on the best action to take in the circumstances.

For employers, instigating a dismissal will ideally be done with cool heads and reasonable actions. Swearing, yelling or threats by a worker are certainly all undesirable behaviours. Yet context is key in these situations; it pays for employers to look carefully at the bigger picture within which the conduct occurred.

If you'd like assistance with putting clear policies and procedures around acceptable behaviour into place, Wise Workplace can help.  Check out our new Workplace Investigation Toolkit and streamline your investigation process.

Outsourcing investigations? Top 5 Tips on selecting an investigator

- Wednesday, May 04, 2016

 

Sometimes you just can’t or shouldn’t conduct a misconduct investigation in-house.  Where there are conflicts of interest or specialist skills required, organisations may be best suited to engaging the services of a private provider to obtain the information required for the business to make the right decisions.

But how do you know if the service you contract will be provided? Investigations are notorious for over-running on budget, exploding the terms of reference and, if not handled correctly, can cause more problems than they solve.

So how do you make sure the investigation company you use can deliver what it promises? 

The most important thing is TRUST.  You have to trust someone else with one of the most delicate and important aspects of your business. If they get it wrong it could lead you down an expensive path of litigation and court hearings.

How do you find them?

Personal referral - a tried and tested method, but limits your pool to your personal contacts.  Linkedin has extended this pool but wherever you get a personal referral make sure it is from personal experience and not just a friendship. 

Google is goodCheck out a company’s online presence.  A company can provide the reliability and consistency that sole practitioners may lack. Companies also have resources to maintain skill levels and ensure business continuity in case of misadventure. Search terms such as ‘workplace investigator’, ‘bullying investigations’, ‘HR investigator’ or ‘investigations’ should all turn up results.  Don’t forget to add your location, country or state for local service providers.

Conduct an interview – once you have narrowed down the field for 2 or 3, give them a ring. Interview the firm or the individual.  Find out how they manage investigations and sound out their expertise. Ask for estimates and quotes, investigation plans and other information. Professionalism shown here is a good indication that the company will provide you with excellent customer service. 

Are they qualified?

Make sure the company and the investigator you use has a current private inquiry licence. It is little known and little adhered to, but across Australia individuals conducting workplace investigations must either be practising solicitors or licenced investigators.  Ensuring minimum levels of training and a code of conduct, licensing demonstrates the commitment of the individual and company to provide quality investigation services. 

Trust doesn’t stop with a licence however, you also need a business that can demonstrate:

Sincerity

 Reliability

 Commitment

Integrity

 Competence

Consistency

What sets one company above another?

This will depend on the case you have and your company priorities. Some of the typical issues are speed, cost and sensitivity.  You will need to identify which service provider will meet your priorities and provide an investigator with the best matched set of skills and expertise for your case.

So – In short,  here are my Top 5 tips! 

  1. Don’t just rely on personal referral
  2. Check relevant experience
  3. Make sure the business is licenced and individuals qualified
  4. Ensure they can meet your priorities
  5. Place focus on excellent customer service

Harriet Stacey has been managing workplace investigations for 15 years. She has developed a reputation for high ethical standards and quality investigations. Best practice protocols can be invaluable resources to business. So we have developed a Workplace Investigations Toolkit to help support in house management of investigations. See our free investigations flow chart and many more useful resources on our website Wise Workplace.

 

 

How to protect yourself from upward bullying

- Wednesday, April 27, 2016

 

A quarter of Australian bosses are the targets of upward bullying according to a study conducted by Griffith University. Upward bullying occurs when a manager is subjected to bullying behaviour by their subordinates.   Recent research presented at the 10th International Conference on Workplace Bullying in Auckland last week presented new research on the dynamics of upward bullying.

The study conducted by Eileen Patterson, Sara Branch, Sheryl Ramsay and Michelle Barker investigated the power dynamics of upward bullying cases through qualitative research methods involving semi-structured  interviews with six managers from different levels and industries. The research findings indicate that for upward bullying to occur, the normal power imbalance in favor of the manager or supervisor has to be undermined  and the legitimate authority of the manager has to be diminished or removed.

As I have stated in previous blogs,

“One of the main triggers for upward bullying is organisational change.”

This may be a change of working conditions, management or processes.  The influence of one or two disgruntled, negative employees can be profound.  New managers stepping into entrenched group dynamics stand little chance if the team is determined to make life difficult for the new manager. Employees may blame their manager and respond by bullying them.

Upward bullying has the potential to damage a manager's mental health and well-being.  It can cause psychological stress, anxiety, and even depression.  Managers may also lose confidence in their abilities and feel less satisfied in their jobs. Upward bullying also has the potential to impact the bottom line. It can result in lost productivity, increased absenteeism and higher staff turnover, as well as the cost of intervention programs.  

Bullying of managers is characterised by gossip, back stabbing, disrespect, disobedience and a failure to comply with rules. Bullies will question competence and influence newer staff through misinformation. Strong existing or out-of-office relationships with senior managers can also have a significant negative effect on the ability of a manager to manage.

Patterson et al found that the loss of a manager’s legitimate power was caused by a lack of organisational support or staff members perceiving the manager to be an illegitimate leader. Once this swing in power occurs, the manager becomes vulnerable to bullying behaviour from subordinates. The type of behaviours often inflicted include:

  • use of an organisation’s policies and procedures
  • coercive tactics such as humiliation and intimidation
  • use of expertise or access to information to gain an advantage; and
  • ingratiation to those in important positions to gain access to formal power
Strong support for managers by senior management is critical in preventing upward bullying.  So, let’s say you are a manager and you find yourself in this position with little support and disgruntled employees?   Here are my tips based on the studies so far that might help:
  1. Seek support from your management
  2. Develop and maintain close working relationship with your senior managers and powerful people in the business
  3. Ask for coaching or seek mentors to assist with your self-confidence – you’re going to need it!
  4. Resist fighting back with bullying behaviour towards your team
  5. Don’t make significant changes to existing work practices until you have established your credibility
  6. Find a legitimate way to demonstrate your value to the team – find your thing!
  7. Bluff – it might just be a long game of poker.

Self-confidence, awareness of team dynamics and ability to manage recalcitrant and possibly underperforming staff are necessary in these cases.

So it might be a case of keeping your enemies close, your bosses closer and bluffing your way through until you prove your worth!

Supporting new leaders and managers in your business will go a long way to helping them build and maintain legitimate authority within the workplace. WISE Workplace together with its allied businesses can help you provide the right type of support - be it coaching, leadership skills or managing under adversity. For more information on how we may be able to support legitimate leadership contact 1300 580 685.  

Action Needed on Bullying in Victorian Public Health Sector

- Wednesday, April 27, 2016
Bullying Entrenched in Victorian Public Health Sector

The larger the organisation, the greater the potential for bullying and harassment to become ingrained in workplace culture. When this happens, the victim can become the perpetrator, and the cycle continues. The situation may be made worse by management acquiescence, especially if the attitude is “if you can’t stand the heat, get out of the kitchen.”

The Victorian Auditor-General released its report into Bullying and Harassment in the Health Sector recently. It made many findings about how widespread the problem is, and also some strong recommendations for change. 

Background to the report

The Victorian Government commissioned a series of audits that looked at the occupational health and safety of Victorian public sector health workers. One audit considered whether the risk of workplace bullying and harassment was being effectively managed. 

This was the subject of the report. The report noted that serious harm can be caused by bullying and harassment. In 2010, it was estimated to have cost the Australian economy up to $36 billion per annum.  

The report also noted that the problem hits the public health sector particularly hard with:

  • Staff retention issues. 
  • Cost of recruitment and training. 
  • Low morale.
  • Management time spent dealing with the issue. 
  • Legal costs.
  • Damage to reputation. 

A disappointing reflection on leadership
The Auditor-General did not mince words, saying: 

“The leadership of health sector agencies do not give sufficient priority and commitment to reducing bullying and harassment within their organisations.”

The report also found that there were no proper processes in place for early intervention of bullying and harassment issues. More guidance and support was required to improve the public health sector’s management of inappropriate behaviour.

The more specific findings included that:

  • Management did not take bullying and harassment seriously as an OHS issue.
  • Steps were not being taken to identify and minimise risks.
  • There was a consistent failure to hold senior staff accountable.
  • Incidents were under-reported, possibly because of fear of repercussions, the mistrust of human resources staff, or the normalisation of the behaviour. 
  • Policies and procedures were ineffective at regulating inappropriate behaviour because of lack of understanding, ineffective implementation and failure to comply. 
  • Training and education were ineffective because of being voluntary, inconsistent or insufficient. 
  • Early intervention was generally inadequate and staff mistrusted the process.
  • There was no systematic or effective response to formal complaints.
  • There was ineffective guidance and assistance to help the sector implement best practice measures. 

The report noted that in 2013, more than one quarter of Victoria’s public health employees had experienced bullying or harassment. 

The report’s recommendations

With such troubling findings, it is no surprise that the report has made a long list of recommendations. They include:

  • Implementing risk management procedures to identify and minimise inappropriate behaviours.
  • Implementing policies and procedures that are clear and set out accountability for dealing with complaints. Ensuring compliance with policies and procedures.
  • Fostering a positive workplace. 
  • Encouraging reporting of behaviour by taking action on complaints. 
  • Developing and implementing mandatory training on bullying and harassment issues. 
  • Proper documentation of any issues concerning inappropriate behaviours. 
  • Striving for early intervention to minimise damage.
  • Implementing a formal complaints procedure. 
  • Making human resource departments more effective in dealing with the issues. 

The Victorian health sector certainly has a huge job ahead of it. With so many employees having first-hand experience, there is little doubt that there is an entrenched culture of inappropriate behaviour in many of the public health agencies. 

However, the report and its ensuing publicity is perhaps a positive first step in fixing the issues and there is potential to implement sweeping change. We will monitor the progress of the reforms with great interest. 

In the meantime, we know that effective policies and workplace culture play a huge role in the prevention of bullying and harassment. If any of these issues are ringing alarm bells for you and your organisation, WISE Workplace can help. We have vast experience in dealing with bullying and harassment issues and we are just a phone call away. 

The State of Bullying in Victoria

- Wednesday, April 20, 2016
The State of Bullying in Victoria

There has been a deluge of reports coming out of Victoria in the last few months focusing on bullying and harassment. 

The hair-raising antics of former Geelong Mayor Darryn Lyons are detailed in the parliamentary inquiry report released last week. Lyons is reported to have threatened, bullied and displayed other unacceptable behaviours towards staff. 

He is not alone. Earlier in the month, the Auditor-General’s report on Bullying and Harassment in the Victorian Health Sector commented that the sector was unable to prevent or reduce inappropriate behaviour, including bullying and harassment. The report also found that key controls which could reduce the risk to employees were either “inadequately implemented, missing or poorly coordinated.”

In December 2015, the Independent review into sex discrimination and sexual harassment including predatory behaviour in Victoria Police report was released by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). This report found an entrenched culture of what it called ‘everyday sexism’ and a high tolerance for sexual harassment giving rise to significant costs for the organisation. 

What are the statistics?

According to the VEOHRC review, 40% of female employees had personally experienced sexual harassment in their lifetime (higher than the national average of 33%), and 20% had experienced sexual harassment in the police within the last five years. 

Across the Victorian public sector, survey results show 25% of health agency employees and 25% of female police officers have reported being victims of bullying. But interrogating the figures shows significant increases in reports in certain employment groups. A study in 2014 by Monash University into bullying found that 40% of nurses had experienced bullying or harassment within the previous 12 months. 

Similar figures were found in the Royal Australian College of Surgeons (RACS) report, with 39% of surgeons experiencing bullying, and 19% reporting having experienced harassment in the previous 12 months. 

One perpetrator, multiple victims

While the studies found entrenched cultures that permitted bullying and harassment through lack of effective action, it is likely that affirmative action would have a profound positive effect on staff welfare. The inquiry into Victoria Police found that 52% of those who reported being sexually harassed were aware that others were also victimised, and in 81% of cases it was by the same perpetrators. 

What the reports have in common

The studies found many similarities in the structural causes for the prevalence of inappropriate conduct. In particular, they all found there was:

  • Widespread underreporting.
  • Inadequacies in the response when matters were reported. 

When participants were asked why they didn't report, the two dominant reasons were: 

  • Belief that no action would be taken.
  • Fear of retribution. 

Other studies have found that: 

  • 67% of people who experience bullying and harassment do not report it. 
  • Of these, 53% don’t report because they believe that no action will be taken, and 42% believe that reporting will have a negative impact on their career (responders could tick more than one item). 
  • The RACS survey reported 44.9% of respondent’s feared repercussions, but this figure increased to a staggering 93.4% for 31 to 35-year-olds. Presumably this group is heading towards the end of a long and arduous qualifying period. 
What can organisations do?

Changing the culture across a wide range of organisations is no easy task and will require a whole-of-business approach, and a variety of strategies to make a difference. 

Having clear codes of conduct and policies on how to respond are necessary, but just having them is clearly not enough. Codes of Conduct must be known, used and acted upon. 

It is the will to tackle bullying and harassment that is needed now, and this requires training and accountability on how to respond to complaints or conduct when it occurs. 

The development of a clear procedure for responding and investigating complaints is an integral part of this process. Our flow chart on responding to complaints helps bring clarity where confusion lies. Download the free chart, and take a look at our Workplace Investigations Toolkit for expert advice and guidance on a procedure that won’t let you down and will support your managers in doing the right thing. 

WISE Workplace also offers tailored training on all aspects of managing workplace behaviour, so whatever your organisation’s particular issue, give us a call and see how we can help make your workplace a better place. 

FWC Contradicting Public Expectations on Child Protection?

- Wednesday, April 06, 2016
FWC Contradicting Public Expectations on Child Protection?

Child protection and child abuse are issues of such a serious nature that they’re currently the subject of their own Royal Commission. But a recent decision of the Fair Work Commission (FWC) seems to fly in the face of the Royal Commission’s recommendations, as well as the advances in reportable conduct legislation in NSW.  
The FWC decision

O’Connell v Catholic Education Office is the case in question. O’Connell was a teacher who had been employed by the NSW Catholic Education Office (CEO) since 1979, in various teaching roles.   

In December 2014, allegations arose that he had behaved inappropriately towards a child. He was put on leave by the CEO. In February 2015, he was formally charged with indecently assaulting a child under the age of 16 years.   

O’Connell denied the allegation, and asked for alternative duties, suspension or leave until the charge was determined. The CEO instead terminated his employment.   

In August 2015, the charge was withdrawn.   

O’Connell claimed that he had been unfairly dismissed as the CEO could have arranged for him to work in an alternative role, pending the charges being determined.   

The CEO claimed that once O’Connell had been charged, he became a “disqualified person” under the Child Protection (Working with Children) Act (the Act). It had no choice but to terminate, as the Act prohibited his continuing employment in child-related work.   

The CEO used this as a jurisdictional argument – as there was no unfair dismissal, the FWC could not determine the matter.   

The matter was heard by the full bench of the FWC.   

Untangling the web of legislative language  
The FWC said that its duty was to give the words the meaning that had been intended by parliament.   

It found that there was no barrier in continuing O’Connell’s employment – he could have been redeployed to other duties that involved no contact with children.   

It also found that parliament was unlikely to have intended termination of employment whenever there needed to be further inquiries about a child protection matter.  This could have disastrous consequences for many innocent workers.   

The FWC looked to the second reading speech of the Act to determine parliament’s intention:

“Employers with the capacity to do so may suspend a barred worker or redeploy such a worker to a non child-related role.”    

Because termination was by choice and not mandated by legislation, there was jurisdiction for the FWC to hear the unfair dismissal claim.   
Inconsistency with other decisions
FWC considered the decision of Mahony in which a teacher’s employment contract had been frustrated because the criminal charges against him meant that he could not work with children.     

It found that the Mahony decision had been made without the benefit of extensive submissions that could be considered before reaching a conclusion. The FWC said it was not bound by Mahony.   

It also considered the case of Fraser, in which it was found that employers have a choice about whether to comply with or ignore laws requiring termination of employment. It said that this decision was wrong.  

What does it all mean?

The FWC has made it clear that its  O’Connell decision is now the authority for similar matters.

But it seems at odds with NSW’s working with children police check requirements, which are considered some of the most rigorous in all of Australia. This was particularly evident in the case of BQY, who eventually won the right to become a registered teacher after a fairly minor encounter with a former student.    

There is also anticipation that the Royal Commission will recommend that uniform child protection laws are established in Australia. This, along with the recent inquiry into how reportable conduct legislation has been operating in NSW over the past 16 years, now makes the law in this area very uncertain.   

The FWC decision is unlikely to sit easily with the other anticipated child protection changes, but as a full bench decision, it carries great weight. It may be a case of parliament having to make changes to the wording of the legislation to ensure that the law falls into step with public expectations and is consistent with political response to this very important issue.   

Can IBAC Become a Corruption Watchdog with Bite?

- Wednesday, March 30, 2016
Greater powers for corruption watchdog

With corruption costing the world economy an estimated 2.6 trillion dollars per year, you can bet that organisations are sitting up and taking note. Plenty of them are losing big money, and a lot of individuals are getting rich by underhanded means. 

The Victorian Government took action to stem the scourge of corruption in 2011, setting up the Independent Broad-based Anti-Corruption Commission (IBAC) to investigate the Victorian integrity system with the aim of improving accountability and transparency. 

But the body has been criticised as being a toothless tiger, and with the release of its first report to the Victorian Government, the question now is whether IBAC will become a watchdog with bite. 

What is corruption?

Corruption is a broad term which, in a workplace context, may range from serious frauds and abuses of power to lower level activities that violate the trust that an employer places in employees. 

The report defines corruption as the exploitation of public or private office for personal gain. It can take many different forms, including bribery, extortion, embezzlement, fraud and conflict of interest. 

Corruption can be so widespread and occur in so many forms that the report estimates that it adds a staggering 10% to the running costs of organisations worldwide. 

IBAC’s powers

IBAC has the power to investigate serious corruption in the public sector or police misconduct. But it does not have the power to investigate:

  • Matters in other states or territories.
  • Federal politicians or Commonwealth Government departments or agencies. 
  • Matters in the private sector. 
  • Minor issues concerning police officers.
  • Court judgments or traffic decisions. 

Some commentators have criticised IBAC’s powers, saying that the definition of corruption is too narrow, and that corrupt conduct has to be “serious” and also criminal in nature before IBAC can investigate. 

IBAC’s powers are also much more limited than its NSW equivalent body, the ICAC. 

The report’s recommendations

In all, the report made 13 recommendations to the Victorian Government, including that the definition of corruption be broadened to include additional criminal offences. 

It recommended an ongoing review of the definition of corruption to include non-criminal conduct in the future. 

The government’s response

A new Bill  is currently before the Victorian Government. If passed, the new legislation will:

  • Expand the scope of IBAC’s powers so that suspicion of “serious” corrupt conduct is not required. Suspicion on reasonable grounds that the conduct is corrupt will be enough for IBAC to become involved. 
  • The scope of people who can be investigated by IBAC will include non-public officials.

But commentators continue to express doubt over how effective the proposed changes will be, even if they are enacted. 

Corruption is a pervasive issue that is increasingly costly to organisations worldwide. It has perhaps gone unchecked for far too long. The Victorian Government took a positive step to remedy this by establishing IBAC, but even with the anticipated expansion of its powers if the legislation is passed, there are doubts about whether it has enough bite to address this huge issue. It is fair to say, however, that IBAC is here to stay, and the Victorian Government may have a few more attempts at amending its watchdog’s powers. 

WISE Workplace can assist organisations to respond  to fraud and corruption threats by enrolling in the Cert IV Government Fraud Control. This specialised program offers participants the opportunity to cover all core competencies in an intensive 3 day short course followed by self paced online study. Book your place for our next course in Melbourne on 18-20 May 2016