Mitigating Factors and Dismissal - What is Relevant?

- Wednesday, March 16, 2016
Mitigating Factors and Dismissal - What is Relevant?

If you’ve ever conducted a disciplinary interview with an employee, you may have asked them if there are things they’d like you to take into account when making your decision about how to handle the matter.  

These are often referred to as ‘mitigating factors’, and are an important part of the disciplinary process. But we find employers can be uncertain about the concept, and what is relevant. 

And rightly so – mitigating factors are fluid, changing and evolving depending on the circumstances of a matter.

the Legislative basis for mitigating factors

The Fair Work Act sets out the criteria for the Fair Work Commission (FWC) to consider whether a dismissal is harsh, unjust or unreasonable, including whether there was:

  • A valid reason.
  • Procedural fairness.
  • Opportunity for the employee to be represented. 

It also requires that the FWC consider “any other matters that [it] thinks relevant.” 

This is the provision under which the FWC will consider mitigating factors – any background circumstances that might explain the conduct or reduce the severity of the penalty for the employee.

It is a deliberately vague provision, as mitigating factors could include just about anything, depending on the circumstances of the individual. 

Employers must consider these factors

Because the FWC must consider mitigating factors when determining an application for unfair dismissal, it follows that employers must also consider mitigating factors when making disciplinary decisions, including whether to terminate employment. 

This also serves as a reminder to employers that when deciding whether to terminate employment, all of the employee’s circumstances need to be taken into account to arrive at a “reasonable” decision. It is especially important to ask the employee whether there are any matters that they would like to be taken into account.

The importance of this was highlighted in the recent decision of the FWC in Mary-Jane Anders v The Hutchins School.
A real world example
Anders was a maths teacher and an academic administrator, employed by the school. She reported struggling with her workload and not long afterwards suffered a breakdown and took leave. After returning to work, she again broke down and took further leave. 

In the meantime, the school had removed her from her administrative role. She took issue with the allocation of classes that she was to teach. 

Her relationship with the school’s leadership broke down, and some of her colleagues refused to work with her. She used social media and emails to colleagues to vent her concerns.

The school’s deputy head terminated her employment following an investigation, citing a total breakdown in the employment relationship. Anders claimed unfair dismissal in the FWC.

The FWC made findings about bias, but also found that there were some significant mitigating factors which the school ought to have taken into account when investigating the matter. These included:

  • Anders’ previous good employment record. 
  • Her mental illness diagnosis.
  • Her husband’s critical illness at the time when allegations were first raised with her.
  • The school’s failure to address earlier problems in the relationships between Anders and some of her colleagues.

In light of these factors, the FWC found that, even though Anders’ emails and social media comments were poorly judged, the termination of her employment was harsh and there was no valid reason for dismissal. 

But even so, because her relationship with the school was so broken down, the FWC awarded compensation instead of reinstatement. 

The need to take mitigating into account

This decision is a reminder to employers of the importance of taking into account any mitigating factors. If an employee’s conduct is out of line or serious enough for termination to be considered, employers should do everything possible to get to the bottom of the matter. 

In our experience, the more thoroughly employers try to understand an employee’s conduct, the more likely the employer’s investigation will be seen as fair and reasonable. For further information about mitigating factors and how to address them, WISE Workplace can help. We’re just a phone call away. 

Have You Been Accused of Bullying or Harassment at Work?

- Wednesday, March 09, 2016

We first ran this blog in 2014 and from the number of comments we received, it clearly raised issues that resonated with many of our readers.  So by popular demand here it is again.  We welcome your comments, as always.

Bullying and harassment legislation is in place to protect employees from being bullied by their co-workers. If you have been accused of bullying at work, it’s important to follow company procedure and co-operate with any internal or external investigations.

Although most bullying and harassment claims are legitimate, sometimes accusations can arise from misunderstandings, communication difficulties or can be brought against a manager, co-worker or subordinate out of malice or revenge for a perceived slight.

Accusations of bullying commonly occur where managers or supervisors have provided feedback to an under performing employee, or taken disciplinary measures against them. Management direction isn’t considered bullying, and as long as any actions taken were documented and reasonable, you shouldn’t have anything to worry about.

If you are managing employees and providing feedback on performance it’s important to document all your discussions, and ensure that any actions you take are in line with organisational policies. This can help protect you against false accusations of bullying, and make the investigation process easier and more straightforward if a situation is escalated.

If you have been accused of bullying at work, it’s important to follow company procedure and co-operate with any internal or external investigations. If you are accused of workplace bullying, even if you don’t believe it’s justified, it’s important to be open-minded and listen to the other person’s perspective. Here are a few suggestions to help you deal with an accusation of bullying or harassment without making the situation worse:

  • Remain calm if someone approaches you about your behaviour. Although it can be extremely upsetting to be accused of bullying, getting angry will only aggravate the situation.
  • If you believe that the accusations are false, speak to a senior level employee or your HR department. In many cases where bullying stems from a misunderstanding, the matter can be resolved with mediation from a third party
  • Be prepared to change your behaviour or style of communication. It may be that a few modifications to your actions or manner of communication is all that’s needed to resolve the situation. It’s important not to get defensive and to stay open to any constructive feedback you receive.

With the recent increased awareness of workplace bullying, more employees are becoming aware of the ability to lodge a bullying complaint, especially if they feel they are likely to lose their job, or as a form of revenge against a supervisor.

To reduce the likelihood of false claims, it’s a good idea for managers to provide training to employees to help them distinguish between normal management direction and actions, and bullying. Many bullying claims are a result of misunderstandings or miscommunication and these can easily be prevented with the right training, clear expectations, performance indicators, and documentation of feedback and disciplinary actions taken against individuals.

False claims can be extremely distressing to the person who is wrongly accused of bullying, and can even be a form of harassment in themselves if they are taken out for malicious purposes.

Undercurrents of Bias can Drown an Investigation

- Wednesday, February 24, 2016
Undercurrents of Bias can Drown an Investigation
In the often stormy seas of workplace investigations, the issue of investigator bias lurks in the undercurrents, a trap for the unwary employer.   

One of the most regular complaints we hear from people who have been the subject of an investigation is that the investigator was biased and the decision was predetermined, and they had no chance of a fair hearing.  

It doesn’t really matter whether bias is real, it is the perception of bias that undermines the investigation process and can keep employers working with ‘problem’ employees through various court processes for years. You heard right - YEARS! 

There may be many sound reasons for using in-house staff to conduct investigations. These include: 
  • Keeping the costs down. 
  • Having someone familiar with the culture and work practices of the organisation. 
  • Knowing the individuals.   
So long as the person you use has the required skills in collecting evidence there shouldn’t be a problem, right?  

Wrong! – the issue over bias can become the dangerous undertow that makes all those cost savings irrelevant when you are embroiled in a protracted court case.  

What happened in Anders

Anders was employed by the school, located near Hobart, as an academic administrator (AA) and maths teacher.  

In 2013, Anders said that she was snowed under with her AA duties. She was also diagnosed with anxiety and depression, and took extended leave. At the end of 2013, the school removed her from the AA role. 

Anders disputed this decision by application to the Fair Work Commission (FWC). An outcome was negotiated, but Anders maintained her protests about the decision. 

Following her return to work, Anders had some further episodes of depression and anxiety, which again caused her to take leave. 

During this period, Anders’ relationship with the school’s management and other staff became problematic. It was alleged that she: 

  • Took issue at not being allocated a particular maths subject to teach, saying that “the gloves [were] off.”
  • Made some social media posts about her employment issues which caused the school to caution her about inappropriate use of the platform.
  • Sent emails to colleagues about her dispute with the school.
  • Expressed mistrust in the school’s headmaster and deputy headmaster and would not communicate with them.
  • Had such a difficult relationship with other teachers in the faculty that they had refused to work with her. 
  • Claimed that she had been discriminated against on the basis of her mental illness. 
  • Showed discourteous and disrespectful behaviour towards her colleagues. 

Deputy Headmaster Alan Jones investigated the matter. He put the allegations to Anders in writing and she was asked to attend a meeting and was invited to have representation present. Following the meeting, Jones interviewed other witnesses.  

Jones decided to terminate Anders’ employment, having found that most of the allegations against her were substantiated. He wrote to her saying that there was a total breakdown in the employment relationship, making her continued employment at the school impossible.  

Anders made a claim for unfair dismissal in the FWC. 

The FWC decision

The FWC found that while Anders’ behaviour may have indicated a lack of wisdom, it did not constitute a breakdown of the employment relationship. 

Because Jones was investigating the matter, the FWC said that he was in effect investigating an allegation against himself as Anders had allegedly declared that she did not trust the headmaster or deputy headmaster of the school. 

The concern was that he could not be impartial. This, combined with Jones’ knowledge of Anders’ mental health issues, “did not provide a reasonable basis for Mr Jones to conclude that each of these allegations [was] proven.” 

The FWC found the termination was harsh as there was no valid reason, and ordered the school to pay compensation. 

not the only case

This issue is certainly not an isolated one. The case of Keiko v Qantas also involved an allegation of bias. The investigator in that case was criticised for accepting the account of a close work colleague rather than the weight of contrary evidence from many other witnesses. As in Anders, using an independent investigator would have circumvented this issue.

Keeping investigations independent and without bias is a central tenet to procedural fairness. While independent investigators are not immune from bias or indeed allegations of bias, it is important for employers to recognise when their in-house team is too close to a situation to effectively investigate without bias. 

If you have a problem that you want to discuss or think an independent investigator is the answer, talk to one of our case managers about how our workplace investigators may be able to help. 

Do I Need to Follow Rules of Evidence?

- Wednesday, February 17, 2016
Rules of Evidence

Rules of evidence exist to ensure that court hearings are properly and fairly conducted. They are enshrined in legislation. 

To be admissible, each piece of evidence must satisfy all the checks and balances set out in the legislation. 

EVIDENCE AND THE Fair Work Commission (FWC)

The FWC is not bound by the rules of evidence or procedure in any matter it hears, although it conducts itself in a manner similar to a court, for example witness evidence is heard under oath and document disclosure processes must take place. The rules of evidence serve as a general guide to FWC members about how to determine matters. 

Because non-lawyers often appear before the FWC, and because it aims to deal with matters efficiently, it may choose to overlook some rules of evidence in favour of efficient case-flow and to ensure it remains accessible to lay parties. 

However, failing to adhere to the rules of evidence may cause you problems such as in the case of Wong v Dong Lai Sun Massage Pty Ltd.

A case in point

In the case of Wong, Wong was employed as a masseur by Dong Lai Sun Massage (DLS). Wong had applied for a temporary work visa and was awaiting the outcome of that application.

Wong claimed that her employment was terminated following absence from work due to injury. She made an adverse action claim under the Fair Work Act. Mrs Dong wanted to represent DLS and made an application to the Federal Court to do so. (Neither party had legal representation at the time of the hearing). 

The facts of the case were complex and conflicting. There were allegations of illegal payment methods, employment in contravention of visa requirements, loans from Wong to the employer, whether the employment was casual or full time, confusion over Wong’s duties and the issue of workers’ compensation. 

To add to the complexities, neither Wong nor Dong could understand English and neither had sought the assistance of an accredited translator and were seeking to represent themselves.

The judge said that neither party had identified any of the evidence as inadmissible and the court may need to take on that role.  The affidavits that had been filed by the parties did not comply with the court rules and neither party could assist the court because of their inability to speak English.  

The judge found that the parties were incapable of assisting the court to understand or resolve the matter.  He refused the application and issued a certificate for DLS to access free legal advice.

tips to gathering quality evidence
  1. If it involves complex legal principles consult a solicitor or engage a professional investigator at the outset
  2. Make sure your evidence is relevant to the dispute
  3. Gather first hand accounts wherever possible
  4. Stick to original documents or provide authentication of the accuracy of documents that are copies
  5. Although circumstantial evidence can be used, you must clearly articulate the reason that the evidence points to a particular conclusion - don't expect everyone to form the same opinion as yourself!
For more information on using circumstantial evidence in workplace investigations, download our free white paper.  

Wise Workplace provides qualified and licensed investigators and trainers to help organisations manage workplace misconduct.

Keeping it Under Wraps: Legal Professional Privilege

- Wednesday, February 10, 2016
Legal Professional Privilege in Focus

Not all communications are fair game in legal proceedings. Many are protected by a concept known as legal professional privilege (LPP). LPP allows parties to seek and consider legal advice without fear of disclosure, but there are also strict rules about when LPP exists, and when it is waived. This has been brought sharply into focus in a recent ruling by the Fair Work Commission (FWC).
What is LPP?

In litigation, the legal system requires disclosure of communications by all parties where the communications are relevant to the action. This assists the parties to prepare the matter, and the court to adjudicate. 

The exception to this rule is LPP. 

LPP protects certain communications from disclosure when they have been created to seek or provide legal advice. For example, a letter of advice from a solicitor to a client is subject to LPP because its purpose is to provide legal advice. In court proceedings, the letter does not need to be disclosed to the court or the opposing party; it remains confidential.

LPP exists so that clients can fully discuss matters with their legal advisors without fear of those matters later being disclosed to other parties.  

The case of  Kirkman v DP World Melbourne Ltd demonstrates how LPP operates, and when it can be used. 

LPP in the case of Kirkman

Kirkman was an employee of DP World Melbourne Ltd (DP). Following an allegation of bullying, DP engaged an independent investigator who provided a report. The report was marked “privileged and confidential” and DP used the report to put allegations to Kirkman. 

After Kirkman’s employment was terminated, he took action for unfair dismissal and sought disclosure of the report. The FWC refused. Kirkman appealed the decision. 

On appeal, DP argued that the report was subject to LPP because it had been created for legal advice. Kirkman argued that DP had waived LPP by putting the allegations to him. 

The FWC found that LPP applied to the report because it was created only for legal advice. It was marked “privileged and confidential” which reinforced that conclusion. The FWC noted that waiver could be express or implied and would occur where the conduct of the party was inconsistent with confidentiality requirements. 

The purpose of the partial disclosure was to provide Kirkman with the opportunity to respond to the allegations against him, which would allow DP to reach a considered conclusion. Waiver had not occurred. 

Had Kirkman been shown the report, no doubt LPP would have been waived because DP would have acted in a manner inconsistent with the confidentiality it was claiming. 

Lessons for employers

This case is a reminder of the care that must be taken when a matter is being investigated. Even before litigation is contemplated, documents can be used or created for which LPP may later be claimed. It is important to remember that:

  • LPP documents should always be marked “strictly private and confidential” or “privileged” or similar.
  • LPP documents should only be circulated to those who are required to see them. 
  • Any expert or other third party must be reminded that their expertise is being sought for the purpose of legal advice. 

LPP and waiver issues can be difficult. There is not just litigation to consider, but investigations and advice sought well before a matter becomes litigious. Using an experienced workplace investigator early on in the matter has many benefits.

Investigators are well versed in LPP and consider LPP implications from the outset of a matter. This can often be the difference in successfully or unsuccessfully litigating a matter.

Kicking off a Fresh Start

- Monday, February 01, 2016
Leave conflict behind with positivity and workplace mediation

The start of a new year is a great time to do away with the conflicts of the past, to focus on positivity, and to improve the workplace for the benefit of everyone.

Here’s how a little positive psychology and the use of workplace mediation to deal with any lingering disharmony can help to create a happy and healthy work environment for 2016. 
The power of positivity
Positive psychology has gained momentum as a movement, especially in workplaces. Fundamentally, it seeks to get the best out of people in all aspects of their lives. In the workplace, positive psychology aims to improve morale, wellbeing and work performance by supporting employees, encouraging innovative thought and fostering effective teamwork. 

It can be implemented in a number of ways, including by:

  • Ensuring workers are appreciated and thanked for their efforts.
  • Organising mentoring or coaching of less experienced staff by more senior employees, who can guide and assist them with career development. 
  • Encouraging workers to leave the workplace at lunchtimes for a change of scenery. If workers must eat in a lunch room, consider brightening it with new paint, pictures, new furniture, and the addition of appliances and/or vending machines. 
  • Encouraging employees to think creatively about ways to improve the business, and to develop these ideas. This shows staff that they are valued and their ideas are important. It also allows them to play to their strengths in taking on “pet” projects.
Possibly the most outstanding example of this last point is Google. Known for its flexible and creative employment practices, Google allows employees to spend up to 20% of their time on projects of personal interest – also known as “innovation time”.  Google Maps and Gmail are both products of innovation time, and are now key aspects of Google’s business. 
Mediation and the workplace
Minimising workplace conflict is an important part of positive psychology. A key way to minimise workplace conflict, especially when productivity or employee wellbeing is threatened, is to use mediation. 

Workplace mediation can be very effective in resolving disputes if both parties are willing to talk about their issues. It can also happen informally if the matter has not escalated to an application or complaint being lodged under the Fair Work Act

In mediation, both parties meet with an impartial independent third party to discuss the issues and to try and achieve a resolution. 

Mediation is most effectively employed soon after a conflict arises. The longer a conflict continues, the more entrenched the parties can become, the less open to compromise they will be, and the greater the chance that other staff have become involved and taken sides. This can seriously undermine morale and productivity. 

Using mediation before a conflict escalates can have many positive benefits, including:

  • Giving staff a say in how they can better work together.
  • Giving staff a sense of responsibility and involvement in reaching a resolution.
  • Providing a starting point for defining professional conduct and appropriate interactions. 
  • Discussing what support structures are needed and implementing those structures.
  • Developing systems for avoiding and handling future conflicts. 
Both positive psychology and the use of mediation can play a key role in reducing conflict, and fostering a productive workplace where morale is high. Why not consider implementing some of these strategies, and start the year off on a positive note?

WISE Workplace engages experienced mediators and psychologists to work with clients to bring about positive outcomes for teams. Call us on 1300 685 580 for more information, or visit www.wiseworkplace.com.au.



The Year that Was: Lessons from 2015 Part 2

Jill McMahon - Monday, January 25, 2016
Lessons from 2015 Part 2

Here at Wise Workplace, we’ve been focused recently on reviewing the past in order to learn for the future. Last week’s blog, part 1 of our two-part series on lessons employers can take from 2015, highlighted some important case law around the themes of bullying and the definition of ‘at work’.  

In part 2, we take a look at important decisions in other areas of workplace law, including workplace culture and procedural fairness, and the implications for employers. 

Workplace culture and its impact

When it comes to workplace culture, alcohol seems to be a key feature – and an increasingly vexing issue for employers.

In the NSW District Court matter of Mitchell-Innes, a manager attended a conference still drunk from the night before. He disrupted part of the session and his employment was later terminated for gross misconduct. 

The court found that alcohol consumption was entrenched in the workplace culture, and this meant that the employee’s conduct was not serious enough to warrant termination of employment. 

Similarly, Keenan’s drunken behaviour during and after the office Christmas party led to the termination of his employment. 

Both cases found that misconduct would be harder to establish when there was a culture of drinking in the workplace, including after-hours functions. 

In Keenan, the FWC listed some steps of caution that a reasonable employer should take in trying to stop things getting out of hand, including ensuring that alcohol service is restricted, and employees are aware of employer expectations of behaviour. 

Overstepping the mark

2015 also saw cases of workers being unfairly punished for a third party overstepping the mark.

In Amiatu, employees were accused of theft. Their union representative persuaded the company to allow them to resign rather than be terminated. The employees later claimed they were coerced to resign because they feared police involvement. The FWC held that the union representative failed to act in the best interest of the workers, even though the employer had reasonably believed it had negotiated an outcome.

This is a reminder to employers to be careful about negotiating with employee representatives, especially when the employee is not present. 

In the case of BQY, systems designed to protect went too far. A female student teacher had allowed a former student to kiss her some time after she had finished her placement and after the boy had turned 18. She was subsequently refused a clearance to work with children by the Children’s Guardian, placing her teaching career in jeopardy. On review, it was found that she was not a threat to the safety of children, and she was granted the clearance. 

Procedural fairness and standard of proof

No workplace investigation is of value unless it is undertaken properly, so it is no surprise that procedural fairness featured prominently as a theme last year. 

In Amiatu, as well as the union overstepping the mark, the FWC found that the employer had not uncovered enough evidence to prove allegations of theft and had failed to objectively assess the matter. The Elton case concerned an employee’s alleged suspicious behaviour. The FWC found there was a reasonable explanation for the employee’s conduct, and the employer did not have enough evidence to support the allegations. 

Both cases are a reminder that evidence must be carefully assessed and all possible options and explanations considered. Engaging an independent investigator is often an excellent way to achieve this.

In Willis, there was some confusion about whether the employee was being performance managed or disciplined. The FWC found that employers must be clear about the process from the outset, and that any action taken against the employee must be a proportionate response to their conduct.  

The NSW Supreme Court case of Bartlett found that the employer could effectively set its own standard of proof, depending on the wording of the employment contract in question. It will be interesting to see how this decision is subsequently developed, as it seems a significant departure from the usual standard of ‘on the balance of probabilities’. 

A timely reminder

These employment law decisions of 2015 serve as a good reminder of the fundamentals for disciplinary matters or termination of employment: 

  • Investigate properly and fairly.
  • Maintain objectivity. 
  • Act within authority.
  • Foster a workplace culture that is safe and healthy for all.

Keeping these things in mind, we hope that our clients enjoy a happy and prosperous 2016!  

The Year that Was: Lessons from 2015 Part 1

Jill McMahon - Monday, January 18, 2016
Lessons to be learned from 2015

It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.   

In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.   

In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.   

When is employee conduct considered to be 'at work'?

One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.    

In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.   

In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.   

Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.   

These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:   

  • 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.  
  • Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident. 
  • Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.    
Developments in workplace bullying

For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.   

In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.  

The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.   

Employers must:   

  • Take seriously any complaints concerning the conduct. 
  • Take immediate action to stop the conduct. 
  • Have proper policies and procedures and educate all staff about appropriate conduct. 

What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases. 

Gifts and Benefits - Can they Land you in Hot Water?

- Monday, January 11, 2016
Gifts and Benefits: Could They Land You in Hot Water?

Everyone loves perks – they are quite often what makes a job just that bit more enjoyable. The benefits of on-the-job perks were clear in the film The Devil Wears Prada for example, in which the heroine sought a makeover at her fashion magazine employer as a last-ditch effort to save her job. She went from a bespectacled, frizzy-haired, lumpy jumper-wearing assistant, to a sleek perfectly coiffed professional with an enviable designer wardrobe. 
Unfortunately, this scenario is not the norm, and some perks can actually land employees, and sometimes their employers, in hot water.
Why is it an issue?
There’s a big difference between a perk that is provided by an employer and a gift or benefit that is given by an external party. Gifts and benefits can take almost any form, including: 
  • Cash or shares. 
  • Items promoting an organisation (for example, t-shirts with a logo). 
  • Air tickets, accommodation and car hire. 
  • Wine and meals. 
  • Theatre and sports tickets. 
  • Discounted commercial items.     
The risk of an employee accepting gifts and benefits is that the employee is not necessarily acting in the best interests of the employer or client; they are acting in their own interests. This is a particular issue in the area of procurement.
Gifts and benefits in the public sector
Sometimes in the public sector, gifts and benefits can be construed as undermining public confidence. The Australian Public Service Commission (APSC), in its Gifts and Benefits Policy, gives the example of a tender process that is supposed to be open and transparent. If the decision-maker has received a gift from the tender-winning organisation, there may be a perception that the decision was influenced. 

It is about actual or perceived conflict of interest. At worst, a gift or benefit could be perceived as a bribe that exposes both the recipient and the donor to bribery allegations. There is a maximum penalty of 10 years’ imprisonment for accepting a bribe. 
In the public service, all valuable gifts and benefits must be disclosed to the Gifts and Benefits Register, although “valuable” is not defined by the policy. The APSC recommends that all gift or benefits are disclosed, regardless of their value.
Gifts and benefits in the private sector
Gifts and benefits in the private sector are not usually governed by the same strict rules. 

While gifts of wine or flowers may be considered inconsequential, employers should be more concerned if the employee is treated to an all-expenses paid weekend away by an external party, season theatre tickets or some other gift or benefit of substantial value. 

While wining and dining are part of the norm for many private organisations, employers should carefully consider developing a policy dealing with gifts and benefits, in particular: 
  • Reminding employees of their fundamental obligations to act in the employer’s best interests. 
  • What is acceptable interaction with external parties. 
  • What gifts and benefits should be disclosed (for example, valuable gifts or regular lunches hosted by the external party). 
  • How gifts and benefits should be disclosed. 
  • Appropriate measures in place to prevent procurement fraud. 
  • Consequences for inappropriately accepting gifts and benefits, for example disciplinary measures and termination of employment. 
If, when or how to accept gifts and benefits can be a difficult issue for organisations and employees. Everyone benefits from clear expectations and guidelines, and so a properly drafted policy is essential.  

Blurred Lines

- Monday, December 21, 2015
Blurred Lines in Teacher-Student Relationship?

A recent decision of the Victorian Supreme Court in the case of a Melbourne teacher who was sacked for having a relationship with a student after she left school raises some serious questions about child protection, and shows how discrimination laws worked against a school that was acting to enforce child protection principles.  
A case in point

In the case of Pearson v Martin, Mr Martin was a teacher at Padua College in Rosebud and Ms Anderson was a student there. The pair had known each other since 2007, when Ms Anderson was in year 7. For the last two years of her schooling, Ms Anderson attended the school’s other campus at Mornington. 

Although she didn’t see Mr Martin at school, in 2012, she joined the same gym that he attended and the pair eventually ended up training together and exchanging text messages. 

In October 2012, concerns were raised about the pair’s friendship. Although Mr Martin denied that the relationship was intimate, the principal directed him to stop meeting with Ms Anderson, communicating with her and training with her. 

But on December 27 2012, soon after Ms Anderson had finished school, the pair commenced a sexual relationship and subsequently moved in together.   

Ms Anderson’s parents told the principal that they believed Mr Martin had groomed their daughter for a sexual relationship in the course of her schooling. He was suspended and an independent investigation was launched.   

The investigation found that grooming had occurred, and Mr Martin was suspended and then later terminated from his employment.  

Was the termination for discriminatory reasons?

Mr Martin applied to VCAT for a review of the decision, alleging discrimination. As his sexual relationship with Ms Anderson had commenced after she had finished her schooling, it was lawful. Discrimination based on lawful sexual activity is prohibited by the relevant legislation. 

The school maintained its concern that grooming had occurred while Ms Anderson was still at school, but VCAT found that the sexual relationship was the primary consideration in making the decision to terminate Martin’s employment. Accordingly, Martin had been discriminated against.

Supreme Court appeal

The school appealed the VCAT decision, saying that the sexual conduct was relevant in working out whether grooming had occurred: 

[Martin] had taken advantage of his position as a teacher and authority figure to establish a special relationship with [Anderson] which had ultimately prepared her for a sexual relationship with him.   

The court found that the sexual activity was part of the chain of reasoning applied by the school and upheld the VCAT finding. Martin was awarded a total of $90,000.  

Implications for employers

In some ways, this decision is difficult to fathom. Child protection mechanisms are built into all manner of laws and it is rightfully an issue that is of great concern, especially with the Child Abuse Royal Commission in full swing.   

And yet in this decision the sexual activity was considered almost in a vacuum, separate from the conduct that led to it, and then a simple test was applied in a fairly black and white manner to determine that the teacher had been discriminated against.   

In considering the positions of other states, this case highlights imbalances that are of striking concern.   

The (Victorian) school acted in a manner that many would consider reasonable, yet it was not supported by VCAT or the court and it was even required to compensate the teacher.   

By contrast, in NSW, the child protection provisions in the Ombudsman Act are some of the most rigorous in the country, especially when it comes to teacher registration.   

In the recent case of BQY, a student teacher was refused registration because a former student, then aged 18, had kissed her some time after her placement at his school was finished. She applied for a review of the decision and it was overturned, but the very fact that registration was refused shows how protective the NSW system can be.   

These are issues that will no doubt be raised in the Royal Commission over coming months and when its report is released, we anticipate recommendations from the commission about establishing uniform child protection mechanisms throughout Australia. And then we may be spared from further decisions that are out of step with public expectations.