How to Implement and Promote Workplace Policies

Vince Scopelliti - Wednesday, April 04, 2018

A suite of robust policies and procedures is an essential element of good governance in any organisation. Often employers discover that their policies and procedures are inadequate, only once their actions are reviewed by a tribunal or court. 

Adequate workplace policies are key mechanisms for outlining exactly what the standards of conduct are in your organisation. Workplace policies should clearly and succinctly explain the topic covered and provide the procedures that need to be followed in a given area. 

Let's take a look at the features of a well-written policy, plus the best ways to implement, promote and review these important business documents.

the benefit of a well-written policy

The benefits of a well-written policy cannot be overstated. Sometimes policies are mistakenly seen as 'stating the obvious' in the workplace. Yet, without workplace policies that set out clear requirements and processes, confusion and mismanagement can spread across the organisation. 

A good place to start when developing a policy or procedure is to seek the ideas and input from the key people involved. This can improve staff commitment to the policy if they observe in the final document that their voice has been heard. 

In terms of style, a well-written policy must demonstrate clarity and specificity. While it is in order to outline at the beginning of a policy where it 'fits' into organisational objectives, generalisations should be avoided. 

For example, rather than requesting that 'staff should make sure that they respect client privacy when it comes to using files', a well written policy is likely to include specific directives such as 'Hardcopy client files must be stored in the section F compactus within 30 minutes of use'.

developing policies to suit your workplace

There is an art to developing and introducing workplace policies that will be read, understood, accepted and actually used. 

Firstly, all stakeholders in the organisation - staff, suppliers, clients, contractors - need to see that management is fully in support of the policy's content. Policies without perceived support and commitment from management are unlikely to gain traction with staff. 

Similarly, policy developers must consult effectively with staff about the proposed policies and welcome their comments; after all, they are the ones likely to be dealing with the contents on a day-to-day basis. 

A well-written workplace policy needs to clearly define key terms within the policy. New employees will need to familiarise themselves with expectations of their role and responsibilities as quickly as possible, without the confusing jargon. Defining 'the obvious' terms can save frustration and costs down the track. 

introducing policies and procedures

Once the scope and substance are ascertained, the policy must be documented and distributed effectively. 

Make sure that the initial publicity effort is multi-media and ensure that during induction of new employees, in team meetings, on the intranet, at training, in the staff bulletin and on the kitchen cork board (plus anywhere else that works), you give clear information about the policy and where to find it. 

Following up on your publicity about the policy and refresher training is essential and should be carried out regularly across the organisation.

Evaluation and review

No matter how well written, a good policy or procedure will still need to be evaluated and reviewed. 

A logical starting point can be to check effectiveness against key objectives. For example, injury rates or client complaint numbers might be used to gauge the success or otherwise of a particular policy. 

Another good source of information to help you assess the policy will be the people actually impacted by its wording. 

Policy developers need to be truly open to ideas when it comes to reviewing existing policies. Good governance and strong organisational achievement will often depend upon robust, realistic and clearly-worded policy documents. 

WISE Workplace can review your current policies, advise you on their appropriateness and update your suite of policies and procedures. Contact us today!

A Modern Problem: The Face of Workplace Bullying in 2017

Vince Scopelliti - Wednesday, December 20, 2017

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

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

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

the nutS and bolts of it

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

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

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

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

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

what is the extent of workplace bullying

Workplace bullying is prevalent in Australia. 

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

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

the need for an anti-bullying culture

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

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

WHen employers are accused of bullying 

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

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

how did the fair work COMMISSION view bullying in 2017

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

Case Study 1: The email is mightier than the sword

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

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

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

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

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

Case Study 2: Lawful adversaries - bullying in law school

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

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

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

Case Study 3: A failure to properly investigate

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

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

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

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

Case Study 4: Getting it both right and wrong

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

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

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

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

Case Study 5: Lessons in discourse

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

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

The take home message

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

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

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

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

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

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

Is Your Complaints Procedure Effective?

Vince Scopelliti - Wednesday, July 05, 2017

Risk management is an important aspect of running a successful business: Whether this takes the form of ensuring compliance with corporate governance programs, reducing instances of workplace fraud or financial misconduct, or eliminating bullying or other forms of harassment. 

Having a strong and coherent whistleblower program in place can help protect your organisation's interests in all of these situations. 

An ineffective complaints system could in fact be preventing your employees from raising any complaints. 

So what are the hallmarks of an effective whistleblower program?

Provide confidentiality and support

An effective complaints system should enable your business to identify hotspots, respond to critical incidents and communicate confidentially with reporters. It should also provide employees with a safe and secure environment to report misconduct, enable insightful management and the ability to bring about real cultural change, and reduce corporate risk. 

Perhaps the most crucial component of a successful complaints system is that complainants are guaranteed confidentiality and employer support throughout the whole process. This is particularly important as those who are considering blowing the whistle on co-workers or supervisors may be concerned about reprisals or the potential impact on their employment. 

This is especially likely to be the case in circumstances where the reported conduct involves sexual harassment, workplace bullying or criminal behaviour, such as fraud or theft. Employees considering making a complaint should be offered the opportunity to make anonymous complaints to reduce the fear of retaliation. 

The following statistic are particularly insightful: 

  • A third  of all reports made through whistleblower programs relate to bullying and harassment
  • 67% of people experiencing bullying or harassment do not report it
  • 42% do not report it for fear of negative consequences
  • 49% of misconduct is reported by employees. 

ESTABLISH CLEAR PROCEDURES AND GUIDELINES

It is crucial that reporting systems in your workplace are clearly identified and communicated to all staff. This includes making it clear to all employees how a complaint should be made (including an anonymous complaint), to whom, and what the follow-up process will be once a complaint has been lodged. 

This information should be readily available and easily accessible. 

DON'T MAKE EMPTY PROMISES

Once a whistleblower program is in place in your business, it is important for those utilising the service to feel that their complaints are being taken seriously and will be dealt with and responded to in an appropriate fashion.  

Privacy concerns and operational strategies may mean that complainants are not privy to all aspects of any ultimate disciplinary or punitive processes imposed on those against whom complaints are sustained. It is nonetheless important to confirm with the complainant that it has been duly and independently investigated, and that it has been resolved to the business' satisfaction.

CRACK DOWN ON REPRISALS

It is equally important for your organisation to have a strong and transparent policy to deal with reprisals or victimisation of whistleblowers. In some circumstances, even if confidentially is offered, only a little bit of logic may be required to deduce who made a complaint against another staff member. This maybe particularly relevant if your business is small or if the circumstances surrounding an allegation involve only a few people with detailed knowledge of the facts. 

If anyone involved seeks to retaliate either physically, verbally or by affecting the whistleblower's employment, it is crucial for your organisation to demonstrate a swift and clear zero-tolerance response.  

IMPLEMENTING A PROGRAM CAN BE CHALLENGING

Ensuring easy communication and the ability for staff to raise complaints where necessary, benefits all employees by improving an organisation's ability to deal with risks and increasing employee satisfaction. 

However, implementing an effective whistleblower program can be difficult, particularly in a smaller business with limited resources. It can also be a complicated task to provide a program that responds quickly and is impartial. 

At WISE Workplace, we offer an independent whistleblower hotline program that is ready to take complaints 24/7, provide assessments on the urgency of complaints, and offer expert advice on the dealing with complaints. Contact us to find out more.   

Drinking on the Job: Expensive Lessons for Employers

Harriet Witchell - Tuesday, January 06, 2015
bullying
Drinking on the Job: Expensive Lessons for Employers

History shows that a group of co-workers letting their hair down at an office function can sometimes lead to regrettable outcomes. Yet it doesn’t necessarily follow that a worker’s dubious behaviour will amount to serious or gross misconduct. A recent case in the NSW District Court highlights how an employer’s overall attitude towards staff conduct and misconduct will have an impact upon how particular employee behaviours should be perceived – something to keep in mind if employers are currently dealing with the aftermath of the annual work Christmas party. 

 At work ‘the morning after’ 

In the case of Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) 2013/148638 (8 December 2014), a state manager for Willis was summarily dismissed for what was described as gross misconduct. During a conference, the manager arrived at a morning session still intoxicated from the previous night’s drinking. The drinking had occurred at a work-related function. His behaviour in the morning included speaking loudly, laughing, throwing a lolly, smelling of alcohol, and at one point making animal noises. For the rest of the session, the manager worked quietly on his device at the back of the conference room. The employer terminated the man’s employment on the basis that his behaviour and intoxicated state that day amounted to gross misconduct. 

The employer’s attitude to staff and alcohol 

Judge Philip Taylor assessed a number of factors within both the manager’s behaviour and Willis Australia’s policies around staff drinking and general conduct. His Honour noted that Willis had a quite permissive attitude towards work-related alcohol consumption. Evidence of this included the provision of open bars at work events and a ‘follow the client’ approach to customer relations. In the latter case, this would include matching the alcohol consumption of a client. Taken as a whole, the employer’s attitude towards such behaviour was quite encouraging. 

Decision to terminate

While the conference was not a client-based event, Judge Taylor noted that the overall encouragement given to staff around socialising and alcohol should be considered. His Honour did concede that the employer had been able to establish misconduct on the state manager’s part – but not serious or gross misconduct sufficient to warrant the summary termination of the manager’s employment. Damages close to $300,000 were awarded to the worker as a result of the employer’s decision to terminate.     

Eye of the beholder?
For employers, the findings of Judge Taylor in the Willis case provide a ‘sobering’ reminder of how the courts can see things quite differently to employers around the issue of serious misconduct. On the surface, a state manager arriving at a conference session noticeably drunk might appear to be a classic case of gross misconduct. Yet the culture and attitudes of the employer around alcohol can have a palpable effect on how the courts might view any disciplinary measures taken against staff. 

Clear contracts and policies 

This is particularly so where employment contracts and internal policies do not adequately specify the meaning of ‘serious misconduct’ in the workplace. In such circumstances, the informal actions and permissions given by an employer to staff members around behaviour will be closely examined by the courts. In the case of Willis, the employer’s generally lax attitude towards alcohol consumption, combined with the manager’s quite mild misbehaviour the next morning, were such that the termination was not appropriate. To establish gross misconduct, aggravating factors such as violence, offensive language, or other extreme behaviour would be necessary. 

Expensive lessons 

If an employer considers terminating an employment contract on the basis of behaviour at or around a work-related function, Willis highlights the need to avoid hasty decisions. This is because if it is found that an employer’s attitude to work-related ‘partying’ is quite lax, then establishing serious misconduct for any alcohol-fuelled behaviour might be difficult. Clear contract definitions and policies around misconduct can help to reduce the kinds of expensive lessons that were seen to arise in Willis.

Is an Employee Obliged to Divulge Facts About Their Partner?

Harriet Witchell - Tuesday, October 07, 2014
Divulging information
is an employee obliged to divulge facts about their partner?

In a recent matter before the Fair Work Commission – Lakatos v Termicide Pest Control Pty Ltd – the short answer to the above proposition was ‘yes’. The employee, Ms Lakatos, refused at first instance to answer questions posed by her employer regarding her fiancé’s new employment. Her fiancé, Mr McKay, had in fact previously worked for Termicide. And as the owner of Termicide correctly suspected, Mr McKay was now working for a competitor in the pest control industry. Of particular concern to the employer was the possibility of threats to his business posed by Mr McKay’s position, including his access to confidential information. Eventually, Ms Lakatos provided the information about her fiancé’s new workplace, but was nevertheless dismissed. The Commission found that the employer possessed a valid reason for the dismissal. 

Keeping quiet

Senior Deputy President Richards’ finding that Ms Lakatos was obliged to provide an explanation about her partner’s activities certainly raises some interesting points. What exactly are employees obliged to divulge about their partners? How far does fidelity to the employer reach? Until very recently in Australia, courts have recognised what is known as ‘spousal privilege’ in criminal matters – that is, a spouse cannot be called upon to give evidence against their partner. In the 2011 Stoddart case, however, the High Court greatly diminished this privilege – leaving jurisdictions rather uneven in their application of the principle. Even putting the criminal law viewpoint to one side, the idea of being compelled to provide private information about a spouse or partner to a third party certainly causes general discomfort. And being confronted with such questions by an employer would no doubt be rather unsettling for the worker involved. How and when it is appropriate to expect an employee to respond to a request for such information is certainly no ‘one-size-fits-all’ scenario. 

Answering and cooperating
Information began to surface about Mr McKay’s new place of employment, after which Ms Lakatos was asked direct questions by her employer about her partner’s activities. She refused to respond at first – and was later dismissed for failing to comply with a reasonable request. In his reasoning, Commissioner Richards noted that the circumstances were such that the employer was within his rights to request the information, as it concerned possible significant threats to the business. It was in fact a part of Ms Lakatos’ role to identify such commercial threats, and her refusal to provide relevant information in this regard was deemed unacceptable. As the Applicant, Ms Lakatos was seeking a finding by the Commission that her dismissal from Termicide was ‘harsh, unjust or unreasonable’ in accordance with s394 of the Fair Work Act 2009. She was unsuccessful. In rejecting the Application, Commissioner Richards stated that the employee’s actions in withholding crucial information about her fiancé and his employment with a competitor were unreasonable: “…she refused to provide her employer with any answer to those inquiries, or to cooperate with him at the most elemental level…this was a damaging position for the Applicant to have adopted. Following the Applicant’s refusal to cooperate, [the employer] thereafter lost confidence in the Applicant as an employee who would serve him with all due fidelity.” [63-64 in part]
Questions, questions…
An employer cannot reasonably expect an answer to any and every question that might be put to an employee. There are personal and private issues in any person’s life that do and should remain outside the scope of an employer’s ‘business’. Walking the line between appropriate questioning relevant to the business and an inappropriate inquisition can be a delicate exercise. While finding in favour of Termicide, it is worth noting that Commissioner Richards did opine that: “…there were elements of harshness to the manner of the Applicant’s dismissal.” [80] The particular circumstances in this case – including a discernible urgency regarding potential commercial damage by the Applicant and her fiancé – made the position of the employer more palatable to the Commission.

It certainly appears that information regarding a spouse or partner cannot reasonably be withheld by an employee where legitimate business concerns are involved. This is an evolving area of the law. As in most workplace issues, careful consideration and planning will go a long way to ensuring that the correct approach is taken in similar circumstances.

Public sector wages changes a recipe for unrest

Harriet Stacey - Tuesday, June 21, 2011
Recent changes to NSW public sector wages will lead to greater employee unrest and dissatisfaction.

The contentious changes, passed recently by both Houses of Parliament, sparked an angry protest by nearly 12,000 workers in Sydney’s Macquarie Street, earlier this week.

Unfortunately this protest is just the tip of the iceberg.

The Government should brace for more fallout from disgruntled public servants.

In my experience, such sweeping changes lead to increased complaints from staff, higher levels of sick leave, absenteeism and misconduct.

Under the new legislation the NSW Government will have the power to stipulate wages and conditions for public servants.

In effect, the legislation puts a 2.5 per cent annual cap on wages increases, unless productivity savings are delivered. It also requires the Industrial Relations Commission (IRC) to consent to its policy.

The NSW Opposition, Greens and unions have waged an angry campaign against the reforms, which they say will give the government unprecedented power.

But Premier Barry O'Farrell maintains the changes will not lead to any cuts in public sector wages and conditions.

Opposition Leader John Robertson says the changes will send the workplace rights of public servants "back to the dark ages".

Whichever way you look at it, significant changes to employee rights fundamentally change the way employees feel about their employers.

Government employees in particular, many of whom work in the health and care sectors, traditionally have high levels of engagement with their employers and those receiving their services.

Undermining this relationship will damage the commitment felt by staff, reduce motivation to comply with policy and compound work-related stress already present in the overloaded services.

Whilst most people will continue to comply with departmental policies, increased disengagement will have an effect on a minority and reduce their incentive to act in the best interest of the public. The policy is going to increase the incidents of corrupt conduct, misconduct and complaints.

Sadly, no one normally carries a budget for complaints management subsumed as part of a general HR budget. These issues will take up more of the pie and leave less money for “positive” staff improvements by HR departments.

The action is also likely to give rise to an increasing level of resignations in already understaffed areas such as hospitals, family services, disability services and aged care.

There is no doubt workers are very upset about the way these laws have been imposed.

The fallout that follows will be just as upsetting for Government and public sector management.

* Harriet Stacey, is the co-founder and principal of Wise Workplace Investigations.  Harriet specialises in corporate investigations and disciplinary processes. She has been involved in more than 150 investigations since the company’s inception – predominantly in the NSW public sector.