Considering Suspending an Employee? What Should You Know

Vince Scopelliti - Wednesday, September 06, 2017

When faced with an allegation of serious misconduct made against a worker, an organisation may seek to suspend the respondent. 

But in what situations is it appropriate to take this kind of action?

tHE LEGALITY OF SUSPENSION 

When taking the significant step of temporarily suspending an employee, an organisation must be able to demonstrate an objectively good reason for doing so. 

Once preliminary enquiries have indicated that there is prima facie evidence to support an allegation of serious misconduct, a risk assessment needs to be carried out, to determine what the risks are associated with suspending or not suspending the respondent. 

The risk assessment should include: 

  • Risks to the complainant and other workers should the respondent remain in the workplace and the potential psychological impact this may have, especially in cases of sexual harassment
  • Risks of the respondent interfering with witnesses or tampering with evidence
  • Potential impact of suspending or not suspending the respondent on the morale of the workforce and the reputation of the organisation
  • Potential impact of suspension on the respondent
  • Whether the suspension or non-suspension is in accordance with the relevant disciplinary policy. 

Generally, it is appropriate to suspend a worker if an investigation into their serious misconduct is being carried out, and their continued presence in the workplace may jeopardise the process. This could include concerns about the misconduct continuing undue influence on or harassment of witnesses, or safety and security issues.

It is important to bear in mind the distinction between 'standing down' and 'suspending' an employee.

In a 'stand down' situation, the employee has not necessarily done anything wrong but the employer cannot usefully employ them for reasons that are outside the employer's control - for example, a fruit picker who cannot continue working during a significant weather event. In those situations, the employee is not paid during the stand down period. 

However, during a suspension period, the employee remains entitled to all rights of their employment contract, except the right to attend work to undertake work duties. 

An alternative to suspension could include redeploying the employee into another area, if the conduct is not of the most serious kind and or if the employer has an alternative site or role available. 

Circumstances leading to suspension 

Suspension should only be utilised in the most serious situations, where the only appropriate next step would likely be termination of employment. 

As such, appropriate circumstances leading to a suspension of an employee generally include accusations of serious misconduct such as defined in Regulation 1.07(2) of the Fair Work Regulations 2009 (Cth)

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
  • Conduct that causes serious and imminent risk to the health or safety of a person; or
  • Conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer's business;
  • The employee, in the course of the employee's employment, engaging in:
            • theft;
            • fraud; or
            • assault;
  •  The employee being intoxicated at work; and
  • The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. 

Generally, it is appropriate for an employee to be suspended at the beginning of a workplace investigation, although the employee can be suspended during the course of the investigation if it becomes apparent that their presence is or could be interfering with the investigation.

Appropriate conduct by an employer during a suspension

During a period of suspension, an employee is generally asked to keep away from the workplace, colleagues and clients of the business. If they are on full pay then they are generally not entitled to conduct any outside of work employment without the employers consent. 

Although a suspension may be the precursor of a final dismissal once the investigation has been finalised, employees who have been suspended remain entitled to a number of rights, including:

  • Full pay during the period of the suspension
  • Regular review of the suspension period
  • An endeavour to keep the suspension as short as possible
  • A clear explanation of the reasons for the suspension and the anticipated length of the suspension
  • An explanation of the employer's expectations of the employee during the suspension period, such as requiring the employee to be available by telephone during normal business hours. 
  • An assigned contact within the human resources or management team with whom the suspended employee can liaise. 

Avoiding further legal issues

Suspending an employee from the workplace is a serious intrusion on their employment and personal rights. It is essential that employers ensure that all criteria of appropriate conduct are met, in order to avoid a situation where it may be argued that the suspension amounted to a constructive dismissal. Ensuring procedural fairness, transparency and clarity in the process will assist with this objective. 

If you require assistance with a workplace investigation where an employee has been suspended, contact us. We provide full independent and transparent investigation services, or supported investigations where we offer advice and guidance as you compete the process.

The Risk of Ignoring Reports of Sexual Abuse

- Wednesday, May 31, 2017

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

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

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

Courage TO TELL 

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

SILENT DAMAGE

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

LISTEN OUT

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

LINGERING PAIN

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

WORDS ARE ENOUGH 

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

ACT EARLY 

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

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

Child Sexual Exploitation & Trafficking Conference Insights

- Wednesday, May 10, 2017

A wrap-up of the Children, Justice and Communication Conference at Portsmouth University, May 2017.  Last week, I had the privilege of attending the Children, Justice and Communication Conference at Portsmouth in the UK.  The conference is hosted by some of the world’s leading academics and practitioners working in the areas of child sexual exploitation, trafficking, child abuse, incest and more.  

Opened by Professor Ray Bull, the conference featured the work of Professor Becky Milne, Dr Julie Cherryman, Dr Lucy Akehurst and Professor Penny Cooper to name but a few. 

The audience, mostly police officers from the UK, represent those forward-thinking agencies and officers who want to make a change for the good and tackle some of the most challenging crimes. The number of police officers with higher research degrees is particularly impressive, and is having a massive impact on the quality of policing not only in Britain, but around the world.

Tackling challenging issues across the globe

Some of the issues covered on the first day included the conundrum of obtaining evidence from teenagers who have been exploited and trafficked but consider their actions to be consensual and complicit in the activities. How do we empower these individuals to become witnesses rather than to take on the persona of victim? 


Dr Brian Chappel, a senior police intelligence expert, spoke of the use of juveniles as critical intelligence sources necessary to infiltrate youth gangs. Interestingly, his research showed that the 10 informants who participated in his study were themselves free from any police intervention up to a year later. 


Dr Shaleve-Greene addressed the issues for agencies in handling or identifying the 10,000 unaccompanied migrant minors that go missing across Europe every year. This was another statistic to get my head around – this number reflects only those we know about who are missing and vulnerable to traffickers and exploitation. There are also tremendous challenges to local safeguarding children boards, such as the one operating in Kent on the south coast of Britain. 


Dr Sue Gower spoke about the services and educational needs of their staff when they take on responsibility for the children from their own county, a similar number from neighbouring counties, and then double the number to account for the unaccompanied immigrant minors arriving from Europe. 

How intermediaries are working successfully overseas

Professor Penny Cooper hosted a panel of experts who presented on a range of issues connected to the use of intermediaries who support and assist children and vulnerable adults to communicate with police, and courts. 


The NSW Department of Justice is currently trialling the use of intermediaries, so it was great to hear the many ingenious and fantastic ways these experts have of working with children to help them communicate. Convictions have been secured with the use of evidence from children as young as three-years-old. These presentations also addressed the increasingly common needs of children with autism spectrum disorder. 


As practitioners, it’s so important to stick our heads above the partition wall and have a look at the fantastic work going on around the world. 


WISE Workplace offers consulting and investigation services to assist and support workplaces in conducting fair and efficient investigations and developing comprehensive complaints processes.

Contact one of our offices to talk to an advisor about a free consultation.

The Key Warning Signs of Grooming and Sexual Manipulation

- Wednesday, March 22, 2017

warning signs of grooming

As the Royal Commission into Institutional Responses to Child Sexual Abuse has painfully revealed, our most trusted institutions have at times mishandled some of the worst cases of child abuse imaginable.

It is becoming clear to us as a nation that the trust given by children and other vulnerable people to individuals in positions of power is boundless. And it is this trust that can become hijacked via the insidious tactics of grooming and sexual manipulation.

Standing outside of the abhorrent situation, we might ask – how on earth could this happen? Wouldn’t a sexual predator be immediately visible to an employer in a child-focused setting? However, grooming and sexual manipulation work in such a subtle way that even other adults close to the situation can be lulled into a false sense of security.

The new NSW legislation on Reportable Conduct has commendably included grooming as a distinct behaviour that must be reported in child care contexts. It is therefore essential that all child-related employers become aware of the warning signs of child grooming and sexual manipulation in the workplace.

Warning Sign 1: The special relationship

Grooming behaviour can manifest as the slow development of a special relationship between a worker and a particular child or children in care. This might involve the giving of privileges, compliments or treats that might be held back from other children. The child can develop a strong sense of trust and even enjoyment from this relationship, particularly if fun and friendship appear to be the key drivers. Such children might previously have been at the less-confident or lonely end of development, with the perpetrator appearing to have commendably ‘drawn out’ the child.

Warning Sign 2: Returning favours

Once a seemingly trust-based relationship is in place, the perpetrator of child abuse will often connect their special gifts and words with requests for touching and/or emotional favours from the child in return. At first this might not seem like an unpleasant or abusive situation in the mind of an innocent child – after all, they have identified this adult as a friend to be trusted. Observers might in fact see a child drawn to a particular carer quite intensely. It can be heartbreaking to think that this could be the middle stages of a targeted grooming strategy.

Warning Sign 3: The conflicted or ‘acting out’ child

When behaviours gradually move into sexual talk, touching or more overt acts, the perpetrator of child abuse can take a more sexually manipulative stance against the child. The child might resist the abuser, but can be manipulated into continuance of the inappropriate relationship through emotional blackmail. One of the earlier favours granted to the child such as gifts, treats or special games might be threatened or recalled. The child can then become anxious and in some cases will actively seek to appease the sexual abuser. Observers of the situation might see contradictory signs between the once-friendly employee and child. Behaviourally, the child could lash out at others or experience a regression in development.

Make knowledge your strength

Thankfully there is now so much research occurring around grooming behaviours and sexual manipulation in care settings. Further, Australian legislatures are slowly but determinedly developing laws to protect children and to enable the effective reporting of inappropriate conduct in the workplace.

Child sexual abuse tends to arise not from some caricature of an evil villain but in fact via a subtle conflation of grooming, manipulation, child vulnerability and institutional ‘blind spots’. Codes of conduct and training on professional boundaries are just some of the methods that can assist employers in combating the scourge of child sexual abuse by carers.

We actively investigate and advise upon issues within child-focused workplaces. In addition, we have handled grooming complaints between remote student teacher networks, top sporting organisers and athletes, elderly residents in a mixed care facility, bus drivers and passengers, disabled individuals and in-home carers. Every case requires skill, sensitivity and an unbiased examination of the evidence.

Join us in our enduring quest to make workplaces safe for all concerned - not just owners and workers, but for those precious Australian children who inherently trust the adults around them. We are proud to be presenting purpose-built training on Abuse in Care in coming months. Give us a call for further details.

Does the NDIS Complaints System Have Enough Reach?

- Wednesday, March 08, 2017


For those vulnerable people across Australia living with disability, the introduction of the National Disability Insurance Scheme (NDIS) has been heralded as a much-needed security net. And for those caring for disabled individuals, the NDIS provides a framework for sustainable care arrangements. 
 
In many ways, the introduction of the NDIS is the ultimate ‘good news’ story. Essential services and funds for disabled individuals can now be accessed. Particularly, the types of care that exhausted families have provided around the clock can now be augmented by paid carers under the scheme. 

Yet such a vast and complex scheme necessarily requires safeguards against unfortunate phenomena that can arise in care environments, such as child abuse, elder abuse or other forms of abuse by carers. 

A responsive and effective complaints system is an essential adjunct to the NDIS, which will eventually sustain some 460,000 disabled Australians under the age of 65. As at February, 61,000 Australians have been brought into the scheme.

How the NDIS complaints system operates

The NDIS complaints system is intended to help participants in the scheme provide feedback, or make complaints about their own experiences or the system in general.   

There is some concern, however, that the complaints system is a somewhat toothless watchdog. Individuals suffering with a disability can lodge a formal complaint about a care provider, for example, but the care provider can at most be removed from the list of scheme-approved providers. There is no mechanism under the system for more significant sanctions.    

This may be appropriate in circumstances where the care provider has simply provided poor treatment or has an unpleasant manner or clash of personalities with the recipient of care, but falls far short of the mark in circumstances where, for example, there is abuse or unexplained injury.  

On such occasions, the scheme participant may have to look to other procedures to try and address any serious grievances.

What other mechanisms for complaint are available?

In NSW, if a person living with a disability in a residential facility suffers a reportable incident at the hands of a care service provider, that incident must be investigated and reported to the appropriate Ombudsman, in accordance with the Ombudsman Act 1974.

A reportable incident includes the commission of sexual offences or misconduct (including those committed in the presence of the person suffering the disability), assault, fraud or financial abuse, and ill-treatment or neglect by a carer. Unexplained injuries also fall within the same category of reportable incidents.  

However, this only covers those clients who are living in residential care – and misses the many participants of the NDIS who rely only on in-home services.  Similarly, there is no legislation which provides any requirement for a ‘suitability to work with disability services’ check, unlike the child protection legislation now effective in NSW, the ACT and Victoria. 

Those utilising aged care services are able to rely on national reporting schemes, but regrettably even a carer who has been conclusively found to be abusive or otherwise guilty of misconduct is not restricted from being able to obtain employment with another care service provider in the future.
 

Effectiveness of the system still uncertain

Given the potential risks of abuse within the system of allocating a carer to a disabled Australian, it is essential that the NDIS is paired with an effective and efficient complaint and resolution scheme. 

Ultimately, the current NDIS complaint service has significant room for growth before it can be considered to be effectively safeguarding the rights of disabled Australians. True improvement will play out most importantly by imposing greater penalties and consequences on carers who are found to have transgressed against their clients in any serious fashion. 

As the NDIS matures as a scheme, it is to be hoped that many teething issues with the complaint management system will be ironed out naturally.  

However effective investigation of incidents relating to abuse as soon as they are reported or otherwise come to light will remain the most important safeguard of the rights of disabled Australians, along with general prevention of potential abuse or misconduct by carers through a strong governance and policy regime.   Contact us about our specialised Investigating Abuse in Care training courses.  

Abuse by Carers - Defining a Sad Reality

- Wednesday, March 01, 2017

It is quite clear that employers in aged, disability and other care environments do their best to keep staff and clients safe, yet one dark phenomenon that can raise its ugly head in care contexts is abuse by carers. For many complex reasons, vulnerable people such as the aged, children, and disability clients, can be abused by the very people who are entrusted with their wellbeing.

‘Abuse’ is a broad term that has developed multiple sub-definitions in recent decades. We have seen the basic idea of physical abuse making room for more complex forms such as emotional abuse, sexual abuse, financial abuse and disability abuse. As Australia has witnessed via the recent Royal Commission, child sexual abuse has a truly distressing history. 
When an allegation of abuse by a carer arises, investigating the abuse objectively becomes a number one priority. Reportable conduct legislation is now developing across all states and territories; it is essential to understand definitional issues as reportable incidents arise.

Physical acts and omissions

Assault is perhaps the most common of the physical offences experienced in care environments. Rough handling of a client or patient can occur in any number of scenarios such as moving, changing, bathing, providing medication/ injections and feeding. And omissions such as failing to provide food, warmth, medication or post-fall assistance can also amount to offences of neglect. We often see this neglect as a form of abuse of the disabled or elderly. Feeding and changing neglect can also occur as a form of child abuse in care environments. Establishing what is truly accidental versus what is indisputably abusive is a very difficult task indeed.

The question of intent is certainly difficult, and investigations of abuse must weigh the elements involved in defining reportable conduct. For example, what appears at first glance to be abuse might turn out to be an accident or one-off omission.

Sexual abuse and manipulation

It goes without saying that children are one of the most vulnerable subsets of society, particularly in care situations (whether due to disability or family circumstances). Children are also frequently the target of sexual abuse or its precursor, grooming.

In almost all occasions of longer-term sexual abuse, the perpetrator undertakes a grooming process, designed to obtain the trust of the intended victim.
These behaviours can include paying undue attention to one specific care client, engaging in keeping secrets, purchasing gifts or trying to establish independent communication channels.

Once the grooming has taken place, and the abuse has commenced, the child or adult care client may act out, which is demonstrated by either an overtly hostile relationship with the carer (such as avoiding them or engaging in public conflict with them) or an unnaturally close relationship, which may be based on an attempt by the client to appease or satisfy the abuser.
 
The above red flags, identified by the Royal Commission into Institutional Responses to Child Sexual Abuse, must be understood by workplace investigators in order to ensure that the most vulnerable potential victims are best protected.

Non-physical abuse by carers

Due to changing values in both public and private settings, the term ‘abuse’ now has a wider and more complex scope. Psychological, financial, and emotional abuse at the hands of carers is now a real hazard across multiple industrial contexts.

Some paid and unpaid carers of the aged, older children and the disabled have been known to trick, steal and/or cajole financial benefit from their charges. This can of course provoke angry and emotional responses from all parties involved, not least of which can be outrage from loved ones. One difficulty that investigators face is gathering material from a shaken and, in some cases, infirm victim. It is essential that specialist investigative expertise be employed in such cases.

High evidentiary standards

In the criminal realm, the evidentiary standard is quite high in cases of alleged criminal assault and/ or neglect by carers. Up-to-date legal advice on these and related issues is essential if a reportable incident is suspected.

For many employers who are made aware of alleged abuse by a carer, it can be hard not to react swiftly against this individual. However, all parties are entitled to be heard in a fair and unbiased way.
For example, an unexplained injury might not signify abuse by a carer, but an undiagnosed medical condition.

The ‘culprit’ might be assumed to be a carer who sees the elderly, disabled or young client each and every day. Yet transitory people in carer environments such as cleaners, aides and kitchen staff must also be carefully vetted whenever allegations of abuse surface during a workplace investigation. Investigators must resist the temptation to draw inferences or assumptions throughout the investigation.

Understanding the way abusers work and the nature and pressures on carers are critical for investigators. Knowing how to define and classify behaviour is a crucial component of determinations over abuse allegations.
These details and advice on what evidence to collect, and how to evaluate evidence are all covered in our new Investigating Abuse in Care course. Positions are still available for courses in March and May 2017. Book now to secure a seat! 

Investigating Complaints of Abuse by Carers

- Wednesday, February 22, 2017



When vulnerable individuals in our society are subjected to abuse by their carers, our response as a community is understandably one of outrage. It seems beyond belief that this could happen.But the sad reality is that some individuals within aged care facilities, disability care contexts, at home or in childcare centres can face abuse from the very people with whom they should feel entirely safe.

It is clear to us that employers and individuals within the care and community space want to know the best ways to identify, prevent and deal swiftly with allegations of abuse by carers. Accordingly, we closely examine definitional issues, NDIS implications, criminal factors and‘red flag’ phenomena such as unexplained injuries in care contexts. The often sinister and exploitative manifestations of financial abuse will also be placed under the spotlight.

As an organisation, Wise Workplace is passionate at about deploying our investigative, training and advisory resources for the purpose of enhancing work and community places. In this and upcoming articles,we’ll examine some of the complex challenges faced by investigators when allegations of abuse by carers arise.

Defining abuse, common offences and likely culprits 

Physical abuse can certainly be one of the more visual and confronting forms of abuse by carers. However, other less-obvious forms of abuse can be just as damaging and terrifying for the client involved.

Psychological and emotional abuse by carers can include violent anger, emotional manipulation and control strategies. And when discussing financial abuse by carers, the murky waters of ‘gift versus theft’ can be extremely difficult to traverse. Sexual abuse and manipulation also casts a shadow over care environments and the carer/ client relationship. As we have seen with the Royal Commission into Institutional Responses to Child Sexual Abuse, Australian children have historically suffered terrible assaults at the hands of so-called carers.

In terms of the more common offences, these can include common physical assaults such as rough-handling or scalding, misuse of restricted practices, and excessive and humiliating discipline. Less visible yet still horrendous acts of omission can amount to criminal negligence by a carer, such as threatening or failing to provide fluids or food. Yet despite the subject matter, investigators must take care to remain objective and fair throughout the entire course of an abuse investigation. 

NDIS complaints system 

We certainly all hope that the National Disability Insurance Scheme (NDIS) will ease some of the financial suffering and lifestyle challenges for disabled individuals. The vision of the NDIS has always been strong and simple – to enable Australians with a disability to curate what we all aspire to: an ‘ordinary life’.

Complaints connected to the newly-fledged system were of course inevitable. The NDIS complaints system enables participants to voice concerns both with their individual situation andthe broader scheme. Yet how effectively the NDIS complaints scheme works for individual situations is still somewhat uncertain. Certainly, those with a disability can lodge an NDIS complaint about a provider of care, but the most that can currently happen is the removal of the provider from the scheme list. 

In NSW, reportable incidents affecting a person with a disability in a residential facility are required to be investigated and reported to the Ombudsman for oversight. The legislation does not cover in-home services and does not come with a national or even state-based ‘suitability to work with disability services’ checking system, like the sister child protection legislation now effective in NSW, the ACT and Victoria. 

There are national reporting schemes in place for aged care service providers, but these have limited scope and there’s no effective mechanism for preventing a carer found to have been abusive from finding further employment as a carer. 

Ultimately while the system is improving, protection will come from prevention through good governance and policy, and effective investigation of incidents when they come to light. 

Criminal conduct – likely conviction in children’s services, aged and disability sector 

Many relationships within the children’s services, aged care, and disability sectors can develop unique complexities that arise as a result of dealing with dependence.Stress and isolation are just two issues that can affect both people with this vulnerability, and their carers. Yet it hardly follows that criminal conduct on the part of a carer can be excused due to the stressful nature of the job. Assault, fraud and theft can and do arise.

Not only is abuse grossly under reported by vulnerable people due to the relative power imbalance of the carer/client relationship, fear of reprisal, not being believed and the very real possibility of the service being removed, but their reports are not treated as being equal to those of their non-dependent counterparts. 

Significant challenges are faced by the young, elderly and disabled when trying to communicate their story, and in being believed. 

When faced with a complaint from a client of abuse or abhorrent conduct by an employee or carer,employers are often forced to confront the unbelievable.The first reaction can be disbelief, and this is swiftly followed by the search for some rational acceptable explanation for the report, injury or loss. 

When matters are reported to the police, the justice system is constrained by the requirement of a high standard of proof and convincing verbal evidence to be provided to support the physical evidence, if there is any. 

While this approach can be very effective at conviction where serious criminal offences have left unquestionable physical evidence, the myriad offences where very little or no conclusive physical evidence is left leaves the criminal justice system rather lacking. 

For the safeguarding of the vulnerable and the safety of carers, a skilled independent investigation of complaints by the service provider is paramount.

Grooming and sexual manipulation: identifying the warning signs

Recognising the hallmarks of grooming can radically increase the opportunity for service providers to eliminate sexual and financial abuse in care situations.
 
The inclusion of grooming as a set of behaviours in the NSW Reportable Conduct legislation is no accident. 
Common behaviours of grooming include showing special attention to one client over others, buying gifts and establishing often secret private communication networks. Tapping into our most basic human need to be loved, adults and children alike are vulnerable to this tactic. 

The aim of the abuser is to establish a perception of a special relationship that facilitates the request of favours that would otherwise be denied. These favours may be sexual or financial. 

Clear policy guidelines, recurrent education of carers about professional boundaries and the important role of bystander observation are all critical in preventing grooming in care situations. Often only possible in high trust relationships, grooming and abuse can flourish when alternate support and social systems are degraded through loneliness or isolation. 

The investigation of breaches of professional boundaries or grooming behaviour requires an intimate knowledge of this behaviour and careful consideration of the communication systems in place. 

Investigating unexplained injury in care facilities 

It goes without saying that injuries occur in all workplaces, not just the community sector. Yet there are certain injuries that can arise in care environments that understandably cause warning bells to ring for employers and loved ones alike.

Bruising to the head and upper body can be a clear sign that all is not well. Unexpected bed sores, scalds or unusual abrasions can also indicate that the ‘care’ in care facility might need immediate attention. 

Yet like the collection of any evidence, workplace investigators must be extremely careful not to jump to conclusions when an unexplained injury arises.

If we see a vulnerable individual with an injury, it is essential that facts be collated with a clear head. With the right investigation tools,careful and informed analysis of expert medical and other objective evidence,valuable decisions can be made.

Financial abuse: what does it look like?

For both professional and volunteer carers, there is no doubt that the task of caring can be rather thankless. As a result, the temptation to use power inappropriately for financial gain can be all too real. Minors can also be taken advantage of financially.

Financial abuse of those in a care situation can take on a number of forms. A Power of Attorney might be deployed in a manner that sees unexplained money disappear from a patient’s bank account. Aged, disabled and/or child clients can also be cajoled or tricked into signing documents that place their finances in peril. Sometimes a carer will suggest they ‘look after’ the patient’s sizeable home and then send them to live in poverty. 

At a more basic level, we sometimes simply see valuables and cash removed from rooms, or heavy-handed tactics being used on pension day to allow ATM access.  Emotional weapons are often deployed.

Abuse by carers – a fair investigation is crucial

Whether you need to inquire about the investigation of suspected abuse by a carer, want training around the issue, or are seeking advice on your safeguarding processes, Wise Workplace can provide a suite of solutions designed for your situation. 

Abuse against vulnerable children, the elderly and/or people with a disability unfortunately persists across society. However,safeguarding and investigation of alleged abuse by carers is an area of strength for us – give us a call.

Secret Santa Shockers: How to Have a Work-Safe Kris Kringle

- Monday, December 07, 2015
Perils of the Office Secret Santa

Secret Santa, also known as Kris Kringle, is a gift-giving tradition celebrated by workplaces all over Australia. Although popular, it also has the potential to go wrong. Following on from our article on hosting incident-free work Christmas parties, we take a look at the potential risks of the office Secret Santa, and what preventative action organisations can take.
What is Secret Santa?
Secret Santa is started by putting staff members’ names into a hat. Each staff member must draw a colleague’s name and that is the person for whom they must buy a present. They must not tell anyone who they have drawn. 

While intended to be a good-natured way to spread some Christmas cheer, the problem is that jokes can often fall flat, and because the gifts are anonymous, the Secret Santa can be used to give a message to the recipient that the gift-giver would not ordinarily share face-to-face. 

 What is intended to be good-natured fun can easily lead to distress. There can also be legal consequences.
Secret Santa gone wrong
In 2012, public servant Ngoc Luan Ho Trieu, who worked as an economic modeller for the Commonwealth Government, was distressed by a Secret Santa gift. It was a plastic reindeer that produced chocolate droppings from its rear end. It was labelled “Luan’s Modelling Kit.” 

Mr Ngoc believed that the implication was that his work resembled animal poo. The identity of the gift-giver was never determined, and some weeks later he quit his job, unable to shake the feelings of distress. 

In response to the incident, the Australian Public Service (APS) issued a warning to staff in its November 2015 newsletter: 
“In keeping with the spirit of happiness and goodwill, APS employees are reminded to exercise care and good judgement as some elements of the APS Code of Conduct apply to activities ‘in connection with’ APS employment.” 

Employees were warned against engaging in pranks and were asked to be mindful that not all employees shared the same sense of humour.
The legal implications
The big question for organisations is how to manage Secret Santa. While the APS did the right thing in issuing the warning to employees, perhaps more should have been done. 

The Canberra Times also reported that after publishing Mr Ngoc’s story, it received many other reports of employees being left upset by Secret Santa gifts. 

There is great potential for legal implications to flow from a Secret Santa present. It may be seen as a form of bullying, for example the employee who was given a dog-chew toy. Employees may also feel discriminated against, for example the worker, being the only Asian in her section, who received a gift implying that her English was poor. 

Gifts that have sexual connotations may also be viewed as sexually harassing and other gifts may offend workplace health and safety laws.
How to manage Secret Santa
When it comes to Secret Santa, written reminders need to be given to all staff about appropriate conduct. For example, organisations should remind staff that: 

  • As Secret Santa is work-related, all work policies apply, including anti-bullying, discrimination and harassment, and discipline and termination of employment.
  • Their gifts must reflect the organisation’s requirement that all employees are treated in a respectful and courteous manner. 
  • Not everyone shares the same sense of humour so gifts should be carefully chosen.
  • Anyone who feels upset or distressed by a gift should inform management immediately so that the matter can be appropriately handled. 
A “master” sheet may also be useful, on which the name of the gift giver is recorded next to each recipient. This can be kept confidential unless a problem arises and needs to be sorted out.  Employees should be advised that a master sheet will be kept as it will help to regulate gift-giving behaviour. 

And finally, if your organisation has had problems with Secret Santa in the past, consider whether it is appropriate to run it again. Secret Santa is a nice idea but increasingly fraught with difficulties. Although workplace laws have not developed to specifically deal with the scheme, many other laws come into play which should be taken seriously by organisations.

Cut to the Quick

- Monday, September 21, 2015
Surgeons Under Fire in Wake of Report Findings

In April 2015, at the launch of her new book, senior surgeon Dr Gabrielle McMullin sent shockwaves through the medical community. She declared that junior female surgeons and surgical students would be better off acquiescing to requests for sexual favours by their senior male colleagues, as refusing requests or taking action against them would be sure to be the end of their surgical careers in Australia.

Although she was criticised for her view, her comments did make everyone sit up and listen. 

The story was reported in the media and the powers-that-be also took note. The Royal Australasian College of Surgeons (RACS) commissioned an Expert Advisory Group (EAG) to report on discrimination, bullying and harassment in the practice of surgery. The draft report has now been released. 

Draft report findings

The draft report, released earlier in September, confirms that discrimination, bullying and sexual harassment are “pervasive and serious problems in the practice of surgery” and the effects are “significant and damaging.” It also finds that many surgeons do not believe the problems exist. 

The report’s key findings are that: 

  • Almost half of Fellows, trainees and graduates have experienced discrimination, bullying or sexual harassment.
  • 54 per cent of trainees and 45 per cent of junior Fellows have experienced bullying. 
  • Bullying is the most frequently reported issue in hospitals, followed by discrimination, workplace harassment and sexual harassment.
  • The problems occur in all surgical areas.
  • Senior surgeons and surgical consultants are reported as the primary source of the problems.
  • The most common form of discrimination is cultural, followed by sexual discrimination. 
  • The gender inequality in surgery means that the behaviour of senior surgeons and consultants towards more junior females often goes unchecked. 

ABC News has documented the disturbing stories contained in the report, such as one female student who was expected to provide sexual favours in return for tutorship, and another respondent who said “I was subjected to belittling, intimidation and public humiliation.” One woman said that she was required to work 30-hour shifts into the final weeks of pregnancy, and another said “I was told I would only be considered for a job if I had my tubes tied.”

Why not complain?

Why not complain about the bad treatment? The report found that there were plenty of reasons for victims to keep quiet: 

  • Fear that complaining would be an act of “career suicide” – that future employment prospects would be damaged.
  • Lack of trust and confidence in the complaints handling process.
  • Surgeons lacked the people and teaching skills to provide adequate education.
  • Lack of transparency and independence across the board – for example, complaints handling, data management, feedback and assessment.
  • Bad behaviour being passed from teacher to student, abuse of power and bystander silence.
  • Conflicts of interest as senior surgeons protect their market share by victimising more junior staff.
  • Poor work practices including long hours, unpaid work and inattention to work-life balance.
The response to the draft reporT

In response to the draft report, the RACS issued a statement accepting its findings and saying that:

“The College has apologised, on behalf of all Fellows, Trainees and International Medical Graduates, to everyone who has suffered discrimination, bullying or sexual harassment by surgeons.”

With the final report due in late September 2015, we now wait to see how RACS proposes to deal with the issues. There is certainly much to do – throughout the report there are quotes from doctors who do not recognise the problem, such as “surgery is a stressful speciality. If you can’t deal with the stress, and that includes bullying, you should choose a different profession.”

With bullying, harassment and discrimination being so entrenched in surgical practice, it is clear that a massive cultural change is needed and this will take time to effect. Surgeons perform such important work and their training is so extensive that any attrition because of these behaviours is damaging to the wider community. Let’s hope a solution can be found that has far-reaching and long-term effects. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.

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Date: 1-3 December



The Cost of Ignoring Verbal Reports of Sexual Harassment

- Tuesday, November 18, 2014
Verbal Reports
The Cost of Ignoring Verbal Reports of Sexual Harassment

The recent matter of  Trolan v WD Gelle Insurance and Finance Brokers is notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. Long gone are the days when a written complaint of such behaviour is needed. Trolan demonstrates that in matters where such egregious behaviour is occurring in the workplace, employees don’t need to put things in written form in order to ‘inform’ of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

Daring to tell 

In July of 2008, Ms Trolan began work at her new place of employment – WD Gelle Insurance and Finance Brokers Pty Ltd (the employer). Between August 2008 and December 2008, Ms Trolan was subjected to a relentless assortment of unwanted and lewd sexual advances from a director of the company, Mr Gelle. Such behaviour included several physical violations, including circumstances where Ms Trolan was effectively trapped and unable to react. This was coupled with bullying behaviours that were corroborated by colleagues as ‘par for the course’ from the ‘screaming’ Mr Gelle. In September of 2008, Ms Trolan reported the matter over the telephone to another director of the company, Mrs Gelle (also the defendant’s wife). Mrs Gelle undertook verbally to deal with the matter. 

Silent damage

But no change occurred. Mr Gelle’s behaviour continued unabated, and in December 2008, Ms Trolan was consequently found by her doctor to have suffered a severe work-related injury. She was placed on WorkCover from that time. The essential causes of her diagnosed psychiatric illness were the sexual harassment and bullying that she had endured over a period of time while working at WD Gelle. And for part of this time, it was with the full knowledge of the employer. 

Listen out

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

Lingering pain

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

Words are enough 

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

Act early 

The lesson from Trolan? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $700,000+ for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

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