When Workplace Relationships Go Wrong

Vince Scopelliti - Wednesday, May 30, 2018

Given how much time employees spend at work every week, it is hardly surprising that romantic relationships develop in the workplace. 

But what happens when a romance is inappropriate, or attraction crosses the line into sexual harassment?

inappropriate vs unlawful

While there is nothing illegal about a workplace relationship between two consenting adults, in some circumstances it can be inappropriate, for example a romance between a manager and a subordinate. 

There is also a significant difference between mutual and enacted sexual attraction, and unlawful conduct such as unwanted sexual advances, sexual harassment or even abuse or assault. Sexual harassment is unlawful under both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 2010 (Vic). Sexual abuse and/or assault is a criminal offence.

the issues and consequences

Workplace relationships can become problematic, particularly in situations where a relationship involves two employees, one of whom oversees the other's performance, management or appraisal. 

Other co-workers may feel aggrieved by a real or perceived bias involving any decisions made by the more senior worker involved in the relationship. Team morale can suffer if one member is seen to be treated more favourably than the rest when it comes to performance appraisals, the allocation of work and promotional opportunities. 

Partly for this reason, employers may be tempted to dismiss employees who have not disclosed the nature of their romantic relationships. The legality of any such dismissal is questionable - however, previous decisions of the Fair Work Commission have suggested that employees may be dismissed in cases where employees are untruthful when they are challenged about the existence of workplace relationships. 

Employees may also make unwanted advances to other employees, as a result of innocently misinterpreting signs of perceived sexual interest. While there's nothing wrong with a co-worker asking a colleague out on a date or making an advance, there is a problem if the 'advancer' fails to accept and move on from any rebuff. 

The potential for negative fallout when a relationship ends is also a key concern for most employers. This is particularly the case if one party wants the relationship to continue while the other party wants to move on - ongoing attention may tip over into sexual harassment. 

According to the Australian Human Rights Commission, sexual harassment is 'any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual'.

From an employer's perspective, if sexual misconduct occurs in the workplace (or at employer-sanctioned events such as Christmas parties or other functions) then the business may well be vicariously liable.

There is certainly potential for litigation or unwanted media attention and brand damage as a consequence of sexual misconduct or an inappropriate relationship.    

what can an employer do to minimise the fallout? 

From a risk mitigation perspective, employers should ensure that they have adequately drafted and communicated workplace policies.

At a minimum, these policies should include: 

  • Clear guidelines on the permissibility of relationships between co-workers and when such relationships should be disclosed; 
  • Procedures for what should happen when such a relationship is disclosed, for example when a change in reporting structure is required;
  • A clause addressing conflict of interest and perceived bias (especially when relationships occur between senior and junior staff);
  • A clause defining sexual misconduct, highlighting the definition of sexual harassment and what kind of behaviour will not be tolerated in the workplace. 
  • Workplace policies that promote awareness of all gender related issues, including sexual harassment. 

It is common for relationships and attractions to develop in the workplace. As an employer, it is important to ensure that these circumstances do not lead to incidents of sexual harassment or perceptions of conflict of interest. 

Employers should ensure that they address all complaints of sexual harassment with care. If you have had complaints regarding sexual harassment, or are concerned about potential bias, WISE provides full and supported investigation services

Issues with Intoxicated or Hungover Staff? What to do

Vince Scopelliti - Wednesday, May 23, 2018

Most adults like to indulge in the use of alcohol from time to time. Some even like to partake a little more frequently - which is generally not problematic, in the privacy of one's own home and social sphere.

But occasionally problems with alcohol or even drug consumption can creep into the workplace, with staff under the influence while at work or under performing because of the after-effects. 

Employers have an OHS duty of care to all employees so they need to ensure that alcohol in the workplace does not give rise to safety risks. Employees also have a duty of care to themselves. Let's take a look at how employers can manage alcohol and drug-related issues in the workplace.

underlying factors and potential consequences

Alcohol and drug-related problems can occur in any workplace, across different industries. They can arise due to any number of factors, including personal issues experienced by the employee, stress, ongoing addiction, or poor workplace culture, to name a few. 

The potential consequences of alcohol or drug consumption - whether recreational or prescription - include the risk of injuries sustained by other staff and customers, absenteeism, lost production or general lack of competence, and a reliance on rehabilitation or workers compensation. 

The cost of these problems to business varies, however 1 in 10 workers say they have experienced the negative effects of a co-worker's misuse of alcohol.   

identifying alcohol or drug-related risks

One of the best ways to avoid difficulties with drugs and alcohol in the workplace is to identify potential risks and develop workplace policies that address these. 

These are some of the factors to consider when determining the level of risk facing your business:

  • Are your workers engaged in a high-stress environment? 
  • Is the operation of heavy machinery, vehicles or other equipment a requirement of your business?
  • Are there legislative or safety requirements to ensure that anybody operating this equipment is free from the influence of substances? 
  • Do staff potentially have access to illegal or significant amounts of pharmaceutical drugs, whether for their own consumption or for resale?

implementing a workplace drug and alcohol policy

At a minimum, your workplace policies should spell out:

  • Whether your company has a zero-tolerance policy for any types of drug or alcohol consumption;
  • Whether staff are required to declare reliance on specific pharmaceutical medications;
  • If random drug or alcohol testing is undertaken in the workplace; 
  • What expectations are placed on drug and alcohol consumption at work-related functions;
  • What the potential consequences of intoxication in the workplace could be

It is important to note that Section 12 of the Fair Work Act defines "serious misconduct" to include an employee being intoxicated at work. It would therefore be reasonable to dismiss an employee under those circumstances. 

It is also worthwhile ensuring that HR and other executive employees have undergone training in identifying staff who are intoxicated in the workplace or have perhaps formed habits of dependence. 

how to approach a worker who is under the influence 

When staff members suspect that a colleague may be under the influence of drugs or alcohol, it is important to be extremely sensitive in approaching that person. The specific approach will, of necessity, be dictated by various factors, including:

  • The relevant industry;
  • The workplace culture and structure;
  • The employee's role and seniority; 
  • The personal circumstances of the employee;
  • Whether the occurrence is 'once off' of suggests a pattern of behaviour; 
  • The legal environment;
  • The duties and responsibilities of the employee.

An employee is likely to be more responsive if they are approached from the perspective of a safety concern rather than an accusation. This is particularly the case where the behaviour or intoxication may arise from physical injuries, acute distress or prescribed medication which the patient is reacting badly to. 

During the process of drafting a workplace policy relating to drug and alcohol consumption, management should consider appointing and training specific staff members whose role it is to approach employees who are suspected to be under the influence of substances. 

These staff members could include managers, counsellors, health and safety representatives or HR representatives. A chain of command should also be instituted so that staff who have been tasked with making initial contact have somebody else to turn to for assistance if their initial approach fails.

If an employer dismisses an employee for drug/alcohol abuse and ends up with a claim for unfair dismissal, then a good employer defence would include that they had a workplace policy and approach that not only included clear consequences but also emphasised that the employer views abuse as a health issue and therefore seeks to help the employee overcome their abuse (this would be in cases where abuse outside of work is affecting performance as opposed to being intoxicated or high at work). 

This can be done by having an Employee Assistance Program (provided by an external provider); having a mental health and wellbeing policy; and an 'RUOK' approach - whereby managers encourage a culture of everyone looking out for each other and literally asking, are you ok? After all, such welfare approaches are exhausted over a reasonable period of time an employer would be safe to move to disciplinary approaches. 

Employers may also need to assess whether the issue is widespread, ie. a workplace culture of abuse. If this is the case, then there maybe engrained cultural issues that need to be investigated and remedied.   

What can employers do?

Workplaces are encouraged to establish a workplace drug and alcohol policy and procedure that can be followed in the event of a drug or alcohol-related incident in the organisation. 

WISE can assist you in drafting these policies, or assessing your current policy, and training staff. Alternatively, we can provide investigative services for any incidents that have occurred in the workplace. 

Failing to Involve HR and Other Investigation Mistakes

Vince Scopelliti - Wednesday, May 16, 2018

Being able to conduct a competent workplace investigation is essential for employers, especially when allegations of bullying, misconduct or inappropriate office behaviour are made. 

Mistakes made during an investigation may result in serious consequences, including legal action. 

Let's take a look at the basics of an investigation, and some key mistakes to avoid.

WHy are workplace investigations necessary?

Workplace investigations are used to establish whether conduct or incidents occurred as alleged by the complainant, and to ensure that appropriate action is taken. 

Investigations are necessary when:

  • An employee may have engaged in behaviour which could result in disciplinary action or termination;
  • Complaints or reports of inappropriate conduct are received;
  • Allegations have been made by one staff member against another - such as claims of workplace bullying, harassment or unreasonable performance management.
  • There is evidence of breaches of safety provisions or other procedures.
  • There are allegations of child abuse. 

what does an investigation involve?

An investigation involves the unbiased gathering and evaluation of relevant and objective evidence, for example by interviewing witnesses and involved parties, reviewing documentary evidence, and or doing a site inspection. 

The conduct, once it established that it occurred, is then measured against the organisation's policies and procedures, Code of Conduct, regulations or legislation, to determine whether a breach has occurred.

what are some key investigation mistakes?

Significant mistakes which can occur during an investigation include:

  • Failing to consider all the relevant evidence - for example, by failing to interview all relevant parties, not asking appropriate questions or failing to document all information collected;
  • Appointing the wrong investigator - for example, by appointing an investigator who is not seen to be independent or who lacks experience in conducting workplace investigations; 
  • Not reporting a complaint to Human Resources and a failure to seek advice;
  • Not allowing the participants procedural fairness by failing to inform them accurately of the complaint against them, failing to give them adequate time to prepare a response or failing to inform them of their right to have a support person present. 
  • Failing to anticipate all the potential risks that could arise during an investigation
  • Failing to provide appropriate notification to all the relevant parties; and
  • Breaching privacy obligations 

so, who should investigate?

The appropriate person to investigate is often determined by the nature of the complaint or allegation - depending on the situation, it may be appropriate to have a senior manager or a member of the Human Resources department review an allegation. 

Avoid actual, perceived or potential conflicts of interest. The investigator must be a neutral party, not someone who is closely connected to the matter, who has had prior involvement in it, who has a direct interest in the outcome or may be a witness in the matter.

When determining who to appoint as an investigator, it is also crucial to assess who has the right level of experience and appropriate skills. 

This was highlighted in a High Court case involving Patrick Stevedores, where an HR manager was appointed to conduct a serious misconduct investigation. However, her lack of experience meant that she failed to gather crucial evidence supporting the dismissal of an employee - who was ultimately found to have been unfairly dismissed.

Should an external or internal investigator be appointed?

In some circumstances, it may not be appropriate to investigate a complaint in-house. Some reasons to appoint an external investigator include; 

  • Internal staff may lack the required skills or knowledge;
  • There is insufficient internal capacity to focus on an investigation; 
  • Allegations have been made against a senior employee, who in other circumstances may be the one tasked with an investigation; 
  • There are concerns an internal investigator may be perceived as being biased and a higher level of neutrality and objectivity is required.
  • The issues raised are complex and/or involve a large number of people in the organisation or significant external oversight. 

If the allegation involves an internal procedure or a matter involving particular expertise (such as a medical incident occurring in a hospital) then it may be more appropriate to engage an internal investigator, or have both external and internal investigators working together. 

Risks of an investigation being conducted incorrectly

There are many situations in which a poor workplace investigation can have serious consequenced for a business. It can lead to adverse legal action - such as in the Patrick Stevedores case. It can also result in serious mental health implications for staff who are unfairly treated during the investigative process, with a subsequent increase in resignations or terminations. It can also result in failure to meet legal or procedural requirements set by external oversight bodies. 

Lesson for employers

When making decisions in relation to workplace investigations, employers should:

  • Ensure that employees are aware of existing internal policies about harassment and discrimination and conduct regular training in these areas;
  • Have a regular system for updating and reviewing policies and procedures, including complaints procedures;
  • Select an appropriate and impartial investigator;
  • Respond promptly and undertake enquiries in relation to each complaint or allegation to determine whether a formal investigation is required;
  • Evaluate all facts with a view to reaching an adequately reasoned conclusion in the circumstances of an allegation;
  • Inform the parties involved of the outcome of the investigation.  

Are you concerned about a lack of knowledge or the risk of making mistakes in your workplace investigations? WISE Workplace is able to offer both full and supported investigation services. In addition, we can train your staff in how to conduct effective workplace investigations.

Aged Care Investigations: A Guide for Reportable Assaults

Vince Scopelliti - Wednesday, April 18, 2018

The thought that some of the most vulnerable in our society - the elderly - might be at risk of harm in residential aged care facilities is abhorrent. But even with the best of intentions and the proper guidelines in place, there is still potential for abuse and assault to occur. 

Abuse allegations in an aged care setting are highly emotional and challenging for all involved, especially the victims and their families. 

When investigating these allegations, it is essential that procedural fairness and objectivity are paramount.

the two types of reportable assaults

The Aged Care Act 1997 (Cth) sets out the requirements for when approved providers of residential aged care must report matters involving their residents to the police. 

Section 63-1AA of the Act defines 'reportable assaults' as either unlawful sexual contact with or the unreasonable use of force on a resident of an aged care facility. 

Unlawful sexual contact considers situations where the resident does not or is unable to provide consent. In cases where residents have cognitive impairment, it is particularly important to ensure that all allegations are properly investigated.

Unreasonable force is intended to cover situations where elderly residents are treated roughly, causing physical injuries. Given the manual nature of handling aged care residents, it is accepted that occasionally 'innocent' or accidental injuries do occur - however, any physical injuries should be adequately reported.

wHO TO REPORT TO, AND WHEN

The Department of Health oversees aged care facilities generally. The Australian Aged Care Quality Agency (AACQA) is required to assess aged care facilities for ongoing compliance with accreditation standards and reporting responsibilities. 

The aged care provider is required to notify the federal government's Department of Health, either by completing a form or calling the hotline, within 24 hours of a suspected reportable assault. The police must be contacted within the same timeframe. A failure to comply with these reporting requirements may result in sanctions being imposed by the Department of Health. 

Given the serious nature of elder assault, even in circumstances where it is unlikely that a suspicion will be proven to be correct, an aged care provider must undertake the necessary reporting within the required timeframe. 

Staff members who notify their employers of potential assaults are protected in accordance with the Act. This means that their anonymity must be maintained and they are protected from potential reprisals by colleagues. 

the role of the aged care complaints commissioner

Complaints relating to the quality of aged care can also be directed to the Aged Care Complaints Commissioner. 

The Commissioner is tasked with resolving complaints, taking action on issues raised in complaints and helping to improve the quality of aged care. 

Making a complaint to the Commissioner may be a more appropriate avenue for individuals who do not work in an aged care facility, but who wish to report suspect behaviour, such as family members or other concerned residents. 

Other responsibilities for providers

Additional responsibilities imposed on aged care providers include:

  • Requiring staff to notify suspect assaults -  In practice, this means ensuring that staff have sufficient information available to understand their obligations to report, and the methods by which they can inform their employer (or the Department of Health directly if they are concerned about protecting their jobs). They must also ensure staff understand the potential consequences of providing false or misleading information. 
  • Record keeping - Aged care providers are required to keep detailed records relating to all suspected incidents involving reportable assaults. Specific details which need to be noted include the date the allegation was made, the circumstances giving rise to the allegation, and more information surrounding the notification. The records must be available for viewing by the Department of Health or the Quality Agency, if requested. 
  • Privacy - Aged care providers are required to balance their obligations under the Act with all requirements imposed by privacy legislation, including protecting the identities of their staff and residents. 

When is an assault not reportable?

In certain circumstances, assaults need not be reported. These are set out in the Federal Aged Care Act. Broadly speaking, an assault is not reportable if:

  • The alleged person who has committed the assault is a resident who suffers from cognitive or mental impairments (such as dementia, depression or similar conditions) which are likely to have contributed to the assault, and appropriate arrangements are put in place immediately to deal with that behaviour. 
  • The same incidents have already been reported. 

If you or your organisation is responsible for safeguarding the aged, WISE Workplace's Investigating Abuse in Care skills-based short course will assist you in investigating claims of abuse and reportable conduct, in line with the legislation applicable in your state.

Managing Relationships in the Workplace

Vince Scopelliti - Wednesday, April 11, 2018

Anyone who has been following the news recently will be aware that scandalous sexual relationships in the workplace have become something of a common theme. 

The stories of Seven West Chief Executive, Tim Worner and his former executive assistant (a relationship which ended in legal action), the forced resignations of senior AFL executives over their relationships with younger staff, and the notorious pregnancy of former Deputy Prime Minister Barnaby Joyce's staffer have all been highly publicised. 

The ironic fallout of Mr Joyce's relationship is the so-called "bonk ban", instituted by Prime Minister Malcolm Turnbull. That ban is intended to prevent all relationships between ministers and their staff, and presumably avoid another scenario such as Mr Joyce's extra-martial affair. 

But is this something which employers can actually impose? Particularly in circumstances where many romantic relationships are forged in the workplace?

can employer prohibit relationships in the workplace?

Although it is virtually unheard of for blanket bans on all relationships to be imposed in any workplace, it is not uncommon for disclosure policies to be introduced. 

The intention of such policies is to require staff members to disclose sexual relationships which could result in a conflict of interest, for example when the relationship is between a supervisor and their subordinate.

Such a code of conduct is designed to manage situations where the interests of the business may be in direct conflict with the romantic or personal interests of the employees. 

Actual conflicts of interest vs perceived conflict of interest

Arguably any relationship in the workplace - not necessarily even a romantic one - could lead to a conflict, particularly when the relationship falls apart or ends badly. This can result in staff feeling unable to work together or believing that they are being victimised by their former lover or friend. 

However, it is important to understand the difference between an actual conflict, and a perceived conflict. 

The Fair Work Commission's decision of Mihalopoulos v Westpac Banking Corporation [2015] FWC 2087 illustrates the difference. In this case, a Westpac bank manager was dismissed from his role due to his conduct arising out of his relationship with one of the bank's employees. 

According to Westpac, Mr Mihalopoulos was dismissed because he was dishonest about his relationship with the worker, breached an apprehended violence order imposed by the worker (after the relationship ended) and inappropriately discussed details of their relationship with his subordinates. 

During the course of the hearing, Mr Mihalopoulos admitted that he had put forward his lover for promotions while they were in a relationship, despite denying their relationship to superiors. 

The Fair Work Commission ultimately determined that employers were entitled to expect that their workers were honest about the nature of relationships that had formed, so that any conflicts of interest arising from these relationships could be managed. 

Further, Mr Mihalopoulos' ongoing and repeated dishonesty about the circumstances of his relationship meant that the business was not in a position to appropriately manage conflicts and therefore manage its own risk. Accordingly, Mr Mihalopoulos' unfair termination application was ultimately dismissed. 

How can relationships be managed in the workplace?

In order to manage the minefield of personal relationships in the workplace, Human Resources departments should ensure that both conflict of interest and disclosure policies are in place, which employees should sign up to as part of their terms of employment. 

Once a disclosure has been made, the conflict of interest policy should provide steps to be taken to minimise ongoing risks to the business. For example, staff might be reassigned to different supervisors to ensure that appropriate disciplinary action can still be taken. 

It is critical not only that these policies exist but that they are clearly communicated to all staff, and that staff are made aware of the potential consequences of failing to adhere to these policies, including redeployment or dismissal. 

If you need assistance in managing workplace relationships at your organisation, contact us. Our team can help formulate policies around disclosure and conflict of interest, and can investigate allegations of misconduct. 

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!

How to Improve Workplace Harmony

Vince Scopelliti - Wednesday, March 28, 2018

Maintaining workplace harmony should be a key focus of every organisation. Conflict in the workplace can lead to behaviours such as bullying, harassment and discrimination. Staff can lack motivation, fail to work as a team and be generally unhappy. 

So how can employers and staff deal with conflict, and encourage staff to work together to promote harmony in the workplace? 

Common causes of workplace conflict

Organisational or operational changes can cause employees stress and discomfort. These can include changes in management, procedures, duties or position descriptions, redundancies, staff changes and particularly a restructure. The increased stress and pressure on employees may be reflected by an increase in complaints received in the workplace.

The following factors also increase the likelihood of disharmony in the office environment.

  • A lack of communication, whether between co-workers or between management and staff;
  • A failure to share a vision, or a misunderstanding of what the business' goals or team's core focus is;
  • Mistrust or suspicion;
  • Insufficient leadership - or at the other extreme, micromanagement. 

how to prevent DISHARMONY turning the workplace toxic

It is important for employers to tackle any potential cultural issues straightaway - if tensions are left to fester, small, easily solved problems are likely to become much harder to deal with. 

Tips to avoid conflict and disharmony include:

  • Clearly communicating a zero tolerance attitude towards bullying, victimisation, discrimination and other negative behaviours;
  • Introducing clear workplace policies setting out expected standards of behaviour from all employees, and ensuring that these are well-communicated, easily accessible and complied with by everybody in the organisation, including senior management;
  •  Applying change management principles to any necessary changes to operational, procedural or structural matters;
  • Encouraging 'buy-in' from employees by creating common goals for all staff in the organisation. This should motivate everybody to work together;
  • Making your organisation a great place to work and an employer of choice - in particular by encouraging staff to have a healthy work-life balance;
  • Holding employees accountable for their work and rewarding them appropriately for good performance;
  • Training managers in conflict resolution, so they can step in early and deal with issues;
  • Hiring new staff based on their cultural fit and their compatibility with organisational values. 

Employees also have a role to play in creating workplace harmony, by doing their jobs to the best of their ability, showing commitment to their work, raising issues when they arise and adhering to workplace policies and procedures.  

what is the role of mediation?

When conflicts do arise, mediation can be an extremely useful tool. It can facilitate a discussion between employees who are in disagreement and find common ground or a compromise to deal with ongoing issues. 

However, mediation should not be used as a band-aid measure to try and resolve ongoing conflicts or when an active grievance is afoot. In this case, prevention by creating a harmonious workplace culture is truly the best cure.

when is an investigation required?

In some cases, workplace conflict and disharmony cannot be dealt with by a mediation process and an investigation is required in the first instance. 

This is particularly appropriate in circumstances where one party has been accused of misconduct or inappropriate behaviour, and the accused is hoping to clear their name. Similarly, if a workplace policy has been breached and there are potential legal or industrial ramifications, an employer is obliged to conduct a thorough investigation. 

Conflict management and workplace mediation can help avoid the disruption and disharmony which workplace conflicts can produce. Should your workplace require assistance in managing workplace disharmony, WISE Workplace provides mediation services and investigation services. Contact us today for an obligation-free discussion and cost estimate.  

Stand By Me: The Role of the Support Person

Vince Scopelliti - Wednesday, February 28, 2018

For an employee who is on the receiving end of disciplinary action, performance management or a workplace investigation, it is an upsetting, and even a potentially traumatic experience. 

Every employee involved in such a process is entitled to have a support person present during any meetings or interviews. 

A failure to afford an employee a support person can result in the process being deemed a breach of procedural fairness, and the outcome may be declared invalid upon review.

what is the role of a support person?

The role of the support person in any interview or meeting is to provide moral and emotional support, ensure that the process is fair, and to assist with communication - they are not required, or permitted, to act as an advocate, put forward a version of events or make an argument on behalf of the employee.

While support persons are entitled to ask some questions about the process, it is crucial that they don't respond or answer questions in terms of the substance of the matter, on behalf of the employee. 

A person engaged as a translator cannot generally act as a support person at the same time.

CAN AN EMPLOYER DENY A REQUEST FOR A SPECIFIC SUPPORT PERSON?

Only in certain exceptional circumstances the employer can refuse to have a specific person sit in as a support person. 

These circumstances include where the requested support person:

  • Holds a more senior role in the organisation than the person who is conducting the interview - thereby creating a risk of undue influence or pressure by the support person on the interviewer;
  • Could be disruptive to the process or has their own agenda (such as a former employee or somebody who is known to be on bad terms with management or the executive);
  • Is involved with the subject matter of the investigation or may be witness to some of the events. A person who is involved in the investigation in some way cannot be seen to be neutral and it is not desirable for a potential witness to have access to the respondent's evidence. 

Although employers may be able to object to a specific support person who has been requested, they are required to advise employees of their right to select a different person.

tHE ATTITUDE OF THE FAIR WORK COMMISSION

When determining cases of unfair dismissal, one of the factors the Fair Work Commission considers is whether the employee was unreasonably denied the right to have a support person present during any interviews. 

Best practice for employers

To ensure best practice in disciplinary or investigative processes, the following steps should be undertaken:

  • Employees must be advised of their right to select a support person for any relevant meeting
  • Employees must have the opportunity for the meeting to be organised, within reason, at a time when the support person is available
  • The support person must receive a clear explanation of their role - that is, to provide moral support only. 
  • The employer must take into account any additional considerations that could apply, such as those involved in an Enterprise Agreement or similar negotiated agreement with the employee. 

Offering employees a support person to attend any meetings and interviews related to disciplinary action, performance management, or workplace investigation with them, is crucial to the fair outcome of these processes. 

For more detailed information on conducting interviews, you can purchase a copy of our book Investigative Interviewing: A Guide for Workplace Investigators. If you're conducting a workplace investigation and need assistance, contact WISE Workplace today.  

Managing Cultural Diversity in the Workplace

Vince Scopelliti - Wednesday, February 21, 2018

Organisations are no doubt aware of the need to comply with anti-discrimination legislation, but actively encouraging cultural diversity in the workplace is becoming increasingly important - it can offer potential benefits far beyond simple compliance with the law. 

Let's take a look at some of the benefits, and how organisations can manage cultural diversity. 

THE definition of cultural diversity

According to Diversity Council Australia, cultural diversity is "the variation between people in terms of how they identify on a range of dimensions, including ancestry, ethnicity, ethno-religiosity, language, national origin, race and/or religion".  

Having a culturally diverse workplace simply means that you employ staff with a range of different backgrounds.

why is cultural diversity important?

Staff members from a variety of cultures offer different perspectives, knowledge and experience, which can be very valuable to organisations. 

Some of the benefits of cultural diversity include:

  • Thanks to the internet, many businesses now have clients spread out across the globe. Having a culturally diverse staff can help facilitate stronger relationships with these clients, potentially providing a competitive advantage and even boosting market share. 
  • Having a variety of different backgrounds and experiences in your workforce can encourage innovation and 'out of the box' creative thinking and decision making. 
  • Fostering a tolerant, inclusive workplace is important from an employee point of view - staff are likely to be happier and more productive working in an environment where it is clear that everyone is respected for their differences.
  • A diverse and inclusive workplace can also help attract and retain top talent. 

So how can organisations manage diversity?

 Some tips for managing diversity include:

  • Celebrating regular diversity days to recognise and support differences in your employees. However, it is important to be aware of cultural sensitivities, and avoid the appearance of tokenism. 
  • Creating policies that support an inclusive environment for people from a range of cultural backgrounds and set out what behaviour will be regarded as discriminatory or prejudiced. 
  • Communicating these policies to all staff members.
  • Imposing penalties in circumstances where inclusion policies are not being followed. 
  • Making sure that those in management positions set a good example for inclusive behaviour.
  • Being clear about what each staff member is accountable for, so everyone is treated fairly. 
  • Offering all staff training in cultural awareness and understanding. This could take the form of seminars or workshops, and perhaps including first-hand accounts of what it's like to be from a particular cultural background. 
  • Ensuring that the business has some flexibility to fit in with cultural needs. For example, a business with a high number of Muslim employees may wish to offer a prayer room, or those with Indigenous members of staff may wish to acknowledge the traditional owners of the land prior to formal meetings or events. 
  • Being flexible enough to allow employees from different backgrounds to take time away for important religious and cultural rites.

Research has found that business performance improves when employees feel highly included and think their workplace is strongly committed to supporting diversity. 

If your workplace is having issues with managing diversity, WISE Workplace provides a number of services to assist you, including cultural surveys and mediation.

Evolving and Moving on from a Workplace Investigation

Vince Scopelliti - Wednesday, February 14, 2018

Most employers are aware of the importance of conducting workplace investigations to deal with complaints or allegations. But what happens after the investigation is over?

There may be a sense of disconnectedness, embarrassment, awkwardness or even anger amongst staff, particularly if disciplinary action has been taken or an employee has left the organisation. 

Although it is no doubt tempting to close the report on a workplace investigation and just move on, there remains a lot of outstanding work to be done before the job is truly over.

The report is finalised, but now what?

There are a number of steps employers can take to ease the way post-investigation. 

These include:

  • Touching base with all parties

The person who was the subject of the investigation would have been notified of any findings and consequences. But it is equally important for employers to touch base with any complainants, whether they are internal, external or on leave, and explain that the process has been finalised. Although exact outcomes may not be disclosed due to privacy or confidentiality reasons, it is important for employers to demonstrate that complaints have been taken seriously and duly investigated. 

  • Requesting constructive feedback

Although it is unlikely to be appropriate to ask the complainant or the respondent to comment on how they thought the investigation was handled, witnesses and other parties engaged in the process can be approached for feedback. This might include whether they felt the investigation process was transparent and fair, whether there is anything else they want to report about the company, and whether they felt there was sufficient communication throughout the process. 

  • Reviewing the actions of key decision-makers

This is a fantastic opportunity to consider the way your key decision-makers have behaved. This includes the quality of their decision-making, the steps taken by them to control the situation, and perhaps their involvement in the initial complaint. It can also provide an opportunity to observe how those in senior management interact with each other, and perhaps encourage changes to the chain of reporting and command.

  • Identifying any systemic or endemic problems

Perhaps this is not the first time a complaint of a similar nature has been made, or the same person's name keeps popping up. Maybe the investigation has identified a shortcoming in procedures or policies in the business. Employers need to identify any systemic issues and implement strategies to deal with them as soon as possible. 

Rebuilding the team post-investigation

Dealing with any uncertainty or disharmony and rebuilding your team is of primary importance. In the aftermath of an investigation, employers need to:

  • Consider whether the complainant and respondent can keep working together. Even if the allegations are not substantiated, it should be assumed that any future working relationship is likely to be strained, if not impossible. Careful consideration should be given to shifting work arrangements, ideally without either party feeling aggrieved by the change. If the parties must continue working together, mediation can help by enabling both parties to air concerns and come up with ground rules. 
  • Offer counselling to all affected parties, whether internal or external
  • Instigate a training program or a refresher course for all staff focusing on the behaviours reviewed in the investigation
  • Facilitate team-building exercises. Team-building exercises can help staff resolve any conflict they may feel, give them an opportunity to get to know each other better and to forge new connections in the wake of an investigation. This can be particularly important if a co-worker has been terminated. 
  • Seek feedback from your employees as to what steps could be taken to improve the workplace culture in general. 

Don't limit the investigative process to a band-aid solution. Once the immediate issue has been addressed, utilise the learnings to strengthen your team going forward. 

If you need effective resolution of workplace disputes after an investigation, WISE Workplace has a number of qualified and experienced mediators who can help your workers to resolve any issues post-investigation.