No harassment no unfair dismissal - ruling clears Energy Australia

- Tuesday, April 01, 2014

On March 25th, an application against Energy Australia made by a former director of corporate affairs was dismissed at the Federal Court by Justice Julie Ann Dodds-Streeton. Former Energy Australia employee Kate Shea claimed that she had been made redundant in 2012 as retribution for sexual harassment complaints made previously and this was found not to have been the case.

Justice Dodds-Streeton stated that Energy Australia had sound business reasons for making the redundancy and Ms Shea’s claims had no reasonable basis and were made for personal gain rather than in good faith.

The allegations

The claims that were previously made against Energy Australia included allegations that managing director Richard McIndoe was previously involved in sexual harassment against a female employee at a party in 2006. Ms Shea also claimed that she had been the victim of sexual harassment in 2010 by then chief financial officer Kevin Holmes and that Energy Australia had a corporate culture in which sexual harassment was condoned.

An investigation was undertaken relating to Ms Shea’s complaints in 2011 and the results found that although Mr Holmes had made contact with her he had not sexually harassed her. After the investigation, Ms Shea sent a letter to Mr McIndoe accusing him, along with the CFO and the company’s HR director of concealing evidence and working to cover up a culture of sexual harassment within the organisation.

The letter is said to have contained a number of demands including one for a financial settlement, and threats that if the demands weren’t met in a specific time frame the letter would be sent to Energy Australia’s parent company in Hong Kong, CLP Holdings Limited. Ms Shea received a sum of $133,000 and returned to work in October 2011. She and her personal assistant were made redundant four months later after a company restructure.

The outcome

Justice Dodds-Streeton noted that Section 341 of the Fair Work Act 2009 has not yet been thoroughly tested from a judicial standpoint, and that there are still a number of significant aspects which are left unaddressed. Although there is no requirement for complaints made against a company to be justified or for an accusation to be true or proven, there is still a requirement for claims to be reasonable and genuinely held by the complainant. According to Justice Dodds-Streeton, the claims made by Ms Shea weren’t made in good faith but purely from the motivation of financial gain. The judge stated that she wasn’t convinced that Ms Shea had any real belief that her former colleagues’ conduct amounted to sexual harassment and this was apparent in her conduct as a witness.

The judge also determined that complaints made against an organisation need to be underpinned by a right or an entitlement. In Ms Shea’s case, there wasn’t enough of a connection between the alleged misconduct of Mr McIndoe against another female employee and the employment of Ms Shea.

Ms Shea had been seeking reinstatement and lost earnings which would have amounted to around $6M. The judge ruled out reinstatement, due to the fact that the trust required for an employee/employer relationship was gone. Energy Australia and the employees involved were cleared of any allegations of harassment and misconduct and the redundancy was found to have been made for sound business rather than personal reasons.

Changes to Anti Bullying Legislation: the Effects so Far

- Tuesday, March 25, 2014

New changes to workplace bullying legislation have so far showed underwhelming results according to a Fair Work Commissioner with the first substantive order under the new act being made almost three months after the new system came into effect. The changes were made to the Fair Work Act 2009 last year in response to the recognition of the prevalence of bullying and harassment in Australian organisations and took effect on January 1 this year. The impact of bullying is believed to cost Australian employers millions each year in absenteeism and lack of productivity.

The new laws mean that workers who believe they are being bullied at work can now lodge a complaint directly with the Fair Work Commission. The Fair Work Commission has been given the power to implement any remedy they believe appropriate apart from financial compensation to deal with specific incidents of bullying at work.

Although this new legislation came into effect at the beginning of the year, early reports show that there hasn’t been the anticipated dramatic increase in complaints lodged with the Fair Work Commission. However, it is still fairly early on and the number of complaints could rise in the future.

What has been done so far?

The first official ruling was made on March 21st by Lea Drake, Senior Deputy President of the Fair Work Commission and directions included prohibiting an employee to have any unaccompanied contact with a co-worker or making any comments about the co-worker’s clothing or appearance.

The decision was made after a conference on March 4 and directions also stated that the respondent (the employee accused of bullying) should avoid sending emails or texts to the co-worker except in an emergency, should complete any exercise undertaken at the employer’s premises before 8am and refrain from raising work related issues unless first notifying the Chief Operating Officer or his subordinate.

The applicant was also ordered not to arrive at work before 8.15am. The parties have both been given leave to have the matter re-listed for a later conference if there are any difficulties implementing the orders.

According to workplace tribunals commissioner Anna Cribb, there have been 66 bullying claims made so far under the new system, nine of which were withdrawn in the early stages. This is lower than the predicted 67 claims a week but there has been an element of confusion as to whether alleged acts of bullying committed before January 1 can be included in claims and this may have impacted the level of reporting.

What are the main types of claims?

The majority of claims made so far under the laws have fallen into one of two categories according to HR publication OHS Alert. According to Commissioner Cribb the majority of reports involve employees being bullied either by supervisors or managers or by a group of employees. There were also two cases of supervisors reportedly being bullied by employees.

Although the number of complaints lodged so far falls below what was anticipated, the bullying tribunal’s helpline has reportedly been receiving in excess of 200 calls per week.

How effective is the legislation in dealing with complaints?

It is believed that the Fair Work Act legislation regarding reasonable management action will apply in a significant number of workplace bullying allegations. Many of the applications made by employees regarding bullying by a supervisor are believed to fall into this territory with the need to clarify what exactly constitutes reasonable steps taken by management and what would be classified as harassment or bullying.

Other legislation involving bullying, notably workers’ compensation laws in different states, have clear exclusions as to what behaviour constitutes reasonable direction and disciplinary action by managers and supervisors. So far the Fair Work Act legislation has a certain amount of uncertainty around what behaviour is excluded from further action. It is believed that this could lead to employers being able to claim reasonable disciplinary action rather than bullying and therefore avoid further penalisation.

The Fair Work Commission has recently ruled that alleged bullying activities which took place before January 1 are admissible under the new scheme, and this could lead to an increase in the number of complaints lodged.

Is your business suffering from allegations of workplace bullying? Bullying can be difficult to determine and often an impartial investigator is the best way to ensure a fair result. Contact us today to find out more about what we do and how we can help you effectively deal with claims of harassment and bullying in your organisation.

Teacher Awarded Compensation over Twitter Defamation

- Tuesday, March 18, 2014

Workplace harassment can happen in a number of different environments, not just in the office as was upheld by a recent ruling in the NSW district court. In the first case of its kind, NSW teacher Christine Mickle successfully sued a former student for defamation via popular social media platform Twitter. The student was ordered to pay $105,000 in compensation for comments made on Twitter and Facebook.

Workplace harassment and bullying are a real issue for many employees. It can be extremely distressing for employees to be victims of bullying in the workplace but when this continues online over social media it can be even more devastating. Being harassed over the internet means that employees have no escape from bullying, even when they are at home, and with the widespread use of smartphones, negative and derogatory comments can follow them around wherever they go. The Twitter defamation case demonstrates that workplace harassment via social media is actionable and can have serious financial consequences for those who engage in it so it’s important that it is taken seriously.

Cyber bullying has been in the media for a number of reasons recently with calls for stricter laws governing the behaviour of cyber bullies and trolls along with increased awareness of the effect this type of harassment has on victims. In the case of Mrs Mickle, the effects of the defamation were described as ‘devastating’ and resulted in her taking an extended period of sick leave and only returning to work on a limited basis.

What is defamation?
The law regarding defamation is most commonly thought of in relation to media organisations and newspapers who publish false or negative information but the law can equally be applied to businesses and other organisations. Defamation is the publication or dissemination of false information which could damage another person’s reputation.
It’s very important for businesses and other organisations to be aware of the potential for defamation and be extremely careful when posting anything about another organisation or a current or former employee. Material posted on social media networks can be seen as defamatory if it:
  • Says that someone is dishonest or disloyal.
  • Makes personal statements about them which could cause someone else to think less of them.
  • Accuses them of doing something they didn’t.
  • Makes negative assertions about their capability of doing their job.

To count as defamation something doesn’t have to be overtly untrue, it can be argued that a statement which makes implications can also be considered to be defamation.

Make employees aware of the risks of social media
If you hear complaints that employees are posting negative comments about their co-workers on social media it’s important to take the allegations seriously. Social media harassment and defamation can lead to serious consequences for individuals and organisations. Make sure your employees are aware of the consequences of talking negatively about each other on Twitter or Facebook and help create a culture that discourages social media harassment and bullying to make your organisation a safer and healthier environment for everyone.

Public Service Misconduct: Hiring an External Investigator

- Tuesday, March 11, 2014

Allegations of misconduct can have a serious effect on employees and your agency’s public image. All employees who work for the Australian Public Service (APS) are required to abide by the APS code of conduct. If it is alleged that an employee has breached the terms of the APS code of conduct the agency they work for can either choose to investigate the matter themselves through their in house human resources department or they can engage the services of an external investigator.

Using an external investigator has a number of advantages but it’s important to be aware of some of potential pitfalls too. Here is a brief guide to help you select the best external investigator for your circumstances and avoid the repercussions of making the wrong choice.

The benefits of using an external investigator
In some circumstances it is simply more appropriate to opt for an external investigator over using in house personnel to investigate allegations of misconduct. These circumstances can include:

  • Where the agency is small and doesn’t have sufficient in house resources available to thoroughly investigate the matter.
  • Investigations requiring specialist expertise is required which can’t be supplied through in house staff.
  • When it’s unlikely that current employees of the agency will be able to conduct an unbiased or independent investigation.
  • Situations where there is a need for the agency to use a third party to maintain public confidence in the outcome of an investigation.

There are plenty of benefits to using an external investigator and many public service agencies choose to bring in a third party when they are investigating allegations of misconduct.

What should you look for in an investigator?
When looking for an external investigator it’s important to find the right individual or team, particularly if the allegations are serious or require specialist knowledge and experience. Here are some of the skills and attributes that make a good investigator:

  • Familiarity with the employment framework of the public service, including the Public Service Act and other relevant legislation.
  • A strong understanding of the Fair Work Act 2009 and its requirements.
  • Good interpersonal and verbal communication skills and the ability to put people at ease when conducting interviews.
  • Strong written communication skills and experience producing written reports which clearly present the evidence on both sides and discuss the reasoning process involved in any decisions.
  • Sound analytical skills and good judgement.
  • Awareness of the elements of administrative decision making including procedures for weighing up evidence and the need for a fair and balanced process.
  • Experience conducting administrative investigations and weighing conflicting evidence to find out the truth.

Allegations of misconduct, if proven, can lead to serious consequences for the employees involved and could affect their ability to work in the future as well as having a significant impact on them financially. It’s important that any investigations are conducted in a fair and unbiased manner to ensure that everyone is treated fairly and in accordance with employment law.

What are the risks of hiring the wrong investigator?
When an external investigator lacks the experience or expertise to handle an investigation appropriately it could lead to a decision being challenged in court and ultimately set aside. This can lead to a waste of time and resources for the agency involved and could make it more difficult for them to effectively enforce behavioural and conduct standards for employees in the future.

If you have made the decision to hire an external investigator for your public service agency make sure you choose a firm or individual with the skills and capabilities of carrying out a thorough unbiased investigation which complies with legal requirements.

WISE Workplace is on the Australian Taxation Office panel and has a long history of providing investigation services to Commonwealth agencies. All our investigators hold private security licenses and a minimum of Certificate IV qualifications in government investigations. Wise Workplace also provides nationally recognized training in government investigations, and is recognized as a national expert in investigating allegations of misconduct, bullying and harassment.

Contact us today to find out how we can help you with your investigation. The more rapidly and effectively you can deal with allegations of misconduct in the workplace, the sooner your organisation can move forward.
 

Workplace Bullying or Reasonable Management Action? - In Milan...

- Wednesday, March 05, 2014

As the sun rose over Sydney this morning, I got the news - WISE is going to Milan!

I will be presenting a paper at the 9th International Conference on Workplace Bullying and Harassment in Milan, Italy, on 16 June 2014. Below is the abstract I submitted and that got accepted;

WORKPLACE BULLYING OR REASONABLE MANAGEMENT ACTION? CASE ANALYSIS OF EXTERNALLY INVESTIGATED COMPLAINTS OF WORKPLACE BULLYING IN AUSTRALIA.
Author:  Stacey, Harriet.  WISE Workplace. Sydney, NSW, Australia

On 1 January 2014 The Fair Work Commission in Australia adopted a new jurisdiction over workplace bullying. Unifying the definition of workplace bullying at the national level the legislation is consistent with the Commonwealth Safe Work Regulatory agency ‘Safe Work”. Under this legislation workplace bullying is defined as ‘repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’. Specifically excluded from the definition of Workplace Bullying is behaviour, which constitutes reasonable management action. Determining when conduct is ‘reasonable management action’ or bullying is a key issue in the investigation of workplace bullying complaints and critical to minimising the risks of psychological injury in the workplace.

Employers struggle with early recognition of employees who are at risk of bullying through the inappropriate application of performance management strategies from those difficult employees who do not comply with reasonable requests or meet performance measures.

WISE Workplace is a private organisation that investigates complaints of bullying in government, not for profit and private organisations. Pulling from a sample of cases investigated by WISE Workplace over the two-year period of 2011 to 2013 this paper compares two cases of alleged bullying involving performance management and reasonable management action.

Case one involves an employee who experienced bullying over an 18-month period by her line manager. The target complained of threats to terminate her position; intimidating comments about whom she could speak to; unreasonable work expectations; delay in approving leave; failing to approve her performance plan. The target experienced long lasting/permanent psychological injury as a result of the bullying behaviour. The case was investigated and the bullying complaints substantiated.

Case two involves an employee who also alleged bullying over a 2 year period by her line manager. The target complained of a failure to approve leave; lack of procedural fairness in the investigation of complaints about her performance; phoning her whilst on sick leave; failing to be impartial in work allocation; making upsetting comments;  the allegations were found to be unsubstantiated on the basis of reasonable management action.

The paper details the two cases and compares and contrasts the circumstances of each case, how the employees were handled by their organisations in response to their complaints, the way the performance management was undertaken and details lessons to be learnt about identifying genuine cases of alleged workplace bullying early to avoid psychological injury developing or progressing.

Presenting author: Stacey Harriet e-mail: harriet@wiseworkplace.com.au

 

Investigator bias : How to avoid the mistakes of Qantas

- Tuesday, February 25, 2014

 

Keiko Adachi v Qantas Airways Limited 12 Feb 2014. [2014] FWC 518.

If you don’t want your investigation failing because you’ve stumbled into the sticky trap of “investigator bias”, take note of these lessons from Qantas in a ruling by the Fair Work Commission early this month. 

The FWC found in favour of the aggrieved stewardess, Keiko Adachi and declared that her dismissal by Qantas for gross misconduct was “harsh, unjust and unreasonable”.

An apparently simple altercation between Ms Adachi and her line manager over her “fitness to fly”, led to her dismissal for gross misconduct, just weeks before she would obtain her award for 25 years’ service.

Prior to the incident, which took place in February 2013, Ms Adachi had made complaints of bullying about her manager (the details were not included in the judgment) and had signed off sick for work-related stress.

On her return to work, her doctor issued a medical certificate declaring she was fit for flying duties, but not fit for ground duties. When Ms Adachi reported for a flight on the 17 February 2013, she presented the medical certificate and said she was “fit to fly”. However the certificate stated that she was only fit for “suitable duties” and not “full duties”, which is a stipulation of the Qantas “return to work” policy.  

Her manager, John El Khoury, said she could not fly that night, and would need to get a new certificate. Ms Adachi asked for the certificate back, but her request was refused. So Adachi took the certificate off the table and in the ensuing tussle between her and her manager, the certificate was ripped and scrunched.

Immediately afterwards, Ms Adachi reported the incident to the police, while the manager reported it to his supervisor. Qantas appointed a more senior manager to investigate the complaint lodged by Mr El Khoury. He found that Ms Adachi’s conduct had breached the Qantas code and warranted her dismissal.

The FWC criticised the investigation, stating it was “flawed” because the investigator had a close working relationship with Mr El Khoury and was unable to view his account of the incident as anything other than highly credible.

As you would expect, the versions provided by the two key participants were divergent; both admitted to a tussle over the certificate but disagreed who initiated it and who was responsible.

The investigator needed further evidence provided by other witnesses to corroborate events.

The first witness stated in an email that he saw the tussle and supported the complaint of Mr El Khoury.  But when the gravity of the situation was explained, he changed his evidence, stating he had not seen or heard what he initially claimed.

The investigator then sought evidence from another 12 witnesses, none of whom could provide any evidence that supported Mr El Khoury’s version. Despite this, the investigator showed a clear preference for Mr El Khoury’s evidence, discounting the evidence of the retracted witness and the other 12 employees.

This situation is commonly referred to as “investigator bias” .

So what can we learn from this case?  If you are an internal investigator; how do you stop yourself from forming a view based on your knowledge or opinion of one of the witnesses?

The answer is that it is very hard. In many institutions and businesses, internal investigators have offices in separate locations in company headquarters, and choose not to socialise extensively with the rest of the employees they are tasked to oversee.

Secondly, it is not necessary to interview all witnesses, but it is vital that the investigator canvass a fair distribution of witnesses to provide him/ her with a rounded view of events.

Despite the need for investigations to be conducted without delay, they should not be rushed – rushing people to respond when they may be on stress-related leave or when the investigator is not fully prepared, can lead to lack of procedural fairness.

When evidence is withdrawn, it is also vital that a full explanation is provided, so that the investigator can assess the real, underlying cause of the retraction; was the witness mistaken or were they targeted?  

Finally, in this case, the investigator failed to identify the complex nature of the IR landscape by contacting a worker whilst on stress leave for bullying,  failing to consider prior complaints of bullying lodged by the worker against her managers, the impact of a WorkCover investigation, and a police investigation and a perceived lack of procedural fairness provided to the respondent.

The case highlights:

  • The risks involved in using untrained internal staff to conduct investigations that may result in dismissal proceedings.  

Organisations should consider using qualified ‘investigators’ to gather and analyse the evidence prior to making decision about disciplinary action.  Where you use an external contractor always check that they have the necessary license and insurance.

Workplace Bullying - Effective Responses

- Tuesday, February 11, 2014

 

Video: The anti-bullying amendments to the Fair Work Act, introduced on 1 January 2014, mean that employers can no longer overlook complaints of workplace bullying. It sends a clear message that bullying in the workplace will no longer be tolerated.

WISE CEO Harriet Stacey gives examples of recent instances when workplace bullying has been left unchecked with tragic consequences. She then discusses the steps employers can take to see a reduction in workplace bullying, outlining three crucial elements:

  • Strong policies
  • Effective Training
  • Consistent Action.

Only when all three are implemented and working together will your workplace achieve an effective reduction in workplace bullying.


 

Flexible work: a privilege not a right

- Sunday, December 08, 2013

 
Are you or your employees in the dark about their work arrangements? Maybe it’s time to shed light on this. Formalising flexible working arrangements could help protect both employees and managers when it comes to drawing a line in the sand between bullying and harassment and reasonable management action.

A recent case brought against the South Australian Department of Health and Aging is a good example. In this case the court ruled that repeated requests to review flexible working arrangements given to an employee, after her father experienced a fall, did not amount to bullying and harassment and were reasonable under the circumstances.

The court also ruled that by allowing the employee’s flexible arrangements to continue unmonitored for three years, they had inadvertently led the employee to feel that her later start time was a right rather than a privilege. When efforts were made to amend the arrangements, she viewed them as bullying.

When making flexible working arrangements, the court recommended documenting the agreements in a formal way and ensuring follow-up times are set, to review how the arrangements are working for both the employer and the employee.

Spyrou V The State of South Australia (the Department of Health and Aging) 2013 SAEOT 11 (6 November 2013)




WISE Workplace is expanding!

- Wednesday, November 27, 2013

We are pleased to announce our merger with LKA Group Pty Ltd, a national investigations company. The merger becomes official on 1 January 2014.  On that date our combined firm will begin conducting its practice under the same familiar name of WISE Workplace with offices in Sydney, ACT, Melbourne, Brisbane, Hobart and Perth.

Merging with LKA Group will allow us to expand our service offerings and coverage whilst we continue to provide our high quality services more reliably and economically to our clients across the whole country.

LKA Group shares the same values we do of quality, service and fairness. They have been involved in the delivery of investigation services for over 25 years and have a tradition for excellent customer service, extensive expertise, and strong management experience. Our new Managing Director, Vince Scopelliti is a qualified solicitor in Victoria and has an extensive background across the whole investigations, governance and risk industry. Coupled with a proven track record in business development Vince will bring a renewed focus on customer service to the company.

Our merged business will facilitate service quality improvements through access to leading edge technologies, stronger infrastructure, professional development and training opportunities for our investigators, and by providing an experienced management team for an improved customer experience and seamless delivery of our professional services.

Improvements to data security, and quality systems mean our larger organisation protects your interests by reducing the risks to you of failures in business continuity, and provides the dependability and confidence that comes from using a reputable consulting firm.

Our combined network of  specialist workplace investigators across the country enables our business to ensure you have access to a more diverse highly experienced and qualified practitioners in your specialist industry anywhere in the country whilst still being guaranteed of the quality stamp of WISE Workplace.

Our new management team will be:

Vincent Scopelliti  
Managing Director
72 Faraday Street
Carlton VIC 3053
vince@wiseworkplace.com.au

Harriet Stacey
Chief Executive Officer
Unit 4, Rowell Marine,
1 Queens Parade
Newport NSW 2106
harriet@wiseworkplace.com.au

Andrew Hedges  
Operations Manager
33 Montpelier Road
Bowen Hills QLD 4006
andrew@wiseworkplace.com.au

Use of social media records as evidence of misconduct

- Tuesday, November 05, 2013

There is no doubt that social media is playing an increasing role in our lives.  

Have you ever been handed a folder of print outs from Facebook and told; “Here you go, I want this person out!”?

An increasing number of organisations are developing social media policies as a starting point to control inappropriate staff interaction online, but the question still arises: ‘how do you prove that someone has breached the policy?’

Where do you start?

Initial questions that need to be asked include;  What was said?  Is it work-related?  Who wrote it? At first glance, the latter question may seem obvious, but in more than one case, someone impersonating someone else has posted comments. To take effective administrative action, you must “prove” who made these comments. This is known as “attribution of the records”.

In a recent case conducted by Access Forensics, alternate records from the social media site identified the true author of the comments and a just outcome was achieved.

In another case, a client became concerned with internet records which appeared to suggest excessive use of the company’s IT system to visit social media sites.  However, closer inspection confirmed that most records were generated as a result of automatic processes not initiated by the user, nor as a result of visiting the social media site.

To effectively attribute a digital record to a particular author, it’s imperative that the investigator uses good, old fashioned interviewing skills, to question the alleged author about the creation of the social media post. They should also collect other sources of evidence and circumstances surrounding the case, to avoid attributing the post to the wrong person.

So what do you need from your Facebook printouts?
  • The name of the person who saw the comments on Facebook
  • The name of the account where they were seen
  • The time and date of printing off the posts
  • The name of who did the printing
  • A description of how they did the printing

All this information can be easily obtained in a statement that should accompany the Facebook pages and give credibility to the source of the evidence. These steps won’t prove who said what, but they will give weight to the evidence that you have.

Written by Harriet Stacey of WISE Workplace in collaboration with Clinton Towers, of Access Forensics