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.  

A Modern Problem: The Face of Workplace Bullying in 2017

Vince Scopelliti - Wednesday, December 20, 2017

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

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

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

the nutS and bolts of it

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

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

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

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

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

what is the extent of workplace bullying

Workplace bullying is prevalent in Australia. 

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

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

the need for an anti-bullying culture

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

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

WHen employers are accused of bullying 

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

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

how did the fair work COMMISSION view bullying in 2017

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

Case Study 1: The email is mightier than the sword

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

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

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

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

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

Case Study 2: Lawful adversaries - bullying in law school

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

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

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

Case Study 3: A failure to properly investigate

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

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

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

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

Case Study 4: Getting it both right and wrong

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

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

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

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

Case Study 5: Lessons in discourse

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

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

The take home message

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

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

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

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

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

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

Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

Vince Scopelliti - Wednesday, July 26, 2017

In a recent decision of the Fair Work Commission (FWC), a nurse has been reinstated following her termination in circumstances where covert video surveillance was the 'sole foundation' of allegations against her. The FWC also found that her employer's human resources department acted incorrectly and inappropriately in the circumstances surrounding her dismissal.

facts of the case

Ms Tavassoli, an Iranian refugee, was employed as a nurse at a Bupa Aged Care Australia Pty Ltd nursing home located in Mosman, NSW. 

In Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200, she claimed that she had been constructively dismissed after being falsely accused of serious misconduct by her employer. 

A colleague of Ms Tavassoli's had secretly recorded her on a personal mobile phone, which allegedly showed Ms Tavassoli:    

  • Making fun of a resident
  • Singing select, mocking lyrics from a musical including "Anything you can do, I can do better."
  • Continuing to drink tea with another co-worker while residents were calling for help.
  • Laughingly telling a colleague that she was lucky to have swapped a shift during which two patients passed away. 

Ms Tavassoli's colleague took the footage to the facility's acting general manager and care manager. 

In response, the very next morning, the general manager took Ms Tavassoli, off-site for a disciplinary hearing. Despite pulling Ms Tavassoli out of a training session the general manager did not inform her what allegations had been made against her, and caused her to wait for two hours before the meeting actually took place. 

During that time, Ms Tavassoli thought about what accusations may have been made against her and became concerned that she would be accused of theft after a patient had gifted her with some beer. Accordingly, Ms Tavassoli drafted a resignation letter. 

When the meeting finally took place, Ms Tavassoli was accused of various types of misconduct. Although she didn't fully understand the accusations against her, Ms Tavassoli tendered her resignation, providing four weeks' notice. However, the general manager advised her that the resignation would be effective immediately, and requested that Ms Tavassoli amend the resignation letter to remove the reference to a four-week notice period. 

Ms Tavassoli attempted to withdraw her resignation only two days later but was denied this right. 

decision of the commission

In deciding to order that Ms Tavassoli be reinstated to her former position, Commissioner Riordan determined that:

  • Ms Tavassoli had been constructively dismissed
  • The general manager acted without due procedural fairness when he refused to permit Ms Tavassoli to withdraw her resignation and return to her former position. 

A particular factor taken into account by Commissioner Riordan was that Bupa is a large organisation, with considerable resources. As a result, he concluded that the human resources department should have followed appropriate processes in dealing with Ms Tavassoli, and crucially should have shown Ms Tavassoli the video evidence collected against her. This was heightened by the employer's knowledge that Ms Tavassoli's English skills were poor. 

The decision not to show the footage was considered to deny Ms Tavassoli the right to know what case she had to answer. Indeed, Commissioner Riordan went so far as to suggest that the human resources department failed in their obligations to Ms Tavassoli and committed 'a form of entrapment' by not showing her exactly what information had been gathered against her. 

He found that the employer had made a determination of Ms Tavassoli's guilt immediately upon seeing the footage, and had failed to undertake any proper investigation as to the circumstances surrounding the behaviour. 

Commissioner Riordan further noted that, by requesting that Ms Tavassoli amend the terms contained in her resignation letter, the general manager effectively 'took over' the termination, which supported a finding of constructive dismissal. 

He was also highly critical of Ms Tavassoli's colleague who had taken the recordings, but accepted that the Commission did not have any rights to proceed against the colleague.

Against this background, Commissioner Riordan ordered that Ms Tavassoli be returned to her former role. 

Legality of secret recordings

Perhaps the most crucial factor in Commissioner Riordan's decision was his concern that the video recordings breached the Workplace Video Surveillance Act 1998 (NSW)

According to the Act, any surveillance conducted by an employer in the workplace is considered 'covert' unless the employee:  

  • Is notified in writing, before the intended surveillance, that it will take place.
  • The surveillance devices are clearly visible.
  • Signs are clearly noticeable at each entrance which point out that employees may be recorded in the workplace. 

Even though the employer did not take the footage in this case - with the recordings instead being made by a colleague of Ms Tavassoli - the fact that the employer relied upon the footage to discipline Ms Tavassoli was considered by Commissioner Riordan to be a sufficient breach of her privacy to run afoul of the Act. 

The Key message FOR EMPLOYERS

The takeaway message for employers here is twofold. Firstly, it is always essential that employees have the opportunity to respond, in detail, to allegations which are made against them, as well as being presented all the evidence which is being relied upon to support the allegations. Secondly, employers must be careful not to rely upon inappropriately obtained evidence which contravenes privacy legislation or any other relevant laws. Employers must comply with any applicable surveillance laws when relying on such evidence.   

Should you require an external workplace investigation into allegations of misconduct, contact WISE Workplace

Performance Management to Avoid Bullying Complaints

Vince Scopelliti - Wednesday, July 19, 2017

Staff who are subject to increased employer supervision or performance management may feel that they are being personally victimised, attacked or even bullied.

It may be difficult to distinguish between reasonable performance management and bullying, especially when the worker involved is sensitive by nature, has personal stress factors, fails to acknowledge their own performance shortcomings or is emotionally reactive. This leads to an increased risk of bullying complaints when staff members are being performance managed. 

So how can employers use performance management steps to manage their staff to meet operational requirements without risking censure, criticism or complaints of workplace bullying?

When is performance management reasonable?

The following guidelines apply to reasonable performance management:

  • 'Reasonableness' should be judged objectively, rather than basing it on the worker's perception;
  • Management actions do not need to be perfect or ideal to be considered reasonable;
  • A particular course of action may still be 'reasonable action' even if all the separate steps, when seen in isolation, are not;
  • Consideration may be given to whether the management action was a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. 

To guard against the perception of bullying, employers need to ensure that they: 

  • Provide clear instructions, information and training to all employees;
  • Establish that employees are aware of and understand the business' performance and disciplinary policies and procedures;
  • Take management action that is justified and follow a process that is procedurally fair and consistent;
  • Provide timely feedback to staff when the issues arise
  • Document all performance matters and disciplinary steps clearly. 

Even though the process is designed to be cooperative and consultative, employees may still object to performance management and complain that they are being bullied, victimised or harassed.

The Commonwealth at section 789FD Fair Work Act 2009, specifically states that an employer is not bullying their staff if they engage in 'reasonable management action carried out in a reasonable manner.'

In practice, reasonable management (as opposed to bullying) means that:

  • A course of action can be considered reasonable from an objective examination even if an individual step in the process is not.
  • Any action taken must be lawful and not 'irrational, absurd or ridiculous'
  • Management should ensure compliance with policies or procedures that are established and already in place. 

Regardless of how aggrieved the employee feels, or how they perceive their employers actions to be intended, a tribunal will consider the reasonableness of the performance management action objectively.  

WHAT IS A REASONABLE MANNER?

What is 'reasonable' is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. 

This may include consideration of:

  • The particular circumstances of the individual involved
  • Whether anything should have prompted a simple inquiry to uncover further circumstances
  • Whether established policies or procedures were followed, and
  • Whether any investigations were carried out in a timely manner. 

The Role of the performance improvement plan (pip)

When used to its maximum potential, a PIP can: 

  • Identify areas where individual employees are under performing or failing. 
  • Provide suggested methods whereby employees can improve their performance, whether to meet minimum required competency levels or, at the other end of the spectrum, or to assist employees to excel in their roles. 
  • Provide objective evidence in circumstances where an employee's performance is substandard and it is anticipated that their employment may eventually need to be terminated;
  • Help managers and employers observe patterns in employee behaviours and performance to identify factors contributing to poor performance. 

 It is important that PIPs are drafted in accordance with the organisation's workplace behaviour management policy. 

Managers should take the time to:

  • Determine the specific root cause of the poor performance;
  • Communicate with the employee in an open, clear and practical manner;
  • Focus on the problem, not the person; and
  • Set goals in consultation with the employee so that the employee knows what the specific concerns are and how to improve their performance. 

tHE three golden rules for employers

To guard against the increased risk of performance management bullying complaints, employers seeking to implement a performance management regime must ensure that:

1. Each employee has a clear, logical, objective and easily accessible position description according to which they can be measured (and self-measure). 

2. The employer's desired improvement outcomes are objective, have been explained to the employee, and are clearly understood. 

3. The employee is provided with employer, and where appropriate, peer support, and guidance to assist them in achieving the desired performance outcomes. 

Following the three golden rules can help employers avoid unfounded claims of workplace bullying when they are improving the effectiveness of their business through performance management procedures. 

Should you require a workplace investigation to determine whether management action has been reasonable or whether it constitutes bullying, contact WISE Workplace

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

Building Rapport in Investigative Interviews

- Wednesday, April 12, 2017


All workplaces are at risk of allegations of bullying, harassment, discrimination or other claims of misconduct or inappropriate dealings. As such, all employers must be prepared to conduct investigative interviews to determine the veracity and accuracy of any allegations made against or by one or more of their employees.

Apart from properly eliciting the facts, perhaps the most important thing in conducting such interviews is ensuring that there is sufficient rapport between the interviewer and the interviewee. This connection can result in more information being obtained from the interviewee, and also help ensure that more truthful answers are provided.

So what are our top tips on achieving this?

1. TAILOR YOUR APPROACH

There is no "one size fits all" approach when it comes to building rapport in investigative interviews, it's about tailoring the approach to suit the particular circumstances and the interviewee.

For example, there is probably little point running through a standard set of formal questions when interviewing children. Similarly, an employee who claims to be the victim of workplace bullying is unlikely to want to make idle small talk about how the company's netball team is faring in the local comp.

2. ASK QUESTIONS IN THE RIGHT WAY

It is crucial that interviewers are competent and know which questioning techniques to use in which situation in order to put the interviewee at ease and obtain quality information.

For example, taking the interviewee back in time to when the incident occurred can help with recall, while asking open-ended questions can assist in obtaining more detailed explanations.

3. MAKE THE INTERVIEWEE COMFORTABLE

One of the most important aspects of building rapport is to make sure the interviewee is relaxed. Ensure that there is adequate privacy for the interview to take place away from the prying eyes and ears of co-workers, and offer comfortable seating and beverages. It is essential to create a sense of trust in the interviewee, by making them comfortable, conveying an impression of competence and expertise, and by actively listening to them. If this occurs, the interviewee is more likely to feel comfortable divulging information.

4. MIRROR THE INTERVIEWEE TO BOND WITH THEM

A tip frequently utilised by law enforcement officials in conducting investigative interviews is to mirror the interviewee. This involves actively listening to what the interviewee is saying and "mirroring" or reflecting their mental state and emotions, such as expressing frustration about the way in which they have been treated, demonstrating understanding and validation of their feelings, and acknowledging that their experiences are significant and potentially very destabilising.

Mirroring is also closely aligned with the principle of reciprocity, which suggests that interviewees will respond in a way which matches the interviewer's attitude towards and interaction with them. An empathetic or obviously interested interviewer will doubtlessly elicit more information than one with an aggressive or unpleasant style.

It is particularly important to find factors of commonality and shared experiences if there is a power imbalance between the interviewer and the interviewee (such as a relationship of employer and employee or an external workplace investigator who is effectively a stranger). This can be as simple as discussing recent weather events, the traffic or sporting teams.

OBTAINING PROFESSIONAL ASSISTANCE

Conducting investigative interviews generally can be challenging. For more tips on how to undertake interviews in the workplace, participate in one of our upcoming advanced training courses on conducting investigations.

Alternatively, if you prefer to obtain expert assistance from the get-go, Wise Workplace provides full investigation services. Contact us today to find out how we can help with your workplace investigations.

Bullying: What's the Role of Leadership?

- Wednesday, April 05, 2017


Workplace bullying is somewhat of a scourge in modern society. Broadly categorised by Reach Out Australia as any behaviour which is physically, mentally or socially threatening and takes place in the employment context, it can have an enormous impact on staff effectiveness, employee retention, the number and type of worker's compensation claims and, of course, employee happiness.

Legally, employers have a responsibility to ensure that all workplaces are safe for their staff, including preventing workplace bullying. So what are the key things business leaders should be doing to tackle this problem?

1. PREVENTION IS THE BEST CURE

Perhaps the easiest way to deal with workplace bullying is to try and ensure that it does not happen. As suggested by Safework Australia, workplace bullying can best be prevented by the leadership team identifying potential risk factors within the organisation for bullying.

In addition to ensuring that new staff, wherever possible, are likely to mesh with other employees and not experience personality clashes, this process should also involve regular consultation with employees as to their levels of job satisfaction and the quality of interaction with co-workers, conducting exit interviews with departing employees, obtaining regular feedback and ensuring that there are detailed incident reports recording complaints and other potential instances of workplace bullying behaviour.

Being aware of possible triggers for workplace bullying can also be an effective strategy, for example, awareness of the various leadership styles in the organisation. Ensuring adequate communication between management and employees and requesting forthright feedback on work styles and interactions can help to reduce the risk of workplace bullying significantly.

2. LISTEN TO THE ALLEGED VICTIM - AND THE ALLEGED PERPETRATOR

It is important for leaders to be empathetic and open when speaking with a claimed victim of workplace bullying. Remember that the person alleging bullying, whether this has actually taken place or not, is already harbouring strong negative feelings about the workplace, or at the very least certain people in the workplace.

A heavy-handed or suspicious approach by the employer is likely to further upset the employee and worsen the ongoing impact and consequences of the bullying. At the same time, a leader investigating a workplace bullying claim does not need to blindly accept everything put forward by the apparent victim.

Both the "bully" and the "victim" are the employer's responsibility, and both are therefore entitled to have their full version of events listened to and acted upon appropriately.

3. TAKE DETAILED CONTEMPORANEOUS NOTES 

In the worst case scenario, an employee's bullying allegations may become the subject of legal proceedings.

This means a record of conversations and interactions between senior staff and claimed victims of workplace bullying may become essential evidence. In any event, regardless of the possible outcome, it is always best practice to ensure that all conversations with management are properly recorded, not least to make sure that further claims of workplace bullying are not levelled against management!

4. ENSURE IMPARTIALITY 

Depending on the size and type of your workplace, ensuring that investigations are conducted impartially may be difficult. In certain cases, it may be more appropriate to engage external workplace investigators to review workplace bullying complaints.

However, if employers choose to keep investigations in-house, prejudgement of the ‘facts’ or a bias toward one side or the other must be avoided. Where possible, it can be helpful to task someone who doesn’t work directly with either party with the investigation.

Negotiating the many tricky aspects of investigating workplace bullying complaints can be very stressful. At Wise Workplace, we provide advanced training courses in conducting workplace investigations, to make you and your leadership team as self-sufficient as possible. Register for an upcoming course date now.

Conflict in Volunteer Organisations: Lessons from the CFA

- Wednesday, December 14, 2016

The CFA dispute between paid and unpaid volunteers has been a salutary tale for any Australian organisation with a mix of volunteers and paid workers. In many cases, these groups work together in relative harmony. After all, paid staff and volunteers tend to share similar values and goals in these workplaces.

But how, when and why do things tend to go awry for volunteer-dependent organisations?

We examine the particular ‘hot spots’ within this space, including the underlying cultural tensions that can balloon into all-out conflict in the volunteer-based workplace, and set out simple tips for diffusing tension within this important segment of the Australian workforce.

Roles and resourcing

Many small charities and non-profits begin operations on a few dollars, a band of passionate volunteers and a dream to ‘do good’ in the world. As service demand grows – very likely when free or low-cost community services are provided – executives within a charity can quickly find themselves scrabbling to deal with competing legal, accommodation, client, staffing, volunteer recruitment, cash flow and supplier issues.

It is perhaps no surprise that the task of addressing cultural issues can quite rapidly shift down the list of priorities in volunteer bodies. Take for example the common disparity between the numbers of paid and volunteer staff. Dollars are sparse and it can seem logical to invest in the recruitment of an unpaid force of volunteers. Yet large numbers and intermittent shifts for volunteers can leave paid staff feeling confused and undervalued, particularly if the role of paid staff is overlooked in the effort to make volunteers feel appreciated.

Perhaps unsurprisingly, paid workers might then draw information and resources closer to their chests in an effort to protect their positions in an uncertain work space.

The volunteer’s dilemma

On the other side of the issue, volunteers can feel as though the treatment from paid staff in unfriendly and unhelpful. Intent on carrying out a community service, volunteers can find themselves excluded from knowledge and decisions to which paid employees are privy. Before long, an ‘us versus them’ mentality begins to grow. Yet all of this might go undetected by management. With important work to carry out for the organisation, issues of culture and conflict can quite understandably become overlooked. However, we do so at our peril – as the CFA debacle has so clearly illustrated.

So protracted has the struggle been between paid and volunteer Victorian firefighters that the federal government has felt compelled to get involved with a controversial amendment to the Fair Work Act 2009. This demonstrates just how far worker/ volunteer animosity can go if left unaddressed by employers.

Solving the conflict

We cannot emphasise enough the importance of early action when clashes between paid staff and volunteer workers begin to surface. At the first sign of difficulty between these groups, consider conducting a thorough workplace investigation to establish the nature and extent of the cultural problems.

Internal investigations can be helpful, yet there are many factors to consider when collecting data. These include strict adherence to the requirements of fairness, impartiality, privacy and completeness when conducting the inquiry.

In many cases it can make sense to call upon the services of a workplace investigation professional to assist with or carry out the process. Unfortunately, when some employers attempt to look into general issues of workplace culture themselves, well-meaning mistakes can be made in trying to ‘get to the bottom of this’. And the detrimental consequences can be considerable – should bullying or discrimination issues arise, a flawed investigation can mean that future formal processes will be hard to successfully manage.

Being forewarned

In volunteer-based organisations, it is essential that core business is not made the only issue that is worthy of energy. After all, the noble endeavour of fighting fires for the Victorian community has now become a poor second to the relentless issue of conflict between paid staff and volunteer firefighters. There are many pro-active and positive methods for dispelling conflict between the people in such worthy organisations. The key is early action, involving a swift, professional and fair investigative process into any brewing cultural difficulties.

Keeping up with process and procedural fairness in the workplace can be challenging. That's why we have developed the Workplace Investigation Toolkit.   Provide best practice principles and keep your business out of the Fair Work Commission.   Get yours here today.


Monty Pythonesque Defence of Case Costs $87,000

- Wednesday, July 13, 2016
Monty Python-esque Defence of Case Costs $87,000

An “absurd” defence of an unfair dismissal case, which a Fair Work Commissioner likened to a Monty Python sketch, has ended up being very costly for one employer, and provides an important lesson for any organisation involved in legal action. 

The recent decision on costs in Somasundaram v Department of Education & Training,North-Eastern Victoria Region, handed down at the end of June, highlights the need for organisations to appreciate that in some circumstances they will not succeed in litigation. Whether in the role of applicant or respondent, it is an essential element of participating in legal proceedings to understand the difference between an appropriately maintained claim/defence or one which is without merit. 

It is then essential for an organisation to take steps and make decisions based on appropriate legal advice, a coherent strategy and an honest assessment of the likelihood of success – and never on the desire to be "right" or because of "the principle.”

Somasundaram demonstrates just how horribly wrong it can go when a party remains entrenched in its position despite its better judgment – to the tune of almost $90,000. 
The background of the case
Ms Somasundaram was a teacher at Sherbrooke Community School. She had previously made bullying complaints. In 2015, Ms Somasundaram's employment at the school was terminated for "disgraceful, improper or unbecoming" conduct. Her apparent crimes? Airing a list of grievances at a school meeting, emailing complaints and criticisms of colleagues and the school's leadership to the teaching distribution list, and then ignoring an instruction to cease. Ms Somasundaram accordingly filed an application for Orders to Produce against the Victorian Department of Education & Training (DET). 

After the hearing had already begun, the DET conceded that the dismissal could be considered harsh and accepted that reinstatement was appropriate. The DET further withdrew the assistant principal's evidence and other witness statements as it concluded that there was no need for hearings to continue. 

However, despite these concessions, the DET attempted to maintain an argument that the teacher should not be reinstated because there had been an "irretrievable breakdown of trust and confidence" between the school and the teacher. The DET then sought to introduce new evidence and attempted to file new submissions as to what constituted harshness. 

In July 2015, Commissioner Ryan determined that the DET was unreasonable in attempting to force the teacher to reply to its arguments and respond to its defence in circumstances where it had already conceded that the dismissal could be considered harsh. 

Indeed, Commissioner Ryan considered it inappropriate that the DET had responded to the remedy application at all, given its concessions and acknowledgement that doing so was "without reasonable cause", and concluded that the DET's attempts to introduce new witnesses and evidence at a late stage in the proceedings was inappropriate. He therefore ruled that Ms Somasundaram's dismissal was "harsh, unjust and unreasonable." 

In October 2015, the DET was ordered by FWC Deputy President Anne Gooley to reinstate the employment of Ms Somasundaram. In addition, Ms Somasundaram was awarded full back-pay of her salary to the date of her dismissal in February 2015.
So what did the DET do so wrong?
According to Commissioner Ryan's first decision on costs in March 2016, the DET's arguments that Ms Somasundaram should not have her job back and attempts to maintain that the DET had a valid reason for her dismissal were akin to the insistence of the shopkeeper in the much-loved Monty Python "Dead Parrot" sketch that the titular bird was not in fact deceased but was simply "resting", despite the bleedingly obvious evidence to the contrary. 

The DET may have been able to maintain this argument – if it had not already conceded that its decision for terminating the employment was harsh, and withdrawn evidence. 

Commissioner Ryan also made reference to the Black Knight sketch, saying “The humour in both of those Monty Python sketches arises from the sheer absurdity of the situation portrayed. The same sense of absurdity is found in the actions of the respondent.”
Lessons for all employers
The FWC ordered that the DET pay $87,000 towards the legal costs of Ms Somasundaram. If the DET had accepted early on that it had harshly dismissed the employee and submitted to the FWC for sentencing, it could have saved almost $90,000. The lesson here? Decisions are ultimately decided on fairness, and organisations must reflect at every stage of a case on the reasonableness of their actions.        

Intent to Harm: Does it Matter in Workplace Bullying Cases?

- Wednesday, June 22, 2016
Intent to Harm: Does it Matter in Workplace Bullying Cases?

We understand that it can seem unfair when the label ‘bully’ crops up in the workplace – particularly when no harm was ever actually intended. We’re all aware of the importance of intent when we look at matters in the criminal space; without identifiable intent, any prosecution team certainly faces an uphill battle. 

However in the civil sphere where workplace law resides, intent is generally not an issue. With some understanding of the risks of running a business, the law aims to provide a relatively even-handed method for sorting out accidents, injuries and mistakes at work. Intention to cause harm tends to go on the backburner in these situations.

Various forms of harm

In the case of bullying claims, it can come as a surprise for many employers that innocent slip-ups and unpopular leadership methods on the part of management can nevertheless be construed as bullying. The recent matter of Carroll v Karingal Inc [2016] FWC 3709 (8 June 2016) demonstrates that even though no harm might be intended, the words and actions of managers and employees can certainly lead to a successful claim of bullying. 

In this matter, Commissioner Tanya Cirkovic heard numerous reports from staff about unfair process requirements, micromanagement and inappropriate comments that accompanied the appointment of the business’s audit and risk manager in 2013. His staff pointed to a manager who ‘said all the right things’ yet embarked on a process of markedly inefficient changes, unrealistic expectations for the team and troublingly racist remarks directed towards a team member.

Inappropriate behaviour and humour

Significant issues identified by Commissioner Cirkovic included the introduction of an inefficient system that resulted in double-handling and a demoralising spate of under-performance for the team. Further, inappropriate remarks and behaviour included laughing at an employee’s accent and remarking on her “Checklish” – a comment on her Czech heritage.

Crucial – avoiding micromanagement

Most significantly, the Fair Work Commission (FWC) took note of the manager’s relentless micromanagement of the employees under his supervision. Ultimately, faced with a sub-standard new system and a supervisor who both demanded compliance and monitored staff with excessive attention to detail, two staff members were able to successfully establish that workplace bullying had occurred.

A cumulative effect

Interestingly, the FWC noted that in all probability the manager had not intended to cause harm through his behaviour. His endeavours to please the employer and provide strong leadership were clear in the evidence produced. However, his seemingly innocent and even industrious intentions were irrelevant to the finding of bullying. The cumulative nature of his indiscretions was also key. 

"I am satisfied that the cumulative effect of his conduct and behaviours was one of significant and systematic micromanaging," Commissioner Cirkovic said.

Bullying – reducing the risks

Carroll v Karingal Inc provides a salutary example of the complex realm of workplace bullying claims. For employers, it pays to understand which behaviours within the team could be seen as bullying – no matter how well intentioned. Nuanced training regarding appropriate behaviour and potential bullying in supervisory roles should be provided throughout the organisation. 

Workplace bullying can be a subtle situation of human interaction gone wrong, and should be front-of-mind in any analysis of potential risks in the workplace. 

If you need to address bullying issues at your organisation, Wise Workplace can provide risk analysis and tailored training. Contact us to find out how.