The Cost of Ignoring Verbal Reports of Sexual Harassment

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

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

Daring to tell 

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

Silent damage

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

Listen out

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

Lingering pain

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

Words are enough 

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

Act early 

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

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

How Do I Know Whether to Mediate or Investigate?

- Tuesday, November 11, 2014
mediate or investigate?
How Do I Know Whether to Mediate or Investigate?

The number and type of differing workplace problems is certainly considerable. It is no surprise then that the mechanisms for tackling these various grievances and disputes are similarly numerous. One common question that managers and workplace consultants face is how to choose between differing approaches to dispute resolution. In this article, we take the example of mediation versus investigation, and consider some of the variables that might come into play when deciding on the right path. 

Mediate the misunderstandings 

Often when a mediator (internal or external) is briefed about a problem between colleagues, the key term that crops up is tension. Roles, workspaces, workload division, and different communication styles are just some of the flash points that can cause dysfunction between colleagues and across work sites. The issue might involve two or more people, and more often than not there is roughly equal power between those involved. Mediation is often the go-to strategy for such workplace issues. Mediation aims to identify core problems, enhance understanding, and facilitate workable solutions for the participants to try. As a mediator, it is not within your scope to mandate any set outcomes. Yet it can certainly be helpful to use your knowledge of the situation and the workplace to make suggestions. Ideally though, the parties will have returned to a point of healthier communication and will be able to formulate outcomes and goals that are mutually beneficial. 

Investigate the irregularities 

On the other hand, a workplace investigation is based upon a different set of premises. Unlike mediation – which can often be about simmering disagreements – an investigation will most likely be appropriate where something has already allegedly gone wrong. Unlawful behaviour such as bullying or sexual harassment might have occurred, or suspicions might have started to mount regarding possible fraudulent activity. Rather than seeking to dispel relational and operational dysfunction such as would occur in mediation, the workplace investigator is often utilised to get to the bottom of potential wrongdoing. One or multiple staff members might be examined, depending upon the activity under investigation. Unlike mediation, only one person would attend an interview with the investigator at a time. Confidentiality is extremely important and investigators must be vigilant in ensuring procedural fairness at all times. 

What to watch in mediation

Mediation can be unsuitable in certain circumstances. For example, if an allegation of sexual harassment has been made by an administrative assistant against her line manager, then mediation would not be the appropriate forum for dispute resolution. There is a clear power differential in terms of the parties’ relative positions in the organisation. The openness and mutual contribution required for successful mediation is absent in this respect. Further, considering the alleged unlawful behaviour that has occurred in this instance, the employer has significant duties around the safety of the administrator, investigation of the allegations, and a duty to prevent any further harm or injury via re-traumatisation. Investigation would almost certainly be a preferable course of action. 

Unsuitable investigations

 A workplace investigation can also be an unsuitable option in certain circumstances. Take the situation where bickering and antagonism is occurring within a team, with a danger of escalating into workplace bullying. To start an investigation complete with closed-door interviews and confidentiality requirements would do little to dampen the team’s difficulties, and might in fact serve to inflame rumours and enmity. And if one person is questioned more than others, this might raise the very ire that the employer is hoping to dispel. In this case, an investigation is simply too heavy-handed an approach. Mediation between the key protagonists – facilitated in a way that allows feelings to be vented, issues to be examined, and is aimed at mutually agreeable solutions – is almost certainly the preferable approach in this instance. 

Surveying the scene

 In deciding whether mediation or an investigation will be suitable, it is important to take stock of the situation and the nature of the specific workplace problem. If it appears that wrongdoing has occurred and facts need to be examined and collated, a workplace investigation will often be the best choice. Where equal parties need a space to air grievances and to work towards solutions, mediation provides an appropriate space within which such conflict can be resolved. Always take enough time to accurately assess the scene, to ensure that your choice of approach is the best fit for that circumstance.

WISE Workplace provides certified mediators and fully licenced investigators to handle a range of workplace conflicts and complaints.

When Your Risk Assessment Differs From Official Findings

- Tuesday, November 04, 2014
Assessment versus Findings
When Your Risk Assessment Differs From Official Findings

When something goes wrong at the worksite, business owners and managers are often left to scratch their heads not only about how the event occurred, but also about the investigative process that follows. Given that a workplace investigator is an objective third party, workplace investigation reports can often raise issues that appear poles apart from your original risk assessment. In this article, we look at some of the common areas where your risk assessment for the business might be different from the findings of a workplace investigator. Importantly, we also provide tips about what you can do to address such disparities.

Currency of law and facts 
Risk assessments are ideally carried out regularly, utilising all available specialist information and laws concerning your particular workplace. In terms of workplace health and safety, plus industrial laws, it is not uncommon for changes to both statutes and cases to have an impact on workplace requirements. Without an understanding of the current legal state of play, you may have unintentionally overlooked workplace risks, which are then picked up by the workplace investigator. In this case, your risk assessment is out-of-date and can leave any number of circumstances unaccounted for. On the other hand, your risk assessment might in fact be based upon current legal and industry requirements – but the business situation may have changed. Extra staff, new premises or renovations might have created a problematic situation. If a workplace investigation delivers findings that show flaws related to currency of risk information, this can unfortunately be one of those situations of ‘knowing better next time’. But having regular risk assessments carried out by a trained internal or external professional can ensure that you have the best preparation for any future workplace investigation. 
Specialised knowledge
You may be of the opinion that your risk assessment differs from the investigator’s findings due to the investigator’s limited knowledge of your specialist work environment. It is legitimate to raise such concerns with the workplace investigator, particularly if the findings are likely to lead to further action. Remember though that it is not enough to talk in generalisations. Rather than saying: “I do have a safe environment and she knew not to use that ladder,” explain the detailed written policies and training that you provided about unacceptable/ acceptable systems of work and the place of particular items within that system. Note also that it is much better to talk through your concerns about discrepancies during the workplace investigation itself. Investigators are often disinclined to re-open a completed investigation based upon the thoughts of one party. Be open and upfront with the workplace investigator throughout, providing all available information on risk assessments, policies, procedures and staffing. 
Staying up-to-date
A risk assessment should show the risks facing the business, and your educated decision about how or whether to carry the potential for risky outcomes. It has to be realistic and as part of this, it must be current. Business is no place for wishful thinking, and such regular analyses allow you to see the risks with clear eyes. To keep future workplace investigation findings as closely aligned as possible to your risk assessment, current knowledge and understanding of the legal and industrial framework that applies to your specific industry is vital. You or a trained risk professional should know the current risk level for your specific business, and any steps being taken to reduce the burden of risk. Forewarned is forearmed, so it pays to prepare your workplace for the close scrutiny that will inevitably accompany any workplace investigation.

Investigating Fraud? When Do You Have to Tell the Respondent?

- Tuesday, October 28, 2014
Investigating Fraud
Investigating Fraud? When Do You Have to Tell the Respondent?

The possibility that an employee might be committing fraud can raise many emotions. As with other misconduct, disappointment can be pronounced. When fraud is suspected against either the business itself or customers, plain anger towards the potential culprit can also arise. It is this high emotion that creates the necessity for cool heads in any fraud investigation. If you are involved in an investigation where fraud is alleged, timing and a methodical plan are crucial to ensure that the process is sound. Depending upon the nature and extent of the fraud, the time at which the respondent should be told and/or interviewed can vary. The quality of any documented evidence you collect can have a notable effect on admissibility or weight in any later court proceedings. For this reason, adhering to procedural fairness in the workplace investigation will be vital. 

Get prepared

Your workplace investigation plan should include a basic timeline of actions. Top of the list will be the gathering of information relevant to the allegations of fraud. Be careful about how and from whom this will be collected. At this stage, as few people as possible should be involved in order to maintain confidentiality and the integrity of the investigation. Collect interview notes, documents, relevant screen dumps and any other physical evidence that purports to implicate the respondent in the fraudulent activity. This is also a good time to fully assess any possible motivations or overt emotional issues with the informant/s. Any later interview with the respondent needs to be based upon available facts – not any aspersions cast by an angry individual. Make a decision on any need for immediate action, particularly whether police need to be called if an employee is AWOL with fraud proceeds, for example, or data or money is currently being misappropriated. Once you have enough valid information, decide upon your next steps. It may be that the allegations against the respondent are clearly groundless. Perhaps there was a mere accounting error, for example. But if the allegations appear to have some substance, it might well be time to draft appropriate interview questions. Sometimes, the first person you talk to after the claimant is the respondent - but only after other documentary evidence has been secured. This gives them an early chance to explain their story, plus reduces the chances of workplace gossip or slander about the respondent snowballing unfairly. 

The interview

Having secured an interview time with the respondent, think through the nature and order of questions that you need to ask. The basic purpose of the meeting should be explained, without any blunt statements or accusations about the alleged fraud. It can help to be quite specific about the concerns raised by any informants: “There are concerns being raised about some anomalies that Brian found in the customer invoicing drive,” or “Your employer has some concerns about repeated discrepancies in reconciliations over the last six months”. Recalling the imperative for procedural fairness in the workplace investigation, maintain this objectivity throughout the remainder of the interview. Allow sufficient time for explanations, and ask inquisitive questions that demonstrate your open mind throughout the process.

Cater for reactions

Fraud is a serious accusation. Whether or not the respondent is involved in such behaviour, their individual emotions of indignation, shame and/ or anger might well surface. Assess whether the interview needs rescheduling, if a support person is needed, as well as any requests for legal representation. Also give the respondent options for response. Indicate that an immediate response is not required and they might prefer to respond at a later (agreed) time. Explain the remainder of your investigation plan and associated timeline for actions, in order to provide some sense of order to what might well be a moment of shock for the respondent. 

Cool heads rule 

The alleged fraud might tempt employers, owners and managers to simply confront the respondent in angry indignation. Perhaps understandable – but such action must be avoided in order to maintain the integrity of the investigative process. Remember, your objective in carrying out a well-constructed workplace investigation concerning the alleged fraud is to gather quality evidence in a fair and consistent manner. How and when to let the respondent know can be a delicate matter, dependent upon the nature and urgency of the facts in question. 

For training in the best ways of handling this type of investigation, WISE Workplace offers a Certificate IV in Government Fraud Control and a Diploma in Government Fraud Control.

What are Terms of Reference? Do You Need Them?

- Tuesday, October 14, 2014
Terms of Reference
What Are Terms of Reference? Do You Need Them?

Terms of reference (TOR) form a foundation stone for the commencement of any workplace investigation. Much like a recipe, they set out the core people and components of the investigation, as well as the boundaries and methods to be utilised. Without solid terms of reference, an employer’s well-meaning attempt to gather information and fix a workplace problem can fail, or cause even more problems. As well as establishing an understanding of what is required and by when, TOR create an excellent framework for the more detailed investigation plan. Terms of reference can prevent such pitfalls as misunderstandings, unintended breaches of privacy, and negative effects on relationships. 

When should the TOR be developed?

There are no hard and fast rules regarding how and when TOR should be drafted. Some employers start with a Statement of Complaint and flesh out the terms of the proposed investigation based upon this central concern. Others call upon the services of a workplace investigator to actually assist in drafting TOR, particularly where a workplace problem is vast, sensitive, and/or complex. Sometimes it is important to wait and collate some preliminary materials prior to pinning down the exact terms of the investigation. In any event, it is important to start working on your TOR sooner rather than later, and certainly once a workplace investigation is confirmed.  

what will the tor include?
The terms of reference represent what the employer and the workplace investigator have agreed upon. Not surprisingly, both parties are entering into a human territory where all sorts of sensitivities can crop up – emotional, occupational and legal. It is common sense that the TOR will be designed with these issues in mind, creating a clear framework for the investigation. In essence, the TOR should contain the ‘three R's’ of an investigation – the reason, the remit (or scope) and the report. 

The reason section of a workplace investigation TOR will include the general purpose of the investigation, the people and incidents known to be involved, and the types of questions that need answering. The remit or scope sets out the boundaries of inquiry, including documents, people and activities that can be explored by the investigator – and those that cannot. It also includes what is required from the investigator in terms of deliverables, such as interim reports and final actions. For example, this part of the TOR will specify if the investigator is simply fact-finding or is working with a view to dispute resolution or discipline. The TOR then specify what form the final report will take, who can be supplied with copies, and when it is due. Where no report is required and an oral discussion is preferred, the scope and purpose of this discussion should be noted.

What can the TOR achieve?
 As mentioned above, the circumstances leading to the need for a workplace investigation can be quite fraught. Concise and clear terms of reference help to ensure the smooth running of the investigation. They can prevent irrelevant issues being raised (such as old wounds) and provide an element of professional objectivity. Considering the need for procedural fairness in all aspects of employment law, TOR provide the means by which emotive or biased considerations can be eliminated from the investigation. Further, sound terms of reference provide an excellent starting point for the drafting of a workable investigation plan. For both employer and investigator, the chances of misunderstandings are reduced in relation to the many aspects of the investigation’s reasons, remit and desired report. Put simply, good terms of reference can be a guiding light through the sometimes-choppy seas of a workplace investigation.


Is an Employee Obliged to Divulge Facts About Their Partner?

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

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

Keeping quiet

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

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

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

Confidentiality Should Be No Surprise

- Tuesday, September 16, 2014

Confidentiality Should Be No Surprise

In a recent case involving a union delegate acting as a support person and a breach of confidentiality, the Fair Work Commission noted that those acting as support people during workplace disciplinary processes must be clearly informed by the employer about their obligation to maintain confidentiality. This might seem to some to be a fairly common-sense proposition, hardly requiring particular clarification on the part of the employer. That is, if asked to support a colleague during a disciplinary interview, it should be quite obvious that the sensitive subject matter indicates a need for utmost confidentiality. And, if following a disciplinary meeting, the worker’s support person then provides that confidential material to others, it would perhaps be no surprise if the employer took action against the support person.

Making it clear

Yet, in CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 (MSS), a support person named Leighton did in fact express such surprise about the confidentiality requirements arising from his involvement in a colleague’s disciplinary interview. Leighton was asked by his co-worker Arnold to attend the interview as Arnold’s support person. After attending the meeting in this capacity, Leighton then proceeded to distribute to colleagues via email certain written information provided in confidence during the disciplinary process. The core issue in the case was actually whether the employer’s decision to issue Leighton with a final written warning was unnecessarily harsh in the circumstances. Before traversing that issue, Commissioner David Gregory was very clear in noting the basic remit of any support person’s obligations in the context of a workplace investigation:

Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times. [at 49]
Clarity of roles

Commissioner Gregory noted that Leighton’s particular role in the workplace required some consideration. He was a union delegate of the CFMEU at the MSS worksite, as well as being actively involved in other union activities across Victoria. The Commissioner stated that this position in the workplace could be seen in two lights. As a delegate, he should have been aware of the requirements flowing from workplace investigations. Yet considering his natural tendency to want to actively assist all workers at the site, his dissemination of this particular information arising from Arnold’s meeting was perhaps understandable.

A duty to inform

Other elements of Leighton’s behaviour and work history were noted, including a formerly unblemished employment record and his apology for the unintended breach. He maintained throughout that he simply did not understand the need for confidentiality in the disciplinary context. On this point, the Commissioner noted that employers are obliged to inform workers clearly and unequivocally of the need to maintain confidentiality about any information that arises in their capacity as a workplace support person. This should occur at a number of junctures during employment, including at the commencement of any workplace investigation in which they are involved. The FWC ordered a lessening of Leighton’s sanction, from final written warning to a written warning.

Support with information

As can be seen from this case, even for those regularly involved in workplace investigations, employers must take care to clearly and unambiguously set out the requirement of confidentiality. It can never be assumed that a person would ‘naturally’ be aware of their obligations in this context. It is common for union delegates to be involved in workplace investigations as support people. Such workers should be reminded that once in the role of support person, they are in attendance purely to support their colleague and to ensure a fair process. Clarify that any impulse to disseminate meeting outcomes for the perceived good of all colleagues, for example, must be resisted. Setting out possible actions to be taken in the case of a breach of confidentiality would also go some way to assisting support people to exercise the discretion required in workplace disciplinary investigations.

Keeping confidence

For employers or HR departments working through a workplace investigation, or simply wanting to enhance employee knowledge of confidentiality requirements, it is essential that the information provided is clear and accurate. To avoid any ‘surprises’ about the need to maintain confidence in investigative processes, get in touch to see how we can assist with your specific requirements. WISE Workplace provides a number of one-day investigation programs. To find out more information about programs tailored to your workplace, contact Harriet Stacey on 1300 580 685.

Basic Risk Assessment for Employees Working with Children

- Tuesday, September 09, 2014

Basic Risk Assessment for Employees Working with Children

It’s a testament to how far we have come as a society that we now work tirelessly to ensure the protection of our children. And in Australia, each state government has answered the call to assist in this endeavour by introducing rigorous background checks and mandatory certification for all adults who care for or engage with our kids.

Yet while the current basic card system has been incredibly useful in preventing certain undesirables from obtaining paid or volunteer work with children, it pays for employers to take further steps whenever your employees are to be working with children. Here, we run through the elements of a basic risk assessment.

Who will be working with children?

Let’s say that you are considering taking on a person to work for your organisation. At this early stage of interacting with a prospective recruit, it is crucial to gain a rounded picture of who he or she is. The first step of course is to obtain a certified copy of their working with children card (however it is named in your jurisdiction), plus check the number online to assess validity. This is a non-negotiable component of your risk assessment. It is sad but true that some of the least-appropriate persons seeking child-related work can seem quite nice or normal in settings such as employment. An objective check of their historical behaviour cuts through any uncertainty. It is also essential to conduct thorough referee checks, particularly mentioning to the former employer that there are children in your workplace. And don’t underestimate the interview process for ascertaining their history and motivations for working with children.

And children might not only be clients of your business – you might in fact employ children or have them on site on a work experience, volunteer or trainee basis. When employing adults to work beside children in this capacity, it is vital that you maintain a similar vigilance at recruitment and beyond. Unfortunately, some predatory types can target not only children but also other relatively vulnerable individuals in the workplace. For many children in a new role or work experience placement, they can be very keen to be seen as bright, friendly, willing and capable. This can provide a window for immoral adult employees to take advantage of such enthusiasm. Knowing that abusive behaviours towards children can commence with seemingly innocuous - yet insidious - grooming behaviours, it is crucial to monitor employees for any signs of potential impropriety.

Be sure also to keep age differences in mind, and note the differing needs for care and protection dependent upon the age of the child in question. For instance, a friendship between 17 and 19-year-old workmates might not have the same implications as that of a 14-year-old work experience child under the management of a 40-year-old manager.

What is the child-related work at your workplace?

Employers shouldn’t just be analysing risk in relation to potential dangers to children. At a broader level, you might also need to gauge the suitability of the person to be interacting with small, active, rowdy and sometimes stressful young humans! Risk in this context can be a two-way street. Your risk assessment should include an activity-based analysis of the match between your organisation and the potential recruit’s competencies. Considering the physical and mental stamina required in some child-related work, it is important to assess the employee’s capabilities related to the particular child age group/s and activities. For example in sports-based environment with teenagers operating as both staff and clients, you will need an analysis and strategy regarding any adult employees who also work in that space. For any employees engaged to care for very small children and babies, be sure to examine all regulations concerning child/carer ratios and physical safety requirements.

Where are employees working?

The place where your employees are working with children is also an important consideration within your risk assessment. For all people in attendance on the site – adults and children alike - it is of course essential that your premises are safe and conducive to the activities undertaken. Ensure that employees, particularly any new ones who are engaged in activities with children, are closely supervised in the employment space. It is important to assess if the skills and temperament presented at the recruitment stage are present and appropriate once in your specific workplace. If your employees are working with the children off-site, strategies around privacy, multiple workers with children and rigorous supervision of new recruits should be developed. Risk assessment of any non-employees who are near the children is also a necessary and related assessment that must be undertaken.

When are your employees working with children?

Pay attention to when your employees will be working with children. While it certainly pays to reduce risk as far as possible, stringent vetting requirements might not be applicable where contact with children is negligible or rare. For those employees who will be more regularly and closely involved in working with children, it is important to conduct an assessment of the timing of work, for example across the day or night. In long-hour crèches and youth housing sites, night-time work with children will require a careful risk analysis of suitability, safety and privacy issues..

Assessing risk, protecting children

For those employing staff to work with children, it is certainly prudent to conduct a basic risk assessment. Decisions regarding an appropriate level of risk that an organisation might carry must be balanced carefully.

In the context of employing people to work with children, the likelihood of the event occurring and the outcome if that event did occur will necessarily be weighed to establish risk.

Businesses have an understandable desire to succeed, just as charities, schools, not-for-profits and so on want to deliver excellent services. Yet when it comes to employing people who will be working with children, it is of course important to place child safety front-and-centre in all deliberations. Where or when you start with your risk assessment will vary. You might be starting a new venture, or conducting a risk assessment in relation to a going concern. First, write a list of all child-related activities and contacts known to occur in the organisation. Then collate all known requirements for child safety in both your area and your industry. Ask yourself to consider the likelihood of an adverse event occurring, should you not meet the standards set out. And the next question will be - if such an outcome eventuates, is this one that your organisation is prepared to carry?

As examples - the risk of abusive behaviours arising because you’ve recruited someone without a card, or have employed an adult to work unsupervised with children, or have left mixed ages on site in the evening – must be weighed against the legal, social and financial outcomes if any unfortunate event occurs. Only then can risk be meaningfully assessed.

By analysing the potential risks that arise when employees work with children, all people (big and small) can thrive in our workplaces.

Drafting Allegations the Right Way

- Tuesday, September 02, 2014

Drafting Allegations the Right Way

Whenever allegations of adverse conduct arise in the workplace, the relevant investigator or manager must think carefully about the way in which these are to be put to the person involved. Preparation is the key here – wherever possible, take sufficient time to organise and crosscheck your information about the relevant events or conduct before any allegations are communicated in person or in writing. Depending upon the severity of claims, a meeting where allegations are orally presented can be appropriate in some cases. In more serious matters, a formal letter might be necessary. And on occasion, both approaches will be combined. In any event, the allegations that are put to a workplace participant must be phrased carefully, accurately and impartially. 

The power of words

When allegations are raised in the workplace, emotions can run incredibly high. Rumours might snowball and accusations often fly – sometimes with unsavoury language and abuse included. The job of the workplace investigator – whether internal or external – is to unpack the emotional packaging of an allegation in order to locate the core issues. In drafting allegations, be sure to maintain a tone that is calm and disengaged from the situation.

Rather than ‘Tell us why on earth you called poor Jane an [expletive] on Monday for no apparent reason’, better drafting would be ‘an allegation has been raised that you spoke inappropriately to a co-worker on Monday. Would you please provide us with your response to this’.

With emotive words removed and a less confrontational tone employed, this draft takes a polite and professional approach. Emotional and factual red herrings can also lead to the investigation going off track. If the wrong questions are drafted and asked, the value of any resulting process or report can be negligible. Further, unless absolutely necessary for clarity, maintain confidentiality regarding the identity of others involved.

Maintaining impartiality

When drafting allegations for presentation to the alleged wrongdoer, it is vital that there be no sign of prejudgment on the part of the investigator. In our above example, the investigator’s communication of the allegation unfortunately resonates with prejudgment – it appears that ‘poor Jane’s’ version of events has been completely accepted as fact by the drafter. Procedural fairness in workplace investigations must be woven through the entire process, from receipt of the brief through to report finalisation.

Hopefully, workplace problems will be quickly resolved and all parties will amicably resume their activities as normal. But unfortunately history shows that the outcome of a workplace investigation can see issues escalate, even to the courtroom.

In such cases, how the alleged wrongdoer has been treated during investigations can impact upon the quality and even admissibility of evidence obtained. The Briginshaw principle establishes that the more serious the issue, the better the evidence must be in order to meet the balance of probabilities threshold. Where the questions and approaches used by an investigator are tainted by bias, a breach of natural justice will be seen to have occurred, and the resulting evidence might well be considered all but useless.

The drafting of allegations – a crucial time

Hopefully, by the time allegations are being drafted for presentation to the alleged wrongdoer, the workplace investigator has collected sufficient objective data to make the questions balanced and professional in their content. Each allegation should be dealt with separately and in plain language, to ensure that all relevant issues are aired and understood by the parties involved. Avoiding the rumour mill, maintaining discretion, and drafting with care will all work to assist the investigator in the development of well-communicated allegations.

In most cases, there will be specific policies and codes connected to the workplace. These should be requested and examined as part of the investigation. If it is alleged that one of these workplace codes has been breached by the act or behaviour in question, then this must be clearly stated in the allegation. The exact policy or code section should be noted and the connection between this and the alleged incident explained. Where the consequences of a breach are specified, this too should be drafted in plain language and put to the alleged wrongdoer.

Protecting Against Unwanted Sexual Advances at Work

- Monday, August 25, 2014

Protecting Against Unwanted Sexual Advances at Work

The definition of a workplace might seem relatively simple – the office, the work site, the place where you carry out your duties of employment. Yet a recent finding of the Full Federal Court has affirmed one judge’s ruling that the workplace can quite often extend beyond the four walls concept. It follows (as the majority of judges in this case recognised) that unlawful behaviour such as sexual harassment can occur within unconventional ‘workplace’ circumstances and venues.

Can a nearby pub be a ‘workplace’?

The case in question – Vergara v Ewin – involved unwanted sexual advances from a male contractor towards a female supervisor. Some of these occurred in the regular workplace, while other behaviour took place in venues that might ordinarily be considered off-site. One such place was a pub called the Waterside Hotel, in Melbourne’s CBD. The respondent stated that she moved a discussion about the unwanted advances out of the ‘regular’ office to the nearby pub, in order to feel safe with the applicant. She and the applicant had been alone at the office, and she wanted to continue the work-related discussion near other people. This became one of the harassment sites.

A question arose as to whether the Waterside Hotel could realistically be considered a workplace under s28B of the Sexual Discrimination Act, as in force in 2009. Firstly, the parties were found to be ‘workplace participants’ for the purposes of the Act, although the appellant was a contractor.

From there, the full court found that the pub was indeed a workplace in accordance with s28B(7): “A place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.”

In continuing to discuss the workplace harassment question, the parties were found to be carrying on the necessary work-related function while at the hotel.

Important lessons to be learned

The decision in this case raises important points for all workplace participants, whether they are employees or contractors. Unfortunately the scourge of sexual harassment continues to exist, and it is important to think through the potential situations that you may find yourself in if you are managing unwanted sexual advances from a colleague. Following a few simple guidelines can help you to protect yourself:

    • Be clear
    • Avoid alcohol
    • Avoid being alone
    • Report your concerns
Be clear

In this case, while the court agreed that the purpose of the meeting in the Waterside Hotel was to discuss the harassment, clearly this wasn’t understood by the applicant. If you choose to address unwanted sexual advances with the person involved, be careful that your actions can’t be taken as a green light. Keep the discussion at the office, keep it professional, and make sure you are within sight of your colleagues during the discussion.

Alcohol and sexual harassment are not a good mix

Work drinks are a common form of team bonding in many work places, but it’s wise to understand the increased risks of alcohol consumption in terms of lowering inhibitions. Thinking of letting your hair down with your workmates once you’ve moved discussions to the local pub? It certainly might pay to think twice about this.

Being alone means being vulnerable

Make sure you don’t find yourself in a situation where you are alone with the person who is making unwanted advances toward you. The presence of another colleague is often enough to deter harassment.

Report the situation

Even if you want to handle the situation yourself initially, it’s important to report your concerns to a third party, and make it known to the person involved that you have done so.

It pays to take heed of the dangers that can present themselves, both in the ordinary office setting and wherever ‘workplace participants’ are carrying out work ‘functions’. .

Education and vigilance

Employers must also continue to be vigilant in maintaining a safe environment for all people under their occupational control. Just confining the focus of anti-harassment measures to the four walls of your office environment might not be sufficient. Considering the growing fluidity of employment, all engagements between participants both on and off-site have the potential to create unfortunate scenarios. .

Education is essential – whether engaging employees, temps or contractors, employers should ensure that a zero-tolerance approach towards sexual harassment and other misconduct is conveyed from day one. Training, regular updates and modelling best practices can all assist in developing workplaces where safety and respect are core objectives. Off or on-site, this case demonstrates the significant problems that arise where unfortunate behaviour occurs between colleagues