Investigating Complaints of Abuse by Carers

- Wednesday, February 22, 2017



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

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

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

Defining abuse, common offences and likely culprits 

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

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

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

NDIS complaints system 

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

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

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

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

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

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

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

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

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

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

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

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

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

Grooming and sexual manipulation: identifying the warning signs

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

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

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

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

Investigating unexplained injury in care facilities 

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

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

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

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

Financial abuse: what does it look like?

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

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

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

Abuse by carers – a fair investigation is crucial

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

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

What Does Child Protection Look Like in 2017?

- Wednesday, February 15, 2017

There is no doubt that the sobering outcomes of the Royal Commission into Institutional Responses to Sexual Abuse have caused Australian organisations to take stock of their child protection strategies. Investigating and preventing abuse in care has become a non-negotiable priority issue for many citizens and institutions across the nation. So what is the current state of play?

Abuse in Care: NSW initiatives

We reported in 2016 that the NSW legislature had made considerable headway into strengthening the state’s response to allegations of child abuse. NSW was the first state to draft and implement Reportable Conduct laws, which set out details of the types of events, behaviours and history that require reporting. This can include the insidious phenomenon of grooming conduct, whereby children are encouraged to trust a person who later engages in child abuse. Boundary violations are also one of the many behaviours that employers now must monitor. Last year, we also saw the powers and involvement of the NSW Ombudsmen gain traction, with better coordination of information around reports of child abuse in care

Child protection developments nation-wide

As we head into 2017, we are seeing some further promising action happening in other Australian states and territories. The ACT is leading the charge to stamp out child abuse, with the introduction of its own Reportable Conduct legislative scheme. Working off the NSW model, the ACT is embedding similar mandatory reporting mechanisms into the fabric of the territory government’s business-as-usual practices, yet as with NSW, there are inevitable challenges around information sharing across agencies.

Victoria has begun its own task of developing and implementing a range of up-to-date laws dedicated to fighting child abuse in care environments. The state is not as far advanced as the ACT in these initiatives, but there are positive signs that the state government will do what it can to improve information sharing within the bounds of privacy requirements.

Protecting against abuse in 2017 and beyond

The work ahead is considerable. As we can see, not all states and territories are currently on board with the necessary structures to counter child abuse. Yes, it is certainly a considerable task – to implement new legislation on reportable conduct, to link agencies more effectively and to update enforcement knowledge and skills. And for those employers investigating child abuse, any uncertainty around legal requirements can create unique investigative challenges. 

As the Royal Commission has painfully shown, no work is too arduous when it comes to protecting Australia’s children from abuse – and indeed protecting any vulnerable individual such as the elderly or disabled in institutional settings.

Harmonisation of anti-child abuse measures

One major outstanding task is the harmonisation of child protection legislation and policies around Australia. There is little hope of tightening the system if alleged perpetrators can simply cross borders into ‘’more relaxed” jurisdictions. COAG has ear-marked this coordination of child abuse responses as a priority area in 2017. We are hopeful that the council will show the necessary chutzpah to pull the states and territories into line on this urgent task of protecting children against abuse.

Even if the federal nature of Australian government makes Commonwealth measures difficult to implement in this space, harmonisation of separate schemes is far from impossible. There are many precedents demonstrating that the states can unify when the subject matter is sufficiently pressing. Surely this is perhaps the most pressing issue imaginable?

Investigating the abuse of children and other vulnerable people

At Wise Workplace, we help employers to monitor and investigate alleged abuse at the ground level. While various governments around Australia are doing their best to learn and act from the Royal Commission, we are determined to give every employer the opportunity to establish the strongest possible strategies against child abuse that they can – right now.

Whether you are seeking advice on workplace audits, workplace investigations into abuse of children or others, the current legal state-of-play on reportable conduct – or indeed all of the above, then please do not hesitate to give us a call.

We’re also excited to announce our first training offerings in NSW and Victoria on the particulars of the abuse in care schemes, successful investigations and some important steps to take in every workplace. We can’t emphasise how important this is for all employers to take on board. Make sure you book in soon, as numbers are limited. Hope to see you there!

 

 


Unpacking the Concept of Reasonableness

- Wednesday, February 08, 2017


Across all Australian workplaces the phenomenon of bullying is without doubt a front-and-centre topic. And as a result, overt instances of bullying in the workplace now tend to be more readily identified than ever before. 

One challenging idea for all concerned however is this; is it possible that management action that is entirely reasonable could be misconstrued by a worker as an act of bullying? In both workers’ compensation matters and industrial relations more broadly, the linked concepts of ‘reasonable management action’ carried out in a ‘reasonable manner’ have certainly been difficult to pin down. 

We take this opportunity to explore the complex concept of reasonableness as it related specifically to management action and workplace bullying. 

Workplace bullying - the basics

When proposals arose to include bullying within Fair Work’s mandate, employers were understandably uncertain. ‘Bullying’ has a very broad and subjective interpretation among the general public; surely one person’s harmless banter could be another person’s bullying?

Yet when changes to the Fair Work Act were made and the commission explained the new initiative to stakeholders, it was clear that the definition under 789FD(1)contained certain helpful boundaries. Significantly, the unreasonable behaviour needed to be repeated and not just a one-off incident. Further, the activity needed to cause a demonstrable risk to workplace health and safety. The description of particular unacceptable behaviours – such as belittling, humiliating, spreading rumours and having unrealistic expectations – also went some way to assisting employers in the creation of sound anti-bullying mechanisms.

Reasonable management action…

Yet what about business-as-usual management? – for example when a worker needs constant reminders and oversight by management in order to fulfil their role? Could this type of standard management action actually be construed as ‘bullying’? 

The commission foresaw this potential for definitional constraints to disrupt the operational needs of many businesses. Consequently, garden-variety management action such as performance management, work monitoring, instruction, direction and disciplinary action are generally outside of the definition of bullying. These actions are simply the core of most management roles. However, the analysis doesn’t end there.

Carried out in a reasonable manner

A full understanding of the interplay between alleged bullying and reasonable management action requires that employers be aware of the crucial third element of the equation – was the reasonable management action carried out in a reasonable manner? This might seem like splitting definitional hairs, but it is this particular nuance that sometimes gets overlooked. Let’s take an example:

The employer receives notification of a bullying claim from the FWC, made against a manager by a worker. The action in question appears to be quite reasonable management action – let’s say a routine performance management process has been commenced. HR assisted with documentation and there was clear objective evidence of the worker’s underperformance. This was clearly – in and of itself – reasonable management action on the part of the manager.

However, what can lead to difficulties for any employer is when the management action is not carried out in a reasonable manner. If the manner is found to be oppressive, aggressive, belittling and/or with completely unrelenting expectations regarding outputs – then there is a high likelihood that a bullying claim can be substantiated. In other words, all the good work involved in reasonable management action can come undone if it is administered in a bullying manner.

Train for reasonable management action

Most employers have become adept at the creation of healthy and safe workplaces. Layout and resource issues are quickly dealt with and the corporate culture is usually a point of workplace pride. 

It pays however to ensure that the less-obvious hazards are still kept in focus. While employees might generally be monitored to prevent bullying issues, it is the manner in which managers carry on their tasks that also has ramifications for employers. 

Our consultants have over 10 years of experience in determining what is and what is not ‘reasonable management action’ so if you have a matter where you need clarification or an investigation, talk to one of our consultants for advice on 1300 580 685. 

If you think your managers could benefit from toolbox training on successful performance management, managing bullying complaints or ‘bullying, harassment and discrimination’ awareness, talk to one of our training consultants about our HR Pop-Up Professional Development initiatives and toolbox training.


The secret to a successful investigative interview – building rapport

- Wednesday, June 01, 2016

 

We’re all guilty of it: we ask a question that we don’t really expect to be answered in full. We’ve been socialised to do this; “how’s it going?” really means “I see you.” The usual answer “good” completes the interaction, but often isn’t even true!

Investigators have to learn to listen. And listening well means going beyond just hearing and recording and actually building a relationship of trust, that leads to mutual understanding.

That relationship, or sense of “closeness,” is called rapport. It’s one of the most important skills an investigator can develop. It needs to be authentic – it can’t be forced. Genuine rapport produces results.

Importantly, it creates an environment where the interviewee can be heard without judgement and helps the investigator establish any cognitive limitations in the interviewee.

 Professor Ray Bull gives advice on how to best build rapport.

Rapport is not about being “soft”; it doesn’t mean fake encouragement or comments that create an impression that you’re on their side. And it certainly doesn’t mean avoiding tough questions.

To build rapport, an investigator needs to show competence, confidence, empathy, interest and a willingness to listen. It requires both verbal and non-verbal techniques.

Simple things such as personal introductions, smiling, leaning forward, paying attention to an interviewee, using moderate eye contact and a warm voice, help create rapport.

Rapport-building typically starts with the investigator providing a welcome and introductions, supported by positive non-verbal communication that can include physical contact, such as a handshake or some other culturally-appropriate gesture. In this way, the two parties are welcomed into the interview and a tone is set.

Next, the investigator takes the lead by showing interest in the interviewee, by asking questions about them. This could include asking where they’re from, what they do and about their work history.
 
The conversation initially should be unrelated to the matter under investigation, but not so disassociated that it’s difficult to bring the conversation back to the primary reason for the interview – and not so long that the interviewee becomes impatient.

Rapport-building doesn’t stop after introductions are complete, but should continue throughout the interview.

The goal is always to go beyond a mere question-answer “transactional” approach to information gathering, but instead move towards a proper conversation, that engages the interviewee and elicits the most complete account possible. Because “Good” just isn’t good enough!

Outsourcing investigations? Top 5 Tips on selecting an investigator

- Wednesday, May 04, 2016

 

Sometimes you just can’t or shouldn’t conduct a misconduct investigation in-house.  Where there are conflicts of interest or specialist skills required, organisations may be best suited to engaging the services of a private provider to obtain the information required for the business to make the right decisions.

But how do you know if the service you contract will be provided? Investigations are notorious for over-running on budget, exploding the terms of reference and, if not handled correctly, can cause more problems than they solve.

So how do you make sure the investigation company you use can deliver what it promises? 

The most important thing is TRUST.  You have to trust someone else with one of the most delicate and important aspects of your business. If they get it wrong it could lead you down an expensive path of litigation and court hearings.

How do you find them?

Personal referral - a tried and tested method, but limits your pool to your personal contacts.  Linkedin has extended this pool but wherever you get a personal referral make sure it is from personal experience and not just a friendship. 

Google is goodCheck out a company’s online presence.  A company can provide the reliability and consistency that sole practitioners may lack. Companies also have resources to maintain skill levels and ensure business continuity in case of misadventure. Search terms such as ‘workplace investigator’, ‘bullying investigations’, ‘HR investigator’ or ‘investigations’ should all turn up results.  Don’t forget to add your location, country or state for local service providers.

Conduct an interview – once you have narrowed down the field for 2 or 3, give them a ring. Interview the firm or the individual.  Find out how they manage investigations and sound out their expertise. Ask for estimates and quotes, investigation plans and other information. Professionalism shown here is a good indication that the company will provide you with excellent customer service. 

Are they qualified?

Make sure the company and the investigator you use has a current private inquiry licence. It is little known and little adhered to, but across Australia individuals conducting workplace investigations must either be practising solicitors or licenced investigators.  Ensuring minimum levels of training and a code of conduct, licensing demonstrates the commitment of the individual and company to provide quality investigation services. 

Trust doesn’t stop with a licence however, you also need a business that can demonstrate:

Sincerity

 Reliability

 Commitment

Integrity

 Competence

Consistency

What sets one company above another?

This will depend on the case you have and your company priorities. Some of the typical issues are speed, cost and sensitivity.  You will need to identify which service provider will meet your priorities and provide an investigator with the best matched set of skills and expertise for your case.

So – In short,  here are my Top 5 tips! 

  1. Don’t just rely on personal referral
  2. Check relevant experience
  3. Make sure the business is licenced and individuals qualified
  4. Ensure they can meet your priorities
  5. Place focus on excellent customer service

Harriet Stacey has been managing workplace investigations for 15 years. She has developed a reputation for high ethical standards and quality investigations. Best practice protocols can be invaluable resources to business. So we have developed a Workplace Investigations Toolkit to help support in house management of investigations. See our free investigations flow chart and many more useful resources on our website Wise Workplace.

 

 

How to protect yourself from upward bullying

- Wednesday, April 27, 2016

 

A quarter of Australian bosses are the targets of upward bullying according to a study conducted by Griffith University. Upward bullying occurs when a manager is subjected to bullying behaviour by their subordinates.   Recent research presented at the 10th International Conference on Workplace Bullying in Auckland last week presented new research on the dynamics of upward bullying.

The study conducted by Eileen Patterson, Sara Branch, Sheryl Ramsay and Michelle Barker investigated the power dynamics of upward bullying cases through qualitative research methods involving semi-structured  interviews with six managers from different levels and industries. The research findings indicate that for upward bullying to occur, the normal power imbalance in favor of the manager or supervisor has to be undermined  and the legitimate authority of the manager has to be diminished or removed.

As I have stated in previous blogs,

“One of the main triggers for upward bullying is organisational change.”

This may be a change of working conditions, management or processes.  The influence of one or two disgruntled, negative employees can be profound.  New managers stepping into entrenched group dynamics stand little chance if the team is determined to make life difficult for the new manager. Employees may blame their manager and respond by bullying them.

Upward bullying has the potential to damage a manager's mental health and well-being.  It can cause psychological stress, anxiety, and even depression.  Managers may also lose confidence in their abilities and feel less satisfied in their jobs. Upward bullying also has the potential to impact the bottom line. It can result in lost productivity, increased absenteeism and higher staff turnover, as well as the cost of intervention programs.  

Bullying of managers is characterised by gossip, back stabbing, disrespect, disobedience and a failure to comply with rules. Bullies will question competence and influence newer staff through misinformation. Strong existing or out-of-office relationships with senior managers can also have a significant negative effect on the ability of a manager to manage.

Patterson et al found that the loss of a manager’s legitimate power was caused by a lack of organisational support or staff members perceiving the manager to be an illegitimate leader. Once this swing in power occurs, the manager becomes vulnerable to bullying behaviour from subordinates. The type of behaviours often inflicted include:

  • use of an organisation’s policies and procedures
  • coercive tactics such as humiliation and intimidation
  • use of expertise or access to information to gain an advantage; and
  • ingratiation to those in important positions to gain access to formal power
Strong support for managers by senior management is critical in preventing upward bullying.  So, let’s say you are a manager and you find yourself in this position with little support and disgruntled employees?   Here are my tips based on the studies so far that might help:
  1. Seek support from your management
  2. Develop and maintain close working relationship with your senior managers and powerful people in the business
  3. Ask for coaching or seek mentors to assist with your self-confidence – you’re going to need it!
  4. Resist fighting back with bullying behaviour towards your team
  5. Don’t make significant changes to existing work practices until you have established your credibility
  6. Find a legitimate way to demonstrate your value to the team – find your thing!
  7. Bluff – it might just be a long game of poker.

Self-confidence, awareness of team dynamics and ability to manage recalcitrant and possibly underperforming staff are necessary in these cases.

So it might be a case of keeping your enemies close, your bosses closer and bluffing your way through until you prove your worth!

Supporting new leaders and managers in your business will go a long way to helping them build and maintain legitimate authority within the workplace. WISE Workplace together with its allied businesses can help you provide the right type of support - be it coaching, leadership skills or managing under adversity. For more information on how we may be able to support legitimate leadership contact 1300 580 685.  

Social Identity and the Spiral into Corruption

Jill McMahon - Wednesday, April 13, 2016
Social Identity and the Spiral into Corruption

Imagine this. Alice, new to her workplace, is given a company credit card for expenses such as client entertainment and work-related travel. 

She notices that other employees use their credit cards to purchase lunch, even when they’re not entertaining clients, and has heard a couple of people saying that they use it to buy petrol for their family cars.

Alice is told by her workmates that everyone does it, no one ever checks and that the company expects and budgets for it. So Alice starts buying her lunch with her company credit card and uses it to buy petrol for personal vehicle use.

Alice has just stepped onto a slippery slope, spiralling into corruption. And this kind of ‘harmless’ activity can cost an organisation millions of dollars. 
What is social identity?
Social identity stems from peer group pressure. 

If the ‘in’ or popular group within a workplace is engaging in corrupt activities, some workers will identify with them and go along with the activities, help to cover up the activities, or simply remain silent.

Their need to be accepted as part of the group is a higher priority than their own personal values. 

Enforcement of social norms

Like Alice, a worker can be unwittingly drawn into corruption. The attitude that “this is how we do things” can normalise the corrupt behaviour. 

When the norms are enforced by the group, further issues can arise, the most common one being bullying, especially group bullying. This can occur when:

  • A group of workers gangs up on one worker. 
  • One worker is carrying out the bullying while others passively witness the behaviour but don’t stop or report the conduct.  

An example of group bullying is the spreading of gossip or rumours about an employee. 

Another way that employees unwittingly join in corrupt activity is when they don’t wish to rock the boat. They may feel pressured to take part, or keep quiet about it, because they fear being bullied. 

Management acquiescence

Sometimes, management may be aware of corruption but decides to ignore it because the corrupt group is performing well and meeting targets. 

Highly skilled workers remain a big issue for organisations as well, because they are so valuable that potentially they may be able to get away with corruption. It can be extremely difficult to bring these employees back into line without losing them to competitors. 

There’s also the issue of losing highly skilled employees because they are being bullied. This could be damaging to an organisation, not just because of the loss of the expertise, but also because of any potential workers’ compensation claim for stress, or any application made under the anti-bullying provisions of the Fair Work Act.

What can be done?

Organisations need to identify what causes corruption in the first place. Usually one of the biggest causes is opportunity – if no one checks up on employee activities, the opportunity exists. Employers need robust systems for accountability. 

Another cause can be workplace culture. If employees are unhappy in their work environment and see others benefitting from corrupt activities, they may more readily commit corruption. Employers need to educate staff about unacceptable behaviour, and foster a positive work environment.

Anti-bullying measures are also very important.
Whistleblowing
An employee reporting corruption is often the only way that it can be detected and stopped, particularly if it is embedded. 

The federal government leads the way, with legislation that allows employees to report corruption via a whistleblowing hotline without fear of retaliation or reprisal.   

Employers can also set up internal whistleblowing systems to encourage reporting. 

Employee corruption in the workplace can be a difficult and complex issue. The reasons an employee may engage in corruption are not clear-cut and may highlight underlying issues.

If you suspect employee corruption or would like to take steps to prevent it, WISE Workplace can help with education about corruption and prevention strategies, including a mechanism to allow employees who witness corruption to report it. 

Have You Been Accused of Bullying or Harassment at Work?

- Wednesday, March 09, 2016

We first ran this blog in 2014 and from the number of comments we received, it clearly raised issues that resonated with many of our readers.  So by popular demand here it is again.  We welcome your comments, as always.

Bullying and harassment legislation is in place to protect employees from being bullied by their co-workers. If you have been accused of bullying at work, it’s important to follow company procedure and co-operate with any internal or external investigations.

Although most bullying and harassment claims are legitimate, sometimes accusations can arise from misunderstandings, communication difficulties or can be brought against a manager, co-worker or subordinate out of malice or revenge for a perceived slight.

Accusations of bullying commonly occur where managers or supervisors have provided feedback to an under performing employee, or taken disciplinary measures against them. Management direction isn’t considered bullying, and as long as any actions taken were documented and reasonable, you shouldn’t have anything to worry about.

If you are managing employees and providing feedback on performance it’s important to document all your discussions, and ensure that any actions you take are in line with organisational policies. This can help protect you against false accusations of bullying, and make the investigation process easier and more straightforward if a situation is escalated.

If you have been accused of bullying at work, it’s important to follow company procedure and co-operate with any internal or external investigations. If you are accused of workplace bullying, even if you don’t believe it’s justified, it’s important to be open-minded and listen to the other person’s perspective. Here are a few suggestions to help you deal with an accusation of bullying or harassment without making the situation worse:

  • Remain calm if someone approaches you about your behaviour. Although it can be extremely upsetting to be accused of bullying, getting angry will only aggravate the situation.
  • If you believe that the accusations are false, speak to a senior level employee or your HR department. In many cases where bullying stems from a misunderstanding, the matter can be resolved with mediation from a third party
  • Be prepared to change your behaviour or style of communication. It may be that a few modifications to your actions or manner of communication is all that’s needed to resolve the situation. It’s important not to get defensive and to stay open to any constructive feedback you receive.

With the recent increased awareness of workplace bullying, more employees are becoming aware of the ability to lodge a bullying complaint, especially if they feel they are likely to lose their job, or as a form of revenge against a supervisor.

To reduce the likelihood of false claims, it’s a good idea for managers to provide training to employees to help them distinguish between normal management direction and actions, and bullying. Many bullying claims are a result of misunderstandings or miscommunication and these can easily be prevented with the right training, clear expectations, performance indicators, and documentation of feedback and disciplinary actions taken against individuals.

False claims can be extremely distressing to the person who is wrongly accused of bullying, and can even be a form of harassment in themselves if they are taken out for malicious purposes.

Getting the Knives Out - Does the Punishment Fit the Crime?

- Monday, November 16, 2015
Employees and Charges

When an employee is charged with a criminal offence, there can be a number of complications for the employer. For example, whether the employee is a fit and proper person to work in the organisation, whether they present a risk to the safety of other employees, and whether there might be negative publicity if they continue in their employment. A recent decision of the Fair Work Commission (FWC) has laid down some basic considerations for businesses dealing with such issues. 

A case in point

In James Deeth v Milly Hill Pty Ltd, the FWC considered whether Deeth had been unfairly dismissed and whether Milly Hill had failed to properly apply the requirements of the Small Business Fair Dismissal Code

Milly Hill is a meat supplier, employing fewer than 15 people. Deeth was a final-year apprentice employed by Milly Hill. Deeth was charged as an accessory after the fact to murder. 

The person charged with the murder was under the age of 18, and so could not be named in media reports. Deeth, on the other hand, was named as an alleged offender and this caused Milly Hill concern that there would be significant publicity issues. Deeth was summarily dismissed from his employment for two reasons. 

If Deeth continued to be employed:

  • Milly Hill was concerned that other employees would resign out of fears for their own safety.
  • Customers would boycott Milly Hill’s retail business.
Application of the code

Milly Hill satisfied the definition of a small business employer, which meant that the code’s provisions would apply. The code provides that a dismissal of an employee by a small business employer is fair if the requirements of the code have been followed.

The FWC applied the code’s two-step test for appropriate summary dismissal:

  1. Whether Milly Hill believed that Deeth’s conduct was sufficiently serious to justify immediate dismissal.
  2. Whether that belief was reasonable.
The FWC findings

The FWC found that Milly Hill had a “knee-jerk” reaction to the charges, “fuelled by reports of customer and employee dissatisfaction.” The FWC accepted that Milly Hill believed that Deeth’s conduct was sufficiently serious, but its belief was not reasonable, because it had failed to properly investigate the matter. It was not necessary for Milly Hill to determine whether the crime had been committed, but rather how Deeth’s conduct impacted on the business. 

The FWC also said that an out-of-work-hours criminal charge was not alone a valid reason to dismiss – there must be a connection between the criminal activity and the employment. Because Deeth had threatened aggression leading up to the charge and because he worked with sharp knives, the FWC accepted that Milly Hill had cause for concern. The FWC found that there was a valid reason to terminate Deeth’s employment, but that the termination was harsh because the lack of investigation denied Deeth procedural fairness. 

Further, Milly Hill had not properly considered whether it might be able to keep Deeth on and “still have mitigated the perceived risks in relation to its employees and customers.”

The FWC awarded Deeth six weeks of wages as compensation. 

The lessons to be learnt

The presumption of innocence applies, even in civil situations. Employers are duty bound to provide safe workplaces and are entitled to mitigate damage to their businesses. But no matter how large or small, they also have a duty to properly investigate matters, especially when dismissal may result. Had Milly Hill reached the same conclusion after a proper investigation, it is likely that the FWC would have found in favour of the employer. This is reinforced by the case of Turton v Treblec Pty Ltd, in which a company with just four employees was found to have insufficiently investigated a matter prior to dismissing an employee. If you are considering terminating an employee or need assistance with a workplace investigation, WISE Workplace can offer expert assistance

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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.