Managing Cultural Diversity in the Workplace

Vince Scopelliti - Wednesday, February 21, 2018

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

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

THE definition of cultural diversity

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

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

why is cultural diversity important?

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

Some of the benefits of cultural diversity include:

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

So how can organisations manage diversity?

 Some tips for managing diversity include:

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

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

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

How Surveys Can Uncover Secrets of Your Workplace Culture

Vince Scopelliti - Wednesday, February 07, 2018

Employers are becoming increasingly aware of the importance of a positive workplace culture. A workplace culture which helps foster happy employees can increase productivity, reduce absenteeism and have a positive flow-on effect to customers. 

But just how can senior management get staff, particularly junior staff, to open up about how they feel? One excellent and very popular method is by engaging in workplace culture surveys.

what is it?

A cultural survey is an important diagnostic tool to uncover the current health of an organisation, and is a way for management to determine strengths, weaknesses and important strategic areas of focus for the business. 

Using surveys, employers can establish whether they are on the "same page" strategically as their employees, if there are any concerns regarding bullying or unsafe workplace practices, issues affecting health and wellbeing, and what the business is doing particularly well.

Cultural surveys are frequently administered externally, and participants are guaranteed anonymity. This is an essential part of the process, as it permits staff to feel as though their responses, whether positive or negative, can be provided without fear of reprisal or criticism. 

They require a number of specific questions to be answered. The responses are then tallied and data is extracted and analysed in the form of a report which is generally presented to management or the board.

when to do a cultural survey?

The best time to introduce an initial cultural survey is when the senior leadership team has already begun implementing a process of cultural change, whether that involves becoming an employer of choice to potential new talent or retaining existing talent. 

Once a cultural survey has already been completed in the business, it is a good idea to repeat them regularly, perhaps every two or three years, for management to be able to assess how the business is performing against previous years and whether a change in direction may be required. 

what questions should not be included?

Part of focusing on improving a workplace culture also involves changing the way in which the business recognises and rewards exceptional performance. This mental shift should occur before the cultural survey is introduced - otherwise the business risks getting answers to the wrong sort of questions. 

Those questions include ones that do not consider what truly makes employees happy, but instead focus on factors such as remuneration, perks (such as professional coffee machines) or flashy offices. While these can be an important component of making an employee feel valued or happy in their role, they are rarely a determining factor in whether an employee truly feels committed to a business.

so what are the right questions?

Instead, employers should ensure that cultural surveys focus on questions such as:

  • Do you understand the company's goals, and your role in achieving those goals?
  • Do you feel as though your role is important in achieving the company's objectives?
  • Do you understand the company strategy and agree with it? 
  • Do you feel that your team is collaborative?
  • Do you feel that you have the skills necessary to perform your role, and if not, why not?
  • Is there anything in the workplace preventing you from performing your role?

Employers may also wish to ask staff what improvements they would make, given the chance. This can be a very useful tool in implementing a new strategic direction.

the benefits of a cultural survey

Perhaps the greatest benefit of a cultural survey is that when employees feel like they are connected to the "bigger picture", they are more invested in the business and feel part of a team. 

This in turn helps improve their reliability, performance, desire to participate and willingness to sacrifice (if necessary) for the good of the business. The sense of collaboration created by a cultural survey is an invaluable asset to the business. 

A cultural survey may also bring up issues which have not previously been identified by management, such as endemic bullying or a toxic workplace.

how to get started

These few simple steps can help employers get started on conducting a survey.

  • Be clear about the purpose of the survey
  • Ensure you offer all team members the opportunity to participate
  • Decide whether a face to face, paper or electronic survey is appropriate or even a combination of all three if you have high staff numbers
  • Decide on the timeframe for responses
  • Formulate the questions and keep it simple - for example avoid asking two things in the same question
  • Analyse the results - don't take the results on face value, for example a low response rate to a particular question may make the results meaningless
  • Follow up on the survey insights and take appropriate action

WISE Workplace is here to support your organisation. If you have a concern about a toxic culture, or staff are making complaints, we are well placed to help you conduct a cultural survey.

Conducting Workplace Investigations: What You Need to Know

Vince Scopelliti - Wednesday, January 31, 2018

Part of running an effective organisation is ensuring that all staff are held accountable for their actions in the workplace, and are able to air grievances and raise complaints in a safe forum. This means that employers may need to undertake investigations into staff misconduct from time to time. 

Managing an unbiased and thorough workplace investigation can be a challenging and complicated process, particularly given the need to deal with sensitive topics and personal feelings. 

So, what are the most important things you need to be aware of when conducting a workplace investigation?

understanding why an investigation is necessary

All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the Fair Work Commission. 

Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with co-workers. If the alleged behaviour is serious enough (such as sexual harassment or assault for example) the employer could become civilly or even criminally liable. 

Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused worker has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.

how can your human resources team support you?

If your organisation is large enough to have a dedicated Human Resources officer or even an HR team, it can be extremely helpful to have them involved in an investigation. 

Your HR team can facilitate a successful investigation by:

  • Keeping open channels of communication with both the complainant and the respondent (as long as confidential information is kept private);
  • Providing a clear timeline and outline of processes;
  • Ensuring that staff are aware of their rights to have support persons involved;
  • At all times maintaining respectful contact and a clear demonstration of objectivity when dealing with witnesses or parties involved.  

fact finding vs formal investigation

Any workplace complaint requires a process of fact-finding or initial enquiry, whereby a third party interviews both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can for instance be deemed trivial or minor in nature and can be dealt with on that basis. 

A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.

The need for procedural fairness 

A key element of any workplace investigation is to ensure that all parties are afforded procedural fairness - a failure to do this could result in criticism of any decision taken by the employer after the investigation and could expose the organisation to legal liability.

The key elements of procedural fairness include:

  • Providing adequate information about the allegations, generally in written form, and the potential consequences if the employee is found to have engaged in the alleged behaviour;
  • Permitting a reasonable amount of time for the employee to respond to the allegations;
  • Allowing a support person to be present during interviews and providing adequate notice to the interviewee to arrange a support person of their choice;
  • Ensuring that the investigator as well as the ultimate decision-maker is unbiased and objective;
  • Ensuring that decisions effecting the employee are based on evidence. 

So what is involved in conducting a workplace investigation?

The key elements of an effective investigation include:

1. Planning the Investigation

  • Adequate planning before the investigation starts, including considering any potential conflicts of interest;
  • The investigator familiarising himself/herself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed;
  • Preparing a list of interview questions for each witness;
  • Gather and review relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents and information;
  • Notify all parties of there involvement, rights and obligations. 

2. Interviewing

  • Provide sufficient notice and make appropriate arrangements with all witnesses
  • Conducting formal interviews objectively and sensitively, having regard to the circumstances;
  • Checking that representation or support has been offered and outlining the investigation process and timeline;
  • Obtaining as much detailed evidence as possible

3. Analysing and Weighing the Evidence

  • Assessing the evidence with regard to reliability, consistency and credibility;
  • Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy;
  • Coming to a conclusion and making a finding, based on the evidence gathered. 

4. Facilitating a Resolution

  • This could include making amendments to business policies, training improvements, broad disciplinary action, mediation and counselling. 

When to ask for help

The consequences of a flawed investigation can be serious: decisions can be challenged in the courts, reputations can suffer and employee morale can take a nose-dive. 

In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process. 

This could include situations where: 

  • Serious allegations are made and there is a potential risk of criminal or civil litigation;
  • Complaints are made against senior employees;
  • A real or perceived conflict of interest exists, meaning complaints cannot be investigated objectively internally; 
  • There is a need for legal privilege to cover the circumstances;
  • There are insufficient internal resources, where your organisation is simply not able to investigate a complaint thoroughly, due to a lack of expertise, particularly if it involves multiple parties or complex issues that require specialist knowledge. 

If you require assistance with investigating allegations of misconduct, contact WISE Workplace. We offer full investigation services, supported investigations and staff training on how to conduct workplace investigations. 

The Cost of Aggressive Leaders

Vince Scopelliti - Wednesday, January 24, 2018

There are many different skills which are required for an effective leader - such as excellent communication skills, perseverance, the ability to inspire and motivate staff, clarity of thought, and efficiency. But one detrimental trait that many leaders may possess is aggression.

Although it is often accepted that a domineering personality seems to go hand in hand with successful leadership, in many situations it can actually get in the way of optimal and effective management.

a bad habit or a behavioural strength? 

There are different levels on the scale of aggression - and indeed, for some jobs a level of combativeness is almost an essential quality. From a CEO accustomed to facilitating hostile takeovers, to a litigator who must take charge of a courtroom, to a police officer, in these careers, behavioural traits which are more closely aligned with aggression can be helpful. 

Contrast this with "softer" jobs, such as a primary school teacher, a nurse, a psychologist or a social worker, and it becomes apparent that certain personality traits are much better suited to some industries than others. 

Hiring managers and HR managers responsible for recruitment and selection of managers need to be aware of the difference between simple assertiveness and unbridled aggression or even narcissism.

the difference between assertive and aggressive

A "positive" and assertive boss might:

  • Engage in competition against external competitors, but support a whole team ethos;
  • Be forthright and open, including potentially critical - but be equally willing to accept criticism of their own methods;
  • Seek facts;
  • Respect the rights of staff to their own opinions. 

In comparison, a "negative" aggressive or narcissistic boss may:

  • Constantly compete with their own staff;
  • Belittle or punish those who disagree with the leader;
  • Base decisions on their emotions or feelings rather than rational or logical conclusions;
  • Mock or otherwise put down staff; 
  • Yell, gesture, stride around or otherwise engage in physically intimidating behaviours.

the downsides of aggressive behaviour in the workforce

In its most basic form, employees who work for aggressive leaders can be uninspired and unhappy, often not wishing to come to work. A leader who storms around like a bear with a sore head, as the expression goes, is likely to cause, or at the very least contribute to, a toxic workplace. 

This, in turn, can lead to significant losses in productivity, high rates of absenteeism or presenteeism (where staff physically turn up but do not properly fulfil their duties) and excessive staff turnover. 

changing leadership behaviour 

It can be difficult to modify leadership behaviour, particularly when it comes to leaders with type-A personalities, which will likely mean that they are reluctant to accept criticism or receive feedback well. 

Strategies for changing leadership behaviour, or at least improving the ability of staff to deal with aggressive leaders, include:

  • Building a strong relationship between the leader and the rest of their team, including by encouraging open communication and fostering the ability for human resources staff as well as team members to provide feedback on decisions made by the leader. 
  • Appeal to the leader's sense of logic and highlight the potential impact of their actions on the business.
  • In the case of narcissistic leaders, it can be helpful to frame feedback on their behaviour in terms of how it might negatively affect their goals, rather than as a direct personal criticism.
  • Stop supporting this type of behaviour by refusing to promote or reward leaders who are aggressive, and who refuse help to modify their behaviour. 

Taking a few simple steps towards correcting the ongoing behaviour of an aggressive leader, while still highlighting the importance of strength in decision-making, can help to significantly improve the satisfaction, productivity and quality of your workers. If you believe you have an aggressive leader or a toxic workplace where an investigation or cultural review would help, contact WISE today for an obligation free quote. 

2017: The Year Sexual Harassment Claimed the Public Spotlight

Vince Scopelliti - Wednesday, January 03, 2018

It seems that as 2017 gathered steam, more and more brave survivors of sexual harassment in the workplace gained the courage to name their alleged harassers. 

From Hollywood bigwigs and actors to Australian TV personalities; it seems that a vast array of perpetrators and inappropriate actions within the entertainment industry have finally come to light. 

There is no doubt that any move to identify and eliminate sexual harassment at work is a good thing. However, what is important as we close the 'year of the Weinstein' is that we don't forget some of the less obvious - but no less damaging - manifestations of sexual harassment in the workplace. 

The reach of Australian legislation protecting workers is impressive. Yet many workers and employers still fail to recognise that sexual harassment is occurring on a regular basis. For example - a workplace might tacitly support that 'touchy feely' manager, or the 'jokey' worker who pushes the line on blue humour. What is certainly not acceptable under law, can in some contexts become normalised. 

Developing broad-ranging understanding of what is and what is not sexual harassment, can be quite challenging. How to combat this lack of knowledge is the next frontier for employers and workers alike.

Key definitions of sexual harassment

The Federal Sex Discrimination Act contains the following definition of sexual harassment: 

28A - Meaning of Sexual Harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engaged in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Importantly, 28A(1)(b) provides for the broader "unwelcome conduct of a sexual nature." 

Both workers and employers alike face some knowledge gaps in terms of the reach of the definition. And what could mistakenly be thought of as 'just mucking around' or 'a harmless Aussie joke' might in fact fall squarely within the meaning of sexual harassment. 

As seen in the legislation, it is not a matter of whether the person harassing might have anticipated an adverse reaction from the person harassed. The relevant threshold in gauging the reaction from the viewpoint of the ubiquitous 'reasonable person'. 

global reach - the #metoo campaign

We watched the tsunami of the '#metoo' campaign encouraging women across the globe to share their experiences of sexual harassment, by using the simple hashtag across social media. The campaign has shed valuable light upon the prevalence of sexual harassment in society. 

Both women and men have been subjected to unacceptable words and acts - often without support or a sufficient avenue for redress. We are beginning to understand that sexual harassment is blind to gender, with men becoming susceptible to this behaviour - as the matter of Kordas shows. 

Unique questions arise for employers when we consider the various social media platforms being used by women to spread this message. If a person hashtags #metoo from a workplace, the employer might well have an obligation to follow up on this informal notification. Certainly, if there are subtle or overt signs of a connection between the claim and work, an investigation of possible workplace sexual harassment might well be advisable.

THE extreme and the ugly...

As noted, 2017 could certainly be considered the year in which the issue of sexual harassment hit the headlines in a major way. In the United States, the verbal and physical exploits of Hollywood's Harvey Weinstein became part of a horrifying litany of sexual harassment occurrences in the workplace. Similarly in Australia, media personality Don Burke has faced extensive allegations of sexual harassment in the workplace, stemming across many years in his work as the nation's 'gardening guru'. 

Yet it is arguable that such extreme cases do little to assist the public's understanding of the more fine-grained aspects of workplace sexual harassment. Across Australian workplaces, only a small percentage of workers who have been sexually harassed will report the behaviour. In general, this is due to the fact that sexual harassment is only understood to be the kinds of egregious, physical acts that have made media headlines in 2017. 

The subtler acts of sexually-based joking, leering, cornering, propositioning and unwanted affection are less likely understood by workers (and even some employers) as being what they are - sexual harassment. How to keep such harassment at the forefront of employer thinking into 2018 and beyond, is the challenge. 

risk of ignorance 

When whispers and talk arise about an incident of sexual harassment, employers need to pay close attention. If an employee approaches management with a concern, it is important to understand that verbal notification of sexual harassment is generally all that is needed. 

Those subject to harassment are not required to make a formal, written complaint. The risks of not acting on an informal, verbal notification of unacceptable behaviour can be high, as demonstrated by the cases of Trolan and Matthews. Employers in this situation have faced mounting costs associated with statutory and common law claims - not to mention the operational costs of allowing sexual harassment to occur in the workplace initially.

workplace vulnerabilities 

Workplaces where rank and hierarchy exist - such as emergency services and the armed forces - can be particularly susceptible to occurrences of sexual harassment. In the recent NSW case of Torres v Commissioner of Police [2017] NSWIRC 1001, the Commission noted that part of the problem with the senior constable's lewd behaviour stemmed from these displays being forced upon more junior colleagues. His dismissal was found to be warranted in light of the gravity of his sexual harassment at work. Those in lower positions can feel that they have no option but to accept the behaviour. 

Taking advantage of junior and/or more vulnerable workers can also be evident in low-paid and transient industries. Recent unsavoury cases of sexual harassment have been found to have occurred in farming and horticultural industries where transient workers are open to abuses by employers and permanent staff. Similarly, in hospitality workplaces, junior staff are particularly prone to sexual harassment. Age, time in the role, and financial necessity are just some of the vulnerabilities that can lead to harassment.

workplace sexual harassment policies crucial

The importance of having meaningful and accessible workplace sexual harassment policies cannot be overstated. It is not enough to simply email staff about a generic policy on sexual harassment in the workplace. And it is also not satisfactory to do the bulk of education activities at the point of recruitment. 

Like any workplace risk, sexual harassment needs to be monitored across time and in the context of each individual work site. Policies should remain living documents that provide robust responses to any unacceptable workplace behaviours. 

The costs of failing in this area include not only money and time, but also that most valuable of corporate commodities - reputation.

strong but subtle RESPONSES

2017 brought sexual harassment in the workplace front-and-centre for the global viewing public. Tales of power gone astray and a culture of staying quiet have all led to the situations that have dominated the headlines in recent months. There is no denying the importance of bringing such stories to light. However appropriate workplace responses will not simply engage with the worst types of sexual harassment, such as we have heard about recently in the media. Active employers will necessarily source the best and most responsive policies, addressing all issues that might allow sexual harassment to fester and grow in the workplace. 

Hopefully, 2018 will be the year in which all employers develop responsive workplace systems designed to detect the earliest threat of sexual harassment across every site. If you need assistance, WISE Workplace can help with sexual harassment policies, training and investigations.

Navigating the Choppy Waters of Mental Illness at Work

Vince Scopelliti - Wednesday, December 06, 2017

Mental Illness is highly prevalent in our society - 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their lives, and 20% will suffer from mental health issues during any given year. 

Given these statistics, employers will likely deal with at least a few employees who have mental health issues annually. 

So, what is expected of an employer in this situation? 

understanding mental illness

The first step is to understand that there are many types of mental illness. Depression and anxiety are very common, and fall into the category of mood disorders. Other types of mental illness include personality disorders or psychotic disorders, amongst others. 

Generally speaking, a person getting appropriate treatment for a mental illness can be an active contributor in the workforce and the community, and the vast majority of people suffering from mental illness do not pose any risk to others. 

A mental illness may develop separately from the workplace, for example due to issues stemming from the sufferer's personal life. However, the average employee loses 3.2 work days per year due to the impact of dealing with workplace stress - so it is clear that the workplace can be a significant contributing factor in mental health issues. 

managing the contributing factors at work

An employer has a duty of care to ensure that the workplace is safe and healthy for employees. Employers need to identify workplace practices or actions which could cause or contribute to mental illness, and eliminate or significantly reduce the risks associated with these. 

This includes preventing bullying or harassing behaviours, ensuring that managerial staff are trained in properly dealing with performance management and with staff who are experiencing mental health issues, and even limiting situations where excessive alcohol use may be encouraged.

supporting workers who disclose a mental illness

Employers should take steps to ensure that those workers who are suffering with their mental health have access to appropriate resources, including flexibility to attend medical appointments, ease in accessing days off when necessary, and perhaps in-house counselling sessions or a mentoring program. 

When dealing with an employee who has reported their mental illness, employers should be prepared to ask questions such as: 

  • How can we help?
  • How can we make you feel more supported?
  • What are your triggers and how can we manage these in the workplace?
  • Are you coping, and if not, what strategies can we implement to help you stay on top of things?

From a legal perspective, an employer is also required to ensure that workers are not discriminated against or subjected to any adverse action because of their mental health status.

what happens if a worker doesn't disclose? 

In developing a strategy for dealing with mental health issues in the workplace, employers should consider how they can encourage workers to be comfortable in disclosing their status. This will require members of the HR team to be equipped with the skills to ask the right questions. 

Employers can also inform staff who they suspect may be struggling with their mental health about an option to seek confidential support for an Employer Assistance Program or external professional advisor.

In circumstances where an employer is concerned about a worker who is displaying symptoms of mental illness but has not disclosed any conditions, the supervisor should be appropriately trained and prepared to open a dialogue with the employee. 

Alternatively, an employer could monitor data such as employee workload, unexplained absences or lack of productivity, and seek the employee's consent to obtain medical information. Armed with this information, an employer can create a flexible environment within which each worker can be encouraged to perform at their best. 

protecting all employees

It is incumbent on employers to remember that they must balance the potential risks to all of their employees. 

Although they cannot discuss an employee's mental health status, if the employer is genuinely concerned about the potential impact on colleagues or the business itself, appropriate steps can be taken to performance manage or otherwise discipline the employee. 

However, in taking such action, it is crucial for an employer to ensure that it is poor performance or risky behaviour which is managed or disciplined, and that the worker concerned is not discriminated against on the grounds of their mental health status. 

Employers should also consider developing a mental health policy. This document can be used to demonstrate that all staff are entitled to confidential support free from discrimination, harassment or bullying, regardless of their mental health status. 

It can also be used to demonstrate that staff who are acting inappropriately in the workplace cannot simply rely on their mental illness as an excuse to endanger themselves or others on an ongoing basis. 

Key issues which should be address in the policy include: 

  • Access to confidential support and consultation for all staff
  •  Anti-harassment and bullying protocols
  • Policies and procedures relating to reasonable adjustments which may be required to assist staff with a mental illness
  • Identification of risks in the workplace and strategies for minimising the potential impact on staff if they are exposed to those risks (such as a death, or trauma in the workplace)

How can we help

Navigating your way to a mentally healthy workplace isn't easy. If you'd like assistance in encouraging a supportive work environment in your organisation, including drafting mental health and anti-bullying policies and creating appropriate performance management programs, contact us

Crossing the Line: Flirting vs Sexual Harassment

Vince Scopelliti - Wednesday, November 29, 2017

The recent media attention on sexual misconduct in Hollywood is a turning point; what may have been considered 'innocent flirting' in the 70s and 80s is increasingly being called what it is - unwanted harassment. The public condemnation of film mogul Harvey Weinstein's conduct has emboldened people to come forward with allegations of sexual misconduct against other celebrities, in what some have described as the 'Weinstein ripple effect'. 

There has been a significant shift in recent years in the way the criminal justice system conceptualises consent, and this has likewise affected the perception of harassment. 

Although the Hollywood allegations are of a serious nature, with some amounting to sexual assault and rape, they have also cast the spotlight on work relationships in journalism, entertainment, politics and the everyday workplace -'the office'. The question arises: what constitutes sexual harassment in 2017?

legal definition of sexual harassment in australia

Although many assume that sexual harassment must occur between a man and a woman, in Australia this is not the case - it can take place between persons identifying with any sex or any gender. 

According to the Sex Discrimination Act 1984 (Cth), 'sexual harassment' includes unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature - the key element being that the behaviour is not welcomed by the recipient. 

The conduct needs to be assessed from the viewpoint of a reasonable person and whether the reasonable person would consider, in all the circumstances, that the recipient might be 'offended, humiliated or intimidated' by it. 

Even more seriously, sexual assault includes a person being forced, coerced or tricked into a sexual act against their will and without their consent. If the victim is a child, it's sexual assault regardless of any apparent consent. 

In cases where sexual assault is alleged in the workplace, the complainant needs to be advised that they can make a complaint to the Police. 

Should the conduct involve a minor, it may constitute 'reportable conduct' - which is required to be reported in accordance with the relevant state legislation, as well as to the Police. 

SO, is it flirting - or harassment?

Many interpersonal interactions between employees are, particularly in their early stages, subtler and more ambiguous than clear examples of harassment. Smiles, winks, compliments, sexual innuendo and humour, suggestive glances, or even a touch on the arm or shoulder could be seen by some as innocent flirting - but perceived by others as harassment. Recipients of such behaviour may wonder whether these comments and behaviours are friendly or sinister in nature, intentional or accidental, a one-time event or likely to persist. 

When determining whether behaviour might be sexual harassment, it can be made clearer by answering some important questions, such as: 

  • Does the recipient seem uncomfortable or fail to respond to comments or discussions?
  • Is one person involved in the conversation in a position of authority?
  • Could the person making the overtures impose real professional consequences on the recipient if they were turned down?

the role of touching in sexual harassment

It is clear that engaging in unwanted touching is an even more serious offence than making offensive or inappropriate comments or suggestions. For this reason, many employers consider it prudent to ban physical contact in the workplace beyond simple handshakes. Of course, this can also have an impact on how friendly the workplace is perceived as being, so depending on your workplace, it may be more appropriate to closely monitor physical interaction rather than ban it outright. Generally speaking, however, those in positions of power such as managers or supervisors should avoid physical contact where possible. 

the role of power and status

Interestingly, studies have revealed that some men in positions of power find their roles inextricably linked to sex - meaning that they struggle to differentiate between women (or other men, if that lines up with their sexual orientation) who are sexually responsive, or who are simply being friendly. For many reasons, not least to protect a business against potential claims of harassment, employers must do their best to minimise the potential for any inappropriate conduct to occur between managers and supervisors and staff. 

So what should employers do?

Employers have a duty of care to their employees to make sure that they are safe and protected while at work. Employers must have clear policies in place on what types of behaviour are considered to be sexual harassment, and how complaints can be made. Policies should be well communicated to all staff, and staff should be educated on what is expected of them regarding behaviour in the workplace. 

In order to protect your business and staff against flirting going too far and turning into sexual harassment, contact WISE Workplace today for expert assistance with workplace investigations, anti-sexual harassment training and assistance with reviewing or drafting your policies.  

Workplace Party Pitfalls and Perils (A Christmas Story)

Vince Scopelliti - Wednesday, November 15, 2017

At a time when workers increasingly work remotely, communicate online or use hot desks, the annual staff Christmas party is a valuable opportunity to get everyone interacting face to face. 

A Christmas party is also a good way of getting staff who rarely see one another during the working week to meet, to reward staff for hard work, to celebrate the success of the past year, and to motivate employees for the year ahead. 

At the same time, it is essential that reasonable steps are taken to manage the risk to the organisation's reputation, to provide an environment free from discrimination and to protect the health and safety of all involved in the Christmas party. 

Small wonder then that there is a fine line between potentially permitting a situation to get out of hand, and being so risk averse that you kill the fun of the party altogether. 

Here's a quick guide for employees and employers on how to avoid the potential perils of the work Christmas party.

when is a party classed as a workplace event?

First, in order for a business to be legally liable for events that occur at a Christmas party, it must be considered a 'workplace event'. However, this can extend beyond something which is specifically labelled an 'end of year function' or 'Christmas party', and can include something as informal as a picnic or a sporting activity - or even an unplanned and spontaneous event like an after party. 

The factors that determine whether something is defined as a workplace event include:

  • Whether the employer sponsored or funded the event.
  • If the employer was involved in organising the event or issued invitations.
  • Whether attendance was voluntary or whether the employer expected attendance - for example, by requiring employees who did not attend to take annual leave or work instead. 
  • If employees consider it a 'perk' of employment to attend the event.
  • Whether the employer benefitted from the event, for example by having the opportunity to present awards or network with clients.  

SO HOW CAN THINGS GO WRONG?

Some notable mishaps from past Christmas parties include: 

  • The dismissal of an employee for haranguing and then pushing a fully clothed co-worker into a swimming pool. That decision was upheld by the Fair Work Commission, despite noting that the employer should not have provided virtually unlimited alcohol. Another factor was that the employee was asked to leave by the general manager, but refused to do so, engaging in a physical altercation with him. 
  • An employee urinating off a balcony on Darling Harbour onto dining patrons below was sacked for misconduct. 
  • A formal warning was given to a police officer who used a genital piercing to open beer bottles during a party. 
  • Another employee lost his job after faking his wife's illness to miss his own Christmas party - only to attend that of a competitor.   

how employees can have fun and stay out of trouble

There are a few important things employees should be aware of: 

  • What happens at the party will almost certainly not stay at the party. Quite apart from water-cooler gossip and the potential repercussions of people remembering what you said or did after that fifth glass of wine, there's also potential for humiliating photographs or embarrassing posts to be shared on social media. 
  • Employees should set and stick to limits. Good working relationships can be quickly destroyed, and respect lost, through foolish or careless behaviour by those who have over-imbibed. 
  • Once your reputation has been damaged, it can be incredibly difficult to repair it. Remember that you will need to see your colleagues and any other guests again - if not on Monday, certainly after the Christmas break. 

Instead of overdoing the alcohol, use the party as an opportunity to network with other people in your organisation whom you may not know as well. The Christmas party should be an opportunity to have fun and form more personal connections, with a view to improving your overall work life.

WHAT EMPLOYERS MUST DO

In order to minimise any potential pitfalls from the Christmas party, employers need to know a few key things:

  • If a function is deemed to be a workplace event, then the employer owes a duty of care to employees. This includes being held vicariously responsible for any injuries, discrimination, harassment, or potentially for anything the employees do wrong, such as breakages. 
  • Service of alcohol is the responsibility of the employer. Although employees should feel free to have a good time without undue restrictions, it is up to the employer to ensure that nobody is excessively intoxicated. Some employers may also wish to provide alternative transport home, such as Cabcharge vouchers. 
  • Employers should make it clear exactly when the function starts and finishes. Setting a specific end time for the festivities assists with limiting the employer's duty of care to a finite window, after which point anything that happens at a different venue could be considered to be 'off the clock'. 
  • Employees should be reminded that, even though the event may not be held at the workplace, the usual rules of conduct apply. This includes reminding employees of the company's sexual harassment, bullying and anti-discrimination policies. 
  • Remind employees to be culturally sensitive, especially noting that not all people celebrate Christmas, and ensure that any gifts sanctioned at the workplace event, such as Secret Santa, are not inappropriate or offensive. 

How to deal with any misconduct 

If something does go wrong at the Christmas party, it is important for employers to deal with potential misconduct swiftly and fairly in order to minimise any fallout. WISE Workplace can assist with a professional and unbiased workplace investigation. 

When Gender is Irrelevant: Male-On-Male Workplace Harassment

Vince Scopelliti - Wednesday, November 08, 2017

Sexual harassment and predatory behaviour can happen to anybody. When most people think about this type of conduct, it is generally in the context of male-to-female harassment or, perhaps more rarely, female-to-male harassment. However, this is simply not the case - sexual harassment can be perpetrated by anybody towards anybody. 

A recent decision of the Civil and Administrative Tribunal of NSW highlights the potential for employees to be victims of sexual harassment and victimisation in the workplace, regardless of their gender. 

The decision in Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty also affirms the entitlement of workers to financial compensation when they have been subjected to sexual harassment. 

Inappropriate behaviour

In Kordas, the worker complained about various instances of inappropriate behaviour and sexual harassment during his employment as an apprentice hairdresser working for the respondent. 

The behaviour complained of by the worker included:

  • Being told by his employer that workers were similar to racehorses because 'they need a pat on the bum to go faster'.
  • Having his supervisor tell clients that he and the worker were similar to a gay couple and that they were very 'close'. 
  • Being followed into a private area, slapped on the buttocks with a ruler by his trainer and being asked to smack him back because the trainer 'like[d] being slapped on the bum'.
  • Humiliation by the trainer when he threw a hair clip onto the ground, in the worker's opinion, because the employer wanted to see him bend over. 
  • The trainer complaining that the worker had incorrectly clipped a cape onto a client
  • Feeling harassed when the worker asked the trainer if he felt they got along and the response was yes, because 'you're my bitch'. 
  • Upon complaining to his employer and asking why he was referred to as the salon 'bitch', being told 'I used to work in a restaurant. All the boys used to grab me by my boobs'. 
  • Being grabbed around the waist and physically moved by his supervisor instead of being asked to move out of the way. 
  • Having his palm stroked in a flirtatious manner by his employer when he was handed money for errands. 

The worker had initially complained to his boss, who was also the director and owner of the business running the hair salon, about being victimised. But no action was taken, and the worker was ultimately dismissed. 

The history of complaints

The apprentice stated that he had not complained initially about the inappropriate behaviour because he had wanted to keep his job. 

However, in February 2015, the worker finally complained to the employer about various issues he was experiencing, including very low wages, ongoing harassment and feeling that he was being sabotaged. Although the employer initially promised that everything would be sorted out, he then made the above mentioned comment, likening hairdressers to racehorses. 

At this time, the worker demanded changes in his treatment, but the employer denied ever having received any complaints or personally witnessed any harassment. 

The employer then advised the worker that there were no senior staff available to continue his training and dismissed him. The stress and emotions suffered by the worker as a result of this treatment ultimately caused him to leave his chosen profession of hairdressing, working instead as a barber. 

Findings of the tribunal

Upon hearing the complaints, Tribunal Senior Member Scahill and General Member Newman commented that although the harassing behaviour was not the worst they had ever seen, it had clearly impacted upon the apprentice in a very significant way and had caused him to change his future career plans. 

The nature of some of the inappropriate behaviour was found to be sexual harassment, particularly the physical contact and comments regarding being a 'bitch' and a 'gay couple'. Moreover, the significant disparity in power between an employer or senior employee and an apprentice was such that the worker was reasonably and clearly intimidated, humiliated and harassed. 

The employing business was also held vicariously liable for the conduct on the basis that it had failed to ensure a workplace free of harassment and had failed to appropriately respond to the worker's complaints. 

The worker was awarded compensation comprising:

  • $5,000 in general damages for the sexual harassment by the employer
  • $10,000 in damages for the trainer's sexual harassment
  • $15,000 for victimisation

As this case demonstrates sexual harassment and inappropriate conduct can occur in any workplace, and between any gender. If you are concerned about a case of potential harassment at your organisation, contact us for assistance. We offer both supported and full workplace investigation services. 

Considering Suspending an Employee? What Should You Know

Vince Scopelliti - Wednesday, September 06, 2017

When faced with an allegation of serious misconduct made against a worker, an organisation may seek to suspend the respondent. 

But in what situations is it appropriate to take this kind of action?

tHE LEGALITY OF SUSPENSION 

When taking the significant step of temporarily suspending an employee, an organisation must be able to demonstrate an objectively good reason for doing so. 

Once preliminary enquiries have indicated that there is prima facie evidence to support an allegation of serious misconduct, a risk assessment needs to be carried out, to determine what the risks are associated with suspending or not suspending the respondent. 

The risk assessment should include: 

  • Risks to the complainant and other workers should the respondent remain in the workplace and the potential psychological impact this may have, especially in cases of sexual harassment
  • Risks of the respondent interfering with witnesses or tampering with evidence
  • Potential impact of suspending or not suspending the respondent on the morale of the workforce and the reputation of the organisation
  • Potential impact of suspension on the respondent
  • Whether the suspension or non-suspension is in accordance with the relevant disciplinary policy. 

Generally, it is appropriate to suspend a worker if an investigation into their serious misconduct is being carried out, and their continued presence in the workplace may jeopardise the process. This could include concerns about the misconduct continuing undue influence on or harassment of witnesses, or safety and security issues.

It is important to bear in mind the distinction between 'standing down' and 'suspending' an employee.

In a 'stand down' situation, the employee has not necessarily done anything wrong but the employer cannot usefully employ them for reasons that are outside the employer's control - for example, a fruit picker who cannot continue working during a significant weather event. In those situations, the employee is not paid during the stand down period. 

However, during a suspension period, the employee remains entitled to all rights of their employment contract, except the right to attend work to undertake work duties. 

An alternative to suspension could include redeploying the employee into another area, if the conduct is not of the most serious kind and or if the employer has an alternative site or role available. 

Circumstances leading to suspension 

Suspension should only be utilised in the most serious situations, where the only appropriate next step would likely be termination of employment. 

As such, appropriate circumstances leading to a suspension of an employee generally include accusations of serious misconduct such as defined in Regulation 1.07(2) of the Fair Work Regulations 2009 (Cth)

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
  • Conduct that causes serious and imminent risk to the health or safety of a person; or
  • Conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer's business;
  • The employee, in the course of the employee's employment, engaging in:
            • theft;
            • fraud; or
            • assault;
  •  The employee being intoxicated at work; and
  • The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. 

Generally, it is appropriate for an employee to be suspended at the beginning of a workplace investigation, although the employee can be suspended during the course of the investigation if it becomes apparent that their presence is or could be interfering with the investigation.

Appropriate conduct by an employer during a suspension

During a period of suspension, an employee is generally asked to keep away from the workplace, colleagues and clients of the business. If they are on full pay then they are generally not entitled to conduct any outside of work employment without the employers consent. 

Although a suspension may be the precursor of a final dismissal once the investigation has been finalised, employees who have been suspended remain entitled to a number of rights, including:

  • Full pay during the period of the suspension
  • Regular review of the suspension period
  • An endeavour to keep the suspension as short as possible
  • A clear explanation of the reasons for the suspension and the anticipated length of the suspension
  • An explanation of the employer's expectations of the employee during the suspension period, such as requiring the employee to be available by telephone during normal business hours. 
  • An assigned contact within the human resources or management team with whom the suspended employee can liaise. 

Avoiding further legal issues

Suspending an employee from the workplace is a serious intrusion on their employment and personal rights. It is essential that employers ensure that all criteria of appropriate conduct are met, in order to avoid a situation where it may be argued that the suspension amounted to a constructive dismissal. Ensuring procedural fairness, transparency and clarity in the process will assist with this objective. 

If you require assistance with a workplace investigation where an employee has been suspended, contact us. We provide full independent and transparent investigation services, or supported investigations where we offer advice and guidance as you compete the process.