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.

Bullying in High Stress Workplaces: Can an Investigation Help?

Vince Scopelliti - Wednesday, August 30, 2017

A disproportionately high number of allegations of bullying in emergency services and other high stress environments have led to a referral to the NSW parliament for an inquiry in May 2017, looking at the policy response to bullying, harassment, and discrimination in certain emergency services. A review is also being conducted by the Victorian Equal Opportunity and Human Rights Commission of allegations of bullying and harassment into the MFB and CFA. 

The very nature of the tasks undertaken in these workplaces understandably provokes a variety of extreme responses in both senior and lower-level staff. A combination of observed trauma, time-critical demands and associated spikes in adrenaline for individual professionals can lead to tense communication and decision-making.

It is essential that Human Resource (HR) managers take an objective approach towards all issues raised by the parties when allegations of bullying in emergency services arise. 

In many cases, a well-planned workplace investigation will mark the difference between costly repercussions and an efficient resolution of issues within these high stress environments. 

Alarming workplace reports

Incidents of workplace bullying are on rise across Australian emergency contexts. A 2017 report on emergency departments highlighted the deplorable extent of workplace bullying reported amongst emergency doctors. Shaming, verbal abuse and sexual harassment were just some of the parlous behaviours reported by 1/3 of survey participants.

Similarly, NSW has announced that the extent of workplace bullying within emergency services now requires a dedicated investigation. There are indications that the hierarchical nature of these services leads to the depersonalised treatment of personnel involved. 

Submissions for the NSW Parliament inquiry closed in July, with hearings scheduled for September - October 2017. During the inquiry, police, ambulance and fire services will each be scrutinised in relation to allegations of bullying and the troubling aftershocks that can accompany such incidents. 

Workplace bullying and hr responses

The importance of HR departments in recognising and dealing promptly with allegations of workplace bullying in emergency services cannot be overstated. 

As part of this focus, it is essential that any workplace investigation into alleged bullying be carried out in a professional and objective manner. Moreover, important decisions need to be made about an organisation's capacity to conduct an investigation that complies with the demands of procedural fairness. 

In some matters that are likely to prove particularly complex or sensitive it might be preferable to source the expertise of a trained workplace investigator. 

If HR managers can find prompt and accurate answers to these questions, any future costs of workplace disputes are likely to be mitigated. 

THE good and the bad of workplace investigations

Unfortunately, even a workplace investigation, if carried out without careful preparation and execution can be entirely unproductive - or even a costly blow to the organisation. At times, employers can underestimate their own lack of objectivity during investigations of workplace bullying. Unlike many workplace procedures, knowing the people involved can actually prove a hindrance to workplace investigations. The ability to see things in a truly fresh and clear manner is crucial to investigations; and sometimes hard to muster if preconceptions exist. 

Some employers are fortunate enough to have within their ranks staff that are fully trained in the nuances of workplace bullying allegations and the right way to conduct workplace investigations. When carried out correctly, an in-house investigation can do all that is necessary to produce a fair and accurate investigation report. 

Yet if any doubt remains about the potential bias, pre-judgement or lack of resources within the organisation, then an external workplace investigation will pay dividends. If an investigation has fatal flaws that are later picked up in official proceedings, then employers will find themselves in an unenviable position.  

investigation woes: a case in point

In a recent Federal Court matter, Justice North made a piercing analysis of the deficiencies in one organisation's methods of investigation. Victoria's Royal Women's Hospital conducted a workplace investigation into the alleged contribution made by a neonatologist to the deaths of two infants. His Honour explained that the deficiencies within the investigation report were significant. Vague allegations against the worker and the lack of specifics concerning event, time and place led to a report that was devilled by 'apparent holes' as well as 'pollution' from fraught relationships. 

The case highlights the importance of gaining true objectivity from the situation whenever a workplace investigation is undertaken.

Care at every turn

Employers understand that when allegations of workplace bullying arise it becomes essential to keep the elements of procedural fairness front-and-centre. HR and senior management must make fast and accurate decisions about how and when to activate a workplace investigation. 

Considering the disproportionately high number of allegations of workplace bullying in emergency services, it is hoped that good decisions are made around the best way to investigate these troubling situations. 

Should you or your organisation be seeking clarity on the best way to conduct a workplace investigation, please get in touch with us. 

Complaints Management Under the NDIS

Vince Scopelliti - Wednesday, August 09, 2017

The National Disability Insurance Scheme (NDIS) was introduced in mid-2013 to facilitate a support system for disabled Australians. In many ways, this has begun to streamline and simplify the process whereby many thousands of Australians under the age of 65, who have sustained a permanent and residual disability, are able to access healthcare services. But what happens when the system goes wrong and complaints need to be made about behaviour occurring within the purview of the scheme?  

REGULATORY FUNCTIONS OF THE NDIS

Broadly, the NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth). It is administered by the National Disability Insurance Agency (NDIA), which holds all funds in a single pool, manages funds, administers access and approves the payment of support packages. The NDIA Board, which is advised by the National Disability Insurance Scheme Independent Advisor Council, ensures the strategic direction and general performance of the NDIA. 

The NDIS Quality and Safeguarding Framework has been set up to ensure a nationally uniform approach as to how participants of the scheme will be assisted and supported. 

The NDIS Complaints Commissioner, the NDIS Registrar and the Senior Practitioner hold important roles in the complaints process under the NDIS.

Providers who wish to operate within the NDIS must:

  • Comply with all state and federal laws
  • Participate with the NDIS Code of Conduct
  • Engage in the NDIS Resolution Process

mandatory reporting regime

In NSW, the Disability Inclusion Act 2014 requires mandatory reporting for serious incidents of abuse or neglect of the disabled in the supported group accommodation setting. If this is suspected, an investigation must take place. 

Any such serious incidents must be reported to the NSW Ombudsman within 30 days of the incident occurring. 

In Victoria, The Department of Health and Human Services has developed a new Client Incident Management System (CIMS) to improve the safety and wellbeing of clients. In addition, they have recently established a Reportable Conduct Scheme (RCS) under the Child Wellbeing and Safety Act 2005 to improve on how organisations prevent and respond to allegations of abuse. This came into effect on 1 July 2017. 

According to the NDIS Quality and Safeguarding Framework (released 9 December 2016), once the NDIS has been rolled out and takes effect, registered providers must notify all 'serious incidents' to the NDIS Complaints Commissioner.

These include: 

  • Fraud-related incidents
  • Alleged physical or sexual assault by an employee against a resident or scheme participant, or by one participant against another while both are in the care of a provider
  • Obvious neglect
  • Serious unexplained injury
  • The death of a scheme participant (This must be notified regardless of how the participant died)
  • Unauthorised use of restrictive practices

It is particularly important for employers to monitor staff to ensure that they are compliant with their obligations under the NDIS, and other legal frameworks.

How the ndis complaints procedure works

Generally speaking, any complaints regarding providers of NDIS-funded support systems go directly to the Commissioner, who triages cases and makes an assessment of who should deal further with the complaint. 

The Commissioner will also:

  • Investigate serious incident reports
  • Review breaches of the NDIS Code of Conduct

In order to undertake this role, the Commissioner has commensurate powers of investigation and information-sharing with appropriate industry bodies. 

In the event that the Commissioner does not wish to hear a matter, the NDIS Registrar is empowered to hear matters related to non-compliance of requisite standards by providers under the NDIS. 

Finally, the Senior Practitioner is entitled to hear matters relating to:  

  • Inappropriate or unauthorised use of a restrictive practice
  • Unmet disability support needs. 
The Commissioner is also entitled to refer matters to such external agencies as considered necessary, including the police, the Australian Health Practitioners Regulatory Agency (AHPRA) or other relevant regulatory bodies. 

Individual participants of the NDIS who are self-managed can make complaints about providers directly to the Commissioner. This complaint mechanism can be utilised even if the provider is not directly registered with the NDIS. Further, complaints may be made to other industry bodies, such as AHPRA or industry-specific organisations. 

The ability to make a complaint is also not limited to recipients of services under the NDIS - any person can make a complaint about an action taken by a NDIS provider. 

A separate complaint process is required if a scheme participant is concerned about decisions made by the NDIA (as opposed to inappropriate behaviour being engaged in by a service provider). 

WHAT ARE PROVIDERS REQUIRED TO DO?

It is a requirement for NDIS providers to have in place an effective internal complaints management scheme, and they must commit to maintaining a detailed schedule of complaints received and responses proffered, specifically in order to assist the Commissioner if necessary. 

Employees who report inappropriate behaviour or otherwise raise concerns about their workplace to the Commissioner are entitled to whistleblower protections as enshrined in the relevant legislation.

WHAT HAPPENS IF A PROVIDER ISN'T COMPLIANT? 

In the event that employers or providers of NDIS-related services are not complying with the applicable Code of Conduct, the Commissioner, or the Registrar can step in to review the provider's adequacy. 

In addition to assessing providers against adherence to the Code of Conduct, the Commissioner will consider whether providers have duly complied with mandatory reporting requirements, or have otherwise had complaints made against them. 

If either the Registrar or the Commissioner determines that a breach has occurred, the provider may be required to undergo additional education and training, operate subject to various conditions, or in the worst circumstances, be excluded from participation in the NDIS. 

It is essential for providers of services under the NDIS to have a strong complaints management focus in order to ensure ongoing compliance with the requirements of the NDIS and NDIA. If your organisation has received a complaint of disability abuse or other concerns relating to your management and implementation of the NDIS, and you require assistance with a workplace investigation, contact us

Investigating Allegations of Abuse in Care in Aged Care Facilities

Vince Scopelliti - Wednesday, August 02, 2017

Aged care providers have been in the media spotlight in recent weeks. While some are alleged to have financially exploited the elderly others are alleged to have provided a substandard level of care. Research conducted by Curtin University in 2015 suggests that some 167,000 older Australians may be subject to abuse annually.

Like many other types of domestic or sexual violence, it is also likely that elder abuse is significantly under-reported, so the true scope of abuse may be far greater.

what is elder abuse?

According to the World Health Organisation, elder abuse is 'a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.' The perpetrators of elder abuse can include children, spouses, friends and neighbours, or staff at care facilities where the victims reside. 

There are many different forms of elder abuse, including:   

  • Physical Abuse - Inflicting physical pain, injury or impairment. Can include forcibly restraining or inappropriately requiring the consumption of drugs. 
  • Emotional or Psychological Abuse - especially through intimidation, humiliation, mockery, isolating, ignoring, or menacing the elderly person. In a care facility, this could include repeatedly and intentionally ignoring calls for assistance. 
  • Sexual Abuse - apart from the obvious, this can include forcing the elderly to watch pornographic material, or even forcing them to take their clothes off without legitimate reasons. 
  • Neglect or Abandonment - failing to provide a requisite standard of care. 
  • Financial Abuse - includes outright theft, coercing elderly people into handing over funds or altering wills. Of particular concern are situations where carers are granted enduring powers of attorney, which enable the holder to undertake all legal actions that the person otherwise would be entitled to. Enduring guardianships relate to the right to make medical or health-related decisions on behalf of another person. 
  • Healthcare Fraud - such as billing for services which have not been provided, or intentionally over/under-medicating for a self-interested reason such as 'kickbacks' from pharmaceutical providers.

what are the signs?

Potential signs of the various types of elder abuse include:

  • A bad or unusual relationship between a care provider and recipient. 
  • Unexplained injuries
  • Insistence by the caregiver that the victim is never attended to without them being present.
  • Behaviour mimicking dementia (even when the victim does not suffer from this condition), which may suggest an emotional regression due to ongoing abuse. 
  • Ongoing poor hygiene and living conditions.
  • Significant financial withdrawals being made from the victim's accounts, or noticeable and inexplicable generosity by the suspected victim towards a specific caregiver. 

Of course, this is not an exhaustive list. Care providers and employers should ensure that any behavioural or physical changes in their clients are observed and monitored, particularly sudden ones, which occur without explanation. 

In terms of the Aged Care Act 1997, Section 63-1AA the definition of a mandatory reportable incident for persons in residential care include unlawful sexual contact and unreasonable use of force on a resident. 

Providers are required to report to the Department of Health and the Police within 24 hours if they have any suspicion or allegation of reportable assault. 

For person receiving home or flexible care, reportable incidents to the Department of Health include financial abuse. This does not extend to residents in aged care facilities, however, residents' financial abuse still needs to be reported to the Police. 

common risk factors for elder abuse

In the context of care facilities, the greatest risk factors for elder abuse include: 

  • Poor staff training or lack of awareness about what type of treatment is expected to be provided. 
  • Unhappy working conditions, contributing to staff feeling that they need to 'lash out' at clients.
  • Excessive responsibilities and inadequate levels of support. 
  • Inappropriately vetted staff, including those with substance abuse issues. 
  • Inadequate policies and procedures related to the protection of vulnerable people and a lack of staff awareness of these policies. 
  • Inadequate complaint handling mechanisms. 

Residents who may be particularly likely to become victims of elder abuse include those who are physically or mentally frail, or those who may be perceived as being very unpleasant to work with - causing care workers to demonstrate inappropriate frustration or aggression.   

How to prevent the risk of ELDER ABUSE

Apart from remaining vigilant about the potential risk factors and apparent signs of elder abuse, care facilities must ensure that:

  • All resident and staff concerns are appropriately listened to and noted. 
  • All staff have have undergone criminal checks.
  • Intervention occurs immediately when elder abuse is suspected and workplace investigations are thorough and swift. 
  • All staff are appropriately trained in the relevant policies and procedures and how to recognise and prevent elder abuse.  

COMPLICATIONS ARISING FROM THE AGEING MEMORY

Mild memory loss and a slowing down of thinking is a natural part of ageing. But while many elderly people are still capable of managing their own affairs, others who have serious conditions such as dementia may lose the capacity to do so.

In some cases, the simple fact that a person has an ageing memory may mean that they are treated as though they do not have any capacity to make decisions for themselves, and are thus at greater risk of elder abuse. 

In the context of patients with dementia or other serious memory loss issues, any complaints they raise may be discounted out of hand as being fabricated. However, when coupled with other signs of potential elder abuse, they should be investigated. 

Complications can also arise around eyewitness memory and conducting interviews in workplace investigations. In such cases, cognitive interviewing techniques can be helpful. 

This may include allowing a witness to draw a sketch or use visualisation techniques, asking them to explain everything that occurred, taking them over events in reverse order, and asking them about how they were feeling at the time of the event can all assist in memory recall. 

Conducting investigations into elder abuse in care contexts can be challenging. The WISE Workplace team is experienced in conducting independent, competent and unbiased investigations into reportable conduct and abuse complaints in care settings. Contact us to discuss your needs, and how we can help. 

Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

Vince Scopelliti - Wednesday, July 26, 2017

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

facts of the case

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

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

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

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

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

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

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

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

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

decision of the commission

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

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

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

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

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

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

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

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

Legality of secret recordings

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

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

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

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

The Key message FOR EMPLOYERS

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

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

Protecting Whistleblowers During Workplace Investigations

Vince Scopelliti - Wednesday, July 12, 2017

Feedback from employees is crucial to employers wanting to keep their finger on the pulse of a business. It is essential for management to be aware of risky behaviours occurring within a workplace, such as bullying, circumstances giving rise to easily preventable worker's compensation claims, failure to comply with regulations, corruption, or even criminal activities such as embezzlement, theft or fraud. In many circumstances, this information will only become available through the cooperation of whistleblowers. 

In order to ensure that accurate information is conveyed, it is essential for businesses to make sure that potential whistleblowers are protected from persecution, ridicule or reprisals during the investigation. But how does this occur in practice?

WHAT IS A WHISTLEBLOWER?

A whistleblower is somebody who reports internal wrongdoing within an organisation, either to a senior member of the organisation or to an external authority, such as the police or the Australian Securities and Investment Commission (ASIC). 

Generally speaking, protection is afforded to those who are current employees, officers or even contractors who are engaged in providing goods or services to an organisation. 

Information which is provided to an employer by a whistleblower is considered a 'protected disclosure', which must remain confidential and which can only be passed on if specifically authorised by law or by the whistleblower. 

how are whistleblowers protected?

There are various sets of state-based legislation which provide different types of protection for whistleblowers operating in the public sector. However only in South Australia are those working in the private sector afforded similar protections. In SA, the Whistleblowers Protection Act steps in to protect people who provide information:
  • Which the genuinely believe is true.
  • Which can be considered to be in the 'public interest'.
  • Which is provided to an appropriate authority. 
Nationally, the Australian Standard AS 8004-2003 sets requirements for the implementation of whistleblowing schemes in private enterprises. Under these requirements, the identity of the whistleblower must not be disclosed unless specifically authorised by law, and the information provided must also be kept confidential. 

At federal level, the Commonwealth Corporations Act 2001 also provides specific protections for whistleblowers, which prohibits any action, including personal or professional retaliation, from being taken against a person who has disclosed wrongdoing. In the event that any such retribution occurs, the Act provides a civil right for whistleblowers to sue reinstatement of employment. 

Alternatively, if a whistleblower suffers any other loss as a result of their disclosure, they can claim compensation for damages suffered directly from the alleged wrongdoer. 

The Act stipulates that whistleblowers cannot be subjected to criminal prosecution or civil litigation because of their involvement in providing protected information.    

However in order to fall within the protections set out in Paragraph 1317AA of the Act, it is necessary for:
  • The whistleblower to provide their name.
  • There to be reasonable grounds to suspect a breach of the Act and the report is to be made in good faith.
  • The whistleblower to be a current employee or director (of course, this is problematic in circumstances where the person was recently sacked or otherwise resigned from their employment)
In June 2017, the federal government announced its intention to introduce legislation which updates and improves on whistleblower protections, including potentially incentivising whistleblowers with financial rewards for providing information which has resulted in successful prosecutions.   

HOW YOUR ORGANISATION CAN ASSIST WHISTLEBLOWERS

Although Australia has some legal provisions in place to ensure that whistleblowers are protected from reprisal or other involvement in litigation, there is still much more that can be done to encourage the reporting of wrongdoing observed within a company. 

If you are concerned that your workplace may not provide sufficient incentive to employees to report wrongdoing, or provides insufficient support to those who do reveal sensitive information, sign up to WISE Workplace's 24/7 whistleblower program, Grapevine. The program offers independent monitoring of complaints and assessments of appropriate methods of dealing with complaints, as well as advice on how best to advise your employees that they are entitled to whistleblower protections. 

Ensure that your organisation is strengthened internally by implementing a strong whistleblower policy to guarantee that all staff feel comfortable providing information relating to misconduct or inappropriate behaviour. 

Is Your Complaints Procedure Effective?

Vince Scopelliti - Wednesday, July 05, 2017

Risk management is an important aspect of running a successful business: Whether this takes the form of ensuring compliance with corporate governance programs, reducing instances of workplace fraud or financial misconduct, or eliminating bullying or other forms of harassment. 

Having a strong and coherent whistleblower program in place can help protect your organisation's interests in all of these situations. 

An ineffective complaints system could in fact be preventing your employees from raising any complaints. 

So what are the hallmarks of an effective whistleblower program?

Provide confidentiality and support

An effective complaints system should enable your business to identify hotspots, respond to critical incidents and communicate confidentially with reporters. It should also provide employees with a safe and secure environment to report misconduct, enable insightful management and the ability to bring about real cultural change, and reduce corporate risk. 

Perhaps the most crucial component of a successful complaints system is that complainants are guaranteed confidentiality and employer support throughout the whole process. This is particularly important as those who are considering blowing the whistle on co-workers or supervisors may be concerned about reprisals or the potential impact on their employment. 

This is especially likely to be the case in circumstances where the reported conduct involves sexual harassment, workplace bullying or criminal behaviour, such as fraud or theft. Employees considering making a complaint should be offered the opportunity to make anonymous complaints to reduce the fear of retaliation. 

The following statistic are particularly insightful: 

  • A third  of all reports made through whistleblower programs relate to bullying and harassment
  • 67% of people experiencing bullying or harassment do not report it
  • 42% do not report it for fear of negative consequences
  • 49% of misconduct is reported by employees. 

ESTABLISH CLEAR PROCEDURES AND GUIDELINES

It is crucial that reporting systems in your workplace are clearly identified and communicated to all staff. This includes making it clear to all employees how a complaint should be made (including an anonymous complaint), to whom, and what the follow-up process will be once a complaint has been lodged. 

This information should be readily available and easily accessible. 

DON'T MAKE EMPTY PROMISES

Once a whistleblower program is in place in your business, it is important for those utilising the service to feel that their complaints are being taken seriously and will be dealt with and responded to in an appropriate fashion.  

Privacy concerns and operational strategies may mean that complainants are not privy to all aspects of any ultimate disciplinary or punitive processes imposed on those against whom complaints are sustained. It is nonetheless important to confirm with the complainant that it has been duly and independently investigated, and that it has been resolved to the business' satisfaction.

CRACK DOWN ON REPRISALS

It is equally important for your organisation to have a strong and transparent policy to deal with reprisals or victimisation of whistleblowers. In some circumstances, even if confidentially is offered, only a little bit of logic may be required to deduce who made a complaint against another staff member. This maybe particularly relevant if your business is small or if the circumstances surrounding an allegation involve only a few people with detailed knowledge of the facts. 

If anyone involved seeks to retaliate either physically, verbally or by affecting the whistleblower's employment, it is crucial for your organisation to demonstrate a swift and clear zero-tolerance response.  

IMPLEMENTING A PROGRAM CAN BE CHALLENGING

Ensuring easy communication and the ability for staff to raise complaints where necessary, benefits all employees by improving an organisation's ability to deal with risks and increasing employee satisfaction. 

However, implementing an effective whistleblower program can be difficult, particularly in a smaller business with limited resources. It can also be a complicated task to provide a program that responds quickly and is impartial. 

At WISE Workplace, we offer an independent whistleblower hotline program that is ready to take complaints 24/7, provide assessments on the urgency of complaints, and offer expert advice on the dealing with complaints. Contact us to find out more.   

When the Line Blurs: Restrictive Practices vs Assault

- Wednesday, June 14, 2017

It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.  

As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client's own safety or to protect another person. 

However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.   

WHAT ARE RESTRICTIVE PRACTICES?

According to the Australian Law Reform Commission, the definition of 'restrictive practices' are actions which effectively restrict the rights or freedom of movement of a person with a disability.

This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions). 

Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.

Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute 'best practice' for disability support.

KEY CONCERNS WITH RESTRICTIVE PRACTICES

As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault. 

While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred. 

Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening. 

While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.

    WHAT IF AN ALLEGATION OF ASSAULT DOES ARISE?

    The provision of disability services is a challenging industry at the best of times. It's important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault. 

    Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients. 

    At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.   

    ACT Launches Reportable Conduct Scheme

    - Wednesday, June 07, 2017

    If there's one thing that's been made clear from the recent Royal Commission, it's that the protection of children and the reporting procedures around child abuse need to be improved. 

    In August 2016, largely in response to the commission, the ACT Government passed legislation designed to cast a 'wider net' when it comes to the scrutiny of child abuse and the protection of children within certain organisations.

    The ACT Reportable Conduct Scheme will take effect from July 1 2017. The scheme is designed to ensure that there are processes in place for allegations of employee abuse of children, and that these allegations are independently reviewed. 

    In essence, it provides a mechanism for employers to report employee misconduct in relation to children, with the ACT Ombudsman acting in the role of independent oversight body.   

    WHICH EMPLOYERS DOES THIS APPLY TO?

    Certain types of employers that work with children will be covered under the scheme, including health service providers, foster care and out-of-home services, residential care providers, schools and educational services. 

    In general, religious organisations (other than schools), instructional services (such as teachers of sports and music), scouts/guides and universities will not be included under the scheme. 

    The term 'employee' in this instance refers not only to workers but also to contractors and volunteers within the relevant organisation, whether or not they work directly with children. This means conduct may be reported even if it is of a personal and non-professional nature.  

    WHAT ABOUT OTHER REPORTING PROCESSES? 

    It's important to be aware that the scheme will not override other reporting obligations - such as that of suspected crime to the police, or mandatory reporting of serious abuse or neglect of children to the Child and Youth Protection Services (CYPS). However, it does cover a wider range of behaviours in relation to children, and also provides a mechanism for employers to report conduct not covered under other mandatory reporting programs. 

    WHAT EMPLOYERS NEED TO DO

    ACT employers covered by the scheme will need to notify the Ombudsman within 30 days of suspected or actual misconduct by an employee in relation to children. These acts of misconduct include neglect, mistreatment, psychological harm, sexual misconduct or inappropriate discipline. 

    Employers will also need to:  

    • Perform investigations into alleged reportable conduct and provide a written report to the Ombudsman. 
    • Report to other bodies as required - including the police, the human rights commission, CYPS and others. 
    • Review and amend their organisational policies and procedures where necessary.
    • Inform and educate employees regarding any new or amended policies and responsibilities. 

    THE OMBUDSMAN'S ROLE

    The scheme is designed to go beyond just reporting misconduct. For instance, the Ombudsman's role in regard to this is also to monitor and analyse trends, share information with other authorities as required, provide guidance to organisations regarding child protection, and monitor the practices of employers in relation to child safety and prevention of abuse.

    WHERE TO FROM HERE?

    WISE Workplace provides independent investigation services for organisations into reportable conduct, and training on how to respond and investigate allegations. 

    The Risk of Ignoring Reports of Sexual Abuse

    - Wednesday, May 31, 2017

    The matter of  Matthew v Winslow Constructions Pty Ltd brings to light the importance of duty of care in a sexual harassment matter. The Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, 

    This case bares similarities to Trolan v WD Gelle Insurance and Finance Brokers notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. 

    Long gone are the days when a written complaint of such behaviour is needed. The Trolan and Matthews matters both demonstrate that where such extreme behaviour is occurring in the workplace, employees don’t need to put concerns to the employer in written form in order to ‘inform’ the employer of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

    Courage TO TELL 

    In August 2008, Ms Matthews commenced working as a labourer with Winslow Contractors. Between August 2008 and early July 2010, Ms Matthews was subjected to a relentless assortment of unwanted and lewd sexual advances from a number of site workers, including by her foreman. The behaviour included several threats of physical and sexual assault, intimidation, and bullying. On occasions when Ms Matthews verbally complained to management, nothing appeared to be done about her complaints. In September 2009, Ms Matthews was moved to a different site crew and the behaviour stopped. However, in late June 2010 Ms Matthews was moved back to the original site and the behaviours resumed, including the threat of rape. Ms Matthews reported the matters over the telephone, on 1 July 2010, to whom she believed was the person in charge of HR. Instead of a change in the behaviours occurring, Ms Matthews was further harassed and asked to 'come round, we will have a drink and talk about it'

    SILENT DAMAGE

    Ms Matthews did not return to work after 1 July 2010 and was found by her doctor to have suffered a severe work-related injury, with an incapacity to work again. The essential cause of her diagnosed psychiatric illnesses, including PTSD, was the sexual harassment and bullying that she had endured over a period of time while working at Winslow Contractors. And for part of this time, it was with the full knowledge of her employer. 

    LISTEN OUT

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

    LINGERING PAIN

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

    WORDS ARE ENOUGH 

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

    ACT EARLY 

    The lesson from Matthews? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $1.3 Million for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, or if it is observed, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

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