Wall of Silence: Banding Together to Avoid Detection

Jill McMahon - Wednesday, May 18, 2016
Protection from Detection

The saying “safety in numbers” can apply to so many situations. For example, a group of students may be more empowered than an individual to stand up to a school bully. Walking dark city streets with a group of people may be safer than walking alone. The list goes on.

But the term can also be turned on its head and applied in more sinister circumstances. We have seen this in instances of workplace corruption, in which a group of corrupt employees commits workplace fraud and then closes ranks to prevent detection. It is a wall of silence that enables powerful alliances to be formed. Its success depends upon members keeping quiet about the activities of the group.  

Strength of the “in” group

We think of these alliances as “in” groups. Their power is derived from peer group pressure, and mutual benefit of identifying within the group which is a concept explored in social identity theory.

But it goes further than this. In cases where there has been a complaint or an investigation by management, the “in” group can close ranks by providing false evidence or even applying upward pressure on management to abandon the investigation. 

The “in” group may also work to ensure that there are narrow terms of reference for any investigation into corrupt conduct. This may have the effect of limiting the number of witnesses who can be interviewed or limiting the questions that can be asked. As a result, the investigation may be rendered ineffective. 

The group may ensure that any complaints to a human resources manager are filed as trivial. In our article on alliances and networks, we illustrated how a web of corruption can be extended to include managers and additional departments as a corrupt employee is promoted through the ranks. 

In this scenario, the HR manager would be part of the “in” group. They can create the impression that they properly investigated the complaint by informally discussing the matter with some witnesses and making a file note that the matter has been considered and closed. But in reality the issue still exists.

 Is it really an issue?

Because corrupt conduct can be so difficult to detect, it is hard to determine how bad it really is. 

In its Global Economic Crime Survey 2016, PwC reported that there has been a marginal decrease in economic crime. 

But it noted that this may have been due to organisational detection and control programs failing to keep pace with changes in the ways that economic crimes are now being committed. 

As evidence of this, around 22% of respondent organisations said that they had not conducted any fraud risk assessments in the two years prior. This was despite more than one-third of respondents saying that they had experienced economic crime in that same period. And it also appeared that one in ten economic crimes were accidentally discovered, rather than being uncovered by management controls. 

What can be done?

We’ve said it before and we’ll say it again – preventing workplace corruption lies in effective management controls and early detection. 

Early detection can be assisted by organisations implementing:

  • Supervision and checking processes.
  • Sound internal reporting systems.
  • Complaint and grievance procedures that are properly followed.
  • Internal audits.
  • Work review programs. 

Corruption is ever-changing. It is clear that if organisations are to be successful in detecting and combatting corruption, their safeguards must also evolve and be checked regularly. Otherwise, detecting corruption becomes a matter of luck which is ideal for networks of employees who rely on a wall of silence to protect each other from detection.

WISE Workplace has much experience in investigating corruption issues and also developing and implementing anti-corruption strategies. Call us today to discuss the issues that are affecting your organisation. 

Corruption in Company: The Use of Alliances and Networks

Jill McMahon - Wednesday, May 11, 2016
Corruption in Company: The Use of Alliances and Networks

Teamwork. It can really lift the performance of an organisation. But what happens when employees use teamwork to act against an employer or other employees who refuse to engage in corrupt conduct? 

When employees start using their alliances and networks for corrupt activities, we have seen the concept of teamwork sour – and organisations can suffer huge financial losses when this behaviour goes unnoticed or unchecked. 

How alliances and networks are used

Corruption can range from minor things like using a company credit card to buying a small personal item, to major fraud involving millions of dollars. Because it is difficult to define, it is also difficult to detect. And when employees form alliances and networks, they can work together to both facilitate the corrupt acts and also cover up the corrupt activities of a group. 

The group gains its strength from ensuring that no one speaks out about its activities. There are many ways that this can happen and some include: 

  • Promotion: If a corrupt employee is promoted, the promotion brings the opportunity to further extend the employee’s network of friends. This means more people to assist with the perpetration of corruption. The promotion of a corrupt employee also means that corrupt activities become an accepted part of the organisation’s culture – the worse the person’s behaviour, the more they are rewarded.
  • Jobs for mates: There is also the ‘jobs for mates’ concept. To protect a corrupt activity from being detected, a group of employees may put pressure on management to appoint a friend into the role. Or a corrupt manager may ensure that only friends are appointed, in order to assist with the corrupt activity. The effect can be that people are appointed to roles for which they are not qualified. 
  • Greater scope in roles: Sometimes in the public sector, the scope of a role may be increased. For example, an assistant commissioner role might turn into a deputy commissioner role. On paper, the role has expanded to include new tasks befitting a deputy commissioner. But in reality, the job has stayed the same. The upshot is that the employee is performing the same job with better pay and more seniority. 
  • Acting positions: The same is true of an acting position. For example, if someone is appointed as an acting deputy commissioner, there is no requirement for transparency. It is an acting role so there is no need to advertise. In some cases, public sector acting positions can go on for years without being reviewed. 
The key is the network of like-minded employees – ensuring there are plenty of people in place to engage in the corruption or help conceal it. 

The relationship with bullying

There can be a close relationship between a group engaging in corrupt conduct and bullying.

For example, if an employee is new to a workplace, a corrupt group may seek to enlist their help to conceal the conduct or to take part in it. If the employee refuses, or threatens to expose the conduct, they may be subject to bullying by the group until they eventually resign or are transferred. Spreading of gossip or rumours and damaging professional reputations by the group is one way that group bullying can occur. 

The employee may complain about the bullying, only to be ignored if the corrupt network extends to management and they protect the group.

Because so many aspects of bullying can be corrupt conduct, it is important that organisations have in place a range of preventative measures to deal with both issues. 

A 2009 University of Western Sydney study into the bullying of nurses found that: 

"… the nexus between bullying, group anti-social behaviour and the need for trust and networking aligns as the abuse of official power for personal gain - a recognised feature of corruption."

This research makes it clear that while organisations must be vigilant in trying to prevent corrupt conduct, they must also tackle bullying. Both issues must be properly addressed in order to minimise harm, or potential harm, to an organisation. 

At WISE Workplace, we have significant experience in dealing with bullying and corruption, and can assist you to implement a custom-designed strategy for your organisation.

How to protect yourself from upward bullying

Harriet Witchell - Wednesday, April 27, 2016

 

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

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

As I have stated in previous blogs,

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

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

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

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

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

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

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

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

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

Action Needed on Bullying in Victorian Public Health Sector

Harriet Witchell - Wednesday, April 27, 2016
Bullying Entrenched in Victorian Public Health Sector

The larger the organisation, the greater the potential for bullying and harassment to become ingrained in workplace culture. When this happens, the victim can become the perpetrator, and the cycle continues. The situation may be made worse by management acquiescence, especially if the attitude is “if you can’t stand the heat, get out of the kitchen.”

The Victorian Auditor-General released its report into Bullying and Harassment in the Health Sector recently. It made many findings about how widespread the problem is, and also some strong recommendations for change. 

Background to the report

The Victorian Government commissioned a series of audits that looked at the occupational health and safety of Victorian public sector health workers. One audit considered whether the risk of workplace bullying and harassment was being effectively managed. 

This was the subject of the report. The report noted that serious harm can be caused by bullying and harassment. In 2010, it was estimated to have cost the Australian economy up to $36 billion per annum.  

The report also noted that the problem hits the public health sector particularly hard with:

  • Staff retention issues. 
  • Cost of recruitment and training. 
  • Low morale.
  • Management time spent dealing with the issue. 
  • Legal costs.
  • Damage to reputation. 

A disappointing reflection on leadership
The Auditor-General did not mince words, saying: 

“The leadership of health sector agencies do not give sufficient priority and commitment to reducing bullying and harassment within their organisations.”

The report also found that there were no proper processes in place for early intervention of bullying and harassment issues. More guidance and support was required to improve the public health sector’s management of inappropriate behaviour.

The more specific findings included that:

  • Management did not take bullying and harassment seriously as an OHS issue.
  • Steps were not being taken to identify and minimise risks.
  • There was a consistent failure to hold senior staff accountable.
  • Incidents were under-reported, possibly because of fear of repercussions, the mistrust of human resources staff, or the normalisation of the behaviour. 
  • Policies and procedures were ineffective at regulating inappropriate behaviour because of lack of understanding, ineffective implementation and failure to comply. 
  • Training and education were ineffective because of being voluntary, inconsistent or insufficient. 
  • Early intervention was generally inadequate and staff mistrusted the process.
  • There was no systematic or effective response to formal complaints.
  • There was ineffective guidance and assistance to help the sector implement best practice measures. 

The report noted that in 2013, more than one quarter of Victoria’s public health employees had experienced bullying or harassment. 

The report’s recommendations

With such troubling findings, it is no surprise that the report has made a long list of recommendations. They include:

  • Implementing risk management procedures to identify and minimise inappropriate behaviours.
  • Implementing policies and procedures that are clear and set out accountability for dealing with complaints. Ensuring compliance with policies and procedures.
  • Fostering a positive workplace. 
  • Encouraging reporting of behaviour by taking action on complaints. 
  • Developing and implementing mandatory training on bullying and harassment issues. 
  • Proper documentation of any issues concerning inappropriate behaviours. 
  • Striving for early intervention to minimise damage.
  • Implementing a formal complaints procedure. 
  • Making human resource departments more effective in dealing with the issues. 

The Victorian health sector certainly has a huge job ahead of it. With so many employees having first-hand experience, there is little doubt that there is an entrenched culture of inappropriate behaviour in many of the public health agencies. 

However, the report and its ensuing publicity is perhaps a positive first step in fixing the issues and there is potential to implement sweeping change. We will monitor the progress of the reforms with great interest. 

In the meantime, we know that effective policies and workplace culture play a huge role in the prevention of bullying and harassment. If any of these issues are ringing alarm bells for you and your organisation, WISE Workplace can help. We have vast experience in dealing with bullying and harassment issues and we are just a phone call away. 

The State of Bullying in Victoria

Harriet Witchell - Wednesday, April 20, 2016
The State of Bullying in Victoria

There has been a deluge of reports coming out of Victoria in the last few months focusing on bullying and harassment. 

The hair-raising antics of former Geelong Mayor Darryn Lyons are detailed in the parliamentary inquiry report released last week. Lyons is reported to have threatened, bullied and displayed other unacceptable behaviours towards staff. 

He is not alone. Earlier in the month, the Auditor-General’s report on Bullying and Harassment in the Victorian Health Sector commented that the sector was unable to prevent or reduce inappropriate behaviour, including bullying and harassment. The report also found that key controls which could reduce the risk to employees were either “inadequately implemented, missing or poorly coordinated.”

In December 2015, the Independent review into sex discrimination and sexual harassment including predatory behaviour in Victoria Police report was released by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). This report found an entrenched culture of what it called ‘everyday sexism’ and a high tolerance for sexual harassment giving rise to significant costs for the organisation. 

What are the statistics?

According to the VEOHRC review, 40% of female employees had personally experienced sexual harassment in their lifetime (higher than the national average of 33%), and 20% had experienced sexual harassment in the police within the last five years. 

Across the Victorian public sector, survey results show 25% of health agency employees and 25% of female police officers have reported being victims of bullying. But interrogating the figures shows significant increases in reports in certain employment groups. A study in 2014 by Monash University into bullying found that 40% of nurses had experienced bullying or harassment within the previous 12 months. 

Similar figures were found in the Royal Australian College of Surgeons (RACS) report, with 39% of surgeons experiencing bullying, and 19% reporting having experienced harassment in the previous 12 months. 

One perpetrator, multiple victims

While the studies found entrenched cultures that permitted bullying and harassment through lack of effective action, it is likely that affirmative action would have a profound positive effect on staff welfare. The inquiry into Victoria Police found that 52% of those who reported being sexually harassed were aware that others were also victimised, and in 81% of cases it was by the same perpetrators. 

What the reports have in common

The studies found many similarities in the structural causes for the prevalence of inappropriate conduct. In particular, they all found there was:

  • Widespread underreporting.
  • Inadequacies in the response when matters were reported. 

When participants were asked why they didn't report, the two dominant reasons were: 

  • Belief that no action would be taken.
  • Fear of retribution. 

Other studies have found that: 

  • 67% of people who experience bullying and harassment do not report it. 
  • Of these, 53% don’t report because they believe that no action will be taken, and 42% believe that reporting will have a negative impact on their career (responders could tick more than one item). 
  • The RACS survey reported 44.9% of respondent’s feared repercussions, but this figure increased to a staggering 93.4% for 31 to 35-year-olds. Presumably this group is heading towards the end of a long and arduous qualifying period. 
What can organisations do?

Changing the culture across a wide range of organisations is no easy task and will require a whole-of-business approach, and a variety of strategies to make a difference. 

Having clear codes of conduct and policies on how to respond are necessary, but just having them is clearly not enough. Codes of Conduct must be known, used and acted upon. 

It is the will to tackle bullying and harassment that is needed now, and this requires training and accountability on how to respond to complaints or conduct when it occurs. 

The development of a clear procedure for responding and investigating complaints is an integral part of this process. Our flow chart on responding to complaints helps bring clarity where confusion lies. Download the free chart, and take a look at our Workplace Investigations Toolkit for expert advice and guidance on a procedure that won’t let you down and will support your managers in doing the right thing. 

WISE Workplace also offers tailored training on all aspects of managing workplace behaviour, so whatever your organisation’s particular issue, give us a call and see how we can help make your workplace a better place. 

Have You Been Accused of Bullying or Harassment at Work?

Harriet Witchell - Wednesday, March 09, 2016

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

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

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

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

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

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

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

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

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

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

Corruption and Deviant Behaviour in the Public Sector

Jill McMahon - Thursday, March 03, 2016
Corruption and Deviant Behaviour in the Public Sector

Corruption is a significant issue in Australia’s public sector. It can exist in many forms with varying degrees of severity. But even though its existence is well documented, it remains difficult to address because witnesses can be unwilling to report their experiences. 

There can be many reasons for this, including social pressures, the use of legitimate processes to hide corrupt behaviour, and using co-workers to assist corrupt activities and prevent detection. 

How can it be defined?

We often think of corruption as being the most serious frauds or abuses of power, yet it can include what we would normally consider to be reasonably minor behaviours which violate the trust placed in employees. Examples of this might include fraudulently altering timesheets, or claiming sick leave while undertaking a second job during the time off.

Deviant behaviour can be defined as violations against group norms. This behaviour can be contrary to an organisation’s policies and rules. The two can battle each other as normal behaviour within the group can be seen as being more important than organisational rules and procedures. Although minor, this behaviour can spiral into corruption if left unaddressed. 

While corruption has the potential to and does indeed exist in both public and private sectors, government organisations seem uniquely challenged by corruption issues. This may be because of their large size and the geographical spread of employees, with managers sometimes working in different locations to teams, leaving teams with limited oversight and accountability. 

Social identity and the spiral into corruption

Social groups within a workplace can band together to promote or hide corruption.

Just like the schoolyard, people in workplaces can find themselves categorised or indeed categorise themselves into the ‘in’ or ‘out’ group. Some who are new to a workplace may want to associate with the ‘in’ crowd no matter what. If the group is engaged in corrupt activities or deviant behaviour, the new worker may be drawn in and pressured to participate. New employees can be socialised into corruption within the group or bullied to maintain silence.

Management may have knowledge of the strong sub-culture and choose not to intervene for a number of potential reasons. It may be that the group is performing well and meeting KPI targets, it may be that management is being bullied by staff not to intervene, or it may be that the status quo is being maintained through the use of corrupt alliance and relationships.

The ‘in’ group is all about informal power. A worker may not hold a senior role, but they have such strong personal power over colleagues that they end up being the leader within the group. Through use of this power, manipulation and persuasion, they may create and maintain these norms of corrupt behaviours.

Read more on: Social Identity and the Spiral into Corruption

Corrupting legitimate processes

When corruption is embedded into everyday routines and operations, it can be difficult to detect as behaviours become normalised. Often, these legitimate processes rely upon alliances within the workplace. For example, organisational processes might require a double sign-off on invoices for payment, yet two employees could work together to create and approve false invoices and transfer funds into their own accounts.

Speaking out against corruption can result in changes to a person’s employment conditions, such as redundancy, transferring a worker, cutting hours or changing shifts – all of which may seem legitimate until the timing is considered.

Use of alliances and networks

Employees can develop strong alliances and networks both within their close-knit group and more broadly across the organisation. These alliances can be used for corrupt purposes through an environment of secrecy, agreed rules and clique-like closeness. As employees get transferred to different areas and promoted, or even promote members of their clique, this network can grow both in size and the effectiveness of its corrupt activities.  

Once a corrupt employee has developed a network, there are plenty of people to help engage in corruption or to help conceal it. Sometimes, these people are manipulated into assisting through legitimate processes, and may not even realise that they are aiding corrupt activities.

Read more on: Use of Alliances and Networks

Protection from detection

People working together have tremendous power to be corrupt and resist detection. The strength of the ‘in’ group relies upon no one speaking out about the group’s activities. In cases where someone has spoken out, or alleged corrupt activities are suspected by management, corrupt group members can protect each other by providing false evidence that supports members or covers their tracks. This inhibits investigators from proving their suspicions and uncovering the corruption. 

Read more on: Banding Together to Avoid Detection

Silence and censorship

Silence and censorship are closely linked to social pressures. Once an employee group is engaging in corrupt behaviour, they can cover up their activities by insisting on the silence of others. 

Newcomers to the group can succumb to peer group pressure for a number of reasons, including:

  • Fear of being ostracised or bullied.
  • Wanting to be accepted into the group.
  • Being socialised into the normative behaviours of corruption.

Read more on: How Silence and Censorship can Enable Workplace Corruption

Can anything be done to prevent corruption?

Minimal reporting of alleged corruption makes it difficult to detect, with the wall of silence and supportive behaviours within the ‘in’ group enabling it to continue unopposed.

However, there are a number of precautions that employers can take to limit the impact of corruption and deviant behaviour:

  • Have a good understanding of what constitutes corruption.
  • Ensure complaint management systems are robust.
  • Ensure that there are various levels of accountability so that more than one person or group of people is responsible for important tasks. 
  • Avoid having just one person deciding on a procurement supplier. 
  • Physically locate the management team at the same site as the employees it oversees, or conduct frequent random visits. 

Corruption doesn’t just happen. It is made possible through enabling conditions, and then there must be motivators and benefits. It is not always a corrupt individual acting in isolation either.

Training can be effective

Another tool to limit corrupt activity is training. Wise Workplace offers the Certificate IV in Government Fraud Control, which is recognised by federal government agencies, and has been so successful in cost savings that some state and local governments now require public sector investigators to hold this qualification. 

The Certificate IV is a national qualification, aimed at investigators who wish to work in government, and government employees who wish to be promoted. The course focuses on:

  • Identifying fraud and corruption.
  • Conducting risk assessments.
  • Conducting investigations. 

Employee corruption and deviant behaviour is a huge problem in the public sector, compounded by the difficulty in identifying and proving it. There are many employees who observe corrupt behaviours but don’t report them because they are too scared to get involved. 

It’s difficult to know how best to deal with the problem, but it is clear that education, including an understanding of the enabling conditions and the motivators to look for, plays an important role. 

Employees need to be educated about corrupt behaviours, and if more staff can be engaged in higher-level training, the frequency of corruption may start to decrease. 

If you’re interested in implementing education and training around corruption, contact WISE Workplace about the Certificate IV in Government and Fraud Control.

The Year that Was: Lessons from 2015 Part 1

Jill McMahon - Monday, January 18, 2016
Lessons to be learned from 2015

It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.   

In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.   

In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.   

When is employee conduct considered to be 'at work'?

One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.    

In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.   

In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.   

Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.   

These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:   

  • 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.  
  • Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident. 
  • Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.    
Developments in workplace bullying

For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.   

In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.  

The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.   

Employers must:   

  • Take seriously any complaints concerning the conduct. 
  • Take immediate action to stop the conduct. 
  • Have proper policies and procedures and educate all staff about appropriate conduct. 

What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases. 

Secret Santa Shockers: How to Have a Work-Safe Kris Kringle

Harriet Witchell - Monday, December 07, 2015
Perils of the Office Secret Santa

Secret Santa, also known as Kris Kringle, is a gift-giving tradition celebrated by workplaces all over Australia. Although popular, it also has the potential to go wrong. Following on from our article on hosting incident-free work Christmas parties, we take a look at the potential risks of the office Secret Santa, and what preventative action organisations can take.
What is Secret Santa?
Secret Santa is started by putting staff members’ names into a hat. Each staff member must draw a colleague’s name and that is the person for whom they must buy a present. They must not tell anyone who they have drawn. 

While intended to be a good-natured way to spread some Christmas cheer, the problem is that jokes can often fall flat, and because the gifts are anonymous, the Secret Santa can be used to give a message to the recipient that the gift-giver would not ordinarily share face-to-face. 

 What is intended to be good-natured fun can easily lead to distress. There can also be legal consequences.
Secret Santa gone wrong
In 2012, public servant Ngoc Luan Ho Trieu, who worked as an economic modeller for the Commonwealth Government, was distressed by a Secret Santa gift. It was a plastic reindeer that produced chocolate droppings from its rear end. It was labelled “Luan’s Modelling Kit.” 

Mr Ngoc believed that the implication was that his work resembled animal poo. The identity of the gift-giver was never determined, and some weeks later he quit his job, unable to shake the feelings of distress. 

In response to the incident, the Australian Public Service (APS) issued a warning to staff in its November 2015 newsletter: 
“In keeping with the spirit of happiness and goodwill, APS employees are reminded to exercise care and good judgement as some elements of the APS Code of Conduct apply to activities ‘in connection with’ APS employment.” 

Employees were warned against engaging in pranks and were asked to be mindful that not all employees shared the same sense of humour.
The legal implications
The big question for organisations is how to manage Secret Santa. While the APS did the right thing in issuing the warning to employees, perhaps more should have been done. 

The Canberra Times also reported that after publishing Mr Ngoc’s story, it received many other reports of employees being left upset by Secret Santa gifts. 

There is great potential for legal implications to flow from a Secret Santa present. It may be seen as a form of bullying, for example the employee who was given a dog-chew toy. Employees may also feel discriminated against, for example the worker, being the only Asian in her section, who received a gift implying that her English was poor. 

Gifts that have sexual connotations may also be viewed as sexually harassing and other gifts may offend workplace health and safety laws.
How to manage Secret Santa
When it comes to Secret Santa, written reminders need to be given to all staff about appropriate conduct. For example, organisations should remind staff that: 

  • As Secret Santa is work-related, all work policies apply, including anti-bullying, discrimination and harassment, and discipline and termination of employment.
  • Their gifts must reflect the organisation’s requirement that all employees are treated in a respectful and courteous manner. 
  • Not everyone shares the same sense of humour so gifts should be carefully chosen.
  • Anyone who feels upset or distressed by a gift should inform management immediately so that the matter can be appropriately handled. 
A “master” sheet may also be useful, on which the name of the gift giver is recorded next to each recipient. This can be kept confidential unless a problem arises and needs to be sorted out.  Employees should be advised that a master sheet will be kept as it will help to regulate gift-giving behaviour. 

And finally, if your organisation has had problems with Secret Santa in the past, consider whether it is appropriate to run it again. Secret Santa is a nice idea but increasingly fraught with difficulties. Although workplace laws have not developed to specifically deal with the scheme, many other laws come into play which should be taken seriously by organisations.

Sticks and Stones: The Physical Impact of Bullying

Harriet Witchell - Monday, November 09, 2015
The Physical Impact of Bullying

With the federal government increasingly exercising its legislative muscle when it comes to workplace bullying, employers are expected to be vigilant in prevention and to properly deal with bullying when issues arise. One of the key areas is work health and safety (WHS) and the physical impact of workplace bullying.

WHS requirements

WHS legislation requires that employees are safe from physical or psychological harm at work (including workplace bullying). There are criminal sanctions for any breaches. Everyone in a workplace has an obligation to ensure their own safety and that of others, and employers must provide and maintain a safe workplace. This means that everyone in a workplace must try to ensure that workplace bullying does not occur.

Physical impact of bullying

The psychological impact of bullying is well documented, including anxiety, depression, mood swings, panic attacks, impaired concentration and loss of self-esteem. The federal government’s publication Bullying in the workplace: A guide to prevention for managers and supervisors also gives a list of physical symptoms, including digestive problems, skin conditions and musculoskeletal disorders (for example fibromyalgia). According to the US Workplace Bullying Institute, other issues can include:

  • High blood pressure.
  • Heart palpitations or heart attack.
  • Severe headaches.
  • Post-traumatic stress.
  • Nausea.
  • Lack of coordination.
  • Uncontrollable crying.
  • Eating disorders.
  • Reduced immunity.
  • Fatigue.

The guide notes that physical factors impact an organisation in many ways, including lost productivity due to illness, higher staff turnover, poor public profile, increased time and expense spent managing the problem, and potential workers’ compensation claims and litigation.

Further, even though bullying is often subtle, covert and difficult to detect, organisations must have in place proper systems and procedures for educating employees about bullying, identifying and preventing problems, and adequately responding to complaints. Bullying must be identified, assessed and controlled in the same way that any other WHS hazards are managed. 

the consequences can be tragic

It may seem that an employee taking time off to get over a cold or because of a headache isn’t really a big deal. After all, that’s why they have sick leave. But the risk is that if left unchecked, any harm that an employee is suffering as a result of bullying can escalate with disastrous consequences. 

Take the case of Victorian teenager Brodie Panlock. She was subjected to appalling treatment at the café where she worked, including being verbally humiliated by her manager and co-workers, covered in chocolate sauce and on a number of occasions was held down and had oil poured over her head. Brodie resorted to self-harm by cutting herself and later taking rat poison and alcohol. Horrifically, shortly afterwards she committed suicide. The café owner, manager and two of the co-workers were charged and fined under WHS legislation. Later, the Victorian Government enacted Brodie’s Law, criminalising serious workplace bullying and imposing a maximum prison term of 10 years.

Then there’s the case of 16-year-old apprentice Alec Meikle who was subjected to extreme verbal and physical abuse by his supervisor and co-workers. Within three days of commencing work, he was called abusive and derogatory names, which continued on a daily basis. He was burnt with a welding torch, sprayed with glue and set on fire. His co-workers had also threatened to anally rape him with a steel rod if he made too many mistakes. The bullying was so severe that Meikle left the company after three months. But the effects stayed with him. He was diagnosed with anxiety, depression and an adjustment disorder. Following a hospital admission, he tried to kill himself. Then a few months later, he committed suicide. It was clear that he could not overcome the effects of the abuse, even after leaving the workplace and with medical treatment and close monitoring. 

Although the subsequent coronial inquest ultimately made no findings, the matter serves as a warning that the effects of bullying can continue long after the conduct has stopped. It is another reason for employers to be vigilant in prevention, monitoring and actively dealing with bullying issues.

The physical impact of workplace bullying is a serious issue. If you are concerned about possible bullying incidents in your workplace, or wish to develop strategies for prevention, WISE Workplace can help.  

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 1-3 December