From Cyberspace to Head Space

- Monday, October 05, 2015
Workplace bullying spills over to cyberspace

So much of our lives are lived online these days, and even workplace bullying has made the leap to cyberspace. As one recent case before the Fair Work Commission (FWC) illustrates, employers need to be vigilant about what happens both in the office and online, as bullying spills beyond the boundaries of the physical workplace and on to social media.  

A case with a social media aspecT

In late September 2015, the FWC issued a stop bullying order in response to an application made by a Tasmanian real estate property consultant. She alleged that she had been bullied by the sales administrator Mrs Bird (who was also one of the owners of the business), almost from the commencement of her employment in May 2014.   

In one key incident, there was an impromptu meeting between Mrs Bird and the applicant, in which Mrs Bird accused her of being disrespectful and undermining her authority. Mrs Bird said the applicant was a “naughty little schoolgirl running to the teacher.”   The applicant tried to leave the room but Mrs Bird stood in the doorway, blocking her path. The applicant was humiliated and distressed and left the office to compose herself. While she was out, she checked her Facebook account and discovered that Mrs Bird had unfriended her. Shortly afterwards, the applicant took two weeks’ sick leave, followed by a workers’ compensation claim. 

The FWC found that found that Mrs Bird’s schoolgirl comment was “provocative and disobliging” and that the Facebook unfriending showed a “lack of emotional maturity and [was] indicative of unreasonable behaviour.”   

The applicant had been diagnosed with depression and anxiety for which she was being medicated and treated by a psychologist. The FWC found that Mrs Bird’s conduct posed a risk to the applicant’s health and safety. The FWC was satisfied that bullying had occurred and there was a risk that it would continue. Even though the employer had recently implemented an anti-bullying policy and manual, Mrs Bird and the employer had failed to appreciate the seriousness of the conduct.   

The FWC issued a stop bullying order, and referred the matter to a conference to be resolved.

Use of social media in workplace bullying

In 2014, the NSW District Court determined that cyberbullying could happen anywhere, not just in the physical work environment. The court was considering a case in which a teacher was suing a former student for defamation after the former student posted a series of defamatory tweets on Twitter.   

This highlights the need for employers to take immediate action if employees are found to be posting negative or defamatory comments on social media, regardless of whether the comments are about other employees, or external people or organisations.

The impacts of cyberbullying

Cyberbullying can impact an organisation in a number of ways, including:   

  • Management time spent investigating and managing complaints. 
  • Management time spent in FWC hearings. 
  • Increased employee sick leave and decreased productivity. 
  • Risk of workers’ compensation claims. 
  •  Increased friction between staff.   

Workplace cyberbullying should also be taken seriously because the employee can be exposed to the information online at any time – at work or at home. In other words, they have no escape.   

Psychological health is also a huge factor in workplace bullying and this case shows the psychological damage that bullying did to the applicant, exacerbated by the Facebook unfriending.  

The psychological impacts of bullying can include:   

  • Depression. 
  • Anxiety. 
  • Low self-esteem. 
  • Panic Attacks. 
  • Fatigue. 
  • Post Traumatic Stress Disorder. 
  • Suicidal thoughts.
Employer duty of care

Employers have a duty under occupational health and safety laws to provide a safe workplace for all employees. This includes a workplace that is free from bullying. Even though the FWC considered that the bullying of the applicant in this case posed a risk to her health and safety, it was concerning that the employer failed to recognise the seriousness of the conduct.   

Workplace bullying is no joke, as demonstrated by this case. It highlights the psychological impact of bullying and shows how social media can inflame the situation. Employers must be vigilant in monitoring the online activities of employees and educating them about appropriate conduct. This starts with a comprehensive policy and training. Employers should also take complaints seriously and investigate them thoroughly.   

The prevalence of social media use means that bullying issues have become far more complex to investigate and manage. If you have or suspect a bullying issue in your workplace, or would like assistance in writing guidelines or investigating complaints, contact us.

First Formal FWC Ruling Since Introduction of Bullying Rules

- Monday, August 10, 2015
First Formal FWC Ruling Since Introduction of Bullying Rules

The Fair Work Commission (FWC) has issued a formal ruling for a Stop Bullying Order under section 789FF of the Fair Work Act. It’s the first formal ruling since the anti-bullying provisions of the Act came into effect on January 1, 2014. 

The Details of the case 

In the ruling on August 5, the FWC de-identified the names of all parties. The case involved two employees of a real estate business who applied to the FWC for a Stop Bullying Order, alleging that a manager at the workplace had engaged in:

  • Belittling conduct. 
  • Swearing, yelling and use of other inappropriate language. 
  • Interfering with and undermining the employees’ work. 
  • Physical intimidation and “slamming” objects on the employees’ desks.
  • Attempts to incite the applicants to victimise other staff members.
  • Threats of violence.

The employer had conducted an informal investigation of the allegations, and attempted mediation between the parties, which was unsuccessful. In the end, the manager resigned from her employment, and was then employed in another related business. The employer believed that the manager’s removal from the workplace had solved the problem. 

But the manager was then seconded back to the workplace – a placement that was intended to be short-term – which saw her physically back in the company of the employees. The employees applied to the FWC for a Stop Bullying Order, made workers’ compensation claims and underwent medical treatment. At the time of the hearing, both employees were on sick leave. 

The commission’s findings

The FWC considered section 789FD of the Act and in particular the meaning of bullying. The FWC found that the manager had engaged in bullying that was within the definition of the Act:

“The conduct revealed … was indicative of a workplace culture where unprofessional and unreasonable conduct and interactions had taken place and that such had created a risk to the health and safety of a number of the workers involved,” the FWC found.

The FWC also found that even though the manager had been relocated, her secondment and the need for the businesses to interact from time to time meant that there was a real risk that the manager and employees would continue to have contact with each other. This posed a further risk to the health and safety of the employees and so the employer should have taken further steps to prevent the bullying from recurring.

The FWC ordered that for a period of two years:

  • The parties not approach one another and not attend each other’s premises.
  • The employer implement anti-bullying policies, procedures and training including outlining to all employees its expectations about appropriate conduct and behaviour. 
  • The employer was also ordered to clarify its arrangements for reporting bullying.

The importance of policies and procedures
The FWC’s reasoning makes it clear that the employer’s lack of policies and procedures was a significant issue. An anti-bullying policy is an opportunity for the employer to send a strong message to all its employees, regardless of seniority, about expectations of appropriate behaviour and the ramifications for poor conduct. It also becomes a legal document in the event of any escalation of bullying issues. A good anti-bullying policy should also set out procedures for dealing with bullying complaints. Employers must ensure that they are closely followed.

Employers should also take meaningful action around bullying by:

  • Taking complaints seriously.
  • Properly investigating complaints.
  • Investigating without bias.
  • Applying policies consistently (especially when it comes to disciplinary action).
  • Determining what safety measures should be implemented.
  • Providing training to employees to identify what is and is not bullying. 
The order makes it clear that the FWC will be intolerant of employers who have failed to put in place policies and procedures aimed at preventing bullying. Employees also need to be educated in the requirements of the policies and procedures, and understand what constitutes bullying and the terrible effects that it can have on other staff members. 

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.
(Articulates with Cert IV in Government Investigations)

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October

6 easy steps to avoid drunken workers

- Monday, July 13, 2015
The perils of the office Christmas Party
The perils of the office Christmas Party

The office Christmas party. It’s a time of celebration, and an acknowledgement of all the hard work done by the team over the year. So what could possibly go wrong? Plenty for employers, as the recent decision in Keenan v Leighton Boral Amey Joint Venture demonstrates, especially when the alcohol is free-flowing. 

A Christmas party to remember

In a decision which just may have employers re-thinking the bar arrangements at the annual do this year, the Fair Work Commission (FWC) considered the termination of a worker’s employment following his behaviour at the office Christmas party. Although the employer had issued a reminder to staff to behave responsibly, Mr Keenan consumed two beers prior to attending the event, and in the course of the evening, consumed another 10 beers and a vodka and coke. Wait staff were serving drinks, but later in the evening, guests could help themselves to alcohol. During the party, Mr Keenan told his boss to “f___ off” and remarked to another colleague “who the f¬¬¬¬___ are you? What do you even do here?” When the party ended, Mr Keenan and some other employees moved to another part of the hotel and continued drinking. There were further incidents which included calling a co-worker a “stuck-up bitch,” kissing another co-worker without warning or consent, and some other comments with sexual overtones. Following an investigation, Mr Keenan’s employment was terminated. Mr Keenan claimed unfair dismissal.

The FWC findings

The FWC found that Mr Keenan had been unfairly dismissed. The after-party incidents were not in connection with his employment, as they were not sanctioned or organised by the employer. Mr Keenan’s conduct during the party was not so serious to warrant termination of employment. The FWC said that the incidents were isolated, and that generally he had a fairly good employment record.

The service of alcohol

Key to this decision were the comments about the service of alcohol at the party. “It is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol at the function,” the FWC said. The FWC said that the venue had agreed to refuse service to anyone thought to be intoxicated. Mr Keenan was not refused a drink by wait staff and was not prevented from helping himself to beer later in the evening. No one with managerial authority was made responsible for ensuring the smooth conduct of the function.

Effects of the decision

This decision will cause some problems for employers, especially as Christmas season approaches. Employers can be in a difficult spot when it comes to office functions and Christmas parties in particular, as many employees expect and look forward to the annual party and judge their employer by the quality of the party (including the amount of alcohol served).  

But there are a number of things an employer can do to avoid difficulties with drunken workers: 

  • Prior to the party, remind staff of the organisation’s policies on sexual harassment, occupational health and safety and showing respect for other workers. 
  • Remind staff that they are to conduct themselves appropriately at the party as it is a work function.  
  • Consider service of drinks for a limited period, for example two hours. 
  • Do not allow self-service of drinks at any stage in the evening. Ensure the venue will refuse service of drinks to anyone who is intoxicated and make sure the venue has adequate security staff to remove any employees who are behaving offensively.
  • Ensure there are at least two senior staff members overseeing the smooth running of the event.
  • Consider organising and funding transport for staff to leave the venue as soon as the function is over.

Mixing work and alcohol is always a difficult undertaking, and employers need to carefully plan work functions to avoid the difficulties faced in the Keenan case. But with good management, the traditional Christmas party is still a possibility, even if it might be a little more subdued!

Overstepping the Mark

- Monday, June 29, 2015
Overstepping the mark
Overstepping the Mark: When Unions Fail to Protect Workers
In our last post, we looked at the importance of properly investigating allegations in the case of Amiatu and Others v Toll Ipec Pty Ltd. This case is also a significant commentary on union representation, and what can happen when a union official oversteps the mark. Even though unions are charged with acting in employees’ best interests, there can also be negative repercussions for employers if unions act without authority. 

In the Toll case, three employees had discovered an open box containing Toll safety uniforms. They put on some of the uniforms, going about their normal duties and making no attempt to cover up having taken them. When the company became aware that the workers had taken the uniforms, it informed the union that it believed that the employees had committed theft and that it intended to terminate their employment and report the matter to the police. The union organiser persuaded Toll to allow the employees to resign. 

The employees had been filmed by surveillance cameras. When the employees raised the possibility of an unfair dismissal claim, the official told them that the video evidence was far too strong, and that they had “no hope” of succeeding.The official then assisted them to write out their letters of resignation. The employees subsequently made a claim for unfair dismissal in the Fair Work Commission (FWC).

The FWC findings

The FWC found that the union official had made the deal with the company without the employees’ authorisation. The company had agreed, and then the official met with the workers, saying that their two options were to resign or to be sacked and face police involvement. The commission also found that they had been coerced into resignation by this threat of police involvement and poor future work prospects. There had been no intention by the workers to steal the uniforms. Reprimands or warnings would have been more appropriate disciplinary action. 

The FWC was concerned that the union had so strongly encouraged the employees to resign when they had done nothing wrong. This effectively deprived them of adequate representation. The union official “was acting as an advocate of a proposed course of action which he had invented and which had been negotiated by him, accepted and agreed by Toll, in Toll’s best interests.” But the union official’s duty was to act in the best interests of the workers. 

Employers beware

This case serves as a warning to employers to tread very carefully when dealing with union involvement in disciplinary matters. The FWC made it very clear that the official had overstepped the union’s authority in negotiating an outcome for the employees before even discussing it with them. He was so swayed by the video footage and the threat of police involvement that he forgot the crucial steps of getting the employees’ version of events, assessing the evidence and acting in their best interests. This approach also caused another significant problem – Toll reasonably thought that it had negotiated an outcome because it was dealing with the employees’ representative, only to discover that the employees were taking legal action. 

The lesson for employers is to be very cautious about negotiating a matter with a union when the employee is not present. Any agreement made should be checked with the employee to ensure the employee is making the decision freely. Employers should be careful not to say or do anything that might later be construed as having pressured the employee to make their decision, for example, a threat to make a police report. As the FWC noted, “It would have been open to [the company] to simply advise [the union official] that the Applicants could make up their own minds whether to resign their employment.”  

This simple step may have allowed the company to successfully defend the unfair dismissal claim. When unions overstep the mark, there can be difficult and expensive ramifications for the employer. When in doubt about how to negotiate with a union, we recommend seeking the help of an experienced workplace consultant.

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.
Location: Sydney
Date: 22-23 July 2015

(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 5-7 August

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October

It's not always Black and White…...

- Monday, June 22, 2015
Think Employee Behaviour is Black and White?
Think Employee Behaviour is Black and White?
Sometimes, workplace incidents can seem straightforward to an employer – an employee has done something wrong, and action should be taken. But two recent cases before the Fair Work Commission (FWC) demonstrate the importance of properly investigating a matter and relying on sound evidence before taking action against an employee, and making sure that the action is an appropriate response.
Allegations of theft, and disproportionate action
In Amiatu and Others v Toll Ipec Pty Ltd, three employees took action against Toll for unfair dismissal. They came across an open box containing Toll safety uniforms. Surveillance cameras filmed them removing some of the uniforms and putting them on. They then went about their work. The following day, they worked their usual shifts, wearing the uniforms.

When Toll management became aware that the workers had taken the uniforms, it interviewed each of the workers and then spoke with the union delegate. Toll intended to terminate their employment for theft, and report the matter to the police. The union delegate persuaded Toll to allow the employees to resign, and convinced the employees to do so, despite their protests. The employees subsequently brought an action for unfair dismissal against Toll. 

The FWC found that they had been coerced into resignation by the threat of police involvement and poor future work prospects. The FWC also found that there had been no intention by the workers to steal the uniforms. They wore the uniforms in full view of other Toll staff and were also probably aware of the surveillance camera. They believed they had done nothing wrong, and had not made any attempts to cover up their actions. At worst, they had made an error in judgment by not following proper procedures to acquire the uniforms. Reprimands or warnings would have been more appropriate disciplinary action, the FWC found. 

Toll had failed to prove that theft had occurred. 

The FWC was also concerned that the union had so strongly encouraged the employees to resign when they had done nothing wrong. This effectively deprived them of adequate representation.

Although the FWC found no further significant issues with the investigation process, it would have been prudent for Toll to have conducted further interviews with each employee, with their representatives present, before any decisions were made about termination of employment and police involvement. 

The FWC found that the workers’ employment had been unfairly terminated and ordered their reinstatement.

The need for a proper investigation and sound evidence

In the case of Elton v Acupuncture Australia Pty Ltd, the FWC found that there was insufficient evidence to justify the termination of Ms Elton’s employment. 

Ms Elton worked for the employer (AA) in sales. Another employee had reported that she was behaving in a suspicious manner, printing out sales reports, rushing to the printer to collect them and then putting them in her handbag. AA looked into the matter, and found that a number of invoices had been deleted from the accounts system. AA terminated Ms Elton’s employment for engaging in “corporate theft and fraud involving cash, credit card, paypal and direct deposit.” It also accused her of acting with two former employees, and threatened to report the matter to the police.

Ms Elton denied the allegations and took action for unfair dismissal. The FWC accepted her explanation that she was printing out the reports to monitor her own performance. It also accepted that deleting invoices was a standard practice for cancelled orders, and that anyone could have done so. 

The FWC held that there was no evidence to suggest that Ms Elton had acted with the former employees, and that AA had failed to produce any evidence to support its claims of theft and fraud. Nor had AA made a police report. According to the findings, there were also issues with the investigation process, particularly that Ms Elton was not given a proper opportunity to respond to the allegations. Without warning, she was called to a meeting and the allegations were put to her. No documents were shown to her, either to justify the allegations or to seek her explanation. 

The FWC found that Elton had been unfairly dismissed. AA later appealed and the Full Bench of the FWC upheld the decision.
Implications for employers
These decisions demonstrate the need for employers to proceed with great care during investigations, especially ensuring that procedural fairness is adhered to every step of the way. Employers must also carefully assess the evidence against the allegations to ensure that there is enough proof to warrant disciplinary action. This can be challenging if the employer is very involved in the matter, as it can become difficult to make an impartial assessment .An experienced workplace investigator can be of great assistance in these situations, and it’s always a good idea to seek advice before a decision is made to terminate or discipline an employee.
WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 5-7 August

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October

Careless Whispers: Confidentiality and Office Gossip

- Tuesday, June 09, 2015
Confidentiality and Office Gossip
Careless Whispers: Confidentiality and Office Gossip

It’s human nature, really. We all love glimpses into the private lives of others, which is why the Kardashians are a household name. And our appetite for gossip can naturally extend to the workplace as well. We spend a lot of our lives in the company of our workmates after all, which naturally can make us very curious about their lives. But sometimes office gossip can be hurtful, and damaging not only to the person involved but to the company as well, especially if there has been a breach of confidentiality.

What is workplace gossip?

Workplace gossip is informal chatter about work colleagues and/or their acquaintances. For example, two employees discussing a rumour that the husband of another employee is having an extramarital affair.There are two big concerns with workplace gossip. The first is that an organisation’s workers typically spend much time in each other’s company. If an employee is the victim of gossip, they may no longer feel comfortable in the workplace, and various consequences may flow, including:

  • Loss of productivity.
  • Increased sick leave.
  • An allegation of workplace bullying.
  • Management time spent counselling employees.
  • Management time spent investigating incidents.
  • Low morale amongst staff.
  • An increase in inappropriate employee behaviours, especially in respect of office gossip.
  • The employee may resign.
  • Legal claim for termination of employment.

Almost all these consequences will likely result in some sort of financial loss to the organisation. 

The other big issue with workplace gossip is that it can compromise confidentiality - and confidentiality between workers, particularly about their employment conditions, is key to how effectively an organisation functions. For example:

  • Workers discussing how much another worker is getting paid can lead to disquiet amongst workers who think they should be paid as much, or more, than their colleague. 
  • Workers discussing a rumour that there will be forced redundancies when no redundancies are planned, or when the announcement is not ready to be made, can be enormously damaging. 
  • Workers discussing the possibility that another worker’s employment will be terminated is inappropriate for similar reasons. 
  • If a worker acts as a support person for another worker involved in a disciplinary matter, any discussion of the matter with other employees may compromise the investigation. 

When employees start speculating about operational matters, an atmosphere of mistrust is generated and the employer will be forced to spend time trying to make things right, rather than getting on with running the organisation.

Office gossip and termination of employment

An office gossip can have their employment terminated for various reasons, including breach of confidentiality, bullying, lying, or deliberately causing trouble. For example, in the case of Reedy v Global Cranes Pty Ltd, Fair Work Australia (FWA) found that there was a valid reason for terminating Mrs Reedy’s employment. Mrs Reedy had told a co-worker, Ms Tarrant, that their boss took illicit drugs and that he had been photographed with another woman. The co-worker was the fiancée of the boss and reported the gossip to him. Mrs Reedy’s employment was subsequently terminated and she made a claim for unfair dismissal against the company. FWA held that: “Mrs Reedy deliberately told Ms Tarrant about a rumour in a manner which was designed to cause trouble in the workplace, in particular between Ms Tarrant and Mr Vidaic, who was her fiancée and the Managing Director of Global Cranes. It is clear what a reference to another woman was in the context of the conversation. It was not an innocent reference.”

How to curb office gossip

Workplace gossip may start out innocently but when it escalates, the consequences can be serious. Wherever possible, employers need to keep a close ear to the ground to monitor what’s being discussed.There should be a clear policy about what is unacceptable employee conduct, including gossiping or spreading untrue or unconfirmed stories about a colleague. In addition, employees should receive training about the importance of confidentiality in the workplace, the harm that can result from gossiping, and how gossiping can morph into more serious issues such as bullying and harassment. Employers should strive to keep an open door to employees who feel that they have been victims of gossip. It is important that any complaints are treated seriously and investigated as thoroughly as other workplace incidents. The more that employees feel that complaints are taken seriously, the more likely that they will speak up before matters get out of hand. Workplace gossiping is an issue that if left unchecked, can have serious consequences for the employee concerned and the organisation’s bottom line. 

Bully or Boss? Finding the Line in Performance Management

- Tuesday, May 05, 2015
Performance management or bullying?
Performance Management or Bullying? Finding the Line

Being a manager is a tricky business. Not only are you responsible for your team meeting its targets and goals, but you must manage employees with a diverse range of personalities and abilities. It’s often difficult to walk the line between effective management, and risking claims of bullying by a disgruntled employee.

A case in point

This was the very situation under recent consideration by the Fair Work Commission. The applicant was a senior employee of a Commonwealth Government department. He alleged that his immediate manager had engaged in bullying in many ways, including by: 

  • Threatening to terminate the applicant’s employment.
  • Putting down the applicant and criticising him.
  • Treating the applicant like a slave.
  • Fabricating performance issues.
  • Humiliating the applicant by speaking to him in a condescending manner. 

The employer submitted that there were various issues with the applicant’s work performance, including lack of communication, inability to follow through on instructions, difficulties with managing work projects and meeting deadlines. The manager had held various one-on-one meetings with the applicant in an attempt to improve his performance. This resulted in the applicant complaining on two occasions that he was being bullied. The complaints were internally investigated and both investigations concluded that there was no evidence of bullying. Some time later, because the applicant’s performance had still not improved, a Performance Improvement Plan (PIP) was implemented by the manager. Still, the applicant’s performance barely improved for the duration of the PIP. The applicant alleged that there had been “malevolently motivated micromanagement of his performance”.

The Commission’s findings

The Fair Work Commission found that there was no evidence of bullying, noting that the employer had engaged in an “ordinary exercise of management prerogative” and the application was dismissed. The applicant appealed the matter. On appeal, the full bench of the Commission held that over a number of years, no attempts by the employer were successful in improving the applicant’s performance. There were meetings held with the applicant as well as mediation, all in an attempt to informally improve his performance. After that, the PIP was implemented, with little improvement. A range of supervisors had taken issue with the applicant’s performance. The Commission dismissed the appeal, finding that there was no evidence of workplace bullying. 

This case relied upon the anti-bullying provisions of the Fair Work Act. Section 789FD says that no bullying can exist where there is “reasonable management action carried out in a reasonable manner.”

So what is reasonable management action?
It then becomes a question of whether the employer’s conduct is “reasonable management action.” The Act defines bullying as unreasonable and systematic behaviour that creates a risk to the worker’s occupational health and safety. But the notion of reasonable management action is not defined by the legislation. This case makes it clear, though, that management can take steps to improve an employee’s performance, regardless of how negatively those steps are viewed by the employee. Meetings, mediations and more formal tools that document the employee’s progress (such as the PIP) are all acceptable. However, it is essential that the employer closely follows their own policies and procedures so that their management of the employee can be viewed as objective and reasonable in all the circumstances.
The need for documentation

It is also clear that there needs to be a range of supporting documentation from the outset of the employment relationship. For example, the employer should outline all duties, goals and objectives from the start, along with expectations of how the job is to be performed and how success will be measured. Employees should have regular feedback sessions with management. The employer should also have policies surrounding bullying and how performance issues will be managed, and a clear employee grievance process.

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates

(Articulates with Cert IV in Government Investigations)

Location: Sydney
Date: 6-8 May 2015

Location: Canberra
Date: 20-22 May 2015

Location: Brisbane 
Date: 16-18 September 2015

Reasonable Action? FWC ruling on Willis

- Tuesday, March 10, 2015
reasonable action
Reasonable Action? FWC ruling on Willis

In a recent matter before Commissioner Lewin of the Fair Work Commission (FWC), some rather interesting findings were made around the question of ‘reasonable management action’. The case in question, Willis v Gibson & Anors, highlighted the reality that a jurisdictional challenge made upon such a basis will be closely examined. 

Communication difficulties

The employer in this case, Capital Radiology, undertook various actions against an employed radiographer named Mr Willis. The employer cited elements of rudeness in Mr Willis’ manner, as well as problems with his written communication. Capital Radiology proceeded to engage the worker in a process that appeared at times to be disciplinary, and at others times had the hallmarks of performance management. Mr Willis, believing that he was being bullied by members of the employer’s management team as a result of this action, sought relief from the Commission in the form of an order under s 789FC of the Fair Work Act 2009. A jurisdictional objection was raised by the employer, contending that the facts upon which Mr Willis relied reflected reasonable management action carried out in a reasonable way. 

Proportionality and misunderstanding

Of particular note was the lack of proportionality between the performance in question and the action taken. Commissioner Lewin noted that disciplinary action needed to represent a "reasonable and proportionate response to the attributes of the employee to which it is directed." The main problems detected by the employer and voiced in a letter of September 4, 2014 involved issues around inefficiency, following directions, attitude and rudeness. The letter to Mr Willis was entitled ‘Disciplinary Process’. 

Earlier, the question of Mr Willis’ email communication had been discussed, and Mr Willis had actually been making attempts to improve in this area. The same was noted by the Commissioner in relation to his adherence to medical imaging processes, which he was working on at the time of the letter. 

The FWC explained that the employer’s negative view of Mr Willis’ manner of communicating had led to an over-reaction when it came to the action taken. As Commissioner Lewin states: “One person’s rudeness may be another person’s frankness.” Mr Willis felt that his employment was threatened by way of the Disciplinary Process letter, leading to his application for an order pursuant to s789FC of the Act. 

Conflation versus clarity

Commissioner Lewin also pointed out how lack of clarity around Capital’s management action processes contributed to the confusion and distress of the worker. Policies around performance management were not separated from disciplinary action for performance-based issues. This contributed to the worker becoming uncertain about his job status, as the processes taken were both confusing and seemingly arbitrary. 

The Commissioner indicated that the procedures carried out by management until September 4, 2014 in all likelihood constituted performance management, rather than disciplinary action per se. As examples, requests for improvement were communicated to Mr Willis and he then proceeded to work on these issues. To then have the language of ‘Disciplinary Process’ brought in from September 4 constituted a threatening situation that did not correlate with the alleged behaviour in question. 

Commissioner Lewin summarises succinctly: “Management action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action.” The employer’s disciplinary objection to the application was not made out, clearing the way for consideration of the substance of Mr Willis’ bullying claim. 

Processes, actions and reasonableness

The matter of Willis reminds us that employers’ HR policies and procedures – particularly regarding issues of performance management and/ or disciplinary action – must be clear both in terms of content and application. As managers work towards facilitating a high-performing workforce, care must be taken to differentiate unambiguously between performance and disciplinary issues. 

Further, any action must be commensurate with the employee’s behaviour. The delicate balance between rudeness and assertiveness in an employee for example must be carefully worked out and an appropriate response devised. And despite frustrating mannerisms and personalities, an employee who is working on their foibles is probably doing what is required under a performance management process. To avoid problems around the ‘reasonableness’ or otherwise of management action, a clear and proportionate response to difficult employees should be developed.

You're Fired! Tips for Exiting Employees Gracefully

- Tuesday, February 03, 2015
You're Fired! Tips for Exiting Employees Gracefully

It's understandable that as a business owner and employer, certain members of your staff will occasionally take you to the edge of patience. Whether there are problems around lateness, poor output, unsafe practices or terrible attitude – there some staff members who you know will probably just have to go. When faced with a worker who you simply no longer want on your work floor, it pays to think through the best steps to take in particular circumstances. 

Conduct at the border
 As tempting as it can sometimes be, sacking someone in the heat of the moment can cause significant longer-term difficulties for many employers. While some extreme conduct will justify immediate dismissal, most situations will call for a more measured approach. So what sorts of misconduct could be described as ‘serious’? Unfortunately, due to the diverse and sometimes bizarre ways that humans can and do misbehave, there is no clear-cut list of every type of conduct relevant to employee dismissal decisions. Practically speaking, criminal activity such as theft, assault or fraud will in many cases justify immediate employer action. But there are also countless borderline cases of employee misconduct. Industrial courts and commissions have grappled with many of these across the years, with varying outcomes for employers. Experts in the field of industrial law are able to assist in gauging the right approach for your situation. 
Follow the path 
In most cases of unsatisfactory conduct on the part of an employee, the industrial relations system can provide helpful guidance on the correct process for dismissal. Current industrial law and applicable awards will often contain the steps that an employer needs to take prior to terminating the employment of a worker. Courts and commissions tend to take a dim view of instant dismissal without any prior warning, except in rare cases. Depending upon the worker’s job level, duties, and the type of misconduct, it is generally advisable for employers to have carried out clear and documented remedial actions, such as written warnings or transcribed meetings, prior to dismissal. 
Counting costs
It is not uncommon for an employer to decide to sack a worker on the spot, no matter what the consequences. Walking them to the gate can seem like a small price to pay for restoring the business to productivity and calm. The significant costs of such a decision can however come in a number of forms. For example, if the worker takes successful action against the employer for unfair dismissal, the business might well be forced to pay not just for quantified losses but for the legal costs of defence. Further, a wrongly dismissed worker might claim that they have suffered a psychological injury due to ‘unreasonable management action’ at the work site, particularly if heated words have been exchanged. Aside from visible costs, preparing defence materials and speaking to lawyers and claims managers can also extract time from the business that most employers simply can’t afford. 
A quiet word 
Sometimes it can take every ounce of restraint not to instantly ‘walk’ a worker whose conduct is seriously bad. And in certain cases, employers will need to do just that, for safety and legal reasons. In the alternative, it can pay to hold your fire and seek some advice on the issue. Talking the matter through with an expert in workplace matters does two things – it helps you vent your spleen to a third party, and it gives you the opportunity to find the best solution to this particular employee problem.

Workplace Bullying and the Meaning of "At Work"

- Tuesday, January 27, 2015
Workplace Bullying and the Meaning of "At Work"

The full bench of the Fair Work Commission (FWC) recently conducted a detailed analysis of the phrase ‘at work’ relevant to workplace bullying. The findings provide an insight into the possible meanings of this deceptively simple term. And with the advent of social media as a means of transmitting communications, defining what occurs 'at work' can certainly be a challenging task. 

Case in point 

This recent matter of Bowker & Ors v DP World [2014] FW CFB 9227 saw the full bench of the FWC closely examine what can be considered to have occurred ‘at work’. In this case, three workers were seeking anti-bullying orders against their employer.  The respondents concurrently sought to strike out a number of alleged bullying claims, arguing that they had not occurred ‘at work’. 

Substantial connection? 

In opposing any strike-out, the workers argued that in accordance with s789FD of the Fair Work Act, the bullying behaviour could be found to have occurred at work if a ‘substantial connection to work’ was established. However, President Iain Ross and his colleagues on the FWC rejected this position, stating that there was ‘no persuasive argument’ to expand the reach of s789FD in this way. The bench made it clear that a limiting rather than broad interpretation of the section was in order. 

Performance and authorised activities 

To provide clarity around the concept of bullying ‘at work’ within 789FD of the Act, the FWC stated that the words encompassed "both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)." In this way, the actual work functions and/or authorised activities were considered a key starting point for the application of section 789FD. 

Time and place of cyber bullying

Part of the alleged behaviour involved offensive Facebook comments that had been made about the workers. It was argued by the respondent that these had not been posted at work – and thus fell outside of the bullying provisions of the Act. Rejecting this approach, the full bench stated that it is not a question of when the offending comments are posted on social media. For the purpose of proving workplace bullying, the mischief will be seen to occur at any time that the worker accesses the comments while the worker is ‘at work’.   

Lessons learned
This case reflects the challenges inherent in applying the idea of ‘at work’ to modern cases of workplace bullying. The focus of the FWC full bench on the time and place where the bullying was experienced – rather than the time and place of posting – sheds useful light upon bullying ‘at work’ when social media is involved. And in rejecting ‘substantial connection’ as a means of determining if the alleged mischief occurred at work, the bench made clear that any interpretation of s789FD should be limited to the clear purpose of the provision within the Act.