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To complement our successful Respectful Workplace Series, PEEL brings you the Diversity and Inclusion Introductory Workshop. PEEL believes inclusive cultures and a diverse workforce can drive innovation and collaboration, create trusted partnerships with your customers, suppliers and community partners, and contribute to the success and sustainability of your organisation.

Although there is more to workplace diversity than a single workshop can provide, our introductory Diversity and Inclusion Workshop does have the ability to increase awareness, impart knowledge, and educate employees on how to accept differences among fellow employees. It keeps the team talking about Diversity and Inclusion and how it applies to the work they perform every day, thereby assisting to break down the barriers.

The Introductory Diversity and Inclusion Workshop will support your internal D&I and EEO strategies and represents an opportunity for you to educate your employees about the importance and benefits of a diverse and inclusive workplace.

Rather than focusing on telling people what not to do, what not to say and what not to believe, this 2-hour introductory workshop focuses on helping people to work out what they can do - how they can proactively build inclusive workplaces.

Specifically the workshop covers….

• What is Diversity and Inclusion about
• The benefits of valuing Diversity and Inclusion within the workplace
• What we each can do to encourage an inclusive workplace
• Generalising v Stereotyping – what’s the difference and why does it matter
• Unconscious Bias – what is it?
• To have an awareness of your individual biases

Mediation for One….try Conflict Management Coaching as an alternative.

Conflict Management Coaching (CMC) is another option organisations can access through PEEL to support the resolution of conflict in the workplace. Conflict coaching supports the early resolution or management of conflict and restoration of working relationships. Using the CINERGY® Conflict Coaching Model, CMC is a structured process designed to adopt a supportive and problem solving approach to managing conflict.

A specially trained coach works one-on-one with the coachee who is experiencing conflict with another person, working with them to improve the way they manage and interact in their interpersonal workplace conflicts and disputes. It is a future-oriented process that focuses on each person’s specific conflict management goals. CMC is not therapy or counselling. The CM Coach does not provide advice or act as a representative but rather, helps people gain increased competence and confidence to manage their interpersonal conflicts. CMC enables the coachee to talk about the conflict with a neutral third party (the conflict coach), consider options for managing the conflict and explore options for managing the conflict with the other person.

CMC is designed to help people shift their thinking, perspectives and behaviour in relation to the conflict. It is about empowering the person in dealing with their conflicts. As people generally are unable to change other people’s behaviour, coaching assists them to work out strategies that they can use in dealing with the person with whom they are in conflict.

CMC is a voluntary and confidential process which generally encompasses a series of individual sessions (the number of session will vary depending on the particular brief). The CM coach can work with both parties to the conflict or one party. CMC is can be used when you first have grumblings of conflict manifesting or post a workplace investigation when parties need to move forward with their relationships.

Organisations are increasingly utilising their social media platforms to encourage customer feedback.

So what happens when the feedback provided is abusive, defamatory, demeaning or belittling?

Can the employer be liable for bullying or harassment from customers?

Under the Fair Work Act repeated unreasonable behaviour by an individual or group of individuals towards a worker, where the behaviour creates a risk to health and safety whilst at work, could amount to bullying. The Act however, is silent in relation to who the perpetrator of the unreasonable behaviour may be.

There are also obligations on employers under Work Health and Safety legislation to monitor and address workplace risks, including risks to an employee’s psychological wellbeing.

It would be prudent for employers to be mindful of customer comments about employees on official social media sites as well as having methods in place for monitoring and addressing any comments which may be considered offensive or abusive. This may include a statement on the social media platform that the organisation does not condone, abusive, derogatory or offensive comments in relation to its employees as well as removing the offensive feedback as soon as possible. Having a social media policy that defines acceptable use and how to deal with abusive and offensive social media posts is also increasingly important.

A recent Canadian example

A Canadian labour arbitration ruling highlighted an organisations responsibility to effectively manage social media accounts to protect employees from customer abuse. The union representing employees of the Toronto Transit Commission (TTC) filed a grievance demanding the TTC’s Twitter account be permanently shut down as it created a platform for passengers to harass, demean and belittle employees.

During the case the union presented tweets that showed customers using abusive, racist and homophobic language to describe employees. Three employee’s testified with one stating a customer took his picture and posted it to Facebook and Twitter, with a message about her displeasure in relation to how he handled her complaint. His picture was deleted by the customer but was then posted by another Twitter user with the message “this douchebag needs some disciplining”. The photo and the comment remained on the Twitter site for 12 months after the incident.

The TTC defended the grievance on the basis that they had legitimate objectives for creating and operating the Twitter account, and noted increasing expectations by customers to provide such a platform. The TTC’s position was that it was impossible to regulate the dialogue on the social media site and there were no reasonable steps they could have taken to address the offensive tweets.

The arbitrator agreed there would be little to prevent customers from posting offensive message but found the evidence showed inadequate responses by TTC, including ignoring some offensive comments from customers. The arbitrator found the TTC had failed to take all reasonable and practical measures to protect its employees from customer harassment via its Twitter account. While the arbitrator did not order the shutdown of the Twitter account, he did order the TTC to create a social media policy that would effectively address inappropriate tweets made to the Twitter account.

Although this case was heard via a labour arbitration ruling, the Canadian laws are similar to Australia in that an employer has a legal obligation to take all reasonable steps to prevent harassment of employees. This decision clarifies that duty in Canada extends to comments made by the public via the employer’s social media platforms.

On the 27^th June 2013, the Fair Work Act 2009 was amended to give the Fair Work Commission anti-bullying powers.  They will come into effect on the 1^st January 2014.

What does this mean?

The amendments to the Fair Work Act:

1. Allow workers to apply directly to the Fair Work Commission for an order to stop the bullying. The worker must reasonably believe they are being bullied. There is no income cap restricting those who can apply.
2. Define “bullying at work” to be “repeated unreasonable behaviour by an individual or group of individuals towards a worker (or group of workers of which the worker is a member), where the behaviour creates a risk to health and safety whilst at work”.
3. Require the Fair Work Commission to deal with an application for an order to stop bullying within 14 days of an application being made. In the process, employers and co-workers may be summonsed to attend a hearing or conference, or to produce documents.
4. Give the Fair Work Commission the power to make any order it considers appropriate, other than financial penalties, reinstatement or compensation.

There is no time limit for an employee to make of an application to the Fair Work Commission. The worker needs only to remain in the workplace and still be exposed to circumstances that pose a risk.  Additionally, the worker will not be precluded from commencing other actions under the Fair Work Act such as unfair dismissal or general protection applications.

The first step for the Fair Work Commission before making an order will be to satisfy itself the worker was bullied and there is an obvious risk the bullying will continue. They will consider:

1. The outcome of any prior investigations into the matter.
2. Whether there are any other procedures available to the individual to resolve the grievance and/or dispute.

What could this mean for Employers?

1. There is no requirement for a worker to first raise a bullying concern internally.
2. There will be greater scrutiny and expectation around performance management processes.
3. It will be an imperative to thoroughly document all workplace investigations and ensure they are procedurally fair.
4. The lack of clarity around what constitutes “bullied at work will possibly expose employers to claims arising from social media interactions or as a result of flexible work arrangements that are not clearly defined.
5. This amounts to a new workplace right triggering general protection provisions and increasing exposure to adverse action claims.
6. A order from the Commission may increase the success of workers compensation claims for psychological injury.

What do you have to do to be ready for 1 Jan 2014?

Peel has developed an Action Plan to assist with your preparation for 1st January 2014. Check it out here.

The bottom line is to ensure that all complaints made are responded to quickly and in sufficient detail.

To assist you in the implementation of your action plan you will find a copy of the following document on our website www.peelhr.com.au

·  Draft Code of Practice Preventing and Responding to Workplace Bullying

·  Safe Work Australia Workplace Bullying – Draft -  A Workers Guide

·  A sample investigation file note template

Keep ahead of the change and start implementing steps now. If you require any assistance in relation to workplace investigations or training in Respectful Workplaces feel free to contact us at email@peelhr.com.au or call (02) 4963 7373.

As the last week of most people’s working year comes upon us don’t be surprised to find some of your employees using social networking sites such as Facebook or Twitter to display their displeasure or air their grievances about their managers, co-workers or the organisation.

There have been a number of cases before Fair Work Australia (FWA) during 2011 that demonstrate that many of the inappropriate actions of employees in relation to social networking have not actually taken place ‘at work’.

In Mr Damian O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys [2011], Mr O’Keefe’s employment was terminated following his highly abusive comments in relation to suffering delays in the payment of a bonus. FWA confirmed the manner in which Mr O’Keefe went about airing his frustrations warranted dismissal and his approach to making the comments via his home computer and out of work hours did not make a difference.

 Issues taken into consideration by FWA were:

• The public nature of the comments, even though he made them to his ‘Facebook friends’, many of them were work colleagues.
• The abusive and threatening language breached the company’s values of courtesy and respect.
• There were other avenues in which his grievance could have been aired within the company and these were known to him.
• The comments were detrimental to the employers business.

 It is important to know that in certain circumstances you have the capacity to terminate an employee’s employment or to manage their performance for out-of-hours conduct. To be on sure footing here, what must be established is a sufficient link between the conduct and the employment relationship. For example you must be able to establish that the conduct:

• is likely to cause serious damage to the relationship between the employee and employer.
• damages the employer’s interests, or
• is incompatible with the employee’s duties as employee.

Warnings should be taken from the FWA Full Bench decision in Dianna Smith T/A Escape Hair Design v Sally-Anne Fitzgerald [2011].  That decision demonstrates the limitations in terminating an employee for conduct outside of work. The employee expressed her annoyance on Facebook at receiving a lesser bonus than she expected and receiving part of her holiday pay by cheque. She posted the comment: “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!” FWA held that whilst the comments were foolish, they were inaccurate and the employee had not named the salon. FWA held that the Facebook comments could not be considered to be detrimental to the employer's business and as such there was no valid reason for dismissal.

 In reflection of these cases it is imperative that organisations take steps to ensure that they have in place clear, transparent and enforceable social networking policies and strategies.

Advice for employers:

• Ensure you have a social networking policy that addresses:
  • Use during work hours
  • Use outside working hours
  • Use through employee’s own technology
  • How employees can use the sites
  • List specific inappropriate uses
  • Monitoring of employees’ access
  • The consequences for non-compliance
• Update other relevant policies such as recruitment, discrimination/bullying and IT policies to reflect the use of social media.
• Consider including in employment contracts specific clauses in relation to social media.
• Ensuring induction programs cover the use of social media and the related policies.
• Providing training and awareness sessions when policies are updated.
• Ensure grievance and investigation training is provided for line managers and HR staff to ensure procedural fairness is always applied.

Where there is a breach:

• Consider whether there is a sufficient link between the conduct and the employment relationship before taking any disciplinary action.
• Take into account the surrounding circumstances, including the employee’s length of service, previous performance or disciplinary issues, reasons given, and whether there was a clear policy in place at the time of the incident.
• Don’t make the decision to terminate before all relevant information has been gathered and considered - thoroughly investigate issues, and ensure procedural fairness is afforded when performance managing, or considering the termination of, an employee for the inappropriate use of social media.

For more information on how we can assist you with your organisational policies, employment contracts or staff training feel free to contact us or in the office on: 49 63 73 73