Key Learnings #1

PEEL HR was recently invited to attend the ICAC Probity Forum in Sydney. It was an informative session and so we thought we would share what we learnt. The first of the key learnings focuses on, ‘The Trends in Corruption Reporting and In-House Investigation Practices’.

Manager of Assessments, Andrew Garcia, shared data collected over 5 years leading to 2017, which highlighted that 20% of all complaints of alleged corruption received by ICAC were borne out of complaints regarding the HR & Administration function within organisations. Specifically, the top 4 most commonly alleged corrupt conduct related:

1. Impartiality;
2. Improper use of records or information;
3. Personal interest breaches; and
4. Improper use or acquisition of funds or resources.

Interestingly 40% of all complaints relating to the HR & Administration functions were reported by the Principal Officers of the organisation, namely, CEO’s or General Managers. Whilst the HR & Administration function is regarded by ICAC as a ‘high risk’ area for complaints, it is worth noting that the threshold requiring mandatory reporting is low. All that is required is that the Principal Officer suspects on reasonable grounds that the matter concerns or may concern corrupt conduct.

What was interesting to note was that whilst ICAC themselves received a large number of complaints, 11,000 in NSW last year alone, they only investigated approximately 2% of alleged complaints. A key response from ICAC on receipt of complaints is actually a deferral back to the organisation to conduct an investigation into the matter themselves and keep ICAC informed of the progress. As such, they highlighted it is of critical importance for organisations to ensure effective in-house investigative practices.

From a review of in-house investigations which had been conducted and reported to them, ICAC noted a number of deficiencies which they shared as key areas for organisations to be mindful of when embarking on both planning and conducting an in-house investigation.

With respect to planning, they highlighted that organisations must:

• Have a clear purpose for the investigation;
• Ensure the scope is appropriate;
• Have defined roles and responsibilities for the investigation parties – including who is responsible for managing confidentiality and expectations; and
• Having whistle-blower protections in place and managed.

When it comes to conducting the investigation, ICAC raised organisations must:

• Know when to advise the respondent of allegations against them, have a clear order of interviews and establish appropriate evidence gathering practices. For example, never look into live email inboxes;
• Particularise the allegations;
• Ensure any new allegations which arise during the course of an investigation are reported to the relevant parties;
• Ensure the independence of the Investigator;
• Ensure quality analysis of the evidence; and
• Value completing an investigation, even if an employee resigns during the investigative process, consideration should be given to completing the investigation to ensure the identification of any systemic issues.

PEEL HR is currently offering a 1.5 day Workplace Investigations program, which supports organisations in conducting effective internal investigations. For more information on this session give PEEL HR a call on 1300 665 144 or email us at: email@peelhr.com.au

We hope you enjoyed the first of our key learning…. stay tuned for key learnings more next week.

Flexible Work Practices…are they a reality… what does the research say?

Many organisations are adopting more flexible workplace policies to address work-life balance. This makes sense. Research has shown that organisations who embrace flexibility seek to do so because of the positive correlation with productivity, employee health/wellbeing and retention. It is also what the employment market demands. Results from a survey conducted by INSEAD in collaboration with Universum, the HEAD Foundation and MIT Leadership Centre, showed that 3 out 4 individuals, regardless of whether they were currently students or professionals, believed that flexible work practices will present ‘big opportunities’ for them.

These stats are consistent with a new Regus study which also reflected that 63% of job candidates would turn down a job where flexible work arrangements were not on the table and 41% of respondents said they would have remained in their old jobs for longer if flexible work was an option.  

Yet, despite significant improvements in areas such as parental leave provisions and the known benefits that flexibility can provide organisations, the prevalence of discrimination against working parents is still a key issue in the Australian workplace. Research undertaken by FlexCareers found 1 in 4 women resigned because their requests for flexible working hours were denied, while only 11% reported having an ideal flexible work arrangement.

In the last 12 months, Australian Sex Discrimination Commissioner, Kate Jenkins met with over 1,000 people across Australia asking them to comment on her initial priorities for gender equality. Her report released in May, titled, ‘A conversation on gender equality’ noted -

‘We are still frequently hearing stories of pregnancy and caring related discrimination experienced by women. We also heard that in practice there remains structural and cultural barriers to the implementation of flexible work policies... There also remains entrenched norms in workplaces that prevent policies being adopted equally by women and men. A gap also exists between what leaders are saying and what middle management implements”.

It is important to note that women are not the only ones who want flexibility. Research released by the Diversity Council of Australia showed that having flexibility to manage family life and personal life was one of the 5 most highly valued job characteristics for men. Yet men can be reluctant to use flexible work for fear of career penalties. Theses entrenched norms were also reflected in research by Bain & Company which showed that men who work flexibly feel unsupported and harshly judged. According to the Australian Human Rights Commission despite only taking short leave periods compared to their female colleagues, around 27 % of fathers and partners have reported experiencing discrimination relating to parental leave and return to work.

Discrimination (against both men and women) on the basis of parental responsibility is unlawful. In the case of Hickie v Hunt & Hunt, the Fair Work Commission found there had been indirect discrimination against a female solicitor upon her return to work from parental leave. The firm’s group meeting arrangements excluded her, no accommodation was made for her to work part- time hours and the firms decision to impose on her a condition that to maintain her position in the firm it was necessary for her to work fulltime, was deemed discriminatory conduct. Interestingly, in 2015-16 of complaints received by the Australian Human Rights Commission, 20% of complaints were lodged under the Sex Discrimination Act with 40 complaints being in relation to family responsibilities. At a briefing we attended this week presented by FCB, Rachel Holt, Acting Director Investigation and Conciliation Services, Australian Human Rights Commission noted that in the last calendar complaints received in relation to family responsibilities was the second largest group to have increased.

There are a lot of outdated assumptions about flexible work and who is an ideal employee. There are many assumptions about the limitations accessing flexible work will have on your career. Many may think the “ideal employee” has no care responsibilities, is totally devoted to work and will work all hours. Is that really an ideal employee? Many may think that to be successful to advance to senior levels you cannot access flexible arrangements. The evidence suggests it’s actually not. Results cited in the case of financial firm Moody’s, “which profiled employees who have advanced to senior leadership roles while using flexible work benefits showed it didn’t derail advancement”.

It seems there is a divergence between what the employment market wants and for many, what reality actually looks like in this space. Organisations wanting to attract and retain highly skilled and valuable employees can no longer afford to ignore how important providing a good work/life balance has become for both genders and all ages. Flexibility, when it is implemented well, can offer a positive solution to a variety of workplace issues. 

To engage your leaders and employees in understanding diversity issues, contact PEEL HR to discuss our Diversity and Inclusion Awareness sessions.

Calling for EOI – Workplace Investigations and Mediation training!!

We have recently had some interest from our clients to run our popular Workplace Mediation and Workplace Investigations training publicly again.

 If we are able to facilitate getting a small group together we would love to assist in getting this off the ground, so we are calling for expressions of interests to see if you have any new or existing employees who may be interested in attending either of these programs?

The date for both courses is yet to be confirmed as we will work with you to coordinate and confirm the most suitable date for the training.

To find out more about the content of our programs click here.

If you are keen to express your interest in one of these programs or you have employees you would love to send along please let us know by close of business, Friday 24th August 2017 by emailing your EOI for the program(s) you are interested in to… email@peelhr.com.au

The short answer is yes! Research has found that when a person is prepared to advocate for the target of the bullying and take a stand on their behalf, the bullying behaviour decreases or in fact ends. Witnesses or bystanders are the group with the most power to stop bullying, yet they are notorious for not intervening when they see it happening.

Why are bystanders reluctant to get involved?

A study conducted by the Australian Rights Commission (2012) titled Cyberbullying and the Bystander highlighted some concerning statistics relating to bystanders in schools:

• 20-30% of students actively assist or reinforce bullying;
• another 26-30% of students try to stay outside the bullying situation; and
• less than 20% of students act to stop the bullying and defend the student being bullied.

The study highlighted the power of bystander intervention noting that when students did decide to intervene observational research found that bullying stopped within ten seconds of peer intervention in many cases.

The study noted possible reasons why students were reluctant to intervene including:

• their desire for peer acceptance;
• uncertainty about what action to take;
• fear of becoming the next target of the bullying;
• lack of knowledge about appropriate strategies to use to intervene;
• and/or assuming that another observer will take action to stop the situation.

Although the study was confined to school aged individuals some of the reasons bystanders remain passive are also germane to adults, particularly the last point.

A ground-breaking experiment that looked into the role of bystander’s reluctance to intervene was the Bystander Apathy Experiment conducted by Social psychologists, Darley and Latané (1964) in response to the brutal rape and murder of Kitty Genovese in New York. The murder was committed outside Kitty Genovese’s apartment building. It was reported up to 38 witnesses saw or heard the attack and did not call the police, prompting the now famous experiment by Darley and Latané. As a result of the experiment the term(s) bystander effect and bystander apathy were coined, being a social psychological phenomenon in which individuals are less likely to offer help to a victim when other people are present. They noted several factors contribute to the bystander effect, including ambiguity, cohesiveness and diffusion of responsibility. The last term diffusion of responsibility is phenomenon whereby a person is less likely to take responsibility for action or inaction when others are present. Considered a form of attribution, the individual assumes that others either are responsible for taking action or have already done so.

The Australian Human Rights Commission noted a more recent study conducted in 2005 proposing a model relevant to bystander issues in the workplace. The model contains 4 propositions by which a workplace observer will respond to a perceived injustice or violation of a co-worker. Ultimately the study: highlighted bystanders are less likely to be passive when they identify with the bullying target and they are influenced by the organisational environment such as the organisational culture and repercussions for becoming involved.

We thought we would share with you two clips that are great for emphasising the importance of bystander action. You might like to consider these in your internal communications.

This is a 2009 video showing an experiment conducted in London whereby actors pretended to be ill and collapsed in a busy public place while many bystanders walked past without intervening. You will see, the impact of diffusion of responsibility is very strong as people are struggling with two social rules, the first being that they ought to help and the second being they ought to do what everyone else is doing, in this case not helping. In one of the experiments within 4 minutes, 34 people passed without helping, with the first attempt to help taking 20 minutes. Interestingly when the actor was dressed in a business suit and as such appeared to be “part of the group”, it took only 6 seconds for a bystander to intervene, highlighting the likeliness of individuals to react when they identify with the victim. The experiment also clearly highlighted that when one person stopped to help the willingness of others to also stop and help was increased, thus creating a new group norm.

https://www.youtube.com/watch?v=OSsPfbup0ac

The below link also details an experiment conducted in the US, showing the reluctance of bystanders to intervene.

https://youtu.be/EisZTB4ZQxY

Please join us in one or both of the following information sessions being held in the Central Coast on 21 September 2017!

·International Workplace Bullying Conference - What do you need to know?
9am for meet & greet with presentation starting at 9.30am, finish by 10.30am
Cost if FREE!

We will share key learnings from the International Conference on Workplace Bullying and Harassment, which was held in New Zealand in 2016 and facilitated by leading researchers and HR practitioners from Europe, Australia and the US.

·Respectful Workplace for Leaders
11am to 1.30pm
Usually $300, but offered at a discounted rate of $150 plus gst.

Both sessions will be held at Mingara Recreational Club, Mingara Drive, Tumbi Umbi.

Please register your interest noting which session(s) you will be attending via email@peelhr.com.au by 14 September 2017.

Limited Availability, Be Quick!

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.

The incidence of workplace bullying has jumped almost 40% in the last 4 years according to the intriguing results of Safe Work Australia’s Australian Workplace Barometer Project 2014/2015.

The Bullying and Harassment in Australian Workplace Report November 2016, revealed that Australia’s national average workplace bullying rate was 9.6%, which is an increase from 7% in 2011.The results place Australia with potentially a greater incidence of workplace bullying than 34 European countries which collected similar data in 2010. The data reflected that the increase in the prevalence of workplace bullying was observed in most states and territories, with the exception of South Australia.

Other key findings from the research included:

The incidence and regularity of workplace bullying - Nearly one in 10 people reporting they have been bullied at work. With 12.2% saying they were bullied daily, 32.6% indicating they had been bullied at least once per week for between 1 and 6 months, 12.9% responding they had been bullied for between 7 to 12 months and 16.3% for more than 2 years.

The majority of bullying is reportedly by supervisors - Of those who had been bullied 62.3% experienced bullying from their supervisor, which was over two times higher than the rate of the next highest perpetrators, that being co-workers at 28%.

The red flag industries - Industries with the highest levels of bullying were Electricity, Gas and Water supply; Health and Community Services; Government administration and Defence; Transport and Storage; Mining; and Education.

Females are more likely targets - Women were more likely than men to be bullied and more likely to experience unwanted sexual advances, unfair treatment because of their gender, and being physically assaulted or threatened by a client or patient.Men were significantly more likely to experience being sworn at or yelled at in the workplace.

The forms of bullying - The most common forms of bullying were being sworn or yelled at; humiliated in front of others; being physically assaulted or threatened and experiencing discomfort from listening to sexual humour.

The study identified that workplace bullying may result from the interplay between individual, organisational and external aspects but it is organisational level factors which are the most central determinants of bullying. A leading indicator was the extent policies, practices and procedures for the protection of workers psychological health are in place.Specifically the results showed that high work pressure and emotional job demands were related to higher levels of bullying. Conversely in organisations where there was a higher regard for psychological health and safety, which is demonstrated through management commitment, adequate provision of job resources, supervisor social support, job control and organisational rewards, there was a lower prevalence of bullying.

So what does this mean? Your interventions to reduce bullying and harassment must focus on improving policies, practices and procedures for the protection of workers psychological health and doing so using a risk management framework.

The report identified some practical steps including:

• There must be a solid commitment for senior management to prioritise and communicate good WHS policies, practices and procedures;
  

• Establishing worker psychological health as a core business value;
  

• Policies should include guidelines for respectful behaviour;
  

• Management must create jobs with manageable work demands;
  

• Awareness training for managers and supervisors on bullying and harassment should include a focus on their effects and managements obligations under WHS particularly that neglecting harmful psychosocial risk factors, such as bullying and harassment, is in direct conflict with the model WHS Act;
  

• As supervisors are the most commonly perceived source of bullying, education and training should pay particular attention to supervisory and leadership behaviours and focus on managing performance of their employees;
  

• Establishing systems to enable upward and downwards communication about bullying and harassment; and
  

• Employee awareness of ethics and values.

As a workplace that is safer from a psychosocial perspective is linked to high levels of productivity, there is a strong case for organisations to focus on organisational-level primary prevention strategies. PEEL HR are specialists in this space and we have in place a number of programs and tools to support your organisation in achieving the practical steps identified above:

To increase employee awareness of behaviours in relation to bullying and harassment – try out The Respectful Workplace for Employees;

To target supervisor education – we have two training programs being the Respectful Workplace for Leaders and Managing for Performance.

We also have our leader’s tools to support the resolution of conflict, being the Interactive Guide for Leaders: Resolving conflict and promoting a respectful and collaborative workplace and the Building Respect and Collaboration Leaders Toolkit, to support Leaders engaging their teams in an interactive way to discuss the concepts of respect and collaboration at work.

Change is challenging for most people, especially if they were not directly involved in decisions which may impact their jobs. Managing your people and workplace concerns during a period uncertainty is one of the most significant challenges to be faced by Leaders and HR practitioners.

However, wide scale change is a catalyst to cultural change.Your culture will change when there are changes to direction, structures and process.Culture is the outcome of these changes.It is an opportunity to be relished not one to be fawned.Grab it with both hands and travel with it, shape it.

While the change is occurring, times will be difficult.People are not always going to love the new direction straight away.Strong leadership is required.As the dust settles, a new culture will emerge.You want to ensure the culture shaped by the new processes will be one that enables the achievement of the organisations strategic direction.

In the time before the dust settles, careful planning, focused communication and support for your people is needed to maintain a level of calm.

Most people prefer a predictable and stable work environment. Quite naturally, during organisational change, such as an amalgamation or merger, there is a perceived winner and loser and as such, people fight against change. They fear it because it presents a threat to the way they have gone about their work, they fear losing control, they fear the consequences on their remuneration, they question their competence and often struggle with the increased workloads which accompany change processes. Conflict which may have been sizzling underneath or between people and teams will often surface during periods of organisational change. This conflict can become destructive if there isn’t a willingness to collaborate and work towards a solution.

Leaders and HR practitioners must be able to recognize the difference between healthy constructive and destructive conflict. According to Robbins and Judge (2009, Organisational Behaviour), ‘conflict is constructive when it improves the quality of decisions, stimulates creativity and innovation, encourages interest and curiosity among group members, provides the medium through which problems can be aired and tensions released, and fosters an environment of self-evaluation and change’. This is where new cultures are built.Conflict can be particularly destructive if it is suppressed. Resentment and tension can build and people can explode. Leaders need to be able to identify such conflict and intervene early to de-escalate it.Leaders need to be skilled to identify healthy conflict and support it.

As a leader you can facilitate and support a culture of a healthy response to workplace conflict by:

• Modelling, demonstrating and showing commitment to desired behaviours around communication.
• Talking with employees separately.Be a sounding board and encourage them to reflect on their concerns to ensure they have them in perspective. Work with them to determine if there are any changes they can make to the situation which may affect a change to the way it is operating.
• Getting people talking with each other to resolve differences. Leaders have a role in encouraging and supporting this through providing guidance and coaching on how to approach such difficult conversations.
• Taking action and addressing issues before it’s too late. The means leaders need to be prepared to have discussions with their teams and show a willingness to listen and understand issues and concerns as this can lead to increased insight, changed outlooks and the generation of solutions to problems.
• Setting clear expectations around roles and responsibilities and standards of behaviour and be prepared to have conversations when these are infringed.
• Undertaking a team building exercise to allow staff to become aware of and talk about their work preferences – this is often a source of conflict.

Conflict is inevitable and even more so when massive changes are thrust upon people. Managing conflict and workplace concerns which erupt during these times is a critical management function.

Patrick Lencioni, renowned author of 5 Team Dysfunctions, recently gave an interesting webinar on something that speaks to our credo. He addressed his 20 years of experience with Healthy Organisations, which are effectively high performance-facilitating cultures. The clincher for us though was his reinforcement that Healthy Conflict is an underpinning ingredient in a strong culture. Without it, all will suffer.

He elaborated on content in his latest book ‘The Advantage: Why Organisational Health Trumps Everything Else in Business’. We have summarised, for you, the key messages from the webinar that related to role of Healthy Conflict in organisational effectiveness.

Lencioni purports, that irrespective of how “clever” an organisation is, intelligence is necessary, but not sufficient. Nothing will succeed in surpassing competition and customer expectations without a strong, healthy culture. By that he describes a culture that has strong leadership, clearly communicated priorities and an acceptance of and encouragement to challenge and debate pivotal performance issues.

Lencioni spoke about obvious downsides existing in an unhealthy organisation such as sitting in a meeting when key business decisions are required and people are not honestly contributing. He described, in those circumstances, the best decisions are not made, the poorer decision is not committed to and supported with resolve and ultimately performance and productivity suffers.

Patrick Lencioni talks about the 4 Disciplines of a healthy organisation. He reinforces that the Disciplines must be driven by the Leader of an organisation –

1.Build a Cohesive Leadership Team - Start with the behaviours of the leadership team. The leadership team must be behaviourally tight. That is, they must trust each other, argue well, focus on the collective good rather than individual silos, and hold each other to account.

2.Create Clarity – The leadership team must be intellectually aligned around 6 key questions that provide clarity to the organisation. That is,

a.Why do we exist or matter as a business?

b. Our key behavioural values?

c.What business are we in?

d.What makes us different? – strategic anchors

e.Our Focus - What are our top priorities right now?

f. Roles and Responsibilities – who is responsible for this?

3.Over Communication Clarity – Constantly remind people about the key questions. Be repetitious!

4.Reinforce Clarity – Develop human systems that reflect the clarity provided by clear answers to the 6 key questions, for example, “recruit on Values”

Healthy conflict underpins these Disciplines, critical to building a healthy organisation. If healthy conflict doesn’t occur then the resolution of the tough questions and the quality of big decisions will suffer. It is necessary to disagree and have challenging conversations on the “WHAT” and “HOW” organisations deliver value.

Lencioni talked about the Conflict Continuum. The Conflict Continuum has a state of artificial harmony at one end. That is, where everyone is very “lovely” to one another and no one disagrees. He took the view that most teams cling to this end of the Continuum due to their fear of disagreement. At the opposite end of the Conflict Continuum, people edge towards destructive conflict, which Lencioni described as overt, mean-spirited behaviour.

Lencioni promoted the place to “live” is in the middle. The precise point is where he sees one more “step” will land you in the destructive conflict arena. It takes bravery to live in the middle. When living in the middle, you will occasionally step over the line to destructive conflict. But, he explained the key then is for the team to have the skills to confront what moved them into the unhealthy conflict arena and the best means to repair it.

Sound easy ? - It does but we know that somehow, more often than not, it doesn’t occur without “bumps”. A mixture of not having the skills, the bravery, the time and fearing the response are the inertial forces behind staying at the “artificial harmony” end of the continuum. We also know, as Lencioni points out, that conflict is not often encouraged. It often has a negative tag. The concept of healthy conflict is not embraced.

Lencioni described the two aspects that create more momentum for healthy conflict. Firstly, create an environment where healthy conflict is embraced. Create in team members an expectation that they will be confronted and they have prepared themselves to challenge and engage in disagreement as standard behaviour in decision making processes. They then begin to see that more active “weighing in” to the debate, produce better decisions, more commitment to the decisions and overall more purposeful, collective execution.

Secondly, when healthy conflict tips into the destructive arena there is an expectation that it will be resolved and it will occur quickly. Lencioni takes the view that when there is a hit to trust between employees, trust rebuilt can make the working relationship stronger. Our view is there is a caveat on that, trust can be rebuilt if the erosion wasn’t massive (to the point of distrust) and if it is addressed quickly and transparently. Realistically, embedded conflict is super difficult to repair and can sustain a deep scar. Sometimes, team members need a nudge to know when the line has been tipped and redirection or repair work is necessary. Leaders need to be on the look out for conflict moving into the unhealthy arena and step in, subtly initially, to support the team members to address the concern directly.

It is as easy as Lencioni describes, if you create the climate that encourages healthy challenge and constructive conflict and people have the skills to challenge in a healthy manner and resolve conflict when it tips into the unhealthy zone. Which is consistent with our previous PEEL news on this very issue. Skills can be built through our in-house programs – Healthy Conversations and Leading Healthy Conversations. Both supported by our tool-kit, Interactive Guide for Leaders: Resolving & Promoting a Respectful & Collaborative Workplace which supports leaders in identifying conflict between members early. Also our Team Collaboration Workshop works with high performing teams in moving them to hum.

Do you have teams where there is disharmony; where communication is poor and collaboration is low?

Do you have teams who are performing but you want to take them to the next level?

Click on the below link to learn more about how PEEL is using the Team Management Profile (TMP) to work with teams to communicate and interact in a more effective and collaborative manner.

BuildingTeamCollaborationPDF.pdf

Who should have access to an Investigation Report and can ‘Legal Privilege’ protect the confidentiality of an investigation report?

It is important to be mindful during a workplace investigation of who has access to the investigation report. We have been asked by many clients over the years for advice in relation to the extent to which a report should be shared within the business.

Should the Complainant and Respondent be provided with a copy of the report?

We strongly advocate that a report is shared only with those who have a responsibility to make decisions arising from the report. Why?

Firstly, to maintain confidentiality as far as possible for all parties to the investigation. Secondly, to protect the integrity of your organisations complaint/grievance process.

If reports are more broadly shared, it could have negative consequences for future investigations. Perception that confidentiality is not maintained could see complainants being reluctant to raise a complaint via your internal complaint/grievance process. Witnesses may refuse to participate or severely limit their evidence, having an adverse impact on the investigation process and outcome.

It is essential that complainants and respondents are provided with feedback regarding the findings of an investigation and it is confirmed to them in writing, however they are not required to be provided with a copy of the report unless your organisations policy or procedure specify this requirement.

A recent case heard in the Fair Work Commission highlights an example of where an employee terminated for bullying requested access to an investigation report as part of an unfair dismissal claim. The employer refused on the grounds of Legal Professional Privilege.

What is Legal Privilege?

Legal professional privilege is a rule protecting the disclosure of communications between a lawyer and their client when in the process of providing legal advice.

The case of Kirkman v DP World Melbourne Limited [2016] FWC 605 highlights that when legal privilege is effectively established and maintained the confidentiality of internal documents and advice can be protected from disclosure.

The employer received a complaint of bullying and instructed their lawyers to engage an independent investigator who investigated the complaint and prepared a report on the findings. The claim of bullying was substantiated.

Six months later the employee was dismissed. He filed an unfair dismissal claim requesting a copy of the investigation report and several associated documents to assist his claim. The employer refused, stating the report was legally privileged and the employee disputed the decision.

In this case legal privilege was upheld and the employer was entitled to refuse to provide access to the investigation report on the basis that;

• the investigator was engaged by the employer’s lawyers to assist in preparing advice for the employer;
• the investigators communications were only directed to the lawyers, not the business;
• document control was strictly established and maintained;
• the report was marked private and confidential; and
• the employer had not expressly or impliedly waived privilege over the document, partial disclosure for use in disciplinary discussions in relation to the allegations was permitted.

Interestingly, it was also noted that this was not a case in which the documents were required to be disclosed so that the employee could understand the nature of the allegations of misconduct put against him.The allegations were clearly put to the respondent in writing in the course of the investigation.

It is common for people to wait until conflict escalates before they do something about it, often this can mean significant impacts have been occurring to individuals and teams around them in the meantime. PEEL HR now offers Conflict Management Coaching (CMC) as a proactive, alternative strategy for organisations to have in their toolkit when they are supporting individuals who are in conflict.

CMC can be implemented at any point before, during, or after conflict. For example:

Before conflict – (i.e. before an unnecessary evolution of it) – such as where a person expects to get pushback and negative reactions to the delivery of a difficult message. For example, when managers are reticent to give performance feedback or conduct a performance review as they anticipate negative reactions from certain employees or where an individual needs to deal with challenging situations, such as meetings.

During the Conflict – CMC at this point in a conflict situation helps the person to consider how the conflict can be better managed rather than letting it escalate, such as to assist them in having a conversation with the other person.

After the Conflict – (e.g. post-mediation coaching) — CMC can be used to help individuals with any unresolved responses, or to manage ongoing interactions or consider what to do differently in the future if the same sort of situation arises.

This type of coaching is ‘Dispute Specific Coaching.’ Meaning, the coach helps people to focus on a particular dispute that is adversely affecting their work and working relationships. In these situations the Coach guides the person to conduct a structured analysis of the dispute, to gain insights about their own conduct in the dispute and to engage in a problem-solving dialogue with the other person. The main objectives of this process is to coach participants to:

• Identify their goals for managing conflict effectively;
• Reflect on the ways they react and contribute to conflict;
• Consider how they react to certain triggers;
• Shift unhelpful reactions to conflict to constructive responses;
• Consider and develop alternate ways to approach conflict;
• Improve language and communication skills in order to interact and address conflictual situations more effectively; and
• Reduce the harmful impact of conflict on themselves and others.

Dispute Specific Coaching may take four to eight sessions to complete (approximately an hour for each session), with increased awareness occurring in between the sessions due to seeds planted during coaching. The CMC coach uses a range of skills, including powerful questions that engender new perspectives about each person’s contribution to the conflict, including their own. CMC seeks to move people from reaction to reflection, which ultimately facilitates a more rational analysis and choice of action.

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.

“Stop, Collaborate and listen” is the most famous line of Vanilla Ice’s 1990 chart topping song” Ice Ice Baby”, a song that still resonates with many today. Love it or hate it, when building team collaboration, the lyrics “stop, collaborate and listen” embody a fundamental philosophy in enhancing team effectiveness within organisations.

Teams are becoming increasingly more diverse, cross-functional, they can be dispersed across locations and are more technologically reliant, all of whom can be reporting to the same leader and working towards the same goals and deadlines. However, despite the team dynamic shift, whether they be large or small, the genesis of team collaboration requires design.The design of three underpinning pillars – team direction, team structure, and support mechanisms.

Team Direction

A clear direction for the team provides purpose and alignment. This provides everyone within the team with an understanding of what the team’s purpose and goals are, and importantly, how each individual within the team contributes to it.

Team Structure

A well-structured team allows team members to know their contribution, opportunities for interdependency and expected behaviours. There is great value in difference – autonomous thinking by team members will be more creative and arrive at more sustainable decisions through diversity of thought.

Team Structure can be enhanced through:

• Establishing a Team Charter that is particular to the team and aligned to organisational values;
• Defining team ground rules and acceptable conduct expected of each other. These rules don’t have to be complex and could be as simple as arriving to team meetings on time and not interrupting when someone is speaking;
• Reviewing the team structure and its members – is there the right number and mix of team members to achieve its objectives?
• Assessing the office setting, is it open or does it allow space for teams to break out and collaborate?

Support Mechanisms

Team members need the empowerment, encouragement, support and space to challenge, coupled with the resources and training required to effectively perform. Challenge is essential in supporting team growth and sits on a precipice that can tip to unhealthy conflict. The likelihood of unhealthy conflict within teams is increased as the size of the team increases.

Effective Support Mechanisms to enhance team performance include:

• Shared knowledge and information - whether it be via regular round table discussions or team information forums (virtual or face to face);
• Conducting Effective Team Meetings - including the generation of team ideas and opinions. When possible, face to face meetings encourage greater relationship building amongst teams, however if teams are geographically dispersed the use of Skype and other technology can support this approach;
• Learning agility – encouraging and supporting team members to continually develop through formal, informal and on-the-job learning;
• Empower healthy conflict - incorporate a team stated terms of reference for interactions that describe and support healthy conflict;
• Encourage feedback – direct feedback and structured such as 360-degree team member review;
• Creating network collaboration opportunities within the team to get to know and understand each other. When teams understand the different work preferences of team members, the team can then understand how each other utilises information, makes decisions, communicates and operates, generating greater outcomes;
• Informal mentoring to support employee continuous development, this could be done via a number of avenues including in leaders one on one discussions with employees, incorporated into adhoc discussions or inviting employees to be involved or attend senior meetings or discussions; and
• Team Collaboration provides a competitive advantage to organisations, supports the achievement of team and organisational objectives via collaborative efforts and also enhances the kind of workplace people want to work at. A recruitment, retention and branding initiative that money can’t buy!

At Peel HR we are passionate about collaboration and have facilitated hundreds of team collaboration workshops with organisations who want to build collaborative workplaces. We would love to partner with your organisation to enhance your team’s effectiveness through our Team Collaboration Workshop.

For many HR practitioners and line managers, conducting workplace investigations can be a daunting task, even if you’ve been through training or completed investigations in the past, they present their own unique challenges…Am I following due process? Are my interview questions appropriate? Do I have enough evidence? Have I been reasonable in my assessment of the evidence? Are my findings correct?

Through purchasing hours in your Investigations Coaching Bank, PEEL can act as your specialist investigations sounding board, providing you with support and assistance as you track through your workplace investigation.

You can use your Investigations Coaching Bank hours to have PEEL:

• answer any questions in relation to your investigation
• help you frame allegations
• assist with the development of your interview questions
• review your investigation report
• consider your recommendations

The Investigations Coaching Bank can be used at any time over an 18 month period. So if you have hours left over from your current investigation, you can use them at a later date for any subsequent investigation.We can attend your workplace, talk over the phone or video conference with you.

PEEL’s message to clients to take care of respondents during investigations has been reinforced in a recent case considering a workplace harassment investigation. At a recent client breakfast, PEEL shared learnings from the 2016 International Association on Workplace Bullying and Harassment conference. We spoke about the importance of being mindful during a workplace investigation to ensure support is also provided to the respondent.

Most of the research in relation to workplace bullying has been derived from the perspectives of the target of the bullying or witnesses; there has been very little research which has sought to examine the perspective and the consequences on the alleged bully when an allegation of bullying has been made against them.

Research from the UK and Australia presented at the conference examined bullying from the perspective of the accused and identified some common themes, which HR practitioners and leaders should consider when managing complaints of bullying and harassment.

Negative impact of the allegations on the accused’s health
Participants involved in the studies regularly reported taking time off work due to psychological disorders during workplace investigations. Notably, regardless if the allegations had been substantiated or not the research participants described similar levels of distress.

Isolation and lack of support
Most organisations have policies and procedures which offer support and assistance to those making allegations. However many respondents to claims of bullying state there is a clear lack of support afforded to them once complaints have been lodged and also during investigations, thus placing them in an isolated position.

Perceptions of organisational justice
Participants in the studies reported that although organisational policies place a focus on resolving issues at the lowest level, parties are often not given a chance to do this because there is a quick escalation. There was also a perception that complainants were shown greater empathy and treated differently to the respondent.

Importantly, the research supported the view that a person’s perception of fairness in an investigation is a key determinant on whether they decide to bring a further claim such as workers compensation or legal action. As such, aside from alignment with Values there is a key business driver to ensure the respondent is treated in a just and fair manner during the investigation is paramount.

Learning from a recent case - Hayes v State of Queensland [2016] QCA 191
A case was lodged to the District Court of Queensland by four employees who claimed their employer, the Maryborough office of Disability Services Queensland had breached their duty of care by not adequately supporting them during an investigation, whereby allegations of bullying and harassment had been made against them, leading to psychological injuries.

The Maryborough office of Disability Services Queensland’s investigation of bullying and harassment involved 26 complainants who made over 200 allegations against nine managers of bullying and harassment, the complaints were supported by the union. It was the second investigation of its type against one of the respondents over an 18 month period. Both investigations were conducted internally and resulted in the allegations being unsubstantiated. However, four of the nine respondents lodged an action in the District Court of Queensland. The employee’s complaint was not in relation to the internal investigation itself but that their employer did not fulfil its duty of care to provide them sufficient support at the time of the complaint and during the later investigation process which resulted in serious psychiatric injury.

The District Court of Queensland found that a duty of care did not arise and dismissed the employee’s claims. The four employees appealed the case, the Queensland Court of Appeal found that a claim could be made for failure to provide adequate support during an investigation.

Furthermore, it was found the duty of care was owed and was breached in relation to three of the employees, in that:

• The employer had awareness of the size and seriousness of the investigation into the allegations of bullying and harassment against the employees;
• Due to the size and maturity of the organisation they should have been able to foresee that if support was not offered the employees could suffer more than just distress; and
• Although the employees were offered counselling, no other support was offered and some of the employees were required to continue working with multiple complainants and were subject to picketing by the union and media coverage in a provincial town.

While the Queensland Court of Appeal found a breach of duty of care, the claim did not establish the psychological injuries had been caused by the breach.

The case reinforces that it would be necessary to consider the individual situation in the workplace investigation to determine whether sufficient support is provided by a global organisational support system or whether a more tailored support is necessary.

This case, and the research outlined above highlights the need to ensure support is offered to all parties during an investigation and to be mindful of how perceptions of fairness and organisational justice are managed.

Wow – casuals being eligible for redundancy entitlements, being able to bring claims of unfair dismissal…where to next?

Historically casual employment has been described as employment which is intermittent or irregular in nature. We know that this is no longer the case, casual employment has evolved but many organisations often engage casuals because of the presumed ease of this arrangement. However, the pervious 12 months saw some interesting decisions with respect to casual employment that you might want to consider.

Redundancy entitlements have commonly been calculated on the basis of an employee’s part-time or full-time service, casual service did not count. The case of AMWU v Donau Pty Ltd [2016], FWCFC 3075, now changes this paradigm. In a contentious decision, splitting the Full bench 2-1, the FWC  made a ruling that casual service which has been regular and systematic prior to an employee transitioning, without a break in time, to a part-time or full-time role and whose role is subsequently made redundant will have their period of casual service counted for the purposes of redundancy pay. The issue in question for the Full bench was the concept of “continuous service”. Section 22 of the Fair Work Act defines a period of service as a period during which the employee is employed by the employer, but does not include:

• Any period of unauthorised absence; or

• Any period of unpaid leave or unpaid authorised absence (except community service leave or stand down).

The Full bench determined therefore, that a period of service by a regular and systematic casual employee is not identified as one of the exclusions from a period of service in the Act and as such, where this is established, it should count as services for the purposes of calculating redundancy pay.

It should be noted, where the role of a genuine casual is being made redundant, S.123 of the Fair Work Act continues to provide that redundancy provisions do not apply. This decision only relates to situation in which a permanent employee’s role is made redundant and they have transitioned from a casual engagement which can be demonstrated to be regular and systematic in nature.

The ramifications of this are yet to be seen. Given we know the right to request flexible working arrangements or take unpaid parental leave is driven by a service pre-requisite and entitlements to annual leave and paid personal /carer’s leave are also calculated with reference to continuous service, could these be challenged too? We will wait to see. For employers who are seeking to transition casuals who have been utilised in less than an adhoc manner to permanent staff, the Donau decision is something to keep in mind.

Most employers are aware that permanent employees, are entitled to access unfair dismissal provisions under the Fair Work Act when their employment is terminated in circumstances that they believe to be harsh, unjust or unreasonable provided they completed the minimum qualifying period of 6 or 12 months, depending on the size of the organisation. Employers beware, The Fair Work Commission in the matter of Cole, determined that in relation to the minimum qualifying period, a period of service as a casual employee does count towards the employee's period of employment if the employment was on a regular and systematic basis; and the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The case of Skene v Workpac Pty Ltd [206] FCCA 3035 highlights a further anomaly with respect to casuals. In this case it was established that an employee can be a casual employee under the terms of an enterprise agreement (and therefore have no entitlement to annual leave under that agreement) yet not be a casual under the Fair Work Act 2009 (FW Act) and therefore entitled to annual leave under the FW Act. In this case, although both the employer and employee believed the employee was a casual and although the employee was paid a casual loading, the Federal Circuit Court ruled that the employee was not in fact a casual. This meant that the employee was entitled to annual leave in addition to his casual loading.

This case sits uneasily with the Fair Work Commission decision in Telum Civil (Qld) Pty Ltd v CFMEU [2013] FWCFB 2434, where a Full bench of the Fair Work Commission held that, where employees are engaged under an industrial instrument, the industrial instrument determines the status of the employee’s engagement. 

In the case of Skene, the employee on commencement of employment signed a “Casual or Fixed Term Employee – Terms and Conditions of Employment” document which set out the casual nature of his employment and that he would be paid a casual loading as such. However, the nature of his engagement saw him working a regular work schedule with regular hours which were all determined in advance. In his determination His Honour Judge Jarrett found that Mr Skene’s employment did not have “the essence” of casual employment but instead had the hallmarks of a permanent employee.

What this case is saying is simply labelling and paying an employee as a casual, in an attempt to deem them a “casual” under a relevant industrial instrument may not be enough. It is evident the courts in to determining whether an employee is truly a casual for the purposes of the Fair Work Act will consider factors including:

• The permanence and regularity of the employee’s roster patterns;
• What an employee is told and what documents they have signed on commencement of their employment, as well as;
• The terms of any relevant EA or Award.

These cases really highlight that organisations need to be certain that their employment arrangements reflect the true nature of an employee’s engagement, or else they may face exposure to a variety of claims they previously sought were exempted by engaging a casual employee.

Please join us in one or both of the following information sessions in Tamworth and sample this for your organisation!

• International Workplace Bullying Conference - What do you need to know?
  7 December 2016, 9am for meet & greet with presentation starting at 9.30am, finish by 10.30am
  Cost if FREE!
  
  
• Respectful Workplace for Leaders
  7 December 2016, 12pm to 2.30pm.
  Usually $300, but offered at a discounted rate of $150 plus gst.

Both sessions will be held at Wests Diggers Club, Kable Avenue Tamworth.

Please register your interest noting which sessions you will be attending via email@peelhr.com.au by 30 November 2016.

Limited Availability, Be Quick!

A Respectful Workplace can be hard to define or verbalise in concrete terms. You know it when you see it and you know what it’s not. 

It’s inclusive of diversity, it’s where people feel valued, where conflict is addressed early and disrespectful behaviours are not tolerated. 

Creating a respectful workplace requires a commitment from your Organisation. It’s a strategy which involves a number of platforms. 

Written and designed by experts in conflict, the PEEL HR Respectful Workplace Suite is a combination of programs and tools you can use in your people and cultural strategies to build Respectful Workplaces.

To find out more about The Respectful Workplace Series please contact us on 1300 665 144.

PEEL is running our 1.5 day Workplace Investigations Training on 12 & 13 September, likely to be the last for 2016.

Register now to join at 2015 prices!

To find out more about the content and details of our Workplace Investigations Training please contact us on 1300 665 144.

If you or your staff are keen to join us in this program to refresh or grow skills in this area please contact us or register via the above links.

We would love to see you there!

PEEL Is Launching Workplace Investigations Training on 12 & 13 September 2016!

We have received interest from our clients to run our popular Workplace Investigations training publically again.

Due to popularity we will be running our Workplace Investigation Training on 12 and 13 September 2016!

To find out more about the content and details of our Workplace Investigations Training please contact us on 1300 665 144.

If you or your staff are keen to join us in this program to refresh or develop skills in this area please feel free to contact us or register via the above links.

We would love to see you there!

We Are Looking For A New Team Member!

We are looking for a new team member and thought the best outcome would be achieved by connecting with our network. You all know us and the work we do – if you know someone that might suit our team and the delivery of our service, could you please forward this message to them. Please feel free to circulate it through your networks. We would love anyone interested to give us a call in the first instance.

Thanks so much, Danielle Carney, Principal Consultant

For many HR practitioners and line managers, conducting workplace investigations can be a daunting task, even if you’ve been through training or completed investigations in the past, they present their own unique challenges … Am I following due process? Are my interview questions appropriate? Do I have enough evidence? Have I been reasonable in my assessment of the evidence? Are my findings correct?

Through purchasing hours in your Investigations Coaching Bank, PEEL can act as your specialist investigations sounding board, providing you with support and assistance as you track through your workplace investigation.

You can use your Investigations Coaching Bank hours to have PEEL:

• answer any questions in relation to your investigation
• help you frame allegations
• assist with the development of your interview questions
• review your investigation report
• consider your recommendations

The Investigations Coaching Bank can be used at any time over an 18 month period. So if you have hours left over from your current investigation, you can use them at a later date for any subsequent investigation.  We can attend your workplace, talk over the phone or video conference with you.

For more information on our Investigations Coaching Bank contact PEEL on 1300 665 144

Knowing how to partner with an external workplace investigator is essential in order to ensure a thorough process which is fair for all involved and doesn’t result in breaches of law.

Recognise different roles

As external investigators we regard our professional integrity as precious. Our impartiality is paramount in managing our investigations. While ongoing communication with our client is an important part of our process, we think it is important that there is a clear separation between the organisation and the investigator.

The importance of this was emphasised in a case involving Visy (Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Pty Ltd (No 3) [2013] FCA 525).Visy decided to engage an external investigator, ostensibly to provide impartiality. However, the criticism of the Federal Court was that the investigation occurred under ‘Visy’s guiding hand’.Evidence related to the investigation showed that Visy managers helped to frame the questions that were asked, sat in on the interview with the respondent and may have sought to have the final report revised in order to strengthen it. The Federal Court did not consider the investigation or the decision maker to be ‘independent and impartial’. The result was the overturning of the original dismissal and fines to the organisation and one of the managers involved.

The way we work will ensure that we have discretion over the investigation and conduct the process in an impartial manner.

Establish suitable terms of reference

When engaging with an external investigator it is also important to begin by establishing terms of reference that balance the need for a clear scope with flexibility to consider further, related allegations that may arise during the process. It is important that a single investigation does not snowball into a series of unrelated issues but sometimes an investigation will uncover further concerns that relate to the matter at hand. Appropriate terms of reference and investigative process will allow for these to be considered and pursued where relevant.

We also believe we have not done a complete job with our investigations if we haven’t considered the bigger picture. That is, while our investigations deal directly with allegations and incidents, we like to consider broader factors such as workplace culture, apparent training needs and other underlying causes or possible remedies. We like to ensure our terms of reference permit us to do so.

These guidelines will ensure we can work together to achieve the outcome of a successful and rigorous investigation that is not only sustainable under challenge but considered fair by all those involved.

It’s great if your workplace investigation into misconduct, bullying or inappropriate behaviour can be managed internally. However, there are occasions when this is not possible or should not occur. Here are some ideas about when it is more appropriate to engage an external investigator.

When you lack the expertise

If you don’t have the expertise in conducting investigations internally, don’t risk it. Patricks Stevedores was criticised by the Fair Work Commission during an unfair dismissal hearing for exactly this reason (Francis v Patrick Stevedores Holdings Pty Ltd [2014] FWC 7775). The Fair Work Commission described the internal investigation related to an incident of assault as having ‘serious and fundamental flaws’ partly due to the inexperience of the HR Manager who managed the process. The result was the claim of unfair dismissal being upheld, with Deputy President Sams noting:

‘Ms Green had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent's evidentiary case.’

When the incident or issue is particularly complex

An external investigator can also be an appropriate option where the situation is highly complex and contested. Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539 centred on the actions of Mr Farmer, a driver whose employment was terminated after being accused of using a mobile phone whilst driving a tram across an intersection. The incident was witnessed and reported by two off duty managers and the allegations were put to the employee leading to various contested accounts of when, how and why certain actions happened. The investigation was conducted by Mr Farmer’s depot manager. In upholding a claim of unfair dismissal, Commissioner Wilson stated that an external investigation may have been more appropriate:

‘Although Yarra Trams had a right to be concerned about the report of [the off duty managers], an objective and potentially arm’s-length investigation might have demonstrated to the company that their observations were not definitive and that, in the absence of other corroborative evidence or the admissions of Mr Farmer, the company risked relying upon “inexact proofs, indefinite testimony, or indirect inferences”.’

When you need to manage bias

Even in large organisations, workplace investigations can be politically charged and require a significant investment of time and energy, especially to keep them progressing in a timely manner. An external investigator can minimise perceptions of bias and since their focus is solely on the investigation, the result can be a quicker and less disruptive process.

• Additionally, it is important that there are separate people conducting the workplace investigation and making the decision about any punitive measures that may result. The role of the investigator is simply to gather evidence to determine the allegations and make recommendations on possible responses. In some organisations, there may not be the structure that allows two people to take on these roles.In that circumstance, you can’t outsource the decision making responsibility (as much as you may want to!) so it is best to secure an external party to conduct the investigation.

Engaging an external investigator may cost more upfront but if the situation requires it, they can help you avoid unnecessary complications and save time, energy and money.

The PEEL Interactive Guide for Leaders: Resolving and Promoting a Respectful and Collaborative Workplace is a support tool developed for leaders when they are managing concerns in their teams.

PEEL is passionate about the early intervention of conflict in order to avoid its escalation to destructive stages that could involve bullying.  The key to early intervention is our leaders and ensuring they are skilled to identify and work to assist in the resolution of conflict.  Many times in our mediations, investigations and training we have heard from leaders that they have not assisted the resolution of conflict early because they haven’t known what to do or say.

Our Interactive Leaders Guide on resolving conflict and promoting a respectful and collaborative workplace is a tool that leaders can refer to on the job.  It contains very practical information and 5 short videos that leaders can watch to hear the words and be aware of the potential curve balls they might be thrown. 

Why not check out a snapshot of the Guide?

• Click here to watch a sample video
• Click here to access a sample of the Interactive Guide for Leaders Booklet

If you would like to find more out about the guide simply get in contact with one of our consultants by phoning 1300 665 1441300 665 144.

From our experience as workplace investigators, we would like to share our thoughts on a few ‘curveballs’ which could arise when you are conducting an investigation…

Curveball 1: What if an investigation party is reluctant to participate in a formal investigation? Worse, what if it’s the complainant?

What if a complainant, who was alleging bullying, is reluctant to participate in an investigation as they fear victimisation?  What if the complainant refused to participate in a formal investigation in relation to the concerns they had raised on the basis that if they were victimised as they strongly feared, it would impact their day to day work, their career path and ultimately their mental health. In this case the organisation was aware the employee had a known psychological illness and was faced with the complexities of determining how to deploy their WHS obligations to control the risk of exposing the employee to a known risk to their health and safety if they proceeded with a formal investigation.  It’s a hard decision.  The considerations in this type of case are:

• Is there any independent evidence which would allow an investigation to proceed without the complainant’s involvement?
• Is it possible to proceed with the investigation and protect the complainant from what they fear? What control mechanisms can you put in place to reduce the potential risk to health and safety?
• Is it possible to not conduct a formal investigation but instead put in place measures to eliminate or manage the risk of bullying? Are there other alternate actions which may be appropriate in the circumstances?

Curveball 2: Can I direct an investigation party to attend a medical assessment or to provide a medical clearance.

From time to time investigators will be faced with an employee whose behaviour suggests they may have an underlying medical condition affecting their mental health. These concerns may become apparent to the investigator prior to the investigation or during the investigation and may have the potential to impact on recommendations needing to being made by the investigator.

In Blackadder v Ramsay Butchering Services Pty Limited [2002], Justice Madgwick‘s decision (upheld by the High Court) emphasised that where necessary an employer can require an employee to provide medical evidence attesting to their fitness to undertake duties and where there is a genuine need for it, to also attend a medical examination to confirm their fitness.

But here’s the curveball…. What if the employee provides a medical certificate saying they are fit for duty, can you request additional information? There have been a number of recent cases which provide us with some insight on this.

In Columbine v the GEO Group Australia [2014] the employee provided a medical certificate and a medical report but failed to provide the employer with the authority for them to directly correspond with her GP. The Fair Work Commission found in the circumstances, in order to fulfil the employers duty of care they needed to ensure there was no risk to the employee or others on the employees return to work and continuing beyond their return to work.  As such, the employer has the ability to not only request medical information which could be from an independent medical practitioner or the employees treating doctor but also has the opportunity to discuss the medical information with the nominated doctor .

In Thompson & IGT (Australia) Pty Limited, the employer requested an employee see two doctors, a general surgeon and a psychiatrist. The employee attended the appointment with the general surgeon who concluded the employee was fit to perform his duties. The employee however refused to attend the psychiatrist appointment, asserting that such an assessment was beyond the bounds of his condition, (namely that it was a physical condition). In considering this matter, Justice Goldberg noted it was a well-established principle that an employer may give an employee a "lawful and reasonable direction" which, if reasonable and relates to the subject matter of employment requires observance. The key consideration  arising from this case is that the request for medical information can be made by an employer provided it is done so on reasonable terms  and it is reasonably necessary in the first instance for the request to have been made.

Such decisions to date reinforce that employers may under common law principles require employees to provide additional medical information or undergo a psychiatric assessment in some circumstances. Namely, where it is necessary for the employer to have available to them all relevant medical information to be able to conduct their business and where it is necessary to ensure the health and safety of all employees under their WHS obligations.

A case to watch out for will be Grant v BHP Coal Pty LTd [2015] FCA 329. This case is being heard on appeal and once concluded will provide us with further clarity around whether an employer can direct an employee to be examined by the employers nominated doctor. Keeping a watchful eye on the outcome of this decision will be important as it may amend the current state of play.

Complex issues such as these will always present as challenges to investigators. PEEL is aware that at an industry level Workplace Investigations guidelines are being developed for Local Government. Such guidelines will no doubt greatly assist staff charged with the job of conducting investigations.

Where you require additional support or expertise in Workplace Investigations, from investigator’s with Local Government expertise, contact PEEL HR on 1300 665 1441300 665 144 or at email@peelhr.com.au or Check out our website at www.peelhr.com.au

Today is a day of reflection. A day where we can all take a moment to pause and consider the actions we can take to reduce the risk of injury and illness in our workplace. It is also a day of reflection, to remember those who may have lost their lives from a work-related injury or illness.

Different conversations are difficult, for different people, for different reasons. They are usually the ones we want to have the least, they will always challenge us and unfortunately as a Leader they will never be far away from us, so we need to equip ourselves to best have them.

A Healthy conversation does not always mean shared decision making. As a Leader we are aiming to be able to talk openly about the matter at hand, to maintain the relationship and to create a level of understanding. Being able to have Healthy Conversations is a skill all Leaders should be working toward, join us to learn what it takes.

For more information on this program click here!

Workplace concerns, range from simple misunderstandings, interpersonal conflict to serious grievances such as discrimination, bullying, harassment and violence. Leaders must be equipped to be able to address such matters when they are raised with them.

This program prepares Leaders to:

The new year will soon be upon us and PEEL has just released their Training Calendar for 2015! 

We offer a bespoke range of training programs that focus on building the capability of leaders, employees and support staff in generating collaborative behaviour.

PEEL HR's philosophy of learning means that theoretical concepts and workplace dilemmas are explored through an interactive environment that ensures participants are engaged in group exercises, case studies, role plays, practical exercises, discussions and short demonstrations or mini lectures on theory.

To check out our 2015 Training Calendar and course details click here or contact us on 1300 665 144 or at email@peelhr.com.au.

Start looking at your learning and development objectives for 2015, book in your training and hit the ground running in 2015.

THE FIRST 5 TO REGISTER WILL RECEIVE 10% OFF!

 Managing for Performance

This 1.5 day course will cover the following:

• Understanding your role in demonstrating behaviour and building performance within your team.
• Know how to set and convey clear expectations and evaluate them.
• Understand the legal principles of procedural and substantive fairness in managing for performance.
• Have the skills to conduct informal performance development on a daily basis.
• Understand the formal processes in managing under-performance and misconduct in the workplace.

 When? 1 & 2 December 2014
 Where? Merewether Bowling Club, Caldwell Street, Merewether
 Cost? $990 (inc gst) per participant
 Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

“Tis the season to be jolly…” or so the saying goes. But for many Leaders, it can be a far cry from that. At PEEL we know December is upon us, or as we say, “The Christmas lights are on”, as our phones light up and our emails hit overdrive with a surge in workplace concerns being raised and the Christmas parties have not even begun!

Whilst it’s a wonderful time of year, unfortunately Christmas can also be a catalyst for underlying frustrations and conflicts to be aired in the workplace. Why is that? The rush towards Christmas can be overwhelming both personally and professionally. As we come to the end of the year, we all have other things affecting the way we go about our work, whether it be –

• Trying to pump out work that has been hanging about so deadlines are complete by the end of the year so they don’t carry over.
• The lethargy we are feeling from the year to date.
• The pressures of over demanding children who have iPads and ponies on their Santa lists, as we brace ourselves for the onslaught of in-laws and relatives who are about to invade our homes. Or we have the after effects of the weekends spent with sun, surf and sand and can only focus on getting more of that over the holiday break.

Overlay these with the normal work issues around resourcing, cost-cuts and unachieved work targets and it is the perfect recipe for increasing temperatures around the workplace.

In addition to communicating and distributing your Respectful Workplace Policies and Organisational Values as reminders of appropriate behaviours to be followed at work Christmas Parties (if you haven’t done this already you still have time), you might want to consider some additional strategies to assist you in keeping things ‘chilled’ in your teams as they push toward the end of the year. As a Leader we encourage you to be particularly proactive at this time of year. Talk openly with your teams. Why not at your next team meeting engage your team in a discussion about managing the pressures which come with the end of year rush. To assist you, here are our top 5 tips for Leaders as the Christmas Lights start to flick on:

• Talk with your teams about work preferences. Remind them they each have different ways in which they prefer to work. That as individuals they all approach their work in different ways – they think in different ways, they plan in different ways and they communicate in different ways. For example, some people like to crystallise thoughts by talking and others prefer to think first; or some people like to follow a plan where as others prefer a more flexible approach to their work. The key message here is there is no right or wrong preferred style of working, it is just a different preference they each have and that whilst at other times of the year they may be more tolerant of these differences, given the pressures of the year end, they may need to remind themselves to be patient with each other, to be respectful in their interactions or to talk with each other in the first instance, rather than becoming irritated or frustrated.

• Encourage your team to communicate face-to-face, especially if they need to discuss something important. Remind them that if they do have to have a difficult conversation to plan for it before they have it and to focus on trying to find some common ground, given that a difficult conversation should not be about getting what you want. Remind them to check their emotions, to be vigilant self-monitors. Is what they are about to say to their colleague an appropriate response? Would they like to have the same thing said to them? Furthermore remind them not to make assumptions, encourage them to ask questions of each other and seek clarification with each before they jump to conclusions. If they do need to communicate a difficult decision and this has to be done by email, encourage them to take a second to re-read it before they press send. Ask them to challenge themselves - Is it clear? Is the tone the way they want it to be? Would they be happy to receive the email in the manner it is written?

• Two heads are better than one. Encourage a collaborative approach to resolving operational issues. For example, if deadlines in the team are not going to be met, encourage them to flag this early with you and with each other so a more collaborative approach to resolving the situation can be taken rather than key individuals burning the candle at both ends in an attempt to achieve the unachievable, which only makes for shorter fuses in the team.

• Be supportive.At this time of year, some people report higher levels of stress or depression. Encourage your teams to watch for signs of people who are under the pump or are not being themselves. Ask them to act on it early and check in with each other - ‘R U OK’ or encourage them to escalate it to you as the Leader so further support and assistance can be provided. As a Leader, encourage your team members to leave the workplace on time as often as they can between now and the end of the year so they have time to balance their personal commitments and not feel pressured by them.

• Model the Behaviour. As the Leader - guide, inspire and motivate. There’s usually so much to do in such a short time before the sun sets on 2014. Keep a list of workplace deliverables to keep you and the team on track but be sure you evaluate your expectations, both of yourself and your team. Are you being realistic in what can be achieved between now and the end of the year? This is also the time to show your appreciation – listen, acknowledge and be present. Simply acknowledging your team and sincerely thanking them specifically for their work, their attitude and their commitment are important. Never underestimate the power of the words “thank you”.

As the end of the year creeps upon us all, don't forget to check out PEEL's final Training Programs for 2014.

Workplace Investigations Training

This 1.5 day course will cover the following:

• The requirement for a workplace investigation
• Keys to Successful Investigations
• The role of the investigator and other players
• The legal principles
• Planning and preparing an investigation
• An investigation framework
• Practical interviewing skills
• Analysing the evidence
• Writing an investigation report

 When? 10 & 11 November 2014
 Where? Merewether Bowling Club, Caldwell Street, Merewether
 Cost? $990 (inc gst) per participant
 Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

Workplace Mediation

This 1.5 day course will cover the following:

• The opportunity for workplace mediation
• A Framework for mediation
• Practical mediating skills

 When? 24 & 25 November 2014
 Where? Merewether Bowling Club, Caldwell Street, Merewether
 Cost? $990 (inc gst) per participant
 Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

Managing for Performance

This 1.5 day course will cover the following:

• Understanding your role in demonstrating behaviour and building performance within your team.
• Know how to set and convey clear expectations and evaluate them.
• Understand the legal principles of procedural and substantive fairness in managing for performance.
• Have the skills to conduct informal performance development on a daily basis.
• Understand the formal processes in managing under-performance and misconduct in the workplace.

 When? 1 & 2 December 2014
 Where? Merewether Bowling Club, Caldwell Street, Merewether
 Cost? $990 (inc gst) per participant
 Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

As market demands shift, organisations are ever-changing. The idea of ‘team’ is not just in the traditional term of a group of people who are all physically in the same location, reporting to the same manager, working to the same timeframes for similar goals.  Today, the idea of ‘team’ can also include a cross-functional project team working for a defined period of time on a specific project, or a virtual team who do not work in the same location and may not even work during the same hours of the day, or various teams combined through matrix reporting functions.  Despite the shifting defining elements of an organisational team, there is one thing that doesn’t change: collaboration is key to a sustainable, high performing team.

What do we mean by ‘team collaboration’?

You walk into a project ‘war room’ and you can feel the hum of energy.  In one corner, a group of team members are huddled around a white board, each one with a whiteboard marker in their hand, jumping in to contribute to the brainstorming session they are having on the creative name for their newly-developed product.  In another corner, the rest of the team are working together to map out where they are at on the project timeline, drawing in the information each has gathered from the group to build the inevitable Gantt chart.  The groups then come together to replay to the others what they have achieved, challenging different views, all whilst continuing to build on the ideas of the others and finish with a shortlisted proposal for the new product name and a finalised list of end deliverables for the project, to be presented to the Project Board the next week.  The effectiveness of the team is palpable.

As Aristotle said, ‘the whole is greater than the sum of its parts’.

This is workplace team collaboration in motion.  Technically, it can be defined as where ‘the members of the group are known, there are clear task interdependencies, expected reciprocity, and explicit time-lines and goals’[1].  In practice, the synergy achieved through a collaborative team is noticeable through the team’s high levels of achievement, innovative and constructively challenging culture and positive energy.  The collaborative team is the team we all want to be on.

Why collaborate?

Or, should we say: Why not?  Through team collaboration, organisations can harness their competitive advantage – you can’t sell, copy or steal genuinely collaborative relationships that have been built within a team.  You build an agile organisation that is not dependant on hierarchy, but empowers ownership and accountability for success at the team level. You establish a learning organisation, constantly hunting for continuous improvement through learning from each other, building cross-functional and cross-skilled teams who thrive on developing the team’s success.  You can ensure that more complex issues are solved more easily and in a shorter time frame, based on a collection of thoughts and inputs from a diverse range of individuals who respect each other for their different experiences and backgrounds.  You also develop a group of people who positively challenge the boundaries to grow and develop your business.

A truly collaborative team doesn’t prioritise hierarchy, but does have very clear set roles and responsibilities.  This means that the team focuses on a decrease of power-based influences (whether this power is derived from status, tenure, age etc) and an increase in informational influence, based on what each person can bring to the table in their skills and experiences.  This, in turn, increases an organisation’s capacity to serve its customers, employees and stakeholders to achieve greater success.

If your focus is more on the ‘dollars and cents’, then here are some figures for you: a study completed in the USA found that, by focusing on the establishment of collaborative teams, organisations were able to increase the productivity of those teams by an average of 50%[2].  Imagine what you could do with a 50% increase in your team’s productivity …

So, again, the question begs: why not build collaborative teams?

The success factors

It can be easy to talk about wanting to build collaborative teams; generally we accept the benefits of collaborative teams in any size or structure of an organisation.  The clincher becomes the question of ‘how?’.  We have taken the opportunity to pull together some success factors in building a collaborative team, which will hopefully start and/or continue your journey to collaboration:

• Increase informational influence – When a team forms, take the opportunity to discuss the relevant skills and experiences each member brings to the table.  Everyone has the opportunity to have equal input.  This shifts the balance of the participants from social influence (based on factors such as role status, tenure, organisational experience, gender or cultural background), to informational influence (based on relevant knowledge, experience or skill, to the team goal at hand).[3]  This reinforces the notion amongst the team that everyone has input and everyone’s opinion is valued.

• Knowledge is power – allow teams to know themselves and their colleagues and you will unleash the power of collaboration.  Encourage, promote and champion diversity of thought and style. Through the understanding of different work preferences of the team, team members can understand how each other makes decisions, relates with others, gathers and uses information and how each person organises themselves (and/or others!).  A great diagnostic tool to build this awareness is the Team Management Profile™, by Team Management Systems.PEEL HR can tailor a Team Collaboration workshop for you, that draws on the individual Team Management Profile of each member of your team; to create your high performing team.

• Trust is key –  Patrick Lencioni builds his theory of the Five Dysfunctions of a Team[4] on the idea that trust is the foundational characteristic of any high-performing, collaborative team.  Without trust in each other, team members cannot be functional or perform at their best; it’s a distractor to the end game.  Trust involves being vulnerable, to enable the building of trust in and of each other. It takes courage to be vulnerable; it takes vulnerability to achieve.

• Have a clear, common goal that everyone can ‘buy into’.  Each team member needs to understand how their role and performance contributes to the team, and the organisation’s, ultimate success.

• Permit conflict – you don’t need to agree on the outcome, however to build collaboration everyone needs to have a voice.  If people disagree, they need to and are encouraged to, raise it.  No ideas are bad ideas; they should engage in health conflict.  However once a decision is made by whomever is responsible for making the decision, the team supports that position.  If further debate is required, it is done constructively and openly in the right arena; not in whispers and behind closed doors.

• Have clear team priorities – what are the outputs that, if the team as a whole doesn’t deliver, will be considered as unsuccessful.  Name the top 3 to 5 priorities and everyone contributes towards these priorities.  All scarce resources are diverted (as needed), to these priorities.  The team has clarity on what they are doing, what success will look like, and why they are doing it (what’s the end game?).

• Look after each other – professionally and personally.  We all have a responsibility to our peers to watch out for their safety, including their psychological safety and wellbeing.

• Inspire the yearn to learn – from each other, and from people external to the team.  Promote and reward continuous learning – think, do, reflect, learn, do differently.

• Have the right systems in place – reward systems, performance management systems, communication systems – all of it.  At every point, ask the question: “Does this go towards building the team?”  Each needs to contribute towards building a culture of collaboration, so that open collaboration within and across teams simply becomes ‘How we do things around here’.  Minimise individual rewards; focus on team rewards.  By being clear on the performance goals, behaviours and values that the team are adhering to, you can use the performance management system to ensure all team members are contributing appropriately. One way of doing this is through aligned team values.

• Aligned team values – This could be a team charter, or it could be a handful of key words that have a commonly understood meaning.  The team values should be particular to the team and align with the organisational values, if they exist.  The values should be underpinned by behaviours, so the team members know how to demonstrate the values.  One or two ‘Focus Values’ or behaviours may change each year, to enable you to maintain the focus of the team.  Ensure all members of the team understand the values and behaviours that are expected of each other; and that every colleague has the authority to hold each other member of the team accountable to demonstrating those values and behaviours.

• As Jim Collins said in Good to Great[5]: Get the right people on the bus.  Not everyone will be a cultural or team fit; they may have competing priorities, ambitions, expectations or experience.  Having a constructive and supportive conversation with a member of your team who is currently experiencing ‘Square Peg, Round Hole Syndrome’ enables them to find the right role for them, which will be a more fulfilling outcome for the individual, as well as the team.

• And, last but absolutely not least: Ensure your Leadership Team is leading by example; by promoting a respectful workplace that engages in constructive conversations in everything they do.

At PEEL HR, we are passionate about collaboration.  We love to partner with organisations who want to build collaborative workplaces, so if you believe your organisation could benefit from our passion and experience in building collaborative teams, call us on 1300 665 1441300 665 144.

Stacey’s passion for building leadership and team effectiveness make her a perfect fit for PEEL’S dedication to building collaborative organisations. Stacey has more than 12 years’ experience in Employee Relations and generalist Human Resources. 

The role of the leader in facilitating this approach to conflict resolution is to listen supportively to the concern (without necessarily agreeing with the points being raised), and to help the employee reflect on the situation by asking coaching questions such as:

• Can you think of ways that you may have contributed to this situation?
• How do you think the other person is seeing this situation?
• What things could you do to bring about a resolution by yourself?
• Is there a simple change to your own thinking or behaviour that you could make in order to solve this?
• What advantages and disadvantages can you see to escalating this further?

Such questions can allow employees to express emotions, explore perceptions and weigh up the options available. Sometimes this is enough for the conflict to be resolved before it really gets started which helps minimise disruption to working relationships and productivity.

Learn more about what it means to facilitate healthy conflict at PEEL HR's upcoming half-day workshop in Melbourne…

REGISTER NOW at http://www.peelhr.com.au/workshops or call 1300 665 1441300 665 144

Interactive Leaders Guide

PEEL HR have also developed an Interactive Leaders Guide that provides practical and engaging tips, checklists and videos so they are equipped to identify and facilitate healthy conflict within their teams. You can see a FREE VIDEO SAMPLE HERE.

• Hiding. Looking the other way in the hope that the situation will take care of itself.
• Hurrying. Rushing the resolution in order to normalise things as quickly as possible.
• Handballing. Passing all difficult people matters directly to HR.

Rather than reacting like this, leaders at all levels of the organisation need the initiative, courage and skill to facilitate conflict in healthy ways. PEEL HR is excited to be launching a resource next week that will help organisations develop their leaders in this way. The resource is titled ‘An Interactive Guide for Leaders: Resolving conflict and promoting a respectful and collaborative workplace’. It contains videos, checklists and guidelines that empower leaders at all levels to know how to facilitate conflict with confidence. Click to watch a sample video.

If you’re heading along to the AHRI National Convention and Exhibition in Melbourne next week (19-21 August) come and join us at stand #93. We’d love to meet you, show you the guide, and put you in the running to win a free copy!

If you’re not heading along to the AHRI National Convention and Exhibition, you can find out more about the guide in the following ways:

• Get in contact with one of our consultants by phoning 1300 665 1441300 665 144
• Follow us on LinkedIn where we post updates and share useful resources

PEEL will also be running events and training in NSW and Victoria over the coming months that can help develop the collaborative capability of your organisation. We look forward to partnering with you!

Managing for Performance

This 1 1/2 day course will cover the following:

• Understanding your role in demonstrating behaviour and building performance within your team.
• Know how to set and convey clear expectations and evaluate them.
• Understand the legal principles of procedural and substantive fairness in managing for performance.
• Have the skills to conduct informal performance development on a daily basis.
• Understand the formal processes in managing under-performance and misconduct in the workplace.
• Have the skills to conduct informal performance development on a daily basis.
• Understand the formal processes in managing under-performance and misconduct in the workplace.

When? 11th & 12th August 2014
Where? Merewether Bowling Club, Caldwell Street, Merewether
Cost? $990 (inc gst) per participant
Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

Navigating the Formal Performance Pathway

This 1/2 day course will cover the following:

• The legal consideration 
• The importance of confidentiality
• How to conducting a performance counseling session – including develop action plans to address performance issues
• Importance of documentation/record keeping
• Conducting a disciplinary discussion 
• Disciplinary outcomes – what are they and what do you need to consider
• How to conduct  a termination interview

When? 1st September 2014
Where? Merewether Bowling Club, Caldwell Street, Merewether
Cost? $495 (inc gst) per participant
Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

Register online via www.peelhr.com.au, email email@peelhr.com.au or call 1300 665 144. Get in quick and reserve your place!​

If you’ve ever worked in or managed a work environment marked by unhealthy conflict or bullying then you are familiar with just how destructive it can be. It can take a terrible toll on individuals, teams and organisations. It can be tempting to seek to respond to concerns about bullying by seeking to rid the organisation of all conflict. But this is a mistake.

Attempts to get rid of conflict in the workplace may in fact create a culture of tense, superficial harmony where bullying thrives and organisational growth is stifled. Instead, aim give employees and leaders the confidence to engage in healthy conflict underpinned by strong values and systems so that ideas can be exchanged and concerns raised without fear. This will go a long way to prevent workplace bullying and at the same time promote high performance and innovation across the organisation. Read more about how to build healthy conflict into your organisation in Danielle Carney’s article recently published in Human Capital.

Addressing conflict is often a difficult reality for leaders. PEEL is excited about having developed an interactive and practical leaders guide on this topic. The resource is a practical how-to guide for leaders to support them in navigating conflict within their teams.  It gives them the words and know-how.  The Interactive Guide features short and engaging videos which are embedded into the guide for leaders to see how the skills are applied.  They can access these resources via iPhone, iPad, android device, or PC right before leading any conflict resolution discussion. The guide will be launched at the Australian Human Resource Institute (AHRI) National Convention in late August and available for purchase soon after.

Investigating and dealing with individual instances of workplace bullying is of limited value if the underlying causes are not also identified and dealt with. PEEL HR advocates a holistic approach to investigations that considers the context in which bullying occurs so that preventative changes can be made.

A practical tip from the opening discussions of the Special Interest Group at the 9^th International Conference on Workplace Bullying and Harassment is to classify and consider the context of bullying in terms of the organisation, the team and the individual. Are there broad systemic issues such as culture that need to be addressed? Is there dysfunction within the team that is causing problems? Is there a lack of skill or understanding at the individual level?

Investigating and reporting on workplace bullying at each of these levels ensures a more comprehensive assessment of risk and a more complete response to the situation. 

Employees may be hesitant to raise concerns or complaints in the workplace if they lack confidence in the organisational dispute resolution system. This can lead to issues such as bullying going unreported or under-reported, making identification and resolution more difficult.

A practical tip from the opening discussions of the Special Interest Group at the 9^th International Conference on Workplace Bullying and Harassment is to develop a simple annual report card which provides aggregated, de-identified feedback to all employees about how the dispute resolution system has been utilised. It may include information such as:

• Number of workplace concerns reported in the past year;
• Percentage of matters resolved through informal means;
• Percentage of matters formally investigated;
• Key actions taken in response to matters reported (e.g. training offered, amendment of policy).

Rather than reserving this information for HR or organisational leaders, share it with all employees so they can see that workplace concerns are being dealt with appropriately and have the confidence to come forward when they need to.  

Workplace bullying has become an increasingly topical issue. High profile cases and changes to legislation such as Brodie’s Law in Victoria and Anti-Bullying provisions within the Fair Work Act have stimulated debate about bullying amongst business leaders, HR practitioners and the community at large. This interest and discussion is not limited to Australia and next week the 9^th International Conference on Workplace Bullying and Harassment will be held in Milan, Italy. The conference will feature experts from across the world and cover topics such as:

Principal Consultant for PEEL HR, Danielle Carney, will be participating in the conference and sharing regular updates and insights from this cutting edge research. You can stay up to date in the following ways:

Workplace Investigations

This 1 1/2 day course will cover the following:

• The requirement for a workplace investigation.
• Keys to Successful Investigations.
• The role of the investigator and other players.
• The legal principles.
• Planning and preparing an investigation.
• An investigation framework.
• Practical interviewing skills.
• Analysing the evidence.
• Writing an investigation report.

 When? 14 & 15 July 2014
 Where? Merewether Bowling Club, Caldwell Street, Merewether
 Cost? $990 (inc gst) per participant
 Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

Workplace Mediation

This 1 1/2 day course will cover the following:

• The opportunity for workplace mediation.
• A Framework for mediation.
• Practical mediating skills.

When? 28 & 29 July 2014
Where? Merewether Bowling Club, Caldwell Street, Merewether
Cost? $990 (inc gst) per participant
Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

Managing for Performance

This 1 1/2 day course will cover the following:

• Understanding your role in demonstrating behaviour and building performance within your team.
• Know how to set and convey clear expectations and evaluate them.
• Understand the legal principles of procedural and substantive fairness in managing for performance.
• Have the skills to conduct informal performance development on a daily basis.
• Understand the formal processes in managing under-performance and misconduct in the workplace.
• The opportunity for workplace mediation.
• A Framework for mediation.
• Practical mediating skills.

When? 11 & 12 August 2014
Where? Merewether Bowling Club, Caldwell Street, Merewether
Cost? $990 (inc gst) per participant
Who? Managers, Supervisors, Team Leaders, HR Professionals
Check out all details by clicking here

Register online via www.peelhr.com.au, email email@peelhr.com.au or call 1300 665 144. Get in quick and reserve your place!​

Leaders are sometimes called upon to lead a performance management process for employees where there are issues of underperformance or misbehaviour. Emotions often run high during performance management meetings which can make them difficult to manage, especially when an external party is present as a support person. But what is the role of the support person? Are they just meant to sit and listen or can they speak on behalf of the employee?

A recent case before the Fair Work Commission sheds light on this issue. Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 dealt with an employee who claimed to have been constructively dismissed, i.e. forced to resign, due to poor treatment during the performance management process. One aspect of the complaint from the employee was that while they were allowed a support person at all meetings, they were told that this person was for emotional support only and was not to serve as an advocate on their behalf.

In dealing with this matter the Commission ruled, ‘Under the FW Act, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. Given that legislative provision and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.”

This does not mean that a support person cannot say anything but it does clarify that their role is not to speak on behalf of the employee. Businesses must be certain never to deny a reasonable request for a support person, and it is good practice to openly offer one and to be welcoming when one is in attendance during a meeting. However, the focus of the meeting can be clearly and confidently on a direct discussion with the employee rather than a mediated discussion via a support person acting as an advocate.

The Fair Work Commission recently released its first quarterly report on its anti-bullying powers. The report reveals that there were 151 applications to stop alleged bullying at work between January and March this year. All matters were dealt with in the mandatory 14-day period, and the vast majority were resolved without proceeding to a formal decision. Only one application was granted, and you can read the details of that decision in a previous PEEL News.

What is of most interest in the report is the demographic information. It revealed that most applicants were employees (133), most complaints came from those working in large organisations (67), and the greatest number of allegations (109) were against managers.

While 151 seems like a lot of applications, it is heartening to see that very few have progressed to a hearing.  It is also evident from the statistics that where the FWC have become more involved, it has been by way of mediation.

The Report is a good reminder to ensure you:

Here is a link to the FWC Quarterly Report.

The Anti-Bullying clause (s. 789FC) of the Fair Work Act covers employees, contractors, outworkers, apprentices, work experience students and volunteers. The expansive definition of “worker” means that organisations need to consider their responsibility for the broader network of those who carry out work on their behalf. However, there are limits to the definition and the FWC has recently clarified these.

In Arnold Balthazaar v Department of Human Services (Commonwealth) (AB2014/1061), Mr Balthazaar sought an anti-bullying order against CentreLink following a dispute relating to his carers payment (a social security payment). In response to jurisdictional objections, Mr Balthazaar argued that he was a worker on the basis he was being remunerated for work (caring for his daughter) that would otherwise be provided by the State. While the FWC agreed that he did conduct work, it rejected the notion that such work was done for the Department. In summarising, Vice President Watson stated that ‘while obviously intended to cover a broad range of work arrangements, the provisions are not unlimited. In my view they are clearly not intended to cover relationships such as students performing work for teachers, domestic work by family members or relationships outside the context of paid or unpaid work in the commonly understood sense.’

This case provides clarity and confidence for organisations by rejecting artificial notions of what it means to be a worker. However, it is also an important reminder that the anti-bullying provisions do apply to anyone doing work for an organisation including unpaid activities through work experience and volunteering. Organisations should ensure that all workers, in the broad sense of the meaning, are appropriately inducted, trained and monitored to ensure that they do not become the perpetrators or victims of workplace bullying.

Since the introduction of anti-bullying amendments to the Fair Work Act (2009) in January 2014, many have wondered what these changes will mean in practice. What will anti-bullying orders involve? How detailed with they be? We now have our first glimpse of these amendments at work.

Last Friday, the Fair Work Commission handed down its first order to stop bullying in response to an application from an employee (Matter AB2014/1052). While the order does not provide specifics about the situation, it does go into great detail about required behaviours. For example, the respondent is directed to ‘have no contact with the applicant alone’, ‘make no comment about the applicant’s clothes or appearance’, and ‘not send any emails or texts to the applicant except in emergency circumstances’, ‘complete any exercise at the employers premises before 8:00am’, and the applicant is directed to ‘not arrive at work prior to 8.15am’. Such a response indicates that anti-bullying orders are likely to get into the detail and impose operational requirements.  Breaching any such order may lead to penalties of up to $10,200 for individuals and $51,000 for corporations.

Further orders will provide more insight into how the FWC intends to use the anti-bullying amendments, but there are already some important lessons here for organisations, including:

Dealing with employee issues informally can be a great way of working to improve things gradually whilst maintaining healthy relationships. But what risks does informal management action represent? Is it OK to pull someone aside for a quick chat about their performance? Could this expose you to a bullying claim?

The FWC position

The Fair Work Act s.789FD(2) is clear that bullying does not include ‘reasonable management action carried out in a reasonable manner’. The new Anti-bullying Benchbook provides examples of what this might look like (performance appraisals, counselling etc.) but also notes that ‘an informal, spontaneous conversation between a manager and a worker may not be considered management action’ (p. 32) even where it deals with such issues. While it is unclear how exactly the FWC will deal with this issue, a workers’ compensation case from 2012 highlights a possible approach.

A sample case

NAB LTD v KRDV (2012) 204 FCR 436 examined a situation in which an employee claimed she was picked on and criticised during an operational meeting of team leaders. This meeting was followed by a casual chat with her manager where her performance was discussed including the suggestion that resignation should be considered. The employee claimed to have found these meetings to be very distressing and was soon after certified as unfit for work. NAB claimed it was not liable to pay compensation on the basis that the action taken was reasonable administrative action undertaken in a reasonable manner. This was rejected by both the Administrative Appeals Tribunal and the Federal Court on the basis that the purpose of the meeting of team leaders was not to discuss individual performance, and that if the meeting and the casual chat did touch upon matters of performance they did not do so in a reasonable manner because of the lack of notice given to the employee.

Summary

Employers and managers can feel confident in their right to direct work and undertake normal management duties in a reasonable manner. Informal meetings and conversations are, and should be, an essential part of this. However, it is important to be clear about the purpose and processes underlying meetings in the workplace. Where there is a need to discuss an employee’s performance this should be done in the appropriate context, and where serious issues and consequences are to be discussed it is important for more formal processes (proper notice, offer of support person etc.) to be followed. Choosing the wrong time and place to discuss performance in an effort to remain informal may mean that the action is not regarded as ‘reasonable management action undertaken in a reasonable manner’ and could expose you to a workplace bullying claim.

Written by Jeremiah Byrnes.

Jeremiah Byrnes is PEEL HR’s newest consultant. He is based in Melbourne and is dedicated to supporting Victorian organisations in their efforts to build strong, collaborative and sustainable working environments. You can contact Jeremiah on 0481 518 705.​

Recent research conducted by the National Australia Bank in conjunction with the Alannah and Madeline Foundation revealed that Australians who witnessed instances of bullying were more likely to stay quiet than to speak up. In fact, 65.1% of Australians surveyed admitted they had been in a situation where they could have intervened but chose not to.

This confirms how critical it is for businesses to create an environment where people feel safe and confident to speak up. As the CEO of the Alannah and Madeline Foundation pointed out it is vital that witnesses stand and assist.  Not only will that help the person being bullied to feel supported but it has great potential in stopping the behaviour from continuing. The challenge is that people often don’t intervene because they are concerned that they will then be victim to bullying.  Sadly, the results indicate that 79.8% of individuals surveyed had regretted their decision not to speak up after witnessing an account of bullying, and, 64.7% of those surveyed said they would feel confident to if they were in a safe environment or had support from others.

So as an employer what do we need to do to promote a culture free from bullying?

Employers need to ensure they have robust safety systems in place that clearly identify, assess and control the risk of workplace bullying. It is equally important that employers have a clearly defined and communicated bullying policy and complaints procedure which is readily available and understood by employees.

Workplace training on Bullying and Harassment should be provided to employees and managers and refresher training should also be provided. Those staff who have a designated role in handling bullying complaints should be provided with more specific training on the management of complaints.

In recent months we have brought you updates on the legislative changes that are coming into effect from the 1st January 2014 with respect to Fair Work Commissions anti-bullying powers, see: Workplace Bullying be prepared, you only have 6 months to go  and The Countdown is on....will your investigations stand up? 

Some recent surveys we have reviewed have shown some alarming figures in this area. The responses to the People Matter Employee Survey 2012 show that bullying is a significant issue in the NSW public sector with almost one-third (29%) of respondents saying they had personally experienced bullying in the workplace in the last 12 months and almost half (48%) had witnessed bullying at work. The 2012 RU OK survey noted that 46% of the respondents would rather resign than address workplace relationship issues. More recently, research conducted by the National Australia Bank in conjunction with the Alannah and Madeline Foundation revealed 65.1% of Australians surveyed admitted they had been in a situation where they could have intervened by chose not to. As employers, this is concerning but what can we do about it? What can we do to avoid similar statistics in our own organisations?

Under the Model Work Safety legislation, the Draft Preventing and Responding to Workplace Bullying Code of Practice promotes a risk management approach should be adopted by employers in the management of workplace bullying. Workplace bullying is a psychological hazard, the risks of which need to be managed like any other hazard at the workplace. To assist you with assessing the risks of workplace bullying in your organisation PEEL HR have developed an on-line assessment tool. This tool will help you to determine if you have a low, low-moderate, moderate-high or very high risk assessment rating for workplace bullying.

Click here to access and complete the tool.

On completing the tool PEEL HR will provide you with your rating and some recommendations so you can get to action NOW are ensure you are ready for the year ahead.

Respectful Workplace Training…

Q: In the last 2 years have you delivered compliance training for your staff in the areas of EEO, bullying, discrimination and harassment?

Do you have new staff who have not been trained in these areas?

PEEL HR offers an informative and interactive 2 hour Respectful Workplace program that ensures not only will your employees understand their obligations in this area but they will recognize the value and importance of respectful communication. We have been running many of these sessions in-house for our clients who are taking action to get ready now!  The programs are time efficient and tailored to your policies. Don’t wait until January, call us now and book your sessions in.

For more information contact us at PEEL HR: 49637373 or at email@peelhr.com.au or Check out our website at www.peelhr.com.au for all course details.

Are you ready for PEELs next round of 2 Bites in a Week? Our next set of bites will focus on Healthy Workplace Conversations. Keep following our website blog and Facebook page to keep up to date!

http://www.ted.com/talks/margaret_heffernan_dare_to_disagree.html. 

Conflict allows people to be creative and solve problems.  It allows the boundaries to be stretched.  Conflict should not be feared.  It should be considered as ‘thinking’.

Margaret Heffernan says organisations don’t think because people are too afraid to conflict.  They don’t ‘think’ and stretch and problem solve together, so the organisation ultimately doesn’t get the best out of its people.  We are hard wired to avoid conflict.  We can only change this and have people embrace conflict by giving them the skills to manage conflict in a healthy constructive way.  Then they wont be afraid of what follows a disagreement.  They will have the confidence to have robust discussion and know that when it is getting a bit shaky or grey they will be able to manage a positive outcome.

Doesn’t this strike you as perfect for your next enterprise negotiations?! There is a climate where you certainly won’t have echo chambers and most probably you will have conflict and disagreement.  For collaboration to occur in your negotiations you just need to ensure that the negotiation parties are thinking partners.  So there are a couple more ingredients  –

Ø  ensure the negotiation team is made up of people who think in different ways.

Ø  people have the courage to disagree at the negotiation table.

Ø  everyone is willing and open to change their minds. 

Ø  commitment to a higher goal or purpose, that is, what is the enterprise agreement going to achieve.

Of course, people also need to be given the skills to conflict in a healthy way and problem solve.

PEEL has various inhouse training programs focused on building collaboration whether it is within your teams or in enterprise negotiations.  For more info on our inhouse training portfolio click here.

• Regular, inappropriate and unreasonable behaviour
• Employees making an unreasonable complaint to another senior member of staff in relation to their superior.
• A “ring leader” rallies the team together to compile multiple complaints in an attempt to target their superior.
• Continuous and open challenges of the superior in an attempt to undermine their position.
  

The Griffiths University study indicated that managers are often reluctant to report upward bullying as they feel it is an indication of their inability to manage their team. Some basic steps for a manager who believes they may be suffering from bullying include:

1. Report inappropriate behaviour to your manager.
2. Build better team and personal relationships. Try to break down the “us” and “them” mentality.
3. Clarify expectations within your team. Involve the whole team in developing a team charter with values that are pertinent to the team and define the underpinning behaviours. In this process, define your role and responsibilities as a manager and clarify the team’s roles and responsibilities. This process will also allow you and the team to discuss the behaviours that have been occurring and whether they should continue or stop.
   

Workplace bullying, whether it is upwards or downwards, can be hard to grapple. When investigating workplace bullying look for a pattern of behaviour which is regular and consistent. Ensure you are clear on your workplace policies and procedures and stick to them!

For advice on workplace bullying, please feel free to contact us at: email@peelhr.com.au or on 02 4963 7373.

The countdown is on to the Fair Work Commissions anti-bullying powers which come into effect from 1 January 2014. In our last PEEL News:  Workplace Bullying be prepared, you only have 6 months to go, we provided you with an action plan, click here,  to assist you with your preparations.

It is important to note that one of the first steps that will be undertaken by the Fair Work Commission (FWC) before making any orders will be to determine whether a worker has been bullied. In doing this the FWC will assess the outcomes of any prior investigations into the matter. As an employer we must therefore ensure not only are we taking steps to investigate such matters but that our investigations will stand up to such review.

In the recent case of Swan v Monash Law Book Co-operative (June 2013), an employee who was repeatedly bullied by her manager was awarded $592,554.38 in damages as a result of her employer failing to take reasonable care to protect her from the workplace bullying. The employee initially advised her employer she did not want disciplinary action taken against the manager. As such the employer took no action. When further complaints were raised the employer failed to intervene and failed to properly investigate the matter. In addition to being highly critical of the lack of intervention, the Court was also critical of the organisation for relying on the request made by the employee for no action to be taken against the manager, failing to monitor the situation following the initial complaint, not having a complaint handling process in place and not articulating its expectations in relation to workplace conduct in job descriptions, employment contracts and workplace policies.

It is paramount that you have staff in place who are equipped to deal with bullying complaints and that such matters are dealt with in a timely and thorough manner. Having said this, it is also important to remember that workplace investigations are not required to be conducted to the standard of a police investigation.

It is necessary to observer the principles of procedural fairness when conducting a workplace investigation, however, there are occasions when deviations from the procedural norms have been overlooked. Take for example the case of Austin v NF Importers P/L, the court held that the dismissal of the employee in this case was fair despite investigative defects.  In this case it was deemed that the grounds for dismissal were so serious they outweighed the procedural defects. The critical importance here is that the defects were procedural and not substantive in nature.

Additionally, the case of Rogers V Millennium Inorganic Chemicals Limited involved and employee who brought an unlawful termination claim against the employer. The employee claimed the employer had breached implied terms of mutual trust and confidence by:

The court determined the investigation conducted was sufficient. They highlighted that as the employee had denied the allegations outright, it was immaterial whether he knew the names of the witnesses. The magistrate hearing the case commented, “There is no obligation upon an employer in an investigation of this kind to conduct a perfect investigation or an investigation the equivalent of a police investigation…” It is prudent to remember that this kind of deviation may only be relevant to the extent of such cases where a respondent completely denies all allegations.

Whilst not every minor procedural oversight will result in challenges to your investigations, the importance of procedural fairness should not be paid lip-service.  The evolving legal landscape will require your investigators to ensure that not only are the outcomes of their investigations substantively fair but that they are following due and proper process.

PEEL will be running the last of our Workplace Investigations training for 2013 on 16 & 14th October, to register go to: http://www.peelhr.com.au/workshops

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.

The Background…

Over recent months PEEL has conducted a number of investigations which have centred around the ever growing issue of inappropriate language in the workplace. The critical question we are often asked is where do we draw the line? What if it’s a slip of the tongue? What if it’s in jest and humorous v’s abusive and offensive? At what point does the use of inappropriate language justify disciplinary outcomes or even dismissal?

To tackle this issue PEEL reviewed a number of recent cases on this very issue. Read on to review the key learning’s from these cases.

Context is critical…

We are all aware that societal standards have changed. Our use of robust language has become more acceptable in the public arena than perhaps ever before. Despite this being the case, such terminology may still cause offence in the workplace. The context in which language is used is critical when determining whether it is inappropriate or offensive.

In the case, Webster v Mercury Colleges Pty Ltd, an English as Second Language (ESL) teacher was terminated for delivering a lesson about the word “F**k.”  Whilst the Fair Work Commission (FWC) held that the teacher’s profanity in the classroom setting did give rise to a valid reason, the employer prior to termination did not provide the teacher with the opportunity to respond to the alleged incident  or explore the context in which the language was being used.  The Commissioner ruled that the age of the students was not of concern and the lesson was being taught with the intent of educating international students to ensure they did not use the phrase inappropriately. As such the decision to dismiss was deemed to be harsh, unjust and unreasonable. 

The context was also the crucial decider when a union organiser in Leahy v Liquor, Hospitality and Miscellaneous Union, called a junior employee an “arse licker” for sitting next to a senior union official during an offsite conference. The FWC deemed it was inappropriate for a senior employee to address a junior employee in such a manner. The Commissioner also reinforced that “how words and language are used and to whom it is addressed and in what setting is critical as to their meaning and effect.”

Has the language been deemed acceptable within the organisational context?

Workplace policies and disciplinary outcomes are compromised when swearing becomes the norm within a workplace. The recent case of Dalziel v Bilfinger Berger Services Pty Ltd reinforced this principle. In this case a construction worker was reinstated after being unfairly dismissed for swearing at his project manager. The workers language involved the use of the word “F**k” and “F**king.’  As one witness summarised to the Commissioner, “It’s a construction site mate, swearing is everyday language.”  The FWC ruled that the language did not justify dismissal as the use of such language had become commonplace on the construction site and the accused superiors had also used inappropriate language in front of their reports.

Is it against company policy or has it become culture? 

Comprehensive organisational policies which reinforce appropriate conduct, including the use of inappropriate language are crucial. The reinforcement of such polices places employers in a stronger position when taking disciplinary action. A recent example of this was in the Leadbetter v Qantas Airways Limited case. In this matter the FWC determined the employee had gone beyond the grounds of acceptability when he addressed a colleague as a “F**king pommy C***.”  The FWC advised the language “was directed personally to an individual and was demonstratively abusive and in direct violation of the companies Standards for Conduct.”  The FWC upheld the decision, stating there was a valid reason for dismissal.

So what’s the takeout? 

Peel HR are experienced in workplace investigations and can also facilitate workplace investigation training that is aimed at building the confidence and capability of line managers and HR practitioners in applying investigation techniques. For more information or advice around the above issue please feel free to contact us at, email@peelhr.com.au or phone (02) 4963 7373.

Peels Princpal Consultant, Danielle Carney will be presenting at the upcoming LEADR Kon gress Program in Sydney on the 10th September. Danielle will be talking about the Commercial Viability of Interest Based Enterprise Negotiations. Check out a sneak peak of Danielle's podcast... Mediating Enterprise Negotiations

Are you hungry for 2 Short Bites a Week of info? Peel will be providing 2 short bites of info each week on a unique topic. Our first topic is Managing for Positive Performance Change.Follow our News Blog on our website and PEELs Facebook page to keep up to date with our weekly bites.

On the 3rd June PEEL HR will be running Managing for Performance Training at Merewether Bowling Club. Please visit our website or contact us directly for all details and to register your interest.

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Central to collaboration are the notions of TRUST, RESPECT, and RESPONSIBILITY & ACCOUNTABILITY. Where there is a lack of these elements the way is paved for the formation of a ‘toxic environment’, which breeds hostility, creates pessimism, drives away talent and prevents your organisation from reaching its potential. However, to have these characteristics in your organisation you need for your leaders and your staff to be able to have healthy conversations with each other, diffuse conflict and demonstrate behaviours that allow responsibility and mutual accountability to flourish

“People are not your greatest asset. Our ability to manage people – to create an environment for them to succeed is our greatest asset.”
(T.Wilson: Jack and the Team that Couldn’t See.)

Q: How then do you create an environment for your people to succeed?

A: You need to work toward developing the structures, systems and behaviours that align with collaborative principles. Organisations need to be able to create the knowledge, skills, attitudes, and support systems necessary to create collaboration.

Collaboration is more than just sharing information, it is a process by which people and organisations work together, efficiently and effectively. When you have a collaborative organisation it means that you are able to:

• Have robust and healthy conversations that challenge and develop ideas
• Have conversations with your people that are open and honest
• Have a richer understanding of people’s interests earlier thereby preventing unhealthy conflict
• Ensure an alignment of values and behaviours
• Manage for positive performance
• Have goals and objectives realised

Consider the quote by T. Wilson above and then ask these questions about how your leaders interact with their teams.
Are your leaders able to….

• Clarify what is important?
• Set expectations?
• Give honest feedback?
• Hold people accountable?
• Diffuse conflict early?

Are your employees able to…

• Take responsibility and participate in resolving conflict?
• Model the behaviours expected of them?
• Have open and honest conversations with each other?

Collaborative organisations capitalise on the abilities of their people at all levels of the organisation. At PEEL we focus on building capability that supports collaborative principles across three branches – Employee Development, Leaders Development and Support Development. PEEL have upcoming programs in Newcastle and Melbourne during February and March that focus on developing the capability of your people in skills that support the foundations of collaboration. Our Managing for performance Program is running in Newcastle on 25 & 26 February and Melbourne on 21 & 22 March.

Collaboration is the key to winning gold and having a successful fulfilled team ! The review into culture and leadership in Australian Olympic Swimming and their tribulations at the London Olympics reinforces that the management of collaboration is a critical element for a team to achieve success. The findings contained in the Culture Review into Australian Olympic Swimming submitted to Swimming Australia by Bluestone Edge was released to the public last week and reflects on some of the key gaps in the team’s values, behaviours and supporting systems.

Collaboration not only means a richer understanding of people’s interests earlier which can be harnessed to prevent unhealthy conflict and ensure alignment of values and behaviours, but it also means robust conversations that leverages differences in perspective, experience and knowledge to generate new ideas and new solutions to achieving goals and objectives.

Does your team collaborate ? Do you lead collaborative behaviours within your team ?  If you see the following behaviours in your team, you know you are on the right track.

• Team members spend time with each other supporting achieving each others goals, that is, they have a commitment to the success of the team and not just themselves individually
• Team members initiate healthy conflict and robust discussion that is topic based
• They respectfully and constructively question whether there is another way
• Team members constructively explore their differing opinions and approaches and search for solutions beyond their own
• Team members have a priority for learning from within and across teams and so provide honest constructive feedback
• Team members make efforts towards inclusion such as sharing experiences, knowledge and techniques, not hoard it
• Team members seek out and build strong and sustainable relationships outside their team
• Team members have knowledge of each other’s work, communication and learning styles
• Team members call each other on their behaviours when they are un-collaborative
• Team members take accountability and personal responsibility

Your behaviour as a leader would expand upon these and reflect your modelling of a responsive, inspiring and ethical leader.  You certainly would be willing to have hard conversations.  Your behaviours would reinforce the importance of the team behaviours, such as, responding immediately to un-collaborative behaviours identified by you or escalated to you.

Articulated behaviours provide a consistent approach and ensure the cohesion necessary for productive collaborative effort.  These behaviours should be further broken down and particularised for your team.  If you do this through an open and transparent process in consultation with your team you will educate them and achieve the buy-in to ensure everyone has a clear roadmap to achieve a collaborative and successful team.  Teams that have worked together to determine their shared goals, values and underpinning behaviours are in the best position possible to achieve collaboration and see their performance hum.

Collaborative teams are supported by collaborative systems.  Systems engendering collaboration range from grievance/dispute resolution systems with a strong preventative focus that encourage the raising of concerns and conflict in a direct and immediate manner, to more micro systems that are applied in team meetings prompting team feedback on collaborative successes and opportunities.

PEEL are passionate about assisting organisations to build collaborative workplaces.  We partner with you in system design, capability build, ongoing preventative support and remedial interventions.  We undertake Team Effectiveness Reviews and work with you in Team Behaviour Workshops.  To find out more about our approach contact us or by phone on 02 4963 7373

As an HR community we must ensure we do not loose this valuable opportunity to gain learnings from the experience of Hydro Aluminium in their plant closure at Kurri Kurri. Trevor Hall, HR Manager Hydro Aluminium, will be speaking with us about 'HR Imperatives in Plant Closure - The Hydro Experience'.

PEEL WOULD LIKE TO INVITE YOU TO A BREAKFAST BRIEFING

with our special guest

Trevor Hall, HR Manager, Hydro Aluminuim Kurri Kurri

27 NOVEMBER 2012, 7.30 am - 8.45am

An intervention to resolve a workplace conflict can only be truly effective if it is done for a long term result. Workplace mediation that fixes the immediate conflict and doesn’t consider preventative measures is a job half done. It’s like listening to the hit, not the LP. Rather than take a traditional approach of addressing the immediate relationship conflict, take a more contemporary holistic risk management approach of understanding what is underlying the conflict and address it.

What are the contributory factors to the immediate conflict as they could be impacting other relationships in conflict or simmering below the surface. Sustainable outcomes can not be achieved if we are sending the people, post mediation, back into a climate or environment fertile for further conflict. Find the root causes and change the environment away from one that cultivates conflict.

What could be the underlying risk factors ? Click Risk Factors - Unhealthy Workplace Conflict for a table setting out some practical examples.

When the risk factors are identified they should be caught and referred to the appropriate person to further consider and action them. The risk factors might be identified by regular systemic reviews or analytics. They might be identified by the mediation parties during the mediation, the HR Leader conducting the mediation may identify them in the mediation or in the proceedings leading to the mediation. To be further on the front foot, your Leaders should be identifying the risk factors in their day to day operations. That way, they are identified as early as possible and eliminated or controlled.

Providing your Leaders with the core competencies in managing workplace conflict is an organisational necessity. Building the competency within your leadership means that early resolution or better still prevention of unhealthy workplace conflict can occur.

Conflict left unattended can escalate to bullying. Not only lost production and decreased engagement but the business will suffer costs in managing a complaint and potential workers compensation claim. Taking a more moderate perspective, international research shows that workplace conflict costs leaders 20 – 30% of their time each year in responding. Even if the time spent in your business is less – say 15%, this still is a significant cost to the business. With an average TRP of $80 000, that is a cost of $12 000 per leader. If you have 50 leaders across the business, this is an annual cost of $600 000. These are conservative figures.

Peel HR offers training in holistic workplace mediation. We deliver both 1 ½ day programs for HR Professionals and 1 day programs for Leaders. Ask us about them

Debate over the most acceptable method for drug testing has been hot in the industrial environment.  It is a debate that employers, employees and unions alike would like a closing address too.  The advocates of urine testing argue that it is a more cost-effective and accurate method, while those against it say it’s an intrusive method and that oral drug testing has fewer privacy issues.

The recent ruling by Fair Work Australia (FWA) in the ‘Endeavour Energy Case’ has provided some conclusions. This is a landmark case in the context of WHS obligations as the full bench decision may now set a precedent for employers across the country.

To assist you in increasing awareness on these key issues among the leaders within your business, PEEL has developed a LEADERS BRIEF, for distribution by you with details on the ‘background, the decision and the bottom line’.

Interviewing in workplace investigations is an art. Do you know what it takes; have you got the X-factor? Apparently, it is flexibility. Dr Becky Milne, internationally renowned expert investigator, is involved in a study identifying characteristics of expert investigators and she believes the X-factor is flexibility. She provided an intimate workshop in Sydney last weektoshare her methodology in cognitive interviewing and spoke about it's transferability to workplace investigations.

PEEL attended the workshop and thought the following tips might be useful to your workplace investigations -

• develop rapport straight up- interviewees will only talk to you if they like you. Dont use the old tactics of 'good cop, bad cop'. Make your goal to deal with respect and humanity.
• ask only a few questions - the interview is about the interviewee and obtaining their story/evidence. The less the investigator intervenes the more chance you have of getting complete and accurate evidence. As a general rule the ratio should be 80:20 talk time (ie interviewee : interviewer).So the key for you is the less questions you ask,the more successful investigator you are.
• get free flowing communication - initially allow the interviewee the opportunity to tell their story without interruption. Interruptions train the interviewee to give shorter responses which result in you obtaining less information.
• ask a few good open questions - this will increase the quantity of information you receive.
• look at the bigger picture, particularly in bullying investigations. Consider all things relevant to the 'story'. This will allow for consideration of risk management and systematic recommendations that will change the environment to prevent a recurrence of the incident.
• dont approach your evidence analysis as the majority rules - look deeper and consider alliances and relationships. A lot of similar evidence may mean people have been talking and the evidence is contaminated.

Given that bullying complaints generally relate to a series of incidences, it makes specific information difficult to obtain as the incidences often merge into each other in the complainants mind. Often specific detail can only be recalled by the complainant if an incident was unique or different for some reason. The best approach to obtain information in this sea of broad statements is to -

1. ask the complainant to give free flowing communication about the allegations
2. ask for specific detail about the first and last incident
3. ask for specific detail about unique examples.

This a different approach to taking the complainant through the examples of bullying chronologically as we often do. Becky Milne also emphasised carefully considering the physical characteristics of the interview in order to tap into the deep memory of the interviewee by facilitating their quiet and focussed attention. That is -

• find a seperate and neutral space.
• eliminate distractions - either sound or visually. An investigator should not be wearing loud clothes or engage non verbal behaviour that is distracting eg constantly checking their mobile phone/clock.
• plan for everything eg if you expect the interview to be long, plan for breaks and ensure there is water/refreshments available. Tissues might alsobe necessary.
• provide paper and pen so the interviewee can draw a diagram if necessary.
• set the chairs in a physical location of clock hands at 1.50pm/am (ie 10 to 2), not too far away from each other but not too close. This is a co-operative seating plan.

Above all dont approach the interview with confirmation bias. That is asking questions to get information around your hypothesis of what occurred. Be on guard as this may be subliminal !

Is defending an unfair dismissal claim becoming too difficult? A recent research study conducted by Professor Oslington, of the Australian Catholic University and Assistant Professor of Economics, Benoit Freyens, of the University of Canberra, gives weight to this claim. The study conducted by the pair, compared unfair dismissal data under the last three major versions of workplace law. The research highlighted that 17,000 unfair dismissal claims are now being processed each year compared to around 6,000 under Work Choices and 7,000 under the previous Workplace Relations Act. Not only did the research show that unfair dismissal claims are on the rise, but the number of successful claims has also increased.

Specifically the study identified the following:

• Workplace Relations Act (1993 – 2006) 48 per cent of claims were successful, 35 per cent of cases won compensation and 13 per cent of claimants were reinstated in the company
• WorkChoices (2006-2009) Only 33 per cent of cases were successful with 21 per cent of claimants receiving compensation and 12 per cent were reinstated in the workplace
• Fair Work Act (2009 – present) 51 per cent of cases were successful, 42 per cent won compensation with only 8 per cent of claimants returning to their position.

This rise has principally been attributed to two things. Firstly the inclusion of small businesses in the system and secondly, claims being pursued under adverse action, thereby increasing the total number of claims. In considering this research, we need to ask: What does an employer need to do if they only have a 50:50 chance of success? What can be done to mitigate the risk in the first place?

In the majority of cases that come before the tribunals, employers have a valid reason for the dismissal of an employee but time and time again we see employers failing to give reasonable and due consideration to the broader issues. These are issues that can impact on the dismissal being seen by the tribunal as ‘harsh, unjust or unreasonable’. The case of Lambley v DP World Sydney Ltd FWA March 2012 clearly demonstrates this. Mr. Lambley was involved in a physical altercation which took place in the car park of his employer’s premises and he was subsequently dismissed for serious misconduct, resulting in him bringing a claim for unfair dismissal. At the hearing Mr. Lambley claimed he was set up; that in his 30 years of employment with the company he had never had so much as a warning or been involved in any type of altercation. An investigation was conducted by the employer and witnesses gave evidence Mr. Lambley was taunted by the other employee to meet him in the carpark. CCTV was also viewed but appeared to have been tampered with. Whilst the employer agreed the actions of the employee were “out of character”, it stuck to its position of zero tolerance in relation to the behaviour, not wanting to send a message that this type of behaviour was acceptable. FWA however agreed with the employee that the dismissal was “manifestly unjust”. In coming to this decision they gave consideration to broader issues in relation to the case:

• The employees remorse;
• His clean employment record;
• The employee being taunted by the other employee;
• That the behaviour of the employee to react like this was out of character; and
• The fact that the other employee involved no longer worked for the company.

FWA acknowledged that Mr. Lambley had breached policy yet he was reinstated.

As employers we need to be mindful of our broader obligations when making decisions in respect to terminations. Not only to be procedurally fair but to give consideration when there are potentially mitigating circumstances because if they are played out in a tribunal we need to ask, does it have the potential to make the decision appear unfair.

For advice on challenging performance management or potential termination situations, please feel free to contact us or on 02 4963 7373

It's not easy knowing when to mediate and, once you are in there, achieving a successful and sustainable mediation outcome.  Like any other craft there are some tricks and techniques to help you along the way.  Here are some key lessons learnt through our mediation practice that you may find valueable when tackling your next workplace mediation.

• Ensure your mediation outcomes are clear, measurable and achievable.  Vague agreement must be avoided.  Agreements between the parties should be concrete and pinned down with detail so there is a clear understanding about what changes are necessary to restore a productive working relationship.  Dont allow the 'I'm going to be nicer' commitment to wash - it is not a real and sustainable mediation outcome.  Your Mediation Action Plan might look similar to a performance plan - what is the action, who else needs to know about it, how do we measure it, what could impact it and when do we know we have succeeded.
• In a mediation, identify any environmental or systemic change required to re-adjust the workplace in order to prevent the conflict from re-occurring.  Take the opportunity to go beyond the human cause and consider process, system or organisational factors.  Actions to eliminate them will most likely belong to someone outside the immediate mediation, so refer them on.
• Harness the frontline leader in the mediation process.  Gaining an understanding of the conflict or relationship from the frontline leader allows the mediator to have a fuller picture of the conflict prior to commencing the mediation.  Also, click-in again before the end of the process.  With the parties permission, providing the leader with greater detail about the agreements made in the Mediation Action Plan will assist the leader to support the parties in implementing their agreements and taking their ongoing responsibility in managing the relationship.Imparting any insights you have gained into the parties, their interaction and their conflict, will assist the leader in their development in managing workplace conflict -who knows, they might have been a contributing factor!
• Don't initiate mediation if a party is not ready.  By this I mean, when a party is too angry to focus on discussing the issue and being open to the other parties perceptions.  For a meaningful discussion to occur and a change to take affect, the parties need to be open to seeing the conflict through another's eyes and engaging with the other person in a constructive way.  A situation like this might require you to encourage the party to utilise the EAP first or you may commence with a shuttle mediation until the parties have clearly identified their interests and  needs and have moved to be forward focussed.
• Similarly, dont commence mediation if a party is too focussed on wanting to know they are right, that is, wanting vindication.  Mediation does not involve confirming that someone has done the right or wrong thing in a conflict.  It requires an open mind to appreciate or respect, not necessarily agree with, each others perceptions and move forward together with concessions.
• Dont embark on the mediation if a party does not have the nous to have an open and confronting discussion.  It sounds harsh but it takes a degree of communication skill to participate in mediation.  To sit infront of someone who you feel less than comfortable with and talk about how you perceive their interactions and what you intended with yours, is difficult and confronting.  You have a role in developing their communication skills to allow them to participate in the mediation.
• Stop the mediation process if a party disengages.  If a party has lost the willingness to arrive at a mediated outcome, dont continue as you will waste your time and everyone elses and you could risk further damage to the relationship between the parties.

The best and smartest practice is not to be in the spot where you need to mediate.  How can you do this ?

• Build communication skills of your employees.  When people communicate well, they can resolve their own disputes.
• Minimise conflict by reducing behaviours that are potentially damaging.  Train employees in expected standards of behaviour.  This might be part of your generic EEO, Corporate Values training program or a program focussed on behaviours.
• Use your existing resources to support employees in conflict.  Employee Assistance Programs can help employees identify issues at the early part of a conflict, establish expectations and assist employees in understanding their interactions.
• Use a conflict coach to provide more intensive support to an employee.  This may assist the employee to understand the issues in conflict and gain some insight into the conflict.
• Support your frontline leaders in identifying and managing conflict.  They are in the best spot to act early.  They can recognise when a conflict sparks, they know the people involved and will have the best feel for the next step.  Train your frontline leaders to in managing down conflict early and responding to grievances through Grievance Handling training.
• Give your frontline leaders the skills to be a coach to their team members.  Allow them the opportunity to foster a strong relationship with their team.
• Institute post incident/experience learning opportunities between frontline leaders as a measure to consolidate learnings between leaders and identify any systemic change required in the business.
• Dont allow your bullying policy to be a "how to" guide for bullying.  Ensure it emphasises desired conduct and outcomes, is underpinned with your organisational Values and establishes a framework that allows you some involvement in influencing the path for resolution of a conflict (eg an initial triage step).  Also ensure that mediation is an early step in the process not the one that is post complaint or just before an external avenue such as the ADB or FWA.

We all know there is a clear and important need for procedural fairness, yet our experiences show us that despite the views of the tribunals and the guidelines created by the industrial instruments, an organisations commitment to procedural fairness can be either reinforced or weakened by management actions taken at the time.

“The obligation upon the parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance”.. ~ Humphries v Cootamundra Ex-Services & Citizens memorial Club Ltd.

Take for example, the organisation who due to claims made by a complainant that the HR unit was bias, chose to remove themselves from any involvement in the investigation of the alleged matters. This claim was not founded just purely the perception of the complainant. However, the actions of this organisation prevented any challenge to the validity of the findings on this basis and increased the potential for the outcome to be respected by the parties involved.

Consider this in comparison to those who have been tasked to conduct an investigation and due to their own personal biases have not brought an open mind as they have perceived the respondent to be a loyal employee. Failure to have an open mind is breach of the “The rule against bias”, as the investigator is not able to give a balanced and considered assessment of all of the information and evidence.

Failing to correctly notify an employee that they are a respondent to a complaint, along with the details of the allegations that have been raised in advance of any interviews is a common occurrence. Additionally, we have seen managers delegate their authority to others to make these arrangements, however in doing so they have failed to ensure the notification is provided in a correct and proper manner. Any employee who is a respondent to a complaint of potential serious misconduct should be provided with a formal allegation letter in advance that provides sufficient detail allowing them to respond.

Often complaints of alleged serious misconduct are either not investigated or are significantly delayed by line management continuing to revert to informal grievance processes. Compliance with the procedures established by your organisation for the management of grievances is critical to ensuring that complaints are addressed in a timely manner. If it can be proven that due to the employers conduct or their failure to act, there has been an unreasonable delay in seeking to address a matter, then the process can be rendered unfair.

Many organisations carry out preliminary inquiries when they first receive a complaint. This provides an opportunity to talk with employees to explore the feasibility of a matter without all of the procedural steps associated with a full investigation. However, it should be remembered, that a preliminary inquiry should not be used as a means to catch an employee unaware. Once it is established that there is a case to answer then a formal investigation should be triggered.

Suspension of employees during an investigation may not always be necessary and should not be done simply because a decision has been made to investigate. Suspension often creates additional hurdles for organisations when they then need to re-integrate the employee back into the business. However, it is reasonable to consider suspension if you believe there is a high possibility the respondent will recommit the offence being alleged, the evidence may be tampered with or there is a risk to the health and safety of other employees.  Where suspension is necessary it is imperative that regular contact is made with the employee(s) whilst the investigation is ongoing. Ideally this should be done through an appropriate internal manager, not the investigator.

The importance of confidentiality in an investigation should not be overlooked. By maintaining confidentiality trust is built with the parties involved, it avoids the investigator being misled and furthermore it avoids criticism from a tribunal should a matter be contested at a later date. However, despite investigators best efforts to demand confidentiality of participants in investigations, breaches of confidentiality do occur.  Where they arise they should be pursued to maintain the integrity of the process.  Action should be taken by an appropriate internal manager to reinforce confidentiality obligations in an appropriate manner which may involve disciplinary steps.

PEEL HR can provide independent workplace investigation services from simple to complex matters. Additionally we run training for those who may be required to conduct workplace investigations. For more information on our investigation services or upcoming dates and details of our Workplace Investigations program contact us or in the office on: 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

The draft ‘Preventing and Responding to Workplace Bullying’, Code of Practice (COP) was released on 26 September. It remains open for public comment until 16 December. It is part of the model Work Health and Safety (WHS) Regulations attached to the WHS Act.  The WHS Act is due to commence on 1 January 2012 with possible delayed commencement of the Regulations for up to 1 year.

While it is the first time we have received clarity on the definition of workplace bullying in one document, what we see in the draft COP is not unexpected. The draft COP:

• Defines Workplace Bullying as, “repeated, unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.’
• Establishes that bullying can be both direct and indirect.
• Establishes that bullying can be intentional or unintentional.
• Acknowledges that the behaviour can occur face-to-face, over the phone, via email, instant messaging or using mobile phone technologies including text messaging.
• Bullying complaints can be addressed informally or through formal investigations.
• All matters should be treated seriously and confidentially.
• Complaints should be addressed promptly and impartially.
• Parties should be supported and not victimised.
• The process and outcomes should be communicated to the parties.
• Adequate records should be maintained.

The draft COP does attempt to increase the onus on workplace participants taking action against bullying.  It places a legal responsibility on employers, i.e. persons conducting a business or undertaking – (PCBU), officers and workers to prevent bullying in the workplace. It also requires that businesses:

1. Have robust safety systems that clearly identify, assess and control the risk of workplace bullying.
2. Have a clearly defined and communicated bullying policy. The policy may be developed as a specific bullying policy or incorporated into an existing health and safety or HR policy.
3. Develop effective complaints procedures.
4. Ensure information and training is provided to employees and managers. Those who have a designated role in handling bullying complaints should be provided with specific training on grievance processes.
5. Encourage reporting with appropriate support mechanisms such as contact officers.

Further, the WHS Act attempts to embed a safety culture by requiring “Officers” of the PCBU (such as company directors, senior managers, operational or commercial managers) to take reasonable steps to acquire, and keep up to date with, knowledge of work health and safety concerns in the business.

It would be smart practice to progress filing any gaps in the above lists now so your business is ready for 1 January 2012. PEEL HR can provide organisations with assistance in the development of resources that support these initiatives such as policies, manager’s implementation guides, designing complaint processes as well as our Respectful Workplace Training series for Managers and Employees and Workplace Investigations Training program for HR and Managers.

Please feel free to contact us or in the office on: 4963 7373

All Human Resource (HR) practitioners love those golden managers who effectively work with their people to illicit the necessary discretionary performance. While we can be fantastic at developing great HR policies and infrastructure it means nothing unless the business has good people leaders in place.

The best HR policies may encourage performance however it is the people leaders who will determine their effectiveness depending on the strategy they take. There is no one right strategy for all situations. People leaders must be equipped with an array of strategies that they can draw on to assist them in managing performance in the workplace, including skills related to:

• Giving feedback;
• Setting objectives;
• Counselling;
• Coaching;
• Conflict resolution; and
• Conducting disciplinary meetings

There will be times when despite the efforts of line managers, underperformance continues or misconduct issues arise and it is expected that line managers will play a role in formalised disciplinary procedures.

If an employee is terminated at the conclusion of a managing for performance process and they claim they have been unfairly dismissed, they must be able to establish to Fair Work Australia (FWA) that the dismissal was harsh, unjust or unreasonable. In considering this FWA will look at:

• Whether there was a valid reason for the dismissal, such as the employee’s performance or conduct;
• Whether the person was notified of that reason;
• If the dismissal related to unsatisfactory performance, whether the employee had been warned about that unsatisfactory performance before the dismissal; and
• Any other matters that FWA considers relevant.

The recent judgment of the Full Bench of FWA in Parmalat Food Products Pty Ltd v Kasian Wililo, has highlighted that the existence of a valid reason is pivotal to an employer's ability to succeed in defending unfair dismissal claims. The Full Bench of FWA said it is the primary consideration.

The Full Bench also highlighted the importance of complying with the procedural justice requirements, setting out that where such compliance is combined with a valid reason for dismissal "it would only be if significant mitigating factors are present that a conclusion of harshness is open".

As such, people leaders who play a critical role in this process should be afforded the opportunity to understand the legal considerations that apply when it gets to this stage on the performance management spectrum. A good practice is also to involve the people leader throughout the escalation process when a performance management issue becomes contested and to review cases with the people leaders generally when HR or an external consultant become involved.

Peel HR has developed a new “Managing for Performance” program that is aimed at building the confidence of line managers in applying various performance management techniques.  The scope of the program is to develop practical skills in performance management with a focus on addressing and realigning poor performance.

For more information on this program please feel free to contact us or by phoning: 02 4963 7373

Danielle Carney
Principal Consultant