Workplace Investigations

The workplace investigation is an important tool used by a business in making a determination as to the most appropriate response to a serious allegation made against one of their workers. 

These allegations can involve anything from theft, sexual harassment, physical or psychological violence, bullying, a serious work health & safety breach or any conduct that could be defined as serious misconduct.

Workplace investigations should as far as possible be conducted by an independent party. An investigation is defined as a civil proceeding. Accordingly the standard of proof required is “on the balance of probability”.

Where terminations are a likely outcome affecting the earning potential of the respondent, the Briginshaw standard should be leveraged which ensures that the “balance of probability” is determined on compelling evidence that persuades the investigator or panel of its occurrence or existence.

The investigator should be familiar with the rules of evidence, canvas and weigh up all the available evidence and be open minded throughout the process. The respondent should be offered a written overview of the allegation made and a high level summary of the evidence available. They should also be given a fair opportunity to respond to the allegation and be allowed to have a support person with them during any meetings.

Lastly, a well conducted investigation not only ensures procedural fairness to the parties, it also protects the company from unfair dismissal or related court proceedings should a termination be the outcome. Conversely it also protects the business from the applicant who makes the allegation by claiming the business was negligence in not responding responsibly to the complaint.

As always..if in doubt, ask an expert!

Why Employee Consultation is so Important!

Consulting with your employees on all workplace related matters does not only constitute best management practice, it’s also the Law. Being an employer by default mandates that you will be functioning in a business environment that is subject to constant change. Change is a reality of business life. Accordingly, to ensure ‘fairness’ and to ensure that this ‘change’ is managed in the most effective manner, Fair Work Australia has put in place a series of consultation requirements that all employers must adhere to. If you do not consult with your employees you may find yourself on the wrong end of the law.

Whether the change under consideration relates to performance issues, behavioural matters, a redundancy or dismissal; the employer must consult with the employee in a manner that is considered by a 'reasonable person' to be fair.  This is true irrespective of the technical terms under which the employment is facilitated, e.g. Modern award or employment contract etc.

As an example, a documented Fair Work Australia case made it clear just how important it is to ensure employers comply with consultation clauses in Modern Awards when implementing redundancies.  In Wang and Others v Specialty Fashion Group Ltd (2011), five employees were made redundant and informed of this by their employer in June 2011. While the employer contended that the redundancies were genuine, the employees disagreed and lodged an unfair dismissal claim with Fair Work Australia (FWA). 

The employees were covered by the Textile, Clothing, Footwear and Associated Industries Award, which mandated consultation. The clause required the employer to:

• give employees advance notice of any significant workplace change (including redundancies); and
• allow employees an opportunity to discuss how any adverse impact on them could  be avoided.

In its investigation, FWA found that the only time the employees were consulted throughout the redundancy process was when they were told by their employer that the decision had already been made.  Therefore, as the employer had not complied with the consultation clause in the Award, by failing to give the employees a chance to raise any issues they had with the decision, FWA found that the redundancies were not genuine.  This was regardless of the commercial reasons behind the redundancies. If the employer had made the effort to consult with their employees prior to the announcement of redundancy, than the outcome of the case would have been very different.

Another recent example is that of a dismissal made as a result of an employee telling his manager to “get f..ked”. When Adam Haliman's boss asked him to work on the weekend, feeding tuna in the fishery where he had been employed for six years, he said no. More to the point, he told his manager to "get f---ed". "I'm not working on the f---ing weekend," he added. A few days later he was not working at all, having been fired from his $20-an-hour job in Port Lincoln, South Australia, for swearing at his boss.

When the matter was brought before Fair Work Australia, the tribunal found in favour of the fish feeder. The primary reason for this was that the employer had not made a genuine effort to investigate or consult with the employee to determine the background to the incident. Swearing at your employer is not necessarily a sackable offence with the workplace relations tribunal finding the summary dismissal of Mr Haliman by Marnikol Fisheries was harsh and unjust (unfair). While the language he used was concerning, the tribunal said it was telling that he swore at his manager for "added emphasis" rather than as a form of abuse. Also relevant were his years of good service and his need to be home with his pregnant partner, who was due to give birth.

A documented consultation policy would have ensured that, if a summary dismissal was warranted, it was based on the right criteria. An emotional response to a heated scenario won’t hold water in front of the workplace tribunal.

So the bottom line is have a workplace consultation policy and related procedure so you know how to “Consult with your employees”. This doesn’t necessarily need to be a highly formalised process but what is mandated is that the process is “fair”, not only to the employee but also to the employer.

To ensure you comply with the consultation requirement when implementing change such as redundancies, or addressing a behaviour or performance issue you may want to consider the following:

1. Provide your employees with a letter that a) clearly sets out all the issues , b) explains exactly the affect of these ‘issues’, and c) asks for their input on issues and feedback.
2. Hold a meeting with the employee/s concerned to obtain their response to the letter.
3. Hold a second meeting with each employee at least 24 hours later, in which you  explain your decision regarding their employment (based on the initial consultation) and confirm that decision (and the reasons for it) in writing.

The moral of the story is that it is not only important to consult with your employees, but also to be ‘seen’ to be consultative.

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Avoiding Unfair Dismissal Claims

All employers will need to ensure that they are acting within the intention of the Fair Work Act and thereby limiting their exposure to unfair dismissal claims.

Who cannot claim?

1. Exempt Employees: Employees who earn more than the high income threshold, which in 2018 is $142,000 base salary per year, in the main are not eligible to make an unfair dismissal claim under the act. (There are some exceptions to this

2. Contractors, staff employed less than 6 months (or 12 months for small business)

3. Staff on probation, employees dismissed for serious misconduct, casual employees, employees assigned for a fixed term, task or season.
Minimising the risk:

When terminating an employee it is important that the employer:

1. Has valid reason: The employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. Any other reason may fall into the category of unlawful dismissal.

2. Demonstrates procedural fairness: The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

3. Demonstrates proportionality: Does the crime fit the punishment? The act of dismissal must be proportionate to the operational risk to which the employee’s conduct or poor performance exposes the employer. Otherwise, the dismissal may be deemed to be “harsh”.

4. Understands what constitutes gross misconduct: Acts of gross misconduct include theft, fraud, verbal violence include abuse, physical violence, breaches in confidentiality, breaches of the OH&S act etc are subject to summery dismissal with no notice period required.

If you are a small business then you may which to review the fair dismissal code provided by the Fair Work Ombudsman which provides a procedural checklist to ensure a fair dismissal. Employees, who wish to make an unfair dismissal claim, must do so within 60 days of the dismissal.

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Dismissal and Redundancy for Small business – Understand your obligations

Terminating an employee is often a traumatic and difficult time for all concerned.  This is not only from an interpersonal basis but also from a legal perspective. A wrong decision or interpretation can catapult you into the world of courts, significant legal expenses, fines, reinstatements and most importantly loss of focus on the business imperatives. This article therefore attempts the provide clarity as to your obligations, as a small business, and how to ensure that the termination is enacted in a manner that best protects your interests against unfair dismissal claims.

What constitutes a small business?

As a national workplace employer (click here to check your jurisdiction), a small business is treated differently to all other enterprises. Being clear on whether your business is classified as a “small business” is therefore essential to the options available to you.

Under the Fair Work Act, a small business is defined as any business with a headcount of fewer than 15 employees.  Note however that a recent ruling has defined employees as any systematic workers and may include casual employees and contract staff.

Dismissal or Redundancy

Determining whether a termination is a dismissal or a redundancy is an important distinction to make in that it reflects directly on your obligations as a small business.

A good way to answer this question is to ask if the termination is a consequence of the position significant changing, or disappearing altogether, or whether the employee is not meeting the requirements implicit in Job description that defines the position. The former will be defined as a redundancy and the latter a dismissal. 

There is a simple Fair Dismissal Code checklist (available below) for small business employers to follow to ensure that they do not unfairly dismiss an employee. If an employer has strictly followed the checklist then the dismissal will be deemed to be fair.

Under the Fair Dismissal Code, employees of small businesses cannot make a claim for unfair dismissal in the first 12 months after being hired. Employees of larger businesses are able to make a claim for unfair dismissal at 6 months.

Types of Dismissal

Summary Dismissal

There are essentially two types of dismissal. The first, “Summary” is where the employee’s conduct has been proven on reasonable grounds to be so serious that it justified immediate dismissal.  In such circumstances, it is fair for an employer to dismiss an employee without notice or warning. Serious misconduct includes theft, fraud, violence (including verbal) and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police.

Other Dismissals

In all other cases, the small business employer must give the employee a reason why they are at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Who cannot make an Unfair Dismissal Claim.

The following small business employees are not allowed to make unfair dismissal claims:

1. Employees who have worked for the business for less than 12 months.
2. Employees who have worked as irregular casual employees.
3. Employees who are guaranteed a salary of over $108,000.
4. Employees who have been dismissed due to business downturn or their position is no longer needed. See redundancy below.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning/(s), a statement of termination or signed witness statements.

Small Business Fair Dismissal Code.

Click here for code.

The Fair Work Ombudsman has provided a checklist for small employers to ensure that the termination is fair. If the employer follows the checklist, then the termination will be deemed as fair. Click here to download the small business fair dismissal code.

Redundancy & small business

A redundancy is where you dismiss the employee because you didn’t require the person’s job to be done by anyone because of changes in the operational requirements of the business? A redundancy must be genuine. If you were to rehire someone in the same position at a later time, the termination would not be classified as a genuine redundancy.

In order to establish grounds of genuine redundancy, you must prove three things. 

1. Firstly, you must prove that you dismissed the employee because you no longer required the person's job to be performed by anyone due to changes in the operational requirements of your business.   Some examples of changes in operational requirements that might establish genuine redundancy are set out as follows; a) A machine is now available to do the job performed by the employee, b) You are restructuring your business to improve efficiency and you decide to redistribute the tasks done by a particular employee between several other employees. c) Your business is experiencing a downturn and therefore you only need 3 people to do a particular task or duty instead of 5. In this kind of scenario, the process for selecting which employees will be retrenched is irrelevant, so long as the criterion is lawful. For example, in the above scenario, you could choose the 2 employees to go on the basis of poor performance but not because one is pregnant and the other is on WorkCover.
2. Secondly, you must prove that you have complied with any obligation to consult with the employee about the redundancy. Such an obligation may arise under a modern award or enterprise agreement. You do not have to consult with the employee about the redundancy unless a modern award or enterprise agreement requires you to.  
3.  Finally, you must prove that it would not have been reasonable to redeploy the employee within your business or a related business.  Redeployment means offering the employee another job, even if they do not want to take it. This does not mean you have to create jobs - you only have to offer redeployment to jobs that are vacant.  If there are no suitable positions available for the employee (i.e. positions that match their qualifications or experience), then redeployment is not reasonable. 

Small Business may be Exempt

Under the National Employment Standards (NES), an employer who is defined as a small business employer is not required to provide redundancy pay. However, an employer may have redundancy pay obligations under an industrial instrument or contract of employment.

Important! Some modern awards and pre-modern awards require certain small business employers to pay redundancy to their employees. see Exceptions below.

Exceptions

There are some small business employers who are not exempted from providing redundancy pay when they make an employee redundant. For example, some modern awards require certain small business employers to pay redundancy to their employees.

Small business employers should carefully check their requirements in relation to redundancy pay and seek professional advice if unsure of your obligations.

Pre-modern award entitlements to redundancy

Prior to the commencement of modern awards, some pre-modern awards (NAPSAs and Division 2B awards) provided redundancy pay for employees of a small business. This mainly occurred in the state of South Australia.

Most modern awards now contain transitional provisions which will preserve the small business redundancy entitlements from a NAPSA or Division 2B State award until 31 December 2014, if they provide for redundancy pay in excess of an employee’s entitlement under the NES.

Where a small business employer is covered by a modern award which contains this transitional provision and the employer would have had an obligation to pay redundancy pay under a NAPSA or a Division 2B State award, then the employee will continue to be entitled to redundancy pay in accordance with the NAPSA or Division 2B State award if it provides an entitlement that exceeds the employee’s entitlement under the NES.

Modern award entitlements to redundancy

Some modern awards require certain small business employers to pay redundancy to their employees. These redundancy obligations apply in industries where historically there was no small business redundancy exemption.

The following are some examples of modern awards which require certain small business employers to pay redundancy pay:

·         Textile, Clothing, Footwear and Associated Industries Award 2010 [MA000017]

·         Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100]

·         Mannequins and Models Award 2010 [MA000117]

·         Joinery and Building Trades Award 2010 [MA000029]

·         Manufacturing and Associated Industries and Occupations Award 2010 [MA000010]

·         Timber Industry Award 2010 [MA000071]

·         Building and Construction General On-site Award 2010 [MA000020]

·         Plumbing and Fire Sprinklers Award 2010 [MA000036]

·         Mobile Crane Hiring Award 2010 [MA000032]

Redundancy pay obligations in an agreement or contract of employment

An applicable agreement or contract of employment may also provide for a more favorable redundancy pay entitlement than the NES, including by extending this entitlement to employees of a small business employer.

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Enterprise Agreements…Why are they of benefit to small business?

The enterprise agreement is not often used by small business but can provide some unique benefits by simplifying the relationship between the employee and employer.

With the introduction of the modern awards most employees in Australia, with a few acceptations, will fall under an award of some sort. Even if you are paying your employees above the award rates (which mostly everyone does) your employees will still be entitled to all the conditions stipulated in that award. For example under the professional services award 2010, which covers IT workers and Engineers who work for vendors; an employee is entitled to 17.5% loading on holiday pay.  Further most companies are covered by multiple awards which makes the arrangement even more complicated.

An enterprise agreement can level out all the variables across these awards establishing a simplified employment agreement with all your employees.

The process of setting up an Enterprise Agreement is relatively simple and once approved will provide the organization with a consistent employment platform for a period of 4 years after which time it will require renewal.

There are multiple types of Enterprise agreements but for most it will be a ‘single-enterprise’ agreement. An imperative in developing your Enterprise agreement is to work with your employees in a consultative manner gaining their agreement throughout its development. The best way to do this is to allow the employees to nominate a ‘bargaining representative’ who will represent the wishes of the employees. Likewise, the employer is also entitled to appoint a bargaining representative thereby making the development process simple and efficient.

How to get started?

If you don’t have an on board HR specialist, you may want to consider contracting someone who has experience in this type of work to help you through the process as it is a specialized field requiring knowledge in modern awards and related ACTS.

In the first instant, it’s important to understand what it is that you’d like the EA to achieve over the 4 year period; what are the business goals. An example might be to simplify payroll processing by paying a salary where the employee agrees to forgo the 17.5 % holiday loading and penalties, agree on salary adjustments over time so you can forward plan on your cost base and make determinations about how overtime, leave and related issues are to be managed etc.

Next, it is important to closely consult with the employees to gain their agreement. This necessitates the employees being given a copy of the agreement to review and then voting to accept or reject the agreement as negotiated. If the majority of employees agree, then the agreement is given to the Fair work Authority who will formally ratify it.

Short-term pain for long term gain.

The concept of introducing an Enterprise Agreement might, for some, seem a “bitter pill to swallow”. On the other hand, a few week’s worth of work (most of which is delegated) will help your organization focus on what’s important over the next 4 years and will provide stability, efficiency and improved productivity.    
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New Nation Workplace Health and Safety Laws – What you need to know!

The new Work Health and Safety (WHS) laws replaced the Occupational Health and Safety (OHS) laws in NSW on 1 January 2012.  

These new laws will provide greater consistency, certainty and clarity across Australia making it easier to understand your workplace health and safety duties. Businesses and volunteer organisations that operate over several states will now be able to initiate nationwide safety policies and procedures without needing to take into account the differences in legislation from state to state or territory that used to prevail under the old system.

As a general rule, if you are complying with the old OH&S laws you are well on the way to complying with the new WHS laws.

What are transitional arrangements?

 Don’t panic about having everything in place right now! To assist business, industry and the community, transitional arrangements have been implemented.  For example, existing OHS committees will become WHS committees and these committees will have 12 months to ensure their membership aligns with the new legislation.

Transitional arrangements have been put in place in NSW and other states to support businesses, industry and workers move to the new system of work health and safety laws.

In summary these provide for:

• Recognition of existing information, records or other documentation that is substantially the same as work health and safety (WHS) requirements
• Transitional periods of 12-18 months where there is a change in training requirements;
• Only requiring retraining or reassessment if the requirements are substantially different
• Transitional periods of 6-12 months (in most cases 12 months) where a duty or requirement is new; and
• Up to 24 months for some new obligations where industry might have difficulty in complying for reasons beyond their control

So what is new?

1.       If you are an employer, sole trader, association, partnership, corporation or volunteer organisation with paid workers, you will be classed as a person conducting a business or undertaking (PCBU). PCBU will therefore replace the current term employer.

2.       If you are an employee, volunteer, labour hire staff, apprentice, work experience student, trainee, outworker, sub-contractor or contractor, working for a PCBU you will be classed as a worker. Worker will replace the current term employee.  Note however that a contractor for example can be both a PCBU and a Worker at the same time meaning that they will carry both responsibilities defined below.

3.       If you are a supplier, designer, manufacturer, importer, or manager or controller of a workplace, you will have specific duties in addition to those as a PCBU.

4.       Health and safety representatives (HSRs) will replace current OHS representatives and play a key role in the consultation process.

5.       PCBU consultation with workers is an important element of the new legislation as is consultation between PCBUs in the case of more than one PCBU.

6.       It is a legal requirement to provide notification of serious workplace accidents and incidents as well as responsibility to preserve the site where the incident occurred

7.       If you work in – or even just visit – a workplace, you will have WHS rights and duties.

Responsibility of Directors and Officers

Officers, including company directors, are individuals who have high level obligations for work health and safety and are defined as anyone who makes decisions, or participates in making decisions.

These obligations are important as health and safety commitment and leadership from the top levels of the business or undertaking is critical to health and safety outcomes.

Therefore, officers must ensure the person conducting a business or undertaking has arrangements in place to comply with its legal obligations.

It is an officers duty to exercise “due diligence” to ensure their business or undertaking fulfils its health and safety obligations under the Work Health and Safety Act 2012.

The essential elements of “due diligence” for an officer are interrelated and cumulative in nature. These elements require an officer:

·         to acquire and keep up to date knowledge of work health and safety matters. Ignorance is not an excuse.

·         to gain an understanding of the operations of the business and the hazards and risks involved

·         to ensure appropriate resources and processes are provided to enable hazards to be identified and risks to be eliminated or minimised

·         to ensure information regarding incidents, hazards and risks is received and the information is responded to in a timely way

·         to ensure the PCBU has, and implements, processes for complying with any legal duty or obligation

·         to ensure processes are verified, monitored and reviewed.

Though not exhaustive, these elements form part of a unified system for ensuring organisational compliance. So in other words the management team within an organisation have definitive responsibility to ensure the health and safety of their workers (new term replacing employee).

 
Responsibilities of Workers

While at work, workers have responsibility to take reasonable care for their own health and safety, and take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. It is also their responsibility to comply, so far as is reasonably, with any reasonable instruction that is given by the person conducting the business so that they are in compliance with their legal responsibility as an Officer. Workers therefore must co-operate with any reasonable WHS policy or procedure of the person conducting the business.

The Health and Safety Representative

The employees (workers) of a business have a right to elect a Health and Safety representative who will be their advocate on all things relating to workplace health and safety.  It is not mandatory to have a HSR but if one or more workers request the appointment, then the PCBU must comply and fines apply if they do not. Formal election processes apply to validate their appointment with the typical term being 3 years. HSR’s who have undertaken the proscribed training may make investigate a health or safety complaint as well as making various recommendations.

Notifiable Incidents

It is the responsibility of the PCBU to notify WorkCover of any serious incident that may have incurred in the work environment. Serious is defined as any incident that requires hospitalisation as an inpatient.

How does the Consultation Process Work?

The ACT requires that the PCBU consult with their Workers regarding the Health and Safety of the workplace. For larger firms it may be worth while establishing work groups around various geographic locations or functional categories with a HSR appointed to each group. Workers may also make a request for the appointment of a Health and Safety Committee.  For small businesses however, which WorkCover NSW defines as a business with less than 20 staff (different from Fair Work which defines less than 15) you may determine what are called “Other Agreed Arrangements” where proper consultation between the PCBU and Workers is achieved.

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Public Holiday Entitlements Can Be Confusing.

What do you have to pay a part-time employee on a public holiday?

To answer this question, ask if the employee would normally work on the day designated as a public holiday? If the answer is yes then you will have to pay them at the normal base rate of pay for the hours that they would normally have worked. If the employee does not normally work on that day then no payment is due. Note that the prorate calculation used to determine annual leave entitlements does not apply.

Can an employer ask an employee to work on a Public Holiday?

In asking your employee to work on a public holiday, the request (or refusal thereof) must be deemed to be reasonable. The National Employment Standard had determined a test to determine what is ‘reasonable’. This includes the nature of the work performed and the operational needs of the business, the employee’s personal and family situation,  whether the employee is entitled to receive addition compensation by way of overtime, penalty rates etc and duration of the notice given.  An employee has the right to refuse the work request if that refusal is reasonable in nature. Note that to penalise an employee who reasonably refuses to work on a public holiday can be viewed as discrimination.

What do I have to pay an employee who works on a public holiday?

Again this is a confusing area. The Fair Work Act and the National Employment Standard do not make any reference to penalty rates other then the determination in the ‘reasonability’ test. Accordingly, it is the modern award that determines the rate of pay for working on a public holiday. An award free employee would therefore be entitled to the rate of pay specified under their employment contract. Note that the employee is entitled to refuse to work on a public holiday if the pay rate (or other compensation) does not adequately compensate them for this work and the subsequent loss of entitlement.

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Investing in Experience - Gov't offers employers training grants for over 50's

Skill shortages are still the major risk to most business achieving their strategic objectives. Finding the right level of expertise has always been a challenge but in our current competitive environment the demand for quality staff has exacerbated an already difficult situation. One source of expertise that hasn’t necessarily been given the attention it deserves is the over 50 age group category.

On average these employees tend to be more stable, bring exceptional levels of experience, tend to higher levels of engagement and stay in the job for a longer period of time. So they’re a great investment. Like all other hiring activities it is important to thoroughly screen candidates against the range of hiring measures defined in the job description. Should your short-list  contain candidates who are over 5o, then the government has offered various incentives for you to hire them in that business which employ people aged over 50 will be able to apply for $5000 training grants in an effort to keep more people in the workforce.

Federal Treasurer Wayne Swan and Employment Minister Kate Ellis announced an expansion of the Government's $43 million Experience+ program to extend support to workers aged 50 years and over, down from a previous minimum of 55 years. Employers can apply for grants to train workers so they can become mentors to, or supervisors of, apprentices and trainees.

Australia has 3.1 million full-time and part-time workers aged over 50. The Experience+ program also gives on-the-job support for mature age workers whose jobs may be at risk due to poor health, injury or disability.

The Government will also announce a Corporate Champions project in which large companies will promote the benefits of hiring mature workers.
"The ageing labour force, combined with skills shortages, means it is more important than ever to encourage experienced employees to stay in the workforce," Ms Ellis said.

The Australian Industry Group- which along with the Australian Chamber of Commerce and Industry will lead the Corporate Champions project - believes it makes "sound business sense to encourage mature age workers to stay within the business".

The Department of Education, Employment and Workplace relations provides a considerable amount of information relating to this subject including a white paper “Investing in Experience”.  For more information click here. This post was inspired by an article by political reporter Alison Rehn.

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Home Workers – Are you aware of the Risks

There are obvious benefits in allowing your employees to work from home. A recent Administrative Appeals Tribunal ruling however highlights, there are also real risks that need to be considered and planned for.

These are not show stoppers but require a process to be put in place that will reduce the related risk on behalf of both the employer and employee.

Background - Case Study

By way of example, there was the recent court case where an employee working for home for a large Telecommunications carrier fell twice in the space of two months whilst going up a flight of stairs in her socks and injuring herself.  Solicitor Rachael James, of Slater and Gordon, said it was a significant win for her client who had left Brisbane to live with her parents in Victoria because of her medical and financial circumstances. "She can't dress herself for work. She is unable to do up a bra or a shirt, or carry a laptop," Ms James said. "She's going to get a whole back payment from the date of the injury up until today, and depending on what the medical evidence says going forward, she could continue to receive those payments until she's 65." The employee is 42 years old and the financial cost could be very significant.

The impact of this ruling therefore offers a serious risk to any employer considering allowing their employees to work from home and must be properly managed.

How to manage the risk?

The answer is not to restrict employees from working from home. Rather, the employer should have a process in place that requires the employee to undertake a risk assessment of the home work environment and surrounds.

This assessment would require the employee to undertake a formal evaluation of all the risks that might cause a potential injury. The evaluation generally follows a check list of likely hazards that the employee may incur in the home, rating the likelihood, consequence, ranking and what they intend to do about reducing the risk.

When complete, this form is then returned to the office and signed by the employee and authorised by the employer. If the employer considers the risk too high they will not authorise home work until they are satisfied that the employee has addressed the issues.

Why bother?

The advantage of implementing a process that leverages this approach is that it ensures the employee is made aware of the likely risks they may incur whilst working from home. This therefore reduces the risk of injury in the first place.   More importantly however, a structured risk evaluation process provides evidence to the court that the employer has taken their workplace health and safety responsibilities seriously and places the responsibility back on the employee to take responsibility for their own welfare.

Where does Work Cover fit in?

Naturally there is always the chance that an employee will injure themselves on the way to work, whilst at work or working from home. The important question to be asked is “is the employer culpable”? The answer to this question is that if the company’s OH&S standards have been followed, then you can be comfortable that you as the employer will not be held responsible.  Accordingly, your work cover insurance will cover the related costs. Do check to make sure that your work cover policy covers home workers.

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Staff Engagement and Improved Business Performance?

Best HR practice recognises that the quality of employee engagement determine business outcomes.

The Facts.

Recent studies on staff engagement have delivered some startling information about the attitudes of the staff we employ in our businesses. An Australian Gallop poll found that only 18% of staff were "engaged" in the business they worked for. Sadly 61% were "disengaged" and 21% were "actively disengaged". Give or take a few % points these statistics were remarkably consistent across the organisational hierarchy. Further, a Korn Ferry study found that 76% of the 20,000 executives surveyed wanted more job satisfaction than money. These two studies together imply that not only is the average worker unhappy but that in the main the average executive is very dissatisfied with their job as well. This is serious stuff.

So what do we mean by engagement?

Engaged employees are far more productive, more profitable, have a higher level of customer focus, lower levels of workplace injury (including psychological) and tend to stay longer.  Staff that are not engaged are said to be either disengaged (sometimes referred to presentism) where they turn up perform the task but that’s all. They come to work but make little effort to extend themselves. The third category are staff that are said to be “actively disengaged”. They are “virtually against everything”, don’t like the company, don’t like management, feel hard done by and may even be passive saboteurs undermining the business success. Worst still, those that tend to be actively disengaged also tend to stay the longest and for every one requires 6 engaged employees to compensate for the damage they do.

Why is engagement important?

Andrew Carnegie who in the early 20^th Century was the world’s richest self man making his fortune in the steel industry once said “take everything I have away but give me these three men and I will build it all again”. What he highlighted was that his business success is directly related not only to the quality of your employees but also to their level of engagement in your business. A largely disengaged workforce is a formula for failure or at best reduced profit and productivity.

Studies found that management played a direct role in determining how engaged an employee was. Skills included the:

• Manager's ability focuses on the employees strengths or positive capabilities
• Manager's ability to create a work environment that is open and trusting
• Manager's ability to actively support the change the affects the employee
• Manager's ability to inspiration their employees causing them to exceed their own expectations.

Unfortunately Australian management falls short on expectation and “are not inspiring confidence and enthusiasm”. Disengaged employees are costing the Australian economy an estimated $27 Billion per year and on average take 6 days more off a year when compared to their engaged counterpart. Not surprisingly, high levels of disengagement also translate into poorer health presenting with higher blood pressure, high cholesterol, higher levels of depression and asthma.

So if you want to have a positive effect on your business productivity we highly recommend bringing in an external Talent Manager to help to assist you in developing an engagement plan that better meets your business needs,

Where does Talent Management fit in?

Investment in talent management is really an investment in developing highly engaged staff. Every business needs to have an appreciation of the current engagement level of your staff. There are simple methods for measuring this and might surprise you. This is especially true of SME where high disengagement levels can spell the difference between success and failure. Talent Management does not have to be an expensive process and can help you implement simple processes that will have a profound effect on staff attitudes and therefore their engagement levels.

One example, is to introduction of a positive acknowledgement program. We tend to be very quick to comment when a staff member has done something wrong but research shows we’re very slow to acknowledge positive behaviour. Yet the quality of engagement appears to be directly related to positive personal acknowledgement. The program should be a daily activity where for every negative comment, four positive comments must be made. So a simple switch to acknowledging positive behaviour can have very significant return on the success of your business. To down load a summary of the Gallup research click here.

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Policies for Social Networking

There was a recent incident where and employee working for an Australian based IT company posted a number of very negative and damaging comments about his employer on his facebook page.  The employer is a public company and this information provided was deemed to be sensitive and could have had a very negative impact on the market’s perception of the employer. The employer had no idea as to what were their rights in this situation.

So, the big question is; how do I manage the employee’s use of social media. A recent case in Townsville featured a retailer and one of their employees who saw fit to post his frustrations about pay issues on their facebook page. The post was threatening and offensive. They did not directly referencing the company but members in their network were also employed by the company so could have been clearly identified.

The end result was that the company terminated the employee for gross misconduct and the employee subsequently lodged an unfair dismissal claim with Fair Work Australia. In the end, Fair Work ruled that the dismissal was fair and that the employees conduct warranted his dismissal for “misconduct” and the fact that even though the posts were made from home outside of working hours made no difference.

So what have we learnt from this case?

1. It shows that employees cannot say what they like about their employers on social media.
2. Employers may treat negative posts as a breach of discipline, and
3. Highlighted the importance of the company providing policies which offer a clear guideline regarding what is and is not acceptable for posting on their social media accounts.

What should be in a Social Media Policy?

1. Clearly define what you mean by ‘Social Media” and define the technology
2. Clearly define who is deemed to be responsible for the post.
3. Provide “Topic” guidelines which help the employee to understand what is acceptable.
4. Provide “off limits” guidelines to what is deemed to be unacceptable and defamatory content

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New Sex & Age Discrimination Legislation – What you need to Know

On 24 May 2011, the federal government passed the Sex and
Age Discrimination Legislation Amendment Act 2010 (the Act) that came into
effect on 29 July 2011. The Act primarily changes the Sex Discrimination Act 1984 by extending
protections relating to sexual harassment, family responsibilities and
breastfeeding. Further, the Act also makes changes to the Age Discrimination
Act 2004 including establishing a stand-alone Age Discrimination Commissioner
in the Australian Human Rights Commission.

The Act make four main changes to the previous legislation: 

1.      
Protects family responsibilities from discrimination

Under the original Act, discrimination on the
grounds of a person's family responsibilities was limited to situations where
an individual suffers discrimination through the termination of their employment.
However, when the Act came into effect it effectively extended the scope of
this protection by prohibiting direct discrimination on the basis of family
responsibilities for both men and women in all areas of employment.

2.      
Protects Breastfeeding  mothers from discrimination

The Act establishes breastfeeding as a
separate stand-alone ground of discrimination. Therefore it is discriminatory to
impose, or propose to impose, a condition, requirement or practice that has, or
is likely to have, the effect of disadvantaging women who are
breastfeeding.   Importantly, breastfeeding is defined in the
Act to include the act of expressing milk, single acts of breastfeeding, and
breastfeeding over a period of time. 

3.      
Offers Greater protection from sexual harassment

Under the original legislation, sexual
harassment was taken to have occurred if a reasonable person 'would have anticipated'
that the person being harassed would be offended, humiliated or intimidated by the
unwelcome sexual conduct. The New Act broadens this test so that a
reasonable person only needs to anticipate 'the possibility' that the person
harassed would be offended, humiliated or intimidated for the conduct to
contravene the Act.  The Act also makes
it unlawful to be sexually harassed by customers and clients of your business.

4.      
The establishment of an age discrimination commissioner

 The Act includes a provision that a
stand-alone Age Discrimination Commissioner must be established in the
Australian Human Rights Commission. The Age Discrimination Commissioner will
address age discrimination by educating the community about discrimination and
combating the attitudes and stereotypes which can contribute to discrimination
on the basis of age.

 So what must you do
to ensure your business complies? Here are a few things you can do:

·       Ensure your policies and procedures address both
sex discrimination and age discrimination proactively;

·       Treat an employee who has family
responsibilities equally to how you would treat someone who does not have
family responsibilities, this is regardless of the sex of the employee

·       ensure your staff are aware of their
responsibilities to ensure compliance with these new laws; and

·       Your business must not directly (or indirectly)
discriminate against a employee who is breastfeeding. An example of direct
discrimination would include not promoting a prospective employee because she
is breastfeeding. Indirect discrimination would occur you did not provide suitable
breaks and place during the working day that in effect prevents a breastfeeding
female employee from expressing milk at work.



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