What do you do when a complaint is made against someone in HR?

It’s a gloomy, grey Monday morning. You arrive at your desk to find a long document sitting at the top of your in-tray - it’s a complaint lodged against one of your Executive Team. The complaint is flagged for urgent attention, with a note from your 2IC recommending that an investigation be held as soon as possible.

You pick up the phone to call your HR manager. Then you look at the complaint more closely: the alleged perpetrator is a member of your HR team. What do you do?

The above is an increasingly common scenario. Workplace investigations are becoming increasingly prevalent, in part due to the introduction of the Fair Work Act anti-bullying regime and as part of a general increase in cases (complaints and grievances) relating to workplace behaviour. The fact that performance management can be a genuine (or not) source of grievance means that complaints related to alleged bullying in this arena often include reference to the HR professionals conducting, or involved in, the process. 

Investigations are typically conducted internally for the purposes of taking remedial or disciplinary action, or for discovering the factual circumstances behind a grievance. 

But what happens when the persons who usually carry out the investigation are also named as alleged perpetrators of the conduct? 

Is an investigation required?

It is important that organisations treat complaints and grievances with necessary seriousness, as a failure to do so may compromise their defence if the matters raised internally progress to bullying claims and/or litigation. Treating complaints and grievances with seriousness requires, at the very least, compliance with any applicable contractual terms, policies or procedures. Those terms, policies or procedures may or may not indicate when an investigation must be conducted (and how).

While each case will turn on its own facts because of the individual nature of the documents governing the process, there are some clear circumstances that may justify the need for an investigation, such as where:

  • the allegations relate to the conduct of another employee for which the employer may be vicariously liable or which may cause a risk to health or safety;
  • the allegations of misconduct are complex, and an investigation is required to clearly establish the relevant facts and circumstances;
  • the allegations relate to “serious” misconduct; 
  • the allegations could cause an organisation reputational and brand damage;
  • the allegations implicate senior executives and managers; or
  • a formal investigation is required by contract or an industrial instrument as part of the disciplinary process.

Who should conduct the investigation?

Employees, particularly when subject to an investigation, like to know that decisions made in the workplace are impartial and free from bias. An effective workplace investigation allows each of the participants to be heard, for evidence to be submitted and for an impartial decision to be made on the facts and merits of each case.

As such, while in many cases it may be appropriate for your HR team to conduct an investigation, there are many scenarios in which an external investigation is prudent, including:

  • where the incident involves sensitive issues in which you need to ensure legal professional privilege, to the extent possible; 
  • where the relevant HR professionals do not have sufficient expertise or confidence to conduct the investigation; 
  • where there is no internal person that is able to undertake an investigation at arm’s length, for example where the relevant internal person has a conflict of interest (because they may be directly or indirectly implicated, or their manager is);
  • where the relevant internal person is going to be the decision maker (as to the outcome in respect of the investigation’s findings); or
  • where the internal investigation has failed to resolve the matter and the aggrieved employee seeks to escalate the matter (whether by way of an appeal against the findings, as an entitlement under the governing documentation or from an organisational viewpoint if that will prevent the employee lodging an anti-bullying application or some form of external complaint). 

In situations like this engagement of a firm, like PCS, with skill and experience in investigations will ensure the process is invested with objectivity, fairness, natural justice and as a consequence the organisation is likely to save on costs, time and possible further litigation.

 

Our top 5 tips for avoiding employment litigation

All employers want to avoid the stress, cost and downtime associated with litigation commenced by an employee (or former employee). Here are our top five tips for preventing work-related litigation.

1. Establish and document clear expectations

Establishing clear expectations of your employees is fundamental in ensuring that the requirements of the position are met, the employee is a cultural fit for the organisation and you are able to attract and retain good employees.

A thorough position description which highlights the requirements of the role to potential employees before they apply for a position and a clear contract which reinforces when and how work is to be performed will assist in ensuring that both parties are on the same page.

Up to date policies and procedures should also be used to clearly outline operational and legal requirements of your employees in greater detail. That said, your contracts of employment should be drafted so that company policies do not form part of the contract of employment. Training in policies and procedures is also essential.

2. Give constructive feedback

Giving constructive feedback will assist employees to fulfil the requirements of the role and help them grow and develop within the organisation.

While regular performance appraisals are key, do not wait to give positive feedback or address areas of concern. Waiting to give positive feedback may make an employee feel undervalued and delaying addressing areas of concern could create a greater problem.

3. Create a paper trail

Take detailed notes of meetings (particularly if performance/conduct concerns are raised). Having a paper trail documenting the employment relationship and any hiccups that occur along the way may assist in defending against future employment litigation if a dispute arises down the track.

4. Know when to hold ‘em and when to fold ’em

If an employee’s employment is terminated within 6 months of their employment or 12 months for small business the employee will not be covered by the unfair dismissal protections in the FW Act.

Accordingly, if you have raised significant performance or conduct issues during this time and cannot see any improvement in the employee’s performance/conduct you may wish to consider calling time on the employment relationship before the employee can avail themselves of an unfair dismissal application. Be aware that employees terminated during their probationary period may have other options available, such as a general protections or discrimination claim.

5. Get prompt legal advice

When in doubt, and particularly before making a decision to terminate an employee’s employment, consider getting legal advice. In our experience, early legal advice will almost always save money in the long run.

Keeping Gen Y for the Long Haul

Many industries report a surplus of highly qualified and enthusiastic employees as being available to fill entry level roles, but keeping them in the long term poses a significant challenge. Developing effective strategies for retaining these employees is critical to a business, as high turnover is a burden on a business’ time and training resources and the potential disruption to client relationships can be damaging.

Here’s our top 5 list of motivators to assist your organisation to retain young achievers.

1.  Variety: Exposing young employees to a wide range of tasks, clients and departments within the business can keep interest levels high and subdue a new starter’s fears that they will be pigeon-holed early on their career. Variety can also extend to giving employees opportunities to work on different short and long term projects and with a range of mentors of varying seniority.

2.  Career progression: Graduate programs provide employees with the opportunity to develop a core set of skills for their career, but what happens when those programs come to an end? Some employers find that their graduates are susceptible to being lured away by clients and competitors as they reach the end of their programs. Ensure your business reaps the benefits of its investment in those foundational years by discussing career progression and remuneration with graduates throughout and prior to their program concluding, through such measures as performance development programs.You may even wish to consider extending the program or developing one to follow on from those first few years.

3.  Leadership: Organisations that have inspiring leaders are more likely to retain their employees if they have positive role models to look up to. Senior employees provide a snapshot to juniors of what they can expect to achieve if they settle in for the long haul.

4.  Work life balance: Junior employees can suffer from burn out from long hours in the office. Innovative employers are using technology to create a solution for this by developing internal search engines to identify previous examples of work and automate routine tasks such as form filing. While these types of technological initiatives work for businesses with the financial resources to do so, the effects can be replicated by creating a collaborative environment that promotes sharing of resources. Employers can also let their employees know their social time matters as much as their work does by encouraging employees to appropriately socialise together.

5.  Clear purpose: Longevity in a role is seldom motivated by monetary incentives alone. Employees are likely to stick around for the long haul if they work in an environment where the organisation’s vision, expectations and values are made clear to them and they align with them. Discovering what makes your new recruits get out of bed in the morning and come to work is something that should be done at the interview stage. That said, it’s never to late to work on clarifying what your business’ vision is and it can even work to its advantage to have all of your employees contribute to formation of the vision, expectations and values.

If you’ve been inspired to develop your business’ strategies around recruitment, training and retention, contact the team at PCS today.

​Closing the gender pay gap: how do we do it?

What role might allowing employees to freely discuss their salaries play in closing the gender pay gap? That is the question that will be considered by a Senate inquiry into the Greens’ Fair Work Amendment (Gender Pay Gap) Bill 2015 (the “Bill”) over the coming months.

The Bill’s Explanatory Memorandum asserts that “when pay is set in secret by individual negotiation, women are at a disadvantage” and that “pay secrecy can help hide discrimination, unconscious bias and bad decision making”.

Australia’s gender pay gap currently sits at around 17.9% based on average weekly full-time earnings.[1] Most would agree this is an issue that needs to be addressed; however, the idea of salaries being freely discussed in the workplace comes with other concerns for employers.

In theory, salary transparency has the potential to encourage productivity through competition if employees know that colleagues in similar roles are paid more than they are. However, this theory can only work in practice if employees’ pay correlates directly with employees’ performance. In reality, the factors that determine salary levels are multifaceted, dependent in part on market conditions, business performance at the time of employment, and the long-term value an employee is seen as adding to the organisation, for example.

In this context, discussions of salary between colleagues in the workplace may do more harm than good, by creating disharmony between employees. Additionally, such discussions threaten to place disproportionate emphasis on salary as the only indicator of an employee’s worth to an organisation. In fact an employer may show it values an employee’s contribution to the workplace in a number of ways, particularly when money is tight – for example, by providing:

  • pathways for career advancement, skill diversification and training and education;
  • flexible working arrangements; or
  • longer term incentives, like share and bonus schemes.

Further, it is an organisation’s prerogative to keep its financial position confidential. Such confidentiality is essential if an organisation is to have the freedom it needs to make strategic decisions in the interests of long-term growth and success, to the ultimate benefit of all stakeholders.

This is not to say that, as a practical matter, an organisation’s position with respect to pay and finance should be shrouded in total secrecy. Sharing certain information with employees can help an organisation’s leadership team to keep everyone on the same page and geared towards achieving organisational goals.

It is clear that in assessing the viability of strategies to close the gender pay gap, there are complex considerations at play. Employers need not wait for legislative change to play their part, however. By identifying obstacles to gender equality at an organisational level, employers can help overcome them, and should work to ensure that employees are rewarded based on merit rather than personal characteristics.


[1] Workplace Gender Equality Agency, Gender pay gap statistics, available at <https://www.wgea.gov.au/sites/default/files/Gender_Pay_Gap_Factsheet.pdf>, 3.

Changes to the Fair Work Act: what they mean for you

The Government’s Fair Work Amendment Bill 2014 (Cth) (the “Bill”) has been passed after months of protracted cross-bench negotiations. While pared back significantly from the original bill presented to Parliament in February, the Bill has introduced three changes which employers should be aware of.

1.  Enterprise agreements

Employers negotiating single-enterprise greenfields agreements (that is, enterprise agreements in relation to a new enterprise which has not yet employed any employees) may now apply to the Fair Work Commission (“FWC”) to have the agreement approved if negotiations have been ongoing for six months and not resulted in agreement.

2.  Protected action ballot orders

An application for a protected action ballot order (required before industrial action can be taken lawfully) may no longer be made by a bargaining representative unless bargaining has commenced (for example, because the employer has agreed to bargain or a majority support determination has been obtained from the FWC). This change is intended to ensure that employees do not “strike first, bargain later”.

3.  Unpaid parental leave

If an employee on a period of unpaid parental leave makes a request to extend the period of his or her leave, an employer may no longer refuse the request unless the employee has been given a reasonable opportunity to discuss it. This is in addition to the existing requirement that an employer may only refuse such a request on reasonable business grounds. There is still no right of appeal by an employee if their request is refused.

The Government was unable to secure enough support to pass many of its proposed changes. Amendments in relation to the following were rejected:

  • annual leave – an amendment to make clear that annual leave is to be paid out as provided by any applicable industrial instrument;
  • leave accruals – an employee cannot take or accrue leave during a period that they are absent from work and in receipt of workers’ compensation;
  • right of entry – including provisions to repeal the transport and accommodation arrangements and default meeting place;
  • individual flexibility arrangements – including requiring a statement of acknowledgment that an employee is better off overall under the arrangement and changes to how such arrangements may be terminated; and
  • transfer of business provisions – will not apply to an employee who, at his or her own initiative, seeks employment with an associated entity of his or her former employer without his or her employment having been terminated first.

For advice on what these changes might mean for your organisation, contact one of the PCS Team on (02) 8094 3100.

Playing it Safe: Complaints and the General Protections Provisions

Dealing with an employee complaint is never easy, but is part and parcel of people management. It is important for an employer to spot the difference between an employee voicing their concerns and an employee making a complaint and the difference is not always clear cut.

An employer may find themselves in hot water if it has not taken appropriate action to deal with a communication that the employee asserts was a complaint.

What is the scope of a complaint?

In Crawford v Steadmark Pty Ltd (No 2) [2015] FCCA 2697, Ms Crawford emailed her manager stating:

“After today’s meeting even though you had given us free time I returned to the store. On calling Michael for the evening to provide him with the daily figures a conversation followed of which the details and conduct was not warranted or appropriate. As a result I will not be attending tonight’s event.”

Ms Crawford’s manager responded saying;

“I am very sorry to hear that.

I am not entirely sure what has transpired -we shall discuss tomorrow…”,

but did not follow up with Ms Crawford directly or advise her of any inquires she had made and the matter did not progress any further until Ms Crawford’s employment was not renewed after the expiry of her fixed term contract.

Ms Crawford alleged that the employer had taken adverse action because of the “complaint” that she made.

The Federal Circuit Court agreed that a “substantive and operative” reason for why Ms Crawford’s employment was not renewed was because of the complaint that she had made about the Managing Director.

What does this mean for employers?

Whether the email was in fact a “complaint” was not in dispute in the case, as the employer accepted in its submissions that Ms Crawford had a workplace right to make a complaint and exercised that right. However, employers should be aware that even if a complaint is not made formally, an email or conversation may still be construed as a complaint for the purposes of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”).

If you are unsure whether a communication or representation made by an employee is a complaint and requires action, give the PCS team a call on (02) 8094 3100.

Five types of employee and how to deal with them

While a well-executed recruitment process can help filter out job candidates who might not be right for an organisation, it is not always possible to tell exactly what “type” of employee a person will be until they’re in the job. Here are five employee “types” you might come across and our top tips for dealing with them.

1. The Underperformer

Keeping in mind that an employee will not have access to the unfair dismissal jurisdiction for the first six or twelve months of his or her employment (depending on the size of the organisation), how to deal with the Underperformer will, in part, depend on how long he or she has been employed.

When confronted with a chronic Underperformer who does not respond to performance management, employers should consider the following questions:

  • “Does the Underperformer really want to be here?”
  • “Is it worthwhile attempting to negotiate a separation?”

2. The Complainer 

The Complainer is never happy, and everybody knows it. Complaints should always be taken seriously and employers should err on the side of caution, bearing in mind that an employee has a workplace right to make a complaint in relation to his or her employment, and to pursue a claim if adverse action is taken against them for exercising that right.

This does not mean, however, that unwarranted complaints should be allowed to affect workplace morale. Employers must assess whether a complaint is legitimate or symptomatic of a behavioural issue that needs to be addressed.

3. The Coaster

While not the poorest performer, the Coaster applies minimum discretionary effort to his or her duties and is not seen as adding value to the organisation. By developing a high-performance culture, an organisation can send the message that coasting is not enough.

One key to a high-performance culture is an effective performance management process. Performance management should be seen as a genuine opportunity, and an effective process will involve communicating shared goals, clearly defining targets and timeframes and ensuring investment on both sides of the table.

4. The Bully

It is important for an organisation to engender a culture of mutual respect and tolerance through behaviour and culture training for all employees, both on commencement of employment and throughout its duration.

An organisation must not turn a blind eye to the Bully’s misconduct. Doing so may expose it, for example, to vicarious liability for harassment or material obligations imposed on it under an order to stop bullying.

5. The Star

Organisations must not allow their best employees to get lost in the mix. An effective talent retention strategy should be developed, based around short-term and long-term monetary and non-monetary incentives, employee recognition and opportunities for career development.

 

​Can you sack a race-goer behaving badly?

As punters rest their weary heads the morning after Melbourne Cup, perhaps few will be regretting their race-day antics as much as the “girl in the blue dress”. It is likely that among the millions of people who have seen the footage of the woman pushing a police officer into a garden is her employer, no doubt aghast at her actions.

No employer wants to be associated with an employee behaving badly, but when such behaviour happens “outside of work”, a number of factors need to be addressed in answering the question: What can I do about it?

  • Is the behaviour really “outside of work”? Misbehaviour at a work-related event will often not be “outside of work” for the purposes of certain legislation. This will make it easier for an employer to demonstrate a link between an employee’s misconduct and the workplace, and take disciplinary action accordingly.
  • What does the contract say? A contract which allows disciplinary action to be taken against employees whose conduct (no matter the context) might threaten their employer’s reputation will provide a stronger foundation for acting on misconduct out of work. Contracts should also allow disciplinary action to be taken against employees charged or convicted with criminal offences which compromise employees’ ability to perform their duties or the organisation’s image.
  • Is after-hours conduct addressed in relevant policies? Organisational policies (including those dealing with social media use and behaviour and culture) should reinforce contractual protections by spelling out types of unacceptable behaviour, explaining why such behaviour may affect the organisation, and detailing possible disciplinary consequences.
  • What are the possible reputational consequences? The extent to which an employee’s after-hours misconduct might affect an organisation’s reputation is a yardstick by which disciplinary action should be measured. An employer should also consider whether a link can be made between a misbehaving employee and his or her employer by witnesses. Given the significant media attention the “girl in the blue dress” has received, in the right contractual and policy context, a stronger disciplinary response (up to and including termination of employment) may be warranted. In contrast, a scuffle at a local pub witnessed by few might be better addressed with a warning.
  • Always be willing to listen. An employee should always be given a genuine chance to explain his or her behaviour before a decision with respect to disciplinary action is made. Any disciplinary action taken should be about protecting the organisation, not punishing the employee.

How out-of-work misconduct is dealt with will always be specific to the circumstances and is likely to involve even greater complexities than dealing with misconduct at work. If you’re in need of guidance in this area, give one of the PCS Team a call on (02) 8094 3100.