Power, sex and silence in the workplace: Cultures of complicity

David Weiler, Associate

Perhaps what is most concerning about the sexual harassment and assault alleged against Harvey Weinstein by several women is that it was an open secret in Hollywood for years. It was joked about by some and ignored by many others. However, it took two independent investigations, one from the New York Times and another from the New Yorker, for those with the power to step up and take a stand against the alleged behaviour.

It is not uncommon for those who take steps to report sexual harassment to find their experiences dismissed or trivialised. For example, in a landmark sexual harassment case in Australia1, the claimant stated that she had reported to her employer instances of sexual harassment. She recounted that the response from her supervisor was allegedly to laugh and say that “he himself had been hit with the ugly stick and that he never had the pleasure of being a target of sexual harassment and fantasies, and unfortunately no one had wanted to have an affair with him.” 2

These stories not only ignite a necessary dialogue within workplaces about such behaviour, but also provide a useful case study of how sexual harassment is aided and abetted by the inactivity and silence of those in a position to speak out about such behaviour.

Power

Following the Weinstein accusations, several women made public allegations of sexual misconduct against the comedian, Louis C.K.. The celebrity responded by admitting to the claims and in a statement said:

“These stories are true. At the time, I said to myself that what I did was O.K. because I never [did anything] without asking first, which is also true. But what I learned later in life, too late, is that when you have power over another person, asking them…isn’t a question. It’s a predicament for them. The power I had over these women is that they admired me. And I wielded that power irresponsibly.”

The power that certain individuals have over those who might potentially speak out against inappropriate conduct is an important insight into how complicity is solidified within a culture. Take, for example, the situation of Quentin Tarantino whose movies, including Pulp Fiction, were distributed by Mr Weinstein. As far back as 1995 he knew of Weinstein’s conduct from his own girlfriend’s experience. As an “up-and-coming” director, the support that Mr Weinstein gave Mr Tarantino was critical to his success. Following the publicity around the allegations, Mr Tarantino reflected that he wished he “had taken responsibility for what [he] heard. If I had done the work I should have done then, I would have had to not work with him.”

Power and control are central to the employment relationship, and organisations must be enlivened to the possibility of such power being exploited. The power dynamic may contribute to an environment that prevents those affected from speaking out, as well as the willingness of peers, bystanders and other workers, who are dependent on the support of more powerful colleagues, from speaking out.

Silence

As the NY Times reports, the organisational silence echoes that of the broader industry. In 2015, an employee of Weinstein’s company, Lauren O’Connor, had written a letter to several executives in the business outlining inappropriate conduct against a colleague and notifying them that:

“There is a toxic environment for women at this company…

I am just starting out in my career, and have been and remain fearful about speaking up…But remaining silent is causing me great distress…

Harvey Weinstein is a 64 year old, world famous man and this is his company. The balance of power is me: 0, Harvey Weinstein: 10…I am a professional and have tried to be professional. I am not treated that way however. I am sexualized and diminished.”

According to the report, “some Weinstein Company board members and executives…were alarmed about the allegations….in the end though, board members were assured that there was no need to investigate. After reaching a settlement with Mr. Weinstein, Ms. O’Connor withdrew her complaint and thanked him for the career opportunity he had given her”.

These accounts offer a rare and candid glimpse into an industry where success is built, in part, on ignoring unfortunate facts and protecting one’s own interest in the face of inappropriate sexual conduct.

As a result of women coming forward to speak up against the systemic issues, change is possible. In a statement announcing the expulsion of Mr Weinstein from the body that awards the Oscars, the Board of Governors for the Academy of Motion Picture Arts and Sciences explained its decision as follows:

We do so not simply to separate ourselves from someone who does not merit the respect of his colleagues but also to send a message that the era of willful ignorance and shameful complicity in sexually predatory behaviour and workplace harassment in our industry is over. What’s at issue here is a deeply troubling problem that has no place in our society.

It is fair to be skeptical of the industry’s ability to change, but this sentiment draws attention to how institutional silence on issues such as sexual harassment plays a significant role in the perpetuation of this type of conduct and in disempowering those who experience harassment from bringing forward their allegations.

In Australia, organisations often have policies and procedures that make provision for raising allegations of this nature. But it is worthwhile considering whether the culture of an organisation creates a climate of silence and implicitly discourages the reporting of such allegations.

Liability

Another significant aspect is the liability that may arise for individuals who turn a blind eye towards inappropriate sexual conduct in the workplace. In terms of accountability within an organisation, the personal liability of individuals for breaches of the Fair Work Act 2009 (Cth) (“FW Act”) and anti-discrimination laws such as the Sex Discrimination Act 1984 (Cth) (“SD Act”) may become an issue for those considered to be “involved” in a contravention. This can include directors, compliance officers, managers and senior human resources staff.

Under the FW Act, involvement in a contravention is treated in the same way as an actual contravention. An individual is taken to be “involved” in a contravention if he or she:

(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.

To be “knowingly concerned in or party to the contravention” (s 550(2)(c)), the conduct in question may take the form of an act or omission, with the potential to capture a failure to act where some form of action would have been the appropriate response. For example, where an HR manager had knowledge of the essential matters that made up the employer’s contraventions, he was found to have been knowingly concerned in these contraventions on the basis that “as human resources manager, he should have been aware of, and at least attempted to give advice on, [the employer’s] obligations under the [Act].3

Borrowing from the criminal law concept, “willful blindness” can arise “where a person deliberately refrains from making enquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he might learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring”.

Where a remedy for sexual harassment or discriminatory conduct is pursued in the discrimination context, the personal liability of an individual alleged to be involved in a breach can also arise. Under the SD Act, a person who “causes, instructs, induces, aids or permits” another person to breach the legislation is taken also to have done the unlawful act.

In this context, the reach of the SD Act has been held to extend to the role of an employment agency that knew that several young women it sent to a particular employer had made sexual harassment allegations. The agency was found to have “permitted” the unlawful conduct that took place in relation to a young woman who was harassed at that workplace, on the basis that the prior complaints relating to that workplace should have alerted it to the distinct possibility that any young female sent to that workplace was at risk.4

Take the example of a senior employee or director who is aware of instances of inappropriate conduct occurring in workplace, but who remains silent in circumstances where, because of their position of authority in that workplace, action on their part could have had an impact on the behaviour. By their own inertia on the issue, they may run the risk that they are taken to have condoned or permitted such conduct. This becomes a greater risk where there are repeat and consistent allegations, making silence a poor choice.

The recent accusations made around the abuse of power and inappropriate sexual conduct by celebrities have brought to light how systemic sexual harassment in organisations thrives on silence and complicity. Key personnel in such organisations run the risk of being viewed as potentially involved in contraventions, where their awareness and position give them the capacity to influence such behaviour.

Key takeaways

  • Organisations need to be mindful of the power dynamics in the workplace that can foster a culture of silence and absence of complaints.
  • Diligent adherence to compliance obligations requires active, not passive, engagement.
  • “Wilful blindness” may be considered actual knowledge for the purposes of liability.

  1. Ewin v Vergara (No 3) [2013] FCA 1311
  2. Ewin v Vergara (No 3) [2013] FCA 1311 at [497].
  3. Fair Work Ombudsman v Centennial Financial Services [2011] FMCA 459 at [38]
  4. Elliott v Nanda (2001) 111 FCR 240.

PCS End of Year Event: The Real Challenges of Leadership

Not an easy ride: worker told to “hit the road” after a rude gesture

Erin Lynch, Director

Your Company Code of Conduct reads:

“Social Media Activity that contains discriminatory, obscene, malicious or threatening content, is knowingly false, create [sic] a hostile work environment, or similar inappropriate or unlawful conduct will not be tolerated and will be subject to discipline up to an [sic] including termination of employment.”

You are out cycling in the early hours of the morning and the President and his motorcade pass you by. You (not being fond of the President) stick your middle finger up at him. Hours later, your friends are commenting on Facebook that they recognise you in a photo that has been taken of you in the “act”. You make the photo your Facebook cover photo and Twitter profile picture.

The next day, at your part-time job, you find out that they are receiving emails about you and members of the public are telling your employer to terminate your employment (they know you work there because your Facebook profile lists it).

Taking this into account, you think it best to notify your manager at your place of work. You do this knowing that there is nothing connecting you to the organisation. You weren’t wearing any clothing that connected you with the company and none of your social media accounts list the Company as your place of work. The only connection is your LinkedIn profile.

To your surprise you are taken into a room and your engagement is terminated. You are escorted from the building with your personal belongings in a box. The Company is asserting that you have breached the terms of the Code of Conduct above.

This scenario describes the recent experience of Juli Briskman in Northern Virginia. The “act” has cost the 50-year-old marketing executive her job.

To add to the above circumstances, Juli had recently raised (while undertaking her duties monitoring the Company’s social media presence) that a senior director had publicly said, in relation to a political topic on Facebook (where his profile identifies him as an employee of the Company), “you’re a (expletive) Libtard a——,”. However, this (male) employee remains employed.

If the Company had acted this way in Australia it may find itself in “hot water” over the dismissal. The worker may have at her disposal a number of claims, including an unfair dismissal claim, a general protections claim or a discrimination claim.

In respect of an unfair dismissal claim (subject to her meeting the eligibility criteria) the termination may be harsh and unjust, particularly in circumstances where employees who have engaged in similar (if not worse) behaviour have remained employed. Additionally, it appears that there was nothing connecting Juli and the Company and the Company’s awareness of the issue was only as a result of Juli being upfront about her actions.

A general protections or discrimination claim may be commenced on the basis that the Company has discriminated (or engaged in adverse action) on the basis of sex (given the differential treatment of the male employee).

There is also the potential for a claim that argues that the actions taken by the Company impinge on the expression of a political opinion.

While it is not uncommon for organisations to react swiftly to situations that may give rise to adverse publicity and it may be necessary to do so, any reaction should be measured and proportionate to the impact on the organisation’s business. This includes a consideration of:

  • the impact of the conduct on the Company’s reputation;
  • how the Company may have addressed similar conduct in the past; and 
  • whether this is a “one off” incident, taking into account the employee’s employment history.

“Like for Like” – A consideration of casual conversion

Erin Lynch, Director

The Fair Work Commission (the “FWC”) recently addressed the right to convert to permanent employment when an industrial instrument (in this case an enterprise agreement) provides such a right. Of particular interest was the FWC’s consideration of the right to convert on a “like for like” basis.1

The relevant term of the enterprise agreement provided that:

“… where a casual Transport Worker has been directly employed by Toll or engaged through a labour hire company to perform work for Toll on a regular and systematic basis for more than 6 months, the Transport Worker may elect to become a permanent Transport Worker, on a like for like basis, within the specific business unit at which the Transport Worker is engaged, in accordance with the Award.”

The employee claimed that he had a right to convert from casual employment to permanent employment on a “like for like” basis. Previously he worked Monday to Friday, normally commencing at 4.00am, and generally did an eight-hour shift. He wanted an equivalent position on a permanent basis.

The offer initially proposed by the employer was “made up of 4 hour, 5 hour and 6 hours shifts” and was communicated as amounting to “30 hours a week”. The employer asserted that this complied with the casual conversion clause of the enterprise agreement and the award.

The FWC ultimately concluded that the offer did not reflect the right conferred by the enterprise agreement to convert casual employment to permanent employment on a “like for like basis”.

It reached this conclusion on the basis that the phrase “like for like”:

  1. is to be interpreted “with a practical bent of mind” and in the manner which it was “likely to have been understood in the context of the relevant industry”2 ;
  2. requires a comparison between the nature and extent of the work previously performed by a casual employee with that of a permanent employee performing much the same work; and
  3. has to be applied to the facts and circumstances of each individual employee and the workplace in which the work is performed.

While it was held that mathematical precision is not required, the FWC accepted that it is a tool which assists in reaching an informed decision when comparing competing positions.

In this case, the nature and extent of the ordinary hours worked by the employee was a little less than eight ordinary hours per shift and about 34 hours per week. If you were to include ordinary hours together with overtime, the employee worked just over eight hours per shift and slightly more than 38 hours per week.

An offer of a position made up of “4 hour, 5 hour and 6 hour shifts” fell short, as in the casual role, the employee regularly worked Mondays to Fridays for periods in excess of six hours per shift. To meet the requirements of the enterprise agreement to convert employment on a “like for like” basis, the employee was entitled to a permanent full-time position.

In addition, the FWC added that the right to convert was not limited by what the employer may have be prepared to offer and it was “not merely a right to convert to a permanent position; it [was] also a right to convert to a permanent position on a “like for like basis”.”

This decision demonstrates that the FWC will adopt a fairly strict approach to interpreting casual conversion provisions in enterprise agreements (and potentially awards). Employers should be mindful when negotiating enterprise agreements, to avoid terms which may result in business outcomes that may not be sustainable.

We do note that in this case the employer did not argue that a permanent full-time position was not available for the employee and this could be relevant in other conversion situations.


1 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208

2 Kucks v CSR (1996) 66 CR 182 at 184

First FWO prosecution for race-based underpayments

Therese MacDermott, Consultant

It is fairly well known to HR and legal practitioners that the extent of race based employment discrimination is not accurately reflected in the number of complaints lodged by individual workers. This makes the role of the regulator, in pursuing breaches of the Fair Work Act 2009 (Cth) (the “FW Act”) that are linked to race, a significant aspect of enforcement and compliance.

The Fair Work Ombudsman (“FWO”), since its inception, has assiduously prosecuted egregious underpayments and other conduct amounting to substantial non-compliance with core employment obligations.

In a recent case, following an audit of its work arrangements, an employer was found to have breached the FW Act in a number of respects, including by failing to pay the minimum award rates and other allowances for overtime, weekend work and public holidays and in relation to its record keeping obligations.1

The respondents admitted the underpayment and record keeping contraventions in relation to a number of its employees. However, the case proceeded on the outstanding issue of whether, in addition to the established breaches, the respondents had taken adverse action against particular employees because of their nationality or descent. Ultimately, the Court found that the employer contravened the prohibitions on discriminatory treatment in the FW Act. It held that the failure to pay particular workers correctly and other treatment was adverse action based on race.

In establishing the causal link between the treatment and the prohibited ground (in this case, race), many adverse action cases have turned on the state of mind or motivation of the decision-maker in order to ascertain the real reason for the decision-maker’s conduct. Many employers have been able to discharge the onus of establishing that a prohibited ground was not a substantial and operative factor for the treatment by establishing that the prohibited ground had nothing to do with the reasons the decision was made.

However, in this case, the Court did not accept that the second respondent (the decision-maker) was confused about the award obligations and concluded that the Malaysian national extraction and Chinese race of the employees in question was the substantial and operative reason. The Judge found that the employer failed to provide any convincing or credible explanations for the treatment consistent with the absence of race as a substantial and operative reason for the action.

This case is significant as it is the FWO’s first racial discrimination litigation. It is also a reminder to employers to ensure that decision-making within their organisations is not impacted by any prohibited grounds so as to bring into question compliance with the FW Act. Decision-makers must be able to provide credible explanations for the treatment of workers that is disassociated from any discriminatory treatment or other proscribed bases.


Fair Work Ombudsman v Yenida Pty Ltd & Anor [2017] FCCA 2299

How long is too long? When the job can no longer be done by an injured worker

Therese MacDermott, Consultant

A common response to a situation when a worker is injured is to assign the worker to a different role for a designated period, often referred to as “light” or “suitable” duties, while he or she is recovering from an injury. This response is generally dictated by the requirements of workers’ compensation legislation and may also be undertaken to fulfil an employer’s obligations under anti-discrimination legislation. However, employers can feel pressured to retain an injured worker in an alternative role long after it becomes clear that the worker cannot return to his or her pre-existing duties, and after the requirements of workers’ compensation laws are satisfied.

In this article, we consider what obligations an employer must satisfy under disability discrimination legislation, in order to terminate an injured worker’s employment safely on the basis that he or she is unable to perform the inherent requirements of the particular work, as they cannot return to their pre-injury duties, even with reasonable adjustments. While an injured worker may seek to be retained permanently in a re-assigned role, this is not what the legislative framework requires. What is important is the capacity to fulfil the duties for which the injured work was employed, albeit with reasonable adjustments, rather than characterising the alternative role itself as a reasonable adjustment.

Assisting a worker to return to their original role

Courts have found the requirements of the Disability Discrimination Act 1992 (Cth) (“DDA”) to make reasonable adjustments are directed towards alterations to the job or other modifications for the person, which are designed to facilitate the person being able to do the work that he or she was employed to do.

An illustration of this point is a recent case1 where a worker injured his hand at work and subsequently undertook suitable duties on a part-time basis, but was ultimately found to be unfit to perform his pre-injury duties as a “fitter”. The medical evidence in this case was to the effect that the injured worker could no longer perform the “fitter” duties and could only return to work for permanently modified duties, such as office work. The court found that the employer’s obligations arising from the DDA in this context were to make reasonable adjustments to the injured worker’s situation so that he could continue to work in the position for which he was employed, that is the “fitter” position. It was not to find him other employment in an alternative role.

One qualification to this point is that if an employer has a history of allowing injured workers to remain long term in alternative roles, the application of the strict letter of the law may raise questions about the reasonableness of this response. If the injured worker remains in the alternative role long-term, this could give rise to a situation where it is taken to be the substantive role going forward against which capacity is assessed. In such circumstances, it is generally advisable not to leave the matter unresolved indefinitely, but to make a clear decision regarding any incapacity to perform the pre-injury role. A new contract to employ the person in the alternative role can then be entered into if that is negotiated between the parties. Employers also need to be mindful of any significant differences in salary and entitlements between the two roles, and negotiate contractual terms to reflect this.

Making appropriate enquiries

If an employer is contemplating terminating an injured worker’s employment based on his or her inability to perform the inherent requirements of the job, it is incumbent on the employer to make enquiries about a worker’s capacity at that point in time. Generally, this requires a consideration of the feasibility of a return to work (including the possibility of a return to work in a reduced form in the short term), with a view to the worker returning to the pre-injury position in the foreseeable future.

The type of information relevant to these inquiries includes medical reports provided by the worker and any other reports that may have been obtained by the employer from an insurer or rehabilitation provider. Where this information is insufficient to enable the employer to make a fully informed decision, it may be appropriate, for example, to obtain the consent of the worker to release medical information from their treating doctor or specialist. An alternative approach is to request the worker to attend a medical assessment arranged and paid for by the employer. An injured worker is required to co-operate with such a request.

Consultation

A failure to give the injured worker an opportunity to consider or propose any adjustments prior to a termination of employment can impact on how an assessment of the capacity of the individual is viewed by a court or tribunal, particularly in unfair dismissal cases. The importance of consultation with an injured worker is highlighted in a recent Fair Work Commission decision,2 where it was found that a nurse had been unfairly dismissed following a non-work related injury. The Commissioner stated:

“…I am satisfied that the decision to terminate Ms Maharaj’s employment was unreasonable. Northern Health may well have been able to satisfy itself as to the correctness or otherwise of its position had it undertaken even the most basic of investigation with Ms Maharaj. It did not do so and there is nothing before the Commission that suggests that Ms Maharaj could not have returned to work, to her pre-injury duties on a graduated return to work plan.”

Timing

The appropriate time to consider a worker’s ability to perform the pre-injury role is at the time that termination is being considered. Workers’ compensation legislation in each state and territory also set timeframes for various matters, such as how long alternative duties need to be provided, and need to be factored into managing a return to work.

Another important timing factor is in relation to timeframes for a return to full capacity. If a medical report indicates that an injured worker is likely to return to full capacity to enable him or her to undertake their pre-existing duties within a nominated timeframe, then an employer will need to work with that assessment, including in some cases allowing access to different forms of leave, such as unpaid leave if necessary. This is different to a situation where the prognosis of a return to full capacity in the foreseeable future is poor. In this case, the argument that a person is not able to perform the inherent requirements of the job is strengthened.

Key takeaways

  • The duties undertaken in the pre-injury role are crucial to the assessment of incapacity.
  • Act on medical information and obtain further reports to enable informed decision-making.
  • Employing a worker permanently in an alternative role is not required, but may be an option that an employer is prepared to consider.
  • Develop a comprehensive strategy as legal challenges may arise through a number of different avenues, including compliance with workers’ compensation obligations, disability discrimination and unfair dismissal.

Just the facts: Mistakes to avoid when conducting an investigation

Kathryn Dent, Director

In our June webinar, cognisant of the fact that many HR Practitioners are increasingly involved with or conducting investigations, I highlighted the mistakes to avoid when conducting an investigation to ensure that the process and the outcomes are fair, transparent, legally compliant and defensible.

It is difficult to recommend a model investigation process because the process of an investigation will necessarily depend on the allegations, the participants and the workplace. However, avoiding the mistakes set out below should steer organisations in the right direction to ensuring that their findings and action taken in response to the findings, are solid and defensible.

My “top 10” mistakes, and how to avoid them, are reproduced here.

1.  Not following the process

Fortunately, it is rare to find an organisation that doesn’t have a grievance or complaint policy (and those that do not have one should consider drafting and implementing one as a priority).

Policies vary from organisation to organisation so it is important to be familiar with what is required once the complaint or grievance is received. Whilst a policy may not be contractual in nature (the best policies aren’t), they are there to provide consistency of approach and security to employees and to that extent compliance with them is highly advisable.

Generally, policies have a multi-step approach, starting with internal resolution before the matter is escalated. The best policies avoid mandating that each step must be followed (sometimes this is not appropriate given the identity of the parties involved), reserve discretion and afford flexibility to cater for different circumstances. Importantly, the policies should not commit the organisation to commencing and concluding an investigation within a set timeframe. Instead, a general commitment to expediency should suffice, as a means of reassuring the parties.

If you need to deviate from the process set out in the policy, make sure you have sound reasons for doing so and that you consult with those involved in the investigation about this to obtain their consent. This minimises the risk of technical objections and challenges on this point at a later date.

2.  When failing to plan is planning to fail

Once you have decided to investigate, which can sometimes be a challenging step in itself (think about the “off the record” or “confidential chats” employees want to have, usually for fear of retribution), the next phase is planning it. Failing to plan an investigation can affect the outcome and defensibility of findings. For example, it could lead to witnesses and evidence being overlooked, policies not being complied with, insufficient support, an exacerbation of health issues caused by the behaviour the subject of the investigation, an aggravation or repetition of behaviour and further damage to working relationships. Planning will help to mitigate these risks. Planning involves:

  • Identifying witnesses, additional to the complainant and respondent
    • This may or may not be capable of being done early depending on how comprehensive the initial complaint or grievance is.
    • Only interview those who are likely to have knowledge of the matters or who have been identified as potential witnesses by the complainant or the respondent.
  • Working out the order of interviews
    • Generally, interview the complainant first and then the respondent, with any witnesses last. Remember that any new material from witnesses that could affect the findings may necessitate a further interview to put that material to the person (at least of the respondent).
    • Whether respondent or witnesses follow the complainant may depend on:
      • The extent of confidentiality that is required to preserve the integrity of evidence including the respondent’s answers; and
      • How likely it is that the respondent will admit to the allegations and obviate the need for interviewing the witnesses.
  • Working out the mechanics of the interviews
    • Where will they be held? Away from the workplace to protect confidentiality?
    • How will they be recorded? Audio recording requires consent of the party being interviewed. If you are transcribing by hand or recording digitally on an electronic device, best practice dictates that the written statement should be signed.
    • When will they be conducted?
    • How long is each interview likely to take?
  • Status quo
  • Whether or not the parties should remain in the workplace is an important consideration to minimise further damage to workplace relationships or potential health-related issues.
  • There is also the question of whether to suspend the alleged wrongdoer, to avoid a continuation of the behaviour in question and/or victimisation. Suspension on full pay is often sanctioned for cases of serious misconduct and is made easier if there is a clause in the employment contract permitting such an action.
  • Selecting the investigator is also part of the process and leads into a discussion of the next mistake.

3.  Not choosing the right investigator

Remember there are a variety of types of investigators whose job it is to hear the alleged facts and complaint, obtain responses, marshall evidence, assess it on the balance of probabilities and make findings.

The selection of an investigator will depend on the issues at stake (for example, are they potentially press-worthy and reputationdamaging if made public? Could they result in litigation? Would a lawyer be a better choice in order to potentially attract legal professional privilege and preserve confidentiality?)

The selection will also depend on resources (Can the organisation spare an internal resource being devoted to hours of interviews? Does the internal investigator have sufficient experience? Could the internal investigator be accused of bias if they have had dealings with the participants in the investigation?).

4.  Investigator as decision maker

While the investigator’s primary responsibility is to determine the truth of the allegations as far as he or she can, the investigator should also be conscious to avoid acting in a way which may lead to challenges to his or her findings.

On this basis, it would be a mistake to have an investigator as decision-maker on anything other than very minor matters. If the findings could lead to a termination of employment, then separating the investigation function from the decision-making function is prudent. An “independent” decision maker can review the report and accept or reject the findings and then determine the most appropriate course of action without the added pressure of having to defend the process and course they adopted, which may happen if they were the investigator.

5.  Relying on “untested” information

Information should be tested as far as possible. If untested information is going to be relied on, the investigator should be able to justify why that reliance was reasonable in the circumstances.

For example, it would be a mistake to accept as fact information presented by the complainant or witness if there was a means to test it (for example if a document existed which would verify the information presented or event or if a third party witnessed it).

6.  Not knowing the role of a support person

Within the unfair dismissal regime industrial tribunals may find a termination to be harsh, unjust or unreasonable if the unfair dismissal applicant was unreasonably refused the opportunity of having a support person present during any discussions relating to dismissal.

The case law which has developed in this area has clarified that a support person’s role is not that of an advocate or representative, but is limited to assisting the relevant employee.

On this basis an investigator has the right to caution or silence a vocal or obstructive support person or, in extreme cases, suspend or terminate the interview.

7.  No logical order

The order of interviews will help ensure the investigation runs smoothly and expeditiously, the latter being important to preservation of confidentiality, protection of participants, potential restoration of the relationship or timely disciplinary action at worst.

Whilst it is not fatal to have to reinterview witnesses, having an order to the process will minimise this potential. A logical order means that all allegations or accounts can be put to a person in the one interview, and this is usually best achieved if the order of interviewees starts with those who know the most. This can also flush out additional interviewees or other evidence.

8.  Blurring the investigation and the disciplinary response

If you have followed the recommendation to separate the roles of investigator and decisionmaker, then this potential blurring is less likely to occur.

The disciplinary process should be separate and distinct from the investigation. The disciplinary process is about identifying what action is appropriate based on the findings and other relevant material (such as an employee’s personal circumstances and other extenuating factors). At its most simple, the disciplinary process starts when the investigation findings are accepted and should be embarked on in a manner that is procedurally fair. Procedural fairness can be dictated by applicable contractual obligations, policies or procedures. It also arises from the general proposition that any proposed disciplinary action should be put to the employee, a response obtained and consideration given to that response (relevant to defending an unfair dismissal).

It is appropriate to warn the employee prior to the meeting of the potential for dismissal, indicate that all circumstances will be taken into account, and allow a support person to be present.

9.  Not dealing with the findings and implementing recommendations (if there are any)

There are several reasons why it is a mistake to not deal with findings and/or not to implement recommendations.

Inaction may:

  • be seen as excusing unacceptable workplace behaviour, thereby prejudicing the ability to discipline other employees for similar behaviour in the future;
  • adversely impact staff morale and productivity, and at worst may lead to staff turnover or inability to attract new staff;
  • undermine the integrity of the complaint or grievance procedure and as a consequence, employees’ confidence in invoking it;
  • have health and safety implications if a person continues to engage in bullying or harassing behaviour;
  • restrict an employer’s ability to mount a defence, ie making it difficult to demonstrate it took all reasonable steps to prevent any unlawful conduct.

10.  Not learning from mistakes

The final takeaway is to review the investigation once it is completed. Were there lessons to be learned? What were they? For example:

  • Was the relevant process easy to follow?
  • Were employees able to access and rely on the policy, or were there impediments? Can those impediments be eradicated and how?
  • Were there any additional matters raised during the investigation that require attention by way of unaddressed behaviours, non-compliance with policies, flaws in processes, gaps in policies, other breaches?
  • Was confidentiality and non-victimisation maintained or should any potential breaches be separately investigated and disciplined?
  • Has a systemic issue been identified that requires broader investigation or rectification?

My house, my rules: The “pros and cons” of workplace policies

Sam Cahill, Associate

It is common for employers in Australia to have a suite of workplace policies. Indeed, in recent years, it has become an unquestioned assumption that employers should have written policies concerning a range of workplace issues, including bullying and social media. In this article, we look at the advantages and disadvantages associated with workplace policies, and how an employer can maximise the effectiveness of its policy arrangements.

Benefits of Workplace Policies

Managing legal risks

An employer has various legal obligations with respect to work health and safety and the prevention of certain types of behaviour in the workplace, including discrimination, harassment and workplace bullying. An employer, and its senior officers, may face severe penalties for failing to comply with work health and safety duties. Similarly, an employer can be held vicariously liable for a failure to take appropriate steps to prevent, or respond to, unacceptable behaviour at work. Importantly, an employer can use workplace policies to:

  • provide staff with information concerning work health and safety;
  • explain the types of behaviour that are prohibited at work;
  • outline the disciplinary consequences for engaging in prohibited behaviour; and
  • establish processes for reporting behavioural or safety issues to management.

These policies can assist in managing the employer’s legal risks. By way of example, an employer may be able to rely on its policies to assist in demonstrating that:

  • it complied with its work health and safety obligations;
  • it took reasonable steps to prevent sexual harassment in the workplace, and is therefore not vicariously liable for such behaviour; and/or
  • it had grounds to dismiss an employee who had engaged in unacceptable behaviour in breach of a policy.

However, the mere existence of policies covering these issues will not be sufficient. An employer will need to demonstrate that the relevant policy had been actively promulgated and enforced. This was highlighted in a recent case involving racial vilification in the workplace, in which the Federal Circuit Court made the following assessment of the employer’s policies:

“The official position taken by [the employer] is wholly exemplary. The code of conduct and other documents exhibited to the Court show that, on its face, [the employer] is wholly opposed to any form of racial or other unlawful harassment in employment. The difficulty, however, is that it is one thing to have these policies, no doubt sincerely embraced by the management of [the employer], but it is another to enforce them.”1

The employer in that case had failed to respond adequately to complaints of racist behaviour in the workplace, and thereby failed to enforce its policies regarding racial vilification. As a result, the Court found that the employer was vicariously liable for the unlawful conduct of its employees.

Clarifying expectations and ensuring consistency

Policies can be used to provide employees with clarification regarding the employer’s expectations. By way of example, an employer may have policies regarding appropriate workplace attire and attendance at work. Used in this way, workplace policies can be an effective method of delivering instructions to an employer’s entire workforce. They can also provide a basis for disciplinary action against employees who fail to comply with these instructions.

Policies can also be used to provide guidance to managers, and thereby ensure consistency of decision-making across the organisation. By way of example, a policy may provide guidance on:

  • how and when an employee can be required to provide medical evidence in respect of a period of personal leave;
  • how and when an employee may be issued with a formal warning for misconduct or unsatisfactory performance; and
  • when the employer will provide support to an employee undertaking further study.

Policies of this kind may be especially helpful in organisations where managers are required to make decisions regarding employment issues without assistance from human resources practitioners.

Detriments of Workplace Policies

Limiting employer’s discretion

An employer will often have a significant amount of discretion when issuing instructions to employees and managing issues in the workplace (provided the employer complies with the relevant laws). For example, an employer may adopt one of a number of approaches when responding to complaints made by an employee, or raising concerns regarding an employee’s performance. However, an employer may have a policy that restricts this discretion by prescribing certain requirements, such as a requirement to:

  • provide an employee with a certain amount of notice of a disciplinary meeting;
  • provide an employee with written information regarding an allegation or investigation;
  • complete a workplace investigation within a prescribed period of time; or • provide an employee with a certain number of warnings before terminating his or her employment.

Given the importance of maintaining an employer’s flexibility when dealing with employment issues, we generally recommend that employers refrain from introducing policies of this kind or that policies which do cover these issues retain a level of flexibility within which discretion can be exercised and the consequences for an employer of noncompliance are less onerous.

Legal risk associated with failure to comply

An employer may face legal action from employees if it fails to comply with its own policies. The main avenue of legal redress is for an employee to allege that the policy in question was incorporated into his or her contract of employment, meaning that a breach of the policy amounts to a breach of contract for which (unlimited) damages may be awarded.

Australian courts have recently considered this issue in the following scenarios:

  • An employee’s contract of employment contained a promise to “abide by all Company Policies and Practices currently in place, any alterations made to them, and any new ones introduced”.2 The employer in question had a policy setting out generous redundancy entitlements, but refused to follow this policy in respect of the employee.
  • An employee’s letter of engagement provided that the employer’s policies “are to be observed at all times.” 3 The employer in question had a “Workplace Harassment and Discrimination Policy”, which stated that the company would “handle complaints promptly, with confidentiality, impartiality and with sensitivity to the complainant’s needs”. The company failed to do so in respect of a complaint made by the employee.
  • An employee was required to sign a policy document titled “Working with Us”, which provided that the company would “take every practicable step to provide and maintain a safe and healthy work environment for all people”. 4 The employee argued that the employer breached this policy by allowing him to be bullied at work.

In each of these scenarios, the court found that the promises contained in the employer’s policy were incorporated into the employee’s contract of employment, and were therefore enforceable against the employer under contract law.

Conversely, in a recent High Court decision, the Commonwealth Bank avoided being held liable for failing to follow its redundancy policy as the documentation made it clear that processes outlined in the policy, such as those dealing with redeployment, did not give rise to a contractual entitlement.5

Key takeaways

  • Regularly evaluate whether your organisation’s current policies are necessary and appropriate. In doing so, it is important to distinguish between policies that are designed to protect the organisation (eg, anti-discrimination, work health and safety, sexual harassment, confidential information) and other policies that relate to operational matters (eg, performance management, dress code, study leave). It may be that policies falling into the second category are unnecessary or inappropriate.
  • Ensure that your organisation’s employment contracts expressly state that its policies do not form part of the employee’s contract of employment (and that this wording is also reflected in the policies) and do not use language that conveys a promise to employees or imposes an obligation on the organisation.
  • Ensure that all staff in your organisation, and especially managers, understand and follow your organisation’s policies. This can be done by encouraging staff engagement and providing regular updates and training. Your organisation should strive to create a compelling narrative as to why its policies exist and why they must be followed.