In this issue, read about:

- Keeping the bully's honest.  Ensure your culture and practices are in place to maintain good working relationships and health and safety of all employees.

- Careful when you click.  Implement lawful policies that balance privacy and needed survellaince in your workplace.

- Constructive dismissal and how to avoid it.  Has your workplace ever provided an employee with no alternative but to resign?

- Don't let pay slip through the cracks.  Would your workplace pass a wages audit by the Fair Work Ombudsman?

Thank you to all who have registered their interest in the quarterly print publication Workplace Advantage.  The first release will be received in March 2010 by subscribers.  Further information and "Subscribe Me" forms will be sent later this week.  If you haven't already registered and would like to receive information about the publication and subscribing please advise us by emailing info@humanresourcescentre.com.au

The ramifications of unchecked workplace bullying is in the spotlight following a Victorian Court’s conviction and fining last week of a company and four employees for the relentless bullying of a member of staff who subsequently killed herself.

MAP Foundation, the company that runs Cafe Vamp, the site of the harassment, was convicted and fined $220,000 after it and the four defendants pleaded guilty in the Melbourne Magistrates Court to failing to take reasonable care for the health and safety of persons. The four staff members were fined a total of $115,000.  The charges were issued by WorkSafe Victoria and send a clear message to business owners of zero tolerance for objectionable workplace behaviour and issues an immediate call to action.

Industrial law experts are witnessing a significant rise in cases associated with bullying and discriminatory behaviours. While suicide prevention organisation LifeLine Australia claims that the stress induced by the current financial crisis and its flow on affect in the workplace including longer work hours or more pressure put on workers to perform is adding $107 million a year to the Medicare Benefits bill and contributes to a $15 billion loss in annual productivity.

Organisations are often reticent to take bullying seriously until the social and financial costs are clearly felt.  Workplace and commercial law specialist Andrew Bland of Blands Law says that increasing economic pressure causing concerns over bottom line is creating a chain of victimisation from senior to middle management, that is ultimately passed down the ranks. The signs are more subtle than the classic notions of confrontational bullying and often creates a situation where the employee feels powerless and has no option but to leave.

Bland advises that the best way to keep situations in check is for senior management to be as responsive as possible to all claims.

“Bullying is a form of harassment and that if is left unchecked from a legal perspective it is an occupational health & safety issue. It can cause mental harm, illnesses and physical harm resulting in the breach of an OH&S act, which is a criminal liability.”

He warns that in situations where the matter is left to escalate, causing mental or physical harm or loss of life, not only will the company be in line for hefty fines and prosecution but action can, and often is, taken against senior managers and directors of the company.

The maximum fine a director of manager could face is $750,000 or a jail sentence under the OH&S Act. He adds that also on the rise are civil cases for harassment and bullying as a form of discrimination. A situation highlighted by last year’s high profile case involving PricewaterhouseCoopers partner Christina Rich who received an out of court settlement estimated to be in excess of $11 million for her wrangle in what she claimed was a culture of harassment, victimisation and bullying at the firm.

“If employees feels under pressure and victimised they need to be very quick to advise senior management of the conduct,” Bland says.

For management he warns “do not let it fester. It needs to be nipped in the bud early.” He adds that employers should not have to learn the lesson the hard way, with a hefty legal bill and substantial loss of productivity and public reputation. “It is essential that employers put a grievance procedure in place and outline anti- bullying policies from the start. It will lead to a much lower risk of some incident occurring,” he advises.

The Human Resources Centre strategist Katherine Graham agrees and says that when faced with an attitude or even a performance problem, swift action is essential. "Address it very quickly and very formally. Sit down immediately with the person, identify where the issues are, and also follow that up with some documentation, and that can be quite simple and not too formal. More or less 'look, thanks for your time, we discussed these items and we look forward to seeing improvements in the next term and we'll meet again next week'."

Immediate action, not only may prove to solve the problem but bolsters work place culture ensuring that staff understand that negative behavior is noticed and will illicit a reaction from senior management.

Psychologist and researcher Dr Sara Branch from Griffith University adds that bullying in the work place also has substantial implications for the mental wellbeing and productivity of those that are not the target of such behaviour. Research has shown that witnesses can experience as much of a severe impact as those that are targeted. “It creates positions of powerlessness and a climate of fear.” She adds that it is still largely a taboo area, with colleagues often unwilling to speak up about it in the fear of losing their jobs. Dr Branch suggests that management needs to be aware of the subtleties of bullying, monitor the interplay between staff and intervene with conflict resolution procedures as soon as it is picked up. “There is a perception that bullying is about screaming, when in its most insidious form it is psychological and subtle and often hard for the victims to realise what is happening.”

For further advice on dealing with a bullying or harassment complaint, or to speak to The Resolution Centre about implementing a workplace complaint hotline, an independent grievance investigation or a workplace mediation, call us at 1300 554 381
 

Miranda Kerr is used to being the poster child for all things glam, but becoming the unexpected face of workplace electronic etiquette was an unscheduled surprise.

In early February an unsuspecting Macquarie Bank employee became a media sensation for simply opening an email containing images of a bikini clad Miranda Kerr. Unfortunately he clicked while a live cross to the banks’ trading room was underway during a Seven Network news bulletin and the incident went viral.

The banker in question has kept his job but the incident highlights the constant challenge of policing and curbing the consumption of digital content during work hours. And while most places of work are not subject to the media glare of TV broadcasts, we are reminded that the office is a public place and it does raise the question of who is watching. Clients, customers, senior executives, media, potential new staff are often anonymously thrown in the office environment mix and an offensive email opened at the wrong time could cause the company to lose face or worse, lose business.

The problem with policing such activities is that organisations all have their own take on how to enforce electronic etiquette, some are subtle while others are strict i.e.: blocking all access to social networking sites or sites deemed non work appropriate.

Many employers have instituted company wide policies setting out clear guidelines on electronic usage while also adopting elements of electronic surveillance. Employers that are considering the introduction of electronic surveillance should firstly ensure that their methods are compliant with legislative requirements. In NSW, the Workplace Surveillance Act 2005 commenced and restricts the ability of employers to monitor computer usage and other devices by its employees. This includes controlling the extent to which employers can block their employee’s access to email and the internet.

Also protection is provided to employees extending beyond the traditional workplace, such as a home office or the factory floor. Employers are only permitted to carry out computer surveillance of an employee if it is either given ‘notified surveillance’ or ‘authorised covert surveillance‟ as defined by the Act. Under notified surveillance, employers are required to provide written notification to their employees at least 14 days before any intended surveillance is to occur. The notice must detail: that computer surveillance is to be carried out; how it will be carried out; when it will start; whether it will be continuous or intermittent; and whether it is limited or ongoing. While permission for covert surveillance needs to be obtained from a Magistrate for the sole purpose of establishing whether a particular employee(s) are involved in any unlawful activity at work; or for ensuring the security of the workplace and its staff. Again staff must be notified before this is carried out.

For simple filtering and monitoring of email and websites, the Act allows employers to prevent the delivery of emails or access to all or certain websites provided:
• the employer has a policy on email and internet access; and
• staff have been notified; and
• that where there is an email filter, the employee is notified of blocked email.

Employers should weigh up the potential benefits and implications of workplace e- surveillance and monitoring and ensure that any changes are clearly communicated to staff.

For further details on how to implement surveillance strategy or policy please contact The Human Resources Centre on 1300 136 131
 

New redundancy provisions contained in the new Fair Work Act, which came into affect on January 1, should make employers think carefully about how to terminate staff.

In light of the current trend of many organisations going through a restructure, the avenue of redeployment should be considered in order to avoid costly exposure to unfair dismissal and constructive dismissal claims. In a recent ruling against Aristocrat, Fair Work Australia found that a business development executive that had resigned after receiving a letter requiring him to show cause as to why he should not be dismissed, was actually constructively dismissed.

Constructive dismissal is often misunderstood but clearly defined, it is when a company forces an employee into a position where there is no alternative but to resign. An employer’s unilateral decision to change a fundamental term of the employment contract including duties of a role, the location of a position, change in remuneration or benefits, can have a serious backlash. You can avoid a constructive dismissal by providing clear and unequivocal notice, equivalent to the employee’s entitlement to notice of termination without cause, before the change.

In the Aristocrat case, the company had raised issues about the executive's sales performance and customer relationships but he had claimed that he was being unfairly targeted and bullied by his supervisor. The Commissioner found that Aristocrat should have investigated the executive's allegations that he had been bullied and harassed and was particularly critical of the role of HR management, saying a "proper investigation" of the executive's allegations was required. The Commissioner ordered Aristocrat to pay the executive the maximum six months compensation.

In order to avoid such litigious and fractious scenarios larger employers in particular should stick to familiar and strict practices when terminating staff. While employers can still terminate staff without warnings if the employee is guilty of serious misconduct, such as theft or posing a threat to staff, the onus is still on the employer to conduct a proper investigation and attain adequate proof of the offence. Employees must also be given the chance to respond to the allegations if the employee's conduct falls short of being "serious" misconduct.

Tips to avoid constructive dismissal:

• Fact check. Investigate and substantiate your claims against the employee;
• Provide clarity. Be clear and open about issues over poor performance and/or conduct and that if they persist these may lead to termination of employment;
• The right of reply. It is imperative that employees are given a reasonable opportunity to improve their performance or conduct and are given adequate support to do so;
• A change as good as a holiday. Under the new laws employers are urged to consider redeployment opportunities within the company rather than terminating staff;
• A policy of proactively pursuing and proposing alternate employment opportunities before redundancy termination will minimise the risk of unfair dismissal or adverse action litigation being brought by your employees; and
• Educate staff. Review and tighten up your processes and ensure that business leaders are briefed on new workplace changes.

For further advice on performance managing, managing terminations or restructuring, speak with The Human Resources Centre on 1300 136 131 or to engage an independent investigator speak to The Resolution Centre on 1300 554 381.
 

The Fair Work Ombudsman is displaying a vigilant stance in ensuring that companies are complying with awards. A recent spate of prosecutions has highlighted the need for finance departments to check on the correct rates of pay.

This month the operators of a St Kilda retail store have been fined almost $20,000 for underpaying 43 workers more than $40,000. The penalties were handed down in the Melbourne Magistrates’ Court and are the result of a prosecution by the Fair Work Ombudsman.

If an organisation is found to be in breach, not only is the company fined but also the directors. In this case the workers were underpaid their minimum hourly rate, annual leave entitlements and penalty rates for weekend, public holiday and overtime work. Fair Work Ombudsman Executive Director Michael Campbell says the case sends a message that failing to pay staff their full entitlements is a serious matter. “The failure to promptly rectify the underpayments when we brought them to the employer’s attention contributed to our decision to launch a prosecution,” he said.

The key message is that legal proceedings from the FWA are on the agenda if your company is audited and found to be paying inaccurate wages or benefits, no matter how minor the discrepancy or how unintentional the error. The Managed Payroll Centre has discovered after working with a range of clients that many employers are simply not aware that they are not in compliance with current awards and other legislation and are genuinely shocked to discover that they may be liable for prosecution.

The Managed Payroll Centre advises that companies conduct regular reviews of wages and how they match to awards and subtle changes in legislation that are progressively introduced. And if you don’t have the resources to do that in-house make sure you outsource the job to an experienced agency before the Ombudsman is looking through your books.

For help on staying compliant or to audit your payroll practices call The Managed Payroll Centre on 1300 733 556
 

To register for any of our upcoming events please contact info@humanresourcescentre.com.au or call 1300 136 131

March 1
"Essentials in Conflict Management " and "Advanced Skills in Conflict Management"
Half day training programs
Sydney
 

March 15
"Essentials in Conflict Management" and "Advanced Skills in Conflict Management"
Half day training programs
Melbourne
 

April 22
"What is Strategic HR?"
Breakfast Briefing
Sydney
 

June 10
"Is Payroll a HR or Finance Function?"
Breakfast Panel Discussion
Sydney

 

If you have questions or require clarification on a particular human resources or workplace relations matter and would like to see some practical advice in our next newsletter, let us know by emailing info@humanresourcescentre.com.au