pendlebury

| workplace law

Author: PWLadmin

  • Sexual Harassment, Bullying and Discrimination

    Discrimination, Harassment and Workplace Bullying

    No employer, whether you employ many people or only a few, can afford to ignore the legal requirements and responsibilities which the law now imposes on all employers in respect to workplace bullying, discrimination and harassment.

    Concerns over sexual harassment in the workplace have soared after the intense publicity of the David Jones sexual harassment case late last year.

    Kristy Fraser-Kirk, a former David Jones publicist, sued DJ’s and its former chief executive (Mark McInnes) for sexual harassment and breach of contract, in an unprecedented claim for $37 million in punitive damages.  The case was settled before trial for a figure reported to be around $850,000.

    There is no doubt that Ms. Fraser-Kirk’s action brought against David Jones has heightened sexual harassment concerns within organisations generally and encouraged scores of other victims to take on their harassers.

    The Human Rights Commission has reported in February 2011 that such cases now constitute 1/3 of all complaints under the Sex Discrimination Act – up 50 per cent since 2009.

    The Commission has revealed that from July to December last year sexual harassment accounted for more than 30% of all complaints.  During the 2009 financial year such cases made up only 20%.  If complaints continue at the current level, the Commission will receive more than 300 for the financial year – 100 more than last year

    It has made women more aware of sexual harassment laws and their rights. 

    The case had also put pressure on companies to increase the amount they were willing to pay to settle sexual harassment cases out of court. 

     What should you do?

    The need for an effective harassment policy is now even greater than it was before. The risks are greater too, and it’s critical that your staff acknowledge they know your policy on bullying, discrimination and harassment, and are following it.

  • How to Manage Excessive Absenteeism?

    Temporary Absence Due to Illness

    The FW Act provides that an employer is in breach of the Act if an employee’s employment is terminated because of the employee being temporarily absent from work due to a “prescribed kind of illness or injury“.

    However, it is NOT a “prescribed kind of illness or injury” if:

    • The employee fails to provide a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

    a) 24 hours after the commencement of the absence; or

    b) such longer period as is reasonable in the circumstances, or

    • The employee is required by the terms of a workplace instrument:

    a)    to notify the employer of an absence from work; and

    b)   to substantiate the reason for the absence; and

    fails to comply with those terms, or 

    • If the employee has failed to provide the employer with evidence for taking paid personal/carer’s leave for a personal illness or personal injury, or
      • the illness or injury extends for more than 3 months, or
      • the total absences of the employee within a 12-month period have been more than 3 months, and

    the employee is not on personal/carers leave for the duration of the absence.

    Be Proactive to Prevent a Problem Arising

    Excessive sick leave needs to be dealt with on a systematic and regular basis.  It should not be handled on the basis that something needs to be done about a particular employee whose continued absence comes to notice as a consequence of the disruption to the department in which the employee is working as a result of that person’s absence.

    What Can You Do?

    It is recommended that sick leave absences of all employees should be reviewed on at least a 3-monthly basis. This should not be too a difficult task given leave records are now computerised. Where it comes to notice that a particular employee is considered to have taken excessive sick leave or a pattern is developing as to the days on which the absences are occurring then immediate action should be taken by that employee’s supervisor to discuss/counsel and/or discipline the employee as the situation requires.   If immediate action is not taken and the excessive use of sick leave continues then it may be justifiably concluded that the employer, by not taking such action, had in some sense condoned the absences.

     Another good idea is to ensure that the employer’s employment contracts have a provision to allow the employer to direct an employee to a medical examination, where illness may be significantly affecting an employee’s work performance, or causing a risk to health and safety of that employee and/or other employees.  Without specific contractual entitlement, it is often legally difficult for an employer to compel an employee to submit to a medical examination.

    So firstly, it is vitally important that employers have in place a well-defined policy for the taking of sick leave and the processes for dealing with cases of excessive use. Secondly, there needs to be a regular and systematic review of all employees’ sick leave so that action can be taken as soon as it becomes obvious that a particular employee is taking excessive sick leave. Employers should not wait until an employee’s sick leave record is “chronic”, rather deal with it at the first signs of a problem developing.

    In view of the legislative hurdles to be jumped before an employer can legally terminate an employee on the grounds of excessive use of sick leave, it would be wise for an employer to seek advice before taking such action.

    BUSINESS TIP:  6 things that you can do to improve attendance in the workplace: 

    1. Make sure employees are aware of attendance expectations and the effects of excessive absenteeism on the business including:
      • remaining team members,
      • productivity, and
      • customer service.

    This sort of information should be made clear at an employee’s induction and reinforced through the Company’s Employee Manual, Code of Conduct, and/or Personal/Carer’s Leave policy.

    2. Analyse attendance records to carefully identify the extent of employee absence and any particular trends/patterns emerging.  Employees who seem to always be off on a Monday or a Friday or before or after a public holiday, for instance.  There is no law against confronting an employee and asking for an explanation as to why their absences mostly seem to occur on particular days.

    3. Have a clear policy and procedure that employees must follow if they are going to be absent.  Provide that employees must:

    •  make direct contact with a manager or someone in authority to advise of their absence, the nature of their illness and when they expect to return.  Do not allow employees to just speak with the receptionist or send email or text messages to a work colleague.  If an employee is not genuine about being sick, they may think twice if they are required to speak directly with the boss.
    • be expected to make contact by a certain time or within a specified time period.
    • be required to provide evidence of their illness which may be a Doctor’s Certificate or Statutory Declaration.   NB: The Personal/Carer’s Leave National Employment Standard (“NES”) requires that employees provide evidence that would satisfy a “reasonable person” of their unfitness for work, which means the evidence does not have to be a medical certificate.   So, it may not be considered reasonable to expect employees to produce a medical certificate for every single day absent unless the sick leave is excessive or there is a clear pattern of single day absences e.g. Fridays & Mondays or every second Thursday etc.   Given the NES does not define “reasonable” your business should have a clear policy in place which defines what evidence requirements are expected of employees.  Remember that an applicable Enterprise Agreement or Modern Award may also specify evidence requirements in relation to Personal/Carer’s leave.

    4. Make employees aware of the consequences of not adhering to the Personal/Carer’s leave policy, which may include disciplinary action. Remember to focus on whether the employee has followed the correct notice and evidence procedures rather than try & establish whether the person was genuinely sick or not.

    5. Follow up with employees face to face when they return to work & enquire about their wellness & whether they are fit to resume normal duties. This lets employees know that you are concerned about their well-being & that you have “noticed” their absence.

    6. Identify any hidden causes.  Often poor attendance is just a symptom of a greater problem and not the real cause.  Aside from common illness, there can be many reasons why an employee is taking excessive sick leave:

    • Drug and alcohol problems;
    • Issues with a work colleague or supervisor;
    • Not coping with workload or some other aspect of their work;
    • Family / Marital issues;
    • Work / Life Balance.

     Before launching into disciplinary action, speak with the employee concerned and try to uncover the root cause of the problem.  You may then be able to determine some strategies to address the situation.

    • Ensure you have a Drug & Alcohol Policy in place and adhere to it. The policy should include a provision for drug and alcohol counselling/support for employees who are willing to accept it.  NB: Drug & alcohol abuse may be reviewed as a disability & therefore if an employee claims a drug or alcohol dependency, the employee’s absence should be assessed in that context.
    • Confront any conflicts or other issues that may exist between team members or supervisors with a view to resolving them.
    • Provide further training/coaching if the employee is not coping with workload – some employees need to be shown how to work more efficiently & how to cope under pressure.
    • Provide access to professional support services or make some temporary changes to work arrangements to assist employees with difficulties at home.
    • If possible, introduce more flexible work practices if the employee is struggling with their family commitments (NES requirement).

     Termination of Employment

    It is possible to terminate the employment of a staff member who has been absent on extended sick leave exceeding a period of 3 months, in other specific circumstances. However, as you can see, this can be complicated as there are a number of workplace laws that protect the rights of employees who are absent on sick leave.  I recommend employers seek legal advice prior to taking such action.

  • Can you dismiss an employee for office gossip?

    Is it possible to terminate the employment of a staff member for being the office gossip?  Fair Work Australia recently ruled that if an employer is intending to sack an employee based on workplace behaviour, then there is a need for clear definitions of the workplace behaviours that warrant dismissal or disciplinary action.  Further, the punishment must fit the crime.

    Can you dismiss an employee for office gossip?Fair Work Australia (FWA) compensated a childcare worker who was sacked for breaching a “no back biting” policy in the decision of Tara Davies –v- Hip Hop Pty Ltd t/a Hippity Hop Child Care [2011] FWA 776 (4 February 2011).

    Hippity Hop Child Care is a child care centre based in Victoria.  Last year Hippity Hop summarily dismissed Ms. Davies for breaching a workplace policy, on the grounds that Ms. Davies allegedly called one of her colleagues “lazy” and said that another “wasn’t a competent carer”.

    The Hippity Hop workplace policy provided as follows:

     “Back biting is NOT TOLERATED at Hippity Hop Childcare; it is unacceptable and can lead to the breakdown of unity between staff within the centre, making it an unpleasant place to work.  Any staff member caught back biting may result in immediate dismissal.”

    Commissioner Ryan, of FWA, found that the Hippity Hop policy did not define “back biting” and that the evidence before him “suggests that there was not a common understanding of the term” within the child care centre.  Commissioner Ryan referred to the Macquarie Dictionary which defined “back bite” as:

    “1. To attack the character or reputation of secretly.  2. To speak evil of the absent;

    gossip.”

    Hippity Hop argued that “back biting” involved making a negative comment about a person, behind their back.

    Commissioner Ryan found the Hippity Hop policy was “an extremely blunt instrument” as any “back biting” by an employee made them liable to instant dismissal.   The Commissioner said the policy,

    “makes no distinction between malicious and untrue comments made behind a person’s back with the clear intention of destroying the person’s reputation and comments made behind a person’s back which are true and which would not result in serious damage to the employee’s reputation“.

    The “very bluntness of [Hippity Hop’s] policy means that a mere breach of the policy cannot constitute a valid reason for dismissal“, Commissioner Ryan said.

    The Commissioner said the nature and intent of the “back biting” required consideration by the employer.  The Commissioner found the comments made by Ms. Davies about her fellow colleagues in this instance, lacked the “necessary odiousness” to justify dismissal and that some form of disciplinary action “well short of dismissal” would have been more appropriate.

    Commissioner Ryan took into account that the Hippity Hop policy was aimed at encouraging employees to bring issues and complaints to management rather than back biting or gossiping behind their backs.   However, he noted that when Ms. Davies complained to the Hippity Hop’s Centre Director about conduct of another employee (who happened to be the Director’s sister) that allegedly threatened the safety of the children, no action was taken by the Director.

    The Commissioner said the evidence led him to conclude that Hippity Hop simply did not have the framework in place to deal with complaints by staff.  The Commissioner also identified deficiencies in the procedural fairness of the dismissal of Ms. Davies and he criticised the Hippity Hop’s management for “concocting” a letter a month after Ms. Davies’ dismissal that added an additional two (2) reasons for her dismissal that were not previously advised to her.

    The Commissioner ordered Hippity Hop to pay Ms. Davies $9,480 in compensation.

    EMPLOYER – LESSONS LEARNT

     When creating workplace policies and procedures be aware of the following;

    • Define the action(s) that are prohibited clearly and completely (and within guidelines of relevant legislation),
    • Ensure that all staff are provided with the policy and understand and have read its contents,
    • Ensure all processes are explained in the policy document, eg. explain the process of making a complaint,
    • Who to complain to,
    • Form of complain – in writing,
    • Nominate witnesses,
    • Management of complaint,
    • Who will investigate,
    • Timeframes,
    • Maintain confidentiality,
    • Findings,
      • Actions – consequences for breach of policy must be clearly communicated in the policy,
      • The forms of disciplinary action must be explained – counselling, warnings, dismissal (at all times the policy must provide the employee with procedural fairness, and includes opportunity to respond fully to allegations),
      • Ensure the punishment fits the crime.
      • The policy must be applied consistently across all staff.

    Preparing workplace policies and procedures is an important task, particularly if the employer wishes to rely on the policy to discipline an employee, including terminating their employment.  It is worthwhile taking time to devise policies carefully and thoroughly, and seek professional advice to ensure that the policy is suitably robust and procedurally fair.