Anti Bullying Application rejected – Reasonable Management Action.

A case of Reasonable Management Action. On 19 August 2016, the Fair Work Commission handed down a decision dismissing an order to stop bullying. This was only the seventh of its type relating the FWC’s bullying jurisdiction.

In Xiaoli Cao v Metro Assist Inc; Rita Wilkinson, the Applicant,  employed y a charity, sought orders from the FWC against her manager to stop bullying under s 789FC of the Fair Work Act 2009.

The alleged bullying conduct included overloading her, increasing her workload, requesting she perform “unreasonable” tasks, making accusations about her work ethic and demeaning her in front of her work colleagues and other allegations.

Notwithstanding steps taken following two mediation sessions, the Applicant filed a general protections claim on 12 January 2016 and made a bullying complaint to SafeWork NSW.

In exercising its jurisdiction, the FWC considered the Applicant’s evidence that her manager’s actions were not reasonable management action carried out in a reasonable manner.

The employer gave evidence that the actions taken did not constitute bullying and that, where possible, it had actioned the Applicant’s requests to address her concerns and also established measures to rebuild the work relationship between the two parties.

The Commission found that the evidence did not support allegations of unreasonable behaviour by the manager and that the employer had executed reasonable management action and also carried out fair and transparent investigations into her allegations.

This decision demonstrates how reasonable management action done in a reasonable manner will not be considered as workplace bullying.

If you are your managers are unsure about what is and what is not reasonable management action and workplace bullying, I strongly recommend you consider the AWPTI Management Essentials training program, details can be found at http://awpti.com.au/management-training/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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The full text of the decision can be found here- https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5592.htm

Reasonable Management Action

Following company policies

Following company policies is vitally important especially when it comes to disciplining or dismissing employees.

In the recent case of Moore v Specialist Diagnostic Services Pty Ltd t/a Dorevitch Pathology [2016] FWC 5910, the Fair Work Commission held that an employee was unfairly dismissed in circumstances where she refused to take a urine test because as her employer was not following company policies or Australian and New Zealand standards.

The employer received an allegation that the applicant Ms Moore, a Collections Coordinator, was abusing illicit drugs.  The HR Department and Ms Moore’s supervisor asked her to attend a meeting during which they requested her to provide a urine sample.

Ms Moore agreed to provide the sample, however she objected to her supervisor collecting the sample.  She became agitated and subsequently left the meeting, did not return to work despite requests and provided a medical certificate stating she would not be returning to work.

Upon her return to work, in a second meeting with her supervisor and the HR officer, Ms Moore apologised for her behaviour and again indicated she was willing to provide a urine sample.  She was terminated that day for serious misconduct for failing to follow management’s reasonable directions.

Ms Moore alleged that she had been unfairly dismissed on the basis there was no valid reason for her dismissal and she was not awarded procedural fairness.  She further claimed that the collections procedure proposed by her supervisor and the HR officer was not following company policies and not in accordance with Dorevitch’s policy or Australian and New Zealand standards.

Commissioner Bissett upheld Ms Moore’s claim and found that her behaviour at the first meeting did not warrant serious misconduct justifying dismissal.

The Commissioner also held that allowing a direct supervisor to collect the urine sample was in breach of Dorevitch’s policy or Australian New Zealand standards and therefore Ms Moore was entitled to request that proper procedure be followed.  It was also noted that whilst Dorevitch’s policy allowed it discretion as to when a sample could be collected and screening methods, the collection process proposed by Dorevitch in relation to Ms Moore would have also resulted in a breach of the chain of custody procedure.

Commissioner Bissett also emphasised the need for employers to adhere to their own workplace policies and best practice, when it comes to drug and alcohol testing in the workplace.

The employee was awarded $27,900 in compensation plus superannuation.

Drug and Alcohol Testing

It is important that workplace policies which cover drug and alcohol testing are carefully implemented, communicated and managed in the workplace.

Employers must also bear in mind that drug and alcohol testing should be properly incorporated into workplace policies and procedures as drug and alcohol issues may also impact on the employer’s work health and safety obligations to workers.

As this decision shows, failure to properly manage drug and alcohol testing may pose risks for employers, such as discrimination, bullying and unfair dismissal.

Workplace Policies and Procedures

In general, when it comes to workplace policies and procedures, employers should ensure that:

  • they are regularly reviewed and updated;
  • they are applied as a matter of best practice;
  • they allow for a certain degree of discretion;
  • that staff receive training on the organisation’s policies and procedures, particularly those staff who are responsible for implementing and managing those policies and procedures.

Employers should also be mindful as to whether workplace policies and procedures are contractually binding, as a breach of a policy or procedure may then potentially lead to a breach of contract claim.

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AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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Dismissing employees – legitimate reasons but beware you must adhere to the process and afford procedural fairness.

Dismissing employees can be stressful, difficult and complex process. It is a decision that carries legal risks and can take a significant amount of time and resources.

When dismissing employees who earn less than the defined high income threshold currently $138,900 from 1 July 2016 (see http://www.afei.org.au/node/109027 or who are covered by an award or enterprise agreement, care needs to be taken to minimise the risk of an unfair dismissal claim in the Fair Work a state commission

 

To protect your business when dismissing employees in the case of misconduct you must;

  • Ensure that you have a valid reason to terminate an employee.
  • Act in a fair and reasonable manner during the process.
  • Ensure that you have provided the employee procedural fairness.
  • Consider the employees records and circumstances
  • Follow any applicable rules regarding dismissal, notice of termination, and final pay, including accrued outstanding leave.

 

With a legitimate reason, a proper procedure, and quality advice, you can feel secure in terminating an employee with minimised risk.

Below are four valid reasons for dismissing an employee.

1. MISCONDUCT

Misconduct can refer to a range of behaviour including breaching company policy and inappropriate behaviour that leads to Dismissing employees.

Serious misconduct includes theft, fraud, assault, other unlawful activity and any wilful or deliberate conduct that is fundamentally inconsistent with continuation of the employment, and conduct that causes and serious and imminent risk to health and safety or the reputation, viability or profitability of the employer’s business.

Your company policies, procedure or Code of Conduct should be clearly set out so you have grounds to take action. If you do not have these I strongly advise that you seek assistance and HR support, AWPTI can assist – http://awpti.com.au/backup/hr-support/

You must have evidence that misconduct occurred and that efforts were made to formally warn the employee about their misconduct. You don’t need to give any warnings in the case of serious misconduct before you can terminate, but you do need evidence and procedural fairness.

It is recommended that if termination is a likely outcome a thorough investigation is carried out to ensure you have the evidence and that procedural fairness (meaning giving the employee the opportunity to respond to allegations about their conduct) is afforded. AWPTI can assist with investigation services http://awpti.com.au/backup/investigations/

In cases of serious misconduct, employers do not have to provide any notice of termination. However, as this is a drastic measure, you need to be sure you have a sound basis and valid reason, having afforded procedural fairness. If you are unsure the employee may be suspended while and investigation takes place

2. INCAPACITY

Capacity relates to an employee’s ability to carry out the requirements of the job. In order to use incapacity as a legitimate reason to terminate an employee, you need to identify the core duties of the job position and assess the employee’s ability to perform them. In doing so, you must ensure that you are not unlawfully discriminating against the employee by reason of illness or some other incapacity.

Once again, you need evidence that a lack of capacity exists and that reasonable measures were taken to find a solution or provide alternative duties. This is especially important in the case of disability or medical incapacity.

It is very important that you have clearly written position description that clarify that nature of the position and the responsibilities of the employee. If you do not have clear and current position description AWPTI can assist – http://awpti.com.au/backup/hr-support/

3.POOR PERFORMANCE

Managing poor performance can be a risky process. A structured and well-prepared performance management plan or improvement procedure can protect you from ending up on the receiving end of a bullying or unfair dismissal claim.

Identify the performance problem and formally discuss it with the employee. You need to give concrete examples of poor performance rather than general comments about their productivity. Give them the opportunity to respond, advise them on how they can improve their performance and give them time to do so. Most importantly, you need to document the process.

Ensure that you can demonstrate a well-established performance management process in case a claim is made against you. Check contracts, industrial agreements, policies and procedures to ensure you are complying with any relevant rules or procedures. Verify your facts, ensure you have evidence and again, above all, document everything. http://awpti.com.au/backup/hr-support/

4. GENUINE REDUNDANCY

Redundancy is a valid reason for termination. You need to show that the employee’s position is no longer required to be performed by anyone because of changes in the operational requirements of your business.

Protect your business from an unfair dismissal claim by making sure you follow any consultation requirements outlined in an applicable award or registered agreement.

You should also have explored all reasonable opportunity to redeploy the employee in another position. It is best practice to consult employees about redundancy and redeployment regardless of the right to be consulted under an award or enterprise agreement. Affording empathy to employees who are adversely affected by redundancies goes a long way in minimising the risk of claims.

AWPTI With all areas of workplace investigations, training and HR support that are essential when dismissing employees.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

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The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 0409 078 322 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

The importance of position descriptions

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It is important for employers and employees to be very clear as to what are the relevant position descriptions and responsibilities for the employee’s job.

A couple of recent cases before the FWC have highlighted the need for employers to ensure that position descriptions accurately reflect the role and responsibilities of employees especially those who are paid over the high income threshold.

In the recent matter of Mitchell Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495 before the Fair Work Commission, Mr Graham’s employment was terminated on 25 November 2015 and on 8 December 2015 he filed an unfair dismissal remedy application.  

On 24 December 2015, Globus filed its Employer Response claiming that Mr Graham’s salary exceeded the high income threshold and that he was not covered by an industrial award or agreement. There was no dispute between the parties that Mr Graham’s annual rate of earnings was above the high income threshold.

In determining the jurisdictional objection argued by Globus, the Senior Deputy President was required to determine if Mr Graham’s employment was covered by an award, which would establish Mr Graham as a person protected from unfair dismissal. Mr Graham asserted he was covered by the Commercial Sales Award 2010 (Award) as a “Commercial Traveller.”

At the hearing in the first instance Senior Deputy President Drake was satisfied on the evidence before her that Mr Graham spent a considerable amount of time away from the Globus office for a multitude of reasons including training, selling, and preparation of surgical equipment and provision of technical support. That evidence is consistent with Mr Graham’s job description.

However, Senior Deputy President Drake was satisfied that Mr Graham’s duties largely concerned the marketing and/or sales of Globus products an explicit or implicit requirement by the enterprise for an employee to give precedence to a particular task does not necessarily change the principal purpose for which that employee is engaged.

After having considered the evidence Senior Deputy President Drake was satisfied that Mr Graham was principally employed in a managerial capacity and therefore that he was not covered by the Commercial Sales Award 2010 when employed by Globus.

Mr Martin sought permission to appeal this decision; permission was refused on 2 September 2016.

A similar situation and outcome arose in Forkes v Amristar Solutions P/L [2016] FWC 5913

Lessons for employers, ensure you have clear and update position descriptions in place that set out the role and responsibility and where necessary unsure that employment contracts are consistent.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien, Principal of Australian Workplace Training and Investigation – www.awpti.com.au  is a highly experienced and skilled HR professional who can provide assistance with  drafting policies & procedures, position description and employment contracts, performance management and recruitment. www.awpti.com.au/hr-support/

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from a suitability qualified and experienced workplace investigator.

 

 

 

 

Question – summary dismissal do you have the grounds

Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal.

Employers should always think very carefully and thoroughly consider the options before making a decision to immediately or “summarily” dismiss an employee. For summary dismissal to be lawful there must have been a breach by the employee of either an express or implied term of the contract of employment that is serious enough to necessitate an employer to undertake an action of summary dismissal.

 

I recommend before summary dismissal action is taken employers do the following:

  • Investigate the matter carefully to ensure that you have enough information and evidence upon which to make your decision. If the presence of the subject employee in the workplace causes concern consider suspending them until the conclusion of the investigation.
  • Review the employee’s record. Does this person have a long history with the company? Is this person a first or repeat offender? These are matters that could be taken into account.

Summary dismissal of a long standing employee with a good or unblemished record can be problematic.
Your options should be carefully considered

  • Review your options. Would dismissal with notice be a better option? What are other options – demotion, counselling or training?
  • Don’t allow the fact that you may save some money by summarily dismissing an employee to affect your judgement. This course of action could be more costly in the long run.
  • Resist the temptation to ‘make an example’ of instances of employee negligence with summary dismissal. It is always best to ensure that disciplinary action is fair and thorough and that the outcome is proportionate to the conduct that has occurred.

 

Here are some cases that highlight differing views of summary dismissal:

In Bruce v AWB Ltd [2000] FCA, the Federal Court of Australia stated that mere misconduct is not considered as sufficient grounds to warrant immediate dismissal. For a summary dismissal to be lawful the employee’s conduct must be judged serious enough that summary dismissal is the only option.

In Concut Pty Ltd v Worrell [2000] HCA 64, Kirby J stated that it is “only in exceptional circumstances” that an employer is entitled to dismiss an employee summarily. His Honour went on to state that generally, acts of dishonesty of similar conduct that destroys the mutual trust between the employer and employee fall within the class of conduct which would allow a lawful summary dismissal.

In Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044 (Smith), the FWC ruled that swearing at a managing director during a heated phone call was not sufficient cause for summary dismissal. The FWC ruled that the conduct was not ‘sufficiently insubordinate’ for him to be dismissed because the conversation was not overheard by other employees, meaning it had not undermined the managing director’s authority in the workplace.

 

On the other hand:

In John Pinawin t/a RoseVi Hair Face.Body v Edwin Domingo [2012] FWAFB 1359 the Full Bench accepted that the summary dismissal of a hairdresser whose work performance was adversely affected by his drug use was fair, but warned the same conclusion would not necessarily be reached in all cases of out-of-hours misconduct – an issue on which the Full Bench made some interesting observations that pertain to all employers.

In Lloyd & Co Pty Ltd v Shuttle ([2016] FWCFB 144) the employee had sent a series of emails to other staff members that were highly critical and disparaging of the managing director.

The Commission ruled that the managing director’s feelings of betrayal as a result of the employee’s personal hostility and disloyalty were reasonably held. The managing director had direct evidence of disloyalty in the form of the emails

As you can see summary dismissal is not cut and dry, I recommend careful and expert investigation of misconduct incidents that could result in summary dismissal.

The peace of mind of getting it right outweighs the cost of an expert investigation.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from a suitably qualified and experienced workplace investigator

 

Why do managers get complaints and what can be done to minimise the risk?

What is Reasonable Management Action, why do managers get complaints, as a manager or employer you can run the risk of having complaints made against you by virtue of your position and the decisions you make involving employees on a daily basis. As a HR professional you may have to deal with these complaints

The quarterly reports (2015 – 2016) for anti-bullying order applications made at the Fair Work Commission showed the following based on information provided by the applicant in the application;

Applications based on complaints of unreasonable behaviour by a manager or group of managers often as a result of Reasonable Management Action

January to March 2016 – 65% of total applications
October to December 2015 – 65% of total applications
July to September 2015 – 75% of total applications
April to June 2015 – 72% of total applications

Full details of the reports are here – https://www.fwc.gov.au/about-us/reports-publications/quarterly-reports

 

Why is this so?

In my experience having investigated 100s of workplace complaints I have found that complaints against managers usually fall into three categories

  1. What the manager did
  2. How the manager did it
  3. What the manager didn’t do

 

Sounds very broad let me narrow it down.

 

  • What the manager did.

Managers make decisions and take actions that affect employees on a daily basis. Often decisions and actions the most common of which is providing feedback that is not positive and/or conducting performance management result in complaints of bullying or harassment.

 

The Fair Work Act s789FD (2) tell us;

Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.

This exclusion is comprised of three elements:

  • The behaviour must be management action
  • It must be reasonable for the management action to be taken, and
  • The management action must be carried out in a manner that is reasonable.

 

The challenge for managers is to ensure that their actions fulfill the three point criteria.

Be warned – If bullying and/or harassment is occurring you cannot call it a management action.

Assuming that bullying has not occurred and the complaint has resulted following some form of performance management when I investigate these types of matters I look at,

  • Is the action able to be justified?
  • Was the action warranted?
  • What was the reason or cause for the action to be taken in the first place?
  • Was the action carried out in a fair and reasonable manner?

 

I recommend that all managers, employers and HR professionals have a sound understanding of what is and what is not reasonable management action and how to implement management action in a reasonable manner.

  1. How the manager did it.

In many cases managers fulfil the what part of the criteria but fall down on the how.

Many managers do not like providing adverse feedback and/or conducting performance management meetings and as result it is conducted poorly and in many cases leads to a complaint.

Having a sound understanding of how to conduct performance management meetings and the associated process is essential.  Being aware of the concepts of procedural fairness and unfair dismissal is equally as essential and can save a lot of money in the long run.

      3. What the manager didn’t do.

Managers are often the first port of call for someone making a complaint; in addition they may be the person that becomes aware of employee misconduct.

It is important that managers deal with misconduct and/or receive the complaints in a proper manner and take some sort of action.

It is also important that managers deal with misconduct and/or handle complaints in a proper, timely and professional manner as the outcome may result in the termination of an employee.

When the termination of an employee is a possibility it is essential that correct procedure is followed, failing to do so can lead to the potentially costly legal action by that employee.

It must be noted that taking no action when a problem is apparent or a complaint is made can also lead to potentially high cost legal action involving claims of negligence and a breach of the duty of care to the employee/s involved.

Reasonable Management Action – What can you do?

To address these issues I have developed a training program for managers, employers and HR professionals called “Management Essentials”  http://awpti.com.au/backup/training/

It is a full day program that consists of;

  • Understanding reasonable management action
  • Performance management to avoid complaints.
  • Dealing with misconduct and complaint handling

Having effective training in place in these critical areas is essential and a means of ensuring you have taken all reasonable steps to satisfy your duty of care to both managers and employees.

If you are a manager who wants to understand these concepts and minimise to the risk of having complaints made against you or if you are a HR professional that wants to train your managers and also minimise to the risk of complaints against your organisation please contact me for more details or check out our workplace training page.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator.