IR Update May 2014

You must be consistent when disciplining employees

When disciplining an employee for misconduct or inappropriate workplace behaviour, you need to make sure that you treat all employees the same, regardless of years of service or performance. It is important to look at other disciplinary action taken by the business and apply the same disciplinary action for the same offence. For example, if one employee has been given a warning, the other employee who has committed the same or very similar misconduct must also be given a warning.

You must be consistent, if you fail to treat your employees the same it is likely to be considered unfavourably by the Fair Work Commission (FWC) in an unfair dismissal proceeding. The question may be asked, ‘why was one employee afforded an opportunity to improve their behaviour, while another employee was dismissed?’.

This is reflected in a recent decision by the New South Wales Industrial Relations Commission.

In Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of the applicant) and Department of Attorney General and Justice (2014), an employee was accused of inappropriate conduct at a work related social function. However, his manager was also seen to engage in the same inappropriate conduct. The employee was dismissed for his conduct and the manager was merely demoted.

The commission agreed that the employee had engaged in inappropriate, unacceptable and unprofessional conduct. The punishment dealt out to him was harsh compared with the treatment given to his colleague. As a consequence, the commission ordered the employee be reinstated to his position, with strict conditions about his conduct.

Source: Workplace Bulletin, Jessica Oldfield, 12 May 2014

Conflict resolution – a well kept secret?

Conflict between parties in the workplace can be difficult without the added issues that can arise through resolution processes. You may have to have that difficult conversation, but it can be done in a way that doesn’t offend people or cause further conflict. Avoid escalating the conflict further by being aware of the following common conflict resolution mistakes:

1. Acting without the facts:

• Getting the facts is crucial to the success of the conflict resolution process.
• Find out what was said – what words were used, the tone and the language?
• Why was one employee upset or offended about what another employee said or did?
• You need to be like a detective and get to the bottom of what is really going on. You need to cut through the innuendo and reserve any judgement which can occur when emotions get high.

2. Taking the situation at face value:

• Generally, it is not this particular incident that is the issue – it may simply be the straw that broke the camel’s back. In these cases, by the time it comes to a head, there’s a lot of history.
• Although other issues may be raised that may be bigger than the ‘final straw’ incident, you must focus on the details of that situation in order to keep conversations on track towards resolution. Don’t let yourself be distracted or sidelined by other issues or personal attacks.

3. Failing to actually listen:

• When you finally find out about an employee conflict, the emotional temperature may be at an all-time high. You need to let them know that you understand they are upset and acknowledge what happened.
• Then listen to what they say. When they are finished, you can respond, however you need to remove all judgement and misunderstandings by being very specific, for example:
  Fred has an issue because the other day when you said XXX – it made him feel angry, upset or offended – and the reason he felt that way was because of…’.
• Then listen again, until they’ve said what they need to say. Now is the time to bring it back on track by talking about what you would like them to do and suggest how you would like them to handle it in future – encourage their input so they are involved in the solution.

IR Update Issue 10 – May 2014

Termination Payments

Before you make a payment to a departing employee, it is important that you ensure you are paying the correct entitlements. Ask yourself the following six questions to make sure you don’t miss anything:

1. Will the employee be working out their notice or receiving payment in lieu of notice?

2. Is the employee entitled to severance pay e.g. redundancy, retrenchment?

3. What are the employee’s annual leave and/or long service leave entitlements?

4. Are there any other payments payable to the employee as per their contract of employment, enterprise agreement or Modern Award?

5. What is the tax payable?

6. What tax exemptions apply for severance pay?
It is important to check your figures and, if need be, get your accountant or financial adviser to check the figures. Simple mispayments of termination entitlements could land you in hot water with the Fair Work Commission, and no employer wants that attention if it can be avoided.

Source: Workplace Bulletin, Jessica Oldfield, 17 March 2014

More changes to Fair Work Act? – Not Yet

At a workshop on Wednesday 9 April, regarding the Fair Work Act under the coalition, Minister for Employment, Hon Eric Abetz provided industry representatives in attendance with the coalition’s outlook for the future of the Fair Work Act and National Employment Standards (NES).

Representatives from Brismark were present to hear firsthand what businesses can expect during the coalition’s term in office. Hon Eric Abetz, indicated that the coalition will not be making any changes, beyond the ones indicated prior to the election, during this term in office. A majority of these changes were already identified by the previous labor government and are being followed through by the coalition government. (For more information regarding the implementation of these changes, refer to IR Update – Issue 05 & 08)

However, the minister did indicate that they are undertaking a productivity review of the Fair Work Act and National Employment Standards. Unfortunately, he also indicated that any recommendations arising from the review would not be implemented until the next term.

A couple of items highlighted via industry representatives, which were of particular interest to Brismark as representatives of small/medium business, included:

• Increasing the small business employee threshold from 15 to 49 – as that is a fairer representation of small business
• Industry feels the current legislation is more on the side of the employee then the employer – that this balance needs to be assessed and more fairly distributed

IR Update Issue 10 – May 2014

Don’t get tripped up by the new ‘roster’ laws

1 January saw a number of changes with the Fair Work Act 2009 (Cth) and all Modern Awards. One of the changes related to the changing of regular rosters or ordinary hours of work. A ‘regular roster’ refers to a regular and systematic work arrangement i.e. set days or hours etc.

It is now a requirement for the employer to consult with employees before changing their hours. Below are some key points you will need to consider:

• All employees must be consulted prior to a change (full-time, part-time and casual if they have a regular roster)
• Check that any other terms in awards or employment contracts do not restrict or conflict with the changes you are proposing
• Give the employee information about the proposed change
• Ask the employee for feedback ie impact it may have, family responsibilities etc (employer must consider these views)

At present these rules do not govern enterprise agreements, but similar regulations may apply, so it is important to check any relevant industrial instruments.

Source: HC Online, Cameron Edmond, 26 February 2014

HR Update 14/11

Insufficient sleep can create a significant problem at work. If you believe eight hours of sleep per night is necessary, then you may be surprised to learn that 60 to 70 percent of people are not getting enough.

Studies completed in both the US and Australia found lack of sleep was significantly associated with lost work performance due to ‘presenteeism’ (unlike absenteeism you are present at work physically but maybe not mentally). The Australian study conducted in 2011 estimated that ‘lack of sleep’ was costing billions annually in healthcare, lost productivity and costs associated both directly and indirectly with workplace accidents.

Insufficient sleep is also associated with a number of health conditions including diabetes, cardiovascular disease and mental health issues and these have an impact on workplace performance. In addition, ‘shift work’ compounds the problems for those with poor sleeping patterns.

Businesses can provide support to their employees through educational programs about fatigue management and the promotion of good sleep habits as part of your workplace health and wellness program. Given the significant impact of sleep disorders on performance, regular screening programs to identify those at risk of problems such as sleep apnoea, restless legs syndrome and narcolepsy can be worthwhile. Employees at high risk can then be referred for evaluation or treatment to limit the impact on their performance, health and safety.

For more information of workplace health and wellbeing programs and to source information to assist refer to https://workplacesforwellness.qld.gov.au/ or contact Lisa Dwyer on 3915 4213.

Source: HR Monthly, Janine Mace, May 2014

HR Update 14/11

Have you ever had a worker claim for workers compensation but you suspect that the claim may not be legitimate?

Don’t worry you are not alone. Worker’s compensation fraud is when a person dishonestly obtains payment or other benefits under worker’s compensation legislation. Usually, the claim will be rejected because the insurer will determine that either the injury was not work related or the worker is no longer incapacitated and they are fit for work.

However, On some occasions, the insurer may not get it right and the worker will receive payments even though you believe that one of the above scenarios applies. It is very frustrating for an employer to convince the insurer that the claim is fraudulent.

If you don’t get the outcome you want from the insurer, you can invest time and resources into undertaking an internal investigation with the aim of disproving the claim. While this may be costly and time consuming, it can make a big difference in the long run by avoiding increased premiums and improving morale amongst your workforce. If you have suspicions then your employees probably do too.

Case study

A worker lodged a claim for compensation for a genuine back injury sustained in May 2008 while working as a scaffolder. An investigation by the safety regulator in 2011 established that he had failed to disclose he was working as an electrical trade assistant while receiving weekly compensation payments for a period of two years. He was convicted and sentenced to 9 months imprisonment (suspended) and ordered to pay restitution of over $50 000 in legal costs.

HR tips

As an employer you should always be aware of the potential for fraudulent claims and provide as much information to the insurer. However, if you disagree with the insurer’s decision, you should undertake you own investigation by:

1. Gathering and analysing documentary evidence. What was written on the workers compensation certificate? What was recorded on the Accident/Incident report?

2. Conducting surveillance of the worker. Engage a professional to ensure there are no accusations of stalking etc.

3. Collecting statements from witnesses. Staff may have overhead statements made by the worker? The worker may have made a comment about the claim?

4. Conducting interviews with the parties involved in the alleged incident. What did they actually see? Were they eyewitnesses to the incident or just saw it after the fact?

Source: Health & Safety Bulletin, Joanna Weekes, 8 May 2014

HR Update 14/10

Results are in – Fair Work Commission bullying statistics for January 2014

In the lead up to the rollout of the new powers for the Fair Work Commission (FWC) to stop bullying at work (1 January 2014), many businesses and professionals feared the FWC would be bombarded with submissions. In addition, it was thought these submissions would have little or no basis in truth, employers would be wrongfully accused and it would cost time and money for the FWC.

The first round of statistics has been revealed and so far it doesn’t look like the predictions have happened yet. A total of 44 applications were received in January, six were withdrawn and 100 per cent of matters commenced within the 14 day period. However, these figures do not necessarily predict the ongoing trend, as there are a number of other factors to consider:

• slow months: January and February usually have a lower number of lodgements with FWC
• reduced pool: the State government employees and defence personnel are not covered by these new laws and are not reflected in the results
• damages are not awarded: the FWC cannot award damages for these claims, therefore the motivation to make claims (especially unfounded ones) are greatly reduced
• the goal: the laws exist to stop bullying in the workplace, therefore the complainants must be currently employed and want the bullying to stop.

This doesn’t diminish the need for all businesses to ensure they have an effective workplace bullying policy in place and effective training in regards to the policy.

Source: HC Online, Cameron Edmond, 11 February 2014

FWC bullying laws tested

It was initially thought by human resource professionals and made clear by the FWC that the new anti-bullying provisions were not designed to be applied retrospectively. However, in a recent application made on 9 January this year, they ruled it appropriate to consider past behaviour, if there was a risk the employee would continue to be bullied at work.

The applicant alleged that they were subjected to workplace bullying behaviour from November 2007 to May 2013 and have been on extended leave after this date. In this case the FWC allowed the applicant to make a submission on past conduct and behaviour as they feared the bullying behaviour would continue once they returned to work. As a result, the FWC reviewed the past occurrences of bullying conduct and decided that there was a risk of ongoing or prospective future bullying and made an order to ‘stop the bullying’.

The above case demonstrates the uncertainly of these new rules and how they will be applied in the future, however as more applications and cases are reviewed, it will provide us with a better understanding of the laws, how they work and the impact they will have on businesses.

Source: HCA, 19 March 2014