WORKPLACE ISSUES 1

INTRODUCTION

While workplace culture is a subject on its own and no workplace is perfect. The development of a good workplace culture can assist in reducing and managing workplace issues before they arise as well as working towards a satisfactory resolution.

Experience shows the application of very important actions to address workplace issues.

which can affect small businesses. So while the focus in this paper is with small business, the principles have relevance to larger businesses. In fact, greater relevance if for no other reason than these larger businesses having greater resources, capacity, to deal with workplace issues in a properly structured manner (as well as for small businesses).

Each entity, establishment, enterprise, industry and sector will experience a variety of incidents and issues. Whether they be incorrect payments or incorrect employment status, disgruntled employees, or WHS matters. All issues create angst from the parties concerned. Workplace bullying continues to be a prominent feature encapsulating forms of bullying: whether it be psychological or physical. Issues concerning discrimination in the workplace and as identified in s. 772 of the Fair Work Act, are another area of concern. Dealing with people raises a whole range of matters and issues.

So how does one approach workplace issues? Obviously there are a wide range of experts and views across our community which can provide enormous insight and advice. However, each issue will have its own characteristics, its own people, its own precedent, its own way of dealing with workplace issues. However, some fundamental aspects remain constant and should have application. The following attempts to identify with some of the approaches that require application.

Perhaps commencing with the initial employment of persons: induction, familiarisation of and with the organisation, its structure and operations. Company expectations including awareness, access, periodical reminders, training, provide measures at the commencement of employment from which to progress add to this  initial stage of employment. The fundamental concepts of communication and consultation go a long way to establishing a good workplace culture. The concepts of respect and common sense play additional important roles.

On the matter of termination, whether it be resignation, constructive dismissal, dismissal for serious and wilful misconduct, are all matters that require serious consideration. The Small Business Unfair Dismissal Code can play a significant role in assisting small businesses to appreciate and understand respective obligations and processes.

ISSUES and INDUSTRY SECTORS

A myriad of workplace issues occur in the workplace, from absenteeism due to a variety of reasons such as seeking to attend the cremation of a dog (true!!) to breaches of employment contracts and enterprise agreements on the use of mobile phones; improper wearing of company uniforms; drug and alcohol issues; smoking on the job; failure to follow lawful instructions; bullying and discrimination; failure to produce a medical certificate. These types of individual issues can extend to wider matters such as poor performance according to the respective business; non-completion of a training programme as well as failure to follow company policies and procedures. The list goes on. Issues regarding termination of employment, ranging from genuine redundancy to misconduct including serious misconduct as well as constructive dismissal approaches. The fundamental issue of workplace health and safety then translates into the duty of care – whether it be the employee or the employer.

The failure to comply and employee’s contract of employment as well as not complying with the relevant modern award; relevant enterprise agreement (should one be operation) are other matters that can translate into workplace issues. Failure to comply with legislative requirements can also lead to significant problems. Wage theft, having been progressed across a wide range of organisations including small, medium and large business, has finally seen legislation emerging to deal with this abhorrent practice including workplace slavery.

Workplace rights require important acceptance and consideration together with a practical dealing of industrial action  attract different ways and means of seeking to resolve such developments.

Again, the above is a small sample of workplace issues which can emerge. The list goes on. Whether it be in a coal mine or other mining operations, in the retail, hospitality sectors of our community, the medical profession and academia would see issues relating specifically or similarly to such sectors, occur. The manufacturing industry, transport and security industry also have their unique and special circumstances dealing with applying procedures to their uniqueness and notwithstanding the aviation industry. As well as the building and construction industry and related/connected sectors which have their peculiarities as well.

Clerical and administrative sectors of industry which broadens to broadcasting, banking, Broadcasting; agriculture – you name it, each sector, each business, each person, will have workplace issues affecting them at any point in time.

Where the workplace is based at head office or close to head office versus outside locations such a  building sites, isolate  and/or distant locations such as mining/ shearing.

APPROACHING WORKPLACE ISSUES

So how are workplace issues dealt with? Applying the principles set out in s. 387 of the FW Act dealing with whether a dismissal was harsh, etc, the principles which are expanded upon below. These, in summary, include:

·         confirm the person of the issue/grievance raised;

·         provide the person with an opportunity to provide reasons regarding the issue;

·         remind and provide the person with an opportunity to have a support person with them;

·         in relation to unsatisfactory performance, had the person been informed regarding this;

·         if a termination of employment is involved, was a valid reason provide and whether the person was provided with that reason;

·         a show cause letter to be provided to person;

·         maintain accurate minutes of all associated meetings;

Addressing an issue, this may involve an investigation. Accordingly, subject to the nature of the issue, an investigation would include the following elements:

·         first question: is an investigation necessary

·         any compliant, however, should be investigated

·         preparing for an investigation, would include the following:

-          identify investigator and their role (scope of the investigation established)

-          identify decision-maker

-          establish a timeline for the investigation

-          review alleged conduct or issue

-          identify relevant witnesses

-          identify other relevant information e.g., company policies; industrial instruments; CCTV footage; swipe cards;

-          ensure work environment is safe while investigation is proceeding – subject to nature of conduct/issue

-          maintain detailed record of interviews including confirmation of matters discussed

-          ensure that procedural fairness is applied which would include person’s entitlement to a support person

-          entitlement of person to raise points relating to the issue/conduct

-          ensure confidentiality of interviews

-          seek clarification of information

-          explain interview processes

-          maintain neutral and unbiased position

-          summarise findings

-          set out recommendations

-          provide opportunity to person to provide a ‘show cause’ letter in relation to nature of conduct/issue.

CONSIDERATIONS

In the case of undertaking a response to an issue or a grievance

The importance of the application of a probationary period of employment can be underestimated. The employment process commencing with the induction process whereby the new employee is informed about matters such as:

·                their job; their department; their employer

·                information about their job

·                company policies and procedures – on-going access

·                industrial instruments – access and availability

·                site security

·                company environment – e.g., hazardous materials; waste

·                health and safety and WHS standards

·                duties and responsibilities including obligations to follow lawful and safe instructions

The probationary period should be established in the employee’s contract of employment. In ensuring the employee’s understanding of this period of employment, including the basis of such a provision – for either party to assess their suitability to the other – the employer should:

·         conduct monthly reviews of the employee’s performance;

·         record any warnings or counselling process during the course of the probationary period;

·         end of probationary period review report

·         letter of successful probationary period;

·         letter of unsuccessful probationary period.

Tools of trade:

·         company uniforms;

·         company vehicles – employees’ contract of employment; enterprise agreement contents/provisions;

·         mobile phone use during working hours;

·         workplace bullying;

·         discrimination;

·         Drug & alcohol; etc.

Follow lawful instructions

Perform inherent requirement of the employee’s role

Procedural fairness; natural justice.

Relevance of previous warnings

Regular consultations with all employees as well as individual employees

Regular communication with all employees as well as individual employees

Regular updates and reminders regarding Company policies and procedures

Termination of employment – genuine redundancy; misconduct; serious misconduct

Correct payments – follow policies and procedures

Documentation provided to employee(s) – recording of such issues. Monitoring of meetings; conduct; performance

Apply consistency between management and staff.

Duty of care – both parties

Health and safety issues – including implementation of proper safety standards and recording mechanisms

Examples of behaviour: punctuality; use of company vehicles; mobile phones; company equipment; meal breaks – adherence: refer to enterprise agreement; employment contract; policies and procedures.

Employers have a duty to take reasonable and proportionate measures to eliminate as far as possible areas; situations; etc that may attract opportunities for on-going poor actions;

Maintaining high standards  of behaviour – Company expectations

Probations – regular meetings; reporting and assessment notices.

How many warnings – conduct – serious : deal with matter in professional speedy manner.

Follow basic procedures  and utilise appropriate written instructions and forms: right to reply; right to support person.

Conduct occurring on an ongoing basis

person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

Irrelevant whether conduct was unwelcomed, offensive; humiliating; intimidating

Common sense application; maturity of people involved.

Respect.

Respect = common sense.

Terms of EA – e.g., use of mobile phones; employment contracts

Failure to maintain a respectful and appropriate communication style with respect to work colleagues and others

Deviousness of Individuals – finding ways to avoid or limit involvement/admission of questions and/or actions put to them or undertaken by them. Failure to maintain a respectful and appropriate communication style with respect to workplace and other involved in the workplace, including customers. Company reputation affected.

Comments made by respective employee(s)

Different types of workplace but need to not allow such actions to continue - #bad workplace culture – change mechanisms; #no or little respect  - change; # poor management – change management; # power position of individuals/groups/sections – change (e.g., through training; managerial action/directives; consultation – communication. (e.g., bulling; harassment)

Apply consistent approach – regular pattern of behaviour – e.g., disparaging and/or offensive conduct/behaviour; warnings, reminders, of application of respective policies/procedures and effects of failure to comply. Failure to comply with instructions; warnings; policies;

Precedent: create a poor workplace culture when past events/actions and result in poor outcome and/or no changes/improvements in said even. How to respond to past events – change circumstances.

Matter of precedent – be sure that any past events have been updated

Involvement of management and staff on respective actions – what are the circumstances and levels of involvement and what are the effects and actions resulting from such involvement. Previous actions never actioned by management – therefore, we do it now!!

Compliance with legislative obligations.

Disclaimer: Richard Krajewski’s articles are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.