AHIG Newsletter April 2016(Final)small

April 2016Member BulletinNo more funny business: the role of humour in the workplace What is the best way to strengthen your workplace culture? Two magic words that will motivate your staff austhig.net.au

Contents April 2016 Article of the month Australian Health 3 Industry Group No more funny business: theThe Australian Health Industry place of humour in the workplaceGroup is an independentmanagement and consulting POLICY AND RESEARCH MATTERSgroup. We use our industryexpertise, intellectual rigour 9 10and strength to assist our The two magic Why learning Australian Government PPL to beclients with solving complexbusiness problems and to deliver words that a new sport is health sector included in income supportpragmatic outcomes that matter. motivate staff good for the remains under payment testOur team of leading thinkersand specialists provide 11the most brain 12ACCC spotlightindependent analysis and adviceto businesses in the health, in 2016welfare, disability and community Federal Government’s Strong trend New resources to improvehealth sectors. We provide government superannuation growth in worker wellbeing andinnovative solutions focused on and Labour choice Bill employment behaviourthe operational performance ofour clients. introduce new 14Our team, comprised of work-related Why sexual harassment byindividuals with skills in health, customers goes unreportedfinance, law, operations, people Billsmanagement, technology andstrategic thinking, includes: 13 Training is the best• Legal practitioners way to strengthen experienced in workplace workplace culture law, OH&S and industrial relations PROFESSIONAL ISSUES• Human resources and work 15 16 17 Tribunal reprimands health safety specialists. 12 months Psychologist’s Rehabilitation House call Tribunal medical• Recruitment consultants of conditions unprofessional of anaesthetist professional reprimands specialising in executive and doctor for failure practitionerconditions clinical appointments imposed for conduct for who consumed misconduct to report sexual• Education and training professional driving-related alcohol, consultants misconduct, misconduct offences cannabis and• Business management imposes consultants 18 19cocaine conditionsPage 1 Tribunal Transgressing reprimands and professional removes dentist boundaries leads from register to reprimand and conditions EMPLOYMENT MATTERS 20 21 22 Fair Work Flimsy evidence Casino Employer fined Christmas cheer Commission for employee worker’s $85,000 for no excuse for praises dismissal adverse action ‘inexcusable’ an involuntary employer’s claim dismissed underpayments pool party ‘commendable’ approach to firing tardy employee 23 More pain Director fined for spider bite $100,000 for ‘heartless’ victim treatment of employees

Welcome Australian Health Industry GroupJokes and humour in the workplace can be a positive force. Unfortunatelysometimes these can go awry. This month’s feature article looks at a recent case PO Box 916in the Fair Work Commission which highlights the difficulties that can arise when Moonee Ponds, VIC 3039humour is used inappropriately. Phone: (03) 9280 8061Our Policy & Research section includes articles on the two magic words that Fax: 1300 731 171motivate staff the most and we’ve included our regular review of cases and Email: [email protected] that cover the areas of employment, discrimination and work health and Web: www.austhig.net.ausafety. Our partnersEnjoy your reading and please don’t forget to give us feedback. We love hearingabout what you enjoy and what you would like to read about in future. The AHIG partners are listed below. Click their logos to visitWhat AHIG is doing their websites and find out more about what they can do for youAHIG’s team is growing! We’ve recently welcomed Jim Babalis, Lawyer and HelenRobinett to our team.Jim is a lawyer with a diverse legal background and has practices inworkcover, OH&S, insurance and litigation. He will be a very strongaddition to our HR and OH&S practice. In his spare time he enjoysspending time with his family and friends as well as watching movies.Helen has extensive experience in business development, leadershipcoaching and mentoring. She is a passionate member of thecommunity and chairs the board of TRY Australia and is a Director ofBorderline Personality Disorder Community. When she is not workingshe loves being in nature and hanging out with family and friends.Our training team is busy delivering short courses across Australia.April and May see us in New South Wales, Western Australia, Victoria, SouthAustralia, Tasmania and Queensland. Check out our courses at www.austhig.net.au/training.HEALTH AND SAFETY MATTERS25 26 27 DisclaimerEmployee Maximum Psychological Back condition Please note that the AHIGreinstated due compensation injury not caused Bulletin is intended to provideto inconsistent for bullied compensable sadness but not general information only andtreatment of worker forced depression does not constitute legal advice.safety breaches to resign AHIG does not accept anyDISCRIMINATION MATTERS responsibility for loss or damage of any kind arising from reliance28 MaximumFailure to on articles appearing in the compensation ‘Bulletin’. Clients should alwaysappoint seek advice from AHIG relevantlifeguard not for bullied to their specific circumstances.discriminatory worker forced to resign Page 2

No more funny business: the role of humour in workplace This month we look at a recent case involving two aspects of workplace behaviour: jokes and humour, and the ensuing language that sometimes occurs. Humour in the workplace can make the day go by faster and strengthen co-worker relationships. It can be a positive force if it’s used to entertain, provide optimism in the face of adversity or relieve tension, however if humour comes from a place of ridicule or malicious intent, it can quickly become hurtful and damaging, as this case proves. Research and experience teach us that humour and laughter can be a ‘duel-edged sword’ with a variety of effects: • laughter has been shown to help reduce stress and encourage social interaction • humour helps connect us, but it can also alienate those who are the butt of the joke • humour can create hostility and resentment among co-workers or employees and affects the communication dynamic of the workplace • humour, when used in appropriate situations, makes the workplace less stressful, but while you may think your co-workers understand your humour, jokes can still be taken as off-putting or rude.Page 3

A simple tip when deciding to engagein humour as a workplace practice isto play it safe and make fun only ofyourself. When you poke fun at yourself, peopleappreciate the humility, and you’re guaranteed not tooffend the target of your remarks.The second feature of our article this month looks atwhether the language we and our co-workers adoptcould be offensive to others. The prevailing viewfrom the courts on this normally involves a subjectiveassessment of the sensitivity of the person who hasheard the comments and the context in which thecomments were delivered.We are not merely talking about profanity. There willbe individuals or groups in any workplace who willfind specific words or groups of words and phrasesoffensive. You only need to consider the use of slangor derogatory terms or words used to discriminateagainst an individual on the grounds of sex, race,disability, sexual orientation, age or religion asexamples.The importance of building a positive and rewardingworkplace, where individuals can interact and enjoytheir work, requires the management team to ensurethat staff are not exposed to language that may bedeemed offensive or inappropriate in the workplace.This is often the challenge for employers andmanagers: what is offensive, as opposed tomere mirth or high jinks? This is not always astraightforward task and can be difficult for managersto supervise and enforce as it involves a degree of‘bystander’ empowerment to ‘call out’ or report badbehaviour where it occurs.It is not uncommon for issues to arise wheresomething is said in jest, or where the individualusing the language does not realise or understandthe potential offence that could be caused from theparticular words being used. Page 4

This issue is sometimes made more difficult by the environment in which the employee works, where the use of banter may be considered a common and accepted part of the working environment. These factors were all discussed and considered in a recent decision of the Fair Work Commission which has helped to shed light on the use of offensive language in the workplace, and whether the use of such language can form a valid basis for an employee’s dismissal. In the case of Claus-Dieter Hengst v Town and Country Community Options Inc [2016] FWC 194, the Fair Work Commission upheld the dismissal of an employee who made what he apparently thought was a ‘joke’ referencing rape during a safety investigation. This case was also of particular interest because it arose in a circumstance where the employees involved used offensive language which, although not specifically directed at individuals involved personally, may still be deemed offensive to others who were not directly part of the conversation. The event Town & Country Community Options (TCCO), the employer, provides services to urban and rural communities on a not-for-profit basis for people with disabilities such as Down syndrome, cerebral palsy and intellectual disabilities. Mr Claus-Dieter Hengst was a Disability Support Worker and Workplace Health and Safety Advisor for TCCO. On 22 September 2015, Mr Hengst interviewed a co-worker, Mr Mears, in relation to a work health and safety issue. During the course of the interview Mr Hengst and Mr Mears discussed an incident that had occurred earlier that morning, whereby a kangaroo had collided with Mr Mears’ vehicle. Mr Hengst asked Mr Mears if he required any counselling as a result of the incident. Mr Mears responded in the negative, adding in a jovial tone: ‘I wasn’t overly concerned for the kangaroo. It’s not like I knew him personally’. Mr Hengst, taking Mr Mears’ comment as an invitation to engage in banter, responded with the following comment:Page 5

‘So you’re ok then? You’re not going to lose the plot The document included a check list as to why the personand go home and rape your daughter or anything like filing the ‘Hurt Feelings Report’ had filed the report:that?’ ‘Reasons for filing this report. (Check box)Mr Hengst’s comment was overheard by a female co-worker, Ms Fazakerley, who was seated two metres 1. I am thin skinnedaway. Ms Fazakerley was shocked and appalled 2. I am a pussyby the comment, and in the FWC matter stated 3. I have woman hormonesthat she ‘sharply recoiled’ and said ‘Claus! That is 4. I am a queennot appropriate!’ a response Mr Hengst could not 5. I am a little bitchremember when asked in the FWC matter. […]On 23 September 2015, Ms Fazakerley confronted Name of ‘Real Man’ who hurt your sensitive little feelings:Mr Hengst regarding his comment. Mr Hengst ______________’responded that he’d ‘learnt from the experienceand it would not happen again’, although he did not In the case it was disputed whether or not Mr Hengst hadprovide a formal apology. in fact given this to Ms Fazakerley or whether she had observed it ‘by other means’, but the impact was ratherMr Hengst also stated to Ms Fazakerley words to the obvious.effect of ‘How else can I learn if you do not tell meabout these things?’ Despite the fact that Mr Mears, the person whom the joke was originally directed at, expressed an opinion that heMs Fazakerley later spoke with TCCO’s Chief was not offended the employer, after an initial discussionExecutive Officer and reported the incident. This was with Mr Hengst, implemented a formal process to addressthe third complaint made against Mr Hengst by Ms the behaviour.Fazakerley who had previously lodged complaintsregarding: As a result of having received the complaint on 23 September 2015 a telephone call between the CEO and • an apron worn by Mr Hengst to a work Christmas Mr Hengst occurred on 25 September 2015 where Mr party which depicted a woman’s breasts Hengst was invited to attend a show cause meeting along with a support person. • his conduct in relation to a disabled service user with whom Mr Hengst maintained an ongoing During the course of this meeting Mr Hengst explained joke, so Ms Fazakerley had perceived it, about that his comment was intended to be ‘light-hearted’ but ‘patting her pussy’ for him (when she returned was in hindsight ‘totally out of order’. Later that same day home). Ms Fazakerley argued that the service Mr Hengst was terminated by TCCO. user was embarrassed by the exchange but participated nonetheless. Mr Hengst claims there In the termination letter provided to Mr Hengst, TCCO was no double entendre intended and that he explained that it considered Mr Hengst’s comments to knew the service user to have a cat be ‘completely inappropriate’ and without justification or excuse, particularly with respect to the following factors: • a ‘Hurt Feelings Report’ prepared by Mr Hengst which mocked the perceived sensitivities of office • Mr Hengst was a WHS Advisor whose role involved employees. providing support to vulnerable people with a disability, some of whom had been sexually abusedThe latter point needs to be included here to as children and adultsdemonstrate how the perceived humour of oneperson can be deeply offensive to others. In that • he made the comment while he was knowingly inincident Ms Fazakerley complained that a document close proximity to a female work colleague, andthat Mr Hengst had under his control, handed toMs Fazakerley, which lampooned office worker • his comments breached a number of TCCO policiessensitivities about ‘hurt feelings’ in the workplace including the TCCO Code of Behaviour and Duty ofwas inappropriate and he should ensure - for his own Care Policy.interests - that senior staff, such as Mr Munroe, notsee it.

Mr Hengst lodged an unfair dismissal claim with the Fair To deal with such issues we advise that, as a Work Commission. minimum, an employer should: The joke as the basis for termination • implement appropriate policies and procedures to deal with employee conduct in the workplace, Before the Fair Work Commission Mr Hengst sought to including accepted codes of behaviour argue that he ‘made an inadvertent slip of the tongue’ which was intended to be humorous and that he was not • train senior staff and management to deal aware Ms Fazakerley was within earshot. with issues concerning the use of offensive language in the workplace and ensuring that they However, it was found by Senior Deputy President Peter understand the relevant policies and procedures, Richards that Mr Hengst had intentionally engaged particularly any procedures dealing with in jocular banter with Mr Mears, knowing that it would complaints and grievances embarrass and upset Ms Fazakerley, who had previously expressed her sensitivities regarding his behaviour. • implement training for all employees on the policies and the subjective content of those SDP Richards also concluded that Mr Hengst was not policies such as diversity and equity, and genuinely remorseful for his actions as he had provided two contradictory explanations for his conduct. One • ensure appropriate investigation procedures are explanation was that he had deliberately sought to in place to address and investigate complaints engage in humorous banter, while the other explanation thoroughly and fairly. was that the comment was ‘accidental’ and that Mr Hengst was a ‘victim of circumstances’. These two explanations could not be reconciled and, as found by SDP Richards, indicated that Mr Hengst had not fully grasped the significance of his conduct. The Fair Work Commission dismissed Mr Hengst’s application finding that TCCO had valid reasons for terminating Mr Hengst’s employment. SDP Richards concluded that Mr Hengst’s conduct had severed the foundation of trust and confidence in the employment relationship, and that TCCO: ‘could not confidently rely on Mr Hengst’s judgment in future circumstances in relation to the nature of his exchanges with his work colleagues or those vulnerable persons who utilise the organisation’s services, and how and in what manner and tone Mr Hengst might represent the organisation and its values publicly’. As we indicated in our introduction this type of conduct can be a challenging area for employers. While employers can’t be expected to create a zone where there is never any prospect of offence they are responsible for providing a safe and appropriate working environment for their employees. This includes taking active steps to minimise the risk of genuinely offensive language being used in the workplace.Page 7

Privacy Resource KitThe AHIG Privacy Resource Kit has been created for theguidance of organisations and contains templates for your Members $550 inc GSTuse. $1,100 inc GSTIt draws together information from a number of resources Non-Membersand government agencies and includes:• Background to the Privacy Act• Impact and changes under the Amending Act• Australian Privacy Principals - overview• Complaints and possible breaches• Ensuring that your entity complies with the ActTemplates include:• Privacy gap analysis and checklist• Staff education needs analysis• Standard information collection statement, and moreNeed Staffing Solutions?Advance Careers is a specialist employment and HR servicescompany with expertise across a wide range of industriesand brings together best practice from across the globe. Page 8

POLICY AND Indeed, a study with mice found that when they were RESEARCH MATTERS introduced to a complicated type of running wheel (and had to learn a new, stutter-step type of running) The two magic words that their brains changed significantly. motivate staff the most In fact, learning to use these new wheels led to The two little words ‘thank you’ have a significant impact increased myelination of neurons in their motor on staff motivation, engagement and loyalty, according to cortexes. latest research. Neurological studies in people have also shown that A new report by Hays, Staff Engagement: Ideas for learning a new physical skill as an adult (such as action, found that 87% of employees would go above juggling) leads to increases in the volume of gray and beyond if they were made to feel valued by their matter in parts of the brain related to movement employer. control. Indeed, 95% of respondents said that recognition for a ‘We have a tendency to admire motor skills,’ said Dr. job well done is ‘very important’ or ‘important’ to them. John Krakauer, director of the Center for the Study of Motor Learning and Brain Repair at Johns Hopkins A further 62% of employees would look for another job University. if they did not feel valued, while over half of employers (52%) surveyed admitted that they can do better in the He told The New York Times that while we like area of staff recognition. watching athletes in action, most of us make little effort to hone our motor skills in adulthood, and very These results are backed up by a recent Gallup survey few of us try to expand them by learning a new sport. which found 82% of respondents said recognition The consequence is that we could be short-changing motivates them to improve their job performance. our brains. Moreover, Bersin & Associates has found that companies which scored in the top 20% for building a ‘recognition- He added that motor skills are as cognitively rich culture’ had 31% lower voluntary turnover rates. challenging in their way as traditional methods such as crossword puzzles or brain-training games. Why learning a new sport Not just that, you also get physically healthy in the is good for the brain process. When people think about what keeps the brain Australian health sector stimulated, things which might come to mind are sudoku, remains under ACCC reading poetry and learning a new language. spotlight in 2016 This is complex thinking commonly referred to as ‘higher- The Australian Competition and Consumer order’ cognition and results in activity within specific Commission (ACCC) recently released its areas of the brain. It also promotes plasticity (or physical enforcement priorities for 2016. Each year it changes) in those areas. nominates key areas of focus for the upcoming year. This can assist businesses to set their compliance However, latest research suggests that learning physical activities and identify risk areas to be pro-actively activities such as snowboarding or tennis can also addressed. change and strengthen the brain, particularly in midlife. The ACCC’s continuing focus on the The research concluded that running and other types medical and health sector of physical activities increase the number of new brain cells created in parts of the brain linked to thinking and The ACCC nominated the medical and health sector memory. as a continuing enforcement priority for 2016.Page 9

The Chairman indicated that the ACCC had a Government PPL to benumber of investigations currently underway in the included in income supportsector. He also flagged that the ACCC would soon payment testbe likely to take action against industry participantsin relation to disclosure practices that the ACCC Social security and veterans’ entitlements legislation isconsider fail to comply with the Australian Consumer to be amended to ensure that Commonwealth parentalLaw (ACL). These actions are likely to concern: leave payments under the Paid Parental Leave Act 2010 are included in the income test for Commonwealth • allegedly incomplete or inaccurate information income support payments. being provided by private health insurers and comparison website operators to customers or In the 2015–16 Mid-Year Economic and Fiscal Outlook, potential customers in relation to private health the government announced savings of $105.1m over insurance policies, and four years by including parental leave payments and dad and partner payments in the definition of income for • allegedly incomplete or inaccurate information Commonwealth income support payments (from 1 July being provided by hospitals to patients, such as 2016). out-of-pocket costs. This approach is consistent with the treatment ofThe ACCC first nominated the medical and health employer-provided parental leave payments as incomesector as an enforcement priority in 2015. It took for income support payments, and parental leave pay andseveral enforcement actions within the sector last dad and partner pay as income for family tax benefit andyear, including action against a private hospital taxation purposes.relating to agreements with its accredited doctorsand against suppliers of medications relating to The Social Services Legislation Amendment (Consistentpromotions and claims about their products. Treatment of Parental Leave Payments) Bill 2016 implements these changes. It also makes consequentialACCC’s other areas of focus amendments to the Paid Parental Leave Act to allow the Secretary to make deductions from a person’sA number of other areas will be focussed on during instalments of parental leave pay where their payment2016 including: could result in an overpayment of an income support payment. • Cartels - the Chairman noted that the ACCC has approximately 20 cartel investigations currently The amendments will commence on the first 1 January, 1 underway and expects to take its first one or two April, 1 July or 1 October that occurs after the day the Act criminal proceedings this year. This follows the receives Royal Assent. establishment, last year, of a group within the ACCC dedicated to investigating serous cartel Page 10 conduct including criminal cartel conduct. • Consumer issues affecting vulnerable and disadvantaged consumers, including the elderly and indigenous Australians - the ACCC will prioritise its activities to protect these groups of consumers. The Chairman noted that the ACCC is looking into potential issues relating to the sale of hearing aids and representations by a retirement village about the rights of their residents to choose a telecommunications service provider. It recently issued infringement notices to two retailers in relation to misleading claims about adjustable beds and mobility equipment.

Federal government and They do not capture inadvertent conduct, or even Labour introduce new intentional underpayments. This is reserved for the work-related Bills most serious behaviour which involves criminal coercion or threats. Individuals who contravene these Labour has introduced a new Bill to amend the Fair Work provisions may face fines in excess of $40,000, Act 2009 (Cth) (FW Act) aiming to expand the general imprisonment for two years or both’. protections provisions (among other things), while the federal government has introduced two Bills concerning in explaining the rationale for the Bill, Senator superannuation. Cameron said: Labour’s protecting workers Bill ‘Employers who deliberately and systematically deny workers their rights not only deny working people Senator Cameron introduced the Fair Work Amendment the right to a fair day’s pay for a fair day’s work, (Protecting Australian Workers) Bill 2016 (the Bill) into the they undercut employers who want to do the right Senate on 15 March 2016. thing, they undermine the integrity of the workplace relations system, they distort the labour market and Briefly, the Bill provides for: they undermine the principles of fair competition that underpin a successful economy.’ • increased penalties to be imposed on employers who deliberately and systematically deny workers For more information, read the Bill’s Explanatory their wage entitlements Memorandum. • increased protection for workers against sham Government’s contracting superannuation choice Bill • court powers to make orders to ensure company directors are personally liable for the unpaid wages The coalition government introduced the of employees of companies under their control that Superannuation Legislation Amendment (Choice of have been involved in phoenixing activity Fund) Bill 2016 (Superannuation Bill) into the House of Representatives on 17 March 2016. • court powers to disqualify company directors involved in companies that are found to have This Superannuation Bill aims to allow employees deliberately engaged in serious contraventions of the option to choose their superannuation fund. workplace relations laws Introducing the Superannuation Bill, Minister for Small Business and Assistant Treasurer the Hon • new criminal offences for conduct that involves Kelly O’Dwyer said that: the use of coercion or threat within the meaning of slavery and slavery-like conditions of the ‘Currently around two million employees do not Criminal Code where employers commit serious have the opportunity to choose the fund into contraventions of the FW Act in relation to temporary which their compulsory employer contributions overseas workers. are paid. A common way this can occur is through enterprise bargaining agreements and workplace The Bill also expands protection for exercising workplace determinations, which may mandate a given super rights to include if a person ‘raised or proposes to raise fund. The Turnbull Government recognises it doesn’t an issue or concern’ about whether they or someone else make sense to force employees to save money in has a workplace right. The ACCI has raised concerns that superannuation but then leave key decisions about ‘this has the potential to give rise to claims from persons how it is managed outside their control.’ not only outside the employment relationship but outside the workplace altogether’. For more details, see Superannuation Bill’s Explanatory Memorandum In relation to the new criminal offences Senator Cameron said, in his first reading speech, that ‘[t]hese offences will relate to exceptional cases which warrant the public condemnation of criminality.Page 11

Strong trend growth in • Reducing alcohol-related harm — The researchersemployment worked with organisations in the manufacturing industry to develop innovative ways of reducingAustralia’s trend employment has continued to alcohol-related harm in the workplace includingshow strong growth according to statistics released information sessions, training programs, resourceby the Australian Bureau of Statistics (ABS) today. guides for referral to drug and alcohol support providers and the development of employeeThe increase in employment contributed to the trend wellbeing packages. The study found a reductionemployment to population ratio rising during 2015 in risky drinking behaviour and the number offrom 60.7% to 61.4%. employees turning up to work with a hangover. It also improved workers’ awareness of alcohol policies inDuring January 2016 trend employment increased at a the workplace and alcohol-related support services.rate of 0.17%, continuing the recent trend in relativelystrong growth employment. • Preventing violence against women — This study explored the ways in which workplaces can overcomeFigures showed that the unemployment rate gender inequality, which is considered a key factordecreased during 2015 from 6.2% to 5.8% while the in violence against women. Over 6,000 employeesseasonally adjusted unemployment rate for January and 1,500 volunteers at the YMCA participated in2016 was 6% — up 0.2 percentage points. training programs, information initiatives, awareness events and reviews of practices and policiesFor more information please visit the ABS website at in the organisation. At conclusion of the studywww.abs.gov.au. staff demonstrated a better understanding of the relationship between respectful relationships andNew resources to violence against women. A more positive workplaceimprove worker culture was also reported where more women werewellbeing and behaviour found in leadership roles.Four new research reports and a new website • Reducing workplace stress — Leadership programshave been released to provide guidance on how were developed for Victoria Police trial sites and theto address alcohol-related harm, reduce prolonged Eastern Access Community Health (EACH). Initiativessitting, prevent violence against women and minimise also included the introduction of an online workloadstress in the workplace. management system, staff resiliency workshops and training in mental health first aid. However,Victorian Workplace Mental Wellbeing Collaboration: organisational changes at Victoria Police as wellPromoting Positive Mental Wellbeing in Victorian as EACH were thought to negatively impact on theWorkplaces is a new website launched by VicHealth, findings of this study.Superfriend and WorkSafe Victoria. It provides casestudies and strategies for promoting mental wellbeing Your membership numberin the workplace. Your AHIG membership number identifies you as aThe four research reports were released as part of member and allows you to obtain discounts to ourthe Creating Healthy Workplaces series. They are: services including our training. • Reducing prolonged sitting — With prolonged sitting being a risk factor for chronic illness, Email [email protected] if you have misplaced or strategies for reducing prolonged sitting in the federal Department of Human Services office were implemented and evaluated. The study found sit-to-stand workstations and health coaching sessions, together with telephone and email support, substantially reduced sitting time. not received your membership number. Page 12

Recruitment Kit Training is the best way to strengthen workplace Our Recruitment Kit, a step-by-step culture process for recruitment, includes a recruitment process checklist, a When HR professionals and managers were asked guide to interviewing and these what they do to preserve and strengthen workplace templates: culture the number one response was training and development according to research by The • Position evaluation Workforce Institute at Kronos. • Recruitment schedule • Advertisement Indeed, 72% of HR professionals and 61% of • Email response managers listed training and development as the key • Selection criteria to strengthening workplace culture. • Interview questions • Interview matrix The second highest response was ‘getting feedback • Referee report from employees and acting on it’ which was chosen • Notification letter by 45% of HR professionals and 46% of managers. • Employee record • Induction Interestingly, when asked who at their organisation most defines the workplace culture, HRMembers $550 inc GST professionals, managers, and employees each felt they were most important.Non-Members $1,100 inc GST • About one-third of HR professionals said that the head of HR defines the culture, while only 10% of managers and 3% of employees agreed • Twenty-six percent of managers said their executive team defines the culture, while only 11% of HR professionals and 9% of employees felt the same • Finally, 29% of employees said it is the employees who define workplace culture, with only 9% of HR professionals and 13% of managers agreeing The study involved more than 1,800 adults in the United States, consisting of 601 HR professionals, 604 people managers and 603 non-managing employees. When it comes to what kills workplace culture there were also mixed responses. • HR professionals and people managers said that ‘a high-stress environment’ and ‘company growth’ were the two elements with the biggest negative impact on workplace culturePage 13

• Conversely, employees felt that ‘not having Why sexual harassment by enough staff to support goals’ ‘unhappy/ customers goes unreported disengaged workers who poison the well’ and ’poor employee/manager relationships’ were The University of Sydney Business School has the major obstacles to maintaining a positive released new research investigating the reasons behind workplace culture. unreported cases of sexual harassment by customers in the service sector. The findings confirm that social The report said that HR professionals and managers norms such as the belief that ‘it’s an employee’s job to might be able to reduce the perceived stress their be friendly’ and ‘the customer is always right’, contribute work environment causes by focusing on hiring the to the lack of official reporting of customer perpetrated right people and ensuring managers have the proper sexual harassment. management training to help their teams thrive. Published in the Gender, Work & Organisation, the studyTiNnryaeoienudirnwgorkplace? followed the experiences of 18- to 25-year-old waitresses, shop assistants, bartenders and cashiers, and is theGet in touch for more info 03 9280 8063 first to investigate the nature and frequency of customeror [email protected] perpetrated sexual harassment in the service sector. Employers should be aware that in most Australian jurisdictions, including the federal anti-discrimination legislation, it is unlawful for the recipient of goods and services to sexually harass another person in receiving those goods and services. Whatever the jurisdiction, best practice requires employers to have policies and systems in place to deal with sexual harassment of employees by customers.Legal Assistance Page 14 Our experienced and qualified team offers legal assistance on: • Clinical and non-clinical service agreements • Clinical policies and protocols • Consent issues • Employment and industrial relations law • Health professional misconduct • Insurance • Privacy and confidentiality issues • Property matters, leases and licenses • Health legislative requirements • Medico-legal issues • Private practice arrangements • A wide range of other issuesContact Legal Assistance on (03) 9280 8000 or [email protected]

PROFESSIONAL The Medical Board of South Australia alleged that Dr MATTERS Siow behaved in a way that constituted professional misconduct after he consulted with a patient who We start this edition’s examination of professional issues had been diagnosed with a terminal illness and with the report about a New York nurse who snapped then, despite an awareness of the patient’s terminal photos of an unconscious male patient’s penis and sent illness and prognosis, he devised a nutritional and the lewd snaps to her co-workers. detoxification program and referred the patient to other medical practitioners. Kristen Johnson, 27, agreed to give up her medical licence on Monday after pleading guilty to a According to the Board, Siow conducted himself misdemeanour charge of sharing unlawful surveillance and made statements to the patient and his photos according to Syracuse.com. family members that continued to engender an unreasonable expectation on their part as to a As part of a plea deal to end the felony charges the positive outcome for the patient contrary to the nurse, who used to work at Upstate University Hospital in prognosis. Syracuse, also agreed to spend three years on probation. Kristen Johnson, 27, took lewd photos of a patient’s penis The Health Practitioners Tribunal of South Australia and sent the images to her colleagues. held that the conduct set out in the complaint constituted professional misconduct. The Tribunal Johnson was arrested last May following a nine-month was satisfied that appropriate public protection and investigation launched by the Onondaga County District discipline were achieved by: Attorney’s Office because her colleagues reported that she had sent them inappropriate mobile phone pictures • a reprimand multiple times. • payment of a fine of $12,000 Along with photos of the male patient’s privates authorities also discovered some shots of a fellow nurse • a number of conditions being placed on Siow’s cleaning out a comatose female patient’s gastrointestinal registration including that he will not consult, blood clot. interview, examine, treat, advise or see any patient he knows to be suffering from cancer or a 12 months of conditions terminal illness. imposed for professional misconduct Psychologist’s unprofessional conduct The Nursing and Midwifery Board of Australia (NMBA) for driving-related referred Mrs Natalie Susan Stoksik to the State offences Administrative Tribunal of Western Australia (the tribunal), alleging that in 2013 and 2014 she failed to practise the A tribunal has reprimanded a psychologist and found nursing profession in a safe and competent manner and she engaged in unprofessional conduct for failing to may have placed patients under her care at risk of harm, disclose being convicted of driving-related offences. by: The Psychology Board of Australia (the Board) referred Ms Dianah Cameron to the Queensland • failing to follow orders from senior staff on several Civil and Administrative Tribunal (QCAT), after she occasions was convicted of various offences related to driving without a licence or under the influence of alcohol. • administering medication to a patient when she was Due to the repeat and serious nature of the offences not competent to do so Ms Cameron served terms of imprisonment. • failing to record observations when she was required to do so, andPage 15 • withholding medication from a patient without proper consultation or an appropriate medical order.

The Board alleged that Ms Cameron had engaged Dr Schneider also accepted that had police beenin professional misconduct for failing to disclose notified earlier it would have assisted them in theirher criminal history when she applied to renew investigation and his failure to disclose had the potentialher registration as required by law. Ms Cameron to compromise the investigation.admitted to the allegations and, at the QCAT hearingin June 2015, the Board and Ms Cameron made a The VCAT said ‘A focus on the rehabilitation of ajoint submission proposing that she had engaged practitioner may in some instances be the mostin unprofessional conduct rather than professional powerful tool in ensuring protection of the public and themisconduct. Ms Cameron had been unaware of maintenance of professional standards. We considerher statutory obligations and thought the offences such to be the case in this instance.’ VCAT found Drwere ‘traffic offences’ and not ‘serious criminal Schneider engaged in professional misconduct andoffences’. QCAT found that Ms Cameron had reprimanded him: MBA v Schneider (Review andengaged in unprofessional conduct, reprimanded Regulation) [2015] VCAT 1873.her and ordered her to pay the Board’s legal costs:Psychology Board of Australia v Cameron [2015] House call professionalQCAT 227. misconductRehabilitation of A doctor who initiated a house call then lay next to hisanaesthetist who patient and fondled and kissed her breasts has beenconsumed alcohol, found guilty of professional misconduct. The Statecannabis and cocaine Administrative Tribunal of Western Australia also found Dr Premanandan Vayal Veettil guilty of unsatisfactoryThe Victorian Civil and Administrative Tribunal professional performance.(VCAT) has found Dr Andrew Carl Schneider, ananaesthetist who gave incorrect information to Dr Vayal Veettil, who worked at Royal Perth Hospital andparamedics, engaged in professional misconduct. as an after-hours locum for the Australian Locum MedicalThe VCAT reprimanded him and affirmed that Service, initially made a house call on the service’sconditions imposed by the Medical Board of Australia instructions on 10 March 2013 to a female patient withadequately protected the public. The Board referred severe back pain. According to the patient’s evidenceDr Schneider to VCAT for providing paramedics and on that night she was given an injection in the buttockspolice with inaccurate information. This resulted in a and a tablet. The doctor’s evidence was that he hadman initially receiving care for a stroke when he had administered only an injection.sustained a gunshot wound. The Tribunal heard that during the ensuing 14 monthsVCAT heard that in June 2012 Dr Schneider had Dr Veettil rang the patient numerous times, though theattended a residential address with others where he patient said she had never given him her telephoneconsumed alcohol, cannabis and cocaine. During number, and visited her home on at least four occasions.the course of the evening Dr Schneider’s medical Late in May 2014 Dr Veettil said he had discoveredassistance was requested at another address medical results from Royal Perth Hospital for thebecause a man had either hit his head or shot patient in his car and called her to arrange to give herhimself. When he arrived, Dr Schneider found the the results. Arriving at her residence around 3 pm theman was conscious but incoherent. Dr Schneider doctor and patient then went for tea nearby. The patientcalled an ambulance but did not disclose that the denied encouraging the doctor to meet her later but thepatient had hit his head or shot himself. Instead, doctor called her nine times that evening with calls goinghe told them that the man had suffered a stroke or through on six occasions. The patient gave evidence thatsimilar and that he had fallen and hit his head. the doctor ‘kept on ringing and harassing’ her.Dr Schneider acknowledged that by failing to provide The patient gave evidence that Dr Veettil then arrivedparamedics with accurate information about the at the patient’s home and, after a meal, discussed herman’s condition he did not act in the best interests of weight. She said Dr Veettil told her she needed to losethe patient. weight and, as he was doing so, was grabbing and pinching at her. Page 16

The patient said she told Dr Veettil she had a pain in her The tribunal decided that Dr Al-Naser had engaged in left breast and chest and that he asked her to lie on the professional misconduct by failing to refer the patient floor so he could examine her. She took off her bra and to another medical practitioner for treatment, failing to top as requested by the doctor. She said she questioned notify the Board of the notifiable conduct of another this instruction but acquiesced. According to the patient practitioner which is in breach of section 141 of the the doctor then got down on the rug with her, touched National Law, and, as Dr Khalil’s employer, failing both breasts, and said there was nothing to worry about to take any action against him until the notifications as there were no lumps. It was alleged Dr Veettil put his were made. left ear on her chest to hear her heartbeat then forced her to sit on his lap and held her tightly, rubbing his groin The tribunal reprimanded him and ordered that a against her. The patient described him as ‘having this range of conditions be imposed on his registration, distinct smirk on his face’ as she tried to calm herself after including restricting him from having any actual or the episode. perceived role as a supervisor for two years. He was also required to complete an intensive course on Tribunal reprimands doctor ethics and professional communications and have for failure to report sexual monthly meetings with a board appointed mentor to misconduct, imposes discuss issues, including cultural awareness. Costs conditions were also awarded against the practitioner. A tribunal has reprimanded a doctor and imposed The ACAT decision about Dr Al-Naser is published on conditions on his registration, for his failure to report the ACAT website. another doctor’s conduct at his practice who he knew had had a sexual relationship with a patient, in breach Tribunal reprimands of the mandatory notification requirements (s141) of the medical practitioner National Law. The Northern Territory Health Professional Review The Medical Board of Australia (the Board) referred Dr Tribunal (the Tribunal) has imposed conditions on a Nathem Al Naser to the ACT Civil and Administrative specialist general practitioner’s registration. Tribunal (ACAT) following a notification from a patient who had consulted Dr Al-Naser at the end of a sexual The Northern Territory Health Professional Review relationship conducted at the medical practice with Tribunal (the Tribunal) found that Dr Shahin another doctor. The patient reported Dr Al-Naser’s Alam, a specialist general practitioner, engaged conduct had also impacted on her health. in unsatisfactory professional performance in his treatment of two female patients and imposed The conduct of the first doctor (Dr Maged Khalil) led conditions on his registration. to earlier legal proceedings by the Board before this tribunal which resulted in a finding of professional The allegations related to pre-employment misconduct. The tribunal ordered a reprimand, a nine medical assessments of two women. Both women month suspension period and conditions on his return complained to police about the conduct of the to practice. For details see Medical Board of Australia v examinations alleging that the doctor touched them Khalil [2013] ACAT 76. inappropriately. In addition to the notification from the patient the clinical The Northern Territory police charged Dr Alam with psychologist, who subsequently treated the patient, also gross indecency but these charges were withdrawn notified AHPRA of Dr Al-Naser’s conduct. in June 2015. As practice principal Dr Al-Naser had become aware of Dr On learning of the police investigation in November Khalil’s sexual relationship with a patient of the practice 2012 the Board took immediate action as an interim but had taken no action to report it to the Board or refer step to protect the public and imposed conditions the patient to a medical practitioner in another practice or on Dr Alam’s registration requiring him to have a psychologist for treatment. Instead he allowed Dr Khalil a chaperone present when conducting intimate to continue working at the practice and decided to see the examinations of women (any examination where the patient himself. patient’s underwear or bra is removed or moved).Page 17

In October 2013 the Medical Board of Australia (the Tribunal reprimands andBoard) referred Dr Alam to the Tribunal because of removes dentist fromits concerns about his treatment of the two patients. registerThe Tribunal handed down its decision in December A tribunal has reprimanded a dentist, removed his name2015. from the register of practitioners and banned him from reapplying for registration for two years over his treatmentThe Tribunal found that Dr Alam had not of six patients.communicated properly with the patients about whatwould be involved in the physical examination and The Dental Board of Australia referred Mr Grahamthat he had not sought their specific consent before Raynes to the Health Professional Review Tribunal in theconducting cardio-vascular examinations and testing Northern Territory because of concerns he had failed tofor inguinal hernias. provide adequate care and treatment to patients at his practice at Nhulunbuy, Northern Territory and Newman,Dr Alam maintained that at no time was he motivated Western Australia.by sexual interest and said he had completed theexaminations in an appropriate manner. The Board alleged that Mr Raynes failed to complete dental treatment that had been started and/or paid for in aThe Tribunal found Dr Alam, a highly qualified timely manner, or at all.practitioner with many years’ experience, hadbehaved in a cavalier and insensitive way in his The allegations included:examination of the patients and not acknowledgedthe distress he had caused the patients. • failing to make appropriate arrangements for timely treatment resulting in significant delay in receiving aThe Tribunal imposed conditions on Dr Alam’s permanent crownregistration including requiring him to: • failing to pay for and obtain permanent crowns that • complete, within 12 months, a clinical course had been pre-paid for by two patients of education in women’s health, intimate examinations of women and informed consent • loss of partial denture paid for by a patient • failing to obtain completed dentures paid for by a • receive six months mentoring from an approved general practitioner with a report by the mentor to patient be submitted to the Board, and • failing to complete a final restoration after a root canal • have an approved chaperone present when treatment and placing a temporary filling conducting intimate examinations of women • failing to provide an adequate treatment plan until the education and mentoring has been • failing to provide adequate or timely receipts completed. • failing to produce patient records when requested toThe Tribunal ordered that Dr Alam is responsible do so by the Boardfor the costs associated with complying with these • failing to keep patient records safe and abandoningconditions. them at his clinic at NhulunbuyThe Tribunal required the Board to review the • breaching the Code of Conduct for Registered Healthconditions after 12 months (or earlier) and decide ifthey can be changed or lifted. Practitioners. Mr Raynes did not acknowledge that he was aware of the proceedings despite numerous letters sent to him on behalf of the Board at various addresses. The Tribunal decided to proceed with the hearing in Mr Raynes’ absence after deciding that he had been appropriately served with the relevant legal documents, been given reasonable opportunity to appear and had failed to do so. Page 18

The Tribunal found that Mr Raynes was guilty of Staffing solutions unprofessional conduct for his dealings with each of across all industries the patients and that collectively this amounted to professional misconduct. Give our partners, Advance Careers, a call. Specialising in the recruitment of The Tribunal reprimanded Mr Raynes, ordered his name executive, administrative and clinical to be removed from the register of practitioners and barred him from reapplying for registration as a dental staffing they will provide you with practitioner for two years from the date of the Tribunal’s the right outcome every time. decision. Contact Neil on 03 9280 8021or Transgressing professional [email protected] boundaries leads to Dont forget to mention our bulletin and your reprimand and conditions membership. The case of Medical Board of Australia v Smith concerned Dr Smith, a paediatric neurologist, who treats children under the age of eighteen. He was treating a young female patient when he instigated and pursued a sexual relationship with her mother. When the patient’s father learnt of the sexual contact, Dr Smith immediately ceased treatment of the patient and severed his connection to the family. The conduct of Dr Smith led to the patient and her parents having ongoing counselling for the stress and pressure in the marriage as well as in relation to the wellbeing of the patient as a dependent. Therefore, despite the relationship being with the mother, it had a direct detrimental effect on the patient. It was found that the conduct amounted to professional misconduct demonstrated by multiple instances and inconsistent with Dr Smith being a fit and proper person to hold registration. However, in deciding whether or not to suspend his registration, the Tribunal considered the relative scarcity of practitioners in the field of paediatric neurology and the significant demand for the services. The Tribunal concluded that despite the professional misconduct protecting the public is central to any decision to bar practitioners from practising and, in this case, the public interest was served by allowing Dr Smith to continue treating children in his specialty area of care. In addition to a reprimand, the Tribunal applied some conditions to his registration including mentoring sessions with a focus on his obligations under ‘Good Medical Practice: a Code of Conduct for Doctors in Australia’ and ‘Sexual Boundaries: a guide for doctors’ as well as establishing and maintaining professional boundaries.Page 19

Employment LawFair Work Commission The written letter provided to the employee explainedpraises employer’s the reasons for his dismissal and referred to his previous‘commendable’ approach warnings and highlighted the fact that although theto firing tardy employee employee had been given an opportunity to improve his attendance, there had been no satisfactory improvement.In Todd Allan Rooney v Pickles Auctions Pty Ltd[2016] FWC 858 the Fair Work Commission (FWC) The FWC held that the employee’s persistent tardinesscommended the process followed by his employer was a valid reason for dismissal and the employer’swhen deciding to sack him for repeated lateness. approach when dealing with his termination ‘should be properly recognised as commendable’.The employee was a habitual late-comer whorepeatedly failed to turn up to work on time and had Flimsy evidence foron one occasion arrived to work an hour late, telling employee dismissalhis employer he had slept through his alarm. Theapplicant was often late for work and had received This case highlights the importance of reliable evidenceboth written and verbal warnings from his employer, and procedural fairness and should itself be a timelythe FWC heard. reminder that in order to rely on video footage it must be conclusive. It is simply not enough to have something onOne morning in June 2015 the employee slept camera that is unclear.through his alarm and arrived at work an hour late.His employer organised a meeting with him that In Mulhall v Direct Freight (Qld) Pty Ltd [2016] FWC 58afternoon where he was asked to provide a reason the Fair Work Commission (FWC) held that an employer’sfor his lateness and advised that his employment decision to sack a truck driver for serious misconduct waswas at risk because of his poor attendance record. based on ‘flimsy’ evidence and ordered the employer to pay over $25,000 in compensation to the driver.Despite being provided an opportunity to makefurther comments the employee did not give a The truck driver was alleged to have stolen a packagesatisfactory explanation for his lateness or for failing containing a laptop computer which should have beento tell his supervisor that he was going to be late that delivered to Harvey Norman in March 2015.day. The employer relied upon CCTV footage to come to theThe employer then adjourned the meeting to conclusion that the driver stole the package. However,consider the employee’s ongoing employment. despite the driver’s requests to view the footage, it was not shown to him at either disciplinary meeting.The employee’s work history and his explanation forhis lateness were factors taken into account by his The driver submitted that the only fair way for theemployer during the adjournment, while the employer employer to conduct its investigation was to have playedalso consulted with its employee relations staff. him the footage. The employer stated that they intended to play the footage at the next meeting but the driver didThe employer also took into account the prior not attend.warnings issued for late attendance and otherwarnings relating to instances of misconduct. The driver claimed he was unable to attend the next meeting due to feelings of anxiety and stress for whichIn the end, the employer decided to terminate the he provided a medical certificate. However, despite this,applicant’s employment. When reconvening the the employer sent a letter to the driver advising him of hismeeting his boss advised the employee that he dismissal.would be dismissed from his position both verballyand in writing. Page 20

Commissioner Simpson accepted the driver’s submission The employee sought compensation for loss of that the evidence was ‘flimsy’ and found that the wages and monetary damages for the distress, hurt employer had been unable to discharge its onus to satisfy and personal injury she had suffered as a result of the Commission on the balance of probability that the her dismissal. driver had actually engaged in the conduct alleged. The employer submitted that the workplace rights In the two videos relied upon by the employer, two asserted by the employee were not in fact workplace different boxes were identified as the stolen package rights as defined in the FW Act. The employer further by separate witnesses. There was also ‘considerable submitted that adverse action did not take place distance between the position of the camera and the because of any workplace rights. In any event, [driver]’ in one video which undermined the reliability the employer argued that the employee was not of the employer’s claims as to the manner in which the dismissed, either constructively or otherwise, but driver behaved. There was therefore no clear evidence to chose to resign. prove that the driver stole the package. Justice Brown found that the employee had not It was also found that the driver was denied procedural established that the reason she was initially denied fairness as he was not afforded the opportunity to view a promotion had to do with her union membership the footage upon which the employer relied and make a or the exercise of any workplace right. Further, response before he was terminated. his Honour held that given the temporary and amorphous nature of any discrimination — the Commissioner Simpson held the dismissal to be employee was ultimately promoted in 2014 — it unjust and unreasonable and found that a payment for could not be characterised as adverse action. compensation was reasonable in all of the circumstances. He ordered the employer to pay the truck driver Justice Brown rejected the employee’s claim $25,468.13 gross. that she was harassed while working as an OHS representative and could not see how the apparent Casino worker’s adverse failure to perform her role could constitute a action claim dismissed workplace right. Accordingly, Justice Brown held that there was no adverse action in this regard. The Federal Circuit Court of Australia (FCCA), in the case of Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399, Justice Brown also rejected the employee’s claims has dismissed the claim of a casino worker who alleged that she had been constructively dismissed and that that she was denied a promotion and subjected to several the employer had made it impossible for her to carry forms of adverse action including harassment, denial of out her contractual obligations. Justice Brown held overtime and, ultimately, constructive dismissal. that the employer had not repudiated an essential term of her contract as alleged and the employee’s The applicant, Ms Jennifer Celand (the employee), application was accordingly dismissed. was employed as a part-time rotating dealer by the respondent, Skycity Adelaide Pty Ltd (the employer), a Employer fined $85,000 casino. for ‘inexcusable’ underpayments Following the termination of her employment the employee brought an application pursuant to s 340(1) (a) In our previous newsletter we highlighted that of the Fair Work Act 2009 (Cth) (FW Act) and claimed that employers that fail to provide employees with their she had been subject to adverse action by the employer. minimum entitlements face investigation by the Fair Work Ombudsman (FWO) and prosecution. These The employee argued that the employer had infringed her erode business goodwill and deflect time and cost workplace rights as defined by s 341(1) of the FW Act by from core business. discriminating between her and other employees; altering the terms of her position; injuring her, while in the course Non-compliance may result in not only back paying of her employment; and ultimately dismissing her from employees but a fine of up to $10,800 for individual her position through repudiatory conduct. employers and $54,000 for companies for each offence.Page 21

Exploitation of vulnerable workers will likely result in Christmas cheer no excusehigher fines. for an involuntary pool partyIn a recent case an employer faces an $85,000 finefor failing to pay the minimum entitlements of 46 An employee woke up with more than a hangover whenworkers. his employment was terminated following an eventful work Christmas party. The Fair Work CommissionThe underpayments related to minimum hourly rates, (FWC) in the case of McDaid v Future Engineeringpublic holiday pay, overtime rates and annual leave and Communication Pty Ltd has upheld the employer’sentitlements over a four-year period, and totalled dismissal of the employee who was intoxicated at thenearly $150,000. work function, behaved in an aggressive manner and threw a colleague, fully clothed, into a swimming pool.The employer, Quality Food World a Melbourne foodwholesaler, employed migrants and visa holders from When told to leave the premises by the employer’snon-English speaking backgrounds who perform General Manager, the employee refused and initiatedproduction and packaging duties. a physical altercation that evolved into a fight. In reaching the ruling the FWC addressed the supply andThe Fair Work Ombudsman had been in consumption of alcohol at work functions and personalcommunication with the employer following responsibility for conduct, notwithstanding intoxication.complaints by employees. Notwithstanding theFWO’s involvement of putting the employer on Service and consumption of alcohol at worknotice, the underpayments and employee records functionsbreaches continued. In assessing the employee’s unfair dismissal claim theFollowing an investigation by the FWO the employer FWC considered criticism of the employer’s actionsback paid the employees who were contactable. in supplying alcohol at the Christmas party noting thatThe remaining amounts were paid into the FWO employers who supply alcohol without taking steps tounclaimed wages fund. ensure responsible consumption may be liable for the conduct of over-indulgent employees.The FWO commenced a prosecution. However, Commissioner Williams noted that ‘how muchIn determining the appropriate penalty the Federal alcohol someone drinks is a choice they make and withCircuit Court found that the continued breaches were that choice comes consequences. Society no longerinexcusable given the large number of employees readily accepts alcohol consumption as an excuse forand the FWO’s intervention. bad behaviour and certainly not for physical violence.’ The consumption of alcohol was not a defence forJudge Riethmuller said the company had shown the employee’s actions that led to his dismissal in this‘either wilful blindness or recklessness’ with regard to instance and the dismissal was not harsh, unjust orits obligations and there had been a ‘systemic failure unreasonable.to comply with the law’.‘Most of the employees were from non-Englishspeaking backgrounds, new to Australia and hadlimited knowledge of the rights and protectionsafforded to them under the Australian workplacelaws. Some were in Australia only on student visas’,he said.‘These breaches affected a group of employees leastable to protect their own rights, and least able tolocate and obtain employment in the community.’ Page 22

More pain for spider bite Director fined $100,000 victim for ‘heartless’ treatment of employees The Fair Work Commission in Daley v Coca Cola Amatil has denied an employee’s application to extend her sick The employment watchdog has ordered a former leave after finding that her illness was not ‘serious’ or company director to pay almost $100,000 for ‘prolonged’ enough to warrant the extension. ‘heartless’ treatment of employees including unfair dismissal. The employee, Nicole Daley, was employed by Coca Cola Amatil T/A Coca Cola Amatil (Australia) Pty Ltd. The Fair Work Ombudsman found Tasmanian businesswoman Wendy Langridge avoided paying During November 2014 the employee was bitten on her $16,000 in worker’s entitlements to thirteen former right foot by a whitetail spider and was absent from work long-term textile mill employees. for approximately three weeks as a result thereof. Federal Circuit Court Judge Phillip Burchardt said The employee subsequently applied for extended Langridge took advantage of her employees after sick leave in terms of clause 36.7 of the Moorabbin realising the company was facing financial difficulties. Manufacturing Operations Enterprise Agreement ‘She knew the company could not afford to pay its 2011–2015 (the Agreement). In terms of the Agreement debts ... (and) in a fashion that could at the lowest an employee, who had exhausted all personal leave be described as thoughtless but at the highest be entitlements accrued to them, could apply for extended described as heartless, effectively took advantage of sick leave and such an extension would be granted the employees,’ Judge Burchardt said in the Federal where the employer was satisfied that the employee was Circuit Court. suffering from a ‘prolonged and serious medical condition’ which was ‘expected to last for an extended period of Langridge, former director of the now-liquidated time’. Tasmanian company Mowbray Mill, was found to have stood down six workers in 2013, avoided The employee’s application for extended sick leave paying wages, leave, termination and redundancy was declined by the employer on the basis that the entitlements and failed to pay a further seven, each employee’s medical condition was not prolonged and, of whom were owed up to $22,000. while initially serious, ‘it became less so’. Furthermore, the medical certificates provided by the employee in The Fair Work Ombudsman investigated Langridge support of her absence from work were for short periods and found she avoided paying the thirteen former of time as opposed to an extended period. mill employees $160,000 in worker’s entitlements, in part by transferring her business, James Nelson, into The employee referred an application to the Fair Work another entity, Waverley-based company Southern Commission pursuant to s 739 of the Fair Work Act 2009 Textile. (Cth). This transfer of business was made after the Fair On the evidence the Commission found that the Work Ombudsman sought an undertaking from the employee was not suffering from a serious medical company not to disperse its assets except to pay the condition which was expected to last for an extended workers their outstanding entitlements. period of time. The court heard that although Langridge knew she The Commission was therefore not satisfied that the wouldn’t be able to pay her workers their redundancy employee had met all of the requirements set out in payments she still made various promises to them subclause 36.7 of the Agreement. The employee was that they would be paid. accordingly not entitled to extended sick leave and her application was accordingly dismissed. ‘She must have known that having the employees stood-down without any form of payment and/Page 23 or working and not being paid was extremely detrimental to them,’ Judge Burchardt said when handing down the penalty.

He also noted that Langridge’s treatment of her staffhad a ‘heart-wrenching’ effect on her workers.‘The picture [Langridge] has sought to present isone of her being unwittingly placed in an impossibleposition,’ Judge Burchardt said. ‘I do not accept thatthis is the case. She has never apologised directly tothe employees concerned,’ he said.‘While I have no doubt that she is very sorry thatthings have come out as they have, the picture thatemerges for me is that her primary regrets are moreconcerned with herself and her husband than withthe employees.’Langridge has been slapped with a $98,000 fine,equivalent to 80 per cent of the maximum penaltyof $122,400, and has also been banned from beinginvolved in any further breaches of workplace laws inthe textile industry.

WORK HEALTHSAFETY Employee reinstated due In addition, the Commission heard evidence of to inconsistent treatment serious safety breaches by other employees across of safety breaches the employer’s operations (including an incident where an engineer failed to secure a plane’s In a recent decision of the Fair Work Commission an engine oil cap) who had not been dismissed. The employer was ordered to reinstate an employee who Commission found that the different treatment of had been dismissed for safety breaches. In making the the employee in a situation ‘where the potential order the Commission gave weight to the employer’s past consequences of the other engineers’ actions were treatment of other employees who had committed safety far more serious’ was a relevant factor to be taken breaches. into account. The employee was summarily dismissed from his position Despite the employer opposing reinstatement, as a licensed aircraft mechanical engineer at Avalon the Commission ordered that the employee be airport for driving an airport ‘tow-tug’ on a public road to reinstated, but to a larger airport to allow for closer buy his lunch from a nearby service station. supervision. Following an investigation into the incident the employer In addition to ensuring that policies and procedures concluded that the employee had breached the are readily accessible to employees the decision company’s health and safety policy and standards of highlights the importance of employers ensuring that conduct policy. they deal with employee misconduct (including safety breaches) consistently. This may require particular The Commission accepted that because the employee vigilance where the employer operates at a number had driven the unregistered vehicle, which was not fit for of locations. the purpose, on a public road the employer had a valid reason for the dismissal. Maximum compensation for bullied worker forced However, the Commission found that the employee’s to resign dismissal was harsh and therefore unfair. In reaching this finding the Commission gave consideration to: In the recent case of Cole v PQ Australia Pty Ltd [2016] FWC1166 an employee who was • evidence which suggested that the employee’s bullied at work, dismissed for not complying with actions ‘were not consciously or knowingly or an unreasonable request to attend a company- deliberately taken so as to contravene the company’s nominated medical assessment and then asked to safety and other policies’ resign, has been awarded the maximum six months compensation by the Fair Work Commission (FWC). • the financial consequences of the employee’s dismissal given that he was the sole breadwinner of The employee, Mr Cole, was a packer on the night his family shift for the employer, PQ Australia. He experienced some difficulties at work, keeping up with an • the fact that the employee was 60 years of age and increased rate on the night shift and completing had poor prospects of finding suitable alternative tasks within the shift. However, he was subjected employment, and to various conduct by his colleagues, including a serious incident when a noose was tied above his • the employee’s otherwise unblemished record during work station. He took it down but it was replaced the his four years and nine months of employment with following night. the employer. The employee took one day of personal leave on 14Page 25 June 2015.

He presented his employer with a medical certificate It was not a particularly risky or dangerous workplacefor this leave and pathology request form including warranting the medical assessment. The FWC stated:his diagnosis. He had depression. ‘The fact that Mr Cole disclosed that he was sufferingAfter he called in sick on 14 June 2015 he was from depression and claimed that he was being victimisedstood down with pay, with the explanation that he and unfairly treated because of that does not provide adid not appear to be coping very well at work and reasonable basis to assume that he was incapable ofthe employer was concerned for his condition. At performing the inherent requirements of the job.’a meeting 10 days into the stand down period theemployer advised that the employee could not return Further, the fact that the employee did not comply with ato work until he attended a medical assessment with direction to only communicate with the US-based HR vicea doctor that the employer nominated. The employer president about his work issues/status was not a validexpressed concern that he was having difficulty with reason for dismissal. This was particularly so given thehis working relationships with some of his colleagues context of the employee’s desperate desire to addressbut stressed that he was not being disciplined. the work issues he was experiencing locally, which was the reason for the direction to attend the medicalThe employee, through the AWU, refused to submit assessment.to the medical assessment saying that if he hadsuffered adverse action, having been stood down for The FWC concluded that the dismissal was an unfairtaking personal leave, asking him to submit to the dismissal.assessment was further adverse action. In considering the appropriate remedy reinstatementAfter he failed to attend the medical appointment with was not appropriate because of the employee’s conductthe company doctor he was stood down without pay. in pursuing the workplace bullying allegations (whichThe employee commenced a general protections included unusual and obsessive behaviour by theclaim but the employer refused to participate in the employee, repeated and unwelcome communications andconference and the application did not proceed. recordings). (However, there was some understandingThe employee was then directed by a US-based by the FWC of that conduct in the context of the stalledHR vice president that his employment could be investigation into the bullying.)terminated if he did not comply with the request toattend the independent medical assessment. He To determine the appropriate compensation, the FWCthen received an email that he was terminated for took into account factors such as the length of timethat failure. Despite this he was then advised that if it was likely that the employee would have stayed inhe resigned his position he would receive a payout employment with the employer (nine months), otherof his accumulated leave. Amid his protests he did contingencies and a discount (due to his insufficient jobresign. search until recently). The total amount exceeded the six months cap, so that the cap applied. The employee wasHe commenced an unfair dismissal application. The compensated around $44,000 less tax.FWC concluded on the evidence that the employeewas dismissed at the employer’s initiative since he Psychological injury nothad no choice but to resign. compensableThe FWC considered whether the request that In the case of Banwell and Comcare (Compensation)the employee attend the medical assessment was [2016] AATA 30 The Administrative Appeals Tribunalreasonable and whether his failure to comply was a (AAT) has ruled that a Victorian Democratic Labourvalid reason for dismissal. Party staffer who suffered a psychological injury caused by the actions of his supervisor was not entitled toIt concluded that the request was not reasonable compensation. In doing so it found that one of the causesand that his dismissal was therefore not for a valid of his injury constituted reasonable management actionreason. There was no genuine indication of the need and this was enough to defeat his claim.for the examination (such as prolonged absencesfrom work or absences without explanation or The worker, who had previously run for the House of Page 26evidence of an illness) which related to the capacity Representatives as a Liberal Party candidate, took ato perform the inherent requirements of the job. position working as a staffer for Victorian Democratic Labor Party Senator, John Madigan.

The role was based in the Ballarat office and was classed Back condition caused as EOA — the most junior categorisation in the office. sadness but not depression The worker argued that in November 2012 his supervisor and Mr Madigan’s Chief of Staff met with him for an The Queensland Industrial Relations Commission informal performance review. At this meeting the worker (QIRC) in Smith v Workers’ Compensation Regulator alleged the supervisor told him that he was performing has ruled that a worker who suffered from ‘sadness’ faultlessly and would be promoted to EOB. However, after losing his job over a back injury did not have neither man made notes. a compensable injury and was not entitled to compensation. The worker claimed that after the Christmas break his supervisor’s attitude towards him soured. He attributed The worker, who was employed in a bacon factory, this to the supervisor’s opposition to his Liberal Party injured his back in December 2011. He had little views. No promotion was forthcoming and, in fact, the time off work and eased his pain with acupuncture. reverse occurred. In January 2013, during another In February 2012 he aggravated the injury and was performance review, the supervisor told the worker more severely injured. This time he took some time he would not be required to attend Canberra with the off work and returned on light duties in mid-2012. Senator as frequently anymore. This effectively led to a In November 2012 he was retrenched and has not reduction of pay as he no longer received travel benefits. worked since. Instead, a new, younger and part-time member of staff started accompanying the Senator. In 2015 the worker brought a compensation claim alleging that his back injury and subsequent On 2 May 2013 the tension between the worker and redundancy had caused him a secondary the supervisor reached boiling point after the supervisor psychological injury. To support his claim he aggressively told him to answer a ringing phone. When gave evidence that he was having ‘silly thoughts’ the worker said he had answered it the supervisor called about suicide, felt guilt over not being the family’s him an ‘idiot’ three times in front of staff. The worker left breadwinner and no longer socialised. work and soon afterwards visited his doctor. He was later diagnosed with depression and an anxiety disorder which Competing medical evidence suggested that any was attributed to his work. loss similar to the worker’s would usually lead to ‘sadness, frustration and irritability’ but that this was However, Comcare denied the worker’s claim finding different to a medical diagnosis of depression or an that it was the result of reasonable management action. adjustment disorder. It also suggested that most The worker appealed but the AAT again denied him of the worker’s symptoms related to his back pain compensation. The AAT noted that the worker’s injury rather than any psychological injury. For instance, he was caused by multiple factors including the performance acknowledged in cross-examination that if the pain reviews, his failure to be promoted, his perceived alleviated he could return to his normal life. There demotion and the telephone incident. However, with the was also evidence that, if the worker was suffering exception of the telephone incident, each of these factors from a psychological condition, it may have been pre- was reasonable management action for the purposes of existing especially as evidence of ‘suicidal ideation’ s 5A of the Safety Rehabilitation and Compensation Act stretched as far back as 2005. 1988. The QIRC accepted that the worker was suffering The AAT noted that performance reviews could be from ‘sadness’ and that this had been caused by a informal and there was no requirement for the employer range of stressors including losing his job, suffering to take notes. It also found that it was unlikely the a back injury and the court process. However, worker had been offered a promotion, given restrictions there was not enough evidence to conclude that he on the number of staff and their pay grades in the suffered from a compensable psychological injury. Senator’s office. The AAT concluded that as, in order to defeat claim, only one contributing factor needed to be The QIRC further ruled that even if the worker did reasonable management action, the worker’s claim could suffer from a compensable psychological injury there not succeed. was insufficient evidence to conclude that the injury rose out of the course of his employment.Page 27

Discrimination H complained to the President of the Anti-DiscriminationMatters Board that the YMCA had discriminated against him on the grounds of sex and age in breach of s 25(1) andFailure to appoint 49ZYB of the Anti-Discrimination Act 1977 (NSW). Thelifeguard not President declined the complaint on the basis that it wasdiscriminatory lacking in substance. H applied to NCAT for leave for the complaint to go ahead.The NSW Civil and Administrative Tribunal (NCAT)in Hayne v YMCA NSW found that a man was not NCAT noted that issue to be determined was not whetherdiscriminated against when his application for the L had misinterpreted H’s response to his questions orrole of lifeguard at a swimming pool run by the YMCA whether H in fact posed a risk to the safety of children.was turned down. The YMCA declined to employ him While H may have seen the refusal to appoint him asbecause it did not consider his style of working with unfair that did not mean it was discriminatory. The issuechildren to be compatible with its policies rather than was whether there was evidence to infer that his age orbecause of his age or sex. sex, rather than his answers to the questions, was the real or genuine reason for the decision.H, a man in his mid-50s, applied for a position asa senior lifeguard at Moruya War Memorial Pool, NCAT found that there was insufficient evidence on whichoperated by the YMCA NSW. L interviewed him for an inference could be drawn that H was not appointedthe role and identified one of H’s comments as a ‘red because of his age or his sex. An opinion expressed byflag issue’. H told L that he used unorthodox methods a person who was not involved in the decision-makingin his job as a casual counsellor for male youths process that he was a ‘dinosaur’ would not carry anyand abused children. H said that ‘I take a different weight in a hearing.approach; you see some kids need to be touched,they need to be wrestled. They need to know that NCAT refused leave for H to proceed because it lackedyou can pin them down with little effort’. H explained substance and it would not be fair or just for it to proceed.that he did not hurt the youth or use excessive forceon them but employed these practices to earn the Maximum compensation forrespect of the troubled young boys he worked with. bullied worker forced toHe went on to say he had many success stories resignbased on this style of counselling. L was concernedabout a conflict of interest between YMCA policy and A Toll worker who was sacked for making racist slursH’s counselling methods specifically with respect to against his Afghan colleague will be reinstated to his jobworking with children. He did not recommend H for after a second review by Fair Work Commission (FWC)the role. found that his employer didn’t follow fair process when dismissing him from his role.H questioned the recruitment process with theYMCA’s human resources manager asking her if Toll appealed the FWC’s earlier decision to reinstatehe was not appointed because he was perceived the employee who was sacked in February 2015.as a child molester. The YMCA then appointed Commissioner Michelle Bissett said Toll had failed to takean independent consultant to review the process. formal disciplinary action to ensure the worker was fullyThe consultant concluded that there were some aware that his conduct would not be tolerated.anomalies in the recruitment process (includinginterviewing H outside) but that H was not Although Toll’s policies made clear ‘what is tolerable’ ‘thisdisadvantaged. is undermined if such behaviour continues to be toleratedShortly after that a YMCA employee commented toH that he was never going to get the job because by inaction or mild rebuke’. The commissioner said thehe was a ‘dinosaur’. H interpreted this comment asmeaning that he was an ageing male. worker’s behaviour should have been reported to more senior management in late 2014 before his dismissal in Page 28 February last year.

The Toll employee was fired for allegedly making ‘racist, ‘Employees engaging in such conduct must besectarian and inappropriate’ remarks to an Afghan co- warned that the conduct is not acceptable andworker. further conduct of that type may lead to dismissal,’ Commissioner Bissett says.He allegedly asked his co-worker if he was from theTaliban and made offensive comments about Islamic She said the hurtful comments ‘could not, in anyone’sState. view, be considered a joke’.‘Does Islam say to kill? ... I enjoy seeing people havingtheir heads cut off, do you enjoy it too?’ he was allegedto have asked his colleague who is of Middle Easternheritage.In the initial FWC hearing Commissioner BernieRiordan said that, while the employee’s conduct was‘inappropriate’, Toll had failed to provide a final warningfor persistent and unacceptable conduct.Riordan also said Toll’s investigation and disciplinaryprocesses had been flawed.Toll appealed Commissioner Riordan’s judgment sayinghe had failed to take into account that the employee’smisconduct was a ‘pattern of unacceptable behaviour’.In the second FWC hearing earlier this monthCommissioner Bissett said Toll’s decision to sack theworker was severe because they had failed to give properprior warnings. Bisset said she had also considered the 58-year-old May course list State Date worker’s service, age and the impact of his sacking and WA  4 May 2016  found the effect of his dismissal was severe in that he HR Essentials and Skills SA  11 May 2016  was the sole earner for his family and also the carer for for Employees - Perth  NT  18 May 2016  an elderly father. AUS 3 May 2016  HR Essentials and Skills ‘In all of these circumstances and after careful for Employees - Adelaide  QLD  4 May 2016  consideration, I am satisfied that the decision to terminate NT  11 May 2016  [the worker’s] employment was harsh for the personal HR Essentials and Skills SA  25 May 2016  consequences of it for him and because of the severity for Employees - Darwin  of the punishment when little has been done with respect to his past behaviours,’ the commissioner was reported Mastering Management saying in Fairfax Media. and Leadership Master- class (5 participants max) ‘Whilst I do not say that Toll condone the behaviour of [the worker], I consider that the decision to dismiss is severe (online)  given the absence of any earlier sanctions,’ she said. Managing People and ‘In circumstances where the personal effect of the Teams - Brisbane  decision to terminate employment had not been so severe, my decision may well have been different.’ Managing People and Teams - Darwin  However, Commissioner Bissett said the worker and those who had supported him ‘should not feel vindicated Managing People andPage 29 by my decision’ and racist conduct ‘should be called out’. Teams - Adelaide  Click the course title to find out more