|
Two recent decisions from the Fair Work Commission demonstrate that employers and employees don’t have to be perfect – but they do have to be willing to admit their mistakes and correct them.
In Dias v Commonwealth Securities Limited (a part of the Commonwealth Bank), the Commission considered an unfair dismissal application made by Ms Dias, a longstanding bank employee. Ms Dias had – according to the bank – disclosed customer information to someone who was not authorised to receive it. Ms Dias strongly disputed that finding. More significantly, she repeatedly refused to attend any remedial training about how to follow account authorities. Ultimately, the bank terminated her employment for failing to follow its directions to undertake further training. Ms Dias' application for reinstatement was unsuccessful. The Commission decided that Ms Dias had incorrectly disclosed the information and that this was a fundamental error by an experienced banker. More significantly, the Commission stated: "the Bank spent a considerable effort to encourage, coax and ultimately direct the applicant to attend training for the purpose of reviewing the Bank’s policies and procedures. This was not disciplinary action, least of all was it a threat to her future employment. Rather than embracing, or at least begrudgingly accepting that the Bank did not want to terminate her employment, she set out on a course for which the only result was always going to be dismissal. How so often does the script unfold that what brings one down, is not the initial conduct … but rather it is the cover-up or the elaborate web of implausible explanations and excuses, which does so. This is a classic example of that scenario." The bank’s actions in this case are noteworthy. When faced with an employee who had demonstrated (in the Commission’s words) “belligerent and unacceptable behaviour and obvious animus towards her supervisor”, the bank’s staff remained reasoned and considered in their actions. They gave Ms Dias every opportunity to both raise her concerns about her treatment and rectify the situation. Dismissal only occurred after Ms Dias had been given multiple chances to change. In Barnes v BHP Coal Pty Ltd , the Commission considered an unfair dismissal application made by Mr Barnes, a driver at a mine site. Mr Barnes was dismissed after an investigation found that he drove a dump truck off course and failed to stop immediately (as required by the mine’s safety policy). In its show cause letter, BHP referred to the incorrect safety policy. Mr Barnes noted the error in his response and stated, “I am happy to respond further if you would provide me with the correct policy”. In a sense, nothing turned on the incorrect policy reference. It was clear enough, despite the error, what the substance of the investigation’s findings were. However, rather than pressing ahead with its process, BHP sensibly and fairly issued a further letter acknowledging the mistake, including the correct policy reference and giving Mr Barnes additional time to respond. The Commission determined that, while BHP had made errors: “The presentation of this information at a later stage when the Applicant had been stood down on pay, still afforded him a full opportunity to respond, even though it was at a later stage. The later provision of this information has not significantly affected the Applicant’s responses, given the further opportunity to respond”. The Commission decided that the employee had not been unfairly dismissed.
0 Comments
11/9/2019 Three reasons why a dismissal for a valid reason can be unfair – a recent case exampleRead NowThe Fair Work Commission's decision in Scott v Latrobe Regional Hospital is another interesting example of when a dimissal for a valid reason can be unfair.
Background Mr Scott started work as a security guard at the Latrobe Regional Hospital in 2011. On 20 June 2018, Mr Scott responded to a call for security assistance involving a drunk patient. There were conflicting versions of exactly what happened next. Resolving the conflict was not helped by the fact that some CCTV footage of the incident had been deleted. However, it was clear that:
After a workplace investigation, the hospital concluded that – among other things – Mr Scott had breached the hospital’s DEEP (De-escalation, Engagement and Prevention) policy. The hospital said that Mr Scott had incorrectly positioned himself “too close and in the face of the patient” and then responded with force when he was kneed in the groin. The hospital found that – as there was no immediate threat to the patient or anyone else – Mr Scott should have kept space between himself and the patient initially and backed away when the patient assaulted him. On 6 August 2018, the hospital issued a termination letter to Mr Scott that stated, “your conduct on 20 June 2018 amounts to serious misconduct and warrants the immediate termination of your employment.” Mr Scott then made an unfair dismissal application. The Fair Work Commission’s findings The Commission agreed that Mr Scott’s conduct breached the DEEP policy and that there was a valid reason for the dismissal. However, the Commission found that his dismissal was harsh and unreasonable. The significant factors the Commission took into account in reaching this conclusion were:
Finally, the Commission stated: "Whilst not strictly relevant to the dispute before me, I observe that the Respondent’s conduct in failing to quarantine the entirety of the CCTV footage in the circumstances before me is perplexing at best. As a matter of prudent Human Resource practice, I would have expected the Respondent to go to some lengths to preserve such evidence in circumstances where an investigation into the incident had commenced.” Comment The case highlights several important principles for anyone conducting workplace investigations:
9/9/2019 How much could issuing a media statement criticising an employee cost you? About $1.2mRead NowOn Friday, the Federal Circuit Court delivered its decision on compensation in the long running dispute between Peter Ridd and James Cook University. The decision serves as a warning about the adverse impact that media statements can have on employment disputes.
The conflict between the University and Dr Ridd (then a professor at the University) began in December 2015 after Dr Ridd criticised his colleagues’ work about the impact of climate change on the Great Barrier Reef. After a workplace investigation, the University found that Dr Ridd’s conduct breached its Code of Conduct. In reaching that conclusion, the University emphasised that the finding was about how Dr Ridd expressed his views – not the views themselves. Dr Ridd did not accept the investigation’s outcome. His position was that the University was wrongly stifling his right to express an unpopular view. He continued his behaviour and the University continued to make findings against him. In May 2018, the University dismissed Dr Ridd. In April 2019, the Federal Circuit Court of Australia found that the University's treatment of Dr Ridd breached its Enterprise Agreement with a further hearing to be held to assess compensation. Hours after that judgment was delivered, the University issued a media statement to say it disagreed with the decision. The statement also went further. It criticised both the Court’s reasons and Dr Ridd’s conduct. Last Friday, the Court delivered its decision on compensation. The media statement featured prominently in the decision. Judge Vasta found that the University’s conduct – including issuing the statement – had effectively ended Dr Ridd’s academic career. He said that the University had “poisoned the well” and that its actions were “almost tantamount to an attempt to ensure that Professor Ridd does not obtain employment in this field”. The Court ordered the University to pay Dr Ridd approximately $1.2M. The decision will almost certainly be appealed. But it is a reminder of the impact public statements about an employee’s conduct can have on employment disputes. If findings made against an employee in a workplace investigation are shared inappropriately, that can lead to a significant claim against the employer. Early one morning, two men were in a truck driving to a depot.
There were two ways to the depot. A long way and a short-cut down a laneway. Both men knew that they shouldn’t take the laneway … but they went that way anyway. The truck ran over a bollard in the laneway and broke down. The obvious question was: why did the men take the short-cut when they both knew they shouldn’t go that way? The company's management decided to take their own short-cut in answering that question. Despite each man insisting that taking the short-cut was the other’s idea, management quickly reached the conclusion that the passenger was primarily to blame. This seems to have been because the driver had an unblemished record but the passenger had previously been warned about driving a ute through the short-cut. In the words of one manager, it was just a matter of “putting two and two together”. The passenger was sacked within a few days of the incident. The driver received a warning. The Fair Work Commission found that the passenger's dismissal was unfair. The Commission stated – “Had a proper investigation dispassionately established that [the passenger] had likely directed [the driver] to turn into the … laneway, the warning could be taken into account as tipping the balance in favour of dismissal; however, that is not what occurred. Instead the investigation assumed [the passenger’s] conduct, rather than establishing it." The Commission was also critical of the fact that the two employees were treated differently in circumstances where, “[o]n balance, [the driver’s] conduct seems to have been more culpable that the [passenger’s]”. The case is another example of the need for employers to conduct a procedurally fair investigation before making a misconduct finding against an employee. And it’s also another example that short-cuts often end up being the longest distance between two points. You can read the full decision here – Bryce v IKON Administration Pty Ltd. It seems that every medium sized to large organisation now conducts some form of engagement survey annually.
On first glance, the reason seems clear enough. Research shows a statistically significant connection between organisation performance and employee engagement . And over 70% of leaders surveyed by the Harvard Business Review ranked employee engagement as “very important” to an organisation’s success. But are engagement surveys a great way to help boost an organisation’s prospects? Here are five problems with engagement surveys and four possible solutions. Problem 1 – sampling error Not every employee completes the engagement survey. In larger organisations (over 500 employees) completion rates of 70% to 80% are common. While some of the reasons why people do not complete the survey are obvious – such as staff being on leave during the survey period – others are not. The challenge is, what you take from fact that 20% to 30% of the population did not take part? If they had completed the survey would their responses have shown them to be more, or less, engaged that the participating group? What would their responses have done to the overall scores? Unfortunately, it’s impossible to tell. But the impact of the non-responders on the overall result could be significant at an aggregate level or in a particular segment. At an aggregate level, the non-responders may have a very different level of engagement from the responders. So, if their hypothetical scores could somehow be included in the overall result, that may move the overall outcome significantly. The potential effect at the segment level is more concerning. Perhaps response rates in a particular division were much lower than the overall group - so the aggregate data might not tell you very much about engagement in that division. Or perhaps the organisation has an unconscious bias against – for example – LGBTQIA employees. If those employees feel that their views are not heard, then they may be more likely to decide there is no point to completing the survey. Accordingly, that group’s valid concerns will not be reflected in the survey results and the organisation’s unconscious bias problem will continue. Problem 2 – influencing the results The second problem with engagement surveys is that organisations become fixated on the results. If that happens, it is almost inevitable that people will start to game the process and influence the outcome. Leaders in the organisation can, consciously or unconsciously, suggest that there are “right” and “wrong” ways to complete the survey. If the result of the engagement survey becomes a KPI that leaders are measured against, it is likely that they will start suggesting that the “right” way to complete the survey is to score every question “highly engaged”. In the worst cases, employees can become concerned that the promised anonymity of the survey will not eventuate. They can be worried that efforts will be made to identify and punish individuals who gave poor scores. Accordingly, they may survey as “highly engaged” when their true engagement is the opposite. Problem 3 – point in time data Engagement surveys only measure engagement at the point in time when they are conducted - they do not reflect the level of engagement over a period. This creates two risks.
Problem 4 – what engagement means There is a broad consensus that high employee engagement is a good thing. But there is no consensus about what employee engagement actually is, much less what questions should be included in a survey to measure it. Here are some of the perspectives around what an engagement survey should measure -
It is understandable that different people have different views about what engagement means. And it makes sense that engagement in one organisation might be measured differently from engagement in another. For example, assessing employees’ support for an organisation’s innovation program might be more relevant to measuring engagement at a cancer research facility than it is at a national supermarket chain. However, the fact that there is so much variation between different approaches to what engagement is and how it should be measured does suggest that engagement surveys cannot be the silver bullet – and perhaps not even the copper or tin bullet – of assessing employee engagement. Problem 5 – what happens next The biggest problem with engagement surveys is what happens after the survey. Where the survey becomes an end in itself, there are three common responses to that question. None of them are positive –
Four solutions While engagement surveys have many flaws, they remain valuable tools and they can be useful if they are used the right way. Here are four tips to make engagement surveys more valuable.
|
Archives
February 2021
Categories
All
|
RSS Feed