Over the past week, there have been numerous media reports about the mishandling of sexual harassment and toxic workplace complaints and investigations, alleged cover-ups of senior executive misconduct and unsatisfactory complaint handling within organisations.

This might seem relatively surprising given changing community and business standards, not to mention the recent legislative reforms that place a positive duty on businesses to eliminate, as far as possible, various unlawful behaviours relating to sexual conduct in the workplace or in connection to work. 

If you speak to business leaders, seasoned HR professionals and people managers, they will usually respond by declaring that their organisation has addressed the positive duty and has robust systems for handling sexual harassment and toxic workplace behaviour.

However, this response may be analogous to when some employers previously proclaimed they did not have issues with underpayments of employee wages, only to find out some time later that they had been underpaying employees over many years, albeit, in many cases, unintentionally. 

So, what’s missing? Why does it seem organisations are still getting it wrong?

The Australian Human Rights Commission published guidelines in August 2023 that included practical examples of what employers should proactively be doing to comply with their positive duty to eliminate unlawful sexual behaviour in the workplace. The 112-page guideline makes it clear that it’s simply not enough for organisations to undergo a box-ticking exercise.

The guidelines comprehensively indicate that companies with strong culture and governance can effectively prevent and respond to workplace misconduct by:

• Having clear complaint handling procedures that are well-known within the organisation, so employees feel safe to report unsatisfactory workplace behaviour at an early stage.
• Creating support mechanisms for workers to feel safe and assisted by the organisation in raising issues about unsatisfactory workplace behaviour. For example, this could look like internal support through nominating workers or asking for volunteers to act as contact officers, and creating peer support networks and ensuring they’re trained in receiving disclosures of relevant unlawful conduct and harm. Organisations could also engage external specialist support through work-funded Employee Assistance Programs.   
• Ensuring investigations into allegations of unsatisfactory workplace conduct are undertaken in a fair and consistent manner to provide workers with confidence that their organisation is committed to creating a safe and inclusive work environment.

Below, we provide an overview of what boards, senior managers, HR, legal and risk professionals should be doing at a minimum and offer best-practice tips in relation to complaint handling and investigations to ensure the safety of their workers.  

This should help employers and HR avoid any reputational damage that their organisations may face when these issues are not managed to the high standards now expected by both workers, the government and the broader community. 

Best-practice complaint handling    

While best practice will look different in different businesses, depending on organisation size, operations (e.g. remote or international), HR and employee relations capacity, etc., employers should generally be implementing the following best-practice steps to ensure complaints are handled appropriately:

1. Consult with workers about existing and proposed complaint handling measures within the organisation.    

As persons conducting a business or undertaking, employers must, so far as reasonably practicable, consult with workers (which includes employees, contractors, volunteers and anyone else who carries out work for the business) who are or are likely to be directly affected by a health and safety matter.

Inevitably, many complaints about unsatisfactory workplace behaviour relate to safety matters, including psychosocial hazards.  

In engaging and consulting with workers about complaint handling measures and mechanisms, organisations are able to obtain real and practical knowledge and experience to make improved and informed decisions about how to handle complaints in a safe manner.

2. Implement a workplace policy that sets out the organisation’s complaint handling procedure

The policy should set out in clear, concise and plain language for workers to understand:

1. The who, what, where, why and how of making a complaint or raising a concern (including various options based on the level and rank of the person being complained about and the information required).   
2. That the process will be undertaken as confidentially as possible, explaining that information may need to be disclosed on a need-to-know basis.   
3. That their complaints or concerns will be taken seriously.   
4. What immediate action will be taken by the organisation after a complaint or concern is raised, including expected time frames.   
5. Options available to the worker to ensure their safety and wellbeing (e.g. if required, temporary adjustments to reporting lines, access to leave, etc.).   
6. Informal and formal options available to resolve the complaint where appropriate.   
7. An outline of possible consequences if misconduct in breach of an organisation’s policy or law is found to have occurred    
8. Where workers can provide feedback about the policy.

3. Implement a bystander policy

This policy should set out the organisation’s expectations for workers to report any inappropriate conduct witnessed as a bystander.

4. Regular and continuous communication

Organisations should regularly communicate the existence of relevant policies and procedures to employees and where they are located.

This should not be an exercise limited to the induction and starter packs for new workers, but part of a wider HR strategy to ensure workers are embedded with knowledge about the organisation’s expectations and the rules that govern the workplace.

5. Access to information

The complaint handling policy and procedures should be easily accessible and publicised to all workers (for example, located on the organisation’s intranet, on staff notice boards and provided as part of the welcome pack for new workers). The regular communication, mentioned above, should capture this point.

6. Appropriate training

Provide tailored training to all workers, and separate training specifically designed for managers and those who have people management responsibilities, to ensure they:

1. Understand the obligations they have in the complaint handling procedure.  
2. Equip them with the knowledge and information to discharge their obligations    
3. Know how to respond and/or escalate the matter appropriately, by testing them on the training content.

The training for everyone may be conducted by way of an interactive learning module or workshop that simulates different scenarios and guides decision-making depending on the type and severity of the allegations, and tests employees on the content covered.

Organisations may also like to consider offering mental health first aid training to equip front-line managers with recognising and responding to workers experiencing a mental health crisis arising from workplace conduct experienced or witnessed by workers.

“Communication is key throughout the investigation process to limit prolonged uncertainty and anxiety for all parties involved.”

Best-practice investigations    

Once a complaint or concern has been reported, and the organisation is aware of an issue, appropriate action must be taken by the organisation within a reasonable timeframe, and taking into account its available resources.

This is because there is a potential hazard that the organisation has been made aware of and needs to address promptly. Failing to act swiftly is the equivalent of leaving hazards such as a puddle in the middle of a shopfront, or a loose screw in a piece of machinery, meaning it often becomes too late to act.    

Appropriate action may take the form of a factual investigation to determine whether the allegations are more likely to have occurred than not, on the balance of probabilities, and should involve at least the following steps:

1. Undertake a risk assessment and determine whether any workplace adjustments are required to protect the safety of the complainant, and ensure confidentiality      

Depending on the nature of the allegations and proximity of working relationship between the complainant and the alleged perpetrator, workplace adjustments may need to be made to ensure everyone’s safety while the investigation is being undertaken.

For example, temporarily changing reporting lines, directing one of the parties to work from home or, in serious matters, suspending the alleged perpetrator from work until further notice.

2. Determine whether the investigation will be undertaken internally or by an external/independent party, and select an appropriate investigator

Subject to the seriousness of the allegations, it may be appropriate to conduct the investigation internally, by way of desktop review, etc; or seek legal advice; and/or engage an external third party to conduct the investigation.

Whatever way the matter is to be investigated, the investigator must be impartial, which means the investigator should not have any conflict of interest (either actual or perceived) – such as a former manager or close colleague – with the parties involved in the complaint; and should ideally be trained with undertaking investigations.

3. Communicate next steps clearly      

Communicate appropriately, and as applicable to all relevant parties, that a complaint has been made, who will be undertaking the investigation, what the investigation process will involve – including estimated timeframes – and what some of the potential outcomes could involve. 

This may also involve strategic communications with relevant teams to ensure confidentiality is maintained and the organisation’s commitment to a safe and inclusive workplace environment is highlighted. 

Communication is key throughout the investigation process to limit prolonged uncertainty and anxiety for all parties involved.

It provides assurance to complainants that their complaint is being treated seriously and managed appropriately, and keeps alleged perpetrators abreast of when findings are expected to be made.

4. Review the organisation’s policies and procedures with respect to complaint handling and investigations      

If the organisation has committed to a policy or procedure in relation to how complaint handling and investigations will be undertaken, these must be complied with, as all employees will expect that the process they have been notified about will be followed.

5. Conduct fair and objective interviews with the complainant, all relevant witnesses, and the alleged perpetrator

Give all parties the benefit of the doubt. Everyone involved should be treated in a fair and uniform way. Questions should be prepared in advance so interviewees will be able to tell their side of the story fully. Leading questions such as, “You knew what you were doing was wrong, didn’t you?”, should be avoided as theymmay lead to a biased response.

Where additional witnesses are identified during interviews, care must be taken to determine whether or not they should be spoken to, to ensure all available evidence is collected before any factual findings are made.

6. Record keeping

Keep a clear and comprehensive record of all steps taken, including keeping all interview transcripts, notes and evidence collected.

7. Investigation report

In many instances, the investigator should prepare a report at the conclusion of their enquiries. The report must contain the findings of fact and, if asked by the organisation, make recommendations and/or a determination.

If the investigation has been conducted in order for the organisation to obtain legal advice, the report should only be provided to the ultimate decision-maker(s) and not to any other parties.

8. Findings

The organisation should, after receiving the investigator’s findings, communicate those findings and any decision appropriately to all the parties involved.

The ultimate decision maker should ensure the final decision is proportionate to the findings made. Where adverse findings and outcomes are proposed, the organisation should provide the alleged perpetrator with the opportunity to respond before a final decision is made.

 This ensures the alleged perpetrator is given a procedurally fair process to provide any additional information that may not have been disclosed and could therefore impact the findings and outcome proposed.

What should HR do next? 

It’s clear that workers and the wider community are increasingly placing a higher standard on businesses and organisations to provide a safe and inclusive work environment. 

Accordingly, it’s more important than ever that organisations review their governance structure to ensure they have an effective ‘prevention and response plan’.

Such plans should include adequate complaint handling systems and ensuring workplace investigations are conducted correctly.

 As has been seen recently, failure to do so has far-reaching consequences, not only in damaging the organisation’s reputation with the public, but internally damaging workplace culture and creating a loss of trust in leadership, which will take significant time and resources to repair, if they are, indeed, repairable at all. 

Aaron Goonrey is a Partner and leads the Australian Employment & Rewards practice at Pinsent Masons and Jessica Park is an Associate at Pinsent Masons. The advice in this article is general in nature and does not constitute formal legal advice.

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

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Have you ever encountered an employee with a knack for finding fault in every aspect of their job?

Responding to employee complaints is an unavoidable part of life in HR, but finding the right way to manage a chronic complainer is no small feat. Employees who see the negative side of every situation can drain colleagues’ energy and even jeopardise their psychosocial safety.

However, while there are instances where complaining does amount to a behavioural problem, there are also instances where employee complaints are an opportunity for improvement, says Karen Gately, Founder of HR consultancy Corporate Dojo.

“Labelling complaining as ‘whinging’ is a convenient get-out-of-jail-free card that leaders pull out too often. Rather than being willing to actively listen, sometimes they’re distracted by the mode of delivery of the feedback because it sounds like whining,” she says.

“The first step for [HR and managers] is to recognise that, regardless of how it’s delivered, feedback is feedback. And sometimes the squeaky wheel is squeaking because it needs oil, not just because it’s in the mood to.” 

Four types of complaining

When it comes to managing a complaint at work, a useful first step is to assess the intentions behind it.

A recent paper published in the Harvard Business Review broke down employee complaints into four key categories. Understanding the nature and intent of each type of complaint can help HR and managers decide on the best approach to tackle them. 

1. Productive complaining

The main thing that sets productive complaining apart from other forms of complaint is a genuine desire on the part of the employee to help find a solution to their problem.

For instance, an employee who flags that they have an unsustainable workload should not be labelled a ‘whinger’, since this is useful information that can be acted upon for the benefit of the employee and the wider workforce. 

But how can managers discern productive complaining from its less-productive counterparts?

“As a starting point, it comes down to your broader observations about this human being and their reasonableness. If you get repeated complaints around the same issue from somebody who is typically balanced, considered and pragmatic in their point of view, that’s a pretty strong tell,” says Gately.

In these cases, it may be more sensible for HR to treat their grievances as feedback rather than complaining, she says.

“I would be careful before labelling things as complaints… If somebody wants to be part of the solution, then they’re not really complaining. They are advocating for change.

“We can help and encourage people to reframe these things as opportunities for improvement. And we want to be really clear that we’re inviting that feedback from our organisation.”

2. Venting

Unlike productive complaining, venting has one core purpose: the release of pent-up emotions. 

Employees who vent might emphatically express their dissatisfaction about something or someone, but generally do not do so with an idea to address the issue – instead, they simply wish to offload their frustration. 

Another possible intention behind venting is to form emotional connections with colleagues over shared grievances.

A 2012 study by the European Journal of Social Psychology found that emotional venting after a bad experience has multiple benefits, including temporary relief from stress, enhanced social integration, less loneliness and the overall impression of feeling better.

However, in spite of these benefits, Gately recommends approaching this form of complaining with caution and consideration for those on the receiving end of it.

“We are naïve to think that people never need an emotional outlet for frustration,” she says. “It’s how they go about it that we need to influence and manage. 

“If people are routinely venting, and they’re loud, it’s disruptive to the rest of the group’s energy levels and sense of confidence. [In that case], we need to coach them to have a different pressure release. But, at the same time, we can also create the space for people to safely vent.”

For example, she suggests encouraging employees who feel the need to vent to do so in a controlled environment, such as a private meeting with their manager, where they can have moments when they’re less than emotionally rational.

“As long as they’re maintaining common decency and respectfulness in their conduct, and you maintain a very clear understanding that you don’t bring that into the team environment, then you can give people some room to do that from time to time.”

“If somebody wants to be part of the solution, then they’re not really complaining. They are advocating for change.” – Karen Gately, Founder, Corporate Dojo

3. Chronic complaining

Sometimes, complaining is the result of a person’s mindset rather than an objective problem. This is true in the case of the ‘chronic complainer’, whose tendency to pick holes in every situation never seems to fade, even when their grievances are addressed. 

This form of complaining can be frustrating and harmful to the listener, whose energy may be zapped by the negative rhetoric and who may feel powerless to help, since new gripes continually crop up to replace old ones. 

Therefore, to manage this type of complainer, Gately suggests looking at the person’s attitude rather than the things they find fault with.

“Sometimes people complain about things that just are. So it’s about coaching them to accept reality, and coaching them to come up with solutions… [HR should] help people to see that they have the power to choose a different mindset and perspective,” she says.

“If you constantly come to me with a complaint, my first question needs to be, ‘What solutions do you imagine we could be putting in place?’ So straightaway, I’m asking the person to think for themselves around what the resolution is.”

Managers should offer ample support and guidance to help the employee adopt a more balanced, solutions-oriented attitude, she says. 

4. Malicious complaining

While chronic complainers can inadvertently harm those around them, malicious complainers do so deliberately. This type of complaining serves the self at the expense of others, and contributes to a psychologically unsafe working environment.

“The approach to this would be similar [to chronic complaining], but much firmer,” says Gately. 

“We need to nip this in the bud right away, because it’s bullying, it’s unlawful and it’s devastating to a culture and team spirit.”

For employees who routinely exhibit this behaviour, managers will likely have to make the tough call, she says.

“Maybe for a one-off event, we can be empathetic [and say], ‘Okay, you got a bit nasty, you got a bit vengeful, you got ahead of yourself here.’ We can still give people the opportunity to realise that that’s not okay and  correct their own attitude.” 

But if you get to a point where you realise this person’s malicious behaviour isn’t going away, you will need to consider more serious consequences, such as your official disciplinary process. 

Rethinking your approach to managing complaints

As well as assessing the type of complaining that they are dealing with, Gately advises HR to apply some big-picture thinking to the way complaints are addressed in an organisation.

“What I would be doing as an HR director is influencing a culture of learning. And that’s from the CEO down: everybody having curiosity around how we can keep evolving and improving.

“As long as I choose to keep somebody around, and they’re on my team, I should have a level of curiosity around how they are thinking, how they are feeling and what’s driving that.”

A culture of curiosity can take the bite out of complaints and prevent them from being blown out of proportion, she says.

“For some HR people, when they hear [complaining], their bullying radar immediately goes up. And they think, ‘Oh, this is a formal complaint.’ But not everything has to be scary and kick-start us into risk management mode.

“That can be part of the reason why people stop complaining. It’s like road accidents; what they tell you in first aid is to go to the people who are quiet. If they’ve stopped complaining, they’re in a more serious state.”

So employees continue to see the value in speaking up, Gately suggests making it clear that you welcome the feedback and keeping the employee in question up to speed with the resolution process.

“Communication is key. It’s about leaving the individual feeling as though you’ve heard them, you’ve understood what their feedback is and there have been actions taken. That’s not always a solution or a change, but they need to know it went somewhere.”

By maintaining open lines of communication and avoiding an overly reactive stance, HR can navigate complaints with empathy and proactive problem-solving, ultimately fostering a more harmonious and productive workplace.

Explore how to effectively identify, manage and resolve team-based and interpersonal conflict in the workplace with this short course from AHRI.

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In part three of HRM’s content series with The Ethics Centre, where we ask AHRI members to respond to made-up ethical dilemmas, we explore what HR should do when they’re caught between allegations of bullying from an executive team member and a potential media scandal. 

The ethical dilemma

A member of the executive team has confided in you, the HR manager, about ongoing bullying from the CEO, to whom they report to directly. This is not the first time this CEO has been reported in this way, and they have previously been given extensive training and support from the HR team to build their awareness and skills in this area. 

Personally, you agree that the CEO’s behaviour is unacceptable, and despite being given opportunities to change, they haven’t.

The employee who has come to you is a star performer in the team but is increasingly demoralised and impacted by the CEO’s behaviour. However, due to personal reasons, they aren’t in a position to change jobs and they don’t want their relationship with the CEO to be damaged, so they ask that you keep the information confidential, which you agree to. 

Trusting you, the employee starts confiding in you more often; they treat you like a friend. One day, at an out-of-hours social event, over a few drinks, the employee mentions that they’ve had enough of the CEO’s bullying and tells you they’re planning to go to the media as an anonymous source and expose the CEO.

Do you break the confidence of the employee and take the matter to the CEO and/or the board? Or do you keep your promise and stay quiet?

Genevieve O’Reilly, Director of Finance and HR, Ortec

The simplest answer is to take the matter to the Chair of the board. There is a lot at stake here: the health and wellbeing of the employee in the long term; the reputation of the company; the morale and confidence of all employees; and last, but by no means least, the future of the company if it’s unable to retain its talent. 

Upper management needs to be held to the same standards as others, and so disciplined accordingly. If this was a regular employee – i.e. not an executive – they would have been placed on a performance improvement plan and held accountable for their behaviour. 

To mitigate any negative fallout from breaking the confidence, I’d have a frank discussion with the employee to align on why this must be escalated. I’d explain that it’s the remit of a board to exercise oversight of workplace culture, to support organisational talent development, and to select and monitor the performance of the CEO and executives. 

The board assists in setting the tone when it comes to legal and ethical standards, and compliance, and should always be involved in these matters because proactive measures can be put in place. If a board is only ever reactive to issues, then the damage is already done at an organisational level.

Brad George, People and Culture Manager, Arnhem Land Progress, Aboriginal Corporation

Directors and boards have obligations under workplace and safety legislation. Because of this, they will have to respond to a bullying allegation against the CEO. A board’s awareness of the issue will trigger a response no matter how the issue is raised. 

In this scenario, I would immediately report the potential for the matter to become public to my line manager, who I presume to be in the C-suite. I would say I’ve become aware that there is a possibility of an unformalised bullying claim that will directly impact the CEO and bring the organisation into disrepute.

 With that notification would be the following guidance:

• The absence of the use of the grievance procedure by the aggrieved employee or an investigation won’t undo the damage of the allegations being public.
  
• Any media queries may include knowledge of the organisation’s response to previous bullying claims against the CEO and show a pattern of behaviour. 
• The formalisation of the bullying claim through Section 789FD of the Fair Work Act has the potential to result in significant disruption and distraction to the business.
  
• Any action against the individual who raised the claims, if or when they are identified, will create additional obligations under the Fair Work Act, and most likely the relevant state anti-discrimination legislation.

As I am not on the executive team, I have now fulfilled my responsibility without naming the aggrieved person. 

Asher Green, HR Manager, VAE Group

​​This is complex because while confidentiality is fundamental, so is the duty of care and not standing for unacceptable behaviour.  

Realistically, by not managing the bullying issue up until this point, we have been ignoring the risk that brings, as well as the impacts that bullying has on individuals and their wellbeing, not to mention the probability of breaching our own policies. 

The standard we walk past is the standard we accept. The first step I would take would be to de-escalate the situation with the manager. Talk to them about not doing anything rash and ask them to chat with you the next day, with a clear head. I would talk through the process of managing the bullying claim internally, what that would look like, and how we can protect the employee from victimisation.  

I would also discuss the potential fall out of going to the media, to try and help them see the bigger picture outside of the impact to the CEO such as what it might mean to the broader business, which in turn could impact their team and their role. 

If the employee remained adamant they were going to go to the media, I would then outline that it would be my responsibility to manage the risk to the organisation and that I would need to bring it to the attention of the board for the matter to be dealt with further. 

How would you respond? Let us know in the comment section. Or catch up on part one and two of this series.

This article first appeared in the May 2022 edition of HRM magazine. If you’re struggling with ethical conflict at work or at home, there is a free service that can help. Ethi-call, run by The Ethics Centre, is a free helpline dedicated to guiding people through life’s hardest choices. Make a booking at ethi-call.com. And, to learn more about how you can facilitate an ethical workplace culture, sign up to AHRI’s short course on the topic.

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A senior executive’s $1 million payout and reinstatement to the company that dismissed him has been overturned after an appeal has been allowed by the Federal Court. 

In the original trial dealing with the general protections application, the presiding judge ruled against the company Cummins Group, finding that adverse actions taken against its senior executive, including his dismissal, were primarily motivated by complaints he made about an HR leader.

In the appeal decision, three justices of the full Federal Court felt the original judge had erred in parts. They allowed the appeal on several grounds and ordered the proceeding be referred for urgent mediation and, if that fails, another court date be organised.

Their ruling holds lessons for HR on the nature of workplace complaints and how they should be dealt with.

Do you need a basis of complaint?

In its appeal, Cummins argued that four of the five complaints the executive referred to in his original claim were not protected for two reasons. To simplify, they were arguing: 

1. that a complaining employee needs to have a right or entitlement underpinning their complaint in order for it to be protected;
2. and that the complaint itself needs to have certain features (specifically, it needs to “seek redress”) in order to be a protected complaint. 

In rebutting Cummins’ first reason, Justice Bromberg came down on the side that employees do not have to have specific rights or entitlements underpinning their complaints in order to be protected, so long as the complaint is related to their employment.

“Why would it be that Parliament intended that an employee dismissed for complaining about her existing rate of pay should have a remedy, but an employee dismissed for complaining about her lack of any entitlement to work at home should not?” he says.

Justice Mortimer generally agreed with Bromberg on all issues, providing a majority ruling for his findings. But there was dissent. Justice Anastassiou disagreed on several points. 

He argued “an anterior right or entitlement to make a complaint” is required based on the understanding established in previous cases. He examined one in particular where it was found the submission of a CEO report did not count as a workplace complaint as it was an ordinary duty, and therefore not underpinned by a right.

What should HR do with this ambiguity?

“The law remains unsettled: there is no determinative statement of what constitutes a complaint or enquiry,” says partner at Swaab Michael Byrnes. “So it would be prudent for employers to assume courts will take the Bromberg view.”

That means taking every complaint seriously, and not worrying about whether it will fit a narrow technical definition. 

“The best way of doing that is to take each complaint and enquiry and address it. Investigate the complaint, take action if appropriate, then report back to the employee on the outcome,” he says.

“You want to be able to say this employee raised an issue, we treated it as a complaint under the Fair Work Act, and we had it addressed. That enables the employer to isolate the enquiry from any disciplinary action.”

This means if you demote, dismiss or otherwise sanction an employee, the evidence you’ve documented will clearly demonstrate that it had nothing to do with their complaints.

“You want to be able to say this employee raised an issue, we treated it as a complaint under the Fair Work Act, and we had it addressed. That enables the employer to isolate the enquiry from any disciplinary action.”

When a complaint isn’t a complaint

Documentation is even more important with relation to Cummins’ second reason. To simplify again, the justices investigated whether or not the executives’ complaints were merely expressions of frustration.

The crucial difference isn’t so much the location and timing – it’s if the complaint is seeking redress. Is the employee making an off-handed statement, or are they expecting the company to do something?

Bromberg found that the first two complaints, which were both about tension between the executive and the HR leader, were legitimate. The first because the executive mentioned wanting to have a meeting to come up with “a strategy to resolve the current situation”. 

The second is more interesting because it took place in a bar. The executive apparently asked why the HR leader was “making false allegations against him”. Bromberg agreed with the initial judge that it didn’t matter that it took place in a social setting, saying, “viewed in its proper context, including the making of the first complaint, the communications made by [the executive] was at least impliedly seeking redress”.

The third complaint was about a performance improvement plan (PIP) the executive had been placed on. The executive complained aspects of the plan were “subjective and ambiguous”. At trial, the executive said he was “just giving feedback on the document”. Bromberg said that this was tantamount to admitting he wasn’t seeking redress, and so upheld Cummins’ appeal.

Anastassiou ruled in the opposite direction for all three complaints.

For the first two he found that the executive was voicing “dissatisfaction about the interpersonal relationship” between himself and the HR leader and that – although “deteriorating relationships may mature into formal complaints” and there is no “requirement of formality for a complaint” – the complaints failed to reach the required standards. Returning to the previous disagreement between him and Bromberg, he says, “these complaints were not underpinned by any right or entitlement to complain”.

On the other hand, the third complaint was legitimate, says Anastassiou. The fact that the executive was contractually obligated to engage in it meant there was an implied underpinning of a right to complain. 

This fact, and the executive’s view that it was forced on him, explained why his “express complaint fell short of making any specific demand for redress”. 

These two justices disagreed again on the fourth complaint for much the same reasons as the first two, and all these differences show that this area of the law is not cut and dry. The justices applied the same tests against the same evidence and came up with different conclusions – they even had different views on when seeking redress was or was not implied.

Again, it’s better to not dig into the technical aspects of the complaint, it’s better to just deal with it, says Byrnes, which means not paying too much attention to where and when potential complaints occur. 

This does raise the question of how you could possibly do that much investigating. Every workplace in the world is subject to countless comments, criticisms, from all sorts of staff every day – in all manner of contexts. How could you possibly go about chasing up each and every one?

“It’s about educating and informing frontline managers about this issue, what a complaint is, and making sure they are in regular communication with HR,” says Byrnes.

Frontline managers are going to be dealing with informal complaints far more frequently than the HR team, so giving them a sense of what they should do with them is important.

“That doesn’t mean you need a complex investigation into every grievance, just that each is dealt with proportionately and appropriately,” says Byrnes.

It should be noted that this appeal was not an outright win for Cummins. In the majority opinion, the original judge inappropriately took a “global approach” to the complaints rather than assessing each adverse action claim separately to see if they were motivated by protected reasons. 

The court upheld the appeal because it found that the original judge made errors – it’s quite possible that a different judge would have conducted a more thorough investigation and made the same ruling.

The best thing HR can do to help their organisations is to understand the general protections provisions, ensure adverse action is never taken for the wrong reasons, and to conduct appropriate complaint resolution in every instance. Because once a claim is in court, a lot rests on factors outside your control.

HR law underpins much of the work that HR practitioners do across the employment lifecycle. Improve your understanding with AHRI’s Introduction to HR Law short course.

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Some people like to get a bit creative when it comes to their “rights” at work. You wouldn’t think you’d need to explain to employees that they don’t have a fundamental human right to come in after 10am because they had a “big night” or that they shouldn’t change into lunchtime activewear inside their glass office, but sometimes you do.

In reality, where do workplace rights actually begin and end? Lucky for us, the Fair Work Act has gone to the trouble of defining them for us.

What does the Fair Work Act mean by ‘workplace rights’?

We have the right to not be treated differently due to our race, sex, age or disability, among other things. Disappointingly for some, pointing and laughing at someone for their poor choice of hairstyle remains fair game (yet could constitute bullying if repeated). We have the right to enjoy the benefits and protections of our employment agreements or any relevant awards or enterprise agreements, such as being paid what we’re owed. We also have the right to participate in lawful union activities.

The Fair Work Act even gives us the right to make a “complaint” or “inquiry” while at work, although it is not all that clear whether this protection extends to complaints about the choice of Nespresso coffee pods in the kitchen, or whether it needs to be about something more substantive (such as the overabundance of tuna sandwiches at work conferences). At the very least, it appears to need to be related to your work – it’s probably not a workplace right to be able to complain about your noisy neighbour, unless you work with them.

Cases on the subject also suggest that a complaint or inquiry has to be about something that would have a direct and tangible impact on your employment, so it’s no good protesting the long-winded speeches management give at work functions. Complaints which have been upheld as exercising a workplace right include:

• employees not being paid commissions in accordance with their employment agreement;
• a colleague having a conflict of interest in choosing to engage their daughter as being a preferred supplier to their business; and
• inappropriate statements made to them by a senior manager.

In contrast, employees expressing concerns about another staff member’s dissatisfaction with their job, or about the general lack of structure or direction within the business, have been found not to be exercising a workplace right.

What are the “right” takeaways about workplace rights for your business?

• It’s sometimes, but not always obvious when something is or isn’t a workplace right. When in doubt, err on the side of it being one, and avoid the risk of infringing upon a legitimate right.
• You should have a clear set of policies which outline and detail well-known workplace rights, such as the right to not be discriminated against on an unlawful grounds.
• Your employees should receive regular training to ensure they are aware of their own and others’ workplace rights and the possible consequences for infringing upon them.

What’s the purpose of workplace rights?

Why does any of this matter? The Fair Work Act prohibits anyone taking “adverse action” against someone else because they have (or might exercise) a workplace right. We’ll take a closer look at the meaning of “adverse action” in our next article, but for now it’s enough to say that people aren’t allowed to do bad things to others if they are motivated by the existence or use of a (genuine) workplace right.

Employees’ workplace rights are not always clear cut. The principles to keep in mind are that the rights are protected by law and need to relate to work. Employees don’t have an absolute protection to make a complaint or inquiry – it needs to be, at minimum, reasonable and related to work. We wouldn’t, for example, be pushing the “right” to leave at noon on a Friday.

Aaron Goonrey is a Partner and Luke Scandrett is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice.

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On the scale of workplace disputes, a few stray food scraps might seem trivial, yet the office kitchen is a perennial, highly charged battleground. Even well intentioned staff can come a cropper by stacking the dishwasher incorrectly. Then there are those who think pinching a splash of milk or smidgen of butter is a victimless crime.

Yet long after the ensuing witch-hunt, you’re not the only one still fuming, according to Macquarie University’s Organisational Psychology director Barbara Griffin.

“Our research shows when people are treated in an uncivil manner, they have trouble disengaging from work at night,” Griffin says. “Even 24-hours later their stress is higher.” She says uncivil behaviour, such as leaving common areas messy, has productivity implications. “The more staff experience incivility, the lower their job satisfaction and engagement,” she says.

Leadership development company director James Adonis says one kitchen slob can spoil the bunch. “If people see others leaving dirty dishes then that catches on, especially if managers do it,” the Team Leaders director explains.

By the time the microwave is encrusted with splatters and back-of-the-fridge leftovers require carbon-dating, there are safety risks too, according to Jennifer Chiplin from Active OHS.

“Hazards include slips, falls and burns from liquids on the floor,” the health and safety consultant says. “Then there are issues with staff using unclean crockery.”

A 2013 Initial Hygiene survey found most office kitchens were dirtier than toilets, with more than half of surfaces capable of causing illness. Microwaves and kettle handles were the worst culprits and had the most bacteria .

But while staff may make the mess, Chiplin says the buck stops with employers. “Every employer has a primary duty of care to ensure the health and safety of workers,” she notes. “It cannot be delegated.”

So how can workplaces instill good practice in the office kitchen?

Inform

James Adonis says while passive aggressive notes make great viral internet fodder, they’re not the key to kitchen harmony.

“They open themselves up to ridicule and people writing passive aggressive notes back,” he explains. “Instead, write a note that’s written for adults who have intellect and manners, but are forgetting them.”

Chiplin says signs and inductions should notify staff of their legal requirement to prevent injuries, and suggests making safety a performance measure.

Carrot and stick

If staff can’t be trusted with kitchen implements, consider confiscating them, Chiplin advises. “In small companies staff are often asked to provide their own crockery and utensils to encourage cleaner kitchens,” she says.

A similar tack could be taken with leftovers by warning that unclaimed items will be thrown out weekly.

Alternatively, try the carrot approach, suggests Active OHS director Kerry Foster. “There could be a star system for completing all kitchen tasks,” she offers. “Stars for every day mean a free BBQ.”

Monitor

People may steal or leave a mess because they think they can do so anonymously, Griffin suggests. 

She points to a 2006 study by Bateson et al. that considered the impact of being watched. It found people paid for drinks in a coffee-room honesty box nearly three times as often when an image of a pair of eyes was posted above the price-list, than when a control image was used.

Adonis suggests more active monitoring. “One solution is to catch (staff) and place them on a performance management program like you would if they stole office supplies,” he says.

Delegate

To stop the counterproductive pointing of dirty fingers, Adonis advocates a cleaning roster.

“People will realise how it feels when others leave a mess,” he says. If staff already have enough on their plate, appoint the task permanently.

“If you’re hiring somebody new, maintaining the kitchen could be one of their responsibilities,” Adonis says. “Or if you have an office manager already hired, you could add this responsibility, but you will have to remunerate them.”

This article is an edited version. The full article was first published in the November 2015 issue of HRMonthly magazine as ‘My office kitchen rules’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.

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Legal perspective: Andrew Bland, principal at Blandslaw

The recent annual report of the Fair Work Commission (FWC) showed the number of bullying complaints trending upwards. However, the numbers are nothing like what the concerned pundits predicted. Nor has the new jurisdiction turned out to be the great threat anticipated to employers and their ability to manage staff, or to the FWC’s capacity to deal with the flood of complaints.

In January 2014, as the new jurisdiction was launched, there were more than 28,000 hits on the FWC’s website dealing with anti-bullying laws. But by the six-month mark, only 343 applications had been made.

There are many reasons why we haven’t seen the spike in complaints forecast. It’s probable many employees remain unaware of the regime and how to apply it. This may account for slow creep in the number of complaints. When faced with an uncomfortable situation at work, many employees will simply leave.

The other major disincentive is that there’s no compensation available. Almost 50 per cent of the 343 applications were withdrawn before the start of proceedings. Some were withdrawn after the initial conference stage, while the majority of complaints were resolved at the conciliation stage.

Only one complaint was submitted for determination by the FWC. However, it was revoked in December, with the applicant stating the FWC process had all but eliminated the conflict between her and a bully.

Does this mean bullying is simply not an issue? Or that employers can ignore bullying complaints, safe in the knowledge that the fledgling FWC anti-bullying regime is unlikely to affect them? Absolutely not.

Research perspective: Maryam Omari FAHRI, associate professor at Edith Cowan University

Perhaps the biggest contributions of the FWA amendments were mainstreaming workplace bullying issues. The value of proactive, preventative and corrective practices far outweighs punitive measures.

The introduction of anti-bullying legislation shouldn’t be seen as an end in itself. In this case, the introduction of the legislation has raced ahead of critical research to unearth key contributing factors in the Australian context.

I’m not a supporter of the definition of workplace bullying adopted in the Act as I believe it’s far too restrictive, and a onesize-fits-all approach fails to capture the complexity of the range of behaviours considered to be workplace bullying.

We should also ask, “How many times does the negative behaviour need to happen for it to be ‘repeated’?” There’s evidence that people subjected to bullying, even if the behaviour was a one-off, can relive the experience, in effect making it a repeated event.

My research suggests that, in the Australian context, there’s a very fine line between robust performance management and workplace bullying. The work and organisational context, the state of health of both parties, the nature of the behaviour of the alleged perpetrator and the performance of the alleged victim can all be contributing factors to the escalation of the situation. This can at times create a scenario where each party accuses the other of workplace bullying.

Business perspective: Tim Baker, director, Winners At Work

From a business perspective, there’s a great deal of confusion about the new anti-bullying laws, particularly concerning the involvement of the FWC and its powers in dealing with complaints.

Most businesses are respecting the need to stamp out bullying. They have adequate policies in place. But their procedures for dealing with complaints need to be updated. Business understands its obligations to investigate complaints and implement outcomes, yet they don’t always have rigorous processes in place to do this.

There’s confusion about what constitutes bullying, and business is aware that some employees are prepared to make complaints that aren’t valid.

These issues can be resolved with thorough awareness training of managers, but some organisations are slow to implement this. There’s a general need, in light of these new laws, to educate managers and supervisors of their role and responsibility on bullying, harassment and discrimination issues. Apart from training, I’m not confident that managers have satisfactory arrangements in place for monitoring and a process for managing complaints beyond those in HR.

Boards may still see this as an operational, rather than a strategic, issue. Boards must satisfy themselves that the business has done all it should reasonably do to protect the business against adverse outcomes.

My advice to business is to implement quality training for managers and supervisors on these laws and for boards and senior management teams to ensure that their processes and procedures are up to date and rigorous in light of these new laws as soon as possible.

This article is an edited version. The full article was first published in the February 2015 issue of HRMonthly magazine as ‘Assessing the bullying barrier’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.

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Conduct of a sexual nature that ‘could reasonably be expected to offend or humiliate’ became illegal under the Sex Discrimination Act 1984.

Has this meant an end to unwanted advances at the Christmas party or sleazy emails between colleagues? Hardly.

Given that one in five Australians have been sexually harassed in the workplace in the past five years, it may also be happening in your organisation.

The Australian Human Rights Commission’s 2012 Sexual Harassment National Telephone Survey reveals that sexual harassment affects a diverse range of individuals across a broad spectrum of occupations, workplaces and industries.

It also demonstrated that one-third of all women and one in 10 men surveyed have reported sexual harassment at work.

While no one is immune, the survey shows that targets are most likely to be women under the age of 40.

“It happens at conferences, late at night in the office, at social events, so there are often no witnesses and if it is brought up it’s often dealt with very confidentially,” says Victorian Equal Opportunity and Human Rights commissioner, Kate Jenkins.

The most effective strategies

Sexual harassment often comes with early warning signs that HR practitioners can detect, such as demeaning attitudes towards women or a macho culture in the workplace that can be alienating for both genders.

“That kind of culture tends to fester,” says federal sex discrimination commissioner, Elizabeth Broderick.

“If you cut it off at the degrading attitudes, you will have success at reducing the levels of sexual harassment.”

The most effective strategies that HR practitioners can take to prevent sexual harassment in the workplace start with a zero tolerance approach.

“This needs to come from the CEO, the board and all leadership that sexual harassment is not part of an inclusive workplace environment and won’t be tolerated,” says Broderick.

Developing a strong policy

A workplace sexual harassment policy should define what sexual harassment is in the context of a particular workplace and clearly state the consequences of inappropriate behaviour.

It should also include a clear commitment to gender equality by senior leaders and a promise of prompt grievance procedures.

“There must be an easily accessible complaints mechanism that allows people to raise complaints early on,” says Broderick. “It’s a basic human right to feel safe at work. People need to know that if they stand up and report harassment they won’t be victimised and that action will be taken.”

Training is also essential in communicating and implementing a policy across the entire workforce, and in ensuring that the policy continues to remain effective.

“It’s got to be scenario-based, not just ‘well, this is the law’,” says Broderick, adding that regular training can also provide updates to legislative changes.

Jenkins also speaks of a current shift towards a bystander preventative approach in sexual harassment instances. This deals with the ways in which individuals who are not necessarily the targets of sexual harassment can intervene to help other colleagues and should be encouraged to do so.

“Prevention needs to look more at the team environment,” she says. “The team is much more influential in changing behaviours and creating an environment where sexual harassment does not occur than by leaving this to individual misdemeanours that are dealt with.”

Case study: How Transurban is saying no to sexual harassment

At toll road network company Transurban, sexual harassment is never accepted and never excused. Employees know this even before their first day on the job.

Before commencing work, all new-starters are given the company’s code of conduct and equity in the workplace policy, to which they must agree to comply.

During their first week, new employees complete a range of online education programs, including an equal opportunity program, and in their first 60 days they will have completed the Transurban Induction Program, a face-to-face initiative that reinforces the company’s tough stance on sexual harassment.

“Everything we do in this area is at a manager level and an employee level,” says Transurban’s talent development manager, Louise Anderson.

“By having different layers and ongoing information and education, this embeds it into the way we work at Transurban. We also have equity contact officers who regularly undergo training on what to do if they witness misconduct or if it is reported to them.”

Transurban’s grievance policy also outlines a step-by-step response to incidents of sexual harassment.

“Often people come and say: ‘I don’t want you to tell anyone and I don’t want to do anything about it’, but because of our commitment to a zero tolerance approach we have an obligation to address it.”

Anderson says the approach pays off.

“Instances [of discrimination] are very few and far between and I think it’s because of our proactive approach.”

The post Preventing sexual discrimination appeared first on HRM online.

Sometimes the employee wants to lodge an official complaint. That outcome involves a considerable amount of work and requires a strict application of professional process and the exercise of good sense, but at least there is a process to follow and it’s “straightforward”.

I say that because there are other occasions on which the person just wants to let someone know or have an opportunity to vent, but doesn’t want to go as far as lodging a formal complaint.

Those occasions place an HR practitioner in a difficult position, especially if the employee appears distressed or otherwise “not themselves”.  From the individual’s perspective, the opportunity to unburden may be a great relief but from where the HR manager sits, the information that has been communicated is in a zone that’s akin to a no-man’s land. A complaint has been received but the complainant does not want to call it a complaint.

So what do you do as an HR professional if you can’t convince the person to formalise the complaint?  How do you sleep at night when you are concerned not only about the welfare of the individual but the detrimental effect the behaviours reported might be having at the team level?  Do these reported behaviours reflect the wider culture of the organisation?

These considerations prompt the question as to whether the duty of care overrides the duty of confidentiality.  How do you deal with the issue of employee trust if you decide to take the issue further without the consent of the complainant?  Do you write a file note but keep it to yourself?

There are no simple answers to these questions and they probably can’t readily become the subject of legislation.  The need for exercising discretion and judgement by the HR professional is paramount, as is the imperative to keep in touch with the complainant and monitor any movements on the issue so it doesn’t take on a new life that runs out of control.

One thing that might help is to ensure the organisation effectively communicates and provides ongoing training on issues related to inclusion that touch on the organisation’s policies and procedures about bullying, harassment and discrimination.

If that happens everyone at least starts on the same page.

Just how prevalent these issues are no doubt varies from workplace to workplace, and those with a strong inclusive culture may report fewer cases. However, human nature is human nature and it’s our role as HR practitioners to know how to handle people so that we are supporting the employees as well as the organisation.

But we are now in an era where human behaviour and the law are combining to produce circumstances that result in HR managers being exposed to legal action being taken against them as individuals in the performance of their duties.  Mindful of that, I’m sure grey areas such as the one I’ve described contribute to plenty of sleepless nights.

I would be interested in hearing about the experiences of others on this delicate question.

Hayley Breen is a senior development and research consultant at the Australian Human Resources Institute.

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