The Victorian Supreme Court recently issued a stunning decision awarding an employee over $600,000 comprising $210,000 for pain and suffering and the balance for lost past and future income, despite the employee having a significant pre-existing psychiatric illness and a finding that no bullying had occurred. Continue Reading Damages in bullying claims – the stakes are rising even higher
Ronda “Rowdy” Rousey was at the top of her field, training hard and winning harder. Her success had built her brand. So much so that she diversified into acting with parts in two big budget, big publicity movies. Then it happened. Her reputation did not match her performance. Immediately the questions started – would she come back?
As the saying goes ‘the bigger you are the harder you fall’.
The shock and self-doubt experienced by Rousey and the public commentary about her performance and her future are also experienced by organisations and industries following a significant or catastrophic workplace incident.
There is the shock. That a colleague, friend or someone on their watch has suffered serious injury, or lost their life. There are questions about why the systems and the commitment to safety were not enough to prevent the occurrence. Your performance has not met your own expectations and the expectations of others.
Then comes the uncertainty about what comes next. Uncertainty about what an investigation will reveal about the failure, the associated consequences and the future cost of prevention. You will question if you are going in the right direction, including whether your systems and processes are adequate. The safety solution is not the only area of uncertainty for business – it extends to how to re-build trust, how to re-build brand and how to re-build performance. In short, how will you get back in the ring?
Like Rousey the business has to persevere. It has to assess what happened, what needs to be reinforced, what needs to be improved and what needs to change. Was there over training? Or undertraining? The wrong preparation? The wrong support team? Is there new technology or new techniques that can assist? Are there improvements that can be made to the system of work? Do you need a new coach? Or a new approach? In reality it is probably a combination of all these things (and more) for the business to get “back in the ring”.
Then the hard work needs to start again. Not from the beginning, but building on what was implemented before the incident and incorporating the lessons learnt. We often find that organisations that have experienced a significant or catastrophic incident take a different approach to risk control than those that haven’t. They keep a healthy level of vigilance on the performance of their critical controls and they drive the commitment to safety through all levels of their business. They use a variety of levers to engage and embed an incident prevention mindset – they are not afraid to bring in outside expertise to give them the edge to get back on top.
And like Rousey, it is important to take your time, consider your options and develop the right strategy to get you back in the ring.
As the Beliebers of Australia will tell you, tickets for Justin Bieber’s 2017 “Purpose World Tour” were released in Victoria on Wednesday, 12 October at precisely 1pm. In a frenzy, fans across Victoria were using their employer’s time and resources to purchase (or miss out on) tickets.
As society becomes increasingly digitalised, it’s now common for employees to use their employer’s internet access for non-work related purposes. Referred to as ‘cyber slacking’, can be a source of frustration for many employers who endeavour to limit recreational internet usage for staff. On the other hand, many employees feel that due to the increasing demands of work life, such as long hours and weekend work, personal internet usage ‘on the job’ should be accommodated. Is workplace flexibility just about leaving work 15 minutes early for an appointment, or does it include personal admin tasks that are done during working hours?
In an age where flexible workplace arrangements are becoming increasingly popular, how far should this leniency stretch, and perhaps more importantly, what is deemed as “appropriate” personal administration? Is personal banking OK? How about perusing the latest shoe sale? Facebook? Trawling Broadsheet in search of Melbourne’s most perfectly poached 63° egg? Reading the newspaper online? Does the scope extend further to include personal printing of documents? Home calls on company phones?
For employers, drawing the line can be difficult. Frustratingly, there are no hard and fast rules on how to deal with employees using work resources for personal reasons. But, employers are entitled to impose and specify reasonable limits. In assessing how to balance these competing interests, it is important to take a practical and realistic approach. Employers are able to maintain some control over employee’s personal admin tasks through workplace policy and lawful and reasonable direction. All organisations are different and time apportioned will depend on the culture of the business.
What is clear is that it is unrealistic to never-say-never to employees in relation to personal admin tasks performed during working hours. Just as employees are increasingly expected to answer emails out of traditional working hours, employees expect employers to allow for some aspects of their personal life to intrude into work hours.
How is your organisation dealing with these challenges? We look forward to hearing from you.
‘Snapchat is about sharing moments and having fun’ reads the tagline of the mega-app that has the fastest-growing social network in the world. But despite its phenomenal popularity, what potential impact might Snapchat have on your workplace?
If you don’t use Snapchat, here’s a quick overview: it is a mobile-only app estimated to be valued around USD $20 billion and according to Snapchat’s website, on any given day, Snapchat users watch over 10 billion videos with Snapchat reaching around 41% of all 18 to 34 year-olds in the United States. Snapchat is definitely the medium of the moment and utilises “auto-destruct technology” allowing its user to:
- Send a photo or video (with filters or text added to it) to one or more contacts for up to 10 seconds (the contact must also have downloaded the Snapchat app in order to receive the photo or video);
- Post a video or photo to a ‘story’ which contacts can then view for a period of 24 hours (unless the user deletes it before then); and
- Instant message and video call a contact (but the messages will disappear when the user leaves the conversation unless they immediately save the content or take a screenshot).
Snapchat is also being increasingly used for mobile storytelling and organisations can pay to purchase the right to post a story or sponsor a filter that end users can choose to view or use. There are also event-based stories and filters that Snapchat creates. For example, during the Australian Federal Election there were special election filters and users could submit personal photos or video to the official Election Day story that could then be viewed by users. It’s predicted that over the next few years more advertising content will also be included and companies will increasingly use Snapchat for marketing and recruitment purposes.
The reason it is called auto-destruct technology is because after the time specified, the content disappears. Its distinguishing point is its impermanence, unless of course, in the case of a photo, a viewer takes a screenshot, but that requires some serious quick-draw screenshot skills and often a fumble can lead to a black locked screen of shame. As for videos, you can’t save them so once you see them, they disappear. The only other option is to replay content, but you can only do this once a day unless you pay to purchase extra replays. Even then, you can only replay any single item of content once.
Since it is a platform where content is temporary, it’s easy to imagine its appeal to a person who wants to bully or harass others in the workplace. It is much harder to collect evidence in relation to conduct occurring on Snapchat – at least, much harder than Instagram, Twitter or Facebook where content can be easily shared and captured. Snapchat’s fleeting nature potentially encourages more inappropriate and/or high-risk behaviour and people often deliberately use Snapchat to share photos and videos that they wouldn’t dare to post on Facebook or Instagram.
While it is true that all digital content leaves some kind of footprint, in order to access Snapchat content after it disappears, you would have to convince Snapchat to hand over data (which is virtually impossible). The alternative would be to hire a digital forensics team to try and recover some traces of content. But where does that leave employers when someone makes allegations of bullying, sexual harassment or discrimination that have occurred in the workplace via Snapchat and no evidence can be collected to prove that the conduct took place? Unfortunately it will probably result in a situation that is all too common in such scenarios – one person’s word against another.
It is estimated that by 2020, millennials will make up 50 percent of the global workforce. When you consider that Snapchat shapes the communication preferences of this generation, its inappropriate workplace use is something employers should be aware of when updating their social media policies or conducting training. Particularly for younger managers, it may be better to keep Snapchat and work colleagues separate completely. Or maybe this is impossible as more millennials and post-millennials (Generation Z) pour into the workforce.
We welcome any suggestions or thoughts.
In the last five years, with the development of information technology and mobile devices, the distinction between being “at work” and “off work” has been profoundly altered. Working time is no longer confined to being in an office and working days are both more intense and infinitely extendable, making monitoring working times even more complex.
Coupled with a global economy, many employees feel that they are permanently connected to their work, irrespective of time zones and local laws.
EU working time laws are rapidly developing to deal with this trend and the negative impact it’s having on employee health and wellbeing. The sanctions for employers breaching these laws are potentially serious. This means that one of the most challenging issues facing global companies today is juggling time zones effectively and responding to business 24/7 without falling foul of working time laws.
Trying to figure out the local time of employees based in different time zones is a complex task in itself. Thankfully, there are a variety of user-friendly apps that can do the maths for you. But understanding the labour law rules when employees are operating in a different time zone is even more daunting, and unfortunately, no app is available to crunch this data for us.
For example, employees working on global projects will often be expected to dial into calls outside their regular local business hours and/or to respond to emails late at night. Though most internationally-minded employees may be willing to accommodate the requirements of their manager or client based overseas, in the EU, asking employees to work beyond their standard hours poses many challenges for employers in complying with working time regulations.
The EU Directive on Working Time (2003/88/EC) of 4 November 2003, directly connects working time to health and safety matters. For this reason, it specifies a series of principles employees should respect to preserve their sanity:
- a maximum of 48 working hours per week;
- a minimum rest period of 11 hours, every 24 hours;
- a minimum weekly rest period of 24 uninterrupted hours for each 7-day period (in addition to the 11 hours above); and
- paid annual leave of at least 4 weeks per year.
There are additional working time arrangements for specific industries such as the transport sector and sea workers, and to make things more complex, each jurisdiction within the EU has supplemented the Directive with its own laws and sector specific agreements, so the variations are quasi-infinite.
The potential sanctions for non-compliance are high-stakes for employers. They include penalties and claims for overtime payments (sometimes over several years prior) and can extend to criminal records for the company’s representatives, damages for breach of contract or liability for work-related injuries and harassment.
In recent debates, it has been suggested by the EU commission and selected EU countries that not recording all workers’ working hours might constitute an offence of undeclared work, which in turn is connected to modern slavery, and can have a severe impact on an organisation’s reputation and brand.
France, a pioneer in intricate working time laws, introduced a new Labour Law on 2 August 2016, safeguarding an employee’s ‘right and duty to switch off from work’. This right was previously found in the Syntec collective bargaining agreement governing most software companies in France and was utilised in a handful of workplace agreements of major French groups and even some German groups. They have made this part of the labour code, thus obliging all employers in France to include this topic in their annual negotiations effective January 2017.
In practice, French employees will still be allowed to occasionally join late calls or work with colleagues in different time zones, but employers should avoid expecting this routinely from their employees and managers. Though it is still unclear how the reform will fully play out, we anticipate employers will, beyond the negotiation obligations explained above, need to implement a mechanism, and, for those employing more than 300 employees, launch a corporate policy, ensuring such a right is effectively recognised and takes into account specific business working patterns and requirements.
Some employers may choose to simply pay lip service to the reform, yet it clearly states that from 1 January 2017 companies will have a duty to actively support the employee’s right to switch off their devices: this will include, as a strict minimum, verifying employees comply with rest periods and stating that they are allowed not to respond to emails during rest periods – or even ensuring software supports compliance.
A straightforward approach could be to adopt a policy allowing employees who work internationally to start work later or earlier, raising awareness of the virtues of having a healthy work life balance, creating group discussions to propose practical solutions to achieve work life balance, and monitoring with employees’ input any issues relating to excessive connections to their work device.
For companies who have a health and safety committee, they must be closely involved in the design and monitoring of the company’s plans.
Ming Henderson is a partner in our International Employment Law practice based in the London office. She is a qualified practitioner in both France and the UK.
As you may recall, Mr Burns tries to get employees at the nuclear power plant ‘in shape’ by leading a workplace exercise program. As expected, however, Homer avoids this by taking advantage of the rule that someone who weighs more than 300 pounds will be classified as disabled and can then work from home. Unsurprisingly, he manages to gain the necessary weight and a computer terminal is installed in the Simpson house to allow him to do his very safety-critical work (monitoring a nuclear reactor!) remotely.
Homer cleverly works out that he can set up a ‘drinking bird’ to operate the computer for him while he is out. He arrives home from a visit to the cinema to find that his assistant bird has toppled over and a nuclear meltdown is imminent.
The Simpsons is notoriously prescient in the stories it tells (see the episode aired in 2000 that portrays Donald Trump as President of the United States …). While ‘King-size Homer’ is now more than 20 years old, the story raises some thought-provoking issues that continue to be relevant for HR and IR practitioners and managers more generally in the current workplace:
- are workplace health and fitness programs valued by employees?
- how should disabled employees be accommodated? Do they need to, or should they, be allowed to work from home?
- which parts of an employee’s role can actually be safely automated?
- what controls and processes are necessary when allowing employees to work from home?
The last two of these are particularly relevant when thinking about some of the emerging trends around how work might be performed in the future. As discussed in our recent blog ‘The future of work – what are the lessons for employers‘, two of the trends identified were:
- the use of robotics to perform tasks more quickly, safely and efficiently than humans; and
- telecommuting and remote working will become the norm (rather than the exception) in some industries.
So what does looking back at an old Simpsons episode tell us about these? There are a couple of valuable points to keep in mind:
- employers will need to give careful thought to which tasks can be automated and what the ongoing role of humans is in ensuring that those tasks are completed safely and efficiently – it won’t be enough to set up a drinking bird and leave it be. In many cases, human oversight will be required. What training and skills will employees need to make sure the equipment functions correctly and – perhaps more importantly – what can be done to engage with and motivate employees in these situations to ensure that boredom doesn’t set in?
- employers will need to develop and implement comprehensive and flexible systems to monitor and manage employees who are working from home to ensure that:
employees are performing the work they have been assigned in a productive, efficient and responsible manner; and
- the health and safety of those workers is not compromised by the home environment – and, conversely, that the health and safety of other workers in the employer’s workplace is not compromised by those working from home, like Homer did.
Homer is definitely not the shining light for the work of the future – but his behaviour gives food for thought about what we need to think about when structuring working arrangements.
Are you getting the best advice when it comes to health and safety compliance?
When we deliver legal briefings, both in Australia and internationally, top-of-mind for Boards and Senior Executives is the health, safety and welfare of people affected by their operations. This is how it should be – so everyone breathe a collective sigh of relief (insert sigh).
When it comes to seeking commercially sound legal advice on these issues – whose advice should you be seeking?
Under the model work health and safety laws in Australia, officers have a positive duty to exercise due diligence. This includes taking reasonable steps to ensure they have the relevant knowledge and understanding, or take the relevant decision or action. SafeWork Australia’s Interpretative Guideline provides further guidance to officers on what is meant by taking “reasonable steps” in this context:
‘Officers may meet the due diligence requirements in some respects by proper reliance on information from and the activities of others, while having more direct involvement in the health safety management and governance in other aspects. To the extent to which an officer will seek to rely on others, the officer must be able to demonstrate the reasonableness of that reliance, which may be demonstrated through credible information and advice from appropriate people’….
Let’s consider a request for advice by Board members who want to know whether or not they are complying with their legal obligation to exercise due diligence. This question is a legal question that should be answered by a legal practitioner. Having this question answered by a legal practitioner also paves the way for them to be able to call upon the appropriate services from internal and/or external subject matter experts pertinent to a particular issue.
Another key issue facing Boards and Senior Executives, is whether the person they are relying on to provide adequate advice, is actually capable of providing it. For example, can a health and safety professional provide legal advice? The general position would be no – not unless the health and safety professional is also a legal practitioner (although there may be circumstances where a person who is not a legal practitioner can provide this type of legal compliance).
That doesn’t mean Boards and Senior Executives shouldn’t be receiving advice from health and safety professionals and other consultants/experts when it comes to advising on performance, strategy, risks, culture, climate and other non-legal aspects of due diligence. However, Boards should be thinking twice when seeking assurance on the question of legal compliance from anyone other than a legal practitioner.
The sceptics among readers may see this as a way of legal practitioners justifying their existence. And, well, they are certainly entitled to their views. If those same sceptics are going to help their Board and Senior Executives demonstrate the reasonableness of their Boards reliance on credible information from an appropriate person, they will need to be open to a different point-of-view.
Another tip – once you have decided to seek advice from a legal practitioner, ensure that the legal practitioner has the requisite experience and expertise in the field. If the sceptical readers are still reading, no doubt they might be up-in-arms about this additional suggestion. But let’s explore the issue further in the interests of getting the best advice available.
In the book Outliers, author Malcolm Gladwell states it takes roughly ten thousand hours of practice to achieve mastery in a field. So, in general terms, the greater the experience and expertise of a legal practitioner, the stronger the basis for the reliance on the legal advice.
A legal practitioner with experience includes a person who has:
‘knowledge or practical wisdom gained from what one has observed, encountered or undergone’ and an expert is defined to include a person ‘who has special skill or knowledge in a particular field’.
So when you combine experience and expertise, consider asking the following questions before seeking, receiving or accepting, health and safety legal advice:
- Is the person providing the advice a legal practitioner?
- What position does the legal practitioner hold?
- How many years has the legal practitioner held that position?
- What is the legal practitioner’s field of expertise?
- What is the extent of that legal practitioner’s expertise?
- What level of practical experience does the legal practitioner have in this particular field? (This does not include how many articles, blogs, webinars, but actual practical experience).
- What level of experience does this person have in providing this type of legal advice? (For example, has it ever been tested by a Regulator and/or in a Court? And if so, what was the outcome?).
- Is there anything else I should know about the person providing the legal advice?
For those of you who provide advice and support to Boards and Senior Executives, it is important to demonstrate insight into whether or not you are best placed to provide that advice. If not, are you sourcing the right person for that particular piece of legal advice? Sometimes pressure on resourcing and/or restructuring can be reasons why we are reluctant to defer to experience and expertise, but this is one critical area where we should resist. Certainly, we are not proposing peddling the legal risks of getting this wrong, but we’re confident that without too much effort, you can work out the personal and legal consequences that may arise.
Whilst constant vigilance and a healthy level of caution are valuable, accessing the right legal expertise might also have broader implications when you are seeking compliance advice generally.
With the right advice (both legal and non-legal) Boards and Senior Executives can have a positive impact on the health and safety of their people and those affected by their actions.
 Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia
 Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia
 Macquarie Concise Dictionary, Sixth Edition
Our colleagues in the US recently published an article on Pokémon GO, Nintendo’s augmented reality game involving scrambling around real-world locations to ‘catch’ virtual beasts with your smart phone. (There’s a sentence I’ll never write again!).
The article explains that, despite the game’s popularity, employers have cause for concern in relation to data and security and workplace safety.
Pokémon GO is similarly taking our fair shores by storm. It seems all too easy to poke fun at this new gaming mobile app. However, as the article highlights, if employees are out to ‘catch ‘em all’, employers could very well find themselves caught in a nasty game of software security, privacy and workplace safety issues.
Anime (see what I did there?), that’s enough from me.
I hope you enjoy the read – Pokémon NO: New app creates risks for employers
Employers who proactively deal with employee absenteeism, and focus on assisting employees to return to work, can reduce the impact of employee downtime and disruption to working arrangements.
We’ve previously discussed some key tips about handling non-work-related illness and injury. This post focuses on the importance of taking a collaborative approach when managing frequent or prolonged absences.
Frequent or prolonged absences due to stress, illness, injury or other personal reasons can be a major cause of frustration for employers. However, there are significant risks associated with taking punitive measures against employees who may be genuinely unwell, illustrated in several recent decisions.
In our experience, approaching the issue from the perspective of understanding the employee’s condition, and assisting them to return to normal duties, can help the employer drive a long-term resolution of the issue, rather than approaching absenteeism as a disciplinary matter. This applies even when the employer suspects that an employee is “gaming the system”, and their stated reasons for absence are not genuine.
Employees are far more likely to co-operate and share information about their condition if they feel they are being supported. This information can be vital to help managers make decisions about workforce planning, and for discussions with the employee about any reasonable adjustments that could be made to their role. The primary driver when seeking to address absenteeism issues should be finding out the reason for the absence, and finding a way to get the employee back to work if at all possible.
This collaborative approach could alleviate some of the difficulties seen in a recent case in the Federal Circuit Court of Australia where a manager directed an absent employee to allow him to speak with her treating doctor. The manager sent an email to the employee, implying that a failure to agree could result in termination of employment. The Court was critical of the manager’s approach, found the direction unreasonable in the circumstances and found that the employer’s reason for asking to speak with the doctor was for the purposes of disciplinary action, rather than assisting the employee to return to work.
But this doesn’t mean that talking to an employee’s treating doctor is completely off limits. It can still be a helpful measure in understanding the reasons for absenteeism and the employee’s condition, and managing a return to work – the key is having a discussion with the employee first, and getting their permission. If the employee understands why the employer wants to speak with their doctor, and the types of questions the employer wants to ask the treating doctor, they may be more likely to agree.
Of course, not every case of absenteeism will be for genuine reasons and, if this can be established, then a disciplinary approach may be appropriate. The approach outlined above should help to establish whether or not the employee is absent for genuine reasons and, if the absenteeism is not genuine, support the taking of disciplinary action if it becomes necessary.
For HR practitioners and managers, this may involve a change of mindset in approaching issues of absenteeism but one that we think has the potential to produce positive benefits.
On Mother’s Day, we enjoy a cup of tea or a glass of bubbles with our mums in recognition of all their hard work and sacrifice. We give thanks for the tips, advice, guidance and life-long lessons only they can proffer. I recall with great fondness my Mum’s unwavering enthusiasm during the tears, tantrums and pre-stage jitters of my jazz-ballet/hip/funk/tap performances. For Mum, an exhaustive commitment of pick-ups and drop-offs, elaborate hair do’s, dress rehearsals and toe-tapping her way through yet another Robert Palmer tribute. Every time, through the haze of Cedel Hairspray Extra Firm, there was my Mum.
But what about when your mother-in-law comes to stay? When all your hard work is questioned. When your housekeeping standards are judged by her white-gloved finger across furniture and subsequent pursed lips. When those menial tasks you have performed over and over, and without incident, are scrutinized. When you (and the state of your linen cupboard) are the unwilling recipient of unrequired and unhelpful advice.
Or perhaps it’s the other way, and you find yourself having to articulate the importance of housekeeping, of putting things away, washing the dishes and keeping your new duck-egg-blue Mud platter out of the dishwasher. In either case we are all familiar with that feeling of tension and unease that visits of this kind bring with them.
You can find yourself defending your safety management system and/or trying to explain the importance of it. Playing nice and toeing the line can be stressful and challenging. Not unlike being visited by your mother-in-law, being prepared and planning ahead is critical.
Here’s our ‘to-do list’ for such visits:
- Get your house in order; prepare for the meeting or the site visit by making sure that your housekeeping is up to date and personal protective equipment is being used;
- Be proud of what you have, be ready to talk about the positives and to share your knowledge of the role of safety in the business and how your safety framework hangs together;
- Be prepared to respond to any knowledge shortfalls about the business, the risks in the business, your safety record, areas of improvement and challenges;
- Prepare your workforce and keep them informed – the more they are the more likely they will be to keep their mind on their job and not of their job security;
Be sure you stay open to new ideas and differing perspectives, After all, sometimes mother does know best. Recognise that the change brings an opportunity to learn something new that improves the way you are managing your health and safety practices.