- Rod Collinson, Partner, Page Seager Lawyers
ELM learns some forward thinking approaches to employment matters from Partner at Page Seager Lawyers, Rod Collinson. “Avoid duplication,” he says. “FWC is critical of organisations relying on multiple breaches of multiple policies for what is often simple wrongdoing”.
ELM: It’s safe to say that all Australian organisations want to avoid the need for a formal investigation in their workplace; these have increased in frequency, cost and complexity. In your experience, how can HR and business managers efficiently and effectively resolve complaints before getting to an investigation?
Rod: The problem is a perception that complaints need to be externally investigated to have integrity – that is HR is conflicted and we need a report to be able to take action. This has partly come about as a result of FWC criticising the absence or poor quality of internal workplace investigations. What we now see is a growing culture of externally investigate as an option of first resort.
The solution is to approach complaints through the lens of managing risk and performance. By that I mean taking the perspective of ‘what do I need to do to assess and respond to risks of an unsafe workplace’ and ‘are employees behaving appropriately and professionally which is part of overall performance?’ Such an approach is all forward looking. This is a more effective approach to ‘I need to investigate to know all the facts and then decide whether or not there has been bullying, harassment or breaches of our Code of Conduct’, which is all backwards looking.
So start with the ‘easy knowns’. Interview the parties as to what happened. What are they seeking? Look at where there is no real dispute. There will often be a paper trail (e.g. emails) that show patterns of appropriate/inappropriate behaviour. If need be ‘stress test’ some of the core complaints by getting the perspective of immediate supervisors. HR professionals are often best placed to do this efficiently and effectively. This can all be done as an initial assessment through that WHS lens without a formal investigation making findings.
It may be there are no serious factual disputes that need resolving. An internal approach of HR ‘looking under the bonnet’, accurately assessing ‘what’s actually going on in that work group’ and determining ‘a reasonable response to address the issues’ is in my experience more likely to be quicker, cheaper and provide opportunities for acceptable resolutions for all parties. This may include ‘calling out’ inappropriate behaviours that can be dealt with through re/setting expectations, coaching or training. All of this is done through that forward looking, managing performance lens. It doesn’t require complex disciplinary decisions as to bullying and other breaches to impose the same consequences for further unacceptable behaviours.
The flipside is not mediating everything as the ‘go to’ alternative to an investigation. Sometimes assessments need to be made and performance issues dealt with rather than a ‘no fault, compromise’ process that mediation offers. There is a worrying trend of HR professionals not ‘calling’ complaints of inappropriate workplace behaviour. Given their experience and training they are often the best persons in the organization to be able to do that.
ELM: There are a lot of resources and services that can help HR and Employment executives get advice on how to deal with workplace and employee challenges. But this can be half of the issue for a HR team; the overwhelming number of documents, processes and procedures. Having worked with many clients across Australia Rod, do you agree this is an initial issue for most clients, if so, why do you think this is still the case?
Rod: I certainly think an issue is organisations and HR professionals believe they must have deluge of documents in the HR space or risk prosecution. This belief has been compounded by recent prosecutions of managers as individuals as well as the company. This is not helped by the avalanche of complex products and systems on the market and being told ‘you need this to be complaint’.
Dealing with workplace and employee challenges comes from having real conversations and making judgement calls. Organisational processes and procedures should facilitate that – not allow the ‘tail to wag the dog’.
ELM: Processes and procedures for a HR team is one thing, but the real issue comes when these are rolled out (or are attempted to be) throughout an organisation. What challenges have you seen arise with regards to this, and what is your advice to organisations to help them keep things simple?
Rod: Rolling out HR processes and procedures can be a minefield if done poorly. The starting point is to work out what is a necessary legal obligation and what is desired from an organizational perspective. Avoid duplication. For example, if you take workplace behaviour document suites, our advice is to have an Appropriate Workplace Behaviour Policy (AWP) that covers all forms of inappropriate and unlawful behaviour in the 1 document. If implementing a Code of Conduct don’t repeat the obligations from the AWP. FWC is critical of organisations relying on multiple breaches of multiple policies for what is often simple wrongdoing. Separate what is a policy ‘the why and what’ from the procedural ‘the how’ and internal tools for managers to be able to competently implement them.
Don’t forget to consult (whether there is a legal obligation or not). Bringing people along enhances compliance. Use comprehension testing for key policies. It’s far more effective to rely on policies in proceedings where there has been simple comprehension testing that demonstrates employees understand the expectations rather than ‘signing off’ on a lengthy manual that was never read.
ELM: The other purpose of keeping things simple is to ensure things are followed through. Many companies have these documentations in place but there are often issues around its implementation. How have you helped organisations increase the overall execution of a process or procedure, and assist in the change management? Any particular examples?
Rod: Too many processes and procedures are written for the worst case scenario but are expected to be a ‘one size fits all approach’. The problem is the majority of issues are low intensity but there is a high intensity process that more resembles a court process rather than a practical tool to assist in dealing with situations fairly and consistently.
Organisations with overly prescriptive ‘worst case’ processes and procedures usually find them a ‘hindrance not a help’ and as a result breach their own documents when attempting to resolve matters. This diverts attention away from the substantive issue and focuses it on the process issue. This tends to derail resolution and create and give away ‘free kicks’ in an adversarial process.
For example, disciplinary policies and procedures need to provide a framework that includes options for conducting a process, stand down and other interim arrangements as well as potential outcomes with procedural fairness applied throughout. We have helped clients to create documents that deliver on the substantive framework with ‘in-built’ flexibility regarding processes, timeframes, and resolution options based on the level of seriousness.
The real value add to get the right outcomes the right way, which is simple but not necessarily easy to do, is to understand the purpose and principles behind various processes, procedural fairness and outcomes and then make the right judgement calls in a timely manner.
About Rod Collinson:
Rod is a leading practitioner in workplace relations in Tasmania. He blends practical legal advice with a strong understanding of his clients’ business objectives and the industry in which they operate. Rod provides solutions based advice to a number of national and local businesses including advising and acting in litigation concerning contractual disputes regarding senior managers and management of executive employment issues, enterprise bargaining, union relations, redundancy and transfer of business issues.