The World According to Cachia

Worker invented injury – summary dismissal upheld

Mon, 27 Feb 2012 00:06:00 GMT

Fair Work Australia has upheld the summary dismissal of an employee after it found he invented a workplace fall and inappropriately exposed himself at work.

The Applicant was employed as an electrician until his employment was terminated on 24 May 2011. The Respondent dismissed the Applicant for reasons relating to a dishonest back injury claim, his conduct in the workplace (in exposing himself to a female colleague), and work performance issues relating to incomplete testing and tagging of electrical equipment.

After consideration of the evidence presented Commissioner Spencer found on the balance of probabilities that the Applicant “sought entry to the workplace on the public holiday when the business was closed for the purpose of making an entry after the fact in the First Aid book and completing an incident report on the alleged falling incident”.

Having regard to s.387 of the Fair Work Act 2009 (Cth) (FW Act) which sets out the criteria for considering whether a dismissal was “harsh, unjust or unreasonable” in accordance with s.385 of the FW Act, the conclusion reached by Commissioner Spencer was that the Applicant’s dishonest behaviour provided a valid reason for the dismissal.

On that basis he found it was not necessary to determine whether the Applicant had actually exposed himself to his colleague (however he found it unlikely she would have fabricated such an embarrassing scenario).

Notwithstanding the above findings, Commissioner Spencer found the dismissal had been deficient in some respects – namely, that the Applicant had been denied the opportunity to respond to the allegations, as well as the opportunity to have a support person present at a disciplinary meeting.

As the conduct of the Applicant was found to be commensurate with definition of “serious misconduct” in the Act, the deficiencies in the dismissal procedure were deemed insufficient to conclude that the dismissal was “harsh, unjust or unreasonable” in accordance with s.385 of the FW Act.

The above case demonstrates the factors that are considered in deciding whether a dismissal is “harsh, unjust or unreasonable”. In this instance, the categorisation of the Applicant’s behaviour as “serious misconduct” by Commissioner Spencer outweighed the findings of procedural deficiency in the dismissal process.

It is certainly arguable that had Commissioner Spencer rejected the Respondent’s evidence, or had the conduct of the Applicant been less serious, the omissions of the Respondent may have led to the finding that the dismissal was unfair.

It is therefore very important that regard is had to s.387 of the FW Act in the performance management of employees, and in particular to the procedural fairness obligations contained therein. This includes the provision of:

- adequate warning about the unsatisfactory performance before the commencement of performance management;
- the reasons for the disciplinary action;
- an opportunity to respond to allegations; and
- a support person in any disciplinary meetings.

Is workplace absenteeism an issue in your Company?

Thu, 09 Feb 2012 04:06:00 GMT

A common issue posed to Australian HR professionals and workplace consultants is in relation to best practice for managing personal leave entitlements, and more specifically those who obviously use their sick/carer’s leave as it accrues.

It is therefore imperative that effective and reasonable management of absenteeism is required and so, the following approach could be adopted:

A Personal Leave policy and guidelines which clearly stipulate employee entitlements, evidence and notice requirements

Effective and appropriate follow up with the employee upon their return to the workplace

Education of employees and managers to ensure a clear understanding of policy, guidelines and organisational expectations

Personal leave is of course a workplace right and as such organisations should not unnecessarily risk an adverse action or discrimination claim by requiring excessive evidence.

HR professionals (and/or line managers) really need to be well informed of their legal rights and obligations, and to ensure compliance, they should seek appriopriate advice... and/or consult the Fair Work Act 2009, National Employment Standards (NES) provision for guidance.

Is Salary Negotiation a Laughing Matter?

Thu, 26 Jan 2012 22:44:00 GMT

Yes we all know that 'laughter is the best medicine' but i wonder how effective and appropriate it is when negotiating your next salary review?

In a study conducted in the U.S. it was considered that individuals who jokingly suggest they wish/expect to receive a high salary increase, are more likely to actually secure a better rate than if they where otherwise!

The study which involved 206 university students required the group to determine the starting salary of a hypothetical administrative assistant who was well qualified and had previously earned $US29,000. The students came up with an average of $US35,523 for candidates who kiddingly said they’d like to make $US100,000, but just $US32,463 for the others.

Why did it work? apparently because due to the mentioning an extreme figure in jest, it can set a high ‘anchor’ for the final offer while minimising negative reactions from the employer. Almost like setting a high target provides more scope (or room to move) in the negotiations!

The trick of course is for HR professionals to be prepared for employees to perhaps push the boundaries (having their tongue firmly planted in their cheek)... and so HR must maintain the Company's position on what increases are available and in keeping with what the Company can actually afford.

Diversity, EEO and Bullying, still not taken seriously

Sat, 26 Nov 2011 09:49:00 GMT

For many organisations the diversity journey begins with legal compliance around EEO, bullying and harassment. The communication of policies and procedures that have been developed play a crucial role in guiding a workplace to being more respectful, however it is the knowledge and skills that are imparted to staff that are critical to ensuring an inclusive workplace that will be accepting of diversity in all its forms.

It is hard to believe that in 2011 organisations still weigh up the cost of skilling staff in the area of equal employment, bullying and against the likelihood of a claim occurring. As human beings we all have bias, both conscious and unconscious and as a result it is a fair assumption to make that at some point a negative opinion will be formed about someone or a group of people based upon race, religion, gender, age or disability without knowing all the facts, and inappropriate behaviour will result. It is never a question of if this behaviour is likely to occur; it is always a question of when this behaviour will occur.

Organisations need to be committed to developing the knowledge, understanding and skills of individuals across all levels of the organisation. Often organisations opt for a quick and easy fix either in the form of a short online program that covers the key components of the legislation or a video for all new employees to watch during induction. This does not guarantee a deeper level of understanding around the core competencies of respect and equal opportunity. To ensure that organisations maximise their return on investment when implementing diversity and inclusion strategies, significant resources need to be allocated to this basic cornerstone of building an inclusive workplace.

Middle Managers still struggling to find resonance

Sat, 26 Nov 2011 10:19:00 GMT

The middle managers in your organisation have the opportunity to directly influence the attitudes, behaviours and performance of a vast number of your overall staff. When these managers feel frustrated by particular actions and events from above it can have significant impact on the effectiveness of their performance, which then impacts the overall performance of the organisation.

After years of training hundreds of middle managers across a wide range of industries, the feedback on the frustrations that middle managers experience with their bosses (the executives in the organisation) remains remarkably constant...

While some of the frustrations are inevitable, the best (and most successful) executive managers are those who truly believe that high performing teams lead to high performing executives and are willing to take the time to invest in understanding how to get the best out of their people.

For Human Resources professionals, when executives come to discuss issues, concerns, or just to complain about their team, it’s worth re-enforcing some basic fundamentals as to how they can get more from their teams – particularly with the added pressures of today’s tough economic climate:

1. Communication is key

2. Deliver on your promises to your people

3. Support your middle managers

4. See potential but realise limitations

5. Provide coaching and offer suggestions

It's important to remember the more engaged and motivated your people, the greater the amount of discretionary effort – and hence productivity – you’ll receive in return!

Employees take ‘Paid Leave’ to be a Volunteer…

Thu, 14 Jul 2011 01:31:00 GMT

It seems that it’s happening in ever increasing numbers and employers are supporting this, whereby employees are taking [paid] time off work to act as volunteers and their doing it on company time.

In a recent article, I’ve read that employees are taking advantage of ‘service leave’ to be able to be away from their ‘full time’ job and become active in their community conducting volunteer work.

In a recent report it showed that in 2005 only 150 employees had ‘services leave’ and so had permission from their employer to conduct such volunteer work…interestingly in 2010 some 1050 staff were accessing such leave, this is a 600 percent increase in the last five years.

There are a number of large organisations involved in this program that supports charities like the Australian Red Cross, Mission Australia and The Smith Family.

In addition to this being good for the company’s reputation, it seems as though it’s having a positive impact upon staff morale and retention! For those workers who are ‘values driven’ participating in volunteer programs gives them an alignment between the jobs and their values!

Optimistic outlook for relative industrial peace

Fri, 08 Jul 2011 10:30:00 GMT

Although there seems to be an apparent rise in Industrial Disputes…official figures (for the March quarter) show that disputes are at their lowest level on four years.

In recent Bureau of Statistics (ABS) reports, there were only 37 disputes recorded for this [March] quarter, which is lower in comparison with the same quarter last year where 54 disputes were recorded. The December quarter showed 70 disputes!

In the last year, there were 53,800 workers involved in disputes which related to 117,000 working days lost as a result. These lost days occurred in the construction, transport, postal and warehousing industries… in contrast the mining and manufacturing did not suffer any lost days.

Treasury reports suggest good wages growth in mining and retail trade are a sign the labour market is settled after the concerns of the GFC.

Women in the Workforce breaking the Glass Ceiling

Fri, 08 Jul 2011 07:19:00 GMT

Reading a recent article which states that the way for women to ‘break the glass ceiling’ (i.e. succeed in Senior Management positions), is for Australia to change its attitude to working long hours! Ostensibly such working conditions which are deemed family ‘Un-Friendly’ were in effect killing off women’s chances of progressing into senior management positions.

The so-called go home for dinner culture relates to both men and women working such hours that will allow them [both] the opportunity to attend to domestic duties. Suffice to say, that if both men and women share the home responsibilities, then it is believed that women are more likely to get into corporate roles.

The current practice is for many organisations to have its senior managers work long hours (in the office) despite advances in technology that can enable them to work from home instead of staying late in the office!

This concept is not about providing reduced working hours for women in the workforce rather promoting flexible working hours that both men and women can take advantage of…whilst much has been done to improve opportunities for women; it seems more can be done.

We all spend more time working than relaxing

Fri, 08 Jul 2011 07:13:00 GMT

A recent report commissioned by the Organisation for Economic Co-operation and Development (OECD) identified how we (as people) spend our time… On average we spend one third of our day working (paid or unpaid), no real surprise there!. It seems however that half of our time is taken up with personal care (eating, sleeping etc…), which sadly only leaves a few hours for leisure!!!

Interestingly, although Australians seem to spend a little less time in paid work (as compared to International trends), we have done better when it comes to performing ‘unpaid’ work. Seems we average about 4 hours of unpaid work (each day), which is the third highest in the OECD. Other interesting statistics include:-

- 3.5 is the average hours of unpaid work performed (per day) across the OECD;

- 46% is the value of Australian unpaid work as a percentage of gross domestic product;

- 26 minutes is the average [daily] time spent (unpaid) caring for other household members – this is the OECD average;

- 45 minutes is the average [daily] time spent by Australians (unpaid) caring for others. This is the third highest in the OECD;

This report, however has identified that the Mexicans those that work the longest hours as they average 10 hours (both paid and unpaid) per day. This compared to the OECD average of eight hours (per day).

And finally, given my penchant for food, I might move to Turkey, as they spend some 74 minutes per day preparing/cooking food. The OECD average is 50 minutes per day, but our American friends devote only 30 minutes to cooking!

Is Social Networking becoming the new ‘Smoke Break?’

Fri, 12 Nov 2010 07:11:00 GMT

It was not so long ago that employees would be frowned upon by the Boss as they popped out for a quick ‘Smoke Break’ apparently, this was seen as a [loss of] productivity issue… however with the advent of social media is the smoke break being replaced by the computer?

Once again we see Companies scrambling to implement policies and processes to curb this new habit, which may include a ‘block’ on the system so it wont be able to access such sites!

And whilst employers may look upon ‘Facebook’ and the like as a bad thing, those who use it seem to disagree, of course using them can waste time, but then again so can anything

Interestingly by not having access to networking sites can be seen as lost opportunities…some organisations will use social network sites to help them throughout their recruitment processes.

It seems that savy businesses are harnessing the opportunities that social networking sites offer, for example, having staff monitor special [relevant] programs and/or using it to post links to an appropriate site.

If a Manager gauges productivity by volume then he/she will no doubt restrict access to social networks, however if success is considered more in what is produced rather than how much, allowing a little fun and/or flexibility at work may be to the benefit of the Company, rather than to its detriment.

Just as we thought… looking for a job is hard work!!!

Mon, 17 Jan 2011 04:45:00 GMT

Unless you’ve been successfully hiding away thus able to avoid the Global Financial Crisis ‘AKA’ the ‘GFC’ organisations have been restructuring their business in an attempt to continue trading; and as such, an inordinate amount of employees have lost their jobs through Redundancy.

Being made redundant hasn’t just become an issue. Employees were being made redundant, well before the ‘GFC’ and so the anguish associated with loosing your job remains – if it’s any consultation, there plenty of people in the same position. Given there are more people out of work because organisations are consolidating; finding your next role has now become somewhat more difficult!

When talking to recruiters and candidates, the apparent issues have become there aren’t as many jobs openly advertised, and for those that are the number of candidates applying has increased dramatically. This leads to increased pressure on the recruiter as they now have so many more applications to consider.

Some suggest that as a result [of the level of applications received] candidates would be considered more so because they meet the criteria in the ‘key word’ search rather than because they can demonstrate [transferable] skills to perform effectively in the position.

Additionally, candidates feel frustrated, whilst they believe they meet the ‘broader terms’ of the selection criteria, they are not considered suitable because they don’t have experience in the [respective] industry. The problem for the recruiter is that they have an enormous amount of applications to process and with the selection criteria being so specifically defined; they won’t need to broaden the scope of the search.

In reading news articles and/or [HR] publications, there appears further discontent from the candidate… and that revolves around the ‘Human Element’ of the recruitment process.

Comment suggests the candidates are dealing with recruiters who don’t really understand the fundamentals of the positions they are trying to fill. Some of the criticism [of the recruiters] includes; they don’t confirm receipt of the application; they don’t return phone calls; they don’t call me when a position becomes available.

However from the recruiters’ perspective, it is seen that the candidate may have an unreasonable expectation of what the recruiter can actually do! The recruiter is not there to attend to the needs of the one candidate – the recruiter must provide a certain standard of service to the client organisation as well as manage the expectations of the numerous candidates applying for any given role.

Notwithstanding the good recruiter will appreciate that the candidate he/she places today, may well become the customer/client of tomorrow!

I’ve spent a number of years delivering outplacement programs to people made redundant, and during that time I’ve witnessed the plight of the candidate, actively perusing their next role… and the recruiter struggling to appease their customers and managing the ever increasing number of anxious candidates (and let’s not forget that a number of recruiters themselves have since become candidates).

The one thing I advise participants [of the program] is that you cannot [solely] rely on the recruiter to do your job search for you! Candidates must be proactive; Candidates must network; Candidates must make job search their major task!

Yes job search is hard work, but then again, most things that are worthwhile take some effort!

Skilled Employees are becoming a rarity despite the economic turnaround!

Mon, 17 Jan 2011 04:18:00 GMT

According to a survey conducted by the Australian Institute of Management (AIM) the shortage of skilled workers in Australia will worsen, with more than three quarters of executives surveyed suggesting their organisation has experienced a ‘workforce skills gap.'

Interestingly it has been suggested that this skills gap will increase despite the improvement of economic conditions…this means that a number of Australian organisations will face the risk of underperforming.

Some suggestions have been made that organisations will have to increase their investment in training and development as well as bettering their recruitment and retention strategies.

Numeracy and Literacy Skills are affecting Business

Wed, 28 Jul 2010 09:41:00 GMT

The Australian Industry Group (AIG) conducted discussion groups and surveys designed to identify the level of numeracy and literacy problems in the workforce and what impact this is having on business. It was found that more than 75% of employers believed poor literacy and numeracy affected their business.

In total more than 390 responses to the survey, came from companies within the Manufacturing; Construction and Service Industries who employ (approx) 56,000 staff.

The main issues seemed to include poor completion of documents and the loss of productivity due to repeating work processes. Other problems include:-

- Ineffective Work Teams,
- Materials Wastage,
- Ineffective Training,
- Financial Miscalculations,
- Unsafe Work Practices (which lead to Workplace incidents and injuries), and
- Ineffective recruitment Practices.

Whilst these issues occured with labourers and process workers... [some] managers and engineers too were effected by poor numeracy and literacy skills.

Award Modernisation

Wed, 28 Jul 2010 08:36:00 GMT

It is beleived that the Goverments new Award system - being implemented from 1 July 2010, comes with unfair cost and complexity to business.

Although the Award Modernisation process was to streamline the many federal and state Awards, into just 122 [occupational or industry] Awards, opinion suggests the new system will both increase and decrease wages.

Further issues causing concern relate to employers having to reach agreement with each employee regarding [any] changes to rates of pay; this of course will become a challenge particularly considering the logistics of such a communication strategy.

These transitional arrangements have their opponenets and as such further clarification and/or information should be sought to assist employers understand their obligations as well as their next steps.

Update of the Federal Governments Parental Leave Scheme

Wed, 28 Jul 2010 08:22:00 GMT

In the draft legislation whicih is set to be before the Senate, the Goverment has identified that Employers will be required to provide taxpayer funded 'Parental Leave' on top of any scheme it may already have in place.

This scheme will provide [eligible] mothers and fathers with eighteen (18) weeks paid leave, at the federal minimum wage [rate] from january 2011 - as long as the nominated parents' income doesn't exceed $150k per annum.

Further, this legislation provides for women, who give birth prematurely, or have pregnancy related complications and would have otherwise met the criteria to receive these payments.

This legislation is likely to have the support of the Senate and therefore teh scheme will be passed.