Balancing Worker Privacy with Worker Productivity

An article in yesterday's Age reported concerns that employers are becoming more intrusive in workers' medical assessments. One specific allegation was that some employers are insisting on accompanying workers on visits to doctors. This was held by the ACTU to be both a potential breach of privacy and unethical behaviour, particularly in light of reports that some employers have sought to have medical certificates and impairment determinations altered. If this is happening, it is most certainly disturbing and unacceptable. Having said that, the law of probability dictates that of thousands of employers with employees who regrettably suffer workplace injuries, there will be a few employers who take things too far.

What was predictably not raised by the ACTU was the reciprocal probability that a small number of employees will attend a consult with Doctor How Long Do You Want Off? and attempt to simultaneously maximise paid time away from work and minimise their contribution through exaggerated work restrictions once they return. If you think this is harsh I can assure you I have seen both the best and worst of employer and worker ethics in my 16 years of consulting. Some of these have formed the basis of case studies (de-identified of course) included in my book being launched in November.

Much contemporary research shows that those employees who have suffered a workplace or non-work related injury and return to work as soon as practicable in whatever capacity is helpful to the injured worker's recovery, both physical and mental. Employers are entrusted with the safety and welfare of their employees and employees are entitled to supportive and interested managers. The offer to drive the employee to the doctor, to take place in a round table discussion with the worker and the health practitioner about the injury, even the request to involve the company doctor can equally be framed as intrusive, mistrusting and intimidatory or inclusive, supportive and facilitative.

How such actions are perceived is largely a reflection of the trust, consistency, transparency and appreciation that operate in that workplace. That is more likely to shape a worker's perception that their manager is demonstrating care and would like to facilitate an easy and safe re-entry to the workplace as opposed to forming a view that their manager doubts the veracity of their condition and/or is keen to exploit them. Both parties are only human. Past experience, poor cultural norms around return to work, habitual time theft and low work ethic will make employers hyper vigilant to worker misrepresentation. Similarly, insensitive, nepotistic or demanding bosses will have a hard time convincing their staff they have workers' best interests at heart if they have not acted that way in the past. At the risk of sounding too biblical, we reap what we sow.

We Need Common Sense to be Common in our Industrial Courts

Two significant industrial cases have been decided in the past few weeks that should give employers heart and reassure workers that sanity can prevail in our IR jurisdictions.

The High Court ruled this week that Bendigo TAFE was not in breach of the Fair Work Act 2009 (the Act) when it took decisive action against a union official by standing him down on full pay and suspending his internet access due to allegations of serious misconduct.

In the first instance a Federal Court judge was satisfied on the balance of probabilities that the TAFE CEO stood down the complainant on the same justification as would have applied to any staff member who was not a union official. The complainant had reportedly used the company email system to allege that unnamed parties had engaged in potentially fraudulent action in respect of an upcoming audit. The CEO took issue with the fact that serious allegations were raised inappropriately with other staff and not with management. A claim of adverse action against the union official was dismissed. The complainant subsequently appealed to the Full Bench of the Federal Court which overturned the original decision.

There was clearly a huge implication of this decision for employers; namely that union officials, regardless of conduct could now become a protected species under the Act because of the provisions prohibiting adverse action against staff in representative roles or those engaging in lawful industrial activity. The TAFE was granted leave to take the decision to the High Court which has come out unanimously in support of the original decision. It is regrettable that companies must incur such substantial expenses to test these legislative provisions at law or be prepared to settle ahead of public hearings in FWA or court proceedings in the Federal or High Courts.

There are parallels between this case and a far older case I encountered early in my career as an EEO practitioner. That case involved a food manufacturer which dismissed a staff member with a psychiatric disability for aggressive and threatening conduct. The terminated staff member sought relief under unlawful termination legislation citing dismissal on a protected attribute. However in that instance, the tribunal was satisfied that the company would have taken the same action against any staff member who compromised the safety of other staff and that the illness, whilst unfortunate, was not a factor in the decision to terminate.

We know that quite unacceptably, staff still face discrimination in Australia on prohibited grounds of discrimination and we must continue to fight against unlawful disadvantage and harassment on protected attributes. However we must also set boundaries and educate staff to ensure safe and productive workplaces. The mere fact of a staff member belonging to any minority group should not afford them special protections if they disrupt safety or otherwise engage in misconduct.

In a second noteworthy case, an employer was found not to have unfairly dismissed a senior IT consultant who was found on the balance of probabilities to have attempted hacking into his manager's email account after being 'tipped off' that the manager was investigating him for inappropriate behaviour. In this interesting case, the IT consultant had allegedly been a party to a very unsavoury conversation instigated by another staff member about a female colleague and a male senior manager. The complainant had clearly been given the tools of trade and would normally have had clearance to execute highly sensitive tasks in the normal course of his work day. It was acknowledged he had not instigated the conversation but because he had not opposed it and had responded 'lol' (a sms acronym for 'laugh out loud') this was tantamount to inexcusable involvement. In a very thorough decision, the Commissioner ruled the complainant had 'probably' hacked into his manager's email to see what the manager had accumulated 'on him' as evidence. The common sense message?

If it follows, as I have heard argued on occasion, that we give people tools of trade at work so have no right to restrict the tools' use, what happens at a butcher shop when employees are given very sharp knives to meet the inherent requirements of the job? Does that confer an automatic 007 Licence to Stab!?

In our civilised democratic country, no employer should have an indiscriminate right to terminate staff on irrelevant characteristics or should a 'punishment' be disproportionate to 'the crime'. No employee, including one in a legitimate representative role should use their position to abuse the power and privilege of their office. No skilled IT person should have unfettered access to anything and everything they have the expertise to explore. In each of these cases, it's the context that determines any wrongdoing, not the job description.