In Case: No Proof but Sacking Stands

Inconclusive video surveillance helped justify the dismissal of an employee for stealing $24.

Background
In 2008, an employee who worked at an RSL in Brisbane was sacked for theft six days after the till was found to be $24 short of cash.

The discrepancy was found at the end of the day when the tills were counted. The RSL reviewed the log of transactions and noticed that there was only one transaction for $24.

They reviewed the video footage which showed that the customer had purchased a carton of beer, and then changed their mind. The employee had reversed the sale. A few minutes later the customer decided they did want the beer. The employee had opened the register and removed something both times. She was seen to put her hand under her t-shirt – which she later explained as adjusting her bra strap.

When the RSL sacked her, they refused to allow her to see the video footage and respond to it.

The employee appealed the decision with the employment tribunal of the time (now Fair Work Australia) by lodging an unfair dismissal claim. The tribunal upheld the sacking.

D.A. Whiting v Greenbank RSL Services Club Inc. [2008] AIRC1062 (30 June, 2008)

Law
This case highlights a number of important points in employment law.

1. Proof ‘beyond all doubt’ is not required. The employer only needs to look at the evidence objectively and determine what was most likely.

The reason for this difference is that in a criminal trial, a person found guilty loses their freedom. To inflict such a serious punishment on someone requires us to be absolutely sure they did it. Termination of employment, or workplace discipline are (in the eyes of the law) far less serious punishments, so the level of proof required is different.

2. The importance of giving someone the chance to see and respond to evidence.

The tribunal came very close to overturning the sacking because the employee had not been allowed to see the video footage and respond to it. If you intend to sanction an employee, you must allow them to know what they are accused of and the evidence you have, so that they can properly defend their actions.

 

3. A vital part of the employment relationship is the trust between parties

In the unfair dismissal claim, the employee said that the punishment (sacking) did not fit the crime (theft). The tribunal said that there is an implied (unwritten and unspoken) part of the employment relationship that requires that both parties act in a way that is trustworthy toward the other. Stealing from her employer had violated this so there could be no further ‘relationship’.

*Please note I am not a lawyer, nor am I qualified as one. I am however an Employee Relations professional whose job it is to understand and apply employment law, often in some odd situations such as the one above!



Giving Feedback

One of the key tasks in managing people is providing them with feedback. It reminds them that they are accountable for the job they do and allows them to know where they stand. Research has shown that feedback is a vital element in employee engagement.

Many managers and supervisors avoid giving feedback to the people working for them because they worry they will lose control of the situation and it will turn into a "yes you are - no I'm NOT" argument, putting them in a weak position or otherwise forcing them to be aggressive.

The paradox with this is that when you avoid giving feedback, others do see you as weak or ineffective. Fortunately there are a few simple ways to help you stay in control of the situation.

1. Balance your feedback by starting with something positive

This can be useful because it helps to break down their assumption that you are 'against' them. It helps them to see you as someone who is on their side and has a balanced and fair view of who they are. This helps them to be more relaxed and less defensive.

2. Give specific examples of things they did or did not do

Labelling someine in a general way tells them that you think the whole person is a lost cause! This is one of the reasons they will ignore your feedback - it is too hard to know where to start and what to fix. When you give them specific feedback about their actions it is easier for them to accept because they know what to fix.

It is also useful to use specifics when discussing a person with another manager. This ensures you both have a clear understanding of the issue.

This also applies to positive feedback. "You're great" doesn't have as much impact or stick in someone's mind as long as the more specific: "You really churned through the work today and I know the rest of the team appreciated hearing back from you so quickly".

3. Don't be drawn into debate

Sometimes people will insist on asking 'who told you?' or 'how do you know that's true?' The problem with this is that it sucks you into an argument. It is a skill that takes practice but this can be managed by calmly stating that you are not going to get into a discussion about it.

It is important to note that giving someone feedback on how they are doing is different to discipline eg. a warning letter or some sort of sanction. Feedback tends to be one way - 'for you information only', whereas disciplinary discussions must establish the facts and allow all parties to be heard.

Workplace Myths: Facebook Sacking for Harassment

Fair Work Australia (our national employment disputes tribunal) recently agreed that an employee who was sacked for posting aggressive anti-work rants on Facebook should stay sacked; and his employer acted reasonably in sacking him.

Background

An employee of the Good Guys Townsville posted a status update from his home computer, outside of work hours, saying 

"[He] wonders how the f**k work can be so f**king useless and mess up my pay again. C**ts are going down tomorrow."

At work he was asked who he had been referring to. He admitted it was the store's Operations Manager.

The store owner said the employee was sacked for calling his colleague a c**t on a public page, and also because it threatened the Operations Manager.

Fair Work Australia said the employee's actions amounted to serious misconduct. The Good Guys employee handbook provides clear guidelines on the need to be courteous and police to workmates and contains detailed policies on sexual harassment and workplace bullying.

The tribunal noted that even without the handbook, "common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee."

Damien O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys [2011] FWA5311 (11 August 2011)

Law

There are two key myths this case raises:

Myth One: Someone has to be offended for harassment or misconduct to have occurred.

The law recognises two forms of harassment:

1. Things that might be offensive to some people eg. calling them a rude nickname or touching on the arm. 

These only becomes harassment if a person has been asked not to do it, and the behaviour continues.

2. The things that are considered heinous by community standards eg. nudity, violent images, threatening a person, touching them on the bottom or genitals. 

These are automatically considered harassment and if the employer becomes aware of them, should lead to disciplinary action (since an employer has an obligation under OHS law to ensure the workplace is free of these behaviours).

Myth Two: If it didn't happen at work, it's not work related.

The law recognises that if something happened between two people, who are connected by their workplace, then the employer has some responsibility for ensuring it is clear the behaviour is unacceptable, and if necessary the perpetrator is disciplined.

*Please note I am not a lawyer, nor am I qualified as one. I am however an Employee Relations professional whose job it is to understand and apply employment law, often in some odd situations such as the one above!

I Swear!

It is common for those who manage or supervise people to swear. There are two key situations when this is most likely to occur, but in both situations it is likely to have the effect of weakening your position of authority.

1. To demonstrate you are angry and serious about an issue

This undermines your authority because it looks like you have lost control of the situation and are flying off the handle. As a manager, you want to appear cool, calm and in control, but as soon as you yell and swear, it tells people that you are desperate and this is a last ditch effort to hold onto that control.

2. To set up an informal environment where people feel comfortable

Although you have the right intentions, many people interpret this as your wish to demonstrate that everyone (including you) is an equal. They may respond to this in ways that you don't feel is respectful of your position of authority, eg. ignore something you ask them to do, pressure you to swap shifts/ tasks. In the workplace, everyone is not equal. You are the boss - so don't accidentally undermine yourself!

It is important to recognise that as the person in authority, your job is to set a standard of professionalism. If you feel uncomfortable with this, remember that employees are proud to work for companies that value professionalism and respect it.

The Perfect Decision

Decision-making, and the ability to make timely, effective decisions is said to be a key and necessary trait of a true leader.

I'm currently working with an organisation whose managers, on the whole, lean toward an 'avoidant' management style - that is, they put off making decisions. This is problematic because it can slow organisations down, mean that they become more bureaucratic with much consensus sought before someone has the confidence to make a decision. Rather than driving change and being in control, these managers become reactive and buffeted by constant change happening around them. It makes them more cautious and locks them in a cycle.

I find this a particularly interesting phenomenon because it is (as a CBT psychologist might say) the product of faulty thinking. Managers with an avoidant style tend to believe that there will be a perfect answer to their problem -they just need to figure out what that is. Sometimes this is driven by (and also drives) an immature organisational culture where people are either golden children (good) or sabateurs (bad). These cultures are often punitive and unforgiving, with manager having little confidence to stick their neck out or making a stand. They encourage others to tow the line. (Note: the opposite style is outwardly aggressive)

The second trait many avoidant-style manager have is that they are very high on the 'agreeability' continuum of personality. For them, being unpopular is a painful experience they fear. Whilst their personalities attract supporters and they can be quite influential, when it comes to the cold hard truth, this is their weakness. They can appear to be passive aggressive - agreeing to one thing and doing another.

So what do you do if you are a manager who gets hot under the collar when you are pressed for answers, or you are managing (and hopefully coaching) someone like this?

The first thing is to understand that sometimes a timely decision is more important than the right decision; often more data or yet another meeting does not mean a better decision. For a greater appreciation, read 'Blink' by Malcolm Gladwell.

If you work in an organisation, or with people like this, it is important to support them in their decision, encourage them to take more risks, and don't punish them when one goes wrong. Emphasise that it is important to keep learning and developing competence. As Bill Gates says 'success is a lousy teacher'. Sometimes our mistakes make us better, more human (an appealing trait in a leader!) and more competent on the whole. No-one wants to work in an organisation where you are always looking over your shoulder and don't have room to breath.

Resume Writing

I am often asked to give input to friends or family brushing up their resumes. I'm inclined to give you a diatribe but then a 'zenibyte' is meant to be short and sweet! Assuming that you've got the basics sorted, here are my top practical tips:

1. Don't use adjectives (descriptive words) to sell your skills

I read so many resumes where people claim to have 'high level communication skills' or 'excellent time management'. Speaking frankly as the person whose desk your CV lands on - what you perceive to be 'high level communication skills' and what I know them to be are quite different things - they are subjective. They don't help your case in any way because they suggest that you are trying to fudge your resume or fool me because you don't have the goods.

2. Set out the skills you developed in a role instead of providing a position description

A lot of people use up space describing what the company did, and the activities their role involved. This tells me nothing about how effective you were in the role and how you got along with others. To overcome this, use one line only to describe your duties, then list the skills or technical knowledge you developed in the role.

Remember that you developed important skills in your very first job which you have built on. For example, for my first job at McDonalds I 'developed an ability to work in a relentlessly busy environment' and 'an understanding of how to communicate clearly with team members'. As I moved into restaurants I built on this by learning 'interpersonal skills allowing me to deal with many types of people - chefs, colleagues and customers'.

3. Work hard to avoid listing generic skills

The skills that are listed on every resume I see are: attention to detail, organised, communication skills. These not only bore me but do nothing to convince me you actually understand or have these skills which are different at different levels and types of jobs. To overcome this, think about the challenges you had in each job you worked in. When I think back on my time working in a busy, inner city restaurant/ cafe, I always remember how angry the chefs were and having to put up with this! On my resume it becomes 'ability to deal with different types of people', or 'ability to deal with conflict'.

If you can do this well, it sets you up for a good interview too. An interviewing manager will say 'it says here that you worked in a restaurant and dealt with conflict - can you tell us about that?' You know your own history so it will immediately remind you of some scenarios you dealt with and can tell them about.

4. Layout

Use a contemporary, fresh layout that represents you. Do not use Times New Roman, this says that you are old fashioned and probably don't have great computer skills. There are plenty of free templates available for download. Try www.monster.com.

5. Don't talk about being enthusiastic or a fast learner

I see this so often! It tells me that you don't meet the criteria I've advertised, but you want me to give you the job anyway. To overcome this, try to identify what we in HR call 'transferrable skills'. An example of this is when I wanted to move into employee/ industrial relations which involves negotiating with unions. I had very little experience negotiating with unions, however I had been working as a volunteer crisis telephone counsellor for a while and I certainly did some difficult and tense negotiating there. I picked up some experience which was applicable to what I wanted to do and my prospective employer felt more comfortable that I would succeed in negotiating with union officials.