Aussie Rules

Bullying may often be associated with school days, but there is no doubt it is also a significant problem in today’s workplaces as well. The NSW WorkCover Authority defines bullying at work as “aggressive behaviour that intimidates, humiliates and/or undermines a person or group. It is repeated, less-favourable treatment of a person by another or others in the workplace.” Although it is difficult to estimate the prevalence of bullying in today’s workplaces, a Morgan poll conducted in 1998 found that 46 percent of Australian employees had been verbally abused or physically assaulted by a co-worker or manager.

Workplace bullying can include anything from direct or indirect baiting, humiliation or practical jokes to more serious behaviour such as verbal threats or abuse, intimidating behaviour, harassment and physical abuse or violence. Although there is no specific statutory prohibition of workplace bullying, these types of behaviour could result in prosecutions under criminal law, occupational health and safety legislation, anti-discrimination laws, breach of contract and/or duty of care and unfair dismissal. Under most of these laws the employer can also be held vicariously liable for the bullying behaviour of its employees.

The courts have been willing to hand out heavy penalties to employers if found to have breached their duty of care in providing a safe system of work for all employees. In 2001, the Queensland Industrial Relations Commission awarded an employee AU$10,000.00 for suffering hurt, humiliation and distress related to bullying¹. A more recent case found an employer liable for the behaviour of one of its employees in bullying the employee of another employer². Both employers in the case were found negligent. Damages were awarded against the bully’s employer for almost AU$2 million. Unfair dismissal claims have also been brought against employers where their employees have been forced to quit after being subjected to bullying by those in managerial positions.

Employers should not tolerate any form of bullying and need to be proactive in developing anti-violence, harassment and bullying policies and ensure these are clearly communicated to employees. Employers should also look into developing a workplace violence policy and grievance process to manage this type of behaviour if it occurs.

¹ Serratore v Doyles Construction Lawyers (No 2) [2001] QIRComm 137; 168 QGIG 9 (28 August 2001)
² Naidu v Group 4 Securitas Pty Ltd & Anor [2006] NSWSC 144 (15 March 2006)

There is much spoken of “leverage” and how we must leverage our business if we are to prosper.

Invariably discussion of leverage revolves around having tangible products in one form or another — “you must have a means of earning income while you sleep” is the mantra of the leverage disciple.

Now there’s no denying that most businesses would do well to foster a strategy of leverage within their model, but it’s not helpful to agonise over the topic … at least not alone.

Start by embracing a strategy of leveraging your mind.

To do this, we need to open our ears and eyes to all that is going on around us and this involves understanding the workings of all those who operate within our market space.

The most effective way of achieving this is to reach out to others and create a kind of market space network.

But who do we choose and how do we do it?

Let’s take the example of a graphic designer who produces brochures and Web sites for SMBs.

While design is the common thread, the media (paper and online) is quite different.

For this designer to effectively keep abreast of developments in the market space and for leverage opportunities to present themselves, it’s necessary to commune with the likes of developers, hosts, illustrators, photographers, and so on.

An essential ingredient in any business plan should be the provision of a market space network — a group of individuals who operate in the same arena, willing to meet and exchange ideas.

So who should be in your group?

There’s a wonderful, simple team-building program you can easily create. It was brought to my attention recently during a conversation in Sydney with Melanie Pike. She works in the Australian government department that leads the country’s Antarctic program.

Melanie said that to build morale, get staff to talk with each other (instead of emailing within the office) and to improve wellbeing management came up with the idea of grouping staff in teams and running a contest to see which team would be the first to walk the distance between the Australian Antarctic territories.

No, they weren’t sent out to the frozen south. Everyone was given a T-shirt and a pedometer. The team to first walk the distance would be the winner. Thirty people initially joined. Even those that were initially negative or who had pooh-poohed the idea got into the spirit. Currently there are 70 participating.

The positive effects from the program that Melanie and the executive team noticed:

• Turned workplace “strangers” into mates
• Got staff talking with each other
• Built morale and spirit along with a dose of competitiveness
• Gave staff a motivational and positive focal point to work towards collectively
• Improved health and wellbeing

Here are four tips to help make this idea work for you.

1. Pick a measurable, quantifiable goal. Walk the distance around Australia (collectively). Your state. Your city.
2. Mix fitness levels between teams for fairness.
3. Create a simple Excel chart to visually stimulate team competitiveness and show percentage of the goal completed.
4. The reward can be for the team or the charity of their choice — or everyone can walk to earn for a charity.

Is the Department of Education liable if one of its teachers sexually assaults a student? Can a security provider be held liable for an unlawful assault by one of its security guards on a member of the public? These are scenarios that Courts have recently considered in relation to employer liability.

The common issue in many of the cases is determining how far an employer’s liability extends for illegal acts committed by its employees.

In general, the rule is that an employer will be liable for a criminal act when it was:

• incidental to the employee’s employment (ie, the act was within the scope of the work the employee was employed to perform); and
• in furtherance of the employer’s interest.

A recent case came before the NSW Court of Appeal (Sprod bnf v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319) where two security guards of a pizza shop assaulted a man who was drunk and acting aggressively towards the shop’s customers. The guards took the man to a nearby alleyway, assaulted him and left him in an unconscious state, which resulted in him sustaining permanent brain damage.

Although an improper and unauthorised attack, this assault was found to be incidental to the employment of the guards in fulfilling their duties “by ensuring that the assaulted man would not again make a pest of himself at the shop … and molest the customers.” The court also found that the assault was committed in furtherance of the security company’s [employer’s] interest. The criteria set down by the High Court above was satisfied which resulted in the security company being liable for the intentional wrongdoing of its security guards.

The nature and seriousness of the acts committed will also be considerations taken into account by the court in seeking to attribute liability to employers. It is likely that this issue will be looked at on a case-by-case basis and employer liability will depend on the particular facts in question.

Talk to a room full of business owners and you’re sure to come across a good few who are struggling to find a lucrative market for their product or service.

If you were to question just how long this struggle had being going on, the likelihood is that it’s always been that way. That’s a tough place to be.

In our businesses, we have to find the gap for our product or service before we attempt to fill it (or at least have a very convincing indication that the gap really does exist).

This is basic stuff, but the truth is when you’re all fired-up with enthusiasm, passion, and outrageous optimism, you’re probably not doing enough looking and listening.

Here are five basic steps to launch a little Research & Development Program:

1. Source, buy, and read all the publications that cover your market. Get a grip on what’s going on.
2. Look at what others are up to and see if and where your product or service takes things further.
3. Attend all the relevant trade shows, exhibitions, and networking events that cover your market.
4. Talk to people. Be very inquisitive. Learn as much as you can about other people’s businesses.
5. Don’t be afraid to share your ideas and intentions with others, at least in outline. Being frozen by fear that someone will pinch your great idea means you’ll be doing zero R&D. Every failed entrepreneur has a filing cabinet full of great, top secret ideas and the world is still waiting.

Finally and most importantly, be very suspicious if there’s nothing like your product or service on the market. Ask yourself this question and think deeply before answering: “Is it really because I’m a total genius or could it possibly be because there simply is not a lucrative market?”

Ouch! Sorry, but someone had to challenge you.

A recent Reuters article detailed how a Canadian government ministry (Citizenship and Immigration Canada) sent out a directive to its employees urging them to implement a BlackBerry “blackout” between 7pm and 7am and on weekends and holidays and to not use the devices during meetings.

“Work/life quality is a priority for me and this organisation because achieving it benefits us both as individuals and as a department,” deputy minister Richard Fadden was quoted as saying.

“When we can ‘balance’ our work and personal responsibilities, we, as a team, stand to not only serve and perform more effectively, but also to attract and keep employees to help us build a stronger Canada.”

Unfortunately, in my experience, trying to dictate a “work/life balance” just doesn’t work.

The reality is there are only two things you can do to create more time for yourself or family. The first is to do less by delegating — this frees up time.

The second is to do what you do more effectively, thus spending less time doing it.

So how do you go about all this then?

1. Focus on the right activities
   You should focus your time on doing the right activities for you. List the roles you lead in your life on a piece of paper. Headings might include: Business, Home, Partner, Parent, Community. List all activities. Open your mind and brainstorm. (This is also a good time to ask yourself questions like, does your activity match your role? Your goals? This important self-examination is where your time and balance breakthrough begins.)
2. Grade your activities
   “A” — Very important, something you must do (serious negative consequences if you don’t do it).
   “B” — Important, something you should do (minor negative consequences if it is not completed).
   “C” — Nice to do.
   “D” — Delegate.
   “E” — Eliminate whenever possible.
3. Create more time through automation
   Where focus starts freeing up time normally spent doing other things, software knowledge brings you massive productivity gains. It’s like magically pulling hours out of a hat. For example, take the time to learn more about your Office software, no matter how busy you are. You’ve heard the old adage it takes time to make time. You’ll learn functions that allow you to eliminate many repetitive tasks. Many people literally spend days splitting names apart manually in Excel spreadsheets, when there’s a function that does this instantly.

So you have suffered the pain and nuisance of a work-related injury, and now it looks like you’re also about to lose your job! You may be asking yourself, can my employer really get away with this? A number of recent cases have looked at whether an employee can legally be sacked (or have their hours excessively reduced) for sustaining a work-related injury.

Last year a company was fined AU$8,500 for discriminating against an employee with a visual impairment by excessively reducing his hours after receiving medical safety advice.

In another decision, the Federal Magistrates Court found that employees who take workers’ compensation leave and are absent due to injury are protected from unlawful dismissal under the Workplace Relations Regulations.

Evidently however, not all injured workers are protected. The legislation does not come to your assistance if you have been absent from work for more than three months, unless you are on paid sick leave.

However, employers who follow the employee’s medical restrictions and accommodate the worker’s injury by restricting their duties, will generally not be found to have forced the termination of the employment. In a decision by the Queensland Anti-Discrimination Tribunal, an employer who dismissed an employee who was injured at work and was unable to return to work indefinitely, did not discriminate against the employee on the grounds of his impairment.

Employers should be aware that it is unlawful to dismiss an employee because of a temporary absence from work due to illness or injury within the meaning of the regulations. However, as the cases indicate, it largely depends on the individual circumstances of the case.

In my last post, I suggested a few courses of action if a client should ask for a discount. There may be times when to stay in the frame or worse, stay afloat, you have to reduce your fees. In these circumstances:

• Always show the discount on your invoices. Start with the full rate and clearly itemise the “special discount as agreed”. This way you will always remind your client (and yourself) that it’s an abnormal arrangement.
• Agree on a cut-off time and scope for the reduced rate. Projects have a habit of running over time and expanding sideways. Cover yourself and leave the door open for further negotiation if the goalposts start to move.
• Agree on a review period. If the reduced rate is for a client where a long-term relationship may eventuate, make sure you put a time limit on the discount. Along the way confirm through discussion the value for money your client is receiving and keep this information up your sleeve as ammunition for the review.
• Make sure you establish clear boundaries around what you do and what you do not do. If you are to discount it’s not OK that you work in a way that was not agreed.
• Make sure your client gives you what you need when it’s needed. If anything starts to go awry speak up quickly and get it fixed.

If you haven’t been involved in one, I’m sure you’ve witnessed a heated conversation between work colleagues in which potentially beneficial discussion gets lost in the tension.

A colleague of mine, Donald Jessep from Profitableteams.com, was describing a heated exchange between Mike, a Financial Controller, and Steve, a Sales Manager. Mike suggested they close one of the company’s branches.

“You can’t do that” was Steve’s retort to Mike’s suggestion. Mike fired back a dirty look and the blood pressure of both men clicked up a notch. Mike’s enthusiasm evaporated and what could have been an idea worth discussing went no further.

If Steve had exercised discipline in applying the three steps of an age-old process there would have been a different outcome to the discussion.

• Step 1 — Acknowledge the person. Even if you don’t agree with the comment. Acknowledgment can be a smile or the gift of undivided attention.
• Step 2 — Give a reason to explore another angle. The reason has to be plausible, even encouraging to the person who proposed the idea … and free of all judgment.
• Step 3 — Ask a question, a high-quality question. A high-quality question demands just the right amount of mental stretch to answer.

They’re simple ideas, but sadly, especially once we become familiar with people we sometimes lack the awareness and discipline to apply them. Highly influential people have this process deeply ingrained and can apply it even under pressure.

With the “Kevin 07″ victory behind us, the workplace relations landscape is set to change again in ‘08. It is expected that workplace relations in Australia will undergo a third round of changes since 2006. The current Labor government is seeking to restore the balance in the employment relationship but do Australian businesses understand the effect these changes will have on the operation of their day-to-day business?

Australian businesses have just gotten used to workplace agreements (AWAs), now they are to be wiped from the landscape by the new Labor Government. Labor is going to abolish individual AWAs (although incrementally) and place collective bargaining at the forefront of the workplace model.

Employers should prepare to bargain collectively “in good faith” with unions (if supported by a majority of employees) for wages and conditions above minimum standards. The ALP will also reinstate unfair dismissal protection for all employees, with a remedy based on a “fair go all round”.

It seems that many employers are unprepared for how these anticipated workplace relations changes will affect the operation of their businesses. Recent research undertaken by workplace relations specialists in my firm indicates that Australian businesses are ill-equipped to operate in a Labor IR system that relies on the written common law contract.

The efficient operation of Fair Work Australia (the primary body which will administer the majority of Labor’s proposed changes) will be critical to the success of the changes proposed by the ALP.

Regardless of whether the transition to Labor’s workplace relations system is an easy one or not, businesses should be prepared for big changes in 2008.