One of the most difficult human resource issues that employers are grappling with in the crafting of their workplace policies is the strict and unambiguous regulation of behaviour outside work hours.
The issues are far from being described as toy problems1 given the complexities of the workplace, its people, degrees of tolerance, cultural differences and the vast array of technology at everyone's disposal. Decisions made in nanoseconds as to whether to 'send', 'reply all' or 'delete' an email, tweet, SMS or Facebook posting often carry with them an insufficient weighing of the consequences if the wrong decision is made.
There is no such thing as '9 to 5' office hours other than in the minds of Hollywood executives. Remote access to workplace servers, the Blackberry/iPhone addiction and instant, everywhere communication portals has meant that the workplace can no longer be regarded as a specific address within which certain rules apply during working hours.
It is not sufficient to simply state that your workplace has "zero tolerance" about inappropriate behaviour during or after work hours2. Employers must walk the talk and have stringent (and regular) training programmes laden with carefully defined terms and practical examples distinguishing between harassment, bullying and discrimination.
There must be a carefully thought out policy which clearly identifies what constitutes unacceptable workplace behaviour both during and outside working hours (which would include the use of employer funded capital such as laptops3, home internet access and mobile phones providing SMS and work email connections to other employees, clients or contractors).
We believe that employers need to start with the simple proposition that they have an OH&S responsibility to ensure their workplaces are safe. In the current context this means, amongst other things, that they have a legal responsibility to prevent one or more employees harassing or bullying other employees at work or after hours. Defining how the misuse of technology could lead to dismissal from employment is a part of that responsibility.
In our opinion, the responsibility extends outside the workplace gate to after hours conduct by an employee (or a contractor's employees) which might create an unsafe workplace for another employee (or a contractor's employees). If there is a sufficient workplace connection, the OH&S responsibilities arguably arise4.
The legal obligation to protect employees extends beyond OH&S law to common law duties (contractual – which can be express or implied – and in tort (negligence) to protect all employees against inappropriate behaviour), and is also found in specific State and Commonwealth legislation that covers sexual harassment and discrimination.
Additionally, there are the Fair Work Act's general protection provisions which carry the risk of an employer's action (or threat of action) being found to have adversely affected the employee because of his or her exercise or proposed exercise of a workplace right5.
The social network has changed how we work, when we work and, importantly, where we work. The boundaries between work and play are becoming more blurred all the time. More employers than ever before are embracing the work from home option. Employees are also demanding the use of state of the art technology giving them 24 hour access to the workplace and each other6.
The growing use of Facebook, twittering, SMS, emails and the like do not recognise workplace boundaries other than those created by employers in their HR policies.
The social network has, no doubt, changed the workplace dynamics. Employers must ensure not only that there is adequate protection for all employees while at work, but also that employees (or contractors and their employees) are protected against inappropriate conduct after hours by another employee or a contractor's employee which could adversely effect them outside working hours and lead to a serious infection of the workplace when the employee returns to work. The insulation must also work in reverse so that an employee at work is protected from another employee who may not be physically present at the workplace.
The second aspect of this policy is to limit the misuse of your confidential information and smashing of your reputation through the social network by disgruntled former employees (see our September 2010 WRG update).
We recommend 6 building blocks for an effective policy:
- define and explain the differences between harassment, bullying and discrimination;
- extend the boundaries of the employer's reach to unacceptable behaviour after hours;
- create limits on the use of the employer's capital such as laptops, servers, internet, emails and the social network tools which can connect employees both in and outside office hours;
- describe how complaints will be dealt with;
- nominate which expert will handle any complaint; and
- explain the potential consequences of a breach of the policies.
These policies must be articulated to all new employees during the induction process. Employees should be tested for their understanding of the policies at the conclusion of the induction and be marked off as having received and understood the content of the policies. There should also be a refresher course at the end of any probation period for new employees and annual presentations to bring all employees (including the management team) up to date with legal and social developments in this contentious and quickly evolving area of behaviour regulation7.
Whilst there remains more State and federal governments can be doing to educate the incoming wave of new employees about the link between social networking, bullying and harassment8, the fact is that when they enter your gate they become your responsibility which extends beyond the end of the mythical working day.
To reduce the risk of your company being the next bullying headline, with the financial and reputational damage that can bring, review your policies NOW, make sure they are backed up with appropriate and regular training, and that any complaints (both formal and informal) are dealt with promptly, confidentially and independently.
If you're not sure where to start please give us a call. We are happy to review your policies, deliver in-house training programmes, conduct or be a checking point for internal investigations, and help you minimise the fall-out from any formal complaints made or legal action taken against you.
1 Ruth Wajnryb's book "FUNKtionary" defines a "toy problem" as being a complex issue demonstrated using a simple example.
2 in Gray v Automotive Brands Commissioner Smith stated that "simply because an employer expresses the view that it will have zero tolerance doesn't mean that the Tribunal will share the view if it is not reasonable in all the circumstances". The Commissioner also alluded to the fact that the policies on bullying and harassment should be backed up with some training – 2011 FWA 2113.
3 Griffiths v Rose – 2011 FCA 30: The decision to dismiss an employee after 25 years service for accessing pornographic images using a work laptop was upheld because the policy was clear on misuse of a laptop supplied by the employer notwithstanding being used in his own home, using his own internet service provider, the images were not unlawful and no-one else saw them.
4 more so will this proposition be realised under the harmonised OH&S laws in January 2012 for persons conducting a business or undertaking and the responsible 'officers' who will need to ensure the safety of employees.
5 which can cover matters, in our opinion, in an employee's contract of employment or human resources policies that are applicable.
6 "When they discover the centre of the universe, a lot of people will be disappointed to discover they are not in it" (Bernard Bailey – IBM executive and former CEO of Viisage specialists in facial recognition technology).
7 "Education is not the filling of a bucket, but the lighting of a fire" (W.B. Yeats).
8 for example the Victorian government recently introduced the Crime Amendment (Bullying) Bill 2011 which, if passed, will amend the existing offence of stalking to cover serious bullying. Workplace bullies convicted under this legislation could face up to 10 years in prison.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.