A significant contributing factor in the cause of complaints within organisations is ‘workplace culture’, a term broadly defined as ‘the way we do things around here’.
A recent BRW article describes workplace culture as a “hot topic” and breaks down the term to explain to leaders what is needed to build a desired culture, but why is culture so important?
The norms of behaviour and language came under the spotlight of the Fair Work Commission (FWC) in a case at the end of last year in which a senior manager was dismissed. In this case, the manager in question was found to be unfairly dismissed after circulating an email amongst his colleagues which contained a ‘mock’ resume for the company’s CEO, the hobbies and interests section of which included ‘excessive masturbation’.
The senior manager was summarily dismissed the same day for serious misconduct but contested that his dismissal was harsh, unjust and unreasonable, and the FWC agreed.
The FWC found that the dismissal was ‘unjust’, in that the CEO’s reaction to the incident (emailing of the mock resume) was disproportionate to the seriousness of the event. The culture of the company came under scrutiny in this case, and it was found to be a workplace where emails containing hard core pornography, and sexist and racist material, were regularly circulated amongst staff. Even senior managers were involved in distributing and reading these emails which, according to Commissioner Asbury, “…speaks volumes about the attitude of senior management”. Further, the authors of these emails and those who participated in more serious misconduct were not dismissed. The CEO stated he was unaware of the culture of circulating sexually explicit and offensive materials through email amongst his employees. In essence, however, the FWC found that it would not have been too difficult for the CEO to find out through the resources at his disposal.
A further recent case where two workers were awarded reinstatement after being sacked for circulating pornography at work, shows that the FWC is keen to examine all the circumstances when considering whether a dismissal is harsh or unfair.
The Commission clearly considers the context that an inappropriate culture provides to the behaviour which has landed a worker in trouble, and this context can act as mitigation. Workplace culture is therefore important not only in terms of preventing inappropriate behaviour from occurring but in allowing the employer to take action that is later defensible when necessary. An employer being forced to concede that it has allowed an inappropriate culture to flourish is acutely damaging to the organisation’s brand and to team morale, as well as being personally embarrassing to those involved.
The reasons why the FWC found the dismissal ‘unreasonable’ in the first case were that the email was easily identifiable as a ‘joke’, and reference to ‘masturbation’ in the context of that email was not sexual. Therefore, the email did not include sexually explicit material on this occasion, as the employer had asserted when sacking the senior manager.
The FWC’s rulings further reflect the importance of having a policy (in these cases in relation to use of email), which is clearly written, and regularly communicated to every employee in the organisation. A policy needs to state the consequences of non-compliance, and any associated disciplinary action around non-compliance consistently enforced across all staff, and in keeping with ‘what happened’. When conducting a workplace investigation into ‘what happened’, allow a person to exercise their right to respond to an allegation, particularly if the consequences are going to be significant for them. Finally, the CEO and senior management team set the tone for behaviour, and if they are unaware of what the norms of behaviour are in their organisation, it is their duty to find out. Whatever is happening is infectious.
This article was written by Dr Verena Marshall, Senior Workplace Relations Adviser. Visit Our Consulting Team page to learn more about iHR Australia’s consultants.
iHR Australia conducts workplace investigations across Australia and provides HR consulting services including development of policies and procedures, contact us on 1300 884 687 or make an online enquiry.
