Workplace Relations Update for Executives on-the-go

Honesty at a price: cautioning employees about online activity

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The rise in popularity of job review websites raises issues about privacy and defamation which all employers should be aware of – and arguably, warn their employees about. Websites like GlassDoor and JobAdvisorallow current and former employees to post anonymous reviews about an employer and give prospective employees the opportunity to access those reviews as part of their job search.

At its name suggests, JobAdvisor is the TripAdvisor for the recruitment industry. Honest (often brutally so) reviews of companies are posted online for all to see. GlassDoor offers a similar service but unfettered access is for a limited time only as subscription is eventually required. Type in any company’s name and up pops some current or former employee reviews of that company. More often than not the reviews are opportunities to air grievances. One well-know international accountancy practice has had a review entitled ‘[b]e prepared to sell your soul’ visible on JobAdvisor for the past twelve months.

Aside from being a potential public relations nightmare for employers, do negative comments on these forums provide any other issues for employers?

Strictly speaking the answer is ‘no’ unless the reviewer’s anonymity is compromised; either by authoring a review that allows them to be indirectly identified or by a breach of privacy by the websites themselves. In its ‘Terms of Use‘ JobAdvisor states that the site can’t guarantee the anonymity of reviews posted and that ‘the possibility exists that a third party, such as your Employer, may be able to determine your identity, based upon information you provide, or where JobAdvisor is legally required to disclose your information’.

So if a disgruntled employee writes something that makes it past the sites’ moderation processes and still manages to defame a person or a company or be misleading or deceptive, their identity might not remain anonymous.

If the employee is identifiable, they can be exposed to:

  • potential claims for defamation (noting that under the Defamation Act 2005 (Cth) companies can only sue for defamation if they have less than 10 employees or are a not-for-profit);
  •  internal disciplinary action or termination by their employer, if they are still an employee of the company they wrote about. See our previous article for more information on the risks of social media use for employers; or
  •  legal action under the Competition and Consumer Act 2010 (Cth) if the post contains misleading or deceptive content.

What should employers do to mitigate the risks of being negatively commented about on the internet?

While there is always the chance that individuals may be unhappy and turn outside to vent, ideally, a business’ culture should be healthy enough that employees feel comfortable to use internal processes and procedures to speak to their manager, or human resources representative, in relation to concerns they have regarding their employment. If an organisation has an internal grievance policy it should ensure that its employees are aware of it and understand how any grievance they might have will be dealt with. Employees should also understand that any stance they take on the internet may affect their status at work.

The best defence starts in the recruitment process – choosing appropriate people who understand what is expected of them, and will fit into your culture. It’s harder to control the actions of ex-employees but perhaps the old adage ‘all publicity is good publicity’ will provide some reassurance to employers – at least until they work out who to sue.

 

Fake CVs – how much due diligence should you be doing?

The highly publicised recent case of Myer being duped by a senior executive’s fake CV (and his subsequent firing) is a worrying reminder that even large, sophisticated companies can be taken in by dodgy operators. It is also evidence that the recruitment process is also not without risks. Acquiring and retaining high quality talent is critical to an organisation’s success yet some might say that the recruitment model is inherently flawed, given the reliance it places on honesty – a notoriously fickle human quality.

On 18 June 2014 Myer announced to the Australian Securities Exchange (ASX) that it had appointed several key new executives including a Mr Andrew Flanagan who would occupy the role of Group General Manager, Strategy and Business Development. In the ASX release Myer described Mr Flanagan as being the former ‘Managing Director and Vice President Asia Pacific of Inditex Group’ (Zara) who had ‘strong retail experience’ and would report directly to the Chief Financial Officer. The ASX release also referred to Mr Flanagan’s previous roles at large organisations including Tesco and Walmart.

Yet, less than a week later, it was widely reported that Myer had fired Mr Flanagan after it had been contacted by Zara and told that Mr Flanagan had never worked there. Apparently, after digging a little deeper into Mr Flanagan’s past, Myer began to have serious doubts about the other claims in  Mr Flanagan’s CV. The recruitment company Myer engaged, Quest Personnel, and Myer’s own due diligence process, came under public scrutiny for failing to detect some (reasonably) easily refutable falsehoods.

How far should an organisation go to verify the accuracy of a job applicant?

The corporate world knows many examples of CV fraud. A simple Google search reveals many examples of people like Mr Flanagan lying about their qualifications. What is shocking however is the apparent lack of due diligence done by recruitment firms and often, by the employers themselves. Clearly, in the Myer situation, someone had failed to adequately investigate Mr Flanagan’s job history  – an astounding error given the seniority of Mr Flanagan’s position.

Myer has moved on from the disaster and appointed a new Executive General Manager Strategic Planning and Business Development and also handed Mr Flanagan’s file to the Victorian Police for their investigations. According to media reports Myer has not been the only company fooled by Mr Flanagan, but perhaps the only company left so publicly red-faced.

The lesson of this case is that employers should take nothing for granted.

Given much of the recruitment industry works on non-refundable fees, less than scrupulous recruiters are hardly incentivised to spend too much time verifying the backgrounds of their candidates. Prospective employers should be prepared to interrogate the recruitment agency or conduct their own due diligence.  A hiccup in conducting your own investigation is the application of the Privacy Act 1988 (Cth) (Privacy Act) to information requested and collected in the recruitment process. Difficulties may arise when an applicant requests that only certain people be approached as referees and not others. This can be completely legitimate as in the case of someone who is still employed, or perhaps personality clashes (but that could be a marker in itself). However it can also be an indicator of cover-ups  – whether the person was terminated or had workplace issues or, as in this case, had never worked there at all.

Generally, the most appropriate way of dealing with obtaining further information without breaching the Privacy Act, is for a clear Privacy Statement provided to applicants advising of their right to withhold access to sources, but that the consequences may be that they will not be offered a position. Should you come across negative feedback from sources, depending on the circumstances it may also be wise to give the applicant an opportunity to comment.

Looking at social media is another source of information and universities and other institutions also allow the checking on candidate’s academic achievements and records. In this case, any of these simple steps would have raised red flags about the truthfulness of Mr Flanagan’s CV.

What is your recruitment process like? Do you conduct thorough background checks?

 

Mental health issues cause waves, not ripples in employment relationships

A recent decision in the Fair Work Commission (Commission) illustrates the importance that the Commission places on the appropriate treatment of mental health issues in the workplace. In the case of the termination of Mr Ronaldo Salazar’s employment, the Commission found that a failure to deal with an employee’s mental health issues in a reasonable way amounted to an unfair dismissal. As Commissioner Ryan stated, the employee’s ‘mental health issues…were more than a ripple on the surface of the employment relationship…they were significant waves!’.

Facts

Salazar worked as an aircraft mechanical engineer for John Holland Aviation Services Pty Ltd (John Holland) at Tullamarine Airport in Melbourne. John Holland terminated Salazar’s employment via a letter on 23 December 2013 (Letter) due to Salazar’s alleged serious misconduct involving:

  • his refusal to change work group as directed (the change would not have changed Salazar’s roster or pay);
  • an email 18 July 2013 to Mr Glen Palin (Managing Director of John Holland), in which Salazar made disturbing threats about airplane crashes and taking his complaints to the media or the then Prime Minister, Kevin Rudd (Email); and
  • his claims of a lack of certification to perform work on the Rolls Royce Trent 700 engine (despite John Holland having training records showing he had done the necessary training).

In addition to these reasons given by John Holland for terminating him, Salazar had a history of conflict with directions from authority during his time at the company.

Finding

In making its decision, the Commission examined the context surrounding Salazar’s events of alleged serious misconduct. The Commission referred to the fact that:

  • Salazar’s doctor considered that Salazar should only work his original roster;
  • Salazar did not believe he was appropriately trained to work on the Trent 700 engine; and
  • at or around the time the Letter was sent to Salazar, John Holland had been provided with medical certificates saying that he was suffering from depression and acute stress.

In response to the Email, John Holland withdrew Salazar’s authorisations to work ‘indefinitely’ and also notified the Civil Aviation Safety Authority.

Commissioner Ryan did not believe that John Holland had given ‘sufficient if any weight’ to the obvious mental health problems that Salazar had ‘at the relevant time.’ Further, in relation to the sending of the Email, the Commissioner stated that it was ‘totally unreasonable’ of the company to come to a conclusion of serious misconduct where an employee had an obvious mental health problem and that dismissal for the Email was ‘invalid’.

Remedy

John Holland was ordered to pay Mr Salazar substantial compensation as reinstatement was not available due to organisational changes.  We’ve previously reported on the importance of addressing work place mental health issues in FY2015 and the Commission’s decision in this case demonstrates how important an employer’s appropriate treatment of an employee with mental health issues in the workplace can be.

The bottom line

Employers should treat mental health issues in the workplace seriously. In this case, an employee’s mental health should have been given proper consideration and weight. Employers must act reasonably in taking action against an employee.

 

How can CompliSpace help?

CompliSpace’s comprehensive range of cost effective human resources policies, procedures, training and testing modules, ensure that managers and staff know what is expected of them and have key tools and information at their fingertips at all times.

This enables a business to meet its workplace relations obligations while building a positive corporate culture, capturing knowledge and saving time. For more information, contact us on the details below:

P: 1300 132 090

E:  contactus@complispace.com.au

W:  www.complispace.com.au

This blog is a guide to keep readers updated with the latest information. It is not intended as legal advice or as advice that should be relied on by readers. The information contained in this blog may have been updated since its posting, or it may not apply in all circumstances. If you require specific or legal advice, please contact us on 1300 132 090 and we will be happy to assist.

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