Industrial relations is one of the most complex aspects of operating a business, and one that easily attracts the most interest — and feedback — from My Business readers.
Whether it be deciphering the Fair Work Act or navigating interpretations and judgements by regulators and courts, it is clear that business leaders are frustrated, confused and bewildered by how to do the right thing AND run a profitable business.
With this in mind, My Business asked Michael Wilkinson, a senior employment relations adviser at Employsure, to clarify when and if an employer has the right to act — and what action is deemed appropriate from a legal perspective — on six common sources of frustration in the workplace.
1. A messy workspace
Some people are neat freaks, some are complete slobs, and most would be somewhere in between.
But from complaints about mess piling up to untidiness impacting customer perceptions through to the need to stay compliant with workplace health and safety rules, when can an employer step in to say “clean up your act?”
“Be it personal grooming or general untidiness, an employer has the right to create and enforce reasonable workplace policies,” said Mr Wilkinson.
“We are frequently contacted by clients, who are at wits’ end from employees who are untidy in the workplace. Our advice is to set expectations in clear policies from the outset.”
According to Mr Wilkinson, these policies can cover everything from clean desks and workstations, restrictions on eating in working areas to providing lockers for staff that must be used to store bags and clothing out of harm’s way.
“If the general untidiness of employees has the potential to cause serious harm, there may be grounds to terminate for negligence or misconduct,” Mr Wilkinson said.
2. Poor appearance
Sometimes it’s not the workstation but the appearance of the worker themselves that needs to be addressed.
Again, Mr Wilkinson said that policy sets the precedent, and therefore the rules on what is and is not acceptable.
“It is really common for employers to set dress standards in regard to uniform, hair, make-up, piercings, tattoos and so on in their workplace policies. Employees are therefore expected to adhere to the policy. In some serious cases, there may be grounds for warnings and termination,” the adviser said.
There is something of a caveat on this, however.
“Importantly, when setting and enforcing appearance standards in the workplace, employers must be mindful of discrimination risks,” said Mr Wilkinson.
“For instance, setting dress codes for women, and not men, can be considered discrimination. In another example, a one-size-fits-all approach to hair grooming may discriminate against persons who are unable to comply with requirements due to religious beliefs or requirements.”
3. Poor personal hygiene
It’s probably the most unpleasant of situations to deal with. Someone who comes to work with offensive body odour. Someone who blatantly fails to wash their hands after using the bathroom. Someone who repeatedly leaves the work kitchen in a state ripe for diseases to breed. Someone who comes to work coughing and sneezing.
But as the term itself states, it is personal hygiene. But it also adversely impacts everyone they come into contact with. So, can employers intervene for the health and wellbeing of everyone else?
“Employers have every right to address personal hygiene in the workplace,” insisted Mr Wilkinson.
“Depending on the circumstances, an employer may have legitimate grounds to dismiss an employee after providing warnings and, potentially in some serious cases, termination without notice.
“For example, in some industries such as healthcare, childcare, food preparation, science and research, lives and peoples’ wellbeing are at risk. In a healthcare context, poor hygiene can spread germs and impact patients.”
Mr Wilkinson admitted that the subject of body odour can be a “difficult conversation” to have, and ultimately comes down to discovering the source of the problem as to how it should be dealt with.
“For example, if there’s a legitimate medical condition underpinning the problem, then employers really can’t do much about it. However, if it is a grooming issue, then there are grounds to advance the matter by having a conversation; and if that doesn’t work, you might consider formal action,” the adviser said.
“In our experience, however, better outcomes are achieved through conversation and education.”
Employers are subject to much less grey area when it comes to shared workplace facilities, however, meaning that poor practices and behaviour can be disciplined.
“Poor kitchen habits can really get on people’s nerves. In reality, the employer controls the kitchen facility and can enforce rules. If these directions are not followed, the employer has the right to commence disciplinary action in accordance with their policy,” Mr Wilkinson explained.
“[And] in most cases, if an employee is sick, employers have the right to send them home to recover in line with their workplace health and safety obligations to provide all employees with a safe workplace. Employers can request a medical certificate to ensure the employee does not return prior to being fit to work. If these directions are refused, you may then consider disciplinary actions.”
4. Talking excessively or laughing loudly
Happiness is a great thing to have in the workplace. It boosts morale, promotes team bonding, increases productivity and creates great impressions with customers.
So, addressing such behaviour when it is the cause of disruption for others is a delicate proposition.
Mr Wilkinson said that the situation is even more delicate to address depending on the context of the case in point.
“It’s important to remember no two workplaces are the same, and some really strong cultures are built upon noise, energy and collaboration,” the adviser said.
“However, if an employer is concerned with the impacts of talking or laughing, it may implement ‘courtesy policies’ which govern standards of behaviour at work. Implementation of such policies codifies behavioural norms.
“Once in place, employers are in a stronger place to take formal disciplinary action, which may, after appropriate warnings, become a legitimate ground for dismissal. In most cases, it is best for businesses to engage in dialogue with employees prior to undertaking this course.”
5. Swearing and offensive language
Let’s face it — most adults swear. For Australians, in particular, it is something of a national pastime. But where does swearing and other offensive language sit from a legal perspective?
“Although an employer generally has the right and obligation to say something about the use of offensive language in the workplace, whether or not disciplinary action is appropriate depends on a variety of factors,” said Mr Wilkinson.
“[This includes] workplace culture, whether the language was used as a language device for effect rather than directed at a specific person or group of persons, and whether or not the language is offensive for other reasons (such as racism or sexism).”
Mr Wilkinson said that repeated swearing in a professional office may have stronger grounds for dismissal than on a construction site, simply because of the setting and general dynamic of those present.
“However, if swearing forms part of a personally directed attack or tirade, then it will generally be considered as more serious and, in many cases, accepted as a valid reason for termination (subject to other considerations),” the adviser said.
To avoid misinterpretations, Mr Wilkinson said that it is advisable to include stipulations around swearing and what is deemed to be offensive in workplace policies.
“Not everyone has the same tolerance levels. That is why, generally, there is no ‘one-size-fits-all’ approach to swearing in the workplace,” the adviser added.
“Even if a workplace has a culture whereby swearing is tolerated, many draw the line at swearing directed at a particular person. This distinction is often justified because it can manifest into bullying and harassment.
“Repeated incidences of swearing, particularly vulgar statements, or comments should be taken seriously. We have seen many employers taking disciplinary action and termination for employees who ignore repeated warnings about offensive language.”
6. Negative or pessimistic attitudes and behaviour
Given concerns around mental health in the workplace, this is a particularly sensitive subject to approach, and one that needs to be handled with care. The trick, Mr Wilkinson suggested, is to get to the root cause of the behaviour in an empathetic way. Often, doing so will elicit means to turn that behaviour around.
“Whatever the underlying cause, bad attitudes in the workplace can have serious negative consequences, but the solutions are often relatively simple. I often ask clients to reflect and ask themselves why they think the employee has a negative attitude. What is the root of the problem?” the adviser said.
“In many cases, an employee’s bad attitude is associated with a lack of recognition, or perceptions that they are not valued, or a breakdown in communication. If this is the case, we encourage employers to invest in the relationship, which can simply be restored with a conversation.”
Mr Wilkinson added: “If after failed attempts to rectify bad attitudes in the workplace, an employer is permitted to undertake disciplinary action. Prior to taking this approach, it is important the employer or manager keeps a record and documents the incidents of pessimism and negativity.
“This is crucial because vague references that are made months after the event are not likely to be remembered and can inhibit the ability to make sound judgements.
“In many cases, given the subjectivity involved, it is extremely tricky to terminate someone on attitude alone. If you are looking to do so, it is recommended that you seek expert advice.”