The Informant: Issue 6

Communication is often seen as a key ingredient to any successful marriage but what about the employee/employer marriage? Can this union suffer from the silent treatment or a case of oversharing?

If you are an employer, it is important that every communication with your employees is effective. Determine the purpose, decide on the delivery and accept the feedback. Most importantly – deliver. Don’t make promises if you can’t keep them. The communication may not always tell a happy story but if done effectively can often help avoid the kind of misunderstandings that lead to disputes and sometimes divorce. It is important for employers to equip their managers with the tools to have those difficult discussions effectively.

The importance of open and transparent communication

If you’re an employer, you should be aware that open and transparent communication with your employees about issues that affect the workplace can help avoid the kind of misunderstandings that lead to disputes.

If we take Queensland as an example, in the 2014/2105 financial year, 255 discrimination complaints involving discrimination in the workplace were made.[1]

In Queensland, impairment discrimination continues to dominate complaints in the workplace, with 57% of such complaints arising at work.[2] In addition, nearly all complaints associated with pregnancy, parental status and family responsibility arose in the workplace.[3]

Tough decisions will always need to be made, however, it’s these very situations where effective communication is incredibly important.

Case in point

In the 2015 Queensland Civil and Administrative Tribunal (QCAT) case of Ruiz v Credit Corp Group Limited & Ors,[4] Mr Ruiz, who was employed as a team performance manager, alleged that he was discriminated against by his employer on the basis of an impairment (major depression) when Credit Corp Group Limited (CCGL) required him to perform his role on a full-time basis.

CCGL is an Australian receivables management company that purchases and then attempts to recover consumer debts, including credit card debts and personal loans. In this case, CCGL alleged that it was exempted under the Queensland Anti-Discrimination Act because it was a genuine operational requirement of the role of team performance manager to be engaged on a full-time basis.[5]

CCGL argued that the role could not be performed on a part-time basis because each customer account required a lot of day-to-day and historical knowledge. This meant that there was a requirement to have a ‘tacit understanding’ of the accounts, which could not occur effectively if the role were shared.

Interestingly, the Tribunal member who heard the case did express reservations, stating: ‘… the net effect of it [the evidence] is that CCGL employees are forever precluded from employment as a TPM [team performance manager] in anything other than a full time capacity, no matter that parental or family responsibilities, or an impairment, might preclude them from working full time; and in circumstances where a number of equivalent employment sectors (for example, insurance and workers’ compensation claims management) are able to facilitate workplace flexibility (even for team leaders) by recourse to compendious computer-based file notes.’

Despite this reservation, the Tribunal member added that in this case there was no evidence disputing these matters and, as a result, the Tribunal was compelled to accept the unchallenged evidence of CCGL that the team performance manager role needed to be performed on a full-time basis.

In this case, you could argue that CCGL got off lightly, in that Mr Ruiz was self-represented, didn’t lead any evidence to contradict that given by the company and, in fact, conceded in cross-examination that a full-time role was necessary because the situation required a high level of day-to-day supervision by one person.

Ultimately, the Tribunal member found that the employer was not required to change the nature of the applicant’s role from a full-time role to a part-time one, despite the fact that it had chosen to do so for this employee in the past. On this basis, the application was dismissed.

What you can learn from this case?

The case highlights the importance of employers, faced with such a claim, considering the way a role is performed and determining which parts of it are so integral they cannot be changed and are therefore a ‘genuine occupational requirement’.

In addition, the case illustrates that clearer communication with the employee regarding the reasons the employer could not accommodate Mr Ruiz’s role on a part-time basis may have avoided the need for litigation altogether. It was telling, in this regard, that the applicant ultimately agreed with the evidence led by the company in his cross-examination.

On this basis, it is important for employers to equip their managers with the skills to have effective communication.

Tips if faced with a similar situation:

  • Be prepared for the discussion. What is the employer’s policy? What does the employee’s contract, award, enterprise agreement provide?
  • Consider the impact of the request on the business. Loss of productivity, efficiency, increased costs?
  • Be clear about your position.
  • Communicate, communicate and communicate some more.

(As well as being clear about what you want to communicate, it is important to pay attention to how you communicate particularly if the issue is likely to be emotive. Be prepared for this and tailor your discussions accordingly.)