How have recent legal changes impacted HR?


Joydeep Hor FAHRI, managing principal at People + Culture Strategies, shares his views on recent legal changes and interpretations posing challenges for HR.

Q. How do you think the HR profession has coped with the anti-bullying laws introduced this year?

Bullying in the workplace is a complex issue and it disappoints me that many organisations seem to take a tick-the-box approach to addressing it. Bullying allegations made in the context of performance management are extremely complex. The particular challenge is how organisations become high-performing without increasing their risk of claims of bullying.

The reality of managing people is that it’s rare for employees to accept that they aren’t performing well. It has almost become sociologically-conditioned into Australian workplaces that such employees label the feedback, or management of them by their managers, as bullying.

A lot of attention has been given to the new anti-bullying laws, but the number of claims that have actually gone all the way has been well short of what employers anticipated.

Q. What other big changes in employment law has HR had to deal with in 2014?

I think the real challenges have been ongoing uncertainty over discriminatory adverse action claims under the Fair Work Act 2009, management of mental health issues in the workplace, and the changing boundaries of what [in a legal sense] is and isn’t ‘the workplace’.

Most recently there has understandably been a fair amount of interest in the High Court’s consideration of whether employers owe employees automatically, in contracts of employment, an implied duty of trust and confidence.

Q. What can you say about sexual harassment emerging as another difficult area of employment law?

I’ve recently assisted a number of organisations with workplace investigations arising from alleged sexual harassment complaints. There are many common themes: excessive alcohol consumption, text messaging, and a significant blurring of the boundaries between what is and isn’t the workplace.

I’ve also observed in many instances that the individual who made the complaint has participated actively in the early stages of the conduct, but at some point felt it had gone too far. The challenge is for organisations to recognise the precarious position they are in when they ask for judgment to be exercised in contexts where it may be hard to be clear.

Q. What areas of HR would you single out for improvement?

I think HR has become too regimented and driven by doing things right, often at the expense of doing the right things. Most problems and issues in workplaces, regardless of the organisation’s size, start off as fairly simple. If there’s a willingness to engage with resolution in a practical way, they will usually be resolved.

The potential legal, commercial and cultural ramifications still need to be considered, but they must work hand in hand with pragmatic resolution.

Q. Can you identify any key HR trends?

More and more is being asked of HR, and HR practitioners are increasingly required to pick a specialisation. In my view, there’s a danger in HR becoming too sub-specialised, and the holistic approach to HR problems is more sound.

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How have recent legal changes impacted HR?


Joydeep Hor FAHRI, managing principal at People + Culture Strategies, shares his views on recent legal changes and interpretations posing challenges for HR.

Q. How do you think the HR profession has coped with the anti-bullying laws introduced this year?

Bullying in the workplace is a complex issue and it disappoints me that many organisations seem to take a tick-the-box approach to addressing it. Bullying allegations made in the context of performance management are extremely complex. The particular challenge is how organisations become high-performing without increasing their risk of claims of bullying.

The reality of managing people is that it’s rare for employees to accept that they aren’t performing well. It has almost become sociologically-conditioned into Australian workplaces that such employees label the feedback, or management of them by their managers, as bullying.

A lot of attention has been given to the new anti-bullying laws, but the number of claims that have actually gone all the way has been well short of what employers anticipated.

Q. What other big changes in employment law has HR had to deal with in 2014?

I think the real challenges have been ongoing uncertainty over discriminatory adverse action claims under the Fair Work Act 2009, management of mental health issues in the workplace, and the changing boundaries of what [in a legal sense] is and isn’t ‘the workplace’.

Most recently there has understandably been a fair amount of interest in the High Court’s consideration of whether employers owe employees automatically, in contracts of employment, an implied duty of trust and confidence.

Q. What can you say about sexual harassment emerging as another difficult area of employment law?

I’ve recently assisted a number of organisations with workplace investigations arising from alleged sexual harassment complaints. There are many common themes: excessive alcohol consumption, text messaging, and a significant blurring of the boundaries between what is and isn’t the workplace.

I’ve also observed in many instances that the individual who made the complaint has participated actively in the early stages of the conduct, but at some point felt it had gone too far. The challenge is for organisations to recognise the precarious position they are in when they ask for judgment to be exercised in contexts where it may be hard to be clear.

Q. What areas of HR would you single out for improvement?

I think HR has become too regimented and driven by doing things right, often at the expense of doing the right things. Most problems and issues in workplaces, regardless of the organisation’s size, start off as fairly simple. If there’s a willingness to engage with resolution in a practical way, they will usually be resolved.

The potential legal, commercial and cultural ramifications still need to be considered, but they must work hand in hand with pragmatic resolution.

Q. Can you identify any key HR trends?

More and more is being asked of HR, and HR practitioners are increasingly required to pick a specialisation. In my view, there’s a danger in HR becoming too sub-specialised, and the holistic approach to HR problems is more sound.

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