Challenges Facing VET: The cloak of secrecy in Australia’s IR system


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RTOs are in the business of education.  Education relies on trust.  Trainers/Assessors must not only engender the trust of their students, they must gain the trust of their colleagues, managers and employer.

But just like employers, and people generally, they cannot all be trusted.

When it comes time to recruit a new Trainer, we very much use what they tell us about their past experience as a guide to what we can expect from them and from that we determine if we can trust them to be trusted by our students, and thus to get the job done.  We then manage them based on an understanding of what is generally agreed as acceptable conduct in the Australian workplace.  (The same applies to people who lose their jobs because of gross misconduct, only to roll out the “I’m a consultant” sign who has worked with [insert name of trusted former employer who sacked them].)

But, what they tell us may not be much more than a fabrication of truth or, at very least, an incomplete version of it.

And so, our very early steps to establish a productive and trusting relationship could quite easily be based on untruths.

Imagine:  how can we trust someone whose very first interaction with us is a distortion of the truth, made possible by that person’s blatant abuse of the legal system to avoid responsibility.

In an interview, we ask something like:  What did you do with [insert name of last employer]?  They’ll say some good stuff, and we will wonder if it was all so good, then why did they leave, so we will ask why they are no longer with them?  They’ll probably say something like they needed a change, or wanted to take step back, or something else.  They probably won’t tell you that they were sacked because of gross misconduct.  And that is precisely the challenge that is facing VET: they may not have to tell you the truth.

Where am I going with this?

This is something made possible by the Australian legal system, where the person coming to me – or you – and seeking my/your trust to employ them as a Trainer, may actually be someone who has failed at a previous role – been terminated, for example – but then dodged responsibility by using the legal system to effectively coerce their former employer into changing the truth of their termination.

The purpose of this article is to share some thoughts about how this situation occurs, and consider why it is in the interests of everyone for such matters to be brought into the open and at an early stage so that the cloak of secrecy cannot be used to push for settlement, which is no different than a push for concealment.  We’ll start by examining the value of matters being heard in court, then look at what can happen when a former employee brings a case against their employer.  We’ll use references to actual cases where possible, and include links to the court proceedings so you can check out the cases and people involved for yourself.

It is fair to say that this is not a challenge just facing the VET industry.  At the heart of our work are people, and it is those people who we rely upon to deliver our service, to uphold the very responsibilities of the R in RTO.

The value of a courtroom – The pub test

When a matter does reach court, the details that are considered by the Court are made clear.  This allows the matter to be subject to the ‘pub test’ by anyone who is reading it.  In this way, having a matter heard at court is a great way to ensure that people are aware of public norms (which, admittedly, do change from time to time).

For example, in another case, Gabrielle Smith took to court her former employer after being terminated for poor performance.  You can read about Gabrielle Smith’s case here.   In short, she wanted “reinstatement; compensation for hurt, humiliation and damage to her professional reputation; and, the imposition of pecuniary penalties upon the respondent.”

What is fascinating in this case is that Ms Smith was terminated for poor performance, but this is a General Protections claim not an Unfair Dismissal claim.   When you take a look at the Court Proceedings, there is a litany of reasons given to explain why her performance was poor, and thus warranted termination.

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(As an exercise in character assassination, these things are a solid rival to any courtroom drama on Netflix.  Check this out for a simple explanation for the termination:

  • Ms Smith failed to carry out the duties …. in accordance with and as required by the respondent’s standard procedures and policies to the reasonable satisfaction of the respondent;
  • Ms Smith failed to comply with reasonable instructions and lawful directions of the respondent;
  • Ms Smith conducted herself in a way that was unhelpful towards clients;
  • Ms Smith conducted herself in a way that was unhelpful and unfriendly towards other staff members; and
  • Ms Smith conducted herself in a way that was unaccepting of assistance and training provided to her by other staff members.

To be fair to Ms Smith, the other side was also shared:

  • The respondent did not provide evidence that Ms Smith failed to comply with reasonable instructions and lawful directions; and
  • Ms Steffens was unable to demonstrate under cross-examination that there was any factual basis for assertions of poor performance.

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But, as Judge Collier noted, the employer had “demonstrated a lack of respect for [Ms Smith] in the extreme and the failure to provide any real reason for the termination of her employment was unjustified…”

Now, this is where it gets very interesting, and the position of an RTO Manager becomes less stable.

Damned if you do.  Damned if you don’t

Had Ms Smith’s former employer gone through the steps of performance review, and told her of her chronic deficiencies (as shared by her employer in excruciating detail in court), and had she in any way responded to those at the time (even to say that she disagreed), then Ms Smith would have been able to claim that she had expressed “complaints”.  Her very act of having done so could then give her more ammunition to take her case against her employer.

Gabrielle Smith is not alone in that.

It is a commonplace for former employees to make reference to what were just ordinary workplace conversations and happenings, and weave them into some narrative of convenience to avoid accepting legitimate reasons for their termination.  In the matter of Anthony Joseph Barnes (details here), Mr Barnes described “thirteen instances of complaint made by him during his employment with Hatch, each of which was said to constitute the exercise of a workplace right.”  On the face of it, making thirteen complaints sounds like things were not going well for Mr Barnes, but the reality that is evident from that hearing is that the things he was complaining about were things that were precisely the things that his employer should have been doing in response to the things that he was – and was not – doing.

So, it seems like following a transparent process of managing performance, and encouraging a culture of vulnerability and trust can actually backfire, with the employee taking to the legal system rather than accepting responsibility for their dysfunction. In a different case (here), involving CSIRO, Katherine Morton included “having meetings” as evidence of exercising her workplace rights, and then used the fact of those meetings as part of her argument that her redundancy was not genuine.

In the case of Ms Smith, Mr Barnes and Dr Morton, had their employer caved in and agreed to pay no doubt absurd sums of money, then they would never had been told by an impartial body (ie, a Federal Court Judge) that they were wrong.  Similarly, Ms Smith’s employer would not have received the very clear message that they need to adopt a greater degree of respect in their management of employee performance.  It seems that it was only the willingness of those former employers to front up and allow the facts to be tested, despite it no doubt being at substantial cost to them.

The value of a courtroom – We all depend on it.

If this is all sounding like pre-judgement of employees who make claims, it is not intended that way.  Of course, there are unfortunately many people who very much depend on the legal system to ensure that their workplace rights are upheld, and this ought to continue.  However, where the system is weighed down by people who misuse it, the people with legitimate claims are at risk of being tarred with the same brush as those who do not have legitimate claims.

If trust is to in any way be part of the foundation of what we do in educating people, we must encourage such claims to be tested first in court, and then in the court of public opinion.  This is not just to prevent employers from acting poorly toward their staff, but also to prevent them from being coerced by manipulative and disgruntled staff, but also to protect those people who have a legitimate claim; those who have been wronged by employers but who also find themselves burdened by the quagmire of conciliation, mediation and the like.

And what of the situation – the seeming impasse – where both employer and employee believe with all honesty that they have not done anything wrong?

In this case, it is all the more important for the matter to find its way to court.  Where an employer believes that they have followed the right steps (such as by seeking and following the guidance of the Fair Work Commission, and obtaining legal advice, and giving opportunities for the employee to respond and listening to those responses), only to be faced by accusation of wrong-doing, then it is vitally important that the matter is not permitted to hide in the shadows of mediation, but is brought to the light of day in court so that both employer and employee can move forward with confidence that they know what is acceptable behaviour within the Australian workplace.

 

What do we do about it?

I know that I, for one, will be very keen to see if a potential applicant includes a past manager – or anyone from the senior management team, for that matter – in their list of referees.  If they seem to emphasise their work with a particular former employer, but do not volunteer as a referee any senior persons from that employer, then I will seek their permission to do so, and I will listen very closely to their reasons.  I would also be sure to be checking the register of court appearances to see if there are any records of that person’s name.

In a similar vein, anyone thinking about contacting Fortress Learning to do a referee check about someone who is looking for a job or consulting gig is encouraged to first have the permission of that former employee.  It would be highly improper for me – and potentially embarrassing for them – to comment on anything to do with the employment of someone who does not want me to do so.

 

-Bryan West, Manager.

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