Rearviewmirror: A parting shot in an exit survey

Saw things

Saw things

Saw things

Saw things

Clearer

Clearer

Once you, were in my...

Rearviewmirror...

Rearviewmirror by Pearl Jam

What should an employer do if an employee who is about to exit the organisation raises a whole bunch of issues in their exit interview? It’s a toxic workplace.  The head of communications keeps sexually harassing people.  The call centre team fudge their overtime.  People are burnt out and are all about to resign.  There is no faith in the leadership team.  People are scared to speak up.

Just a disgruntled employee looking to light a match on the way out? Someone “forced to endure what I could not forgive”? Or someone who finally feels safe to raise issues in their “rearview mirror”?

Does it make a difference if the employee was a “difficult” employee?

What can an employer do with a list of grievances raised in an exit interview?

Firstly, do the grievances actually constitute an eligible whistleblower disclosure?

An eligible disclosure under whistleblower legislation requires a disclosure to be made by an eligible whistleblower, concern a disclosable matter and the disclosure is made to an eligible recipient.  In order to make that determination, you can review our newsletter I Will Survive: Whistleblower Protections under Australia’s Corporations Act. 

The key issue for today’s purposes is that these protections still apply to former employees and result in key protections including the protection of the whistleblower’s identity.  This means that it is not advisable to send an email or tell everyone “hey you know Bob’s left and he’s said that people are doing x, y, z” or to retaliate i.e. “Bob’s made a bunch of allegations, I’m going to tank his reference”.

However, whether or not the identity of the person who raised the issues can be disclosed, the issues can still be taken forward.

Are there straight forward compliance issues? For example overtime fraud or underpayments can be investigated usually using time and attendance records or payslips.

What about claims of sexual harassment? If there are clear allegations or incidents that can be investigated, these should be reviewed to see if there should be a formal investigation commenced, or some other informal process, such as a mediation between two or more parties.  See our newsletter What’s Up? Do I need to conduct an investigation? These days it is advisable to conduct an investigation as a way to ensure that any actions that the organisation takes can be supported by clear evidence.

For example, if it later turns out that the impacted persons of such sexual harassment raise concerns, then an investigation can find out what has occurred and can be used in any potential legal claims or workers compensation claims.  If the investigation ascertains that disciplinary action should be taken against one or more individuals, then such investigation reports can assist in defending any claim of unfair dismissal.  Further, with more recent legislation requiring organisations to provide a safe workplace, including a psychologically safe workplace, being aware of allegations and not acting on them may result in a workplace regulator taking action against an organisation.

Similarly, what if there are no clear allegations but it’s just a “toxic workplace” or there is “no faith in the leadership team” or people are “afraid to speak up”? In these circumstances it may be appropriate to launch a culture survey or even a culture review.  A culture review process seeks to understand and assess an organisation or team’s workplace culture i.e. what are the norms and shared values that shape behaviours in the workplace.  What do people do when no one is watching? The process involves extensive interviews with individuals, with themes brought out and recommendations made, with confidentiality and safety for the individuals involved.  If you wish to consider a culture review, view our newsletter Never Tear Us Apart: Workplace Culture Reviews.

Who can be interviewed?

Can you require the ex-employee to participate in either an investigation or workplace culture review? In short, you cannot direct them to do so as they are no longer an employee.  However, you can invite them to participate and try to understand why these issues were raised only after they left.

Was it because:

Once and for all

I'm far away

I hardly believe,

finally the shades...are raised...

Saw things so much clearer

(Once you, once you)

Rearviewmirror...

This will also help an organisation to understand if there is a good speak up culture.  Are people afraid to raise issues? Why? What are the barriers? This may result in a review of processes or policies, ensuring you have competent and trained staff to deal with issues (whether internally or externally), ensuring that there are multiple speak up channels and ensuring staff know where to go, how to make a complaint and what will happen next.  For tips on building a strong speak up and listen up culture please see Shake it off: Nope, not anymore.

It is always better to have issues raised at the time they occur, rather than after someone leaves and there is (often) limited opportunity to resolve the issues, or it may be that too much time has passed for an investigation to have meaning.  However, it may be that sometimes people do see things clearer in the “rearview mirror.”  The key is for an organisation to take action regardless of when they receive a complaint and build a strong speak up culture.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.