Why "Off the record" Is not on!

The term “off the record” is a phrase used in movies and TV but misunderstood and dangerous in employment situations. 

It is a term used in journalism, mostly in America - where it has laws backing it up. These do not exist in Australia. It generally means: “I’m happy for you to have this information, but I don’t want people to know it came from me”.

A lot has been said about when an employee requests it of someone above them, but it is actually more risky when a manager requests it of an employee.

When an EMPLOYEE asks a manager to go “off the record”

This is usually done when a person wants to report bad behaviour of another, but worries about the backlash. Another version of this is when they ask for the manager to stop taking notes.

The problem is that the employee is highly likely to confide information that the manager then has a legal obligation to act on. So best practice is to calmly tell them you can’t do that, but encourage them to speak freely.

When a MANAGER asks to go “off the record” with an employee

Increasingly this phrase seems to be used by managers, for example to respond to a question they are uncomfortable about – “off the record?” – before they lean in and speak honestly. Some managers also use the phrase where they approach a person below them in the food chain about having a discussion “off the record” to sort out an issue between them. This is highly, highly problematic, for a number of reasons.

1. There is no such law! 

Australian law does not recognise “off the record” as being a legal protection. An employee does not have to keep what a manager tells them confidential. There are however other legal terms that do imply confidentiality in certain situations.

2. It is naïve to believe an employee understands and respects confidentiality

When a source says it to a journalist, they are saying it to a person who has training to understand the legal implications (or industry ethics code in Australia) of the phrase. They understand that it is not personal – just business. An employee however, may be highly offended or want to rely on information a manager tells them at a later date, particularly if it effects their employment or they become emotional about it. Employees can and do use this sort of information in unfair dismissal hearings; at the pub; on Facebook; with an inspector from a state body; and in court. It is naïve to believe that they will not, and risky to do so without keeping a record to defend yourself later.

3. It can be interpreted in unexpected ways

The phrase is so airy fairy that even journos can’t be sure what it means. For example does it mean:

• Whatever I tell you can’t be put in writing?
• I won’t admit to saying it?
• You can use the information but don’t quote me
• You can quote me but don’t say it came from me

 4. At best it is unskilled and at worst it is unethical 

There are good reasons why a manager might want to ask for this, but all of them have fear at their root. If you are a manager and you are effectively saying to people “I’m happy for you to have this information, but I don’t want people to know it came from me”, it says that you:

• could be too process or systems orientated and not comfortable having an informal discussion to build rapport with employees;
• are likely breaching the trust of someone, and possibly acting against the interests of the organization you work for;
• fearful of having an open and transparent relationship with the employee, except in these conversations; (secretive – see ‘Why all managers need to know how to throw a great party’ for more on this) 
• prepared to speak inappropriately to the employee eg. Tell them exactly what you think of them!; and/or
• don’t want to be held accountable for your actions

With all this, “must not! must not!” and warnings, what can a manager do?

A manager can stop being fearful about having honest and informal conversations – just do it – but always in a respectful and professional way.

A manager can do a sense check with someone else before having the conversation, eg. a person who is also aware of the information, or a person who understands the risks of giving it out.

A manager who does these things should be happy to be held accountable for increasing communication, building trust and making a work environment less clinical.

Kick in the Arse Factor

No doubt you’ve heard of the KISS* principle - but have you heard of a KITA factor??

KITA is a term coined by Fredrik Herzberg, an American research psychologist who was interested in what motivates people to be more productive at work. Herzberg discovered that improving certain things in the workplace does not increase people’s motivation (for any more than a very short period). However, if these elements are poor or lacking in the workplace, it does demotivate people and make them less productive. These elements include:

• Salary
• Job security
• Relationship with peers
• Work conditions
• Company policy

Hertzberg called these hygiene factors, but also referred to them as Kick-in-the-Arse factors! It would be interesting to take these into account next time a person tells you they need a pay rise to keep them motivated! Company policy is an interesting one: if a particular policy has harsh terms or is too strictly enforced ie. a kick in the arse, then it is most likely to demotivate your people.

Don’t be discouraged! Herzberg also found there are elements which, when improved or increased do lead to more motivation and productivity. These are:

• Having goals to achieve (one of the reasons HR departments are so rabid about Performance Management systems...)
• Being recognised for your work
• A sense of pride in your work
• Responsibility
• Promotion
• Learning and growth

Herzberg’s 1970s research has been interrogated over the years and has stood the test of time. If you want to read more on this, check out the book “First Break All the Rules: What the World’s Greatest Managers Do” . It details a study the Gallup Organisation did to test Herzberg’s theories.

*KISS = Keep It Simple Stupid

Why all managers need to know how to throw a great party

One of the things we (should) all learn pretty quickly as teenagers, is that having a successful party is not about the venue, the drinks, the theme or the occasion. It’s about whether people show up and get involved. Teenagers intrinsically get it, but not all of them get how to make this happen, which is really a shame, because it’s an important life skill!

Getting a people to show up and getting involved is about building some hype around the party. Teens who do this well do it by talking about it to a lot of people, asking people for their ideas or help, and talking about it constantly. The successful teen party host asks things like “are you coming?”, “are you excited?” and “what sort of music should we play?” to a lot of people - and acting in an inclusive way.

This same skill is important for every manager to use regularly, and not just for positive messages. So often senior manager or leaders of a work group or project insist that nothing is communicated until the project is “off the ground and running”, insisting that everything must be totally confidential until then (ie. excluding people). These managers, more often than not, do a great job of sabotaging their own project or task.

A project can’t get “off the ground and running” unless it gathers momentum and support. Getting momentum happens through the same means a teen uses to drum up support for a party, by talking about it a lot - to a lot of people, and by getting the input of others and allowing them to shape the project. Paranoia about confidentiality and getting it right usually has more to do with that manager’s need for control that the success of the project.

What this says about human nature is that we all need some time to warm up to new ideas or change, a chance to process it, and a need to be involved. This is why the same party planning skills are important for delivering bad news.

Read on for a bad news example….

A few years ago, I had to carry out redundancies for around 150 people in a rural area. I was shocked to discover that the inexperienced site managers planned to sack people without notice, at the end of a shift, because the workforce had previously been aggressive and used physical tactics on site. They were afraid of what would happen if they put out an early warning. I managed to convince them that:

(a) Keeping something like mass redundancies a secret will never happen. There is always a leak which only goes to prove to the workforce that management are dishonest and deserve what they get; and

(b) There was sure to be unpredictable aggression and possible violence if they acted suddenly, without warning.

We managed to put together a plan which involved warming the workforce up to the unhappy reality that they were going to lose their jobs.

Week 1: There is a problem, we have lost a major client;

Week 2: We are looking at options to stabilize the business;

Week 3: One of the options may be redundancies but we will give you notice if it is going to happen;

Week 4: it is going to happen within a few weeks, tell us how we can make it easier for you.

What was most important about the plan was how it was communicated – often, to a lot of people (through site walks) and involving them in the solution.

They told us that we could help by coming up with a list of projects around Australia looking to hire people in their trade – we did and pinned it to notice boards with contact and the accommodation options in those towns. We encouraged people to move into job finding mode. Before long people were talking to us about when they would be finishing up, advising that they had somewhere else they were going to next. We contacted the union and asked for their assistance in ensuring that apprentices were able to continue on with another employer. They were stunned that we had contacted them at all and complied with very little fuss.

When D-Day came there were a few who were really angry and it was certainly tense that day. Those who did protest received a response from others “you knew it was happening, you’ve had time to plan, there’s nothing we can do about it” and having it come from their workmates (rather than managers) helped diffuse things quickly.

One of my aims was to keep things out of the media. I can’t lie - my strategy certainly felt scary at times! But I’m pleased to say that not one story made it into even the local news. Talking about it to all our people regularly meant that it was not news any more. We had controlled the message and managed to show people that we would share information and listen.

Sacked for a good reason, but employee still wins dismissal

Did you know that an employer who has a valid reason for terminating an employee can still fail in an unfair dismissal case?

Background

A Financial Planner had been performance managed over two years. He had not improved. During this process he was given two written warnings. On his final warning it was made clear to him that he needed to achieve some basic targets to remain employed. He failed to achieve the targets.

He was called to a meeting to discuss his employment. He requested that the meeting be rescheduled so that he could have a support person attend with him. The employer refused and proceeded to sacked him.

The Financial Planner lodged an unfair dismissal claim with Fair Work Australia. In considering a claim the tribunal must consider whether the termination was harsh, unjust or unreasonable. The tribunal found that the Financial Planner’s poor performance was a valid reason for the sacking, but that he had been unfairly dismissed because the manner in which he was sacked was unreasonable . The company was ordered to pay him compensation.

Law
There are a couple of key lessons/ principles from this which are important to note:
1. The power difference

One of the key differences between employment law and most other law is that employment law recognises there is a power imbalance between employer (powerful, lots of resources) and employee. It deliberately sets out to level the playing field.

2. The process of sacking a person is as important as the reason for sacking them

The Fair Work Act 2009 advises that a person is unfairly dismissed if it is “harsh, unjust or unreasonable”. Criteria for determining these are contained in the Act. Cases also provide clarification.

In this case, the tribunal said it was unreasonable for the employer to refuse to postpone the meeting so that he could have a support person present.

3. A support person can be requested for any disciplinary meeting, not just the final meeting

This is also provided by the Act. Other cases tell us that refusing a support person in the early stages has the same effect.

Laker v Bendigo and Adelaide Bank Ltd [2010] FWA 5713

*Please note I am not a lawyer, nor am I qualified as one. I am however an Employee Relations professional whose job it is to understand and apply employment law, often in some odd situations such as the one above!

Would you rather be liked or respected?

The most obvious answer to this question is both. However, managers tend to prioritise one over the other just to get the job done - which one do you lean toward?

If you choose respect:

Then you believe that it is more important to demonstrate competence, standards and an ability to make tough decisions, even if it makes you unpopular. You believe that a more formal ‘arms length’ approach allows you to treat everyone equally and fairly. You are consistent in your approach, which is good for employees because it means they can predict your response, and this gives them a sense that they are on solid ground with you.

The down side to this style is that sometimes going for respect comes at a cost. If you are blunt and steamroll others into doing what you want, through sheer force, it makes your job a lot harder. As a manager, it is your job to get people to work with you. Steamrolling them does not achieve this, because it leaves them angry and deflated. They will recognise that you don’t value their opinion, and because they don’t have any real input, any success the team has will just irritate them more. From their perspective, you are profiting at their expense.

If you choose to be liked:

Then you believe it is important that the individual is valued and looked after. You are more likely to make decisions based on what is right for each person. You believe everyone should have a pleasant experience at work, and this is helped by breaking down barriers and setting up an informal environment. Employees will benefit from this because they will want to work with you and do their best.

The down side to this style is that positive feelings come and go. If you are constantly having to work for the ‘feel good factor’, if puts you in a low power position where you are pandering to them. Those who focus on being liked can have difficulty if there is ‘bad blood’ between them and others. Their decision making is often based on avoiding this, which can make others view them as spineless or incompetent. Decisions by this manager are often in favour of the person at the centre of the issue. However, their decisions have a ripple effect on many others. Because they make decisions based on what is right at the time and for the individual, others will feel that they ‘play favourites’ and will never be really sure what makes you favour others over them.

So which style is better? As with many things in life, this is a sliding scale with ‘respect’ at one end and ‘being liked’ at the other. Being at one end or the other will make your job harder, either because people don’t want to work with you, or because they don’t believe you have the guts to do the job. A balance of both is the key!

In Case: No Proof but Sacking Stands

Inconclusive video surveillance helped justify the dismissal of an employee for stealing $24.

Background
In 2008, an employee who worked at an RSL in Brisbane was sacked for theft six days after the till was found to be $24 short of cash.

The discrepancy was found at the end of the day when the tills were counted. The RSL reviewed the log of transactions and noticed that there was only one transaction for $24.

They reviewed the video footage which showed that the customer had purchased a carton of beer, and then changed their mind. The employee had reversed the sale. A few minutes later the customer decided they did want the beer. The employee had opened the register and removed something both times. She was seen to put her hand under her t-shirt – which she later explained as adjusting her bra strap.

When the RSL sacked her, they refused to allow her to see the video footage and respond to it.

The employee appealed the decision with the employment tribunal of the time (now Fair Work Australia) by lodging an unfair dismissal claim. The tribunal upheld the sacking.

D.A. Whiting v Greenbank RSL Services Club Inc. [2008] AIRC1062 (30 June, 2008)

Law
This case highlights a number of important points in employment law.

1. Proof ‘beyond all doubt’ is not required. The employer only needs to look at the evidence objectively and determine what was most likely.

The reason for this difference is that in a criminal trial, a person found guilty loses their freedom. To inflict such a serious punishment on someone requires us to be absolutely sure they did it. Termination of employment, or workplace discipline are (in the eyes of the law) far less serious punishments, so the level of proof required is different.

2. The importance of giving someone the chance to see and respond to evidence.

The tribunal came very close to overturning the sacking because the employee had not been allowed to see the video footage and respond to it. If you intend to sanction an employee, you must allow them to know what they are accused of and the evidence you have, so that they can properly defend their actions.

 

3. A vital part of the employment relationship is the trust between parties

In the unfair dismissal claim, the employee said that the punishment (sacking) did not fit the crime (theft). The tribunal said that there is an implied (unwritten and unspoken) part of the employment relationship that requires that both parties act in a way that is trustworthy toward the other. Stealing from her employer had violated this so there could be no further ‘relationship’.

*Please note I am not a lawyer, nor am I qualified as one. I am however an Employee Relations professional whose job it is to understand and apply employment law, often in some odd situations such as the one above!



Giving Feedback

One of the key tasks in managing people is providing them with feedback. It reminds them that they are accountable for the job they do and allows them to know where they stand. Research has shown that feedback is a vital element in employee engagement.

Many managers and supervisors avoid giving feedback to the people working for them because they worry they will lose control of the situation and it will turn into a "yes you are - no I'm NOT" argument, putting them in a weak position or otherwise forcing them to be aggressive.

The paradox with this is that when you avoid giving feedback, others do see you as weak or ineffective. Fortunately there are a few simple ways to help you stay in control of the situation.

1. Balance your feedback by starting with something positive

This can be useful because it helps to break down their assumption that you are 'against' them. It helps them to see you as someone who is on their side and has a balanced and fair view of who they are. This helps them to be more relaxed and less defensive.

2. Give specific examples of things they did or did not do

Labelling someine in a general way tells them that you think the whole person is a lost cause! This is one of the reasons they will ignore your feedback - it is too hard to know where to start and what to fix. When you give them specific feedback about their actions it is easier for them to accept because they know what to fix.

It is also useful to use specifics when discussing a person with another manager. This ensures you both have a clear understanding of the issue.

This also applies to positive feedback. "You're great" doesn't have as much impact or stick in someone's mind as long as the more specific: "You really churned through the work today and I know the rest of the team appreciated hearing back from you so quickly".

3. Don't be drawn into debate

Sometimes people will insist on asking 'who told you?' or 'how do you know that's true?' The problem with this is that it sucks you into an argument. It is a skill that takes practice but this can be managed by calmly stating that you are not going to get into a discussion about it.

It is important to note that giving someone feedback on how they are doing is different to discipline eg. a warning letter or some sort of sanction. Feedback tends to be one way - 'for you information only', whereas disciplinary discussions must establish the facts and allow all parties to be heard.