It has traditionally been a very sensitive and private subject, but according to the Fair Work Commission (FWC) employers need to seriously consider disclosure policies for workplace romances.

Office relationships are something in which a large number of employers are faced with, given the amount of time we spend at work. While office romances are not uncommon, the parties involved need to take reasonable measures to ensure their work or the business is not adversely affected.

The FWC’s recent decision, in M v Westpac Banking Corporation, to reject the unfair dismissal application of a Westpac manager who failed to disclose an office affair with his subordinate employee, is a case in point for anyone failing to disclose an office relationship.

In situations where a manager forms a relationship with a subordinate, especially where the manager directly supervises the subordinate, the FWC is of the view that such relationships have the potential to create conflicts of interest.

What should HR Managers do?

While it would be difficult for employers to enforce a strict ‘no relationship policy’, all HR Managers should definitely have concrete restrictions and disclosure policies in place. FWC’s decision calls for consideration of the following key issues:

  • a ‘Conflict of Interest Policy’ that prevents conflicts of interest between managers and subordinates and provides for a solution, for example to reassign one of the employees should a relationship form;
  • a ‘Disclosure Policy’ that obliges those involved in an office romance to disclose their relationship to HR so that steps can be taken to ensure there is no potential conflict of interest;
  • ensuring that policies on relationships in the office are clear to all staff; and
  • ensuring supervisors are properly trained to effectively supervise and manage their work relationships with subordinates.

However, having a disclosure policy will not guarantee that everyone will abide by it.

Businesses also need a Workplace Relationship policy that outlines steps that will be taken when relationships are not openly disclosed. HR Managers need to ensure that their Disclosure and Workplace Relationship policies expressly states that disciplinary actions, including dismissal, may be taken where an employee fails to openly and adequately disclose an office relationship, particularly where the relationship has the potential to create conflicts of interest.

How should it be disclosed?

Office relationship disclosure should be a confidential conversation between the employee and HR Manager, who would then decide whether any necessary changes need to be made in order to minimise risk of any relationship-related problems.

Employees should be prepared to show that the relationship will not influence their work or the business.

What should HR Managers put in place?

To ensure the business is not adversely affected by workplace relationships, HR Managers should:

  • implement a Disclosure policy or contractual requirement that expressly states that disciplinary action may be taken, including dismissal, where an employee fails to openly disclose an office relationship; and
  • ensure all employees are made aware of their responsibilities under the Disclosure and Workplace Relationship policies, and their obligations to disclose office relationships to the HR Manager.

(M v Westpac Banking Corporation [2015] FWC 2087 (15 May 2015))

About the Author

Tim Greenall

Special Counsel
Commercially savvy with over 30 years of experience, Tim provides pragmatic employment advice to his clients.

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