ASADA investigation into Drugs in Australian Sports - Lessons for Employers Part 2

Posted on 27 June 2013

In part one (1) of our blog on the lessons employers should learn from the current ASADA investigation into Drugs in Australian Sports we examined the need for pre Employment/Engagement Background Checks to be undertaken on all prospective employees or contractors prior them starting with your organisation.

In part two (2) of our blog we focus on how all organisations need to have policies and procedures that endorse fair and consistent investigation and disciplinary processes and to ensure that all policies and procedures are adhered to.

Background

On 4 February 2013, immediately after the announcement that the Essendon Football Club (Essendon) had requested ASADA investigate its High Performance team for potential breaches of the WADA Code, Essendon announce that it had suspended its High Performance Coach, Mr Dean Robinson, from all duties as a result of his involvement of the implementation of the supplement regime.

At the Press Conference, Essendon Head Coach, Mr James Hird, said that it was his understanding "that we worked within the framework that was given to us by the AFL and by WADA, and I'm shocked to be sitting here, really". Essendon senior officers distanced themselves from the allegations and presented united front that has been alleged to have inferred that they had little knowledge of the practices of the High Performance team or irregular practices used by them.

However, in contradiction to the comments made previously by Mr Hird, on 11 April 2013, the ABC's 7:30 Report ran a story alleging that key coaching staff at the Essendon were fully aware of, and heavily endorsed, the program implemented to the playing group by the High Performance team that is alleged to have breached the WADA code. In addition, leaked text messages shown on the 7:30 Report implicate several senior members of the coaching staff in the consumption and potential injection of substances that are considered illegal under the WADA Code as they had not yet been approved by the Therapeutic Goods Administration for human use.

While Chief Executive Officer, Mr Ian Robson, resigned on 23 May 2013 questions still remain in relation to the actions and involvement of Head Coach, Mr James Hird, and Football Manager, Mr Danny Corcoran in the relationship with the High Performance team.

Consistent and fair workplace discipline

It is best practice for employers, in regard to employee discipline, to develop workplace policies and procedures that enable fair, consistent and equal discipline of all of its individual employees regardless of their seniority or position with in the company. By dealing with discipline in an ad hoc manner and playing favourites, as it has been alleged that Essendon has done, employers risk liability for potential unfair dismissal, breach of contract and bullying claims, in addition to the impact of lower staff morale, the potential for increased stress/sick leave and the increase turnover of staff generally.

Key themes in Dr Ziggy Switkowski's report into the governance of Essendon underline a lack of oversight by senior officials of the High Performance team. However, the fact remains that the only member of Essendon's coaching and fitness staff to have been subject to discipline is High Performance Coach, Mr Dean Robinson who was placed on suspension on 4 February 2013.

Many media pundits have questioned whether it is fair and reasonable to have only suspended Mr Robinson after the 7:30 report made public further evidence that other more senior employees appeared to actively encourage and participate in the implementation of the supplement regime. In addition, there remains the unanswered issue of whether senior club officers breached their duty of care to players under the Work Health and Safety Act 2011 by failing to provide a safe working environment.

Benefits of workplace policies

Employers who develop, implement and monitor compliance with clear, fair and reasonable workplace policies will help protect themselves against unfair dismissal, general protections claims, WHS prosecutions and vicarious liability claims. Policies can illustrate that an organisation is operated in a professional manner as well as ensure stable and consistent decision making. Most good policies set out the following items:

  • Aim or goal of the policy;
  • State why the policy was developed;
  • Whom the policy applies to;
  • What is and what is not acceptable behaviour;
  • The consequences of a failure to comply with the policy; and
  • State date that policy was drafted and when it was implemented.

A good work place policy needs to be drafted in plain English and outline who the policy applies to and how people can comply with the policy, and perhaps more importantly the consequences for failing to comply with the policy.

Implementation of workplace policies

Often employers will have policies for many difference issues – including WHS, internet and computer use, social media and bullying and harassment. However, having workplace discipline policies and procedures in place will only be beneficial for employers if they are properly implemented, monitored and policed.

From the outside looking in, the perception remains in the wider public view that by only disciplining Mr Robinson for his role, and not all employees/personnel involved, in the supplement program Essendon may not have implemented a fair and even handed discipline process. The decision to only to discipline one member of the coaching staff, and not all staff members, could heighten Essendon's exposure to further legal action by Mr Robinson, who is still on suspension with pay.

Conclusion

Employers should learn from the Essendon experience and be cautious when deciding to discipline staff. Even when policies and procedures are in place it is often the inconsistent implementation of those policies that will leave employers liable to potential unfair dismissal, breach of contract and unfair dismissal claims.
Should you need any further information on development or implement of workplace policies please contact us

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