Category: Key things to help you everyday

Village Managers regularly get caught up in disputes, which require real skills to successfully navigate, and if not carefully managed can draw in the operator – and lawyers.

Jonathan Chow, Special Counsel at law firm Minter Ellison, gave a 45 minute overview at the DCM Institute Professional Development Day at the Hilton Hotel, Sydney on how to handle disputes and advice on engaging mediators ahead of legal action.

His advice – be aware and take notes! He detailed the importance of identifying when a dispute is gathering momentum and then commencing record keeping by the Village Manager. Good notes in chronological order will usually eliminate the need to resort to high level legal action because when presented with the facts of a dispute, most people lose their energy for a fight.

But Jonathon said receiving good quality notes is rare.

He also pointed out that if a dispute is to go to the Tribunal, expect around 12 months to receive the first hearing.

He then presented a short quiz, including this slide:  

The answer is at the bottom of the last article.

The attendees at the quarterly Professional Development Day in Adelaide earlier this month were treated to a great presentation by Michael Spencer of O’Loughlins Lawyers.

Michael has been a litigation lawyer for over 20 years, and he regularly represents retirement village operators in the South Australian Civil and Administrative Tribunal. The Health, Aged Care and Retirement Living team at O’Loughlins Lawyers has been recognised this year by Best Lawyers as the Law Firm of the Year (for Australia) in Retirement Villages and Senior Living Law.

Michael explained that between 2019 and 2021, there was an increase by more than 50% in the requests made to the advocacy program of Aged Rights Advocacy Service (which is the SA member of the Older Persons Advocacy Network. O’Loughlins Lawyers have similarly experienced an increase in retirement village disputes coming to them in the past few years.

The reasons for this include:

• the transition to Baby Boomers as residents;
  
• increased awareness of rights;
  
• more residents with behavioural problems associated with cognitive decline and mental illness; and
  
• more children of residents being concerned about their inheritances.

While Michael talked through the relevant provisions of the South Australian legislation, and the general tactics that village managers might adopt in their management of disputes, the highlight of the presentation was his “war stories” from recent tribunal cases.

Those stories from recent South Australian cases where O’Loughlins Lawyers represented the operator included:

• The resident who was a hoarder, and it took three crime scene cleaners (yes, the people who clean up murder scenes!) three days to clean the resident’s apartment. The smell from the apartment had been wafting through the building, and maggots were crawling out under the front door to the distress of other residents and staff. The Tribunal made an order that the resident move out of the village.
  
• The resident who verbally and physically attacked (including with a frying pan!) other residents and their visitors. The evidence of the psychologist who had been brought in early to resolve disputes between this resident and other residents was key in the resident voluntarily leaving the village – before the Tribunal could order her out.
  
• The accountant daughter of a resident who disputed the calculation of her father’s exit entitlement. The Tribunal sided with the operator, notwithstanding the daughter producing legal advice from three different law firms supporting her interpretation of the residence contract.
  
• The resident who sought compensation associated with moving out of his village because the operator had not taken sufficient action against a second resident who had been behaving badly. The Tribunal decided that the operator had not been obliged to bring a case to the tribunal against the second resident, and thus dismissed the first resident’s case.

This was a question last week when we spent a day in each of Adelaide and Perth meeting with our DCM Institute colleagues for their quarterly Professional Development Days.

Bullying is an infrequent but increasing phenomena, especially with the new Baby Boomer residents, so we have assembled some materials from the Knowledge Centre for a refresher below.

Bullying

Every village manager will face this issue at some stage – bullying between residents or bullying of the village manager!

It can be cancerous in a village and needs to be addressed quickly and responsibly.

(Before you start addressing bullying, it is wise to understand that there will be something personal that is driving the behaviour of the bully unrelated to the village. Most people are not mean and vindictive).

Signs of bullying

• Intimidation
  
• Humiliation
  
• Being treated inconsistently from others
  
• Every decision you make is being questioned
  
• Socially alienated
  
• Verbal or written abuse (inappropriate use of tone or language or assertion)
  
• Feeling of anxiety, isolation from/towards another person or groups of people
  
• Unreasonable obstacles
  
• Constant criticism

Understand the motivations/triggers

• Loss of control
  
• Feeling under-valued
  
• Powerless
  
• Insecure / Inadequate
  
• Jealous
  
• Threatened
  
• Lack of appreciation
  
• Not being heard
  
• Looking for reward or attention
  
• Health trigger
  
• Habitual bully
  
• Has trouble regulating emotion

Do your groundwork early

• Build honest relationships with residents to prepare for a time when you will need to have harder discussions with some residents
  
• Implement Village Values that clearly outline how all stakeholders within the village will act, be treated and treat others
  
• Implement a clear Communication Strategy/Policy that outlines expectations & boundaries for how, when and what the village communication standards are between residents and management and between residents to resident
  
• It is recommended that both of these documents can have important components implemented within the Resident Rules/By-laws, and be discussed during Resident Induction
  
• Ensure that all staff are educated in these expectations and boundaries and refer or enforce them, as needed
  
• Ensure that these are regularly referred to and upheld (They can be re-enforced at meetings, in Newsletters, and other written communications).
  
• Practice consultative management when dealing with sensitive or controversial village matters “A type of management in which stakeholders are encouraged to contribute ideas towards identifying and setting desired outcomes, problem solving, and other decisions that may directly affect them.”

Take a stand – lead the change

• Be the leader, be brave – after all you are the leader of this community and your intention is that all members of the community are treated with respect!
  
• When dealing with a bully it is important to be empathetic towards the bully as well; after all in most situations there is something that has triggered this behaviour
  
• Gather evidence of specific examples of bullying, such as reports from residents. (Be careful if using hear say; acknowledge the information may not be totally accurate)
  
• Invite the bully to a meeting to discuss
  
• In some instances, depending of the severity of the situation it may be good to have another person with both parties
  
• Prepare for the meeting – ensure you have a sensible agenda and desired outcome in mind
  
• Be honest, transparent, express that your role is to be the facilitator of an issue that is of concern to other residents/staff etc… 
  
• Be prepared to apologise if in some way you have contributed to the concern
  
• Be prepared to have an open mind; be non-judgemental
  
• Outline your observations, complaints/concerns and desired outcome clearly – again make sure you have specific examples
  
• Make sure you check in with the other person to understand are there factors that are influencing their behaviour
  
• Acknowledge and provide opportunity for them to openly discuss this matter
  
• Discuss and describe alternate behaviour, communication expectations
  
• At this point it is OK to ask for time to consider the situation further and commit to meeting again
  
• Agree some mutual outcomes expected and commit to follow up the conversation
  
• Document the conversation & diarise to follow up with them
  
• Keep the conversations confidential
  
• Don’t just address the issue once, follow it up, keep the discussion alive
  
• Ensure actions or activities within the village are not allowing the bully to gain continual or maintain power, look to decrease the power of the bully by consulting with others, if appropriate
  
• Bring in the professionals – mediators, Office of Ageing, Consumer Business Services or as a last resort, seek assistance from your experienced Retirement Village Lawyer

We hope this triggers a few thoughts for you. Next week we are in Melbourne and Brisbane, then Sydney a week later – if you are a DCMI participant make sure you have registered for more instruction on Dispute Resolution.

DCM Institute participants are reminded to register for your PD days, commencing over the next two weeks. 

We have engaged the best professional development speakers on how to work smarter, not harder, and looking after yourself in the process.

Our extremely popular legal sessions will be staged, focussing on dispute management – the sessions went overtime in Adelaide and Perth at the audience request.

And dispute resolution practices: how to achieve a move on position for all.

Pictured at top are Perth speakers.

DCM Institute participants can register below.

Melbourne

Tuesday 19th July – Register here

Brisbane

Thursday 21st July – Register here

Sydney

Thursday 28th July – Register here