June 2017 – Procedural Fairness and the Decision-Making Process
This paper begins with a discussion of the legal theory of procedural fairness and then proceeds to a discussion of how it operates in practice; with particular focus placed on the legal and organisational framework in which administrative decision-making takes place, the challenges posed by other goals (political and financial) which often compete with the goal of procedural fairness and the challenges posed by the decision-making process. Consideration is given not only to the legal but also the cognitive aspects of decision-making, together with the critical role of communication and the need to acknowledge and overcome the barriers to decision-making.
This paper was presented to Legalwise Seminars’ Administrative Law in Action seminar in Sydney on 9 June 2017.
March 2018 – Dismissal of Ill and Injured Employees: Tips and Traps
The dismissal of ill, injured and otherwise disabled employees is one of the most complex dismissal processes an employer will undertake. This is because the employer needs to be aware of, understand and traverse a myriad of different laws. Not only must the employer be mindful of an unfair dismissal or general protections claim, they must also consider the impact of anti-discrimination law, work health and safety law and workers compensation law. In addition to understanding and applying the law, employers will often have to grapple with an array of often complex medical and capacity issues as well as the challenges of gaining the cooperation of employees and their treating doctors. This paper examines both the legal and practical aspects of making a sound, defensible and legally compliant decision about whether, or not, to dismiss and ill, injured or otherwise disabled employee.
This paper was presented to Legalwise Seminars’ Workplace Law Conference in Sydney on 9 March 2018.
March 2018 - Ethics at Work: Rights and Wrongs in Legal Practice
In a society in which we are constantly reminded of our own ‘rights’ and the ‘rights’ of others, it can be novel to take time out and remind ourselves of the importance of what is involved in ensuring that we do the ‘right thing’. While ethics in legal practice is often a straightforward matter when things are going well, it can become more challenging when we are under pressure. To ensure ethical practice, we need to not only understand the principles; we also need to recognise the barriers to ethical practice and be equipped to overcome those barriers. This paper discusses the rules which apply to key ethical issues in legal practice, considers practical examples of ethical issues in legal practice, examines the barriers to ethical practice and proposes practical solutions to ethical challenges.
This paper was presented to members of the Clarence Professional Group in Sydney on 13 March 2018.
March 2018 – Managing Misconduct and Other Workplace Conflict: Skills, Processes and Tips
The effective management of workplace conflict in the 21st century is not achieved by accident. Rather it requires planning, resourcing and the development of individual and organisational capability (‘conflict competency’). It requires an embrace by employers and employees of a learning mindset which prioritises communication and other skills as well as the achievement of understanding. It involves more than a set of rules that employees are told to follow; it requires a fundamental understanding of human behaviour and the application of skills in influencing and persuasion. This paper discusses the government sector’s legal and ethical framework for managing workplace conflict and a range of legal and other perspectives on workplace conflict. consideration is then given to the four stages of organisational responses to workplace conflict, following by a detailed explanation of the key elements of best practice in managing workplace conflict; in particular the essential role of conflict assessment and the broad spectrum of processes and options which are available to facilitate conflict resolution.
This paper was presented to Legalwise Seminars’ Government Sector Employment Issues Seminar in Sydney on 28 March 2018
July 2016 – Dealing with Workplace Complaints: How to Avoid Formal Investigations and Efficiently and Effectively Resolve Complaints
This paper responds to the increasing use of workplace investigations in recent years and discusses the limitations and unintended consequences that this trend has presented for employers and employees alike. Chief among these limitations is the fact that investigations rarely if ever resolve the conflict and may, in fact, cause the conflict to escalate. This paper reflects on the issues associated with workplace investigations through the lens of conflict management theory and practice and explains how an organisation may develop conflict competency, allowing it to adopt a flexible and case-specific approach to a particular conflict rather than a one size fits all approach.
This paper was presented to a national employment law conference produced by Television Education Network held at the Palazzo Versace on the Gold Coast on 28 and 29 July 2016.
March 2016 – Discrimination and Adverse Action
While anti-discrimination laws are traditionally understood to be the domain of protection from unlawful discrimination, the Fair Work Act 2009 also provides protection against discrimination on a range of grounds; particularly in the form of ‘general protections’ which, among other things, prohibit adverse action from being taken against an employee in particular circumstances. General protections claims, including those claiming discrimination, have grown significantly since the Fair Work Act 2009 commenced and the case law has developed with this trend. In view of these developments, employers need to be mindful of the risk of general protections claims which, unlike unfair dismissal claims, can be made regardless of the length of the employment and the remuneration earned by an employee.
This paper discusses the discrimination provisions in the Fair Work Act 2009, explains the prohibition against adverse action in the general protections provisions of the Fair Work Act 2009, outlines a number of case studies in which unlawful discrimination has been alleged in the context of an alleged breach of the prohibition against adverse action and provides guidance on how to minimise the risk of breaching the general protections provisions of the Fair Work Act 2009.
This paper was presented to a seminar produced by Legalwise Seminars on 22 March 2016 in Sydney.
March 2016 – Ethical Issues Outside of the Workplace: Did I Just Say Too Much?
In a broader social environment in which the rights of individuals to express their opinion is commonly asserted, the law operates to remind individuals of their responsibility to exercise those rights with caution. The opportunity for an employee to not only express opinions and disclose confidential information and be held accountable for it has increased significantly with the ubiquity of email correspondence and the popularity of social media and smartphones. Employer capacity to make the link between out of work conduct and the employment of an employee has never been greater.
This paper discusses the relationship between out of work conduct and an employee’s employment and the tensions which arise in that relationship. it explains the key obligations of an employee in relation to out of work conduct, examines the rights and responsibilities of employees when they express their opinions outside of the workplace, discusses the risks associated with the use of social media and provides practical guidance on how to manage interaction with clients outside of work.
This paper was presented to a seminar produced by Legalwise Seminars which was held on 11 March 2016 in Sydney.
February 2016 – Personal Liability of HR Professionals: But I Just Did What I Was Told!
This paper was presented to the 1st Annual Melbourne Employment Law Conference held on 10 and 11 February 2016, a reprisal and update of the paper originally presented in July 2016 to the National Employment Law Conference produced by Television Education Network (details below).
September 2015 – Personal Liability of HR Professionals: But I Just Did What I Was Told!
This paper was presented to a national webinar broadcast on 9 September 2015, a reprisal and update of the paper originally presented in July 2016 to the National Employment Law Conference produced by Television Education Network (details below).
September 2015 – Employee? Contractor? Intern? What you need to know to ensure you have the right contract in place
The proper classification of workers for the purpose of establishing rights and responsibilities is one which is characterised by popular myth and populated by ‘bush lawyers’. An employer who is either willfully blind to the law or who has an untested understanding of it may readily find themselves in breach of it and exposed to the risk of legal action and other conflicts.
This paper explains the law in relation to the classification of workers and tackles the many myths associated with it. It explains how to correctly classify a worker, outlines the legal obligations which arise in relation to each type of worker, examines the legal implications of incorrect classification of workers, discusses recent developments and relevant case law and provides practical tips to ensure proper classification of workers.
p align=”justify”>This paper was presented to a seminar produced by Legalwise Seminars which was held on 3 September 2015 in Sydney.
July 2015 – Personal Liability of HR Professionals: But I Just Did What I Was Told!
While liability for breaches of employment law falls predominantly within the domain of an employer entity, such breaches flow from decisions to act or to not act which have been made by one or more individuals. For this reason, accessorial liability plays a significant role in encouraging an informed approach regarding employer obligations, promoting compliance with Australia’s extensive employment law and in deterring individuals within an employer from looking the other way. While accessorial liability is nothing new, it has assumed a significantly enhanced role in the employment arena in recent years, thanks to the significant expansion in civil remedy provisions which accompanied the introduction of the Fair Work Act 2009, the activist nature of the Fair Work Ombudsman and the case law which has resulted predominantly from the regulator’s work.
This paper outlines the key legal principles which provide a foundation for understanding accessorial liability, explains the meaning of accessorial liability, discusses the accessorial liability provisions of the Fair Work Act 2009 and in anti-discrimination legislation, reviews a number of key decisions on the nature of accessorial liability and provides guidance on the steps which you can take to minimise the risk of being held personally liable for contraventions of legislation.
This paper was presented to the National Employment Conference produced by Television Education Network and held in July 2015.
October 2014 – Workplace Law for Finance Managers in SME’s
This paper was presented to the CPA Congress held on 20 October 2014 in Sydney, reprising a paper presented originally in May 2014 to the CPA Conference (details below).
May 2014 – The Law at Work: Recent Developments which impact on your practice
Australian workplace law is a highly complex jigsaw puzzle of laws, including common law, a range of federal and state legislation and an array of industrial instruments (awards and enterprise agreements). Compliance with these laws, let alone comprehending the opportunities they offer, is an ongoing challenge for employers and employees alike.
This paper informed the audience of recent developments in the law and raised awareness of how key areas of employment law impact on their practice.
This paper was presented to the CPA Conference held on 30 May 2014 in Sydney.
March 2014 – Effective Management of Workplace Conflict
Conflicts are as much a feature of the Australian workplace as human beings, equipment, furniture and paper. Unless they are managed effectively, they have the potential to cause detriment to the workplace. It is not the existence of a conflict but how an employer responds to that conflict that is central to whether or not it will be able to protect its own interests and the interests of the people involved, as well as being able to achieve a resolution.
This paper discusses the range of conflicts which may arise in the workplace, considers the reasons why conflicts arise and identifies the barriers to success in managing them effectively, explains why developing a system for management of workplace conflict before a crisis arises is in the interests of employers and employees alike, outlines the key features of an effective system for management of workplace conflict and examines the range of methods which can be used when a workplace conflict arises.
p align=”justify”>This paper was presented to a seminar produced by Legalwise Seminars which was held on 25 March 2014 in Sydney.
March 2014 – Health and (Dis)ability at Work
When managing issues associated with the health and ability of employees, employers face one of the most complex tasks they will face in the area of people management and legal compliance. This is because they are asked to both understand and comply with a very broad range of different laws and an array of often complex medical and capacity issues.
This paper raises awareness of the laws which regulate health and ability issues at work, aids understanding of those laws and their implications and provides guidance on how to ensure compliance with them.
This paper was presented to a seminar produced by Legalwise Seminars which was held on 25 March 2014 in Sydney.
November 2013 – Implications of Transfer of Employment on Redundancy
Change is a common feature of many private and public sector organisations. When a decision is made to make a change, an employer needs to be mindful not only of the commercial and operational implications of the decision but also the employment law implications. This paper raises the reader’s awareness of how the entitlement to redundancy pay operates in the context of the transfer of employment, provides information about how the Fair Work Commission applies the law and provides practical guidance as to the steps which need to be taken to ensure compliance with the law.
This paper was presented to a seminar produced by Legalwise Seminars which was held in Sydney on 22 November 2013.
September 2013 – Dealing with Difficult Employees
When an employment relationship begins it has great potential. Whether or not it will be a successful one depends on the preparedness of the parties to be clear about their expectations and to set clear parameters while also holding each other accountable. This paper provides a guide to understanding why difficulties can arise in the workplace and how an employer/manager can take steps to minimise those difficulties and respond effectively to them when they do arise. It begins with a consideration of what makes an employee ‘difficult’, examines how to create a framework for great performance and conduct and then outlines how an employer/manager can respond effectively when a difficulty arises. The paper considers a range of methods of dealing with difficulties in the workplace, with a particular focus on workplace investigations, disciplinary action and difficult conversations.
This paper was presented to a seminar produced by Legalwise Seminars which was held in Sydney on 5 September 2013.
July 2013 – Workplace Investigations – The answer to employee complaints?
Conflicts and complaints are as much a feature of the Australian workplace as human beings, equipment, furniture and paper. Unless they are managed effectively, they have the potential to cause detriment to a workplace. How an employer responds to conflicts and complaints is central to whether or not it will be able to protect its own interests and the interests of the people involved and also achieve resolution. This paper discusses: the range of conflicts and complaints which can arise in the workplace; consider the reasons why complaints are made and identify the barriers to success in managing them effectively; explain why developing a system for complaint management before a crisis arises is in the interests of employers and employees alike; outline the key features of an effective system for complaint management; examine the range of methods which can be used when a conflict or complaint arises; detail what a workplace investigation is, the principles which apply to it, the participants involved and how to conduct one; provide guidance on legal considerations relevant to the conducting of workplace investigations.
This paper was presented to Television Education Network’s National Employment Law Conference held on the Gold Coast, Queensland on 18 and 19 July 2013.
March 2013 – Managing Complaints and Workplace Misconduct: Conducting Effective Workplace Investigation
Conflicts and complaints are an inevitable feature of the Australian workplace. As a potentially destabilising influence on the workplace, they expose employers to a considerable number of risks. The key to whether an employer can respond effectively to conflicts and complaints is the amount of time and energy it is prepared to invest before a conflict or complaint arises, to ensure that it knows what to do and how to do it. This paper discusses the ‘before’and ‘after’ approaches an employer can adapt to ensure it minimises the risks associated with conflicts and complaints which arise in the workplace; with a particular focus on systems and the conduct of workplace investigations.
This paper was presented to a seminar produced by the Television Education Network in Sydney on 18 March 2013.
November 2012 – Reg 176, Mandatory education on employment law, work health and safety law, the principles of EEO and anti-discrimination law
Lawyers working in NSW are required to undertake mandatory training on employment law, work health and safety law, the principles of EEO and anti-discrimination law. This presentation – given to both the Clarence Professional Group and to a seminar conducted by Legalwise Seminars – provides lawyers with an understanding of the key elements and principles underpinning the range of laws which regulate employment and provides practical guidance about how to apply that understanding in their firms.
November 2012 – Terminating Senior Executives
A presentation to Television Education Network’s Employment Law Conference in Sydney, this paper discusses the legal risks relevant to the dismissal of a senior executive and provides an extensive practical guide to how an employer can significantly reduce the risk of negative fall out from such a dismissal. Topics covered include: what to watch out for (an outline of the range of legal risks which can arise); taking steps to address underperformance (including discussion of how to create an effective framework to address underperformance, the law which applies to performance, causes of underperformance, getting your house in order and how to have a difficult conversation); the process of terminating the employment.
August 2012 – Ethics at Work: Rights and Wrongs in Legal Practice
A presentation to Legalwise Seminar’s ‘Ethics from the Experts’ seminar in Sydney on 29 August 2012, this paper discusses the all-important issue of ethics in legal practice from both a technical and practical perspective and with particular emphasis on the commonly experienced issues of conflicts of interest and confidential information. Topics covered in the paper include regulation of ethics in legal practice; time management as an ethical issue; understanding and ensuring effective management of conflicts of interest; the do’s and don’ts of managing sensitive information; barriers to ethical practice; and practical solutions to ethical challenges in legal practice.
July 2012 – Terminating Underperforming Senior Executives
A presentation to Television Education Network’s National Employment Law Conference on the Gold Coast, this paper discusses the legal risks relevant to the dismissal of a senior executive and provides extensive practical guide to how an employer can significantly reduce the risk of negative fall out from such a dismissal. Topics covered include: what to watch out for (an outline of the range of legal risks which can arise); taking steps to address underperformance (including discussion of how to create an effective framework to address underperformance, the law which applies to performance, causes of underperformance, getting your house in order and how to have a difficult conversation); the process of terminating the employment contract.
June 2012 – Legal Practice Made Perfect: Why developing practical skills enhances your skills (and value) as a lawyer
A presentation to Legalwise Seminars’ Government Lawyers Conference in Sydney on 1 June 2012, this paper makes the case for why the development of practical skills by lawyers is an essential element of excellence in the provision of legal services. It calls on lawyers to view themselves from the perspective of their clients and understand what they (as opposed to the legal profession) values in the experience of receiving legal services. Topics covered by the paper include: what clients want; the case for offering more than technical skills to your client; working with others – essential skills in people management and negotiation; when the shoe is on the other foot – engaging external advisers; the value of business skills in practice and your career.
March 2012 – Fitness for Work: What you need to know and do when managing ill, injured and disabled employees
A presentation to a Legalwise Seminars seminar on employment law held in Sydney on 29 March 2012, this paper discusses one of the most complex areas of people management and legal compliance. It raises an awareness of the broad range of laws which impact of fitness for work issues, aids an understanding of those laws and provides guidance as to how to ensure compliance with the tricky issues which can arise when managing ill, injured and disabled employees – including, personal leave, performance and conduct management, disciplinary action, abandonment of employment and dismissal.
March 2012 – Tricky Issues at Work: Performance Management, Bullying, Harassment, Discrimination and other Workplace Conflict
A presentation to a Television Education Network seminar on employment law held in Sydney on 26 March 2012, this paper discusses some of the trickiest issues which can arise in the employment relationship – performance management, bullying, harassment and discrimination. The paper raises awareness about these tricky issues, discusses the laws which impact on them, explains the risks and opportunities these issues pose to an employer and provides guidance about the steps which, if taken, along with a strong dose of leadership, will enable the employer to tackle these issues effectively.