Last month in Sydney we ran an employment law court simulation for about 100 clients. In our mock trial, our facts involved an employee, who after an unhappy performance discussion, decided to lodge a grievance against his manager and then take sick leave because he was suffering from workplace stress. He then committed some misconduct when he disparaged his manager and his employment was terminated.
I played judge in the court simulation and some members of our team were advocates and witnesses. The event, while entertaining, was also a terrific way to demonstrate how to prevent and manage these claims.
And it got me thinking... Even with the reasonably straightforward facts, it was still open to the employee to make a whole range of claims! He was, in fact, "spoilt for choice" and could have pursued:
- an unfair dismissal claim
- an adverse action claim
- an order to seek that bullying and harassment cease
- a claim for breach of contract
- a disability discrimination claim, and
- a claim for compensation.
Obviously the worker is going to pick the claim that has the greatest chance of success and gives him the best remedy. But the employer has little, if any, control over which claim is made and the claims are quite different. This choice of claims makes it harder for the employer to manage its employees in a way that minimises its legal risk. The following descriptions of some common claims highlight the various issues.
Historically this has always been a very popular claim. The test here is whether, in all the circumstances, the termination of employment was "harsh, unjust or unreasonable". Obviously that is a subjective call. Also it is quite possible for a termination to be "just" and "reasonable", but in all the circumstances, still be a "harsh" penalty. The whole process of dealing with the worker from beginning to end is put under the microscope in these matters. Was the procedure reasonable? What investigation was conducted? Did the conduct complained of actually occur? Did the worker get an opportunity to respond? Did the conduct warrant the penalty of dismissal?
This is an increasingly common claim because (unlike unfair dismissal where compensation is capped at six months' pay) there is no statutory cap on the amount that can be awarded. Also (again unlike unfair dismissal) there is an onus of proof on the employer to show that it did not take adverse action against the worker because of a workplace right. In these proceedings, the issue is not really about whether that termination was fair. Rather, the focus is on what was the real reason for termination of employment? Does the paper trail demonstrate that and does the real reason offend a workplace right in any way?
Of course the other claims available all differ as well. In a breach of contract case the focus is on the contractual terms and whether they were complied with. In a disability discrimination case, the court is particularly interested in whether the worker received less favourable treatment because of a disability. And in a compensation case, the issue is whether the worker suffered an injury in connection with the workplace.
These are all quite different tests and the evidence needed in these matters will vary accordingly, which is a big problem for employers. When they make decisions that are contrary to workers' interests, those decisions can be challenged in many ways and a risk assessment against all the potential claims would be a long and challenging risk assessment, particularly for the unwary and inexperienced.
The better news is that there are some common actions that assist with preventing and then defending most of these claims – instruction, training, supervision and auditing. If you have these four covered then you will go a long way towards mitigating your overall legal risk. Let's look at them a little more closely and show how they can assist you in defending claims.
This is all about your policies or your rules. It is so important in court to be able to show that you gave some thought to what is and what is not acceptable in your workplace. It should come as no surprise that lawyers are fond of rules and even fonder of them being in writing! So if an employer wants to defend a claim and can't demonstrate that it took the time to write up some sensible rules - then that employer is on the back foot from the beginning. Of course most employers have some sort of policy platform. But how many employers could say that their policies are in clear, simple language and work together to provide a seamless and integrated set of rules with no obvious gaps? Not many I suspect. More often, there is a patchy set of policies that has grown up over time and was written by different people in different styles that conflict and leave gaps. Courts find it hard to take employers with policy rules like these seriously.
The best policy in the world is of little value without some training around it. In court, the evidence from a manager on training often goes something like this.
"Your Honour we terminated the workers employment because he breached our appropriate workplace behaviour policy!"
"Err no - there was no training around the policy as such that I am aware of – but the worker was inducted in the policy when he started 10 years ago and I think that the policy can be found on our intranet?"
"No your Honour I accept that I couldn't personally remember the content of my own induction training when I started work".
"No I don't know how many times our employees log onto the policy page of the intranet". "Yes I accept that our latest policy was rewritten after the induction."
Not very satisfactory is it? The contrast of that is being able to say:
"Your Honour our workers are trained in our appropriate workplace behaviour policy at induction and then every two years we have a 30 minute refresher training on the policy where a link to our intranet is provided".
So let's assume you have a decent policy as well as some form of ongoing training. The next consideration is whether you supervise the concerns about workplace behaviour or you just say:
"We gave them the policy and trained them and that was good enough".
More than just training is required if you are to prevent claims and then to be able defend them when they arise. You need to be able to show in court that the policy was alive and that people were supervised on it. Otherwise the policy just becomes something that "human resources" put in place and that nobody paid much attention to. This is really a cultural matter that costs nothing to put in place.
An example of supervision might be that before a work function where alcohol is served, a manager has a team meeting and says:
"We have got an event on next week and alcohol will be served. I just want to remind everyone that we have a workplace behaviour policy which outlines some common sense rules about how we behave at work and events like this. I will email you a link so we can all have a great night and stay safe".
That takes maybe five minutes and the manager's email is absolute gold in court to show the employer actually supervises the implementation of the policy.
This is where the employer shows that it actually audited the effectiveness of its policy, training and supervision. Again, it is quite easy to do and is largely a cultural matter whereby the employer wants to continuously improve its operations. Most employers have some sort of audit and risk function through a committee or otherwise. In a lot of organisations, audit and risk tends to focus on matters such as delivery to customers. Where employees are involved, the audit and risk function is often confined to workplace injuries. It is a simple matter to include behaviours as part of the audit and risk function. For example the audit and risk group meets and the minutes say:
"Human Resources reports that we had five grievances for bullying and harassment made last year and that stress-related workers' compensation claims are rising. These matters have a significant risk so we need to instruct human resources to draft an action plan to mitigate the risk. Let's follow up on this next meeting."
That conversation may have taken a few minutes, but it demonstrates an overall risk management approach attempting to eliminate workplace issues. And these minutes are very useful as potential evidence.
These four actions are really quite simple, they don't take much time and cost very little. So why don't more managers implement them? Sadly it seems that these matters aren't prioritised by a manager until that manager has gone through the process of defending a claim under cross-examination. Those who have had that experience usually learn very quickly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.