employment practice liability - preventative and defensive evidence building
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Employment Practice Liability - Preventative and defensive evidence building Darren Gardner | Partner Maddocks LL.M (Hons) LL.B (Hons) Accredited specialist – employment and industrial law Accredited Mediator (IAMA) ComCover Legal Services Information Forum 23 October 2013 - PowerPoint PPT PresentationTRANSCRIPT
Employment Practice Liability - Preventative and defensive evidence building
Darren Gardner | PartnerMaddocksLL.M (Hons) LL.B (Hons)Accredited specialist – employment and industrial lawAccredited Mediator (IAMA)
ComCover Legal Services Information Forum23 October 2013
Canberra, ACT
Likely EPL risks
Workers compensation
Negligence
Discrimination
Adverse action
Bullying
Unlawful termination
Unfair dismissal
Evidence is everything
Proof
Prove real reasons
Quality of evidence
Evidence of substance and procedure Evidence sources should demonstrate
application of the ‘rules’ to substance of real issues
Consistency, cogency and transparency helps to prove fair process
Records of communications
– how, what, when
– consistent with policy or practice
Different plaintiff’s – different communication risks
Serially misunderstood serial complainant
People popular saboteur
Much Maligned Malingerer
Mentally unwell high performer
Evidence management
The ‘3D Rule’
It is imperative to document process, document substance, document decision:
– what we do organisationally in these situations; and
– evidence on why a decision to discipline was taken.
Avoid contradictory document trail
Case example – Bendigo TAFE v Barclay [2012] HCA 32From: Greg Barclay [mailto:[email protected]]Sent: Friday, 29 January 2010 10:00 AMSubject: AEU – A note of cautionHi all,The flurry of activity across the Institute to prepare for the upcoming reaccreditation audit is getting to the pointy end with the material having been sent off for the auditors to look through prior to the visit in February.It has been reported by several members that they have witnessed or been asked to be part of producing false and fraudulent documents for the audit.It is stating the obvious but, DO NOT AGREE TO BE PART OF ANY ATTEMPT TO CREATE FALSE/FRADULENT [sic] DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES. If you have felt pressured to participate in this kind of activity please (as have several members to date) contact the AEU and seek their support and advice.Greg Barclay PresidentBRIT AEU Sub-Branch
Case example
CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267
– warning letter sent to employee alleged to be adverse action
– other contemporaneous evidence consistent with policy proved reasons for warning not connected to employee’s union activities
Case example
Ramos v Good Samaritan Industries [2013] FCA 30
– performance management alleged to ‘squeeze’ employee out of role
– employer documentation proved that all reasonable steps taken to achieve ‘good management outcomes’ consistent with disciplinary policy and process
Case examples Cogent, reliable,
forthright decision maker witness evidence
Don’t forget possible physical evidence
Documentary evidence that is well reasoned, reasonable and contemporaneous
Dispute resolution options
Not suitable?
Exercise caution!
Go
Questions?
Darren Gardner | PartnerMaddocksDirect 61 2 9291 [email protected]