Sydney Schedule

Wednesday 2 November 2016



Registration opens



Welcoming remarks from the Chairperson


Benjamin Gee, Partner & Solicitor, FCB Workplace Law

9:00am   Walking the fine line - Mental health and the disciplinary process

When dealing with workplace mental health issues, employers have legal obligations relating to discrimination, privacy, adverse action and health and safety. 

  • Overview of section 351(1) of the Fair Work Act 2009 (Cth), Disability Discrimination Act 1992 and Australian Human Rights Commission Act 1986
  • Impact of Salazar v John Holland Pty Ltd [2014] relating to mental health as a contributing factor to misconduct
  • To what degree should an employer take a psychiatric disorder (anxiety and depression) into account when considering the employee's ability to communicate within the workplace?
  • At what point is it pragmatic to cease disciplinary processes and come to a settlement with an employee who suffers from mental illness?

Bronwyn Maynard, Special Counsel, Henry Davis York

9:45am   Adverse action – Shades of grey relating to workplace rights  

The reverse onus of proof and the broad definition of 'workplace right' make adverse action a very real risk for employers.

  • Overview of the broad general protections provisions of the Fair Work Act
  • Implications of Hansen v Mt Martha Community Learning Centre Inc [2015]
  • Performance management involving negative behaviours
  • Should complaints-handling be separated from disciplinary functions?
  • How are the courts interpreting the term ‘workplace right?’

Stephanie Nicol, Partner, Gadens



Morning refreshments break

11:00am   Managing an underperforming employee who lodges a bullying claim

When an employee is subject to disciplinary proceedings and they lodge a bullying claim, the matter becomes risky and complicated.

  • How to minimise the risk of bullying claims during the performance management process
  • The link between reasonable performance management and bullying and harassment claims
  • Should a disciplinary process be conducted concurrently with a bullying investigation?
  • To what degree should issues raised during the bullying matter be considered during the disciplinary process?
  • How should the employer ensure that disciplinary actions are not interpreted as adverse action?

Aaron Dearden, Partner, Hall & Wilcox

11:45pm   Absence management and employment law

Managing ill and injured workers is one of the greatest challenges employers face, involving the navigation of a complex web of legal obligations from general protections to discrimination, unfair dismissal and breach of the Fair Work Act.

  • The cross over between performance management, lack of capacity, recovery from injury and return to work
  • Implications of Sipple v Coal & AlliedMining Services Pty Ltd [2015] regarding independent medical evidence about an employee’s capacity
  • Managing sick and injured workers whose medical state is not work related
  • Implications of Jetstar Airway Pty Ltd v Neeteson-Lemkes [2013] regarding contentious psychological diagnoses

Michael Connolly, Partner, HWL Ebsworth Lawyers 



Networking lunch


PANEL Workplace mental health: Balancing empathy with legal pragmatism 


HR professionals need to balance procedural rigour with empathy when disciplining employees with mental health issues. What is the most humane way of dealing with an underperforming employee who also suffers from poor mental health?

  • What effect can a rigorous and formal disciplinary process have on someone with a mental illness?
  • How to ensure that a disciplinary process is fair to an employee with a mental illness
  • What types of support does someone with a mental illness really need during performance management?
  • What are the legal risks of choosing a ‘humane’ path?
  • Supporting employees with mental health issues (and the employees around them) within the confines of discrimination and adverse action laws
  • Should behaviour related to mental health even be treated as a disciplinary issue?

Paul Cutrone, Partner, Seyfarth Shaw 

Alice DeBoos, Partner, K&L Gates

Harriet Eager, Partner, MinterEllison

Emi Golding, Psychologist, The Mental Health Recovery Institute

2:15pm   Dealing with vexatious employee claimants 

False and spurious complaints can be highly disruptive and damaging and even result in psychological injury for the accused colleague or manager. Employers should tread very carefully when dealing with vexatious claimants.

  • Appropriate policy direction and consequences for frivolous or vexatious complaints
  • Implications of Alphonse Kaskol v TNT Australia Pty Ltd [2015] relating to false, spurious and vexatious claims
  • Are there ways of deterring vexatious claims without appearing to be victim-shaming or taking adverse action?
  • At what point should you settle at conciliation with a vexatious claimant to avoid negative publicity?
  • Considerations when disciplining a worker who has made vexatious claims

Veronica Siow, Partner, Allens



Afternoon refreshments break

3:30pm   Unfair dismissal – Dealing with non-textbook cases

Most experienced HR professionals are familiar with best-practice discipline and termination processes. But often proceedings don’t run according to plan. This session will cover atypical discipline and termination scenarios.

  • Common disruptive employee manoeuvres  (and how to circumvent them) 
  • Implications of Joy Lawrence v Calvary Home Care Services Ltd T/ACalvary Community Care [2016]
  • Strategies for dealing with stalling tactics from employees
  • To what degree can an employer compel an employee to cooperate with discipline and termination processes?

Paul Vane-Tempest, Partner, Ashurst

4:15pm   Psychological injury, workers compensation and bullying

If an employee has suffered a psychological injury as a result of workplace bullying, they can apply for compensation. What should HR professionals do to minimise the risk of psychological injuries in the workplace that result from bullying?

  • What is the legal definition of a psychological injury?
  • What does a procedurally fair bullying investigation look like?
  • Intervention to prevent a worker developing a psychological injury from workplace bullying
  • How to demonstrate that your actions are reasonable enough to show that you’ve discharged your duty of care
  • The distinction between compensation and damages in psychological injury cases
  • How to conduct procedurally fair investigations to identify whether bullying has played a role in an employee’s injury

David Cross, Partner, Norton Rose Fulbright



Conference concludes


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