Perth Schedule

Thursday 29 November 2018

8:15am

Registration opens

9:00am

Opening remarks from chairperson

Joanna Knoth, Senior Associate, MDC Legal

9:15am

Discipline and unfair dismissal: Case law update

Unfair dismissal is still the most common type of claim lodged by employees, presenting significant risks to employers and HR professionals. This session will provide an overview of recent cases over the last 12 months.

  • Step-by-step guide to disciplining and terminating an employee for poor performance or misconduct
  • When is a dismissal considered to be harsh, unjust or unreasonable?
  • Does the punishment fit the crime? Knowing when a dismissal is ‘overly harsh’
  • Can a "heat of the moment" resignation be deemed as a termination? Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli [2018]
  • Legally defensible performance improvement plan processes leading to termination
  • Dealing with long term unaddressed conduct issues – when can you terminate?
  • If an employer has “gotten away” with conduct in the past, how can you justify their dismissal for such conduct? West v Holcim (Australia) Pty Ltd [2017]

Samantha Maddern, Partner, Norton Rose Fulbright

10:00am

Adverse action claims: Bullying, complaints, inquiries and general protection

The Fair Work Act 2009 prohibits employers from taking “adverse action” against employees exercising workplace rights. In practice, this raises a minefield of risks for HR professionals who are disciplining employees.

  • How to minimise the risk of a general protections claim
  • Separating bullying and harassment allegations from dismissal decisions – lessons from Bateman v Aldi Foods Pty Ltd [2018]
  • When is a complaint or inquiry considered to have been made “in relation to employment”?
  • How to prove the credibility of decision makers and the reason for their decisions
  • What types of decisions come under the scope of adverse action rules?
  • When should you settle an adverse action claim that has no merit?

Renae Harding, Partner, Jackson McDonald

10:45am

Morning refreshment break

11:15am

Mental health: Stress, psychological injury, reasonable adjustment and return to work

This session will provide an overview of recent case law relating to workplace mental health, with a particular focus on disclosure of mental illnesses, reasonable adjustments, psychological injuries and performance issues.

  • Do employees need to disclose medical conditions that affect their work?
  • Dealing with employees who refuse or are unwilling to return to work – lessons from Finnegan v Komatsu Forklift Australia Pty Ltd [2017]
  • What is a reasonable adjustment for an employee who is suffering from a mental health condition?
  • When can you require an employee to undergo a mental health assessment to determine their fitness for work?
  • What are the legal definitions of post-traumatic stress and psychological injuries?
  • Vicarious liability and psychiatric injury claims – implications of Robinson v Lorna Jane Pty Ltd [2017]
  • How to determine whether a psychological conditions impact on performance

Saul Harben, Partner, Clayton Utz

12:15pm

Interactive workshop: How to compassionately discipline employees with mental health issues

In this session, a workplace psychologist will draw on years of experience to guide you through practicalities of conducting a performance discussion with an employee who has a mental health issue.

  • Role play – what to say to an employee during a disciplinary meeting with an employee who has disclosed a mental health issue
  • What type of support does a person need when they’re undergoing disciplinary proceedings?
  • Practical tips for handling tough disciplinary conversations in a mental health context
  • Practical tips to minimise the risk of psychiatric harm during performance discussions

Dr Jenny Ellison, Clinical & Counselling Psychologist, Jenny Ellison Psychology

12:45pm

Networking lunch

1:45pm

Workplace health and safety case law review

This session will provide an overview of recent cases involving workplace health and safety laws and workers compensation, while focusing on the lessons learned by employers and HR professionals in each case.

  • Can you dismiss an employee for a safety breach, even if the practice is common in the workplace? Blyth v JBS Australia Pty Ltd
  • What to do when an employee’s health affects workplace safety - lessons from Vijayan Kothandan v Transdev [2018]
  • When can you discipline an employee who is on workers compensation leave?
  • Can an employee take action for deficient manual handling training? Baig v AWX Pty Ltd [2017]
  • Future outcomes of the independent review of the model Work Health and Safety (WHS) laws

Anna Creegan, Partner, Herbert Smith Freehills

2:30pm

Investigating bullying and harassment allegations

The #MeToo movement and high profile sexual misconduct allegations have elevated the profile of bullying and harassment in Australian workplaces. What HR policies and procedures will effectively prevent sexual harassment in the workplace?

  • Balancing pressure to ‘believe the women' with employee rights to procedural fairness
  • Step-by-step guide to investigating sexual harassment and bullying complaints
  • How to handle confidentiality requests from complainants during workplace investigations
  • Dealing with false accusations – what penalties should apply?
  • Can HR professionals conduct sexual harassment investigations in the absence of an official complaint?

Kylie Groves, Partner, Hall & Wilcox

3:15pm

Afternoon refreshment break

3:30pm

Industrial relations law and EBA negotiations masterclass

The rules governing collective bargaining have become more complex while the issues that employers are dealing with have become more varied. This session will equip you with information and strategies to negotiate and implement workplace agreements.

  • Enterprise Bargaining strategies and tactics compared
  • Recent developments in EBA regulation and procedures
  • When will a senior employee on a common law contract fall under the coverage of an award? Kaufman v Jones Lang LaSalle (Vic) Pty Ltd [2017]

Kathy Reid, Partner, MinterEllison

4:15pm

Shades of grey: When is a casual worker really permanent?

Casual workers who are employed for an extended period of time doing similar jobs to permanent employees can claim that they are permanent – how should employers minimise the risk of such claims from casual workers?

  • Impact of the FWC decision affecting the terms, conditions and entitlements of part-time and casual employees covered by 12 modern awards
  • When is a casual worker really a permanent employee? Apostolides v Mantina Earthmovers & Constructions Pty Ltd [2018]
  • Does casual work count as service when calculating redundancy payments? AMWU v Donau Pty Ltd [2016]
  • Overtime for casual employees in modern awards
  • What forms of rostering flexibility are casuals entitled to?
  • Do casual employees have access to unfair dismissal? Implications of Robert Smith v GPH Recruitment [2017]

Elizabeth Moran, Senior Associate, DLA Piper

5:00pm

Conference concludes

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Event Coordinator

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