Employment Practice Liability - Preventative and defensive evidence building

1. 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 Canberra, ACT

2. Unfair dismissal Likely EPL risks Adverse action Unlawful termination Discrimination Bullying Negligence Workers compensation

3. Evidence is everything Proof

4. Prove real reasons Proof of real reasons?

5. Quality of evidence Cogent? Probative? Reliable? Admissible?

6. 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

7. Different plaintiff’s – different communication risks People popular saboteur Serially misunderstood serial complainant Much Maligned Malingerer Mentally unwell high performer

8. Evidence management

9. 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

10. Case example – Bendigo TAFE v Barclay [2012] HCA 32 From: Greg  Barclay  [mailto:gbarclay@britafe.vic.edu.au]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

11. 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

12. 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

13. Case examples • Cogent, reliable, forthright decision maker witness evidence • Don’t forget possible physical evidence • Documentary evidence that is well reasoned, reasonable and contemporaneous

14. Dispute resolution options Notsuitable? Exercise caution! Go

15. Questions?

16. Darren Gardner | Partner Maddocks Direct 61 2 9291 6103 darren.gardner@maddocks.com.au