Agenda

00:00

PLANNING & MANAGING EFFECTIVE WORKPLACE INVESTIGATIONS  

SYDNEY: 23 SEPTEMBER 
MELBOURNE: 25 SEPTEMBER 
ADELAIDE: 30 SEPTEMBER
BRISBANE: 2 OCTOBER
PERTH: 8 OCTOBER 

 
WORKSHOP AGENDA: 
 
Registration and welcome coffee: 8.20am 
Course duration: 9.00am – 5.00pm, including networking breaks 
 
PLANNING AND PREPARING FOR THE INVESTIGATION 
 
Procedural fairness and the statutory framework 
  • Procedural fairness, ensuring independence, transparency, and standards of proof 
  • An overview of the practical implications of key legislation (including for employment laws, privacy, and relevant workplace health and safety legislation) 
Preliminary issues to consider 
  • Factors influencing whether an investigation should be undertaken – assessing seriousness of allegations, complexities of complaints, and consequences of failing to investigate 
  • Assessing when a formal investigation is appropriate 
  • Determining other suitable legally acceptable avenues for conflict resolution 
  • Suspension 
  • Identifying an investigator – internal or external? 
  • Legal professional privilege 
  • Ascertaining the purpose and scope of the investigation 
  • Timeframes for investigations
THE INVESTIGATION PROCESS 
 
Conducting an effective investigation process 
  • Planning - the importance of not over complicating investigations 
  • What should the Terms of Reference cover and who should prepare them? 
  • Evidence gathering prior to interviews 
  • Deciding who to interview and in what order 
  • Designing an effective questions framework 
  • Setting expectations of people involved 
  • Complainant and witness anonymity 
  • Record keeping and confidentiality 
  • Investigative interview techniques and style – balancing sensitivity with the need to ensure robust investigation 
Managing difficult issues in investigations 
  • Conflicts of interest 
  • Sick/stress leave 
  • Requests for anonymity and silence 
  • Hearsay 
  • Parallel criminal investigation (Police reporting, the rights to silence and against self-incrimination) 
  • Information requests  
  • Managing difficult representatives 
  • Maintaining independence 
Case law review 
  • When investigations go right, and when they go wrong, and what we can learn from the outcomes 
FINALISING THE INVESTIGATION AND NEXT STEPS 
 
  • Evaluating the evidence 
  • Dealing with conflicting evidence 
  • Tips on how to make well-reasoned findings of fact, assessments of credibility and determining whether factual findings meet relevant definitions such as for bullying, sexual or racial harassment, or discrimination under legislative definitions, policies and/or case law 
  • What should and shouldn’t a report contain? Is it legally privileged? 
  • Producing a report that will withstand external scrutiny and challenge 
  • What information do you need to provide to the respondent, complainant, witnesses? 
  • Likely outcomes of the investigation process 
  • Q + A closing session – get the most out of the course and pre-submit questions 
This is a highly interactive workshop, which gets rave reviews from past delegates.  
 
A highly practical workbook plus tools and templates will be provided for use back in the office – designed by Q Workplace Solutions, authors of the book Workplace Investigations: Principles and Practice.  

| Sydney: 24 September |
| Melbourne: 26 September |
| Adelaide: 1 October |  
| Brisbane: 3 October | 
| Perth: 9 October 

08:20

09:00

09:15

Casual conversion clauses - Changes to casual and part-time entitlements: 
  • When is an employee entitled to casual conversion? 
  • What are the reasonable business grounds for not granting casual conversion requests 
  • Understand what information you need to provide employees about the casual conversion clause under their award 
Sham contracting and vulnerable workers: 
  • Avoiding misclassification or misrepresentation of an employment relationship as an independent contracting arrangement 
  • Ensuring compliance with the Vulnerable Workers Bill amendments 
  • Understanding key accessorial or vicarious liability risks for HR Managers under the Fair Work Act 
  • Reviewing recent case law testing the gig economy model 
  • Flexibility and special leave 
  • Flexible workplaces: Changes to modern awards; employer workplace law obligations for considering flexibility requests; and key OHS factors to keep in mind 
  • Domestic and family violence leave: Understanding entitlements and parameters for related leave and flexibility requests 

00:00

10:15

10:45

  • Common pitfalls and when liabilities related to terminations emerge  
  1. - Allowing for response by the employee 
  2. - During performance improvement/ performance management 
  3. - Terminations for reasons of absences: when an employer can terminate employment  
  • Strengthening your disciplinary and termination process 
  • Minimising exposure risks related to termination of fixed term and rolling contracts 
  • Recent case law and remedies review

11:25

  • Understanding the breadth of scope for general protections claims relating to actions, threats or perceived threats 
  • Reviewing the broad array of triggers for adverse actions claims 
  • The reverse onus of proof: understanding this unique aspect in law 
  • Understanding legal remedies and financial damages possible under adverse action/general protections claims 
  • Considerations for deciding whether to settle or challenge an Adverse actions/General Protections claim 
  • Recent case reviews

12:05

01:00

1. Managing the modern workplace.
 
Given the post Banking and Financial Services Royal Commission focus on corporate culture, the post Weinstein and #metoo movement era has undoubtedly heightened awareness regarding inappropriate sexual harassment in the workplace. Now the Royal Commission has called corporate Australia to account on a real need to examine our workplace cultures and the behaviours that they drive. The team at Clayton Utz are experts on the legal issues arising from these developments.
 
The same characteristics of culture that can drive inappropriate behaviours towards colleagues can detrimentally impact customers, suppliers and other stakeholders. We will unpack issues that can harbour and hide inappropriate conduct, while exploring ways that organisations can improve staff psychological safety to speak up, address the drivers of unacceptable workplace behaviours and minimise associated legal risks. 
 
2. Managing the modern workplace - organisational culture risks and behavioural drivers 
 
Organisational Culture
  • Identifying evolving HR and organisational risk exposures 
  • Addressing evolving expectations around corporate culture  
  • Post Banking Royal Commission: the changed standards for internal HR governance
  • Conduct expectations in policies - getting the right level of detail and how to communicate policies 
Managing difficult behaviour or misconduct 
  • Exploring ways to address drivers of behaviour 
  • Laying foundations with operational team managers on recognising risks, triaging or escalating matters  
  • Approaching challenging conversations about unacceptable or difficult behaviour

01:40

Sexual harassment: 
  • Not on your Watch! Identifying risks and red flags in your organisation, and risk management approaches you can adopt  
  • How behaviour is perceived versus a perpetrator’s ‘intentions’ 
Bullying: 
  • Understanding risks and common triggers for bullying complaints 
  • Incidences vs incidents: assessing if a bullying complaint should be treated as such 
  • When “reasonable management actions” are challenged in a bullying claim 
  • When the manager is bullied – how to act 
Policies, response and case law:  
  • Having good reporting and grievance management systems in place 
  • Assessing complaints, when you should investigate, and your duty to both parties 
  • What can happen if you ignore complaints, or don’t effectively deal with them – lessons from other employers 
  • Provisions, actions and a review of recent case law 

02:20

02:45

  • Walking through typical performance management processes and pathways 
  • Ensuring adequate performance improvement processes   
  • When should you halt a PIP? 
  • Minimising performance management or improvement process risks which could lead to claims of: Bullying or harassment; Mental health issues; Disadvantage; Unfair dismissal; or Constructive dismissal 
  • Investigating the consequences of poorly managed PIPs 
  • Case law reviews based to get processes right

03:25

  • Evaluating heightened organisational risks around workplace mental health issues 
  • Meeting increased expectations and obligations for mental health issues prevention as an employer 
  • Monitoring your workplace environment for mental health risks and triggers 
  • Assessing complexities around different circumstances 
  • Safeguards, controls for stress or anxiety, and your duty of care – measures you can introduce 
  • Devising pre-employment questions without crossing the line – assessing stress management and resilience levels of candidates 
  • Identifying legislations and regulatory bodies covering workplace mental health - Commonwealth and your home state (where you are attending this conference) 
  • Pointers for having conversations with employees about mental health concerns, and overcoming disclosure issues

04:05

  • Working with medical experts – what kind of advice do you need? What are your options for independent assessments?   
  • Timeframes – how long does the incapacity need to last before you can address it?  
  • Processes – what must you do; what should you do?  
  • Addressing common complexities for psychological injury claims cases 
  • Guidelines for tailoring return-to-work programs, and adjusting position requirements 
  • Understanding your employer obligations under the Fair Work Act 2009 
  • Identifying laws specific to your home state (where you are attending this conference) 
  • Recent case law reviews – reduce liabilities and improve outcomes

04:45

04:50

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