The following are my prepared opening remarks to the Thomson Reuters Workforce Conference, 2013, held today. I was part of a two-person panel about how to handle workers’ claims, and the role of the media in trials and actions. My presentation was a shorter version of these remarks.
The Australian Financial Review has reported the session, here.
There are many types of claims that workers can make against their employer and against managers and supervisors personally. This conference has had an update, today, on discrimination law. As well as discrimination claims, unfair dismissals and adverse action claims are among the most discussed claims that workers can make under industrial relations law. We have been asked to talk about those types of claims.
I have a journalism degree obtained long ago, but that doesn’t make me a media professional, any more than a law degree is enough, by itself, to make someone a lawyer. I have a lay person’s interest in the media generally, and I also have a lawyer’s interest in how media coverage can affect trials an actions. That is the third topic that Anthony McClellan and I have been asked to talk about, today.
We hope to run a conversational session, so we will each make opening remarks, but will then try to make the balance of our time as interactive as possible. I want to start with unfair dismissal.
Unfair dismissal is a highly political issue and gets a lot of attention in debates about industrial relations laws. At its heart, the unfair dismissal framework is nothing more than a statutory obligation to give people a fair go before sacking them. From a moral perspective, that should not be controversial; employees are not widgets and there is a moral dimension to engaging workers and profiting from their labour. That is a special relationship that does, and rightly ought to, give rise to obligations. Sacking can have a catastrophic effect on someone’s career, so it should be something that cannot be done too lightly.
For that reason, my first tip in handling these claims is: prevention is better than cure.
The best way to ‘handle’ unfair dismissal claims is to try to avoid them all together, by giving the worker a fair go. Obviously, that’s not foolproof and there will always be differences of opinion, in terminations, about what is fair, harsh, unjust, or unreasonable. But giving a fair go may help reduce claims, if only because responsible representatives will advise the worker not to proceed. Giving a fair go means giving real procedural fairness in cases about conduct or performance, not just paying lip service to it by going through the motions after you’ve already decided on the outcome. And in cases of capacity, that means considering the medical opinions, not disregarding those that you disagree with (particularly if you are not medically qualified).
It also means thinking carefully about withholding payment in lieu of notice in situations that might amount to serious misconduct. If you’re wrong about the serious misconduct, then withholding the payment in lieu can make an otherwise fair dismissal unfair. That can cost you more than the few weeks’ pay you are withholding. (Not to mention other possible ramifications, like potentially allowing an employee to avoid a contractual restraint clause.)
It is sometimes tempting to think you’ll be able to avoid having to be fair, by exhausting the former employee’s ability to pursue the claim. That’s why my next tip is: don’t assume that deeper pockets are all it takes to defeat the worker.
The worker might have support of which you are not aware. They might have union representation, or pro bono legal representation. They might be prepared to go to an arbitration, self-represented. Or they might be the type of litigant for whom it is “the principle”. The approach of trying to exhaust their resources is not a great one, and just leaves you with a bitter ex employee looking for other ways to cause you difficulty. It is highly preferable to maintain strategic optimism about any unfair dismissal claim, and go into it intending to settle and to stem any negative comments, from the employee, about your business. After all, you never know where they’ll end up.
That type of approach – of intending to resolve – requires you to be proactive. My next tip is: bypass FWA if appropriate.
Obviously, I don’t mean that you should ignore FWA, or that an employee should fail to file an unfair dismissal claim within time. But I find the telephone conciliation process sub-optimal. No body language, no eye balling, no corridor discussions. Impersonal, dehumanising telephone conferences that don’t let workers feel like they’ve had their day in court, and don’t put them in a frame of mind where they might have had some closure and thus be more inclined to resolve their claim.
FWA is extremely reluctant to allow in person conferences so if geography permits, consider getting on the phone and arranging a private meeting in advance of the conciliation. At least consider a private teleconference where initial issues can be ventilated, so that when you get to the 90 minute conciliation time can be spent more constructively.
My final suggestion would be to try to take your own emotion, as the manager, out of the equation. Difficulties arise when the employer and (recently departed) employee have a different view about whether there had been a “fair go all ‘round”. My experience in handling unfair dismissal claims tells me that, as with most negotiations, once the employee feels they’ve had their say, the best approach is not to descend too far into who has, or has not, got a fair go, but instead to consider both parties’ interests, stated and unstated, and try to meet them.
We all spend large amounts of our time at work. Dismissal will be emotional for everyone, the manager included. Work, and by extension important decisions made at work, is part of our identity. That’s why it is so easy for a manager to be offended by a worker’s unfair dismissal claim, particularly if they feel they have tried hard to give the worker a fair go. The natural and understandable response is to get into the rights and wrongs, to defend your own actions and seek some validation.
That may not be the most commercial and pragmatic approach and therefore won’t best serve your business. It’s better to involve a decision-maker who was not involved in the dismissal, who has sufficent authority to handle the case, and who will have the manager’s back, but will also know when to hold ‘em, and when to fold ‘em.
A lot of my comments also apply to adverse action claims.
On the issue of preventing claims, I would add the importance of having insight into your own decision-making. Think about your reasons for dismissing or disciplining. Is part of the reason because the person is a troublemaker? If so, think about the underlying facts that are giving you that impression. “Troublemaker” can be code for an employee who has made complaints, which should be a red flag for a possible adverse action claim. Although the High Court in Barclay did not favour the test of looking at unconscious motivation, it remains open to applicant lawyers to try to make a circumstantial case to contradict the direct evidence of decision makers. After the Federal Court decision in Pilbara Iron, the scope of what constitutes a complaint or inquiry in relation to the worker’s employment is broad. If the worker has made complaints or inquiries shortly before being disciplined or dismissed, their lawyer will consider an adverse action claim.
Part of that consideration will be about whether to seek an injunction. In that case it can be in both parties’ interests to consider an undertaking instead. In adverse action and discrimination claims, workers have obtained undertakings to prevent their own dismissal or to prevent roster changes. Undertakings have the advantage of being negotiated outcomes, rather than court imposed outcomes. Get on the front foot and engage with the worker’s representative.
And because the worker will be gathering evidence to build a circumstantial case, you need to do so too. The Barclay case does not mean you can just have your decision-maker swear an affidavit as to their reasons and then consider that your work is done. The worker’s lawyer will be looking for objective evidence to contradict that decision-maker’s assertions, so, of course, you should be too, including through the use of subpoenas if appropriate.
Subpoenas were used against a third party journalist in the Slipper case, attracting a substantial amount of media attention. Media attention, generally, is a consideration in handling workers’ claims.
Some law firms will have media professionals on staff, and some workers will seek to retain media management services through a separate contractor. Those professionals will help to manage unwanted public attention, or help to drive wanted public attention.
Maurice Blackburn runs cases in industrial relations and employment law, class actions, medical negligence claims, and personal injury claims, among others. The media knows that Maurice Blackburn’s cases can be of enormous public curiosity, and can also be of significant public interest. The former, because these cases can involve sensational issues, scandal, sex or tragedy. The latter, because they can affect workers’ rights, consumer rights, and social justice issues.
A lot of our clients have been horribly wronged. For example, a young woman who has been sexually preyed upon by a much older man can feel that she wants to tell her story, so that she can warn others, or so that she can show it is OK to speak out when it happens. Our clients tend to be active users of social media and often want to talk for similar reasons, but don’t know the rules of engagement with journalists. We feel we have an obligation to help them understand the risks and obligations of that. They often have psychological injuries and we need to help them every step of the way, or, as I have done and my firm often does, dissuade them from going public, or at least give them a clear picture of the possible consequences once the genie is out of the bottle.
In many cases, our media management is about helping the client decide what they can and can’t say, or negotiating to attempt to keep their identities out of the public eye. It can also involve making clear to the client that media exposure can back fire. A sexually-harassed woman can sometimes find herself on the wrong end of victim-blaming.
It’s a responsibility we take seriously as a matter of care for our clients, and because we don’t want to damage their legal claim.
We deplore turning litigation into a media circus, but, at the same time, when appropriate we help clients to talk in a way that means their story gets told but does not damage their claim or stress them too much. Telling the story can sometimes help make a client who has suffered an injustice. In a word overburdened with information, if we don’t give clients a voice, their sense of powerlessness can be made even worse.
Like all organisations we want to make sure publicity benefits our firm and its people, but as a matter of our professional ethics, and because we care for our clients, their needs come first.
From a legal perspective media attention can help draw out witnesses or additional applicants. When the facts of a case become known, people who have suffered similar behaviour from the same person or company can get in touch with us. Their stories may or may not be admissable evidence, and can also provide us with background information giving us clues about questions to ask or documents to look for.
Media exposure could possibly provide a commercial imperative for settlement. There are usually substantial power imbalances in workers’ claims, because the business usually has much deeper pockets. Media exposure can assist to redress that power imbalance.
Publicity can also help a worker fund their claim. I had a client who made a youtube clip about her case, which attracted funding from a private individual. The same enterprising client also sought a paid interview from a current affairs show. She was able to fund legal assistance and ultimately won her claim against a very powerful opponent.
There are risks, as well.
There’s an obvious risk of a client saying something to a journalist that is inconsistent with that client’s evidence in their case.
There’s the type of risk I’ve referred to above, where the client gets personally burnt by an unsympathetic story.
The flip-side of the possible commercial benefit of doing media, is the loss of confidentiality as a bargaining chip. Usually, both parties would benefit from confidentiality, which is why it is often a term of settlement agreements. Once the client tells their story publicly, a confidentiality agreement is of little value to their employer.
There’s a risk that the client will damage their employability. That is, they get a reputation as someone who has sued a former employer. It may not matter, to a prospective employer, that their claim had substantial merit, or that it may be unlawful to refuse to hire them because they had sued a former employer. It is easy to imagine a prospective employer finding some other ostensible reason not to employ someone who has sued their last employer. However, this is just one factor to be taken into account across the various considerations about whether to do publicity about a case. And, of course, sometimes there is no choice, because someone has got the story and is running with it.
I will welcome questions after my co-panellist has made his opening remarks.
Disclaimer and acknowledgement: This is not legal advice. You should seek advice as to your particular circumstances before relying on any information in this post. I am the principal author of this post, and it includes additional material from Amanda Tattam, whose assistance I gratefully acknowledge.