LawSense School Employment Law – NSW State Schools

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Program

12.00    LawSense Welcome

12.05    Chairperson’s Introduction

Dr Joanne Bellette, Principal, Corowa High School; SPC Reference Group Leader, Staffing/HR

12.10    Staff Psychosocial Hazards Update: Examining the Impacts of Legislative Change on Your Rights, Obligations and Management

Changes in the Law and Interaction with Other Laws

• Outlining the recent changes to WHS legislation affecting schools including:
  • examining definitions or psychosocial hazard and how this can include bullying, sexual harassment, and other behaviours
  • outlining how it applies to staff, students and others interacting with the school
  • understanding obligations to identify reasonably foreseeable psychosocial hazards that could give rise to health and safety risks
  • examining interactions with other laws, including laws regarding, toxic staff, bullying and sexual harassment – what has changed in responding to these issues?

Response of Regulators to Date of New Laws

• Understanding the role of WorkSafe in investigating and enforcing schools’ requirements regarding psycho-social hazards
• Examining recent action by regulators regarding schools and psycho-social hazards

Managing Impacts on Schools

• Understanding what claims staff, students or parents can make against you using the new laws
• Identifying psycho-social hazards relevant to your school circumstances and environment
• Meeting you obligation to introduce, maintain and review control measures to eliminate (or minimise) psychosocial risks to health and safety.
• Updating policies to meet your obligations and expectations regarding psycho-social hazards

John Makris, Partner, Kingston Reid

1.10      Break

1.25      Dealing with Toxic Staff Behaviour and Understanding Your Obligations and Options in Responding to “Lower Level” Issues

Defining ‘Toxic’ Behaviour

• Identifying “toxic” staff behaviour:

• • “anti-social” behaviours, “rudeness”, ongoing criticism of the school, school leaders or other staff, undermining, rumours, gossip
  • continued or repeated instances of minor or ‘borderline’ non-compliance, including lateness / absenteeism, not carrying out administrative tasks

New Laws and Impacts on Toxic Staff Management

• Examining the relevance to managing toxic staff of:
  • new laws regarding psychosocial hazards
  • the right to disconnect

Staff Claims, Including Staff ‘Weaponising’ New Laws

• Staff responding to informal or formal performance management or disciplinary processes from toxic behaviour:
  • understanding how staff can ‘weaponise’ recent law changes in response to performance management or disciplinary action
  • outlining potential discrimination claims, bullying, harassment, workover claims

Navigating Action Against Toxic Staff in the Current Environment

• Exploring how toxic behaviours can meet the threshold at which you can have lawful performance management, disciplinary action or dismissal – learning from case studies and examples

• Understanding what level of evidence is required to justify action – what ‘proof’ do you require?
• Investigations and terminations – ensuring your process effectively manages obligations regarding psychosocial and mental health of staff to ensure your action is defensible

Note-Taking and Record Keeping to Protect Your Legal Position

• Optimising your note-taking and record keeping with toxic staff to protect your legal position

Tim McDonald, Principal, McCabes Lawyers

2.25      Break

2.40      Ill and Injured Staff: Determining Work Versus Non-Work Injury and Navigating Medical Assessments and Return to Work

Navigating the Grey Areas of Determining Work Versus Non-Work Injury

• Outlining the current legal framework and relevant DoE policies applying to work versus non-work injuries
• Examining the grey areas of what are work versus non-work injuries – exploring:
  • circumstances where there is a dispute about whether an injury is work or non-work related
  • scenarios where an original work injury changes or “expands” to arguably include non-work-related conditions
• Understanding what information, you are able to request to clarify grey areas or disputes

Acceptable Medical Evidence and Effective IME’s

• Dealing with medical certificates and reports – understanding when you can challenge or clarify medical evidence
• Optimising questions to ask the staff member’s medical practitioner to verify or clarify the condition
• Obtaining independent medical reports or evidence – when this can be done and how to brief the expert

Challenges With Return to Work and Reasonable Adjustments

• Understanding obligations regarding reasonable adjustments and return to work with work and non-work related injuries
• Understanding rights and obligations with chronic or age-related illness or injury
• Exploring the limits – at what point does an adjustment become unreasonable under the current law
• Learning from case studies and exploring adjustments, including rights and obligations regarding:
  • absence/time off, including when you consider taking action where there has been extended absence after a non-work injury
  • alternative duties or requests for particular classes
  • changes in timetable or workload
  • flexible work/ work from home arrangements
  • changes to the physical environment, furniture or devices where physical injury or disability is involved

Julie Kneebone, Partner, Workplace, Sparke Helmore Lawyers; Felicity Edwards, Partner, Workplace, Sparke Helmore Lawyers

3.40      Chairperson’s Conclusion

3.45      Event Close

Presenters / panelists include:

	With over 20 years’ experience working in regulatory workplace health and safety, environmental and heavy vehicle compliance, dealing with regulators, and providing advice and representation on numerous issues, John Makris is regarded as a notable senior leader in the industry. John expertly guides clients through the uncertainty and complexity of dealing with workplace incidents, including police and regulator investigations, prosecutions and coronial proceedings.
	Tim McDonald practises in employment and industrial law, work health and safety, discrimination, bullying and harassment, management of injured workers and termination of employment. Over the last 20 years, Tim has advised and represented private and public sector employers, including schools and higher education.
	Partner, Julie Kneebone, helps employers to implement time-critical, practical solutions to address their workplace issues. She has seen matters through to state and federal courts and commissions. Julie draws on her legal and industry knowledge to advise and represent employers in all areas of employment law, including legislative and award/agreement compliance, terminations, workplace investigations, bullying and harassment, industrial disputes, performance management, discrimination and breach of contract matters.
	Felicity Edwards is a workplace lawyer who assists clients in the private and public sector with privacy and employment related issues. She has seen matters through to state and federal courts and tribunals including unfair dismissals, general protections claims, contractual disputes and anti-discrimination claims. She assists employers with any employment related issues that may arise in the workplace. These include discrimination, performance and disciplinary matters, workplace investigations and terminations as well as managing injured workers.

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