LawSense School Employment Law – Ill & Injured, Toxic Staff, Drafting Allegations, Contracts

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Program

12.00    LawSense Welcome

12.05    Chairperson’s Remarks

Belinda Reid, Head of Human Resources, Trinity Grammar School, Sydney

12.10    Ill and Injured Staff: Navigating the Grey Areas of Work Versus Non-Work Injury and Managing Terminations

• Outlining the current legal framework 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
• Navigating rights, obligations and pitfalls in termination of ill and injured staff, including terminating after a period of absence 

Amy Walsh, Special Counsel, MinterElllison

1.10      Break

1.20      Dealing With “Toxic” and Underperforming Staff in the New World of Psychosocial Hazards Laws, Right to Disconnect and Regulation

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 instances of minor or ‘borderline’ non-compliance, including lateness / absenteeism, not carrying out administrative tasks

New Laws and Impacts on Underperforming or Toxic Staff Management

• Outlining recent reforms and relevance to toxic and/or underperforming staff:
  • new laws regarding psychosocial hazards
  • right to disconnect

Staff Claims, Including Staff “Weaponising” New Laws

• Staff responding to formal or informal performance management or disciplinary processes:
  • understanding how staff can “weaponise” recent law changes in response to performance management or disciplinary action
  • outlining potential discrimination claims, bullying, harassment, other claims and complaints to safety regulators

Navigating and Terminating Toxic or Underperforming 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

Ben Tallboys, Principal, Russell Kennedy Lawyers; Legal Counsel, Association of Heads of Independent Schools of Australia (AHISA)

2.20      Break

Chairperson’s Remarks

Alison Binet, Deputy Head People & Culture, Barker College

2.30      Investigations and Action Against Staff: Ensuring Proper Framing and Disclosure of Allegations to the Staff Member and Managing Privacy and Evidence

• Understanding school procedural fairness and privacy obligations where a staff member is being investigated or disciplined
• Drafting/framing allegations against staff – properly drafting allegations regarding the staff member being investigated or disciplined:
  • what extent and level of evidence should be obtained and considered and what should the allegations include
  • ensuring that the allegations you communicate to the staff member meet your procedural fairness obligations
  • learning from examples
• Disclosure of allegations and evidence:
  • ensuring legally defensible disclosure of allegations, evidence and decisions to the staff member
  • examining if or to what extent you can disclose allegations, evidence or decisions to other staff members, parents or school community
• Learning from case studies – where have schools come unstuck? 

Tim Longwill, Partner, McCullough Robertson Lawyers

3.20      Break

3.30      Impacts of Recent Reforms – Navigating Challenges with Fixed Term Contracts Under the New Fair Work Legislation

With many reforms now implemented, schools are experiencing issues and impacts in practice from the changes. This session examines some grey areas, challenges and options for schools in complying with the reforms regarding fixed term contracts

• Outlining the changes regarding fixed term contracts, including requirements after two years of temporary arrangements
• Effectively managing challenges and optimising contracts, including:
  • where consecutive contracts are for different roles
  • contracts for additional responsibilities or allowances
  • contracts covering other positions including for maternity leave
  • staff with multiple contracts, including a permanent contract with a fixed term for additional work/responsibility with monetary allowance or time release

David Scanlan, Director, People & Culture, St Hilda’s Anglican School for Girls; Practicing Lawyer

4.20      Closing Remarks from the Chair

4.25      Event Close

Presenters / panelists include:

	Belinda Reid is the Head of Human Resources at Trinity Grammar School, Sydney. Belinda is passionate about staff wellbeing, performance management, reducing psychosocial injury and improving wellbeing through adapting workplace policies and practices to meet the emerging needs of staff.
	Ben Tallboys provides sector-specific, practical legal solutions to schools across Australia. Ben is a passionate and effective advocate for principals dealing with complex matters relating to parents, staff and students, as well as their own employment.
	Alison Binet is the Deputy Head People & Culture at Barker College, an Anglican Independent School in Sydney. Barker College’s main campus is in Hornsby, with three indigenous campuses in NSW and NT. Alison has a strong background in the Education Sector, having been with Barker College since 2018 and previously with Catholic Schools, Diocese of Broken Bay for 14 years.
	Tim Longwill is a legal practitioner of over 20 years experience. He is a specialist industrial lawyer with significant exposure to the education sector. Tim was also recently named for the third year in a row as being among ‘Australia’s Best Lawyers’ by the Financial Review.
	Prior to joining St Hilda’s, David Scanlan worked as Special Counsel at Bartlett Workplace Lawyers and Consultants, heading up its Perth office. He has broad commercial legal experience, primarily in industrial relations, general employment, occupational health and safety, privacy, matters relating to discrimination, harassment and bullying in the workplace and various other commercial areas.

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