Comcover Legal Services Information Forum Series
23 October 2013
Presented by Darren Gardner, Partner | Maddocks
Introduction
Employer disciplinary, dismissal and reasonable employee management decisions are now, more
than ever, open to a myriad of claim possibilities, including:

general protection or adverse action claims

unlawful discrimination or harassment claims

unfair dismissal claims

bullying claims

alleged breach of express or implied employer duties.
Darren Gardner, Partner, Maddocks, will share his 20 plus years' experience in EEO, WHS,
employment and industrial law, and provide recent case examples to suggest some proven strategic
pathways to protect against liability arising from common challenges to reasonable management of
the employment relationship.
Darren will explore:

preventative and defensive evidence building

risk managing discoverable document requests

appropriate model litigant approaches to jurisdiction or time defective claims.
Preventative and defensive evidence building
When faced with defending litigious matters in court, the decision maker will almost always be across
the law. Where you, as employers, have the advantage, is in the presentation of the facts and having
good evidence to support those facts.
Working with your lawyers, defending a matter will often come down to the strength of your evidence
to justify the actions you take, and to demonstrate that there was a lawful basis for taking those
actions.
Having strong evidence that you can use to comprehensively defend a matter out of the courts
involves taking steps long before a matter becomes a dispute. We like to think of this as preventative
and defensive evidence building.
We will explore the key questions for preventative evidence building, such as, is available evidence:
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
cogent?

reliable?

admissible in court?
Different plaintiffs will build different evidentiary cases. Each different 'type' of plaintiff will be looked at.
For example, the 'seriously misunderstood serial complainant's' case will be very different to the 'much
maligned malingerer'.
Discoverable documents – managing risks
While it is important to have documented reasons for taking actions, it is also critical to be careful
about what you create.
Don’t feel like you have to respond to an email immediately in circumstances where you consider
there is a risk that the issue may escalate.
Considering EPL in the context of a best practice, risk management framework may be a helpful tool
to reduce the risk of a claim being made. Some key considerations that will be explored include:

due diligence to eliminate, limit or control risks

preventative training awareness and education

monitoring and improvement processes

building positive and trusted working relationships.
Appropriate approaches to jurisdiction or time defective claims
We will also explore the options for engaging in alternative dispute resolution.
Faced with your plaintiff type, their representation (if any), the scope of the claim, and what other
options are available to a department or agency faced with an employment claim made against it.
We will consider options against the backdrop of model litigant obligations, legal services directions
and the public service law.
Darren Gardner | Partner
Maddocks
Direct 61 2 9291 6103
Email darren.gardner@maddocks.com.au
Angel Place | 123 Pitt Street | Sydney NSW 2000
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