Project Description

Litigation Stress – with Ian Meagher and Pauline Hugler

Today on the HR Breakfast Club podcast we’re looking at litigation stress, a regrettable, but sometimes unavoidable, part of the HR manager’s job. We look at what happens when your decision is challenged in a court, in a tribunal, or if you need to appear. What do you need to know, and what can you expect once you get there.

To explore the topic in detail, our host Genevieve Jacobs sits down with Pauline Hugler, the executive manager of people and culture for Goodwin Aged Care. They are also joined by Ian Meagher, who’s the litigation director at Bradley Allen Love.

For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!

Some topics we cover:

  • The most common issues in the workplace that lead to litigation
  • How to prepare for legal proceedings – common steps to take
  • Resolving the dispute through the mediation process
  • When is litigation necessary, and when is it best avoided
  • The role of the HR manager throughout litigation proceedings
  • Communication is key to preventing legal issues arising

Genevieve Jacobs: This is the HR Breakfast Club Podcast. My name is Genevieve Jacobs, and our focus in this series is the world of work in Australia with a legal spin. We work our way through a variety of HR issues you might be dealing with within the workplace, and give you some important information about how to manage them. Perhaps, some new perspectives on where to go from here. Our website is hrbreakfastclub.com.au. If you would like to make contact with some questions, we can respond to those, too.

This time around, we’re looking at litigation stress, a regrettable, but sometimes unavoidable, part of the HR manager’s job. What happens when your decision is challenged in a court, in a tribunal, or if you need to appear? What do you need to know, and what can you expect once you get there.

Things haven’t gone well. A decision has been made by an HR manager, and the employee in question is not happy at all about how it’s worked out. That can be tough-going, but it’s also pretty likely to happen to you if you’re an HR manager. Today, what can you expect, and how can you manage the situation? With me, is Pauline Hugler, who’s the executive manager of people and culture for Goodwin Aged Care. With her, Ian Meagher, who’s the litigation director at Bradley Allen Love. Hello to you both.

Pauline, I want to start with you. Litigation stress– I wonder if we can call it that. It’s an unpleasant, but often fairly unavoidable outcome of the HR manager’s role. Under what circumstances might an HR decision be challenged?

Pauline: Well, from my experience, the challenges generally come from an unfair dismissal claim, based around there not being a valid reason for that determination, whether that’s around capacity, performance, misconduct, or potentially, a redundancy. Other challenges that you may face as an HR manager is through a claim for discrimination, a breach of contract, or potentially, another protected right. They’re the things that I’ve seen commonly through my role as an HR manager, where I have been challenged from time to time.

Genevieve: Ian Meagher, let me go to you. The most common causes for people ending up in the legal system, as a result of something that happens at work– As Pauline has just mentioned, I imagine it’s often possibly injury, wrongful dismissal. There is a fairly standard set of reasons why people end up going down the legal path.

Ian: Yes, that’s right. Really, it’s just a continuation of what Pauline spoke to unfair dismissal, discrimination in the workplace. There might be a loss of entitlements, whether that be by not meeting the contractual obligations for pay, or not meeting what the requirements might be under a one-award system. Those, more commonly, are dealt with in the Fair Work Commission or in the Federal courts. Then, in the State-based courts, we deal with instances of personal injury and workers’ confrontation.

Genevieve: Pauline, really, you would prefer not to end up in any kind of legal situation at all, ideally. How would you reach this stage where the matter is in a court or a tribunal? Would it be because other negotiations have failed?

Pauline: Yes, you generally find – as Ian said – that you’ll go through, potentially, the Fair Work Commission or through Human Rights Commission, and you’ll go through a mediation and conciliation process. You’re coached through that process. The Fair Work is very good at providing documentation about what the expectations are of you, as the HR manager or the employer representative.

There is a lot of paperwork that you need to fill out in preparation, as part of your solution. I recommend that you spend a lot of time doing fact-finding, your investigations, and making sure that you’re very clear in your submission. Then, the mediation process generally goes through over the phone, so you’re not in a courtroom. You’re on the phone, the ex-employee is on the phone, and the mediator is on the phone.

It’s a very relaxed environment to go through that mediation process. To the extent that one of the ex-employee would be put on hold, you would also then talk to the representative from the commission with regards to, not advice, but in terms of the path and consequences that could go, if it wasn’t mediated.

Genevieve: Everyone prefers not to go to court. My grandmother used to say, “He who wins at law, loses.” What does determine whether the matter is resolved via mediation or ends up in court before a tribunal in a legal sense? Really, it’s just the final stage, yes?

Ian: That’s right, it all depends a little bit on the matter, of course. If you’re dealing with an unfair dismissal case or a case which is against the employers directly, in the sense that it’s a personal case between the business and the employee as to what their entitlements are, contractually or otherwise, then the commission is actually pretty good at getting the parties in and discussing through those grievances.

Once you get into the realms of personal injury or workers’ compensation where an insurer might be involved, it’s a little bit different, in that reaching a quick resolution– By quick, I mean within a few weeks, which is what the commission sometime looks to do. It’s a lot harder to achieve because it gets taken out of the hands of the day-to-day employers, and you’re dealing with some insurance company, not necessarily even in Australia, and just time becomes a factor. That all adds to litigation and stress and fatigue.

Genevieve: Ideally, we’d like to settle at mediation, because it’s a lot easier on everyone if we go to that point. Do you have any tips on settling at mediation, how to ensure that matters are solved at that relatively simpler stage?

Ian: Yes, sure. Again, every case is different. One thing to walk into a mediation being mindful of is it’s your opportunity to settle the case on terms that you’ll be happy with before a court, judge, magistrate, Fair Work Commission member takes that out of your hands. You can settle it at mediation in ways which the court, tribunal commission, et cetera, simply doesn’t have the power to, without going into the specifics of different courses of action.

Sometimes, employees just go in wanting an acknowledgment that they’ve been done wrong, and courts don’t necessarily operate in that way. They’re looking at it from a compensation point of view. You can be creative in a mediation. You’re not limited to seeking the relief, which you’ll end up getting if you end up in a final hearing. Sometimes, that’s the way that you can resolve it.

Genevieve: Pauline, just from your perspective as an HR manager, if you’re in mediation, what can make that more or less stressful? How do you deal with the perspective of having to be in mediation knowing that that’s a better outcome than ending up in the courts? What are your tips?

Pauline: I think you need to look at it from a risk perspective. There are those that you may potentially hold your ground and go, “No, we will take it to litigation,” because you’ve got a very strong case, and you believe that you will win that case. There are other elements where you also believe that you would win, but there is a potential risk of being on the front page of a local newspaper.

That has other risks to your business from a reputational perspective that it’s more disclosed when it gets to that level, rather than settling it through mediation. I think you need to take those things into play, not just the facts that you’ve got lined up in your submission. You need to weigh that into it as well. I think you need to look, at not just the issue that’s at hand, but how have you dealt with other employees in the past, because if that gets thrown in when you go to a litigation situation– “Well, you didn’t treat that person that way, but you’ve treated this person this way.”

You need to look at all of those things when you’re pulling together your information, and potentially, if going to litigation, talk to people, such as BAL and their team here, to get some advice of, do you go to litigation or not? What would the cost of that be?

Genevieve: It’s an interesting perspective because, in essence, you’re saying, don’t necessarily be really stressed about avoiding litigation. Sometimes, that would be the way to make the right call and initial the right outcomes. You’re with me, Genevieve Jacobs. We are on the HR Breakfast Club Podcast, and my guests are Pauline Hugler, who’s an HR manager from Goodwin, and Ian Meagher, who’s the litigation director at Bradley Allen Love.

We’re talking about litigation stress, which is not pleasant for anyone, but one of those inevitabilities about dealing with ordinary human beings. Ian, why would the HR manager be playing a role? Hopefully, they’re simply carrying out their duties to the best of their ability. What’s likely to land them in front of a tribunal or in front of a court?

Ian: HR managers have a tough job. Employees have varying rights and obligations and positions in the workplace, and everyone is different. Where I am going to with all this is that the HR manager has got a lot of balls up in the air, and it isn’t necessarily through any intentional wrongdoing that matters end up before the tribunal or a commission. It can be simply inadvertence. In fact, more often than not, that’s the case.

Claimants cut off and go to the commission or the court’s feeling that they’ve been wronged, seeking justice. Through the conciliation process, the human element to it comes out, and you can actually see that some wrong may have been done here. It’s not necessarily through intentional deceit.

Genevieve: I think, obviously, there are a couple of roles that the HR manager can play. Perhaps, they are a witness, but perhaps, they are also there in order to support their counsel to provide advice. There’s a number of reasons why the HR manager might be in court, not necessarily directly connected to it being their fault, as such.

Ian: That’s entirely right in the context of a workplace injury, for example. The HR manager might be responsible for tending to the employee’s welfare after the incidence occurred. The overall matrix of the workplace needs to be looked at as well. The HR manager might be the person that’s, I guess, on display through the commission process. That’s not necessarily to say that they were the key players in what is in dispute.

Genevieve: Pauline, let’s say that stage has been reached, informal negotiations have failed, the tribunal or a courtroom beckons you, maybe a witness representative for your organisation, maybe you’re instructing your firm’s legal representation, how should you be preparing yourself for that?

Pauline: I think you need to have your documentation all in order. For your organisation to put its best foot forward and in partnership with your litigator, have documentation, and that may include going right back through the induction process – were they inducted – their probation period, their interview notes, their CV, through to what was the actual issue for termination. If it was performance management, how do you follow procedural fairness in that performance management process? Be able to demonstrate that.

Your representative has all of that information in front of them. It’s in chronological order and then look at it from a gaps perspective. Where do you have gaps? Are there any risks in that? Do you need to find further information to help fill those gaps or own up? We don’t have a solution to that. What’s your strategy? Think about the potential scenarios that you might be asked of, and that you can be then prepared for those scenarios. Those role-plays, perhaps, beforehand that gets you prepared to be there on the day.

Ian: I agree with everything Pauline’s just said. The key part of that is human memory is far from perfect, and, frankly, reliable in most cases. With the documentary evidence that you can piece together, you can work out when certain events occurred, and then you know what each respective witness will need or should be saying. You can piece together the tapestry in that way.

If you’re doing it the other way around, where you’re just going purely off your client’s instructions, or if you’re a self-represented litigant just going off the emotion, you’re much more likely to get flustered. You’re putting yourself in a position where your evidence is either going to be accepted or it’s not. Whereas, a contemporaneous document is very difficult to refute.

Genevieve: Take notes. Take notes and have your documents all signed. which is really solid advice, because my next question, Pauline, is how you actually prepare yourself emotionally for this, because this is all very well, but you go in to the tribunal, and your heart is thumping, no matter how professional and experienced you are, and no matter what your certainty is about the rightness or otherwise of the case. What about preparing yourself emotionally to face up to this?

Pauline: I think you’ve got to consider it that, emotionally, the outcome is the outcome. The ex-employee has a dispute, and he is seeking a resolution. You’re there as a representative of the organisation. I think you’ve got to take the personal aspect out of it. As Ian said before, the HR manager, it’s not that they have done the wrongdoing. That’s where you’ve got to remove that emotional element of, “I’m acting in the best interest of the organisation and as an HR professional. I think you’ve got to learn from these experiences that if you do end up there, what is it that will you do differently next time to avoid being in that position.

Genevieve: The thing about courts is that they’re designed to be somewhat intimidating places. [laughs] That’s the whole purpose of them because we all need to be aware of the weight of the law and its importance in our lives. What expectations does the legal system have of someone who’s appearing in front of a tribunal or a court as a representative for their employer? What should they be bearing in mind about preparation, presentation responsibilities?

Ian: I think as long as anyone presenting for the court or commission comes with a level of respect that the presiding officer can see, then they’ll be well placed. If the judge or commission member can see that you’re well prepared, that will give them confidence in the submissions that you are making, that they are well thought through and not just off the cuff comments.

If you’re underprepared and heard everything Pauline said a moment ago about having your documents all lined up, then they will say that this is an argument that has actually been considered. It’s been tested, even if by the person putting it to them, which, obviously, has an element of bias to it. Nevertheless, it has some logic to it.

Genevieve: Common pitfalls, errors that people make when they find themselves in their situations in court?

Ian: Not preparing is number one. Not showing courtesy is one that is really important. Judges or commission member, they are faced with confrontation on a daily basis. What they are really good at is diffusing that element and just imposing courtesy amongst everyone in the room. We’re here to take each side of the argument. We’re going to respect each party as that comes out. If you show that respect, that respect will come back to you.

Genevieve: Are we actually seeing an increase in employee lawsuits, or maybe changing the reason why people engage with the legal system? It seems as if there is, perhaps, more willingness for people to go to that final step.

Ian: From our perspective, I think the answer to that question, unfortunately, is yes. That’s something which the Fair Work Commission is dealing with in certain ways. They have a really good success rate through their conciliation process. With an unfair dismissal application, for instance, generally, the first thing that will happen is that the Commission will call the parties in to attend a teleconference. I haven’t checked the statistics prior to this interview, but last I checked, their success rate was about 80%. That percentage only improves as the matter draws closer to a hearing. The old adage that 90% of cases settle is probably still accurate.

Genevieve: Pauline, just finally, prevention is always the best medicine. What advice would you give to the HR manager who can see that a dispute seems to be heading in this direction, that people are simply not satisfied with the resolution attempts in the workplace? What’s your advice?

Pauline: Whilst the employee is still in the workplace before it leads to a termination, is communication and making sure that you follow fairness, giving them the opportunity to respond. If you’re leading to a termination, don’t make the decision to terminate prior to having those discussions. They may have a very valid reason why they’ve performed in a certain way, why they’ve behaved in a certain way, why they haven’t been to work. You need to explore those avenues before you jump to a conclusion.

That’s that procedural fairness in giving them an opportunity to respond. I think the other element of prior to it even getting to that stage, is making sure that you review your policies and you educate your managers about how to do thorough performance management within the workplace. If you can get those things happening right, and then communicating with the staff, setting expectations before the behaviour happens or before the misconduct, then I think you’re a long way from getting to a litigation stage, because there’s communication and the expectations are set.

[music]

Genevieve: My guests today have been HR manager Pauline Hugler, who is the executive manager of people and culture for Goodwin Aged Care, and Ian Meagher, who’s the litigation director for Bradley Allen Love. Thank you both very much, and thanks for your time, too. I’m Genevive Jacobs. We’ve been discussing litigation stress for HR managers. You can find the rest of the HR Breakfast Club Podcast on our website, hrbreakfastclub.com.au.

Look for us online for a series of conversations with HR people and lawyers about current issues in the field. If you’d like to ask some questions, just an idea, or perhaps offer yourself up as talent for the series, we would love to hear from you.

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