Modern HR Under Pressure: Managing Legal Duties, Flexibility and Fairness: 5 program webinar series

Program 1: Offence is the Best Defence: Positive Duty to Prevent Sexual Harassment

With workplace sexual harassment laws shifting towards proactive prevention, organisations can no longer afford to be reactive. The positive duty to prevent sexual harassment requires employers to take meaningful steps to foster safe, respectful, and inclusive workplaces. Failure to do so not only increases legal risk but can also damage workplace culture, reputation, and employee wellbeing. This session unpacks what the positive duty entails, how it intersects with other legal obligations, and what practical steps organisations must take to comply. Attendees will gain insights into:

• How does the positive duty fit within equality, anti-discrimination, and work health and safety laws?
• The shift from reactive to proactive compliance - Why the law now requires businesses to prevent, not just respond to, workplace sexual harassment
• Key measures for compliance - What ‘reasonable and proportionate’ steps look like, from risk assessments and policies to leadership training and reporting mechanisms.
• Vicarious liability - When organisations are held accountable for the actions of employees and how to mitigate this risk
• Stop sexual harassment orders - How these orders operate and what they mean for employers
• Building a safe workplace culture - Embedding long-term cultural change to create a respectful and inclusive work environment

Program 2: Do as I Say, Not as I Do: The Mismanagement of Disciplinary Procedures and Psychiatric Injury

The High Court’s decision in Elisha v Vision Australia Ltd [2024] HCA 50 has reshaped the legal landscape surrounding employer responsibilities in disciplinary procedures. The case serves as a stark reminder that breaching contractual disciplinary procedures can result in significant liability, with the Court awarding $1.44 million in damages for psychiatric injury. Employers must now be more vigilant in ensuring procedural fairness and adherence to employment contracts to mitigate risks. This session delves into the implications of this ruling, offering practical guidance on mitigating risks through effective policy management and adherence to procedural fairness. Key issues covered include:

• Understanding the Elisha v Vision Australia decision
• Evaluating how employment contracts that explicitly integrate company policies, especially those related to disciplinary actions, can lead to enforceable obligations, as highlighted in the Elisha case.
• Strategies to maintain consistency and fairness in applying disciplinary processes, thereby minimizing the risk of breaching contractual obligations and potential liability for psychiatric injuries.
• How deviations from established disciplinary protocols can result in significant damages for psychiatric injury, emphasizing the need for strict adherence to contractual terms
• Identifying critical considerations when revising employment contracts and disciplinary frameworks to ensure they reflect current legal standards and protect against potential liabilities
• Practical approaches to ensure compliance with contractual obligations, including regular training and audits, to reduce the risk of litigation related to disciplinary procedure

Program 3: It’s a Balancing Act: Flexible Work, Return-to-Office, and the Right to Disconnect

The landscape of work has fundamentally shifted, marked by evolving legal frameworks, the push for a return to traditional office settings, and the growing demand for digital boundaries. This session delves into the complexities of navigating these changes, focusing on the interplay between flexible work arrangements, return-to-office policies, and the "right to disconnect." How should employers and adapt to these shifts and foster a balanced and productive work environment in this new era of work? This session covers:

• The evolving legal landscape of flexible work, including recent Fair Work Act changes
• Employee rights to request flexible work arrangements and employer obligations in response
• The concept of "reasonable business grounds" for refusing flexible work requests, particularly in return-to-office contexts
• Dispute resolution and appeal processes for rejected flexible work requests
• The legal and practical implications of the "right to disconnect" in a digital work environment
• The cultural shift towards return-to-office mandates and the associated risks and mitigation strategies
• Practical guidance on balancing flexible work and return-to-office policies

Program 4: Workplace Investigations - Getting It Right from Start to Finish

Allegations of misconduct, bullying, discrimination, and harassment must be handled with care, confidentiality, and legal precision. A flawed investigation can expose employers to unfair dismissal claims, adverse action disputes, reputational harm, and costly litigation. With increasing scrutiny on how workplace investigations are conducted, HR professionals need clear, defensible, and legally compliant processes to navigate these high-risk situations. This session provides practical, step-by-step guidance on conducting thorough, fair, and legally sound workplace investigations. It covers:

• When to initiate an investigation and key triggers for action
• Applying procedural fairness and natural justice in every step
• Managing confidentiality while balancing transparency obligations
• Addressing challenges in remote and hybrid workforce investigations
• Common investigation missteps that lead to legal claims and how to avoid them
• Deciding when to use internal HR teams vs external investigators
• Documenting findings and implementing outcomes to withstand legal scrutiny

Program 5: Under the Weather: The Complexities of Managing Sick and Injured Employees

The management of sick and injured employees poses multifaceted challenges for employment lawyers and HR professionals, balancing legal compliance with the practical needs of business operations. This session examines the evolving legal landscape and provides actionable insights to support both employee wellbeing and organisational resilience. It covers:

• Determining thresholds for prolonged sick leave: When is it time to take action?
• Guidelines on contacting employees during sick leave: Establishing appropriate timing and methods
• Understanding the conditions for contacting an employee’s doctor while maintaining privacy
• Assessing the appropriateness of performance management or show cause meetings during sick leave
• Navigating workplace accommodations and return-to-work processes
• Strategies to mitigate risks associated with prolonged absences and potential litigation
• Practical approaches for balancing organisational needs with compassionate management practices