In the early 2000s, I had the privilege of working with highly experienced employment lawyer Andrew Klein during my time in the public service.
Now a partner at leading national law firm, Mills Oakley, I caught up with Andrew to chat about his experiences in employment law – including the biggest challenges and opportunities for employers and employees in dealing with problems in the workplace…
KV: What major insights have you had over the years in your capacity as an employment lawyer acting for both employers and employees?
If you can address an issue with an employee early and develop a well-considered approach to engaging an employee, even in a really worst-case situation where you think progress could not possibly be made, it is possible to find a resolution. I have gone into settlement conferences where I have thought there is no way this case is going to be resolved, it’s going to drag on for years, and it has settled. But, you need to have a really strategic and well-considered approach to make that work.
I had a case that literally went on for years and years and the Commonwealth ended up spending somewhere north of $200,000 in fees. That’s on top of hours in staff costs taking affidavits, people involved telling their stories over and over again, stress and anxiety and lost productivity. It settled for well in excess of $100,000. The other side spent in excess of $150,000 in legal fees. After it had finished the complainant said to me, “If someone had come up and talked to me about this early, just sat down with me and had an honest conversation, I would have settled for a month’s pay and gone back to work.” He said a lot of things in the course of proceedings that I didn’t believe, but that was one thing that I actually did believe.
Even in what would seem to be the most hopeless situations, if you can get an early intervention that is really well thought out, is strategic and that has the support around it, you can get the solution and save the organisation a considerable amount of money, time and stress.
KV: What is missing; why have organisations not arrived at this insight themselves?
I think maybe an objective viewpoint is the main thing that is usually missing. This is, in my view, because both sides get into a paradigm that is hard to get out of where the employer sees the employee as a winger, a troublemaker or “an issue” that has to be addressed, and the employee sees the employer as ‘the enemy’. The “solution” is then driven by that paradigm and it becomes a drawn-out ‘them and us’ battle. The employee is drawn in either because they get treated like the enemy or because they act like the enemy and both sides get into the trenches and it becomes a drawn-out war.
If you get someone who is removed from the emotion and the ‘white noise’ to look at the situation with an objective viewpoint, that person can sometimes see things more as they are and give practical hard-nosed advice to say, “I understand you feel this way about the situation, but if we don’t get it fixed we are still going be talking about it in six months from now or 12 months from now. Is that what you want?”.
Most people would say “God no” because apart from anything else they are going to be still paying people like me in six or 12 months and have all the associated costs.
KV: Have you been involved in a case where there was minimal legal intervention needed to get a good outcome?
I have seen things resolved that people have thought no way no how can we find a way forward because this person is either so embittered against the organisation or they have other issues and problems that we can’t go forward. The solution isn’t always of course that the person comes back to work – it is sometimes negotiating a mutually agreed exit strategy. If that’s the way it has to go after you’ve taken an objective look at what can be achieved it is much better for everyone that this happens sooner rather than later. Alternatively, the person may be able to come back to work and become an engaged and productive employee which is what everyone wants.
A lot of the time the advice I give is not legal advice it is practical advice, commonsense advice even. There have been cases where as a result of performance management I have become involved to provide advice about risks around terminating a person’s employment. The advice I have given has been that legal advice or threats are not needed in these situations. But because the people in the organisations are so deeply involved they can’t see the forest for the trees and realise that there aren’t a lot of real ‘legal’ issues involved, but rather what’s required is practical pragmatic common sense thinking.
KV: What are your top tips for employers?
- Act as early as possible
- Seek an objective view of the situation (could be someone internal who is more senior and removed from the situation who could look at it objectively and dispassionately)
- The short-term costs of ‘biting the bullet’ and resolving a situation early are more often than not far lower than the potential longer-term costs of fighting the war (e.g. early intervention in time reskilling and retraining someone, or in mediation services paying someone out to get on with whatever they need to do outside the organisation)
- Use highly skilled mediators, who have experience in the particular situation you are dealing with
KV: What are your top tips for employees?
- Approach the situation with an open mind as to possible ways forward and look for options you otherwise might not have expected to be there. ‘Think outside the box’ when looking for a resolution to the issues.
- Try to maximise what you want within the context of what can be done rather than letting things drag on (the situation won’t get better unless you move forward!)
- Seek an objective view of the situation to have a reality check (someone who doesn’t have an emotional investment in the situation – not a family member or friend)
Naturally, if it is not possible to find a resolution to entrenched employment issues internally, I am happy to provide advice (both legal and practical) to assist in finding a way forward.
If you wish to chat with Andrew about employment law, feel free to call him on 6196 5200.