Partner, Kennedys
Alen is a Special Counsel at Kennedys. He has a decade of experience in the local government industry, primarily defending and advising local government employees and elected members. Common matters include employment related claims, regulatory prosecutions particularly by the Department of Water and Environmental Regulation, WorkSafe investigations, inquiries including CCC inquiries, and defamation issues. Alen has also completed a number of secondments with WALGA and works closely with LGIS.
Alen has acted in many high profile and complex disputes and is recognised by clients for his technical expertise and commercial approach when acting in contentious matters. He is admitted as a barrister and solicitor of the Supreme Court of WA and the High Court of Australia. In recent years, Alen was named in Insurance Business Australia’s list of Young Guns, in Australasian Lawyer’s list of Rising Stars, and by Best Lawyers in the practice area of Insurance Law.
Local governments, as employers, face many of the same challenges as other organisations when it comes to dealing with their employees. The reality is that issues or disputes with employees are inevitable, and on some occasions will lead to an employee pursuing a legal claim relating to their employment. That could be during or after their employment, and either privately or by commencing legal proceedings. So, is there any help available to local governments in these scenarios? Of course there is – but there are limits.
In addition to any assistance that might be provided by WALGA’s Employee Relations Service, most local governments have the option of accessing separate and tailored insurance cover to defend employment related claims. This cover includes access to expert legal representation. To determine eligibility, all potential or actual claims should be notified to LGIS as soon as possible for assessment on a case-by-case basis.
LGIS had the pleasure of visiting the City of Kwinana to present the 3 Steps to Safety Diligence in Safety Award. We recognised Kwinana’s outstanding commitment to workplace health and safety based upon their incorporation of our three steps ‘assess’, ‘plan’ and ‘act’.
Local governments, as employers, face many of the same challenges as other organisations when it comes to dealing with their employees. The reality is that issues or disputes with employees are inevitable, and on some occasions will lead to an employee pursuing a legal claim relating to their employment.
Injuries that happen during your commute to or from work are not covered by workers’ compensation. However, there is special protection called Journey Personal Injury cover, which is fully funded by the WorkCare Scheme for employees in the local government sector.
The protection in question is known as “employment practices liability” cover. It covers local governments for “loss” resulting from claims made by employees where the employee alleges some kind of violation of employment laws or any other employment related obligation. Typically, this includes claims for unfair dismissal, damaging action, discrimination, and harassment including sexual harassment and bullying.
Loss means any money the local government must pay in connection with defending the claim including:
However, not everything will be covered simply because it has some nexus to a claim. For example, payments that the local government would ordinarily have to pay are excluded.
These include payments such as redundancy payments, payments in lieu of notice, and other employment benefits.
Defence costs are reasonable legal and other professional fees, costs and expenses incurred by a local government, with prior written consent, that are necessary to defend an employment claim. As the name suggests, defence costs only concern claims that are active or in progress. If there is no claim on foot, even if there is a risk of one in the future, then any costs incurred by the local government will not generally be “defence costs”. For example, the costs relating to carrying out a disciplinary process in respect of an employee will not be covered, even if there is a risk that the employee might bring an unfair dismissal claim in the future.
Generally, no.
Often it is necessary for a local government to carry out an investigation into an event or incident or employee complaint. Whilst some local governments may have the resources and expertise to carry out investigations internally, others may need to outsource that task to lawyers or consultants. There may also be circumstances where engaging a third party is appropriate, including where there might be conflicts of interest or where it is preferable for the investigation to be conducted under legal professional privilege.
Even though the products of the investigation – such as the investigation report or any witness statements – might ultimately be useful or relied on to defend a future employment claim, the costs of investigations will generally not be covered since they are usually not “Defence Costs” because they pre-date the commencement of a claim.
For that reason, is it essential for local governments to be diligent when engaging external consultants and committing to those costs. Some tips to bear in mind are:
Again, generally no.
Local governments may use external consultants to provide HR assistance with managing issues with employees, which may or may not result in a claim being made. These costs will likewise not generally constitute “defence costs”, since they usually pre-date any claim and are unlikely to satisfy the core requirements of being reasonable, necessary to defend an existing claim, and incurred with prior written consent. Using the same example above, the costs of using a HR consultant to manage a disciplinary process would not be covered even if the process results in the employee being dismissed and the employee making a subsequent claim.
Don’t forget that local governments have access to two hours of free confidential legal support per policy year as part of their policy. Please reach out to the LGIS Liability Claims team for more detail if there is an employment claim brewing or already on the go that you would like to discuss.
For more information talk to your LGIS account manager.
This year marks the significant milestone of the 30th anniversary of LGIS. It’s an opportunity to reflect on the remarkable journey we have undertaken together over the past three decades. Since our founding in 1995, LGIS has evolved from a practical response to emerging risks into a pioneering mutual scheme that proudly serves the diverse needs of Western Australia’s local governments.
Fostering children’s development and enhancing community wellbeing, playgrounds are undeniably an influential facet in supporting learning and social interaction. As a hugely important piece of public infrastructure, balancing the risks with the benefits of play is therefore an important issue for local governments to navigate.
Bushfires, cyclones, fatalities, cyber breaches and CCC investigations are all examples of incidents that may send your local government into crisis. If this happens, our team of experts are standing by ready to comprehensively support you through turmoil and disruption.
