Employment related disputes are an increasing trend in early learning claims reported to Guild Insurance. These claims indicate that some employers may not be aware of their obligations and the laws governing them as an employer. Our claims also suggest employers aren’t taking the appropriate steps to implement and adhere to processes and policies that ensure their compliance with regulatory requirements.

Employment disputes can have serious implications for a business. There are several legal avenues available to an employee if they feel they have been treated unfairly. These pathways can be stressful and distracting to navigate while also running a business. Further to that, these disputes can create an unhappy working environment which could negatively impact other staff as well as the children attending the service.

Case examples

Both of these case examples led to complaints with the Fair Work Commission.

1. Allegations were made against a staff member of physical abuse towards children. The employee was stood down while investigations were conducted and then terminated upon the outcome of the investigation. The employee commenced proceedings alleging unfair dismissal. The legal fees to defend this matter were in excess of $100,000 and the employee was awarded approximately $40,000 for lost income.

2. An employer sought to make changes to an employee’s rostered start time due to operational requirements. The employee resisted the change stating it didn’t align with their responsibilities as a carer. The employee was offered alternative options however the employee would only agree to keep their original rostered hours. The employee lodged a complaint alleging discrimination. It was found the changes were reasonable and allowed under the contract of employment, yet the matter still cost almost $20,000 to defend.

Understand your obligations

The key first step to avoiding employment related disputes in an early learning service is to understand employment laws and regulations. While you aren’t expected to become an expert in employment law, not being informed carries significant risk. And keep in mind that legal requirements can change over time so be sure you stay informed. There are many resources available to assist businesses understand their requirements.

The Fair Work Ombudsman provides best practice guides to assist businesses and employees manage various workplace issues such as underperforming staff and requests for flexible arrangements. These guides can be found at fairwork.gov.au/tools-and-resources/best-practice-guides.

Small businesses, with less than 15 employees, have unique rules for dismissing staff. Information about the Small Business Fair Dismissal Code can be found at fairwork.gov.au/ending-employment/unfair-dismissal. Further information to support small businesses can be found at smallbusiness.fairwork.gov.au.

There are National Employment Standards (NES) which detail the minimum entitlements which must be provided to all employees in Australia. These standards cover areas such as leave entitlements, superannuation contributions and notice of termination. Details on the NES can be found at fairwork.gov.au/employment-conditions/national-employment-standards.

Create processes and policies for your business

To ensure you and your staff are complying with employment best practice and the law, create processes and policies for your business. These processes and policies will:

• Guide training so all staff know what’s expected of them in their place of work.
• Ensure consistency among all staff when dealing with employment matters.
• Provide support and guidance when dealing with a potentially challenging employment matter or dispute.

Processes and policies are only beneficial when regularly referred to and utilised. It’s therefore vital they aren’t documents that are created only to be filed away. They should be stored somewhere that is easily accessible by staff, and regularly discussed with staff, such as in team meetings. You should also consider integrating these processes and policies into your induction and ongoing training programs.

Seek assistance

If you find yourself in a difficult situation regarding an employment matter, the sooner you reach out for support, rather than trying to navigate the situation yourself, the better for all involved. If you hold a Guild Insurance Early Learning Business Insurance policy, you’re entitled to receive free legal advice with our expert legal advisers, Meridian Lawyers. You can access three free telephone advice sessions (each session is capped at two hours) when you’re dealing with an employment or registration issue.

Keep records

Unfortunately, complaints and insurance claims regarding employment matters can arise some time after an event. To be sure you’re best placed to deal with any complaints should they occur, it’s important to keep records of all discussions had with staff regarding performance and entitlements, even if meetings and discussions are informal.

All health practitioners would be well aware of their requirements to obtain informed consent from their patients before assessment or treatment takes place.  However, Guild Insurance’s vast experience in managing claims made against health practitioners has highlighted that many practitioners don’t meet all their informed consent requirements.

What is informed consent?

There is an explanation about informed consent in the Code of Conduct for each of the professions regulated by AHPRA.  In this document, informed consent is defined as ‘a person’s voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved’.  This statement highlights the difference between consent and informed consent.  If a patient hasn’t been made aware of the benefits and risks, their consent isn’t informed.

Informed consent isn’t just required for treatment. Depending on the nature of the healthcare being provided, informed consent should also be obtained for assessment. 

Informed consent and insurance claims

Informed consent can feature in insurance claims against practitioners in a couple of ways.

It’s not uncommon when a patient is unhappy following treatment for them to allege they weren’t made aware of the risks when they consented to treatment.  Quite often they will allege the treatment was negligent and has resulted in harm or suffering.  They then add that had they been informed of the possible risks, they wouldn’t have consented.

In other cases, patients may not make any allegation about consent, their complaint might solely focus on the clinical outcome, yet when their claim is being managed it’s found that they didn’t give their informed consent prior to treatment being provided.  When this occurs, it makes it challenging for Guild to prove that the practitioner has treated appropriately and met their requirements.

The informed consent conversation

Informed consent requires a conversation between the treating practitioner and the patient.  This conversation needs to occur prior to assessment and treatment. 

The conversation must:

• detail the recommended assessment and treatment as well as alternate treatment options
• include the expected benefits of that treatment
• provide information about the risks of the treatment
• allow time for the patient to ask questions
• be held in language which can be understood by the patient which means practitioners should avoid technical clinical language.
• take place in a private area where the patient will feel comfortable being open and honest about their health situation.
• be tailored to that individual patient and their unique clinical needs

Recording informed consent

It’s imperative that practitioners make a note in the clinical record regarding the patient providing their informed consent.  This needs to be more than ‘IC given’.  The record needs to show what treatment options and risks were discussed as well as any questions asked by the patient.  The record should also show what the patient consented to as well as what they didn’t consent to where relevant.

The informed consent form

One area which leads to some confusion about informed consent is how to use an informed consent form.  Having a patient sign a form is seen as a quick and simplified way of having a patient provide their informed consent and keeping a record of that.  However, they are unfortunately too often used inappropriately. 

Signed forms aren’t a requirement.  While recording consent is required, this doesn’t need to be done using a form.  Notes in the clinical record are sufficient.  However, signed forms do provide additional evidence if there is an allegation that informed consent wasn’t given.

Forms can’t be used to replace the informed consent conversation.  A patient can not read a form and gain the same level of understanding as they would from a conversation with the practitioner.  Nor can they ask questions of the form. 

A form should only be signed after the conversation with the practitioner has been had and the patient understands what it is they’re consenting to.  Patients are occasionally asked to sign consent forms at reception before they’ve seen the practitioner.  As there has been no assessment or discussion about treatment at this stage, this can’t be considered informed consent as the patient hasn’t been informed.

Some practices combine new patient forms with the consent form.  This isn’t ideal as the two forms serve different purposes.  Also, having them on the one form encourages patients to sign the consent form at reception before they’ve seen the practitioner.  Therefore, they should be divided into two separate forms.

Informed consent is not a one-off event

Practitioners regularly ask how often their patients need to give informed consent.  There is no set time frame for when informed consent conversations or signed forms need to be repeated.  The requirement is that when a patient is receiving any assessment or treatment, they need to have given their informed consent to this.  Therefore, informed consent should be an ongoing process; it’s a continual conversation with patients during consultations.  And when there is any change in the treatment being provided, or if the patient has returned following a period of absence, informed consent needs to be revisited.  A general ‘consent to all treatment’ for the life of the therapeutic relationship is not appropriate.

Informed financial consent

As well as consenting to assessment and treatment, patients should also give their informed financial consent.  This means they need to be provided with information about the expected cost of treatment before this treatment commences.

In summary…

There is no one right way to undertake an informed consent conversation and process.  Practitioners must adapt what’s discussed for the patient they’re treating and that patient’s unique circumstances.  However, what must occur in all cases is that the patient is informed of and understands the proposed treatment, alternate treatment options and the risks involved.  Only with this information can they give their informed consent.  The practitioner must also be sure to make a record of this informed consent discussion in the clinical record.

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When considering an insurance policy, it’s easy for many of us to think “it’ll never happen to me”.  However, the vast experience of Guild Insurance tells us ‘it’, being events that require insurance claims, unfortunately can happen to people like you. 

Guild Insurance is dedicated to providing risk management information to those insured with us to help reduce the likelihood of events occurring which will have a detrimental impact on their business and lead to an insurance claim.  However, we also know that not everything can be prevented.  Which is why business owners also need to consider what they can do to reduce the severity or impact on their business should an event occur.  And this is where asset registers become so important.

What is an asset register?

An asset register is simply a list of assets held by a business.  These can be created and stored in various ways, such as paper format or electronically, yet should always be stored safely and be easily accessible.

Why are they needed?

All businesses should hold an asset register as they serve a number of important purposes.

It’s estimated that well over half of Australian businesses are underinsured.  A detailed asset register will help a business understand the value of what they own and therefore the level of insurance required to be adequately protected.

An asset register also assists businesses when there is a need to lodge an insurance claim due to property loss or damage.  When there is an up to date asset register, this necessary information can be provided quickly to an insurance company which is likely to speed up the settlement process.  Making an insurance claim for property damage or loss can be quite a stressful process for any business.  An asset register can reduce some of this stress by making the process more straightforward.

When a business has multiple sites, keeping track of all assets is quite a challenge.  An asset register provides the business with a way to manage all assets, even when the assets aren’t physically in sight of those responsible.

What information should be included?

For an asset register to be of any benefit to a business, it’s important that the information is up to date and correct.  Businesses should have a process for how and when the register will be updated and by who.  This process should require adding a new asset as soon as it is purchased.  However, it would also be beneficial doing regular checks of the asset register to be sure nothing has been accidentally left off.

The asset register should include a list of all items which could be lost or damaged if there was an incident at the premises.  Don’t just focus on the costly items; damage to a lot of items which are of lesser value can still add up and you will want a record of these items.  The types of assets to be recorded may include:

• Furniture, both indoor and outdoor
• Computer and other office equipment
• Electrical items such as fridges and air conditioners

The information to record about each of these items may include:

• Description of the item
• Brand, make or model
• Serial number
• Purchase value
• Purchase date
• Location of the item
• Warranty information
• Invoices

Creating an asset register

As previously mentioned, asset registers are really just a list of items so the creation of them doesn’t need to be overly complex.  There are a number of template examples which can be found through internet searches. 

However, the challenging aspect of creating an asset register is being sure the information you have on there is detailed and correct.  It’s therefore recommended that businesses use their accountant to assist with this task.

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