– by Mary Cullen, Founder and Managing Director of Insight HR
By the time an organisation reaches the Workplace Relations Commission, the Labour Court or the High Court, it is usually asking one question.
“Did we do everything correctly?”
It is an understandable question. The organisation is under scrutiny. Every decision is being examined. Every email, meeting note, investigation report and policy is being analysed. Witnesses are preparing to give evidence. Senior leaders are trying to explain decisions that may have been made months, or even years, earlier.
Having acted as an expert witness in High Court proceedings and advised organisations through hundreds of complex employee relations cases, I have seen this process from a unique perspective. What strikes me is that organisations rarely find themselves defending one isolated decision. They are defending an entire sequence of decisions.
A disciplinary process may be the focus of the legal challenge, but by the time an employee reaches a disciplinary hearing, many of the most significant decisions have already been made. The real story often begins much earlier.
It begins with recruitment. It continues through probation, performance management, complaint handling, governance, communication, documentation and leadership. It includes the quality of external HR advice, the way that advice is interpreted internally and whether commercial decisions were made with a full appreciation of the legal and organisational risks.
When these cases are examined in the witness box, the same pattern emerges repeatedly. Rarely does a single catastrophic mistake determine the outcome. Instead, it is the cumulative effect of numerous small decisions, made by different people at different times, each of which appears reasonable in isolation but collectively creates significant organisational risk.
The scenario many organisations recognise
Imagine a situation that will feel familiar to many Boards, CEOs and HR Directors.
An employee becomes the subject of a disciplinary process involving allegations of serious misconduct. Partway through the process, they raise a grievance against their manager. A protected disclosure follows. External HR and legal advice is sought.
Senior management becomes involved. Commercial pressures begin to influence the pace and direction of decision-making. The disciplinary process slows while other issues are addressed.
Months later, after considerable time, cost and disruption, a commercial decision is made to terminate the employment. The organisation believes the matter has finally come to an end.
Then the Workplace Relations Commission claim arrives. The immediate focus is usually on defending the dismissal. In my experience, that is the wrong place to start.
The better question is not whether the disciplinary hearing complied with the policy. The better question is:
“What does this case tell us about how our organisation makes decisions?”
Organisations review every major business risk except this one. If there is a cyber-attack, organisations commission an independent review. If there is a significant health and safety incident, they undertake a root cause analysis. If financial controls fail, governance arrangements are examined and strengthened.
Yet one of the most expensive and disruptive events an organisation can experience – a complex employee relations matter – is often treated as something to survive rather than something from which to learn. That represents a significant missed opportunity.
Winning a case before the Workplace Relations Commission does not necessarily mean the organisation managed the situation well. Equally, losing a case does not mean every decision was wrong. The real value lies in understanding how the organisation’s systems performed under pressure.
Where did communication work well? Where did decision-making become unclear? Were responsibilities understood? Did governance support effective decisions? Where did reasonably foreseeable risks first begin to emerge? These are not simply HR questions. They are organisational governance questions.
Good advice is only one part of the equation
Most organisations rely on external HR consultants or employment law solicitors when difficult employee issues arise. That is good practice. However, there is another question that deserves equal attention.
“What happened to the advice once it entered the organisation?”
External advisers can only advise on the information they receive. If the facts are incomplete, the advice may naturally be limited. Even where the advice is entirely appropriate, it must still pass through several layers of interpretation before it becomes organisational action.
Did HR or management provide the adviser with all of the relevant information? Did HR fully understand the advice? Was it documented accurately? How was it communicated to line management? Did the CEO receive the same message the adviser intended? Did anyone challenge the advice or explore alternative approaches? Was a commercial decision made with a full understanding of the legal, operational, reputational and cultural risks?
By the time organisations are explaining their decisions before an Adjudication Officer, a judge or under cross-examination, they are often trying to justify decisions that evolved over months through multiple conversations and interpretations.
Advice itself rarely causes problems. The translation of advice into organisational decision-making often does.
Who is actually advising your organisation?
There is another question that organisations rarely ask.
Who is providing the advice?
Many organisations obtain HR advice through helpline or call centre models. Those services undoubtedly have a role, but when a significant employee relations issue arises, it is worth asking who is actually on the other end of the telephone. What experience do they have?
Have they managed complex disciplinary processes?
Have they conducted workplace investigations?
Have they supported organisations through protected disclosures, grievances and High Court litigation?
Or are they developing those skills while advising clients on high-risk decisions?
This is not a criticism of junior HR professionals. Every experienced HR practitioner started somewhere. At Insight HR, we recruit graduates and early-career professionals because we believe passionately in developing future talent. The difference lies in how we develop them.
Our junior consultants do not advise clients independently on complex employee relations matters without experienced oversight. They learn by working alongside seasoned practitioners, observing difficult cases, discussing options, challenging assumptions and developing professional judgement before taking the lead themselves.
Employment advice is not simply about understanding legislation. It is about judgement. It is about recognising risks that are not immediately obvious. It is about asking questions the client has not yet considered. That judgement is developed through experience.
What the witness box has taught me
One of the greatest privileges of my career has been acting as an expert witness in High Court proceedings involving complex workplace issues. Watching experienced barristers examine organisational decisions provides an invaluable perspective.
Every inconsistency is explored. Every missing note becomes relevant. Every undocumented conversation raises questions. Every unexplained decision is challenged. What often surprises organisations is that the issues exposed under cross-examination are rarely new. They existed throughout the process. They simply went unnoticed. Sometimes a grievance was not handled as effectively as it should have been. Sometimes important HR advice was never fully documented. Sometimes responsibilities became blurred between HR, management and senior leadership. Sometimes commercial pressures overtook sound judgement. Sometimes multiple well-intentioned people each made decisions that, when viewed collectively, created significant organisational risk.
I have seen these patterns emerge in organisations with highly experienced HR teams. I have seen exactly the same patterns in organisations with very limited HR resources. Experience alone does not eliminate risk. Strong governance does.
A different way of thinking about people risk
These experiences are precisely why we developed our Independent HR Systems Review. The purpose is not to revisit a disciplinary outcome or determine whether someone should have been dismissed. Nor is it about allocating blame. It is about understanding how the organisation’s systems performed throughout the employee’s journey.
We examine recruitment and pre-employment checks, governance, complaint handling, external HR advice, communication, decision-making, documentation, accountability and leadership. We ask where organisational risk first became reasonably foreseeable. We identify where communication broke down, where assumptions replaced evidence and where stronger governance may have led to better outcomes. Most importantly, we help organisations understand what they can do differently next time. That is where the real value lies.
The organisations that learn are the organisations that lead
Complex employee relations issues will never disappear. Every organisation will, at some stage, face difficult decisions involving misconduct, grievances, whistleblowing, bullying, harassment or performance concerns. The organisations that distinguish themselves are not those that avoid these situations altogether. They are the organisations that have the discipline to learn from them. They recognise that every difficult employee case is also a test of leadership, governance and organisational capability. They understand that defending a decision is very different from understanding how that decision came to be made.
Most importantly, they refuse to wait until an Adjudication Officer, a Labour Court recommendation or a High Court judgment exposes weaknesses that could have been identified much earlier. The best organisations do not wait for external scrutiny to improve. They review, they learn and they strengthen their systems before the next difficult case arises. Because the greatest value in any complex employee relations matter is not simply bringing it to a conclusion. It is ensuring that the organisation is better prepared, better governed and better equipped to make its next difficult decision.
If you’re interested in a HR Systems Review, we’d be happy to have a confidential chat with you.
