The New Year Workplace Health Check

By Jennifer Wyborn

01 Feb 2018

From training to technology, a quick workplace health check can uncover important action items for 2018.

The New Year is the perfect time to take stock and review what has occurred over the last 12 months and plan for the year ahead. For managers, this can mean financial projections and budgets for the third and fourth quarters but it should also include an audit of your workforce, policies, procedures and health and safety issues. The following five areas are a good place to start to ensure your workforce is on track for a good 2018.

1. Workplace behaviour

From Harvey Weinstein to Don Bourke to Channel 9 and #metoo, 2017 was a year where appropriate workplace behaviour, sexual harassment and sexual assault were brought front and centre stage for employers. Simple things to review this time of year are:

Workplace behaviour is not just a liability issue it is also a cultural issue that affects engagement of staff, the reputation of a business and the ability to recruit high performing talent to an organisation. In private sector businesses it can also affect profitability as reputational issues affect sales and stock prices.

2. Restraints of trade

This was a big issue in 2017, with perhaps one of the most high-profile cases involving the establishment of US law firm White & Case in Australia and the defection of 10 Australian partners from Herbert, Smith & Freehills to join it. Freehills fought to enforce an aggressive restraint of trade against the defecting partners by seeking an injunction in the NSW Supreme Court. The matter ultimately settled out of court but it is a reminder that having proper and enforceable restraints is critical for the legitimate protection of customer connection and goodwill in a business.

The easiest way to ensure there is a legitimate interest being protected is to ensure that the restraint is tailored to protect that specific interest rather than trying to apply on a blanket basis through a template that is rolled into every contract. For example, three months and in all of Australia may be appropriate to protect some interests, while six months in the relevant city only or industry sector may be more appropriate to protect other interests. Cascading clauses should be avoided where possible, as they are frequently struck out or read down.

3. Workplace health and safety

Much like workplace behaviour, this is something that should be implemented and reviewed on a regular basis.

4. Technology

Reviews of technology should not only be aimed at ensuring your staff are provided with whatever they need to perform their job within the relevant budgets but they should also ensure that technology is considered in the context of WHS reviews and appropriate workplace behaviour.

5. Train your managers to be brave but respectful

Performance management, or the lack thereof, is the issue that, in my experience, creates the most commonly experienced liability for employers.

The two most regular problems I see are: a failure to performance manage that has made it difficult to exit an employee who is underperforming and performance management gone wrong that has caused a resignation, a bullying allegation or a negotiated exit.

Remembering that performance management is about trying to help the employee perform to standard is a good start. With that in mind, managers need to be brave in having difficult conversations about where employees are not meeting expectations but also respectful so as the process is run with the goal of improving performance rather than making a problem go away.

With that in mind, I wish you a happy, safe and productive 2018.

The New Year Workplace Health Check

Workplace behaviour

  • Do you have a policy on appropriate workplace behaviour?
  • Do you provide annual training to staff on appropriate workplace behaviour and keep records of who has attended?
  • Do you have a strong culture that does not tolerate inappropriate behaviour?
  • Do you ensure that reports of inappropriate behaviour are investigated and dealt with swiftly?

Restraints of trade

  • Are you specific about the time and geographical limitations?
  • Have you avoided cascading clauses where possible?
  • Have you considered and defined exactly what is unique about your business that you wish to protect via each restraint?

Workplace Health and Safety

  • Do you have a policy?
  • Do you have a committee that meets regularly?
  • Do you have a useful template for risk assessments?
  • Do your executive and board understand their obligations?
  • Are all relevant parties trained annually, and their attendance recorded?


  • Do you allow remote working?
  • Do you manage WHS assessments of home working environments?
  • Do you place limits on hours of work and audit it regularly to ensure technology has not led to a 24/7 work culture?
  • Are you sure your employees understand your expectations in relation to their social media use?
  • Have you got software that allows you to wipe the contents of employee laptops/phones/tablets if need be?

Training your managers

  • Have your managers been trained in performance conversations?
  • Do you have a policy on performance management and do you comply with it?
  • Do you have regular performance discussions?
  • Is it compulsory for managers to file note all conversations with employees about performance?

CU up to date

  • Have you that picked up and actioned all legislative amendments throughout 2017?

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.