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Ben McKinley

Special Counsel - Melbourne

Areas of Expertise

Workplace Relations & Safety

Expertise

Ben is a Special Counsel with over seven years of experience specialising in the area of workplace relations and safety, during which time he has developed extensive knowledge and expertise in all aspects of that discipline.

Ben provides advice and representation to a range of clients from ASX-listed companies to small business owners across numerous industries including hospitality, retail, manufacturing, professional services, health, government and sport.

Ben’s approach is to work closely with his clients to build trust and gain an in-depth understanding of their businesses, enabling him to provide practical and tailored solutions that align with clients’ objectives and motivations. He acts for many high profile organisations where reputation management is a key consideration, and has assisted clients to reduce or avoid any adverse publicity, even in the face of significant public interest.

In addition to the fundamental elements of workplace and industrial relations law, such as employee management, discipline and dismissal; discrimination; award and enterprise agreement interpretation and disputes and post-employment obligations, Ben has significant expertise in:

  • conducting complex workplace investigations into allegations of bullying, sexual harassment, discrimination and other misconduct
  • providing strategic advice in respect of investigations and potential prosecutions by government regulators, including Fair Work Ombudsman investigations in relation to underpayment allegations for high profile employers in the hospitality industry
  • drafting, advising on and enforcing post-employment restraints and obligations.

Experience

Ben specialises in providing advice and strategic recommendations to assist clients to prevent or minimise their exposure to legal risk in respect of all employment-related matters.

This includes advice in respect of:

  • employee discipline and dismissal in a multitude of circumstances, including those requiring a fact-finding investigation to provide a fully informed advice
  • managing regulator investigations and means of avoiding prosecution or enforcement action as a consequence of findings of contravention of workplace laws (which Ben has successfully done for many high profile employers who had adverse findings against them)
  • disputes about interpretation of employment agreements (including post-employment restraints and confidential information), employer policies, awards and enterprise agreements.

Ben’s litigation experience includes:

  • acting for a large franchisor in the Supreme Court of Victoria against a former employee and his new employer for copying, using and disclosing the client’s confidential information, namely their extensive client database
  • defending a claim for vicarious liability for alleged sexual harassment and discrimination in the Federal Court of Australia
  • representing a large financial services organisation in a complex general protections application in the Federal Circuit Court
  • acting for a stockbroking and wealth management firm in a claim by a former client alleging underpayment and various breaches of the award and Fair Work Act
  • defending an unfair dismissal application in the Fair Work Commission by an employee with over 20 years’ service who was dismissed for misconduct
  • representing a manufacturing client in a dispute in relation to its enterprise agreement, which had potentially significant implications for the client had it been unsuccessful
  • acting for 13 of the 34 Essendon footballers in their compensation claims against the Essendon Football Club as a consequence of their suspension by the Court of Arbitration for Sport.

Publications

10 March 2021 - Knowledge

Inside track: Local Government

#Local Government, #Workplace Relations & Safety

The impact of COVID-19 will make enterprise bargaining between local government employers and their employees a challenging exercise this year. We outline some of the key considerations for employers before starting the conversation.

07 October 2020 - Knowledge

Dismissal by SMS or email may not be unlawful – but it’s extremely unwise

#Workplace Relations & Safety, #COVID-19

A recent Fair Work Commission ruling further highlights the risks for employers of dismissing an employee by electronic means without a face-to-face meeting.

Upcoming Seminars