Andrew Douglas: I reckon the Peabody case is a fascinating case, okay? What we’re talking about today is it is common, particularly in industry now, where if I looked at our business, parts of our business are done by contractors, some in Australia, some externally, it’s necessary in business to actually make money and to have proficiency because the talent shortage in Australia, to actually use contractors sometimes in Australia, sometimes externally, to actually fill the workload and talent load that’s required and have the flexibility that’s necessary to make fluctuations in demand.

Now, why am I ranting about that? Well, the answer is the world’s not a bloody easy place to work in. And the best businesses have huge volatility in what they’re selling, doing, and achieving. So the Australian Award based structure is not fitting a global practise. It just doesn’t work. And we struggle, you know, we have seasonal variations, we have times because our Reserve Bank doesn’t seem to care about us much at the moment where there’s a downturn in work in certain parts of our department. The world is so much more volatile than it was 20 years ago. So contractors are a key part. Peabody made 22 people redundant.

And as part of doing that, there was a complaint raised by the union that in the consideration of redeployment, the removal of contractors was not considered. At first instance and in the federal court, an argument was held and it was accepted that Peabody could adjust if they wanted to.

What Peabody said is, “Yeah, nice call, but it’s all abstract.” You didn’t actually enter into our business to understand what it was like. We put the evidence before you, but you ignored it. You just assume we’re a large organisation that could adjust and you’ve got contractors, surely you can take them up.

They’ve got special leave in the high court on this issue. Whether you can objectively say it was reasonable based on the evidence that is before you, without taking into consideration how the business runs or whether you need to go to objective consideration of how the business actually is run and the importance of those contractors.

But it is a huge decision that comes through because every time we deal with redundancies, Kim, and I’ll go, okay, give me the list of casual skills, competence, give me the list of contractor’s skills, competence. And we go through this process of trying to work out what it is. And if you’re an Australian wide business, we start looking all over Australia to determine where those gaps are filled.

What Peabody’s saying is, you look at our business at the time of making the decision, we couldn’t do it. It was not possible.

So I think it’s just a fantastic case and I’m really glad to vegetate and I’m really pleased our high court has taken it on. The high court will look in this very favourably. We’ve got a clever black letter high court at the moment who will give meaning to the words that sit in the redundancy provisions and they won’t hide from being courageous about it.

And they will say, I’m almost certain, they’ll line up with Peabody and say-

Kim McLagan: I think so.

Andrew Douglas: You’ve got to look at the circumstance of the business. You can’t just force a business to actually deploy people for which there aren’t roles. It’d be great if it happened, wouldn’t it?

Kim McLagan: Yeah.

Andrew Douglas: Why don’t we jump on, we’ve had a lot on today, so why don’t we go onto the-

Kim McLagan: Today? This week.

Andrew Douglas: Yeah. Can I just say next week is such an exciting week, the cases that have come through the last two days. We often have cases because they’re funny, naughty, got dogs dying, all sorts of things.

But next week, they’re all really important cases for actually how you practise. So beware next week. We’ve also got the new legislation that Albanese is putting through about doxxing and all that sort of stuff, which we’ll talk about. But let’s go now to our problem because this really exposes a number of issues.

Kim McLagan: Okay.

Andrew Douglas: Okay.

Kim McLagan: Alright.

Deltoid Lifts Proprietary Limited or DL built and maintained multilevel lifts for commercial premises throughout Australia. Dianne was an electrical engineer employed by DL in its Brisbane office who regularly worked on site, along the Eastern seaboard. The Brisbane office had been the foundation office and up until 2021, had housed the design arm of DL. Changes in technology made it difficult for DL to recruit highly skilled engineers who were across the rapid adoption of innovative use of AI for people logistics with lists.

That’s a very tough-

Andrew Douglas: That was for Nina.

Kim McLagan: Long sentence.

Andrew Douglas: That was for Nina, wasn’t it? That’s what Nina was doing. She would’ve got lost halfway through. I would’ve won. She would’ve killed me, but it would’ve been fun. Okay, next. Keep going.

Andrew Douglas: The spike in commercial building in Melbourne and Sydney meant there was an immediate need to bring design functions into those two offices, with a requirement for front-end expertise on site every day in installing-

Andrew Douglas: Installing and calibrating.

Kim McLagan: And calibrating of technology based on site needs. Dianne’s boss, Chuck, was a true engineer. Every issue was detail rich. He went down every rabbit hole. It drove Dianne and others crazy, but Chuck was one of the founding members of DL. His acquired knowledge and focus on customer service was legendary despite his inclination to micromanage.

Andrew Douglas: I think there’s more. Yeah.

Kim McLagan: Dianne had raised with HR that she felt unsafe with the way Chuck worked. It meant that she had no control of the hours she worked, literally in a day and overall. In addition, he was a procrastinator, which meant workflow around deadlines were awful. Dianne was lucky her husband had a 9:00 to 5:00 desk job and could look after their teenage kids, but it was starting to affect her relationship with her husband and children.

HR approached Chuck about his behaviour. They had heard it from others, but only told him about Dianne. He blew a gasket when he heard. He explained to HR he had kept her going in Brisbane when there was actually no need out of respect for her, but they needed the engineers in Sydney and Melbourne and his paper was currently with the executives to move design to Sydney and Melbourne.

Two months later, the executives approved.

See, that’s my tongue not working well.

Andrew Douglas: Right, I didn’t know this. I would’ve had a lot more S’s about the tooth when I wrote this.

Kim McLagan: Two months later, the executives approved Chuck’s paper. Chuck was designated as a decision maker for all terminations of employment arising out of the decision, as he was the national operations manager. Dianne was approved by Chuck.

Andrew Douglas: Approached.

Kim McLagan: Approached about her role in Brisbane being redundant, but offered redeployment in Melbourne along with a 50,000 relocation package.

Sorry, everyone.

Andrew Douglas: It’s alright, don’t worry.

Kim McLagan: Brisbane would retain-

Andrew Douglas: Brisbane would retain three design engineers with IT focus on a contractor basis, but otherwise would have no permanent employees and the office would be closed and everyone would have their teeth removed.

The contractors had different skills to Dianne. Dianne’s salary was 160 plus super. Dianne refused redeployment as it was not reasonable for her and her family. Her husband was paid very well for a company that had no office in Melbourne and there was no similar work available.

There we go.

Kim McLagan: Sorry.

Andrew Douglas: You did very well. Was there any breach of safety law and would anyone be charged?

Kim McLagan: Oh.

Andrew Douglas: I’ll help you with this. Yeah. So the issue here was Chuck’s behaviour, okay?

Kim McLagan: Yes. Dianne raised complaints that she felt unsafe.

Andrew Douglas: Yeah. So if we look at the sort of things that he’s doing, micromanagement doesn’t sound like it’s a safety breach, but it’s quite clearly a safety breach. And procrastination when it leads to excessive workloads, lack of planning, lack of clarity around that, there are significant psychological hazard. Nobody would be prosecuted, I don’t think.

Kim McLagan: No.

Andrew Douglas: But it’s worth saying that it damages the productivity of the business. And there would be a, if Dianne developed a psychological injury as a result of it, then I think the chance of a low level primary duty breach are real. And probably in Victoria, section 25, breach against Chuck as well. Similar perversions on the WHS. So low level of risk, if psychological injury occurred, higher chance of prosecution, but low level of prosecution because Chuck’s a good guy doing the best he can.

But let’s go back to what good leadership looks like, okay? Because he’s damaged the business. Is Dianne an Award based employee? And if so, what was Chuck’s requirements under the Award? Did he comply? Yes, Dianne is probably under the manufacturing Award or construction Award, depending where it falls as an electrical engineer.

Therefore, the consultation requirements that set out in clause 9 cost a million Award supplies, which is to consult once a decision has been made and to avert and avoid or mitigate the damage done to a person.

So the consultation wasn’t flash with Dianne on any version of the facts there. There was an attempt to avert or mitigate by offering a relocation allowance, but have failed to actually understand her personal circumstances made it a nonsense.

So there’s an Award breach that sits there. How does that go to termination? It means it’s not a proper termination, it’s an unfair termination that would occur. So she’d have a very good claim for reinstatement.

Kim McLagan: Okay.

Andrew Douglas: They’d have to prove that there is no role. Now, the issue then comes back to the contractors.

Kim McLagan: Yeah.

Andrew Douglas: Okay? Could have she been redeployed? Could have they got rid of a contractor? And here’s the argument, this is the Peabody argument. Well, if we did have three contractors, but they had different sets of skills, and they were critical for the business and we couldn’t get them anywhere else, we just got them wherever we can, those skills. If we get them in Melbourne, Sydney, we would, we’d get rid of the one there because this is where our primary business is.

So on Peabody, I think what you’d end up saying is no chance of failure for genuine redundancy. Without Peabody, there’s an argument that sits there because it’s a large interstate business, acts nationally and there are contractors. So I just thought we’d flesh it out and see what happens.

Was the offer of a job in Melbourne with relocation expenses a reasonable offer? The answer is no because they failed to look at the personal circumstances of the husband, and they would be significantly worse off as a result because he’d have to lose his job. So no.

Kim McLagan: And you wouldn’t get teenage people moving.

Andrew Douglas: They’re not easy, are they? No. So DL’s obligation was, like it always is, when you look to relocate or to redeploy is to look at the individual circumstance of each individual, including their family circumstances like getting children’s school, you know, one of the child in VCE for instance. No way moving would be a reasonable thing to do.

So remember as you go to redeploy, set up a matrix of facts that relate to the person’s life. How far away they live, where their role sits. Can they travel interstate? Is it different obligations in the state now that you require them daily on site? Because we know that she was already travelling interstate, so it doesn’t seem to have been a problem. I think they’re in real strife.

Kim McLagan: Yeah, yeah.

Andrew Douglas: Okay? Okay, let’s go to, now over there.

Kim McLagan: Where are we?

Andrew Douglas: Does Dianne have a General Protections claim or unfair dismissal? I think she definitely has an unfair dismissal claim. And you can’t help thinking that part of the issue that sits behind this, the subjective test for Chuck is did she hit the radar as a result of her complaints made about Chuck? Now that’s a reverse onus that Chuck has. So you’d have a look at what was the plan that he put up, and then what was the plan that was accepted? So the evidence of the decision will be critical.

And the interesting part about this, which is always interesting is, usually the decision has been made months in advance and there will be emails and correspondence internally that proves that. And then the whole architecture of this is fabricated to make it look like a general decision was made at the last minute.

I think it’s unlikely to be true. So I think Chuck could be in trouble so the organisation, the General Protection stage, but certainly unfair dismissal, what has happened? He’s an unfair dismissal.

Kim McLagan: Yeah.

Andrew Douglas: Could Dianne have made a workers’ comp claim, Kim?

Kim McLagan: Yeah, she could have if she could establish a mental injury definitely as a result of Chuck’s firing.

Andrew Douglas: Yeah, and remember the mental injury test is higher in Victoria than is in Queensland. So it would be easier for accepting in the state regulation in Queensland is accepting all over again very, very quickly in Queensland. And that quiet period there where it didn’t do that about two years ago, but it’s back doing it again, isn’t it?

Anyway. Could Dianne argue a breach of safety discrimination law as she raised a safety issue and nothing was done about it? So in every piece of safety legislation, WHS or OS, there is anti-discrimination provision that says if you raise a safety issue and your termination arises causally, it’s connected to it, then there is a personal discrimination, which goes back to Patrick’s case.

I think she’s got an argument. Now, why is that a good argument? Well, this is a business that does not want the safety regulator inside its business. So it’s a lot of leverage. So I think she’s got an argument. Yeah. So there’s an interesting case. Look at all the different courses of action that exist, all the different risks that sit there all for Chuck being a jerk.

Kim McLagan: Yeah, real one.

Andrew Douglas: Yeah. Alright, see you later, guys. And thumbs up, next week is very exciting. You back here next week?

Kim McLagan: I hope not.

Andrew Douglas: You could be.

Kim McLagan: Let’s see.

Andrew Douglas: If you do it, then we’ll have lots of answers, there’ll be answers all the way to the problem.

Kim McLagan: You’ll be an a**hole.

Kim McLagan: An a**hole. See you.