Andrew Douglas: This is a really simple safety case. This is a case about a safety practitioner who, when confronted with an organisation that wanted to separate a report out, in some part privilege, some part direct findings, in their own concrete way, became offended, and thought, “This is a breach of due diligence obligations,”

Nina Hoang: Yeah.

Andrew Douglas: “And if it’s under privilege, you’re not going to do anything.” Now, that’s…

Nina Hoang: Yeah.

Andrew Douglas: Can I just say that’s so concrete and so wrong. We constantly use privilege to capture levels of risk, which are structural or organisational, to understand how we can address those using the resource of the organisation, and deal with the specific issues now through findings, but this was an unsophisticated safety manager who felt they were being thwarted, that there was a desire to hide safety.

Nina Hoang: Yeah.

Andrew Douglas: And then he started to behave badly by sending documents home privately.

Nina Hoang: Yeah, and to other people, as well.

Andrew Douglas: And including his girlfriend. Not the wisest thing to do,

Nina Hoang: Yeah.

Andrew Douglas: But not terrible behaviour, but I think what the organisation could see is this is a person who’s flailing, angry, and starting to do dangerous things. We can see where he is going with it, we need to stop it.

Nina Hoang: Yeah.

Andrew Douglas: And we terminated him. And he relied upon-

Nina Hoang: Discrimination.

Andrew Douglas: Discrimination in the safety law, and because he was raising safety issues, his employment was terminated. You remember earlier in Patrick’s case and a series of cases around safety discrimination. I think it’s really important to understand that safety discrimination does exist under safety law as a general protection, as well, okay?

So there’s two different, and it does have a reverse onus, but don’t push the wrong barriers, okay? He was a person who, had they have reflected on, well, what was the intention of doing it under privilege? Why were you doing it? And ask the right questions, rather than being confronting, and antagonistic, and destructive, would’ve realised that he could be a player in the big game of doing great things with safety rather than being an antagonist who just threw bombs.

Nina Hoang: Yeah, well, it probably also comes down to communication that they had with him.

Andrew Douglas: Yeah.

Nina Hoang: Had they kind of explained it a bit more, you don’t have to waive privilege to do that.

Andrew Douglas: No.

Nina Hoang: Maybe he wouldn’t have been so adversarial?

Andrew Douglas: Yeah, and I guess for our employers, the issue is if you’re going to do something which has major safety repercussions, do bring in your safety manager in the privilege protocol, and engage them in what are the outcomes and how you’re going to achieve it so they can get the clarity, and they understand that their concerns are being addressed, ’cause safety people are believers, you know? Like, they’re people who quite properly want to execute in a way that makes people go home safe every day.

So, look, interesting case, it shows how safety law does have these levers that can be used by safety practitioners or operational people where they’re prosecuting a safety issue and they’re treated badly, but here’s a case where an employer doing the right method to preserve their own protections from safety regulators, but still executing their duties, was bumped into by their safety manager, and the safety manager started acting in manners which were unlawful in their role as an employee.

So good case, but let’s get on the case study. Now, you’re reading today?

Nina Hoang: Yeah.

Andrew Douglas: I haven’t put in very hard words.

Nina Hoang: Dee was worried. Her employer, Super Strong Build, SSB, a large-scale commercial builder in Eastern Seaboard major cities, was not listening to her. She had raised the failure to enforce SWMS processes with contractors, and a lack of commitment to a High Order Controls strategy to manage complex sites.

Her boss, Cliff, head of operations, had told her to pull her head in and make sure she was out on sites doing the detail. She explained she couldn’t be everywhere, and Cliff’s foreman were old-school.

If she was not there, they bent and sometimes broke the rules. Cliff promised to chat to them at his town hall leader meeting the following Monday.

On the Tuesday after the town hall, Dee attended three Melbourne sites. In each, she observed unsigned SWMS, repeated breaches of traffic management, and scaffold obligations.

Frustrated, she wrote a terse email to Cliff, copying in the executive group about her findings. The email was flavoured with her frustration and anger. It contained photos of the obvious breaches. Cliff rang her and said very directly, she needed to stop what she was doing. If anything went wrong, WorkSafe would gain access to such emails, and she was exposing him and other executives to risk of prosecution. He invited her to a show cause meeting for obvious breach of obligations as an employee.

She went and saw her GP who filled out a certificate of capacity saying she was wholly unfit for work, as she was suffering from PTSD and anxiety relating to her fears of injury and death at work from SSB’s failure to act.

That weekend was her daughter’s sixth birthday. There were photos on Facebook of her singing “Happy Birthday,” surrounded by family and school friends of her daughter.

On the Monday, SSB issued her with show course notice as to why her employment should not be terminated, as she was obviously fit for work, copying in the Facebook posts. Her Facebook had full privacy protection.

Andrew Douglas: Okay, Jurecek is the leading Victorian case, and probably the leading Australia case. It’s a Court of Appeal case on your rights to go into Facebook sites, and you’re allowed to go into Facebook sites on full privacy settings under privacy law, where you’re undertaking an investigation, were you to notify the person they may be able to remove a post. So I don’t think that there’s too many arguments about the entitlement to look at her Facebook.

Nina Hoang: No, but they didn’t do any investigation, or what do I know?

Andrew Douglas: That’s right, and so the issue here is the flawed process probably blows their privacy protection, and they’re at risk straight away for the use that they’ve done. They certainly didn’t put that to her as part of any investigative process. So do the Facebook posts demonstrate that Dee is fit for work? Well, no, they don’t demonstrate anything, you know?

Nina Hoang: Right?

Andrew Douglas: There’s times when I’ve been under enormous pressure at work, and I’ve gone to family functions, and been the life of the party, and then gone home and had to work for six hours, and been distracted, really, all the way through it.

Nina Hoang: But also, the nature of the injury itself is psychological harm caused by work, and PTSD from work, so logically, you could be in a different situation and not feel the same, so that, it makes no sense.

Andrew Douglas: Yeah, does Dee have causes of action under safety law, discrimination, and general protection?

Nina Hoang: Yes, she does.

Andrew Douglas: Absolutely. So she has rights under illness protection as a protected attribute for discrimination.

Nina Hoang: She made a complaint, as well.

Andrew Douglas: Yeah, under safety law, and, sorry. Sorry, our screen’s telling us things. Under safety law and a variety of other issues, she has general protection requirements.

Nina Hoang: Yeah.

Andrew Douglas: Which are workplace rights.

Nina Hoang: And she has a right to a safe workplace, as well.

Andrew Douglas: Yeah, so there you go. So yeah, she’s got good protection there.

Nina Hoang: Yeah.

Andrew Douglas: Number four. Let’s see what our next question is. Would Dee have succeeded in workers’ compensation claim? Yes, she would without doubt.

Nina Hoang: Yes.

Andrew Douglas: Okay, because she has an injury, in all jurisdictions, which is the basis, the triggering point.

Nina Hoang: And the cause is to do with it substantially arose out of work.

Andrew Douglas: Yeah, so that’s fine. Were there general safety breaches, and if so, by who? Yes, there were general safety breaches. They were providing them with a safe place of work.

Nina Hoang: Yeah.

Andrew Douglas: And there was much more substantial breaches of primary duties, and perhaps reckless endangerment in relation to those major failings around scaffold and traffic management.

So there are broader risks that she identified, and they’re absolutely right. Her comments in section 100 notice in Victoria, and comparable 155 and 156, I think it is, on WHS, also would entitle the collection of all of that information and matters raised by her.

Nina Hoang: But that’s not to say you shouldn’t make complaints. Like, people have a right to make complaints, and raise things so that they’re fixed.

Andrew Douglas: Yeah.

Nina Hoang: And if you do that, the answer’s not, “Don’t put this in writing.” Fix the problem.

Andrew Douglas: But I guess one of the things here, and just briefly, ’cause we are running a bit over time, I want to raise is you get to be able to raise complaints. You get to be able to do things, but in your role as an employee is a much more circumspect role.

So what you can’t do as an employee is do things that are not in the best interest of the business. So in this case, what she’s done is in the best interest of the business.

Nina Hoang: Yeah.

Andrew Douglas: But the level of flavour she puts in her frustration can change that, so, pointing fingers, blaming people, being destructive in the way she can do it can fall her outside of her obligations to act in the best interest of the business, in accordance with the values of the business, which is a measure of what is good, so-

Nina Hoang: But I feel like if that were to bring a case, wouldn’t the discrimination and the fact that you’re taking it against her override the duties?

Andrew Douglas: Well, let’s just extend that, and just say that she made a series of allegations in it which were not factually-based.

Nina Hoang: Oh, I see where you can-

Andrew Douglas: That were defamatory

Nina Hoang: Be defamatory.

Andrew Douglas: Destructive, Those sort of things.

Nina Hoang: Yeah, okay, uh-huh, I see.

Andrew Douglas: And the fact that she was exercising a workplace right wouldn’t change the breach of her obligations.

Nina Hoang: Yeah, yeah.

Andrew Douglas: Okay?

Nina Hoang: Okay.

Nina Hoang: So look, that’s the reason I put the case, and that’s the reason we’ve got a whole lot of funny cases that are in there today is to come towards this final point of what we’re saying, is remember, employees have specific obligations of behaviour that sit around statuary obligations. It’s around common law obligations.

Safety is something which is preserved by all legislation and protected, so when you’re acting safely, you do have protections that are in it, but I want people to sit back and go, “Okay, we’re in the middle stage of getting into conflict. How do we get a proper consultation process together to move this change forward? And for our very beginning, how do I get this executive on board to deal with these issues rather than throwing confronting bombs at them?”

Nina Hoang: Mm.

Andrew Douglas: Now, imagine if a board charter had been involved at the beginning of this case, and there was that engagement? None of the problems that Dee experienced would’ve ever occurred.

Nina Hoang: Yeah.

Andrew Douglas: But what she was doing was fighting against them with shame, okay?

Nina Hoang: Yeah. All right, thank you.

Andrew Douglas: Great to have you along, Nina, I thought it was okay.

Nina Hoang: Yeah.

Andrew Douglas: You know, I thought the cases weren’t so bad, and thank you-

Nina Hoang: Okay. I don’t know if we’ll have it next week, ’cause it’s public holiday.

Andrew Douglas: Yeah, we’ll come back to you on that.

Nina Hoang: Yeah.

Andrew Douglas: I don’t think we will be having if it’s a public holiday, but great chatting.

Nina Hoang: Bye. Give a thumbs up.

Andrew Douglas: See you later. Bye-bye.

Nina Hoang: Bye.