Andrew Douglas: I think we’re onto our main topic, aren’t we?

Kim McLagan: Yes.

Andrew Douglas: We are. Whether we like it or not, we’re onto our main topic. This is me who put this on, and I guess for 35 years, I’ve been the partner or principal who’s been in charge in dealing with the washup of Christmas parties, dealing with all misconduct in businesses. And I’m pretty tired of it.

Kim McLagan: It’s kept you busy.

Andrew Douglas: It’s kept me busy. Not billable, unfortunately. And it kept me busy for a couple of really obvious things. And this is even just internally in the businesses I’ve been in. And that is, it is not hard to stop people bullying and sexually harassing people. I just want to be clear, it’s not hard. One, there has to be real consequences when someone crosses that line and you’ve got to act on it. But more importantly, you’ve got to build a culture where it doesn’t happen. Now, it’s not helped by our courts, can I say? Because our courts are built upon legislation which is beneficial legislation, which means if someone sacks me for misconduct, the Fair Work Act is designed to protect me.

It’s a beneficial piece of legislation. But if the person who I harm gets hurt, it’s beneficial legislation in discrimination law. So I may not get sacked, but the person will definitely win a sexual discrimination claim. So it’s weird, isn’t it? And workers’ compensation is beneficial. So the person who is harmed will also win a workers’ compensation claim. But do you see where the beneficial part of it falls? It means that at times, the perpetrator may get away with it, but the injured person will have cause of action. That’s really complex. And what it misses is that safety law sits under it all and says when you’re at work, you must be safe, and the employer will be liable. And on top of that, we’ve now got positive duties throughout Australia, except for Victoria, in relation to safety, to eliminate the risk of psychological hazards.

One of the two egregious forms of psychological hazards are bullying and sexual harassment. So as an employer, we’ll come back to Victoria in a second, you must be satisfied that you have methods in place that people have knowledge of what is wrong and they will not do it. So it’s not enough of saying, “We’ll give you each two drink tickets.” It’s a matter of actually making sure people clearly understand what they’re not to do, to have them supervise their work function. Remember, when you’re at a work function, your supervisor still supervises. I want to be very clear about that. They may not be paid for being supervisors, but because safety law is attributional, that is the action of your supervisor’s failure to intervene when they see something is a liability of the business, per se. The business will be liable. Now, there is also a change in the positive duties around sexual harassment and providing a non-hostile workplace that exists throughout Australia, under anti-discrimination legislation.

That’s, again, a positive duty to make sure that when Kim comes to a Christmas function, she is completely safe. Bit different from last year. You see what I mean, how different it is? So what does that look like? And I thought what might be fun is to talk about Leighton, Keenan and Leighton, which is an old case now. I think it’s about a 2013 or 2015 case. I can’t remember. But it’s where a guy turned up. He worked for Leighton’s. He came to the Christmas party. He behaved badly throughout the Christmas party. He was blind drunk, saying shocking things he shouldn’t have said. After the party was all over, he then met up at a bar with some people afterwards. He actually tried to crack onto the HR person, said some shocking things during that process, touched a few people. And so there became this argument. Can you hear the beneficial piece of the legislation? So he was given a slap across the wrist, but Leighton were told off for the way they managed alcohol and condoned behaviour at the Christmas party.

So he didn’t get into trouble about that, not bad trouble. Certainly, the summary termination didn’t stick for that. And the afterparty was seen to be out-of-hours conduct under Rose and Telstra. And, perversely, they said, and it’s not good law, by the way, this case is not good law, but said, “Well, no, it is out-of-hours conduct. It didn’t go to the heart of his contract. It didn’t interfere with what his future, the three tests under Rose and Telstra. Therefore, he can’t be punished for that, either.” Now, I don’t think that’s right. I think that the fact that he did touch and do things to a person who was a co-worker makes it impossible for him safely to return to work and be responsible to them on any basis, in my view. And there’s an Adelaide case that comes up, Adelaide, around about a sexual assault that occurred afterwards. Makes it very, very, very clear that that is out-of-hours conduct that does fall within Rose and Telstra. But I’m just telling you what this old case says because it shows the level of complexity that sits in these issues. And it speaks to this issue of, well, I’m going to have a Christmas function.

I went to one last night. What are the rules around the Christmas function? Okay, well, the rules are really clear. People know before they attend that function. It’s not enough just to send an email around. They know absolutely, through their team leaders, what will and will not be accepted. The people who are present as leaders know what their obligation is. There is proper observation around alcohol consumption and around conduct. And the slightest move is off you go home. And there is a clear understanding that after that function closes, there is no more function. There is no afterparty. And if you go to an afterparty, be it on your own. But if a senior leader goes to an afterparty, the senior leader has to understand it will become a work function, and they have a responsibility and a liability for the business.

Because I think you and I see too often the senior leader putting over the company credit card three hours later at a bar, at a bar they should never be at, and something occurs. So it’s not hard to do this right, but I guess I just wanted to highlight the law has changed. And so the expectation of have you done a risk assessment? And the risk assessment might be, Kim might say, “Yeah, Andrew’s a dangerous guy around alcohol. We need to talk to him beforehand.” And I mean that. That might be the risk assessment. The risk assessment might be you’ve got two or three people who’ve demonstrated in the past poor behaviour around the consumption of alcohol. You might ban alcohol. That could be it. You may say to people, “You can’t come in the room if you’ve been drinking.” Whatever your control is, is your control. But I can think in every law firm that I’ve ever been in, there’d be two or three people, as part of any risk assessment, I’d go and have a chat to and say, “I’ll be watching you.”

Kim McLagan: I’ll be watching you.

Andrew Douglas: And if your behaviour moves, you’re out. And if you do that, it’s breach of the law for unreasonable direction. And you’re not only out the door there, you’re out the door of the firm. So I thought I’d raise it up. It’s just not hard to do. But you got to understand, these positive duties do require you to assess the level of risk beforehand. Look at the history of what has occurred beforehand, and introduce controls, not to manage it, but to prevent the risk from arising. So that’s my pitch. You can tell I’ve done it so many years in a row, can’t you? What about you, Kim? What do you think? We’re not seeing less, are we? That’s the problem.

Kim McLagan: No, we’re not. And, I mean, that BHP, Rio Tinto case just demonstrates how appallingly people behave, even on a day-to-day basis. So it’s just, it all comes down to the culture and just treating people-

Andrew Douglas: The willingness to stand up and say no. Do you know that the data’s just shocking? So the data is that all women by the age of 40 have suffered some form of sexual harassment. I think it’s over 25% of women have experienced, in their last job, sexual harassment. All people have experienced bullying in their life. 18% of people experience bullying in a year in their workplace. That’s nearly 1/5 of people in a year experience bullying in their workplace. Now, they’re not figures which you can challenge. They’re just the truth. And it says that as a cohort, humans are pretty bloody ordinary. And so culture does have to be defended. It has to be fought for, you know? I think we said in our sexual harassment training, you know, “You are my praetorians. It’s your eyes out there that stop things happening. Because by the time I see it, someone’s been harmed.” That has to be the workplace that we live within. Why don’t check it out with our problem? Why don’t we go onto our case study? Got a few pages. I got a bit carried away again.

Kim McLagan: Okay. Okay. Okay, Dave was a crew manager at the Abbotsford site, one of 12 sites being developed by Garcon & Gates, the builder in the greater Melbourne area. Dave had completed his online bullying and sexual harassment training in late December. Several documents, including the sexual harassment, discrimination, and bullying policy, appeared on his computer throughout the month. These had to be acknowledged before he could use it. Garcon & Gates held their annual usual Christmas party at the casino on the second Saturday of December, with over 400 construction workers and their partners in attendance. Dave had frequent issues with the head of safety, Natalie Strong.

He was often rude, belittling her in front of co-workers, but she was tough. Although polite and respectful, she gave as good as she got. Natalie was a university educated woman who dressed in tailored suits, except when onsite. To Dave’s ear, she sounded rather pretentious, like a precious private school girl. Dave was a chippie, smart, hardworking, but recently separated and embroiled in a bitter divorce and custody dispute over his children. Always a bit of a drinker, he arrived at the casino pretty charged. Natalie enforced a safe drinking policy at the casino. Each person was only given three tickets, allowing one alcoholic drink per ticket, but that didn’t stop Dave. He collected spare tickets from many of his staff who were from overseas and had cultural reasons not to drink. As a result, he got hammered.

Andrew Douglas: You like that? The vernacular.

Kim McLagan: When Natalie saw him intoxicated, she approached him and suggested he leave, offering to arrange transport. As she put her hand on his shoulder to guide him out, he responded by placing his hand on her buttocks, squeezing it, laughing along with several other men before leaving the room. He then went down to the gaming area and returned two hours later, after the event closed, at 12:30 a.m. Only Natalie, his head of operations, and one other crew manager remained. He was obviously drunk, made rude and suggestive comments to Natalie, and then left, telling an older man at the door to “get out of his effing way,” who turned out to be the CEO. On Monday morning, he was directed to attend the head office on Collins Street, where his employment was summarily terminated. Okay, so could Natalie have a successful sexual harassment claim?

Andrew Douglas: Yes.

Kim McLagan: There’s no doubt.

Andrew Douglas: Absolutely, no doubt. So remember when I was pointing over there to discrimination law, beneficial legislation, unquestionably, she has a claim. Could she have a bullying claim, historical bullying claim? Yes, she could. Not so much, I mean, that might play out in a common law claim, but there’s a bullying claim, a stop order, it would be resolved. He’s been sacked. He’s gone. So the bullying claim is really a common law claim. A worker’s comp claim, Kim?

Kim McLagan: Yeah, she would.

Andrew Douglas: Yeah, absolutely.

Kim McLagan: Even though it’s a work event outside of the hours, it would be definitely in the course of employment.

Andrew Douglas: And here’s the one I chucked in. Is there a general protections claim? Yes, because he’s got a discrimination claim, which is a protected attribute, and his behaviour towards her had breached that protected attribute, and the organisation should have prevented it. So she does have a general protections, and that’s not nice for them because the fact that it has occurred is an admitted fact, ’cause they’ve sacked him. And, therefore, the reverse onus is on them to show that in respect of her.

And the general protection claim, of course, is they do something bad to her as a result of it. So there has to be, they say to her, “Look, I think you need to stand down for a while or do something.” It has to be a bad part that comes to her. There’s no bad part, no claim. But, commonly, it does happen after a sexual harassment claim. And HR people, particularly, are then treated badly as a result of raising an issue that relate to them. So it might be, “That’s enough of that, Natalie. You know, you dealt with it. He’s sacked. Get on with it.” Remember, general protections claims can arise after termination or during the course of work.

So I just put it in there to show you it’s a live issue. And when someone raises a complaint. And I don’t know how I knew about BHP and Rio beforehand, but whole part of that case is about people being fearful of advising in respect of allegations, ’cause of the consequences for the person who did it. It’s very similar in HR, who are often caught between quite aggressive management who do the right thing and fire the person, but then really take it out on you as the person who created the risk afterwards. So it’s there, it’s only a small issue. I just wanted to tag it. Breach of safety law. Totally, okay? What about Rose and Telstra? Was this out-of-hours conduct? So for Rose and Telstra, you’ve got to ask these questions. Does it go to the heart of the contract the person is with? So by doing what they did, did they affect the contract? There’s an argument they did. Did it interfere with the capacity to work safely with another person? Absolutely, and that’s the trigger.

Does it go, again, does it go to the reputation of the organisation? Yes, it does. So on two out of three for Rose and Telstra, it’s only needs one. It is definitely part of work. And I guess that’s why I wanted to push this, why I put Keenan up early, ’cause I think it was wrong, wrongly decided, Keenan. But there’s a whole lot of cases like Keenan that decide, absolutely, behaviour which follows a Christmas party, with senior people at that Christmas party where behaviour is permitted, Rose and Telstra, okay? Let’s have a look at the next one. Did Dave have a viable unfair dismissal, assuming he was given procedural fairness? What do you reckon?

Kim McLagan: I’m trying to remember the facts.

Andrew Douglas: Oh, come on, you just read them. So he did some bad stuff during the party, but he was allowed to drink in the manner in which he was, and nobody stopped him until such time as he was directed out. And then he sexually assaulted Natalie Strong. I think he’s in real trouble with the sexual assault. And the Fair Work Commission, at the moment, is basically got a hard line, particularly under Hatcher as president, which is if you sexually assault somebody, it doesn’t matter about procedural fairness, you’re out the door. So I think he’s in heaps of trouble. What occurred afterwards, Rose and Telstra argument, I think is enough to immediately terminate, without any doubt at all. So he’s gone.

Kim McLagan: Good.

Andrew Douglas: Now, what are the psychological hazards that occurred? So there’s, obviously, the sexual harassment that’s occurred, but there is also this differential treatment that exists across an organisation. So there is the operational justice problems. It’s really just a big one, sexual harassment, but there is a whole lot of condemnation, which brings all the others back into play. And I think when you’ve got somebody who is a national safety manager, like Natalie, trying to drive safety, and a person like this historically treats it badly, and other people allow it, sexually harasses and other people laugh, you realise there is a much bigger set of psychological hazards that exist than sexual harassment.

So, I wanted to put that in ’cause I wanted to say to you, we have to do a new analysis around behaviour, which is to look through the lens of psychological hazards there. Before we just said they behaved badly, but what is it about their behaviour that is bad? More importantly, how does it harm people? And there’s harm going on all the time in this story, not just to Natalie, but to a whole lot of people, because of the culture that existed. And as I said, this was written before we got the Rio and BHP class action notice. There’s a story that speaks to the very issue we’re talking about. I don’t think we’ve got any more questions, do we?

Kim McLagan: That’s it. We’re done.

Andrew Douglas: We’re done. So can you give us the thumbs up ’cause we’ve worked very hard with very little notice. And we’re very tired and we just want Christmas to come. And Santa, please come early. Thanks very much. We’re back on in February, okay? So we’re taking a break- Having a break. For a month there. Thanks, Kim. Lovely to catch up this last time. See you soon.

Kim McLagan: Bye, everyone.

Andrew Douglas: Bye-bye.

Kim McLagan: Have a merry Christmas.