Andrew Douglas: The main topic. So the case that talks about the right to disconnect is Kalleske’s case, and it’s the first right to disconnect. It was actually an underpayments case that also alleged a general protections claim around the right to disconnect. How are you with the facts on this one?

Kim McLagan: Not too bad. So the employee was a hairdresser, small business, and it just seemed the owner would constantly contact people outside of working hours, when they’re on leave, when they’re at trade school, when they’re sick.

Andrew Douglas: At any time.

Kim McLagan: There were no boundaries at all. And the commission held, yes, that was unreasonable, but it didn’t breach the provisions of the Fair Work Act.

Andrew Douglas: Yeah, and I think the reason I like this case is a very bold decision, which is this is not about the fact that the communications occurred. It’s the expectation that there will be an adverse impact as a result of you failing to respond to or to read those communications.

Kim McLagan: And, in this case, there was no consequence for her not responding to the communication at all.

Andrew Douglas: Not at all. But there would’ve been a number of other arguments around if the person said, “Look, I’ve been constructively,” whatever their arguments were, because this is quite clearly inappropriate behavior. It’s quite clearly unreasonable. It’s creating pressure. It could create bullying. It’s certainly misconduct if that manager was an employee, not an owner.

Kim McLagan: Yeah.

Andrew Douglas: So it would

Kim McLagan: Be bullying behavior.

Andrew Douglas: Yeah, and they’d be terminated. So one of the problems with owner-based businesses who do these things is there is no punishment that sits with the owner, nor is there any general protections claim. But if at any stage I say, keep that message, “Why didn’t you respond to that? If you do that again, you’re in trouble,” GP clicks in like that. Which is sort of fun ’cause we can go into the case study, which sort of agitates that issue to test it a bit more.

Kim McLagan: Okay, all right, “Naomi was the Victorian sales manager for Sucks Vacuum.”

Andrew Douglas: Do you like those names?

Kim McLagan: I do. We were talking about vacuum cleaners this morning. “Which was a vacuum cleaner manufacturer in Carnegie. The company manufactured traditional vacuum cleaners modelled on a 1960s style, but incorporating high-tech capabilities. These products were particularly popular in urban areas of Australia, including Northcote, Collingwood, Fitzroy, and Carlton, and Greater Melbourne. Naomi had a low base salary of 120,000 per annum and earned most of her income through commissions based on sales and profit margins. Naomi’s role involved selling products wholesale to large electrical and white goods retail chains.

Although Victoria was her territory, her three major contracts were Australia-wide with businesses such as Harvey Norman. However, the owners of the retail chains were increasingly putting pressure on prices, which reduced her margins. Nick, the national head of sales, were becoming increasingly distressed by the decline in margins and the resulting reduction in profits from Naomi’s clients. Like Naomi, he was very busy and he often sent messages to her late at night. If she was still working, she would respond, but she did not always reply outside of working hours. Naomi became concerned that the tone, frequency, and demands of Nick’s late-night emails were beginning to affect her emotionally.

Eventually, Naomi wrote to Nick requesting a meeting to discuss his emails and attached several examples. She copied in Deidre from HA,” “HR,” sorry, “who had agreed to convene and facilitate the meeting. Before the meeting, Deidre spoke to Nick. He listened carefully, responded, ‘Great,’ in a dejected voice, and added, ‘Why won’t she just do her job?’ The meeting went poorly. Nick sat alone at the end of the table, remained stubbornly silent. And towards the end of the meeting, he stood up, looked at Naomi and said, ‘I wouldn’t have to do all this chasing if you just did your job and responded to me. I expect at least the courtesy of a response when I write to you. The door to your short-term incentive is closing. Just stop complaining and do your job.’”

Andrew Douglas: There you go.

Kim McLagan: So, Andrew.

Andrew Douglas: Are there any workplace health and safety issues? Well, they’re clear, psychological hazards that are being done, and they’re not being controlled and they’re causing harm. So, yes, they are. And, interestingly, that Naomi’s raised a complaint around safety and, as a result of raising that complaint, is being treated adversely by Nick, so there’s also the discrimination provisions of the OHSA.

Kim McLagan: Okay.

Andrew Douglas: So, yeah, who’d be responsible in that case? Nick’s definitely responsible. Sucks Vacuum is definitely responsible. Would it be prosecuted? Unlikely at this stage.

Kim McLagan: Yep.

Andrew Douglas: Okay.

Kim McLagan: Okay. Was Nick bullying Naomi? Yep.

Andrew Douglas: Absolutely.

Kim McLagan: Repeated, unreasonable.

Andrew Douglas: Yeah, unreasonable that hurt, intimidated, or humiliated and made the place unsafe. So meets all the things. So could Naomi bring a general protections claim based on her right to disconnect? There was a workplace policy, and her employment contract included a requirement that she be available outside normal working hours when reasonably required by the needs of business. And this goes to the heart of 333M in the Fair Work Act. This goes to the first test is, was the communication reasonable? And the answer is no.

Kim McLagan: No.

Andrew Douglas: So even though the contractual and policy protections are there, which would make it reasonable for her to have to respond, the tone, nature, and the challenge in it in itself made it unreasonable. And, therefore, the requirement that she respond was the next step that makes it adverse and, therefore, it’s a GP claim.

Kim McLagan: Yeah.

Andrew Douglas: Okay. So really good. But you’d have a few other claims while you’re at it.

Kim McLagan: Yeah, well, she’d have a GP claim because he’s threatening her incentive because she’s just brought a complaint as well.

Andrew Douglas: That is right. So there’s some other really much easier ones to bring, but it’s up and running.

Kim McLagan: Yep.

Andrew Douglas: Kim, over to you.

Kim McLagan: Were there workers’ comp claim risks? Absolutely, and absolutely no defense.

Andrew Douglas: No defense. That’s the end of that one. That’s good, isn’t it?

Kim McLagan: Yeah.

Andrew Douglas: What actions should the business take in this situation? The answer is sack Nick.

Kim McLagan: Yeah, exactly.

Andrew Douglas: Put your arms around Naomi and sack Nick, there are the answers to it. Gee, that was an easy one, wasn’t it?

Kim McLagan: That’s good.

Andrew Douglas: Yep. Great to catch up.

Kim McLagan: You too. Thanks.

Andrew Douglas: See you next week. Cheers.

Kim McLagan: Bye.