Andrew Douglas: We’re going to go for discrimination. We’re going to talk very briefly about it. It is the major theme for today. Richardson v Oracle was a case of a woman, a quite senior woman in an organisation, who what Nina and I would describe as lawyers, was involved in a non-touch sexual harassment. It was innuendo, it was commentary, it was invitations for dates.

Nina Hoang: But it was repeated and insistent.

Andrew Douglas: And it was all unwelcome, all not wanted. It damaged the woman psychologically. At first instance she received the top of the non-touch sexual harassment awards which have been given which in those days, we called that a tariff. It was around about at $14,000. She wasn’t entitled to receive economic loss because the test adopted by the trial judge is her resignation and going to a lower job was a choice she made. It wasn’t the sole reason wasn’t what occurred. The court of appeals said, actually we’re going to attach damages or compensation for these things to the level of common law, and they increased it to a hundred thousand dollars and I want you to remember that number ’cause I want to come back to it.

Nina Hoang: And that was a long time ago though.

Andrew Douglas: Yeah, 2014. And secondly, that we all know that things don’t have to be the sole test, but if it’s the substantial reason behind it, it is sufficient. So economic loss was also ordered, which was very significant. The importance of this is now in sexual harassment cases for non-touch harassment, and harassment is more than a once off type of thing, you are sort of starting at a bottom of around about $20,000 general damages. That’s damage for pain, suffering, loss, the hurt you feel in other words. But it’s up to around about 120 to 150,000. For touch-based sexual harassment, it goes up from there and there’s been cases where general damages have been as high as 300, $400,000. And that economic loss is now being ordered like the common law. And what we’re talking about today is which was the second case, which is like-

Nina Hoang: The one from last week, Gutierrez.

Andrew Douglas: Gutierrez, that is now being extended beyond sexual harassment to other protected attributes.

Nina Hoang: Yeah, like age.

Andrew Douglas: Like this one, age. It could be disability, it could be all those things. So what I want you to understand is, now as the common law tariff is going up, so are the discrimination and harassment tariffs, and that includes some one-off discrimination or repeated harassment.

Nina Hoang: Yeah.

Andrew Douglas: And therefore, these claims are now in the hundreds of thousand dollars north of a million if it includes economic loss with a reverse onus from effectively that sits there because it is a prohibited sexual harassment, sexual discrimination, hostile workplace with a positive duty to prevent it. Then the punitive damages part is also going to increase, and the punitive damages hasn’t moved greatly. But now you’re told you mustn’t do it. Okay, so it’s prohibited. You got a positive duty. If you don’t do the things, not only are you going to get general damages, you are going to get punitive damage, and that goes straight to reputation.

Nina Hoang: And it’s just easier now to file these claims than it was back in 2014 with the hostile work.

Andrew Douglas: Okay, we better go to the problem, don’t we? We’re going to jump ahead. Sorry, that was going to be a 10 minute thing, but we waxed on about other stuff.

Nina Hoang: All right, Mac was a maintenance fitter. He was known to be rough around the edges. His manager, Paul, had heard him swear, become angry, and knew that the young apprentices were scared of him. There were three apprentices. Two male and one female apprentice, Di. Mac had a wife, Janine, she and Mac had a difficult relationship marked by loud and rude exchanges when they were upset.

Everyone heard them in the maintenance era. It was a common feature of morning tea, smoko, with Mac shouting down his phone, and Janine shouting so loud back that she could be heard as well. The calls included sexual remarks and disparagement of him as a male and her as a female. Paul told him to stop, but when Janine rang and raged him, he raged back.

On the day in question, Janine rang at smoko time. She was angry as he had accidentally taken her car keys with him. She needed them to get the kids to school. They lived a block from the factory. Mac told her to drop by and she refused. She said it was his fault and he had to bring them home. She called him a dumb idiot. The language and the volume got worse, and eventually Di started to cry and put her hands over her ears.

Mac looked at her and shouted, ‘Stop your baby crying. You stupid dumb.’ Di ran from the shed so distressed she didn’t see a truck entering the yard and was struck and killed. Paul spoke to him after the incident. He explained that he’d been present, and it was serious misconduct. Mac was still distressed by what had happened. In fact, he was overwhelmed. He cared a lot about Di. Although she hated his language, they worked well together.

He couldn’t respond to Paul. He just said, ‘Mate, I’m staffed. Can you gimme a day? I can’t think or talk.’ Paul summarily dismissed him. Di suffered depression and PTSD from a violent father. Her psychologist said it was likely the loudness and abusive nature of the call had distressed her, not Mac himself. She had confided in the psychologist saying she felt safe with Mac no matter how rough he was.

After he was terminated, Mac explained to WorkSafe that he was yelling at his wife who started putting on her usual alligator tears, and looking to Di for support and to give him some comfort. He was devastated by what happened.

Andrew Douglas: Okay, I think alligator tears is crocodile tears. That’s just me never being allowed to use those things when I was a kid, and making them up when I’m an adult.

Okay, so the first question is could Mac successfully claim he was unfairly dismissed?

Nina Hoang: Well, yeah, I think the valid reasoning we’d have is the fact that sexual harassment, bullying, exposure, hostile workplace. But there was no procedural fairness.

Andrew Douglas: Yeah, well not only that, he’d had all that behaviour and there’d been a condemnation throughout of it. So I think the most important part of this is he wasn’t given an ability to explain what happened. It would be a line ball. He may or may not succeed. Who knows?

But I don’t want you to think it wouldn’t be without merits. That’s what I wanted to put up there.

Okay, the next question is, “Was Mac’s vulgar, rude, and abusive language capable of being described as sexual harassment and bullying?”

Nina Hoang: Yes, it didn’t have to be targeted. It just had to be like exposure to it. And a reasonable person in that situation could have felt belittled, and uncomfortable, and offensive and all that.

Andrew Douglas: So look, can you see the difference? And this is why we’re using this problem today is to expose lead case. All those cases and say, well look, what is it? Because it’s serious. And then with the duties that exist under the new legislation, it’s incredibly serious.

Nina Hoang: And I think the key thing is it’s so easy for it to come up. Like, it’s not going to be like the very serious examples you see, like you said, the touch examples. But I bet you this kind of behaviour is happening in workplaces all around, and employers are saying, well, I’ve told them to stop. That should be enough. What we’re saying is that is not enough.

Andrew Douglas: And what we’re also seeing immediately after the change in legislation is change in plaintiff law firm behaviour to identifying these behaviour where condemnation is seen as a very substantial breed of duty to employees.

So that brings us to the next question. “Did Paul’s failure to stop Mac create hostile workplace?” The question is unquestionably. So remember, hostile workplace will be used as something pleaded in a claim about an individual breach. You sexually harass me in this way and you did nothing beforehand, and it was already a hostile workplace. What that does is two things. It puts up punitive damages.

Okay, pushes ’em through the roof, and it pushes up general damages. So and it creates an atmosphere which show you had no proper safe system of work in place, and that you were careless in respecting people.

So as I said, I want you to be aware that’s what this is about. Let’s go to the next question.

Nina Hoang: Yeah, so OHS laws yes, because of breach-

Andrew Douglas: I better read that. “Could Mac, Paul, and the business be charged with breaches of OHS laws, and if so, what would they be?”

Nina Hoang: Yes, so primary duty breaches, and including under section 25 against other employees, and also reckless endangerment.

Andrew Douglas: Yeah, so I think at the moment I think Paul’s in a real bit of strife. He’s a person who’s permitted this to go. He’s been aware of it.

Nina Hoang: He’s been indifferent to it.

Andrew Douglas: Yeah, and the business unquestionably would be liable. So definitely primary duty, the death, although it appears incidental, is not a part of any of those charges, but there’s a matter that goes towards aggravation and damages. So I think that the business would be looking at a fine greater than $500,000.

Nina Hoang: Yeah, definitely.

Andrew Douglas: Okay, “Could Mac successfully bring a workers’ comp claim?”

Nina Hoang: Yeah, this one is interesting ’cause I feel like, it’s definitely something that’s come out of work. But yeah, I don’t know.

Andrew Douglas: Okay, so interesting question. So he’s been terminated. That doesn’t prevent him putting in a workers comp claim, step one. Two, it’s devastated him. It’s something he never intended to do, and it rose out of work.

Nina Hoang: And he’s being blamed for it, yeah.

Andrew Douglas: And he wasn’t grossly, grossly… It’s not negligent. I’ve forgotten the words that are used in this, but it wasn’t gross misconduct because it was conduct which was permitted. So the answer is, I think his claim would be successful. It would be one which is devastating to the business ’cause they’d go, what do I do with it? But the answer is the business was the author of it. That’s why when you let this behaviour go, you are going to… Now he’s never going to come back to work. He can never come back to work because the nature of what occurred. So his claims say the business had, you know, 5 million REM, and we know that it was a manufacturing based business. Their premium was probably already five to $600,000. This is a 600, $700,000 premium hit.

Nina Hoang: Yeah.

Andrew Douglas: Okay, so it’s major. Now, “If the CEO was aware of Di’s vulnerability and Mac’s repeated bad behaviour, could he be prosecuted for industrial manslaughter?”

Nina Hoang: Yes.

Andrew Douglas: So the answer is yes, but let’s talk. Thanks, that was good.

Nina Hoang: Well, he’s an officer.

Andrew Douglas: Was there a breach of duty? Yes.

Nina Hoang: Yes.

Andrew Douglas: Was it a gross breach of duty knowing the level of risk?

Nina Hoang: Yes.

Andrew Douglas: Yes. Did it result in someone’s death? Yes.

Nina Hoang: Yes.

Andrew Douglas: Okay, industrial manslaughter. Now guys, I’ve got to tell you that’s time for tonight. Thanks very much.

Nina Hoang: Thanks, Andrew.

Andrew Douglas: And thank you very much. We need thumbs up. Can we have that? See you later guys, bye-bye.

Nina Hoang: Bye.