Andrew Douglas: I think over the last, well, Nina’s been away lot, so I can’t really talk about that. But we have had, between us, a number of cases of social media behaviour inside organisations and it falls into two categories. What is social media behaviour that forms part of employment? And what is social media behaviour, which is outside of employment, but under Telstra. Telstra case forms part of it for effective discipline and control.

Nina Hoang: Yeah.

Andrew Douglas: Okay. The case we’re going to deal with is Breanna and what’s the name of the case? I always forget the last part of the case, but anyway.

Nina Hoang: And The Dolphin Hotel.

Andrew Douglas: And The Dolphin Hotel. Yeah. What a great name. Breanna and the Dolphin Hotel. So in this case, it’s a really complex case, but effectively she was a person who underperformed as a bar manager. They talked to her about that. She agreed she’d been underperforming. They had a discussion about her behaviour and being a positive influence on staff. She then took to social media, which was a WhatsApp group of people.

Nina Hoang: Dolphin fan bam.

Andrew Douglas: Fan bam, wasn’t it?

Nina Hoang: Yeah.

Andrew Douglas: Yeah. And then sort of encouraged people to criticise management and acted in a really inappropriate way.

Nina Hoang: And then removed management from the group too, so they couldn’t see it.

Andrew Douglas: Yeah. Dumb really, isn’t it? They should have fired her for just being stupid. But did I say, I didn’t say that, did I? I did. Sorry. I’m tired.

At the end of the day they had a whole lot of problems with her. This wasn’t the only problem. This was one of a whole lot of problems. So she would’ve been sacked anyways is the truth of it.

Nina Hoang: And they did talk to her about it. Like they didn’t just go to sack her.

Andrew Douglas: No, no, the process they’ve done is terrific, but what they basically said is, this is part of work. Now, it wasn’t argued well in the case, okay, because there could have been some very good arguments about the timing when things were done, about the nature of the group that was being involved. But the short answer is even if this was outside of work when they’re making this communication.

Nina Hoang: Yeah, on her private social media.

Andrew Douglas: Yeah, on her private social media, it would go to the heart of the nature of their relationship because it identified the employer. It was critical of the employer. So it goes to reputation. So regulation 1.7, what serious misconduct, something which goes towards the reputational financial viability of the business or safety of it. And it undermined the relationships that exists in there.

So it’s clearly a breach of a prior, lawful and reasonable direction. So whether it’s out of work conduct or in work conduct, I think there was an argument that could have been mounted better on the out of work conduct. But the fact that is a WhatsApp group with only employees, whether it’s voluntary or not, and they’re talking about work and people at work and they’re saying bad things about people at work.

Nina Hoang: Such a clear connection.

Andrew Douglas: Yeah. I think it’s terminable. So I think it’s just a great case because people have Slack channels and methods of communicating internally. And I look at them when I’m acting for people and there’s stuff on there that should just never be there. There’s stuff on phones when we download phones that people should never have said to other people.

Nina Hoang: Yeah, but I think why this case is important is outside of all those channels, which are very clearly linked to work, you know, Slack team channels are things you use for your work. Now what the cases are saying is for social media unconnected to work, there can still be a connection going back.

Andrew Douglas: It goes back to Jurecek and the Minister of Transport Case here, which basically says, look, privacy only gets in the way of investigation if it would be okay for you to ask Nina first before we went and had a look at her post, but if likelihood she would delete the post, then you can go to the post even if it has a high privacy setting. So privacy settings alone don’t prevent you from looking at it. But that’s a more complex issue we can talk about another day.

But look, I thought it was a fascinating case. And I really do think it reminds people, particularly at the moment when we’ve got this virtual working environment.

Nina Hoang: And keyboard warriors.

Andrew Douglas: Yeah. And we do have keyboard warriors. They’ve really taken off. There’s a whole army of them out there where people are starting to say and do things ’cause they don’t have to sit next to someone. I think it’s probably time to draw a bit of a line in the sand in all business and say, look, good conduct is good. It’s not this. And if you do this sort of behaviour, we’re going to deal with it.

Nina Hoang: Yeah, but Andrew, it’s clear that it’s not just a free for all, right. Like, employees still have a right to say their thing, but it’s just whether it’s very clearly identifiable as the employer. So there is that delicate balance.

Andrew Douglas: Yeah, there’s an interesting case with the, his name is escaping me.

Nina Hoang: Yeah, the very complicated name.

Andrew Douglas: Who was the prison warder, the case where he was part of the new right and he was saying some pretty horrible racist sort of things, but it wasn’t about any individuals, it was just his views. And they’re pretty bad, now in some organisation that behaviour would be fatal for his employment as well if it was directly connected to the nature of care or advice-

Nina Hoang: And his role.

Andrew Douglas: Yeah, anyway, good decisions. Good discussions.

Nina Hoang: Interesting case.

Andrew Douglas: All right, well look, we’ve done that. We’ve done and dust. Let’s go onto the problem.

Nina Hoang: To the case study.

Andrew Douglas: Here you go.

Nina Hoang: Naomi was tired. It was the end of the month and her role in accounts meant she had to help settle the monthly accounts and have reports ready within three days of end of month. As the senior accountant beneath the CFO, the crazy task of getting financial information from people throughout the business who habitually failed to hit deadlines and follow policy was a nightmare. She felt it was thankless.

Flexible work meant her team were only in the office two days a week. She realised that absence prevented some of the simple methods of chasing information by walking to where a person works and asking it. Now it was just endless emails. She told the CFO, Miles, her concerns and asked him what was wrong with coming to work. He explained if we go back to people always coming to work, no one will work for us and our best employees would leave. Naomi considered herself one of best employees and she came to work every day.

Andrew Douglas: You can see we’ve got a problem with Naomi there by the way. I just thought I’d add that in just to highlight it.

Nina Hoang: On the day before the end of the month, she rang Miles. She explained in a somewhat overwhelmed and excited fashion that operations had not forwarded any relevant data and she and her team would be up all night the next few days to meet his arbitrary deadline. Miles had grown accustomed to Naomi’s sense of high dudgeon.

Dudgeon?

Nina Hoang: Yeah, that’s right.

Andrew Douglas: No, I put it in for you.

Nina Hoang: He explained it was not his deadline-

Andrew Douglas: High dungeon is being overly excited, fearful of everything.

Nina Hoang: I feel like she just smelling where the blood in the water could be.

Andrew Douglas: Could be-

Nina Hoang: He explained it was not his deadline, but a mandatory reporting deadline for the owners. He said he understood and would chase operations and apologise for the pressure.

When he spoke to the head of operations, she explained all information had been provided on time and Naomi was caught up on one of their characterisations of waste and wouldn’t accept it. She said it was the method they always use. When Miles rang Naomi back, she flipped out. She said, ‘How dare you go behind my back. The way they describe waste is critical as the KPI is no more than 2.5% and they say 2.1% and on my calculations it is 3.1%. I can’t move forward until it is resolved.’

Nina Hoang: There’s some promise to Naomi, isn’t it?

Andrew Douglas: It sounds like so much fun.

Miles said to use their method and he’ll arrange discussion later to settle it. She burst into tears and hung up. She immediately messaged her 2IC Kane, a habitual whiner.

Andrew Douglas: Nothing to do with Kane by the way,

Nina Hoang: Sorry.

Andrew Douglas: Nothing to do with Kane, it’s not why I chose the name.

Nina Hoang: Okay.

Complaining that Miles didn’t back them on waste and doesn’t care how hard they work. He messaged immediately calling Miles a number of unsavoury things to which she posted a smiley face.

Late at night, Naomi went online to fix the waste issues and connected on Slack with her team, including Kane. He had already let the group know what he thought of Miles, Naomi, lonely, angry and having consumed two glasses of wine, agreed with Kane. She said Miles was a fool, enumerate and careless with his team. He was lucky to have them. Kane, again inserted some very unkind words and Naomi endorsed them. The team all agreed. The nature of the language brought up a red flag.

Your red flag.

Nina Hoang: Do you want me to get one?

Andrew Douglas: With IT team we captured all the discussions and forwarded them to HR who further obtained a download of the phone messages.

Nina Hoang: All right, so the first question was Naomi and Kane’s conduct connected to work under the Rose & Telstra doc. So this was out of work. Well the answer is you don’t actually have to go to Rose & Telstra ’cause they were participating in work.

So I just wanted to show you, because of virtual work, the world has changed a bit. For Nina and I, if we communicate with each other at eight or nine o’clock at night, it’s actually work ’cause we’re working.

So focus on what is actually happening. If people are at work and doing things, it is work even though it might be outside of hours, okay.

Nina Hoang: Yep.

Andrew Douglas: All right. That one was easy. Was there anything that Kane and Naomi did that would substantiate misconduct? And if so, was any of it serious misconduct?

Nina Hoang: Substantiate misconduct. Well, yeah, they were saying inappropriate things.

Andrew Douglas: Totally. Yeah, it’s utterly inappropriate. It’s serious misconduct from both of them.

Nina Hoang: Because they were encouraging other people to say bad things too.

Andrew Douglas: That’s right. Yeah, if Miles sought to terminate Naomi-

Nina Hoang: Was it serious misconduct?

Andrew Douglas: Yeah, it was. Yeah, it was serious misconduct and in fact, it’s failure to comply with lawful and reasonable directions about values of a business which you were trained on how to behave.

Nina Hoang: Insubordination.

Andrew Douglas: Yeah, no doubt there’s policies and other procedures, but it’s clearly just in not acting in the best interest of the business, which is a common law duty.

Nina Hoang: Yeah, so they probably should have raised it through like a grievance procedure or something like that.

Andrew Douglas: Yeah.

Nina Hoang: Miles thought to terminate Naomi’s employment. Would she have a good general protections claim?

Andrew Douglas: Yeah. She’s raised safety issues. She’s raised all sorts of issues with Miles. What do you think?

Nina Hoang: It’s not why she’s getting terminated.

Andrew Douglas: No, she’s a pain.

Nina Hoang: No.

Andrew Douglas: She is.

Nina Hoang: She’s getting terminated because she’s engaged in misconduct.

Andrew Douglas: And she’s a pain. Okay.

Nina Hoang: That would go to the complaints.

Andrew Douglas: No, no, no, no, no, no.

Nina Hoang: A pain because she raised too many complaints.

Andrew Douglas: No, she’s just a pain anyway.

Nina Hoang: Were there any psychological hazards? And if so, would the regulator prosecute?

Andrew Douglas: Look, there are some psychological hazards in the sense that the organisation of work is inadequate and you’ve got a Naomi there who has all these stress related issues and you’re not managing it.

Nina Hoang: Yeah, but she also is not really not engaging in the consultation.

Andrew Douglas: I’ve used Naomi. Not that anyone called Naomi out there should think it’s them. But it’s very common factor in the financial divisions of organisation, which are high pressured organisations to have people who are highly detailed orientated, but inflexible and difficult to deal with. So you take your culture as you find it’s a bit like an eggshell skull as well.

So the reason I put this question is I don’t think anyone would prosecute, but if Naomi did something to herself as a result of the types of pressure she was under, given her known vulnerabilities, given the nature of the role, I think the organisation could have some trouble, okay.

So can I just go back to this? When Nina comes to work, Nina comes to work with whatever’s happening in her world. Okay. And that’s Nina. The moment she walks through the door, she’s just not work Nina.

So if I’ve got somebody in my organisation who’s fragile, tense, difficult to deal with, I’ve got to deal with her. I actually can’t just let it happen.

And if I let it happen, then the regulator will get involved if something terrible happens, okay, because like people, you take your culture as you get it, okay.

Five. If Naomi went to the doctor following the discussion with Miles and put in a Workcover certificate, would her claim be accepted if she could prove a genuine psychological health issue? So she’s had the conversation with Miles, okay. This is before-

Nina Hoang: She complained about all the work, psychological yeah.

Andrew Douglas: Pressure she’s got and the answer is I think her claim would probably be accepted in nearly all jurisdictions, okay. Because there’s no reasonable management defence here because it’s not about reasonable management, it’s not about discipline, it’s not about counselling. It is her subjective response to pressure.

Nina Hoang: I thought in Victoria though burnout was not compensable anymore.

Andrew Douglas: Well, no, she’s got a psychological illness. So she’s got a genuine psychological illness. So it’s not a burnout.

Nina Hoang: She’s got a genuine what? Sorry?

Andrew Douglas: She has genuine psychological health issues.

Nina Hoang: Oh, okay.

Andrew Douglas: So she’s got to define. So no, you’re right. But the issue which people forget is reasonable management action deals with how you administer work and manage a person, okay.

With her, she’s having a subjective experience of stress based on the nature of work that she’s undertaking. In workers’ compensation, it is subjective apprehension of that that makes it compensable. So it would be compensable.

Nina Hoang: So they would still have to look at her work design. Even if they think someone else could have.

Andrew Douglas: Which is why the question four is in there, just to remind you, you have two choices with a difficult person. One is get rid of them, okay. That’s a really easy and sensible choice, or two, if you’re going to keep them, then you’re going to have to build a set of controls around them so that they’re safe and other people are safe from them.

Nina Hoang: Yeah.

Andrew Douglas: All right, well let’s go to the last slide because it’s an important one. This is what we’re doing. Union rights of entry, what you need to know and how to manage it. I’ll be there with John and the team and Nina and everybody else, going through what the law is and then actually strategically how you manage unions who seek to use right of entry. We are getting a large amount of right of entries done on psychological hazards where there’s no elucidation as to-

Nina Hoang: Yeah. And pushing the boundaries.

Andrew Douglas: Who or what. So we’re going to talk about all of that and we really look forward to seeing it. But until then, Nina?

Nina Hoang: Yeah, but please if you want to come RSVP to our admin email.

Andrew Douglas: Yeah, RSVP to admin. So do we put that back up again? We put our slide back one more time. We do. Look at that.

Nina Hoang: admin@fcwlawyers.com.au

Andrew Douglas: Okay. Can you see that? Okay guys, thumbs up.

Nina Hoang: Thank you.

Andrew Douglas: Thank you very much, see you later. Bye bye.

Nina Hoang: Bye.