Andrew Douglas: We’re onto our main topic. All right, I want to kick off, see how I go with this.

Kim McLagan: Okay.

Andrew Douglas: But in the last three weeks, I have had probably four or five matters where people are not working the hours they are required to work. It happens in our office, Kim. Can I just say to you, drives me a bit crazy, but it is what it is, where people choose the time they’re coming to work. So in our office between 8:30 and 9:30, sometimes later, people appear.

Kim McLagan: Yeah.

Andrew Douglas: We actually start at 9:00, just in case any of my staff are listening. 9:00 we start. But since COVID, there has been that level of latitude that exists, particularly in professional services

Kim McLagan: Yeah.

Andrew Douglas: As long as the output’s there, we’re okay. I’m sort of okay with that. But of the last six to 12 months, we’ve seen this upsurge in cases where people go, “I can’t work on a Wednesday.”

Kim McLagan: Mm.

Andrew Douglas: Okay. “What do you mean you can’t work on a Wednesday?” “My dog’s old.”

Kim McLagan: I can’t really take an excuse of a dog, I’m sorry.

Andrew Douglas: Can’t you?

Kim McLagan: We get that a lot.

Andrew Douglas: Weird dog excuses.

Kim McLagan: Yeah.

Andrew Douglas: We need to be careful, you and I, at this stage, but we getting a very angry staff. But there are a whole lot of reasons, and as employers you go, “Yeah.” But when people are working from home, they’re not caring for an injured animal

Kim McLagan: Mm.

Andrew Douglas: They’re working.

Andrew Douglas: I mean, I’ve lost two dogs recently and I can tell you it is very hard trying to manage my life around it, but working from home is actually working. It’s not working when you feel like.

Kim McLagan: Mm.

Andrew Douglas: We’re getting doctors now who are actually telling employers when a person can work. This person needs to work a more graduated scale of work.

Kim McLagan: Yeah, “or they’ll benefit from,” but it’s very imprecise. They don’t give any direction at all. And then an employee is just saying, “Well, I’ve provided a certificate. You must do what my doctor says,” but without any testing of what that actually means. And that’s the issue.

Andrew Douglas: Yeah, so the answer is our obligation is if there is a genuine medical problem, we must make reasonable adjustments, okay? But there isn’t. And I guess I want you to be a bit more courageous around this issue.

Kim McLagan: Mm.

Andrew Douglas: The times of work, if you’re an award-based employer, so you’ve got people working awards and they’re choosing to work outside of ordinary hours as prescribed, it’s overtime.

Kim McLagan: Yeah.

Andrew Douglas: It’s overtime. Why are we

Kim McLagan: It’s got to be managed.

Andrew Douglas: If I’m working, if four of us are working in the same team and I decide not to start work till 10 o’clock, I’m actually hamstringing my coworkers from getting work done they need to do.

Kim McLagan: Mm.

Andrew Douglas: So this laissez-faire method of dealing with it, it’s actually starting to fail and it’s failing for a couple of really obvious reasons. Flexible work requests are now done informally, not in writing. And so you have, again, there is this boom in flexible work litigation that’s occurring, because everyone has agreed informally to allowing a flexible work request to be sort of a flexible work. Then they’ve had a sort of informal discussion and they’ve said no. And the person goes, “Well, I did make a request and you didn’t do it.” And off you are at the Fair Work Commission.

The problem with it all is it’s chaos and it doesn’t have to be chaos ’cause the law says your employment contract says you’re employed to work at work between these hours or such other reasonable places directed. Not at any hours I feel like, not because my GP says it would help me. The only time you get that benefit is where the GP says it is a diagnosed problem that needs adjustments to it, or under a flexible worker request, one of the six elements that sit there under caring responsibilities and the like. Can you please step back from this and not bend over backwards to accommodate because what you’re actually doing is making your own workplace uncontrollable.

Kim McLagan: Yeah.

Andrew Douglas: And someone has to tell the bad story eventually and say no, and when they do that, there’s another seven people who are also doing it. And you go, where do I start and where do I finish? So, I though it was worth raising ’cause I know it’s driving me crazy and we only have a little bit of it because we measure output, not hours.

Kim McLagan: Yeah.

Andrew Douglas: Nonetheless, why don’t we do the case study?

Kim McLagan: Okay, all right, Greg had been away from work while dealing with young children, recurring illnesses and a house move. He felt the pressures of parenthood and

Andrew Douglas: Did you like the house move? I stuck that in for you.

Kim McLagan: Thank you.

Andrew Douglas: Sorry.

Kim McLagan: Finally got hot water. Sorry everyone. He felt the pressures of parenthood and his wife had an autoimmune disorder and that left her weak and vulnerable. Greg headed the sales arm of Fast Capital, a mortgage broking business. Greg’s GP told him that he needed time at home to care for his wife, be the parent he wanted to be and slow down a little. The GP suggested he work from home three days a week. Greg asked his employer to change his usual work arrangements. They explained that working from home was not possible given his role, but offered to let him arrive after dropping off the children and work flexibly to meet his caring responsibilities.

This arrangement worked well for a while. Unfortunately, Greg began to struggle emotionally and was diagnosed with depression. His boss, Colin, repeatedly made insensitive and unhelpful comments about Greg’s commitment to work. Greg spoke to Janice in HR and told her that Colin’s micromanagement and rudeness were affecting his health. Greg was still the company’s best salesperson by the numbers and remained devoted to the business, but he was having a difficult time. Janice listened. She knew Colin could be difficult and went to speak to him. Colin’s response was frosty. He ignored her concerns and while she was present sent Greg a text message. “Hear you’ve been whinging to Janice. Got a problem? See me.

” Greg submitted a certificate of capacity and his workers’ compensation claim was accepted. He wanted to return to work so Janice agreed a graduated return to work plan. Under the plan, Greg would report directly to the COO instead of Colin. However, Colin made Greg’s return difficult by reallocating clients on the basis that Greg was not up to the job. That was not part of the return to work plan, which provided that Greg would lead all clients while working four days a week for two weeks, six, sorry, four hours a day for two weeks, six hours a day the following week and then full time. The plan was also specified that Greg was not to report to or engage with Colin. When Greg complained, Colin arranged a meeting with Greg and Janice and told Greg to stop making things difficult and do his job. Greg resigned and brought a general protections claim.

Andrew Douglas: There you go, innit.

Kim McLagan: There you go.

Andrew Douglas: Well, was he constructively dismissed?

Kim McLagan: Well

Andrew Douglas: I think he is, I’ve got to tell you.

Kim McLagan: He could have brought a stop bullying application, that’s one thing.

Andrew Douglas: He could have, but he’s not obliged to do that.

Kim McLagan: No, okay.

Andrew Douglas: So the remedial devices don’t change the constructive nature of the dismissal. The fact is Colin has engaged in a process which he’s not allowed to engage in under return to work and made his employment untenable.

Kim McLagan: Mm.

Andrew Douglas: I think he’d be successful.

Kim McLagan: Okay.

Andrew Douglas: I agree it’s marginal, but I think he would.

Kim McLagan: Yeah.

Andrew Douglas: Would Greg have a chance of succeeding in his general protections claim? And if he was, given his salary was 160 grand a year, what damages might he receive?

Kim McLagan: Well, he’d have to get over the jurisdictional objection first, but yeah, you’re probably right.

Andrew Douglas: Yeah.

Kim McLagan: Or you are right.

Kim McLagan: He would probably get up

Andrew Douglas: Yeah, so it’s interesting. So the jurisdictional objection, he could bring a claim not based on dismissal and therefore he’d be fine.

Kim McLagan: Mm.

Andrew Douglas: Okay, so there’s two parts in GP. You can claim dismissal and then you’ve got the jurisdiction or you can just claim, “I’m an employee and I’ve been treated wrongly.”

Kim McLagan: Yeah.

Andrew Douglas: But it is a choice. So once you’ve made, “I got terminated,” if you fail in the jurisdictional claim, .

Kim McLagan: You’re done.

Andrew Douglas: It’s numbers. But assuming he did, at $160,000 with the level of damage that’s been done, he’s probably going to end up with general damages that are going to sit nothing under 50 or $60,000 for what’s occurred.

Kim McLagan: Yeah.

Andrew Douglas: Should be higher, but I’m afraid GP land hasn’t sort of caught up with common law yet. He’s not going to work for six to 12 months. He’s going to have medical life. He’s probably going to be 150 to $200,000.

Kim McLagan: Mm, okay.

Andrew Douglas: I think, yeah.

Kim McLagan: Yeah.

Andrew Douglas: So I’m only doing that just to bring home how insensitive and stupid Colin is

Kim McLagan: Mm.

Andrew Douglas: And how much damage a person, this is your lead salesperson.

Kim McLagan: Yeah.

Andrew Douglas: Are you that cranky, you know? Would Greg have a strong claim for ongoing weekly compensation

Kim McLagan: Yep.

Andrew Douglas: And have a good common law claim?

Kim McLagan: A good common law claim, yep, no doubt.

Andrew Douglas: Now the common law claim may come a bit later and not hit premium in each jurisdiction, but the other one certainly would.

Kim McLagan: Yeah.

Andrew Douglas: Was there a breach of workplace health and safety law? Absolutely there was.

Kim McLagan: Yeah.

Andrew Douglas: Who’s liable? Organization and Colin.

Kim McLagan: Yeah.

Andrew Douglas: So pretty straightforward. Can I just say, he’s raised a complaint around his own safety, so there is also the anti-discrimination provisions that sit under OHS legislation. He’s also raged under workers’ compensation. There’s an anti-discrimination provision under workers’ comp as well. So just putting your hands up, it’s more complex than it can be. And a good litigator, a good plaintiff litigator could have a field day with you.

Kim McLagan: Yeah.

Andrew Douglas: Now, what do you think should happen to Colin?

Kim McLagan: He should be terminated.

Andrew Douglas: There you go, done and dusted, we’re a tough team. See you later.

Kim McLagan: Thanks.

Andrew Douglas: See you next week, bye-bye.

Kim McLagan: Bye.