Andrew Douglas: Let’s go to the next case. Children at work. This is, well I’m responsible with this too ’cause occasionally Moon wanders in with me. Since we’ve come out of COVID we’ve been so used to having our children around us. And I think it’s a really lovely thing. But the difficulty is you’re bringing children to places of risk. And we’ve had serious instance near fatalities where children have observed members of family…
Nina Hoang: Traumatised.
Andrew Douglas: Traumatised, we’ve got to start stepping back a little bit and saying couple of things about children, they don’t understand risk. They’re inquisitive.
Nina Hoang: They can’t really be expected to control everything they do or be aware of what is dangerous.
Andrew Douglas: So sometimes when you’re managing children, like at a school, we’ll talk about the case in a minute, then you understand this higher duty that comes across ’cause you’re dealing with someone who doesn’t have a risk profiling capacity, doesn’t have life experience. The limited experience of what risk is. And therefore you’ve got to create that knowledge.
But it also comes in, when I bring a child into here, yes, there’s tripping hazards, there’s hot water hazards, there’s a whole lot of hazards which as an adult at your home, the child knows not to touch something which looks like a kettle. But the kettle here is not a kettle. It looks entirely different.
Nina Hoang: Yeah, but also just child safety, like if they get kidnapped or something happens to them, like all of that as well.
Andrew Douglas: They get kidnapped.
Nina Hoang: Well I mean, not so much.
Andrew Douglas: That’s a bit of an overkill.
Nina Hoang: But like.
Andrew Douglas: Who’s planning to steal Moon?
Nina Hoang: I don’t know, but there was that case where they were at the ballet school and she went to the toilet and then someone tried to assault the little girl.
Andrew Douglas: Oh okay, yes, sorry.
Nina Hoang: So it does happen.
Andrew Douglas: I was just thinking who was going to kidnap…
Nina Hoang: No one is kidnapping Andrew’s child, to be clear.
Andrew Douglas: We’re both very tired, I just want to say. So let’s talk about Farrell. ‘Cause it’s an interesting case, isn’t it? The kids on the fishing trip.
Nina Hoang: Yeah, so I think it was about eight students and two teachers had gone on an overnight camping trip and they went to, I can’t remember which day, they went somewhere kind of remote. And when they got there they decided to go rock fishing.
So they were all fishing at this rocky out crop and there was all this algae. So it made it very slippery and one of the students fell in and two of the other students, it’s unclear whether they also fell in or they purposely jumped into save that student.
But in doing so, two of the students were able to self rescue and one of the others drowned. And it was found that basically although they had a risk assessment in place, it didn’t consider this specific activity. And there was no life jackets. They had no rope to rescue the students. Yeah, but they tried to rescue them by tying the fishing rods together. So you can just kind of see that there was no real consideration for safety.
Andrew Douglas: It’s calamitous really, isn’t it?
Nina Hoang: Yeah.
Andrew Douglas: So can we just pull back from this a little bit to talk about why this is such an important topic I guess. So we know children are going to come to work more often. It doesn’t matter what the nature of the work is, they’re going to be turning up. They’ll even turn up to factories, okay.
Nina Hoang: Yeah.
Andrew Douglas: And it is happening and it’s happening with our client group at the moment, that operations managers are turning up when they’ve got a curriculum day and they bring their child along to school. Sotheary and I were at an office only yesterday of a large factory where there was a young child sitting doing their schoolwork in the office. ‘Cause they’d come home to the office ’cause his mum was working. So it’s going to happen.
So what are the things that we need to do? So is a child for purpose of safety law, someone we owe a duty to?
Nina Hoang: Yes.
Andrew Douglas: Yes we do. What is that duty? It is not a reasonable practise to exercise reasonable care. So it’s a duty, a pure duty thing, which is…
Nina Hoang: To ensure their health and safety.
Andrew Douglas: Reasonable care means you must prevent foreseeable injury. So any potential foreseeable injury in a workplace to a child is foreseeable. And if you don’t prevent it, you will be liable. That’s just a primary duty breach. Okay.
What that means basically is it is a different risk assessment process that you go through because you’re dealing with a different level of risk knowledge with a child and at a less capacity to direct and control.
So you’ve got to have a policy about it and you have to have areas of prohibition where children cannot go.
Nina Hoang: Yeah, like anywhere near forklifts.
Andrew Douglas: Yeah, yeah. Anything where their chaotic and childlike behaviour and non-rule compliant behaviour. ‘Cause yellow lines don’t mean a lot to kids.
Nina Hoang: Yeah ’cause that’s the other thing I think as well, it’s not just you have to have another kind of risk assessment. The kinds of controls that you put in place, you can’t assume what fits for one scenario will fit for the other because children do not comply. They’re not going to read the policy and be like, okay, I know I can’t go here.
Andrew Douglas: And that’s right. So when we come, so if we look at just reasonable practicability around an office, we understand the risks are very high with children. You look at the hierarchy of control, administer controls can’t work, okay. So at least it has to be supervision, constant supervision. But it’s much more like elimination. There are parts of the business this child is not allowed to go to.
Nina Hoang: Yeah.
Andrew Douglas: So we raise it. I mean I think Nina and I have sat through some incredibly traumatic interviews where children have witnessed and seen things that have occurred. I think both of us have been really distressed by that. But what distressed us most is the child was there at all in a high risk circumstance where they should never be.
Nina Hoang: Yeah, and if you can’t control the risks then it means that you have to consider whether it is a place that the child should be allowed to be. Whether you should bring them at all.
Andrew Douglas: That’s right.
Nina Hoang: And that’s for their safety at the end of the day.
Andrew Douglas: All right, so there’s our lessons. First of all, different type of risk assessment, direct policy and procedure, controls which have elimination mechanical prevention and supervision. Administrative controls are simply not going to work with kids. All right, so that’s it for the day on the major topic. Let’s go off to our case study.
Nina Hoang: So Amal sold high end clothing for an international fashion house. She was educated, polite and well respected. Part of her role was to demonstrate the fashion at galas, engage high-end buyers to purchase garments and support the designer stores. She did it with aplomb. Her boss George was a shrewd operator, as GM of Fashion for the Stars, Pty Ltd (FFS), he was Amal’s boss and employer Nina Hoang: inappropriate relationship.
Andrew Douglas: Yeah, no, power breach I would’ve thought straight away.
Nina Hoang: He recognised that to maintain her sales pitch she needed to be fit, healthy and constantly educated on each garment. Each July following commencement of winter sales, George and Amal would come to Melbourne to work out the pitch for spring, autumn, depending on which hemisphere, see major Australian clients and develop their travelling roadshow through Europe, Asia and the US.
George ensured that FFS had a policy around encouraging health and discouraging cigarettes, drugs and alcohol. Gym memberships were paid. And when travelling they always stayed at hotels that had gym and related services. On the 10th of July, Amal went out after work to meet friends. She drank a bottle of Bollinger and on her way home, dropped in to see George at the Sofitel and she had several cocktails.
As she was leaving the level 35 Atrium Cocktail bar, she slipped on the stairs and broke her ankle. It was 10:20 PM, well outside of working hours, she’d invited George, not the other way around. But George has said to her, when you are finished for the night, give me a call and perhaps we can have a drink.
There was a clear policy state that staff must not drink or otherwise behave badly in a manner that could damage the business and harm its reputation when travelling, even out of hours. The policy went on to state that outside of working hours when travelling, they were not at work. Amal claimed workers’ compensation.
Andrew Douglas: So complex set of facts, okay.
Nina Hoang: Yeah, there’s a lot of detail.
Andrew Douglas: Lot of detail, was Amal at work? That is the question.
Nina Hoang: I think there was, she’s not physically at work but there was enough of a connection to the workplace.
Andrew Douglas: Yeah, so I think for the purpose of this, when your boss agrees to drink with you or your boss agrees to pay, he says, look me up. Look me up. ‘Cause that’s how George would say it, look me up.
Nina Hoang: With a Nespresso.
Andrew Douglas: We’re too tired, aren’t we?
Nina Hoang: Yeah, I think those things are enough connection. She’s also on a work trip as well. And so I think…
Andrew Douglas: So can I just say the trick in this is condonation. So what’s happened here is yes, she’s expected to work reasonable hours. She’s catching up with George. George is her boss. George is saying, come and catch up with me. He’s paying for it, at that stage, it’s not an interval of work argument, it is actually work.
Nina Hoang: Yeah.
Andrew Douglas: It’s the continuation of work. So whatever happens during that work, it goes on to the question of later on, is at workers’ compensation, number three, the answer is it’s definitely compensable. It doesn’t matter what the policies say. But let’s get back to two. What are the tests of out of hours conduct? And could she be disciplined for misconduct?
Nina Hoang: Test for out of hours’ conduct, whether any of the conduct could go…
Andrew Douglas: Well it’s not out of hours. See, the trick, the whole trick of this question.
Nina Hoang: Actually, what are the tests?
Andrew Douglas: So the tests were out of hours conduct. So if it wasn’t George and she just did it anyway and maybe she said FSS is a dull organisation, said some shocking things.
Nina Hoang: So anything.
Andrew Douglas: Goes to reputation that prevents her from returning to her role or is inconsistent with the nature of the work that she carries out.
Nina Hoang: Rose and Telstra.
Andrew Douglas: Yeah, Rose and Telstra. But I set this problem up for a bit of fun. And the reason I set it up for a bit of fun was is to say the truth is it is at work because George was the actual invitee. George is the person who paid. George is the person who encouraged the breach.
Nina Hoang: Well what could she even be disciplined for? She slipped.
Andrew Douglas: I understand.
Nina Hoang: I don’t understand.
Andrew Douglas: I know, well that’s probably the failing in the problem. Okay, that’s where the problem falls.
Nina Hoang: So as if she was too drunk or something.
Andrew Douglas: Yeah, she did something wrong, she was swearing and screaming. Could she be disciplined? And the answer is still not ’cause George is there condoning it.
Nina Hoang: Yeah, he’s been condoning it. Well he’s not necessarily condoning her behaviour, like he condoned her drinking. That doesn’t mean he condoned her swearing and everything.
Andrew Douglas: I know. But if you were swearing and I’d buy you another drink, am I condoning it?
Nina Hoang: Yes, but I’m saying if this has happened, instead of with doing the fall with the ankle. As she’s leaving, she carries on and she gets kicked out.
Andrew Douglas: Yep.
Nina Hoang: Is that still condoning because he’s fed her the drinks?
Andrew Douglas: Yes it is, so it would be hard and I guess.
Nina Hoang: It’s quite nuanced.
Andrew Douglas: Yeah, and it brings us back to this issue of what do managers do? And the answer is, managers have to be terribly careful around this type of behaviour.
Nina Hoang: Yeah.
Andrew Douglas: So there you go. It’s a short session this week.
Nina Hoang: Yeah, but I think before you jump the gun, I just want to emphasise what you said about the policy ’cause I feel like that is a common misunderstanding that we’re seeing more and more that people think if you’ve put something in writing, then that will trump the law and putting it in writing that look, this is not going to be part of work and hours and doesn’t count, it doesn’t matter what you do in a policy, you can’t actually override your legal obligations under law.
Andrew Douglas: And if your legal obligations are changed by the behaviours of leadership, then that stretches.
Nina Hoang: Yeah.
Andrew Douglas: Okay and I guess we’ve seen a number of cases. So there was a sexual assault case, a South Australian sexual assault case where there was a Christmas party upstairs, Christmas party was over, they went downstairs afterwards for some two hours after. And while they were leaving one of the employers sexually assaulted another employee. And the issue was, was it sexual harassment type of claim? Was their workers’ compensated? There’s a whole series of claims that came up around it and what the court said is, look, it was a continuation of a party that was supported by a leadership group and therefore it fell within the course of conduct.
Nina Hoang: Yeah.
Andrew Douglas: So I think when we’re talking about people travelling and remember, the purpose of this whole discussion is to say, people are travelling a lot more, people are working more flexibly. They’re going and sitting at other places and doing things. They’re not coming to work.
But it’s the behaviour of leadership that condones, permits or encourages misconduct. Which means that it doesn’t matter how you craft your policies and procedures, it doesn’t matter the training you’ve got, if it’s permitted by leadership group for you to do it, it will be work and it will be hard to punish the wrongdoer.
Nina Hoang: Yeah.
Andrew Douglas: And it will always be compensable.
Nina Hoang: Yeah, yeah. I think that’s the strongest lesson today.
Andrew Douglas: Yeah, so I’m zombieing back to work now. We are finishing a bit earlier today ’cause otherwise we’re just going to go to sleep. I’m sorry about that.
Nina Hoang: No, it’s just ’cause we already taught you everything.
Andrew Douglas: So we’ll see you later, bye bye.
Nina Hoang: Bye.