Andrew Douglas: Now we can go on to our Christmas topic. Yeah, I got a bit excited before, I’m sorry. It’s almost Christmas, this is the last one. I just wanted to stop.

Kim McLagan:  Yeah. You do well week in, week out. Can I say, Andrew? You really do. Yeah, it’s amazing. You are amazing.

Andrew Douglas: Well, that’s good. I haven’t done too well today. Did I tell you about me getting lost in the car park?

Kim McLagan: Yeah.

Andrew Douglas: I’m just letting you know I’m 67. I parked the car and I was in a real rush. I didn’t take a photograph of where I parked in a multi-story building. I’ve been doing it all day. I left my bag at home. I’ve gone to appointments that went on. I just, post-cold, my brain is just not working.

Kim McLagan: We nearly let you in.

Andrew Douglas:  And then I walked out of a lift and went, “Hmm, don’t recognise this floor.” 20 minutes later, driving my car, going, “I just can’t believe.” Anyway, that’s what Christmas does to me. And all I want for Christmas.

Kim McLagan: Is a bit of respect.

Andrew Douglas: Is a bit of respect. I guess we shouldn’t have to do it, should we? But every year, Kim.

Kim McLagan: No, every year.

Andrew Douglas: We’ve already got our first couple of cases coming, starting to come through for misconduct at Christmas parties.

Kim McLagan: Well, my last one was someone stole a purse out of his colleague’s handbag at the Christmas party last week.

Andrew Douglas: Really?

Kim McLagan: Yeah.

Andrew Douglas: And you should be saying that, shouldn’t you?

Kim McLagan: Not identifying anyone.

Andrew Douglas: Anyway, well, mine’s the, unfortunately, mine is the touching, as always. And so it isn’t. So it’s something that just doesn’t go away. We control alcohol. We tell people not to do stuff. The issue is, it is a problem that really does have to be addressed and it has to be addressed through supervision. So the case, not surprising, the matter we’re dealing with today is IWQ, Task Force Community Agency. It’s a case which is an unhappy set of facts, really. And I guess it elevates this issue of the risks of sexual harassment, particularly with people in power. So this is a Christmas party where a bloke-

Kim McLagan: CEO.

Andrew Douglas: CEO, yeah. Held a woman too close, too long, hugged her, made comments, which suggested he enjoyed that. They were all at the lower end of the, the non-touch were at the lower end and the touch was at the lower end. But I just don’t know how it could happen. Does that make sense?

Kim McLagan: Mm, no, totally.

Andrew Douglas: And no, it was alleged there was victimizations but that failed. But the sexual harassment part, without even the touching, it’s the commentary was not just the touching but the commentary that sat around, it was clearly identified, which is, I’ve got the words around the hugging, can you remember what they were?

Kim McLagan: Oh, he said, “I’m very lucky to be hugging you.” He asked for a hug and it said how lucky he was but commented on her appearance. Complimentary on one level saying, “Oh, you look like you live in the gym, “you look really fit,” but completely inappropriate from a CEO to a very young junior employee in the organisation who we barely knew.

Andrew Douglas: Isn’t it funny, there’s this case that I dealt with a long time ago and I just loved the women. I had to interview them and there was a young girl and she didn’t wear provocative clothing but she wore young kids’ clothing compared to the women who were mature around it. Does that make sense? So they’re a bit revealing. And the boss, every day he came past, made comments, increasingly intimate comments about how good she looked, how fit, “God, yeah, he’s great.” And the end of it, the young woman cracked it and said, “You don’t say that about any of the other women who are here “and they’re getting pretty sick of it as well.” And all the other women, “Yeah!” But that was part of the thing where he eventually tried to touch her at a party.

But it’s interesting that people think, “Oh, it’s okay to say something.” But who else do you say it to? Do you say it to your wife as you leave her in the morning? Who else are you saying this to? But if it’s just the one girl you’re saying it to and she’s a kid and you’re in a position of power, how dumb is that? I mean, how wrong is that? And how does that kid feel? That kid’s got nowhere to go. So I thought that’d be a good precursor into getting into our case study. But to remind people, I guess for me, what I want you to think about in Christmas parties is to say to the supervisors, “You’re on duty.” If you see someone who’s drunk too much, they got to go. You got to have a set of rules around supervision and management ’cause unfortunately too often, it’s supervisors who’ve been out to lunch with their crew who are the problem. Over to you, Kim.

Kim McLagan: Okay. Digby was sick of Rosie. He was the national salesman for AIOU Limited, an artificial intelligence, debtor management technology business.

Andrew Douglas: So I did that for you ’cause I usually do that for Nina to make something really long and funny just to make it hard for her, sorry.

Kim McLagan: You do it every time without fail. It’s quite fun. Rosie was head of marketing. She had not supported the most recent product launch online in a manner that helped Digby or at least that is what he thought. It was near Christmas and his STIs-

Andrew Douglas:  They’re short-term incentives. Yeah, I just realised-

Kim McLagan: Thank you.

Andrew Douglas:  No, no, no, it’s not sexually transmitted. That was a mistake of mine, I realised. Short-term incentive.

Kim McLagan: Sorry, people.

Andrew Douglas:  No, no, no, and I realised when I did it for you, you’d pick it up straight away, so.

Kim McLagan: I’ve got teenage children. It was near Christmas and his STIs were measured on 30 November and vested on 21 December. The Christmas party was on 22 December. The sales team under Digby was driven, brash and prone to humour that was at best questionable. Many of the women at head office felt vulnerable around them. 2025 turned out to be a good year for Digby and the four key employees, all men in his team. They went to society for lunch on the 22nd, consumed four bottles of expensive burgundy and were thoroughly charged for the Christmas function that night.

At the function, their ribald jokes and frisky behaviour set tongues wagging. HR intervened about 10 p.m. with the director, Jake Misgivings, Misgivings, escorting them out to a taxi. It drove around the block and they ended up in an upstairs private bar at the Soffitel, the usual place for the marketing and sales team soiree after party. Rosie and her team arrived after 11.30. Around midnight, when everyone was thoroughly inebriated, Digby sidled up to Rosie and suggested they put the tough times behind them. She felt awkward, but said she agreed.

He then laughed, shouted, “Dance with me,” took her hand and yelled for Dave, his 2IC, to turn up the music. Rosie went along with it, but the dancing got closer, more like a drunken falling over style of dirty dancing, and Digby was getting handsy. She said, “No, stop it,” and he leaned in close, kissed her and said, “Okay.” Everyone laughed. Rosie ran from the room. She rang Jake, the HR director, but it went to voicemail. The next day, she went to see Jake and told him what had happened. Jake said he felt sorry, but AIOU had been clear, no after parties. It was forbidden. She shouldn’t have gone.

Andrew Douglas:  All right, we’re off to the questions.

Kim McLagan: So, was it outside of work under Rosenthalstra?

Andrew Douglas:  So, Rosenthalstra has three rules for when something that occurs outside of work. Now, there’s an argument we’ll talk about whether it is outside of work, but just assume for the moment it is outside of work. Does it affect the reputation of the organisation? The answer is, could easily do it. Is it a fundamental breach of the contract? Does it go to the heart of the contract, the behaviour? Yes, between two executive level persons, the person sexually propositioning goes to it. Does it make it impractical and unsafe for them to work together in the future? So, in every circumstance, even if this is outside of work, as far as employment law goes, disciplinary consequences sit around it and it can be captured. So, I think it’s always nice to know those things that people can’t get away with stuff in those circumstances.

Kim McLagan: Jake knew of all the past conduct. Did it amount to a hostile workforce?

Andrew Douglas:  Okay.

Kim McLagan: Workplace.

Andrew Douglas: Workplace, yeah. So, the hostile workforce, place, sorry, you’ve got me going, and you know I’m an old man today, is a new cause of action which says where comments and behaviour occur indirectly, which could cause a woman to be humiliated, hurt, then it is a hostile workplace. And this story is replete with behaviour that falls within the hostile workplace. Now, plenty of lawyers are pleading it at the moment in claims to show that when sexual harassment occurs, this wasn’t a once-off and that there is no remorse.

There’s a willingness to allow behaviour which would hurt someone. And what that does, it goes to the damages end as well. So, it’s a breach of hostile workplace, not much turns on that, but the sexual harassment, all of that is made much worse because of the conduct. So, I put it in here just to remind you, all this behaviour could have been stopped. The party could have been stopped simply by saying, we will not accept this behaviour in the workplace early on, but they let it go and go and go. And so, it develops its own leagues and goes and does what it feels like. Was Digby’s conduct sexual harassment given it happened outside of work? Okay, so we’re still assuming it’s outside of work. My argument is it’s still work, okay? So, we’ll talk about that in the next few questions. Why? It’s still work because it contains work people and senior leaders are participating in it, authorising it and paying for it, makes it work. Okay, there’s no one else there, it’s just work people. But even if it was outside of work, there’s a whole series of cases around sexual harassment that say that where an event arises because of work, you’re a person from work and the actions occur to another person from work, it will be sexual harassment at work, okay? So, there’s a famous South Australian case where they had a party downstairs, was it upstairs? I can remember that.

And the group of people stayed drinking well after it was all over and a woman was sexually assaulted outside of the bar that occurred. And that was held to be sexual harassment and it was held to be compensable as well under workers’ compensation law. And the reason for that is all workplace law or is beneficial law designed to protect a worker. So, their willingness to extend the boundary or the curtilage of where business is grows by the nature of the protection they’re trying to give. So, the likelihood is Rosie would have a very successful sexual harassment claim. And can I just say the damages would be significant. So, we’ve seen a couple of really weird cases in VCAT where low orders have been made recently, which are completely contrary to the trend. Since Oracle and Richardson non-touch sexual harassment, is averaging between 50 to $70,000 general damages.

Touch-based and this has touch and it’s minimum 75 up to 120 for this low level stuff. That’s just the general damages. Rosie can’t come back to work. Well, you’re going to have special damages for inability to work, medical damages, the like. But I want you to understand that this is connected to the common law damages methodology now. So, what you would get in the common law, you will get in an equal opportunity jurisdiction. And that brings us to workers’ compensation, doesn’t it? Question four. Fascinating question because in workers’ compensation.

Kim McLagan: The injury must arise out of or in the course of employment and when there’s conduct outside of work, they will always look at whether or not the employer authorised the activity in which the person was engaging in, where they suffered their injury. So, it would all turn on the facts in this case about what?

Andrew Douglas:  Well, Tran and, again, it’s another Telstra case. Tran and Telstra is the case of the two women who went out to dinner. They were down in Melbourne for a function. They went out, they had a couple of bottles of wine. They’re obviously quite light drinking. One of them, three o’clock in the morning, fell over and hurt their ankle on the way back and was held not to be compensable because-

Kim McLagan: The drinking intervened.

Andrew Douglas:  Yeah, the drinking. It wasn’t all of it.

Kim McLagan: So, the hotel was put up by the employer, but the drinking incident intervened to break that causal connection.

Andrew Douglas:  So, the question here is there’s a direction not to do this, okay? But the difference is the face of the organisation are the two people. So, two executive members running a function, there is absolutely no doubt it’s compensable in my mind. But the law is interesting because there is a break in causation. There is a letter that says don’t. And the reason the question is there is it’s all very well for you to send emails saying, don’t do something. When you let it happen, it becomes compensable and your premium reminds you that you made the mistake.

Kim McLagan: Okay, so was there a breach of safety law?

Andrew Douglas:  Harder again, can I say? Because there is no safety law for outside of work. You can workplace manslaughter or industrial manslaughter. The death can be outside of work, but causation has to be internally. So, the question is, was this work? My argument and I think the safety regulator’s argument would be this was authorised conduct by leaders when the business was known about. And therefore it was part of work and therefore there was an expectation of supervision. The argument against this, they weren’t being paid to be there. It wasn’t part of their paid work to be there and it was external from the work environment. But I think if Rosie was sufficiently harmed and somebody complained to a safety regulator, they’d be interested. Okay, and then DP and the organisation would be in real trouble. Last question.

Kim McLagan: Could Digby be disciplined? And if he remained at work, could Rosie get a stop order? So, a stop sexual harassment.

Andrew Douglas:  Yeah, so the first question is, yeah, Digby’s definitely going to be disciplined. Okay, because if it falls within Rose and Telstra and that’s only if it’s not work related. I think it’s work related. So, you don’t have to get to Rose and Telstra. So, did he do something that’s wrong? Yes. Would it breach every policy of the organisation? Yes, it would. Was it condoned in any manner by Rosie? Did she do anything that permitted? No. End of story. It’s sexual harassment, he should be sacked. And if not sacked, he’d be on a final warning. And if he was, based on Rosie’s support for him not being sacked, if Rosie doesn’t support it, he’s out the door. But if they do have him at work, how does Rosie have a safe workplace when they are engaged together? And that shows you the risk because they are either side of a coin in the sales. What is the barrier that Rosie has between him and her if she’s unsafe?

And if you can’t work that out, the Fair Work Commission will work it out for you and that won’t be good for your business. Okay. Oh, we got through that. It’s the last one. Happy Christmas, guys. Last week of January, we’ll be back. And it’s been lovely. Can I just say, I’ve had a lot of fun this year. I think for the group of us working together, doing this is a lot of fun. It really challenges all our staff. You know, the production, this is, we really got to thank our team for the hard work they put in. And that’s not just the team, the lawyers who do it, but it’s for Toye and Nassim who are behind the cameras and doing the production. But this takes up about 20 hours of our week collectively every week. And it’s a voluntary contribution that everyone makes and puts in. So to you guys, thank you very much.

And for everyone who watches, it is lovely when I go out to clients and they talk about what was on last time and it keeps happening and it makes me realise, I think we’re almost getting it right. But anything you’ve got to say, we’d love to get your feedback. If we can improve it next year, we are deliberately going to put links to each part of it. So when you come on, you can go directly to the part you’re interested in straight away, if that helps. And that’s from feedback from a number of clients. I’d love to watch it all, but sometimes I can only watch a bit. I’d like to be able to choose. So we’ll do that. But yeah, what a great year. Christmas, pool.

Kim McLagan: Have a great break, everyone.

Andrew Douglas:  Cocktail, sorry. See you later, bye, cheers, thumbs up.