Andrew Douglas: Yeah. So Tom, our major topic is when people go online and make a public interest disclosure, “I don’t like the way a government’s behaving,” or, “I don’t like the way my employer does A, B, C, and D.” Is that a workplace right?

Tom Daly: Well, we’re going to find out in this case.

Andrew Douglas:  We’re going to find out. You get into the case, Tom.

Tom Daly: Yeah, so an employee had been posting on LinkedIn things that were sort of a confidential nature, I think about just sort of disparaging the employer that she worked for. Another staff member.

Andrew Douglas:  And that was in breach of an understanding that these were things which were not terminal in a particular order that existed. She was given a non-punitive warning.

Tom Daly: Warning letter. Just don’t do that.

Andrew Douglas:  Yeah. But then she went off to “The Australian”.

Tom Daly: Yeah, because she was offered an interview, offered to do an interview with “The Australian” that was going to become an article. She obviously really wanted to do it. So she sought an injunction preventing any.

Andrew Douglas:  Just before we get to the injunction, so she sought to do that. But not only that, it was clear that in doing so, she would disclose private information of clients.

Tom Daly: Right.

Andrew Douglas:  And at that stage, the organisation said, well look, we are going to have to investigate and deal with this. Then she went off to get an urgent injunction saying, my online disclosures is the reason that you’re doing this, that’s a protected workplace right.

Tom Daly: For me to, yeah, yeah,

Andrew Douglas:  Yeah. And as a result of that, I want an injunction to stop you. What they said is, well, no, you’re being stopped from doing something which is improper and that’s not a basis for doing it. But in any event, in relation to public disclosures on social media, they’re not a workplace right.

Tom Daly: There’s no workplace right to make public disclosures about your employer or to call out issues at work.

Andrew Douglas:  And Rose and Telstra, as the case is, if you go and knock your employer online, that is external conduct, depending on whether it threatens another person or whether it goes to the reputation of the organisation can be the subject of discipline. So I thought it was a great case.

Tom Daly: Just sort of making like a freedom of speech or sort of argument.

Andrew Douglas:  No, no, no. It’s sort of should come out of Texas rather than Australia, shouldn’t it?

Tom Daly: Yeah.

Andrew Douglas:  Why don’t we get into the case study?

Tom Daly: No offence to our Texas .

Andrew Douglas:  No, no, no. Sorry. Texas.

Tom Daly: Yeah, I know. We got a lot of them. We’re big in Texas.

Andrew Douglas: Everything’s big in Texas, Tom.

Tom Daly: Should we do the case study?

Andrew Douglas:  You go. Come on.

Tom Daly: Okay. Magda had a 9-year-old child, Melba. Magda had struggled since her partner Rod died two years ago. She was 36, alone with her child, and had little family support. Her role as communications manager for Dog Day Afternoon Treats was demanding. People loved their dogs and any suggestion that a dog food supplier had failed to act ethically or managed quality could be fatal for the brand. She always had to be on alert. Magda had a flexible work request approved in February, 2025, so she could care for Melba.

She was permitted to work from home three days a week, but had to attend the office on Tuesdays and Wednesdays when the full executive team and her own team were on site. Her mental health had been gradually declining. She struggled to make it to work on Wednesdays and Thursdays, and by July, 2025, she had taken 47 days of personal leave. She had also exhausted all her paid personal leave. Her manager, Dave arranged a Teams meeting. Dave was a quiet, kind, and cautious man. He explained to Magda that the team was beginning to fall behind on two new product launches and that several client complaints were gaining traction on social media.

She cried and apologised saying she would step it up, but three days later she was found in her office, curled up on the floor in tears. Dave got her home safely, arranged for family support, and kept checking in on her. By the end of September though, she had taken 93 days of personal leave over the past nine months. She arranged for a doctor to speak with Dave. The doctor said she could attempt a gradual return to work 2 1/2 days per week, but not in the office. When Dave asked about the long-term outlook, the doctor cautiously said that it was unlikely she would ever return to her pre-injury duties or attend the workplace in person. Dave had already engaged a private communications contractor to fill the gap, but their lack of market and product knowledge meant that they were expensive and ineffective. His boss, the CEO, told him he needed to cut costs and fix the issue. Dave went out to HR for help.

Andrew Douglas:  So what do you reckon HR should say, Tom?

Tom Daly: Well, they’ve sort of done everything they can and she’s already taken 90 days of leave.

Andrew Douglas:  So that gets her over the adverse action for terminating somebody in any 12 month period.

Tom Daly: More than 90 days.

Andrew Douglas:  Yeah. Less at least than 90 days without paid personal leave. So if you’ve got 120 day personal leave, then it’s got to be 121.

Tom Daly: Yep.

Andrew Douglas:  Okay. So we’re free to terminate. The issue HR should be saying is can she do the job? No. Well.

Tom Daly: Clearly not.

Andrew Douglas:  But do we have evidence that we can rely on, because the onus is on us. Safety Law says the onus is on us, workplace law. So we get an IME done, an independent medical examination and we’d ask the medical examiner.

Tom Daly: Sounds like you need one.

Andrew Douglas:  Yeah, I do. I do. I’ve been talking all day.

Tom Daly: It’s part of the inherent requirements of this job.

Andrew Douglas:  Is she fit for the inherent requirements of the job now and in the foreseeable future. And if she’s not, are there reasonable adjustments that could be made? And if the IME comes back and says there’s no reasonable adjustments, then you go through what’s called the Toya and Sturgiosis process. Let’s read letters, goes see the doctor, doctor comes back. This is what the doctor says. Right, tell us why we shouldn’t terminate your employment termination letter. You’ve got to have support throughout the process. Very straightforward process. That’s what HR should say. So second one, is she unable to perform the inherent requirements of the roles that likely she could bill back to up to three days a week?

Tom Daly: Has she already been doing that for four months before?

Andrew Douglas:  Four months before and then rely on Cosma and Qantas and say, actually my contract’s been varied by conduct. Cosma and Qantas says, after about a year, your common law contract will be varied by conduct, Unless what you are can demonstrate through document and process is that it is a return to work.

Tom Daly: Hum.

Andrew Douglas: That you’re not saying this is the new job.

Tom Daly: Yeah.

Andrew Douglas:  Or you’re just not ignoring and letting someone do it. So the answer is.

Tom Daly: So you don’t have to be fearful about making those accommodations?

Andrew Douglas:  No. Just document.

Tom Daly: That can set some precedent or something.

Andrew Douglas:  No, no. As long as your document say it’s part of return to work process, it doesn’t create a new common law contract.

Tom Daly: Okay. And if she could attend work five days from home, but never again attend the workplace, would the company be prevented from terminating her employment? And your answer was?

Andrew Douglas:  So it’s a good question, isn’t it? Because we don’t know the business case for her having to be at work. Although I would’ve thought of that seniority, she’s got to be there to lead.

Tom Daly: It says that they have to be there for executive meetings and Team.

Andrew Douglas: Yeah, I think she. I don’t think she’d survive that argument. But the better business case, the more we know about the business case, the better.

Tom Daly: If the work itself, such as attending work, interacting with people, being managed in person, exacerbated her mental health decline, could she have a successful worker’s compensation claim?

Andrew Douglas:  So the answer is in Victoria, no, because exacerbation must be, can’t be of an underlying issue. It’s got to be a completely new cause. So I’m afraid in Victoria, no chance at all. But in every other state and territory, there is a high chance the claim would be accepted because work was the substantive cause of the disability and the aggravation is in itself. It doesn’t matter if it arises out of the mental health issue that was there or underlying. So in Victoria, if it’s really an exacerbation of an underlying condition, bad luck. Underlying condition don’t get compensated. Everywhere else, it does.

Tom Daly: Yep.

Andrew Douglas: So, there you go. That’s what we’ve got for you today and thanks very much Tom.

Tom Daly: Thanks Andrew.

Andrew Douglas: `Thumbs up mate. Cheers.