Andrew Douglas: Yeah, culture is king. I normally say cash is king, but that’s because I’m in business. But culture is king.

Nina Hoang: Cash is king.

Andrew Douglas: Channel 9, all of us, everyone who’s listening knows the story of Channel nine. I’m not here to prosecute Channel 9. But we have seen a cultural failing from the very top of an organisation. And there is some, there are some simple truths around culture. One is if leaders misbehave, the behaviour of those beneath will be worse, not better.

Nina Hoang: Yeah.

Andrew Douglas: In other words. So, if I’m rude, Nina will be very rude.

Nina Hoang: Yeah ’cause it’s accepted behaviour.

Andrew Douglas: Yeah, it’s authorised behaviour. In fact, it’s actually encouraged behaviour.

Nina Hoang: Yeah.

Andrew Douglas: And what we’ve seen in Channel 9 is encouraged behaviour. The authorization of a very muscular male, male culture, which is rude, abrupt, and sexualised.

Nina Hoang: And there was a lot of bullying, power imbalances, and stuff like that.

Andrew Douglas: Yeah, so. Okay, we’ve got that. So, why are we talking about this today when you know that? I guess the answer is there is a terrible misconception and misuse of cultural views and investigations. So if we just go through safety law, very simple terms.

In safety law, once you identify a hazard, you have to determine its risk. Okay? This is reasonable practicability. And from there you’ve got to introduce control that is relevant to that risk.

But we saw in Channel 9 and so many people who fear reputational damage and forget about their own employees in the process of doing it, that they use the investigation as actually a control.

Nina Hoang: Yeah.

Andrew Douglas: And it is never, ever, ever a control. It is always-

Nina Hoang: Yeah.

Andrew Douglas: An assessment of risk.

Nina Hoang: Yeah. It’s the first step.

Andrew Douglas: Yeah, so. And what’s happened in Channel 9 as happened so often is they’ve thought, “God, we need to put a lid on this. Let’s investigate. Let’s tell people we’re listening to them. We’re going to do an investigation.” And they think that’s where it ends.

But the answer is, when you deliver the outcome of the investigation and there’s 27 findings, and they are just terrible findings, you don’t have a strategy. You leave this hole, this gap, this lacuna sitting in the middle of, oh, so we’ve got all these problems and we’ve got nothing to do with ’em. Oh, now we’re going to take action.

And then, over a three-month period we’re going to sack this person and sack. We are going to just, it’s what I call witch burning. We’re going to go out and kill people just to say, “See? We did it. Look. We did one over there.”

Nina Hoang: Yeah.

Andrew Douglas: In the hope that everyone goes, “Oh, we’ve burned enough witches now. Yeah, okay, that’s all good. We can stop. We can go back to being who we are.” But this behaviour represents the culture that’s criticised.

Nina Hoang: Yeah.

Andrew Douglas: So, before you do an investigation, you do want to know what it’s likely to say. And you do want to have a strategy to manage it.

Immediately and say, “Look, we’ve got these findings today. They do come as a shock to us, but already we’ve started to do the following things. And to the people who’ve been hurt, we can only apologise, and we will be reaching out to heal. We will be coming to you. You can trust us that this is not where we want to be.”

None of that communication has happened.

Nina Hoang: Yeah, exactly.

Andrew Douglas: So these people feel vindicated. And since then, more very distressing complaints have been made. So, it just keeps burning 9’s reputation, which means no talent will go towards it.

Nina Hoang: Yeah.

Andrew Douglas: They will lose talent and institutional knowledge.

Nina Hoang: And lose existing people. Yeah.

Andrew Douglas: And on top of that, there’s going to be significant litigation at some stage which will flow out of it because plaintiff lawyers will see.

Nina Hoang: And use this report.

Andrew Douglas: They have just used the report. So, can you see how dangerous it is when you take something which is meant to be a risk process, think it’s a control? In safety terms, it’s not in employment law, it’s not. Industrially, it’s not. Discrimination law, it’s not. But worse of all, reputationally, it is petrol just waiting to be lit.

Nina Hoang: Yeah, but also from like, a safety and employment law perspective, I think if you don’t have anything in place before this, then you’re already in breach of your positive duties.

Like, you shouldn’t have to wait to get to the stage of a cultural review to identify that there are problems. There should be mechanisms in place for people to feel comfortable to raise concerns and that they promptly address. And it can be harder with a bigger organisation. But that’s one of the points of leadership, right?

Andrew Douglas: I think that’s in, yeah, no, no. And then, that’s what I’m saying. The idea of having the investigation and thinking that it was some-

Nina Hoang: Like, magical solution.

Andrew Douglas: Some panacea-

Nina Hoang: Yeah.

Andrew Douglas: For complaints, reflects ironically the very culture that is complained about. To think that I can have an investigation and that’ll make everyone feel better. All it does is leave the patient open on the operating table.

Nina Hoang: Yeah.

Andrew Douglas: And the doctor just walked out of the room. So, you’ve got everyone bleeding and no surgery’s been done and no one’s been stitched up.

Nina Hoang: Yeah, like you realise how bad the disease is, but you’re like, “Oh, it’s too big for me.”

Andrew Douglas: Yeah, and then just walk away. So, I’ve raised it not to criticise Channel 9 ’cause Channel 9’s not alone in this problem. But the decision-making they came, came from a muscular place of almost paternalistic process. Well, if we investigate, people will feel better. I can tell you they don’t. Well, onto the main topic. What an exciting-

Nina Hoang: Onto the case study.

Andrew Douglas: Case study. Sorry, case study. And what an exciting case study it is. It’s a long one today too.

Nina Hoang: Yeah.

Andrew Douglas: So, here we go.

Nina Hoang: Neo felt he was being taken down the rabbit hole by his ‘micromanaging’ boss, John Smith. He was confused about what was expected of him and felt constant pressure to meet deadlines, commitments, and directions with John often descending into the minutiae of each task he required of Neo.

John felt that Neo was out there and not a team player. He asked the HR manager, Gloria Foster, to intervene. Gloria spoke to Neo briefly over cookies and coffee, explaining that he was not the one to lead; it was John, and he needed to meet with her and John to work through the issues.

She arranged to facilitate a meeting with them and explained to Neo that it was part of a counselling process for him. At the facilitated meeting, things went badly. John was accusatory, while Neo was evasive. And said he felt unsafe through the process.

Shortly after the meeting, Neo spoke to his work colleagues in the tearoom-

Andrew Douglas: Has anyone worked out this is The Matrix yet, I just thought-

Nina Hoang: -about the meeting and why it occurred, in breach of his confidentiality obligations under the policies dealing with counselling and discipline.

He confided in his close friend Trinity, stating that he did not feel safe with John and felt threatened. He believed his workplace was unsafe. As the meeting was breaking up, John arrived in the tearoom where they had been discussing Neo’s concerns.

John asked why everyone was at the tearoom when it was not a break time. Neo replied, “We were discussing some concerns of mine.” Neo, who was angry with John’s intervention and attitude, went further.

He said, “John, it’s like you are from some other planet.”

Oh my God.

“You have no idea about the impact of your behaviour on others.”

John was not pleased. He spoke in a deliberate and cool voice to Neo, “It is not appropriate for you to speak to me like that in these circumstances. Let’s speak privately.”

Neo smiled and said, “What does it matter where we speak? You would just bully and push me around to try and get your way.”

Trinity quickly ran to the phone and spoke with the head of Operations, explaining what had occurred and Neo’s concerns. She said to leave it with her.

John lodged a formal complaint with HR, alleging that Neo had breached the Code of Conduct by colluding with others to undermine his authority, spoke rudely and offensively to him in a manner that breached their value of respect, and deliberately cultivated a rebellious attitude with his work group to the detriment of the business.

He claimed these breaches constituted serious misconduct.

An investigation revealed that Neo had raised concerns with his work group, many of whom shared his apprehensions about John’ demeanour and intervention. Nonetheless, it found that John had acted properly and that Neo’s conduct breached policies regarding counselling and discipline, the Code of Conduct and organisational values.

Oh gosh.

The investigator, Ben Cypher, made no inquiry into Neo’s knowledge or awareness of the documents he was said to have breached. Neo had not seen any of the relevant documents and had never been inducted or trained on any. Cypher’s finding of serious misconduct led to Neo’s summary dismissal by the Head of Operations, Megan Smith. Megan was aware of Neo’s concerns but believed he was a troublemaker and thought it best to act swiftly.

Andrew Douglas: There you go.

Nina Hoang: Gosh, that was a mouthful.

Andrew Douglas: That was a lot, wasn’t it? I read that very early this morning again. When you write on the screen, you’re doing an email, it seems quite short. When you see it on there. It’s very long.

Nina Hoang: I can confirm the email, which is not short.

Andrew Douglas: Okay. The email was not short. Did Neo commit misconduct and was it serious?

Nina Hoang: Misconduct? Yes, he did.

Andrew Douglas: He did. I think he did. I think being rude in front-

Nina Hoang: Yeah, and actively like being, oh, what’s that word? But undermining basically.

Andrew Douglas: Yeah. So, he involved in gossip and discussions around issues that he felt he was wronged by. It’s not good behaviour. It’s sort of low level misconduct.

Nina Hoang: Yeah.

Andrew Douglas:ss And it’s common. And sometimes you’ve got to understand counselling was not a bad decision about that sort of stuff.

Nina Hoang: Yeah.

Andrew Douglas: Feeling threatened by John and saying some of the things he did out loud. I think his conduct was on the low level of misconducts

Nina Hoang: Yeah.

Andrew Douglas: But it was definitely a misconduct, but definitely not serious misconduct.

Nina Hoang: Yeah, like people can make complaints, but you’re not supposed to foster a negative environment.

Andrew Douglas: Yeah.

Nina Hoang: Yeah.

Andrew Douglas: Couldn’t they have brought a successful worker’s compensation claim prior to termination of his employment and why?

Nina Hoang: Yeah.

Andrew Douglas: There’s absolutely no doubt.

Nina Hoang: Due to John’s treatment of him.

Andrew Douglas: Yeah, that’s right.

Nina Hoang: And then, the way that they handled it as well.

Andrew Douglas: The whole way they handled it.

Nina Hoang: Yeah.

Andrew Douglas: And the investigation by Cypher, not a good investigation.

Did Neo encounter any psychological hazards under safety law? And if so, what? And I think we just talked about what they were.

Nina Hoang: Yeah.

Andrew Douglas: You know? The lack of process. The lack of fairness. The lack of proper allegations.

Nina Hoang: Lack of support.

Andrew Douglas: So, let’s go back on the allegations. The allegations are not ones which are articulated in a way which could have been responded to. And there’s no evidence that the evidence is mainly coming from John as to what is wrong.

Nina Hoang: Yeah.

Andrew Douglas: Except for the admissions of wrongdoing. The rest of it, the impressionistic stuff that was relied on for serious misconduct, which elevated from misconduct to serious misconduct. There is no evidence there. So, on the cases we’ve talked about today, it was a deeply flawed process. And that along with the micromanaging and other issues that have been raised, are all psychological hazards. And remember, with psychological hazards, the impact of psychological hazards is very simple. They’re always cumulative. That’s not usually one on their own. So, to the question number 2, could you bring a claim? Yes. If there was psychological injury? Clearly no-

Nina Hoang: Yeah.

Andrew Douglas: -if there’s not. And the process of performance management was deeply flawed.

Nina Hoang: Yeah.

Andrew Douglas: So, let’s try the next question.

Nina Hoang: Could Neo bring an unfair dismissal claim?

Andrew Douglas: I think it’s a hands down.

Nina Hoang: Yeah.

Andrew Douglas: There’s no proper process there. And the courts that we’ve been showing you over the last six weeks show, given the nature of the misconduct being low and the flaws-

Nina Hoang: Yeah, it was very low.

Andrew Douglas: Now, if it was very high, if he had a punched jaw.

Nina Hoang: Yeah. I think then.

Andrew Douglas: The lack of process wouldn’t matter as much.

Nina Hoang: Would’ve been fine, yeah.

Andrew Douglas: Could Neo bring a successful General-

Nina Hoang: Also the policies, he wasn’t trained on them.

Andrew Douglas: Yeah, I know. I did put that. We both think that’s nonsense. Anyway, but it’s true. Someone couldn’t have known. And in this case the-

Nina Hoang: Because that was low level.

Andrew Douglas: Yeah.

Nina Hoang: Yeah. Arguably.

Andrew Douglas: The confidentiality part, I think, is a really good example ’cause he wouldn’t know as he walked out of a meeting that he couldn’t talk about it. So, he’d need to know about that sort of stuff.

Nina Hoang: Yeah.

Andrew Douglas: All right. Could Neo bring a successful General Protections Claim?

Nina Hoang: Yes.

Andrew Douglas: And I think the final words from Megan Smith, also known as Mega Smith in Trinity. Sorry, in “The Matrix,” are a total giveaway.

Nina Hoang: Yeah.

Andrew Douglas: ‘Cause he’s a troublemaker. He is raising complaints.

Nina Hoang: Yeah.

Andrew Douglas: Let’s just get rid of him.

Nina Hoang: And get rid of him swiftly.

Andrew Douglas: Swiftly. Yeah. Well, there you go. There we are. I can tell you, Nina and I have put in hours learning today. You can tell by our gaps in knowledge. We’re sitting in a coffee shop across the road going, “What do you think about that?”

Nina Hoang: I think we got away with it.

Andrew Douglas: Drawing parallels… I think we got it. Let us know if we got away. Give us a thumbs up.

Nina Hoang: Give us a thumbs up. See you next time. Bye.

Andrew Douglas: See you later. Bye-bye.