Andrew Douglas: Why don’t we go to the main topic?

Kim McLagan: Gee, that was quick.

Andrew Douglas: Yeah, no, no. I can be quick when I have to be. It’s okay.

Kim McLagan: Bell and Arts Center.

Andrew Douglas: Bell and Arts Center case. Okay. Very simple thing. After party from a Christmas party, someone belt someone in the head.

Kim McLagan: They go to a bar. So they leave the Christmas party, and then just go to a bar group.

Andrew Douglas: Yeah. Not sanctioned by work.

Kim McLagan: No.

Andrew Douglas: Not approved by work. No manager putting their card over the counter and saying,

Kim McLagan: No, nothing like that.

Andrew Douglas: “This is something which I accept.” So in the traditional method of Christmas party training, this would fall outside the normal part of Christmas party. We’d say, “Look, don’t do it.” But if a manager’s not present, if there’s not a level of supervision, if there’s not any sort of endorsement or authority given informally by a manager being present, it would be external from work. And the answer, and there’s another reason why that sits there and that is because the benevolent nature of legislation favors the worker.

So historically, equal opportunity in workers’ compensation would treat it as a work environment. Safety law wouldn’t, okay. So you couldn’t be prosecuted and employment law would protect the worker who did the wrong thing and say, “No, it was outside of work,” okay, ’cause each one has a different function. Okay, but all but the safety law is benevolent towards workers and therefore gives workers the best run. But they didn’t even go to Rose and Telstra on this case.

They went and said, “No, look, there is a connection here. It is reasonable expectation that people will go and do these sort of things.” And at that stage you must act in a safe and proper manner and therefore the behavior could be disciplined. But they could have done it under Rose and Telstra, which would have been a better way of doing it.

Kim McLagan: I would have thought so.

Andrew Douglas: Do you actually think so?

Kim McLagan: Yeah, definitely.

Andrew Douglas: I didn’t get it, so sorry, for Rose and Telstra, there’s three tests of whether work that is not in a work environment can lead to discipline. And one of them is the inability to work with a colleague in the future, damage to reputation, fundamental breach of contract. All three are true in this case. But they stayed within the traditional law of what is a work environment. And if you looked at Leighton’s case, which is sort of the leading case, which we take for a bit of a run shortly, Leighton’s case would say no, if it’s outside of work, outside of the work function, it’s not authorized by work.

And particularly if the behavior could have anyway been condoned on the way through the sort of escalation in behavior, then bad luck, too late, no cigar. So interesting case. And in saying that, I think we are seeing the Fair Work Commission reach out further and further as to what is work. And so this is sort of a trend case which I think we should be looking at and saying, “Yeah, maybe plaintiff lawyers don’t have to go and stretch it with Rose and Telstra.” They can start arguing this, which is a much easier path.

Kim McLagan: Yeah. Okay.

Andrew Douglas: Okay, over to you to do the case study.

Kim McLagan: All right.

Kim McLagan: “The big event was set for 1 September. Nick, the national sales manager who had secured an exclusive deal to manufacture and install industrial boilers for Victorian hospitals, was ecstatic. The deal meant expanding their factory in Scoresby and increasing production. It was a significant opportunity and they would need to recruit more staff. The party was held at Lorenzo’s restaurant and function rooms downstairs in the main restaurant.

Standing at the door and greeting staff and special guests was CEO Jean Ironside. Alongside her was Rose McGrath, the head of people and culture. Jean and her late husband, Fred, had founded the business 26 years earlier. She was tired from the responsibility she had inherited when Fred died two years ago. His death meant that she had lost not only her beloved husband and business partner, but also her best friend. Jean was wearing a ball gown and her finest jeweler.

Rose was 34 years old, a state-level netballer, and 189 centimeters tall. She had long blonde hair and olive skin and was unmistakably the center of attention for the men from the factory. Ted, the factory foreman, arrived late. He’d been drinking with some coworkers at a nearby pub and was drunk. As he brushed past Jean with a wink, he accidentally bumped into Rose and held onto her to break his fall. Rose pushed his hands away and received a smug, ‘Sorry love,’ followed by hooting from his drunken group of friends.

Ted continued to test the limits of acceptable behavior. He argued with managers and hugged several office clerks who laughed and pushed him away. His conduct did not escape the attention of Nick, Jean, or Rose. Nick approached him and said, ‘It’s time to go, Ted.’ Ted looked at Nick, stood up, towered over him before grinning and saying, ‘What? You and what army?’ Embarrassed, Nick retreated. Ted then became deliberately louder and more provocative. An hour later, the event ended.

Staff and guests slowly made their way outside into the night air. Jean invited Nick and Rose upstairs to the private bar. Around 40 minutes later, Ted and his best mate, Kev, arrived at the bar’s entrance. Jean told them to leave, but Ted ignored her and waltzed inside. Ted slid his arm around Rose and asked whether she wanted to go out with him and Kev.” I’m losing my voice. “She tried to shrug him off and was stunned when he kissed her on the lips. Kev cheered and the two men ran out of the bar. Rose burst into tears and curled up in a chair by the window.”

Andrew Douglas: All right. I’ll take over.

Kim McLagan: Okay.

Andrew Douglas: “What action could the business have taken to Ted for his behavior during the work function and for what occurred later in the upstairs bar?” So what he did during there unfortunately was all condoned. Although Nick went and said, “You’ve got to go,” he did nothing about it.

Kim McLagan: Yeah.

Andrew Douglas: So he’d certainly get a final warning, but under Leighton’s case, termination doesn’t look good and the condemnation of excessive drinking and people being allowed drinking means he will not be successfully terminated. Okay?

Kim McLagan: Mm. Okay.

Andrew Douglas: So I guess that’s one of the first things I want to say to you is that if you have a work function, you allow misconduct, even if you try have a bit of a shot at stopping it, but you don’t and you see people drunk and misbehaving and you do nothing about it, I’m afraid your hands are tied because condemnation is you can’t punish what you permit.

So I’m afraid as bad as he was, he’s probably going to survive it. The question is, at the after event, which he was not invited to, could he be terminated? And the answer is Bell’s case said maybe, Leighton’s case says no because they argued it was a work event, but under Rose and Telstra, unequivocally, yes. So he could be, okay? “Would Rose have a strong worker’s compensation claim?” Yeah, she couldn’t lose that.

Kim McLagan: Easy.

Andrew Douglas: “Would Rose have a strong sexual harassment claim?”

Kim McLagan: Yep. Easy.

Andrew Douglas: She’s doing well. “Was there any breaches of workplace health and safety laws? If so, who committed the breaches?” Well, the answer is the whole Christmas party was a breach of health and safety issues, and his conduct throughout were breached by him for his individual duties to exercise reasonable care to prevent harm to others and to fail to comply with rules. And the failure to comply to rules chucks in the business because the business didn’t have any rules and allowed the misconduct.

But the after part of it doesn’t fall under safety law. So safety law can’t put its hands like sexual harassment workers’ compensation because the intention is slightly different. So when you were saying to people, you’ve got to respect safety laws, just be a little bit careful ’cause I’m telling you safety laws sit inside a workplace, and when there is no clear boundary around what is that workplace for safety law, safety law doesn’t apply, okay?

Kim McLagan: Okay.

Andrew Douglas: Except in cases where a person dies outside of a workplace, but the causative place has to be withinside the workplace. So there you go. That’s it for us. How’d we go?

Kim McLagan: We did that in record time.

Andrew Douglas: Record time. But just for you listeners, I promise. Okay, see you next week.

Kim McLagan: See you next time.

Andrew Douglas: Cheers. Bye-bye.

Kim McLagan: Bye.