Andrew Douglas: Is this our major topic?

Monnette Samo: Yeah, this is really sad, actually.

Andrew Douglas: Yeah. It’s terrible what’s happened. But it’s interesting when non-workers die, particularly children, how aggrieved regulators and police become.

Monnette Samo: Yeah.

Andrew Douglas: So this was a case where a contractor to a principal contractor was involved in doing two things, which was setting up the oxygen, nitrous oxygen lines, and doing neonatal intensive care unit. Correctly labelling those because obviously one kills, one keeps alive. Nitrous oxide obviously has a use in anesthesia, but it’s also highly poisonous at higher doses. So he wrongly identified them, but were still then signed off a certificate, which was knowingly false at the time of doing.

Monnette Samo: Yeah, exactly.

Andrew Douglas: And as a result of that, one baby died and another one was seriously injured, regulator got a hold of it, prosecuted the principal contractor and the principal contractor raised the defense. We couldn’t know of someone being inherently dishonest. We have a system in place which identifies the lines. The lines were appropriately identified. There was a certificate that says it’s been tested and checked when it hadn’t been. We couldn’t foresee that someone would knowingly be dishonest about that. I’m not completely convinced in law terms that they were acquitted under the safety law. Whether there shouldn’t be a secondary check on something which you are giving to someone who’s unable to say no. Okay?

Monnette Samo: But didn’t the engineer at the local health district actually sign off on this without actually witnessing?

Andrew Douglas: Yeah, yeah, yeah, yeah, yeah, yeah. But it’s the contractor, it is the contractor. Both times it’s the same contractor. Yeah? So the issue here is there’s a whole lot of stuff that happened, but if you are giving something that a person can’t say no to. So you’re giving someone nitrous oxygen, they’re falling asleep, they giggle a bit first, but then fall asleep. Does that make sense? You’ve got to have a double check, don’t you? Whatever happened to you, the same person was charged under safety law and was fined $100,000 and then was subsequently charged by the police for reckless wrecks, they called it a Siri injury.

Ended up doing, it’s going to do a couple of years extra in jail. So my view about this is how tough it is, isn’t it? You can come, you can be the same person. Different jurisdiction charges you in the same set of facts with different mental element that applies to it. And therefore it’s not purely double jeopardy. And in law you can’t be sentenced for the same thing. I think this is, and we’ve got to come to some agreement that there’s got to be some clarity for a person that once they plead guilty to one thing, which is what happened in the safety jurisdiction, they’re not suddenly convicted of another. So that’s why we got us a major issue.

Now the case is R v Turner, which is the Crimes Act case. Why don’t we wander over now just casually to the case study and I’ll let you read away. It’s going pretty slow so you can read slowly. You might want to read from there, I think, that might be easiest part.

Monnette Samo: So Moses didn’t think it was fair. As a leader, he felt he had no power or voice. His boss, Len, was an indifferent individual, hardworking but distant. Len had asked Moses to have his team prepare for the launch of the new software platform designed to manage blue-collar work. It was a complex change process moving away from a team of data entry staff to a live client portal. There was a rough draught of the transitional pathway, but it requires significant work.

Moses knew that there was a strong bond between the blue-collar workers and the data entry team. It was inevitable that many data entry employees would lose their jobs. The news of the change had already spread and five employees were on sick leave while two had recently submitted certificates of capacity. Moses believed the change management process was clunky, insensitive, and poorly conceived.

The data entry staff was scared and no one had clearly explained whether there would be redeployment opportunities or if they would lose their jobs. Moses said he felt pressured and unsafe implementing the process to launch the new software. As he could sense the distress and harm that would follow. Len responded that no final decision had been made and that they were simply developing a consultation process. He dismissed Moses’ concerns and told him to follow a simple script. Moses maintained that the process was unsafe and that he felt harmed by it and he refused to proceed. Len told him it was a direction, but Moses continued to refuse.

Andrew Douglas: Okay, so the first question in all this, well done, by the way, the first question is, was Len’s direction to him the lawful and reasonable direction? Now why would I ask that? And the answer is, when someone refuses to do the job they’re told normally they get sack for it, okay? And what is serious misconduct under the Fair Work Act is captured by Regulation 1.07. The fair work regulations and failure to comply with a lawful and reasonable direction is serious misconduct.

A lawful and reasonable direction is one which aligns with what is a legal obligation and it would be reasonable for the person to do it. So the example I always give is, I might say, Monnette, I need this letter to get out by 5:00 and if you don’t, I’ll need 40 pushups down. Lawful the first part that completely unreasonable in the manner in which it’s done. This is a very important thing here because what Moses is saying that I know what you’re saying you, but if I do this, I’ll harm someone and I’ll harm myself because of the interactions I’m going to have. So it might even be lawful for you to tell me to proceed it, but it’s not reasonable for me to do it.

So I think the short answer here is on the basis of the evidence we have, it’s not a lawful and reasonable direction. So that really takes us to the next one which is, could Moses refusal to follow the direction be a valid reason for termination? And the answer is no. So it’s interesting, isn’t it? Len is saying, I’m complying with the award process. There is no definite decision that’s been made. We are just consulting to understand what the decision will be and you are saying no. And Moses is holding up a safety flag and saying, “But I’m aware of a hazard.

This process of change is hazardous. I know it’s a high level risk and it is creating harm. I’ve seen harm and you are asking me to facilitate further harm. I’m not going to do it. I’ve got an obligation and my safety legislation to exercise reasonable care, not to harm other people. You’ve got obligations and organization to identify has a determined risk institute of control. You’re avoiding the control and you’re telling me to harm, I’m not going to do it.”

Monnette Samo: Yeah.

Andrew Douglas: So interesting. I think that if they tried to sack Moses, they’d be in deep trouble. Would Moses’s perception of the direction form a proper basis for a successful workers’ compensation claim? When Len’s going to say it’s reasonable management action. Okay, well objectively is it reasonable management? Let’s work backwards. So is it fair for him to do ask to do it? Is it fair for him to say, “Look, we need to do a consultation process before we make it,” definitely, but the manner in which he’s doing is unsafe.

So it is not going to be of reasonable direction. It is part of a management discussion. So it is not a subjective test of what Moses thinks. It is an objective test of what is reasonable, in this case claim would definitely be accepted. So the question then is what about the data entry people? Who put into its, their claim’s going to be accepted as well. Why? Because it arose out of the course of employment. In Victoria, it’s not a typical part of a conversation that exists.

It’s a type of conduct which harms, it’s going to be accepted in Victoria, will be accepted in New South Wales under the new legislation when it eventually comes through there and is definitely acceptable in every other state and territory of Australia. What’s our next question? Is the business in breach of safety law? The answer’s got to be yes, doesn’t it? For the reasons I’ve described. So definitely if Moses was to proceed, he would be breaching his personal obligation.

This is the four university cases. When you’re introducing a management of change, the obligation of consultation in safety law sits prior to a definite decision being made, which is you must consult, but all the statutory obligations, you must not harm, you must identify hazards. They’ve failed in the safety part, which is the formulative part of making a definite decision for which the award applies. So the award consultation obligation arises once a definite decision has been made.

And that consultation is not about whether it’s a good thing, it is to prevent the impact on a person to make sure that, you know, there’s alternatives if you can do it, all that sort of stuff. But it is not about changing the decision. But when you haven’t made the decision, it’s safety law that applies. And the four university cases we’ve talked about several times is when you decide to go through a restructuring process, this is a potential restructured process. You can’t do it and create harm on the way through. Which is very hard, isn’t it? Because if I’m saying to you, Monnette, you’re going to lose your job.

Monnette Samo: Yeah.

Andrew Douglas: Yeah, but it’s harming me. So is this where safety law should be policy argument? For the day, but at the moment, I think they’re in all sites sorts of strife. They’ll certainly get a stop order from an HSR if there’s one on site. If you consult with them and you don’t stop what you’re doing. And if that happens you get a regulator and he’ll probably issue a prohibition notice and then the world just changes for you overnight and you’ve got hell, okay? You’ve got a regular inside your organization pulling the section 100 documents, all the documents that tell all the bad story. They’re all sitting in front of a regulator, including all the complaints that have been made that you failed to respond to.

If Moses got sacked, even if he didn’t, because for general protections claim you don’t need sack, let’s just assume he does get sacked, will he have a general protections claim? He’s raised his safety concern, it’s a workplace, right? He’s treated adversely because he raises that there’s a shoe in his neck. And what do we know about the case we saw today? He’s a shoe in and it’s a big claim. I don’t think we’ve got any other questions, you know, like I’m looking at the teleprompter, it’s not telling us anything. I’ve looked at my bit of paper down it telling me it’s got to be, is it?

Monnette Samo: Five questions.

Andrew Douglas: Great to have you along. Really enjoyed it, guys.

Monnette Samo: Thank you.

Andrew Douglas: I think today, the cases have told us some things which are very significant about bullying. Stop orders. I think it’s worth remembering that’s an objective test, not a subjective test that we’re talking about, but I think what we’re seeing is the growth of general protection is claims rapidly growing in volume, but now we’re also seeing the risk factor if they get them right, if it’s not AI rubbish, if they’ve got them right and you don’t fix it, you’re in for a big award, okay? Thanks very much, see you later, bye-bye.

Monnette Samo: Thanks, guys, bye.