Nina Hoang: Main topic: Quarantining the Decision Maker.

Andrew Douglas: Yeah. This is a daily thing for us when it comes to managing. We’ll talk about the case, ’cause there’s a great case in this as well. But every day we deal with people dealing with, look, “We’ve got a difficult employee, what are we going to do?”

Nina would say to them, “Okay, so who’s going to make the decision? You are going to do an investigation. Who’s going to make that decision?”

And everyone goes, “Oh, It’ll be the ops manager, wouldn’t it?” She goes, “No, no, who is really going to make the decision?”

Because there’s a couple of things. When you’re dealing with a complex soul, and let’s just say they’re a red flag employee and that’s unpopular language, but let’s say they’ve been a difficult person. You know, there’s a whole lot of things that everyone knows about that person.

You don’t want the decision maker knowing that fact, because the test for terminating a person, general protection is subjective. The knowledge of the decision maker is everything.

So if they don’t know they’ve regularly made complaints about stuff, they don’t know they’re always late to work. If you don’t know all those things, if all the things that you don’t like about that person are not known by the decision maker, all the decision maker does is read the investigative report, and therefore general protections can never apply.

So it does two things. One, at the very beginning of dealing with complex matters, get your structure right, okay? And we’ve talked about this too often, which is… I know you’re bored already. Go through your policies and procedures, and legal obligations. Create a tick list.

Nina Hoang: Yep.

Andrew Douglas: Allocate who is the decision maker, quarantine them. Okay, and if necessary, write to the decision maker, “I’d like you to undertake an investigation, the following things, and provide me with the report,” so that it’s clear what evidence they are going to be given. And don’t talk to that decision maker. Don’t send emails to them. Just stick by the rules. So why don’t we have a quick chat about Pilbrow, ’cause it’s an interesting case, isn’t it?

Nina Hoang: Mm, yeah, it’s Uni of Melbourne. There was a lecturer who was kind of problematic.

Andrew Douglas: I think undoubtedly there were, and like so often happens is when people are problematic and there’s been warnings and all sorts of things happen, what they do is they try and sweep it up in a redundancy process.

Nina Hoang: Yeah, but I mean, it was bad. He was on performance inform and he deleted-

Andrew Douglas: 1,000.

Nina Hoang: 1,000 files or something.

Andrew Douglas: Yeah, so they tried to sweep it up in the redundancy and then it all sort of seemed to conflate into one thing and eventually his employment was terminated. And at the end, the judge was-

Nina Hoang: So it went to an appeal. So at the first instance, they found that, look, it definitely was the case that they hadn’t discharged the onus of proof.

And then in the second instance, the appeal court found, yeah, we agree with the uni that whoever they said was the main decision maker, was main decision maker. But what they had failed to discharge was to prove that no one else had material evidence.

Andrew Douglas: Particularly the one who was involved in the redundancy argument.

Nina Hoang: Yeah, yeah. And that was the issue. The fact that they didn’t provide enough evidence and hadn’t set up the process to quarantine decision making. It was too much links.

Andrew Douglas: Can I just… Yeah, and I guess that’s the other part to remember is the general protections have a reverse onus. So once somebody has proved the facts of termination, the onus shifts on you to show what was the evidence that you took into consideration in the determination of termination, okay?

Nina Hoang: Yeah.

Andrew Douglas: So what was the state of mind of the decision maker? So if you fail to lead evidence accurately of the decision maker or the decision maker’s evidence wasn’t polluted by another possible decision maker-

Nina Hoang: Yeah, and that’s where there was the issue, because the employee just said, “Yeah, cool, that person told me the decision,” but someone else also was a decision maker and they failed to separate the two.

Andrew Douglas: Yeah, and look, so let’s do the equation. You’ve got a person who’s performing poorly, okay? You have an entitlement to terminate based on that. You are faced with a decision you need to make about that person, and therefore you need a person to make a decision. That’s pretty easy, isn’t it?

Now, if that person has raised complaints or exercised any workplace right, all that person has to prove is that they were terminated by you and assert that it was for a workplace right. Your obligation as the employer then becomes to show the decision maker’s mind was not affected by a workplace right, it was related to a performance or redundancy-related issue. Doesn’t matter about process or procedure at all in general protections.

So you can see the equation is very simple, but it’s that reverse onus that continues to bite. The courts commonly if it’s so obvious that the employee did the right thing and not as troubled by the reverse onus. But universities and organisations are heavily documented environments, heavily policed by policy and process.

So the issue becomes really complex. So the court does dig down to actually identify what was the process. And here they find, well there’s one person who wasn’t, but there could have been the second professor who was also involved, who failed to disclose your burden, your onus of proof on that, and therefore, the plaintiff wins.

So I think it’s a great case. You know, I just think, because so many people forget the risk of general protections, it’s there every time. And you’re dealing with what could be described as a complex employee. They’ve complained about staff, they’ve tried to exercise rights, they’ve said they’re being mistreated at that stage, quarantine the decision maker.

Nina Hoang: Yeah, I will say it was a very confusing decision. So thanks David. Who really, over it by the end.

Andrew Douglas: Yeah, thanks for cleaning it up for us. Why don’t we go onto the problem.

Nina Hoang: Yeah.

Gwen felt wounded and afraid. Her manager, Tony, was a misogynist who treated her like a fool. It wasn’t just her but other women as well. He assigned her menial tasks, micromanaged her and set deadlines that were impossible to meet, because he had left things to the last minute. She had tried to raise these issues with him, but each time in a flirting manner, he would say she was invaluable to him, that he needed her help and would blame the workload.

But Gwen was suffering. The team were underperforming and upper management was circling. She was scared, couldn’t sleep, and often spontaneously cried. She complained to HR.

HR provided her with support, offered psychological intervention and reallocated her to another manager whilst they investigated.

When they informed Tony about the complaint, the need to reassign Gwen and the evidence indicating significant risk in his team, which emerged from the annual people survey, he claimed he felt blindsided. He said the process seemed unfair and that he felt unsafe.

At the beginning of the process, no decision had been made regarding whom HR would report to for the investigation. HR informed Gus, the head of operations, that Tony was being difficult and raised unfounded safety concerns. They explained Gwen’s allegations, what she had communicated to them and what the annual survey suggested, implying that Tony was a problem.

HR conducted the investigation while keeping Gus in the loop. An allegations letter was emailed to Tony. Since he had primarily worked remotely, they arranged a Teams meeting for the investigation. No support was offered. Tony was stunned by the allegations and surprised they didn’t want to meet him in person. He wrote to them again expressing that he felt isolated by their actions. HR spoke to Gus who stated that Tony was being difficult just as Gwen had reported.

The investigation concluded the head of HR, Prue, who had previously…”

Andrew Douglas: I did this on the plane, I didn’t have anything else to do.

Nina Hoang: -managed…

Andrew Douglas: It’s too long.

Nina Hoang: -a Performance Improvement Plan with Tony, presented the findings to Gus and they jointly agreed that he had to go. Quick meeting was arranged for Tony, which Prue and Gus attended during which they outlined the findings. Tony’s support person remarked that the situation seemed somewhat artificial, and Tony claimed he felt it was a stitch up.

He told ’em that Prue hated him and had mentioned at a social event how difficult he was being, which was true. They’d also been difficult at the event. Gus said, ‘Enough, we’ll take a break and come back and let you know.’ All the allegations were vague and impressionistic. Tony argued that it was unfair, as he couldn’t adequately respond. When they were returned, they summarily dismissed Tony. He was stunned. Nothing in the allegations letter or the allegations themselves had suggested he was at risk of termination.

Andrew Douglas: That’s got a be it, isn’t it? Okay, so-

Nina Hoang: Hey, there’s no-

Andrew Douglas: No, no, no, no, was just longer. With Tony’s alleged actions, psychological hazards. Absolute terrible. So Tony was in deep trouble. And interestingly, wherever you get in this, the court’s going to look at Tony’s actions and he’s in a lot of strife, okay? Would Tony have a valid workers’? Absolutely, absolutely. The process was undertaken against Tony-

Nina Hoang: Gave no defence.

Andrew Douglas: The use of video, all the things that we’ve talked about in the past, yeah.

Nina Hoang: Was that especially ’cause he raised the concerns and then they just dismissed it out of hand?

Andrew Douglas: Yeah, was the manner in which he was investigated, the safety risks to Tony, did it breach any safety law?

Nina Hoang: Yeah.

Andrew Douglas: Yeah.

Nina Hoang: It exposed him to psychological hazard.

Andrew Douglas: It sounds that, so yes it did. Can remember the case we did the week before where we talked about the use of videos. The conflicted interest in the HR had already participated in issues. I just chucked them all in again to remind you, when you’re investigating someone don’t have Nina investigate me when she’s dealt with me adversely before, because no one’s going to believe that’s fair.

Nina Hoang: Yeah.

Andrew Douglas: Okay?

Nina Hoang: Even if what your investigation is fair, it just is tainted a little bit.

Andrew Douglas: It’s tainted and remember, allegations-

Nina Hoang: It’s an easy way for that to-

Andrew Douglas: Allegations are date, time, place, person and fact. They’re not impressions. Anyway, I just thought I’d chuck those in as a reminder.

Nina Hoang: Was the investigation fair? No.

Andrew Douglas: No.

Nina Hoang: Just for the reasons that we just talked about.

Andrew Douglas: Could Tony argue unfair dismissal?

Nina Hoang: Yeah.

Andrew Douglas: Absolutely, for lack of procedural fairness.

If he did that, can I just say to you, the organisation would take a terrible bollocking, but Tony, if he succeeded, would get little or nothing. But he may also just fail. But in a general protections claim, he has a winner.

Nina Hoang: But then that’s not the reason they’re terminating him.

Andrew Douglas: Oh they are? No, ’cause what they kept saying all the way through is HR, “Tony’s a difficult person, this is…” So there is a secondary narrative and I put this in deliberately. If you and I are decision makers-

Nina Hoang: Oh because of all the discussions between-

Andrew Douglas: The discussions that occurred to it, then who is the real decision maker, one? And two, if mine is a frustration with this person for being bad and difficult, then I’ve tainted it and I will not be able to get out of my reverse onus. So this is a case around not being able to defeat the reverse onus.

Nina Hoang: Tricky.

Andrew Douglas: Yeah, tricky case. That’s what happens when you have an hour on the plane. All right, look, can I just say thank you very much. We really sped to get here. Well read, well done. And hello.

Nina Hoang: Thumbs up.

Andrew Douglas: Hello to my dad and see you later.

Nina Hoang: See you next week, bye.

Andrew Douglas: Cheers, bye-bye.