Andrew Douglas:  She’s the Drug and Alcohol Policy. And this MQT, and she told it to Mattie. Interesting case?

Kim McLagan:  Mm-hm.

Andrew Douglas:People and culture not doing well in listening today.

Kim McLagan:  Right.

Andrew Douglas: Are they? A lot of… They’re getting all psyched here. This is a guy who is in people and culture and went out for a four-hour lunch. And with full bench held that there was no reason which specifically he was drinking. I’m imagine if someone goes out for a four-hour lunch. I don’t think they’re hungry. Anyway, that’s just beside the question. Sorry. They’re getting him to do a breath test and he says, “No.” They then show him the policy. The judge says there’s no reasonable… Sorry, full bench said reasonable suspicion. I think there’s a reasonable suspicion. But anyway… But the policy itself doesn’t say what happens when you refuse a breath test. And we’ve been… Nina and I been particularly been focusing on this ’cause we’ve had a number of cases of this… medicinal cannabis, drugs and alcohol over the last 12 months.

Kim McLagan: [Kim] Yep.

Andrew Douglas: And we keep saying to people, the fundamental rule is you have a policy that’s backed up by evidence. It’s educational, it says what happens if you don’t comply with the test. It describes the circumstance under when you can test. If you don’t do that, you’re not going to succeed. And you never administer a test without taking the person to the policy and explaining why you’re doing and under what basis.

Kim McLagan: [Kim] Yep.

Andrew Douglas: So this is a case where it didn’t happen. The reasonable suspicion was there, I might add. But it shows very clearly now where the Fair Work Commission sit with… This is a good full bench. So this is a robust, reliable group of Fair Work Deputy presence. You say, “If I’m going to test you,” you got to know why you’re being tested. The basis for doing it has to be a proper basis. That basis has to be found. The policy has to say that what are the circumstance under which you should be tested, how you’ll be tested. And if you refuse what will be the consequence? So I thought it was a really good decision. Becca?

Kim McLagan:  It is because we get… Excuse me. A lot of clients who will sit through their drug and alcohol policy say, “Can you please review these?” And none of them pass the test.

Andrew Douglas: No, none of none.

Kim McLagan: No.

Andrew Douglas: None of them at all. None of them.

Kim McLagan: No.

Andrew Douglas: Set out the circumstance and why. And if you go back… So the idea of random testing, for instance, people feel you can just insert it. But there’s a history of cases since New Zealand Airline case that said random testing is only applicable where there is an understanding of incredibly high risk of injury.

Kim McLagan: Yep.

Andrew Douglas:  Based on any alcohol use. And therefore random testing is not so much to test. It’s to prevent people from doing. It’s a method of leverage that says, “If you do it, we’ll catch you.”

Kim McLagan: Yeah.

Andrew Douglas: So there is a lot of law that sits behind each element of it. And it requires a bit of reflection before you do it. Anyway, great case.

Kim McLagan: Yeah, so it is worth having a look at your policy and seeing if it’s up to scratch if it doesn’t meet those requirements.

Andrew Douglas:  Yeah, send it to Kim.

Kim McLagan: Yeah.

Andrew Douglas: What can I say? Now Kim, why don’t we go over the case study?

Kim McLagan:  Okay. So, “Derek had worked at Design Error Removal “Proprietary Limited D-E-R.”

Andrew Douglas: Der-Der.

Kim McLagan:  Well I got a second “Der.” So you just-

Andrew Douglas: I know- But that’s der!

Kim McLagan:  So you just confuse.

Andrew Douglas: Was the whole idea. This is what I normally do for Nina.

Kim McLagan:  Then let’s start again. ‘Derek had worked at DER as a draughtsman for over a year. “DER was a construction project management “and estimating business operating in the prestige “residential building industry.” Sorry, it’s going bit slowly. “DER was vertically integrated “into a construction design company “that undertook high-end residential building “through its subsidiary, “Design Elite Residential and Repairs, DERR.”

Andrew Douglas: Derr.

Kim McLagan: “This meant that the workforce consisted of “a mixed group of white and blue-collar employees. “The owners, Titan and George Spiveli , “were hard knockabout men who started-”

Andrew Douglas: I put L-E on the end of Spiv, sorry. Sorry.

Kim McLagan:  Oh my word, this is just not going anywhere today.

Andrew Douglas: Knockabout men.

Kim McLagan: “Were knockabout men who had started “their working lives as concreters. “They were tough, uncompromising individuals “who fostered a direct-talking workplace culture. “Derek was no wallflower, but his life was difficult. “His family situation was complex. “And his family who he greatly admired, “had recently been diagnosed with dementia.”

Andrew Douglas: That was his father, not his family. All of them didn’t get it.

Kim McLagan:  Oh, sorry.

Andrew Douglas: Yeah, that’s all right. It’s all right. That just, they didn’t all get dementia at one time, that’s all.

Kim McLagan: “Derek reported to Cynthia. “An architect who reviewed Derek as a subordinate “in both title and skill. “She made sure he knew his place. “They had been working on a villa development “for a large retirement village operator in Malvern. “Much of the drafting work was undertaken in Vietnam. “But Derek’s role was to ensure compliance with local laws. “Cynthia would send rough design work to Vietnam “and by the following morning, “Autodesk drawings would appear in both her “and Derek’s inboxes.

“It became clear that the Vietnamese designers “were attempting to work around Cynthia’s lack of detail. “She would review the drawings marked up by Derek “and then respond to both the project manager and Derek, “criticising him for failing to identify design flaws “even though that wasn’t part of his job. “His responsibility was limited “to checking the drawings for compliance. “The project manager was Gus. “Tough-talking, second-in-charge to George Spiv.” “He took Cynthia’s comments at face value “and would scold Derek for his alleged failings. “Hurt and frustrated, Derek went to see Gus “to explain the problem. “Gus listened, understood and then finds Cynthia “and exploded at her. “She left the office in tears 10 minutes later.

“The following day, Cynthia issued Derek a warning “for failing to raise the issues with her directly. “And for supposedly going behind her back. “He refused to sign the warning and said that “if she proceeded with it, “he would take the matter to Gus and George. “Cynthia backed down but Derek soon found himself “gradually cut out of meetings, emails, and eventually work, “as Cynthia engaged an external building consulting firm “to perform his duties. “Shortly afterwards the head of HR and Cynthia, “called Derek into a meeting and informed him “that his role was redundant.”

Andrew Douglas: There you go.

Kim McLagan: All right.

Andrew Douglas: Was Cynthia’s conduct bullying?

Kim McLagan: Yes it was.

Andrew Douglas: Yeah, it was. So exclusion.

Kim McLagan: Yep. Repeated critical of him was… Criticism of his was unreasonable.

Andrew Douglas: Yeah. Hurt, humiliated.

Kim McLagan: So, yeah.

Andrew Douglas: Making his work unsafe.

Kim McLagan:  Full with that.

Andrew Douglas: So it was serious misconduct. We go back to our earlier case.

Kim McLagan: Yeah.

Andrew Douglas: The repeated did impact him in a way. Made his workplace unsafe and it was unreasonable. So it was bullying. But it also is unquestionably serious misconduct. Because it was coercive behaviour. It was behaviour trying to stop him from undermining her. The warning itself was part of a wrongdoing. It was the very beginning of something wrong. Which was punishment. So that goes completely against whatever. Say she’s in strife.

Kim McLagan: Okay.

Andrew Douglas: Now were DER, that’s little DER, and Cynthia in breach of safety laws? And if so, why? So let’s look at the duty of care. So Cynthia’s action attributed to the company. Did she do everything reasonably practical to protect Derek? Reasonable practical. Was there any hesitancy in her behaviour?

Kim McLagan: Mm.

Andrew Douglas: Yes, there was.

Kim McLagan: Yep.

Andrew Douglas: Were they high-risk? Yes, they were. So there’s about four, or five, psychological hazards that occurred there. Was the risk high? Yes, it was. Most definitely was.

Kim McLagan: Yep.

Andrew Douglas: So there’s a breech of those. Don’t know everything about his health-related status. So we can’t elevate that up to reckless endangerment or something, but there was a risk of serious harm from it. So arguably, reckless endangerment. Therefore she and the organisation are at risk. Derek’s still alive, so it can’t be workplace manslaughter. Now was it redundancy, or genuine redundancy, Kim?

Kim McLagan: No, it was not.

Andrew Douglas: Not in any way at all, was it. No crisis.

Kim McLagan: The work needed to be done.

Andrew Douglas: Yeah.

Kim McLagan:  It was just outsourced because she didn’t like him any more.

Andrew Douglas: Yeah, and-

Kim McLagan: Pretty much.

Andrew Douglas: None of the cons, even if that. And that is a legitimate process. Is not to like some, but to outsource it. But there was no consultation at all.

Kim McLagan: No.

Andrew Douglas: And the heart of genuine is a test of consultation. Failure with consultation makes redundancy not a genuine redundancy. So not a genuine redun. Does Derek have a strong general protections claim?

Kim McLagan: yes.

Andrew Douglas: I don’t think you can get a better one. So then that’s good. If Derek experienced a psychological condition as a result of Cynthia’s conduct prior to his termination, would he of had a successful worker’s compensation claim? And the answer is in any state including Victoria at the moment.

Kim McLagan:  Yep.

Andrew Douglas: Probably even New South Wales in a few months time if they ever get it out. Yes, he would. So there you go, that’s it.

Kim McLagan: All good.

Andrew Douglas: See you later, Nina. And see you later everybody else. Thumbs up, please. Cheers.