Andrew Douglas: Why don’t we now go on to the High Court decision around redundancies, which is Helensburgh Coal and Bartley.

Kim Mclagan: Yeah.

Andrew Douglas: I tried to go onto it earlier, we’ve actually cut that bit out, so. Nonetheless, let’s go on it.

Kim Mclagan:  Please throw you eye on the ball.

Andrew Douglas: Yeah, no, I know. It’s great when the director just said, “Yeah, Andrew, you missed a whole paragraph.” But Helensburgh Coal, can I just say this is a really big decision?

Kim Mclagan:  Mm, yeah.

Andrew Douglas:  We had a couple of very big decisions a couple of years ago that talked about the obligation when you are thinking of making someone redundant to look outside of the location where you are in your business and if there are other opportunities elsewhere to look at where roles could be, and that included in wholly owned subsidiaries. So already, the umbrella was spreading pretty wide, wasn’t it?

Kim Mclagan: Yeah.

Andrew Douglas:  But in this case, this was about, I think the change in this case was, and the argument of the union was, look, when you go to redeploy, that is a re-envisioning of how you allocate your workforce. So it’s a workforce management issue. So you can’t ignore that you’ve got contractors working there, that this work could be done by. It is not that a job is vacant, It is that there are people doing jobs who are not employees, and the purpose of this legislation is to protect permanent employees. And so maybe talk just a little bit about what the facts are as you understand.

Kim Mclagan:  Yeah, so 22 employees in a mine were made redundant. They were brought general unfair dismissal claims five years ago, mind you. That claim was defended on the basis of genuine redundancy. And so it’s taken five years to get to the High Court, but what the High Court said is that it did really great analysis of Section 389 of the Fair Work Act and said the Fair Work Commission is able to inquire whether an employer could have made changes to its enterprise, so as to create or make available positions for a person who would’ve otherwise have been made redundant. And as you said, redeployment isn’t just about looking at a vacant position and it can require an employer to think about making changes to the way the work is carried out to see if-

Andrew Douglas: And I think, can I say this? This is pretty important because this isn’t just labour hire type of employees, this is contractors, doing work. And a contractor might be a large contractor who places people to do specific jobs, but if the person’s capable of doing it, even with some education to do it, then they’re open to redeployment. So we’ll see there’s a whole lot of cases run after this, so we’ll see what it actually does mean, I think, over the next six months. But what a fascinating case. Why don’t we go on to the case study.

Kim Mclagan:   Okay.

Andrew Douglas: All right, here we go.

Kim Mclagan:  “Eve worked in the retail sales division of financial services company, Auswealth. Her role was digital and phone-based, assisting customers and potential customers with investment inquiries. At 27 years old, Eve was part of a team of 27 employees. Each worked in front of three screens, taking calls while wearing headsets. The environment was high pressure, fast paced, and no one worked from home due to infrastructure constraints, risk considerations, and the need for collaboration on larger transactions. The Head of Retail was Oscar Laments, a 43-year-old former AFL player who had been divorced twice.

He fostered a footy team culture, complete with sales performance letters, early morning meetings to drive results and constant banter and nicknames. Out of the 27 team members, only five were women and Eve was the youngest. Oscar called her ‘legs,’ claiming it was because she was athletic and always on the move, but Eve knew it was really a reference to her tall, attractive figure and her preference for wearing short, elegant, and expensive dresses. Recently she’d started wearing jeans to avoid the lingering looks and occasional slow whistles from male colleagues. What offend her more were the pejorative comments made about customers, employees in other departments and the general sexualized commentary about women, whether they were on TV or elsewhere. Eve eventually went to HR with a recording from her phone, captured during a morning break.

The audio included highly sexualized remarks about two customers made by several male colleagues, followed by female team members leaving the room. An investigation ensued. Three male coworkers received final written warnings. Shortly after, Eve encountered Oscar in the elevator and as they were leaving for the day, he leaned in and said, ‘We all know it was you and we won’t take it, there will be consequences.’ The next day, when Eve logged into a computer, she was shocked to find a screensaver, displaying an image of a tall, naked porn actress with a knife through her heart. Underneath it, the message read, ‘You are on your last legs.’ Panicked and shaken, Eve fled the building and as she ran outside to find a taxi, she failed to see an Uber Eats vehicle approaching her and was struck.”

Andrew Douglas: All right, so the question was, was Eve sexually harassed?

Kim Mclagan:  So, going back to the case we discussed earlier, she wouldn’t succeed under 28AA in terms of-

Andrew Douglas: The general hostile commentary, but in relation to being called “Legs,” in relation to the screen saver-

Kim Mclagan: Well, that’d be under the employment section of the Sex Discrimination Act.

Andrew Douglas: Yeah, yeah, so-

Kim Mclagan: so it’s section 28b.

Andrew Douglas: Yeah, so there you go, so-

Kim Mclagan: She definitely was-

Andrew Douglas: No and yes, but hostile workplace, yes. Was she victimised?

Kim Mclagan: Oh yes. The threat from Oscar, absolutely.

Andrew Douglas: Yeah, so can I say to you, victimisation is often misunderstood, but if you place pressure on a person who has complained or may complain in relation to a wrongdoing that has to deal with sexual discrimination or harassment, that is described as a victimisation and that is the money claim. Quite clearly, because the legislation is designed to protect people to raise questions about their own, to protect their own safety. So, was it a hostile workplace under the new definition? Absolutely. And I, Kim and I have explained this before, but we’ll start seeing cases of sexual harassment pleaded, but one of the major part, so that’s brought in that claim, but one of the major things before the actual claim part, “You did this to me,” will be a pleading of a hostile workplace, that is comments which are not directed to you, which is sexualized, demeaning, hurtful, and harmful to show that the workplace is an unsafe workplace, to maximise the claim of the individual.

And unfortunately, when we do investigate sexual harassment, what we too often find is there is a hostile workplace. There is a level of sentiment that’s out there where people behave in a manner which you just shouldn’t do. And it’s condoned or avoided by senior management, who go, “Look, it’s sort of what happens in that area, in the sales area,” they’re a bit like that, but it’s harming people as they go. “If she was harassed, victimised, and successfully argued a hostile workplace, what damage should she receive, and why?” Turns a little bit on the level of psychological damage that’s done. And let’s ignore the incident of being hit for the moment. But on what I’ve described there, she’d certainly have general damages, well over 60,000, I’d say in the 80 or 90,000 category, depending on her capacity to return to work, she may have special damages that relate to her loss of capacity to work and medical and associated costs. If we assume it was going to take her about a year to find new employment, she was on $90,000. Her probable total claims ran about $200,000. So I just-

Kim Mclagan: And she’d get aggravated damages and damages for victimisation as well.

Andrew Douglas: Yeah, yeah, yeah, she would top, top. So it’s, it’s a big claim for what is a relatively small role. Does that make sense? You might end up around about $300,000 and you’re thinking, “Oh, I didn’t think we were going to land there.” Well, you would. “Would she have a viable a workers’ compensation claim for psychological hazards?

Kim Mclagan: Without a doubt.

Andrew Douglas: Good, rather on stick.

Kim Mclagan: It’s easy.

Andrew Douglas: In any jurisdiction, including New South Wales, pretend jurisdiction that’s coming, I think on that bus. “Was there a safety breach, and by whom, and what was the breach? So, clearly a breach of duty, clearly a breach of the officer’s duty that sits within this and unquestionably, reckless endangerment because they were on notice the level of risk that was being posed. They’d been told there’d been a complaint that had been made, people had been warned and then they went and proceeded to victimise. So at that stage, Oscar’s in deep trouble. He’s certainly in the fine territory and potentially a jail period, depending on the nature of the injury that occurred afterwards. Because with reckless endangerment, it is the nature of the harm that’s done. So psychological harm, the issue is whether a harm outside of the building falls within reckless endangerment. And maybe it doesn’t, but it bleeds into the next question.

If she was killed, the fact that the death arose outside of the workplace and was substantially caused by the psychological hazard could make it industrial manslaughter. So an interesting problem is we shuffle through where safety law, but once again, I guess every week we do this, don’t we? We try to show that the law is not unidimensional, it’s not in silos. Employment law does sit next to workers’ compensation, does sit next to discrimination, does sit next to safety law. We won’t even talk about the video recording because that depends in which jurisdiction you’re in. But nonetheless, what I guess we try to get across is there are quite simple answers through all this, but the law part of it can be relatively complex and you need to be mindful of it. I’m going to go back to doing, putting my makeup on my three leg table. Trying to put the lipstick on like that. What are you going to do? We’ll see you next week, big thumbs up. Thanks very much, bye-bye.

Kim Mclagan: Thank you, by