Friday Workplace Briefing
Is WorkSafe My Friend? A Post-Accident Reality
Stay updated with our Friday Workplace Briefing
Subscribe to receive the latest Friday Workplace Briefing in your inbox every Friday, where you can hear the critical news and developments that affect your workplace.
About the Hosts
Managing Principal - Victoria
Senior Associate - Workplace Relations
Nina Hoang: Is WorkSafe my friend?
Andrew Douglas: Yeah, is WorkSafe my friend? WorkSafe is a regulator. It’s a statutory authority. Its job is important and without it, we’d have a lot more deaths and injuries in the workplace.
Nina Hoang: Oh yeah.
Andrew Douglas: So let’s be clear about it. When an incident occurs in your workplace, when someone’s seriously injured, or has died, I want you to think about in these terms, for the person who has been injured if it’s injury, for the family for the person seriously injured, or the person who’s died, and for the people who were exposed to that, their life has changed dramatically.
Nina Hoang: Yeah.
Andrew Douglas: And they must be first in your mind, not just the injured person but that cohort of people which includes supervising people, working with them. They must be protected. That’s got to be your mind place. The second mind place has got to be, what is it that I need to do to prevent prosecution of employees and your workplace? ‘Cause actually your job as an employer is make sure you do protect the employer. Now in between that is ensuring the place is safe after the incident so nobody is hurt. When WorkSafe come in after an incident, it is not your usual WorkSafe person. It is an inspector whose job it is to identify are there any other risks which need notices put upon.
Nina Hoang: Yep.
Andrew Douglas: And cannot prosecute. And they’ll put a brief together, which goes their legal team. And eight to 12 months later, in any state or jurisdiction if it’s signed off by them, you’re likely to give an indictment or an information or a complaint around. The point for Nina and I as we’re presently wrestling with a number of cases we have is people feel an obligation ’cause they’re hurting to speak up immediately
Nina Hoang: And disclose everything. Even when it’s not facts like guesses, hypothesis about what could have occurred.
Andrew Douglas: Yeah. Comments like, I only spoke to the owner two weeks ago and said this very sort of thing that’s going to happen. Yeah.
Nina Hoang: Or I think this is what had happened. He’s super unsafe, he’s always done this. Yeah.
Andrew Douglas: Like people are filled with guilt. Yeah. They’re filled with second thoughts. And as they speak to WorkSafe, then these are invariably the people who are most vulnerable who should have actually been sent home their family around them they should have been providing counselling services. It should have been a person without detailed knowledge of the what occurred as like an operations manager.
Nina Hoang: Yep.
Andrew Douglas: Who’s senior comfortable dealing with a regulator who assist workday, not hinders them and will respond to all their requests where lawfully made in a time which allows some reflection and some advice. So I guess the really big thing I want to say to all employers is, in Victoria there is no obligation for any person to say anything besides their name and address. I’m not asking you to do that by the way. But what you can do and what you ought to be saying to them is, look, look happy to help you. This is where it occurred. This is the nature of the document that we’ve created around the incident. Remember incident reports and these should not be root cause based and descriptive causation. They should be reflective of only fact. Otherwise you are hanging yourself ’cause under…
Nina Hoang: We’ve had that happen.
Andrew Douglas: Yeah, under the notices of condition in Victoria and every other state and jurisdiction they’re entitled to call for those.
Nina Hoang: Yeah.
Andrew Douglas: And at that stage form bond and relationship with WorkSafe. So that that relationship is ongoing. It should not be a supervisor. It definitely shouldn’t be the OHS manager who’s been driven crazy by the organisation failure.
Nina Hoang: Definitely should been an ops person.
Andrew Douglas: Yeah, to actually respond to what they want. Who has the whole knowledge of failure in the organisation, is angry, hurt and responsible, and does disclose everything. It must be somebody who is one step removed from what occurred, and we must look after the people who observed and were close to it. And that means getting ’em off site, getting ’em looked after, with proper trauma based counsellors. Putting them around their family, ensuring they feel safe and ensuring their return to work. In our experience, when we look at the incident we’ve got, we’ve got specialist counsellors dealing with a number of the people who’ve been witnesses or decision makers that have led to injury or death, who are incredibly damaged by it.
Nina Hoang: Yeah, of course.
Andrew Douglas: So WorkSafe is a regulator. It’s a policeman. It is an educator. When it comes to incidents, it’s definitely a policeman. Okay?
Nina Hoang: Yeah.
Andrew Douglas: And remember where your first duty lies. Look after the person who is most vulnerable, make the place safe and then have a crisis strategy around what you’re going to do and who will take charge and manage the regulator. ‘Cause if you don’t do it the cat’s going to be out of the bag. WorkSafe can only see what they can see.
Nina Hoang: Yeah, so I think to be clear, what we’re trying to say is you definitely should cooperate with WorkSafe. The obligation is you cannot hinder. But what that cooperation entails means limiting what information they have. Because anything you say, they’re able to use. And we’ve had cases, actual cases where someone has been very distressed by the events and said things out of emotion, and that’s then formed evidence against them later.
Andrew Douglas: Yeah, and it’s opened the door to an enquiry and WorkSafe could never know about. So as Nina said, it’s not about not cooperating, you must cooperate. It’s not about hindering or retracting in any way, that’s unlawful. But WorkSafe for a set of eyes, they can see what they can see. Just like police are a set of eyes and the fatality police will be there as well. So you’re not not allowing them to see and you’re not preventing them from asking
Nina Hoang: And you’re not lying to them to be clear.
Andrew Douglas: Yeah, you’re being honest with them. But the fact is, if you ask a distress person, they will say things that WorkSafe and police sites couldn’t see or know about. Like this was a discussion we had at a board level only four weeks ago where we said this was definitely going to happen.
Nina Hoang: Yeah.
Andrew Douglas: Now they wouldn’t know about that, but that is the backbone of a serious prosecution. Potentially reckless… potentially go to jail.
Nina Hoang: Yeah, so stick to facts.
Andrew Douglas: Stick to facts. Build a crisis management plan which allocates a person who is the responsible person, cooperate form a relationship with WorkSafe. But remember it’s their eyes and ears that are hearing and saying, and the things that you know would institutional knowledge that create risk. If no one says it, they don’t know it. But if you put vulnerable people in front of them, they will know it.
Nina Hoang: And just one thing before we move on is I get this question a lot. Sometimes WorkSafe will offer free resources in the form of consultants to audit your whole system. And although those services are highly confidential if you take them up, it means WorkSafe has got the knowledge that you are doing that and they can make requests for…
Andrew Douglas: Yeah.
Nina Hoang: That documentation.
Andrew Douglas: Can I just say that the people who are performing at that level are quite skilled people, but they’re not forensic people. The people that we use who provide the higher order analysis of risk, which is underprivileged for which WorkSafe can’t get a copy, that’s probably enough, ’cause it’s a starter. What I want to get going which is please have a crisis management system and process, please focus on those who are most likely to be hurt. Please make the place safe as quickly as possible so nobody else can be hurt. And then make sure that you are quarantining the nature of the enquiry to only what can be seen and heard in New South Wales and places like that, you’ll get a 155 notice, which is a huge list of pro forma questions. Please get some advice because many of those questions are irrelevant. The methods of answering them don’t have to be, you know can be done in a manner which doesn’t disclose risk but they need thoughtful consideration. Okay?
Nina Hoang: And maintain a respectful relationship with WorkSafe. After all of that, we do think you should do that. ‘Cause that can be the difference between being prosecuted and not.
Andrew Douglas: Yep.
Nina Hoang: All right.
Andrew Douglas: Case study. Here we go. Off we go.
Nina Hoang: Tom was angry that he was required to return to work in the office. His contract stated his place of work was the office. The flexible work policy had a discretionary right to the employer to permit flexible work but was otherwise only as permitted under Fair Work Act National Employment Standards. Tom’s manager Don instructed Tom to return to work full-time at the office on the 2nd of August. He had previously been working from home.
He ignored request to return to work. Don has since sent a letter making a lawful reasonable direction. Tom wrote back and said the direction was unlawful, said that had caused him stress and if he continued he may have to take stress leave. Don directed Tom to attend work for a show cause as to why his employment should not be terminated for failing to comply with the law form reasonable direction.
Prior to the letter Don spoke to Tom, explained he was about to receive a letter, offered him EAP support and inquired if the business could provide him with professional help for the stress he was feeling. He explained the letter was a disciplinary letter but said his best that he read and then call him. When Tom read the letter he went to see his doctor who put him on stress leave, not workers’ compensation. Tom sent the doctor’s medical certificate with an email that said, “Dear Don, please don’t try and contact me. Your behaviour towards me has caused me stress and now I suffer from a medical condition. Your instructions to me are unlawful and I’m not obliged to comply with them. My lawyer advised me that you have breached a workplace right, and I can bring a general protections claim and my medical illness is compensable. Please confirm I’m not required to return to the office or the disciplinary meeting unless I receive that confirmation, by return. I’ll instruct my lawyer to file the claim and see my doctor to go on workers’ compensation.” Regards, Tom.
Andrew Douglas: All right, can I just stop, in that email that Tom sent, he said “don’t contact me any further.” This is sort of Fair Work Ombudsman and Laviano where they talked about what does a medical certificate mean. And one of the things a medical certificate doesn’t say, when they’re unfit for work is they’re not able to be contacted. So that is a specific requirement, and if they say that’s the case, then there is some real problems. But if we go back, was it a lawful direction to return to work? Absolutely.
Nina Hoang: Yeah.
Andrew Douglas: Yeah. ‘Cause you had the policy, you had the contract.
Nina Hoang: And he consulted with him, and did all the reasonable steps when he was issuing the direction.
Andrew Douglas: So in some ways Tom’s in a bit of a corner here. Tom’s backed himself into a corner because there is a process that exists, it’s been done correctly and he’s refusal to attend work under the circumstances is unlawful refusal. Remember lawful and reasonable direction. First, is it lawful? Yes. Was it reasonable? Question of reasonable might back to that issue of what levels of condemnation exists in the past, and whether other people are allowed to work from home. There could be some other things that go into the reason but on its face, it’s a fair direction. Two, can Tom bring a successful general protections claim in respect to the directions return to work? And what we found from Holmes’s case is no. There is no workplace right that he enjoys that has been abrogated by Don.
Nina Hoang: And also the termination would be for failure to comply with the law on reasonable direction. It’s not to do with his stress leave, or him taking time off work. So there’s no protected attitude.
Andrew Douglas: Yes, we’re not coming to coming to work. It’s really, he’s been given a lawful reasonable direction. And I guess you hear Nina and I talk about lawful and reasonable directions and what we’re trying to say in that process is, when you’re going along a path of disciplining someone, you must identify what are the actions you’re allowed to lawfully take, and is it reasonable to do it? And then to put those in writing and describe them as lawful and reasonable directions and explain what the impact of not complying with a law and reasonable direction.
Nina Hoang: You have to do that. Otherwise it’s not-
Andrew Douglas: Yeah. Otherwise.
Nina Hoang: Reasonable direction.
Andrew Douglas: Yeah, otherwise it’s like turning up to a stop sign and there being no lawful regulation in existence says you can’t just drive straight through it.
Nina Hoang: Yeah.
Andrew Douglas: Does that make sense? But we all know there is, and I know because I keep losing points. It is three points you lose when you go through a stop sign. It’s up to nine points if you’re talking on your phone at the time. Anyway, that’s a different issue. Last question, how should Don proceed and what are the risks?
Nina Hoang: Well, I think he should just get him to respond in writing. Give him a bit extra time because he’s clearly stressed at the moment. But he’s-
Andrew Douglas: He should give him that alternative shouldn’t he?
Nina Hoang: Yeah.
Andrew Douglas: So the letter that Dawn should send is is being given the show cause letter, and what he should do is acknowledge the nature of the stress he’s feeling. Say, look, we concerned-
Nina Hoang: Offer support.
Andrew Douglas: Yeah, offer support, do all that sort of stuff. He’s done that with the EAPO which I dunno what that was.
Nina Hoang: That’s the name of the EAP.
Andrew Douglas: That’s right. But the important part about it is he then must say, look understand that you’ve got a medical certificate due to stress. We normally do this within two days. We’re happy to give you seven days which to respond in writing. In the absence of either attending or responding in writing. We rely on the evidence we hold to make a decision in relation to any disciplinary proceeding disciplinary action that would be taken. Very key words. Because once you’ve started a disciplinary process and a person goes on sick leave it doesn’t mean you can’t continue it.
Nina Hoang: No.
Andrew Douglas: What it means is if it is a discrete period of sick leave, and it’s not serious misconduct you have to wait till they come back. But this is serious misconduct we’re alleging. Therefore you can proceed but you must give reasonable time based on the medical evidence you hold in which to respond. So if Tom came back and said, “no, I’m not medically able to respond,” then we’d say, “well look that’s not what the certificate says.” The certificate says you’re not able to attend work. And on that basis we will expect a response. Now he may go to the doctor at the corner whose his wife works there and turn up with a medical certificate that says he’s unable to respond at this time. And at that stage you’d get him independently medically assessed, which he wouldn’t turn up to and breach a lawful and reasonable direction. It gets very dirty at that stage. But remember a medical certificate doesn’t say you can’t speak to him. Medical certificate doesn’t say you can’t send a letter to them, and the medical certificate doesn’t say unless there are specific words that they’re unable to respond to a letter when they’re part of a disciplinary process.
Nina Hoang: Yep.
Andrew Douglas: So there you go guys. That’s it for this week, it was fun.
Nina Hoang: Yeah, Interesting.
Andrew Douglas: Glad to have Nina back. And good to see you, and we’ll see you next week.
Nina Hoang: Giving it a thumbs up.
Andrew Douglas: Thumbs up please, cheers.
Check this next
In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang cover everything you need to know when it comes to driving for work and when doing so, how safety and workers’ compensation law makes your vehicle a workplace. To view the full episode and catch up with the week’s latest news and developments please…