Andrew Douglas: Let’s go on to the main topic, ’cause, I think, this is sort of… What can I say?

Kim McLagan: I’m going to enjoy this. I’ll sit back and listen to you.

Andrew Douglas: You’re going to sit back and listen. All right, well, the Ellen government thought it might be a great idea that we legislate work from home, and they’ve found a legal loophole, ’cause they can’t do it industrially, ’cause the delegation of powers that went federally to use the equal opportunity.

Kim McLagan: Mmm.

Andrew Douglas: I mean, talk about cynical, ’cause it has nothing to do with it at all, but, anyway, they’ve done it, and it means that if you are in a business where someone can work from home, they’re entitled to have two days a week of working from home. They’ve argued all the productivity and all the other issues that around it. There’s a whole lot of competing evidence, may I say, about working from home as to its level of productivity. The historical evidence was that in the first six months, people are inclined to be more productive, but after that period of time, they’re inclined to fit their family circumstances around it, and productivity is inclined to drop off. So it’s a nonsense.

Kim McLagan: Well, I will say, just incidentally, listening to the radio this morning, a lady said, “Oh, yes, I’m working from home today, so really crazy day for me,” and I thought, “Not a good thing to be saying on the radio, but anyway.”

Andrew Douglas: No, no, but it’s true. You know, like we know that we have days of really high productivity, and our anchor day is one of our most productive days that we have when we’re here, if you just look at the data.

Kim McLagan: I work so much better from home.

Andrew Douglas: But that’s right, people like you and I, when we sit behind a desk alone, away from noise and from people, we churn it out. So working from home is not a one-size-fits-all, which is exactly what I wanted to say.

Kim McLagan: Yeah.

Andrew Douglas: So legislating that anybody can do it, putting it off, so small business can get HR policies and things together by July next year were not… The reality is work from home is doing quite well, thank you, and the businesses must have a capacity to actually manage their workplace.

Kim McLagan: Exactly.

Andrew Douglas: And we’re going to end up with this position of rather than empowering workers, we’re going to get this disenfranchising of workers, who everyone’s going to do two days, not three days. No one’s going to be heard in the process. It’s going to be just one-size-fits-all. It it is foolish, and we set up a business around flexible work.

Kim McLagan: Mmm.

Andrew Douglas: We didn’t need this.

Kim McLagan: No.

Andrew Douglas: We knew what we could get was productive, and it wasn’t productive. This is an election hack. That’s all it is.

Kim McLagan: Yeah.

Andrew Douglas: It’s a really cynical thing, which takes us nowhere, creates an extra level of legislation, creates an extra level of conflict in a place which is already rife with it, and doesn’t assist in that conflict management at all. What don’t we have a look at the case study? ‘Cause I’ve lectured enough on that, but I do want us to be more critical of legislation, which is done for political purposes rather than for employee wellbeing and not even contemplating the impact that it could possibly have on employees, which would be substantial. All right, well, the case study today over to you.

Kim McLagan: All right, Noel was a diabetic. At 61, he had peripheral neuropathy. What is that, Andrew?

Andrew Douglas: It’s death of nerves. So on the peripheries of his body, particularly hands and feet for diabetic people, their nerves start to die, and they get tingling numbness.

Kim McLagan: Okay, in his hands and feet and recently suffered a wound on his left calf just above the ankle while using a chisel to mortise joint.

Andrew Douglas: Mortise.

Kim McLagan: Mortise, oh.

Andrew Douglas: This is one of Nina’s just to throw you.

Kim McLagan: Well… To mortise a joint and stabilizing one plank with his left foot. The incident was observed by an apprentice, and the report was signed off by the operations manager. Noel was massively overweight, a smoker, and enjoyed drinking. His body was mottled with scars and indentations from past ulcerations. He worked for Custom Wood Cabinet Makers as a foreman. The wound had ulcerated and he required rest. His GP issued a certificate of capacity recommending rest, wearing short pants, which were not permitted on site for safety reasons, and avoiding dusty environments due to the risk of the ulcerated wound worsening and not healing. This was the fourth absence in the last 12 months caused by small cuts, which had become ulcerated. The managing director, Lyle, not going to try and pronounce his surname.

Andrew Douglas: Transversaria?

Kim McLagan: Where do you get these names from?

Andrew Douglas: Swedish name for wood turner.

Andrew Douglas: Sorry.

Kim McLagan: He was a meta demon.

Andrew Douglas: Oh, it’s just madness.

Kim McLagan: Lyle was frustrated. Noel had taken over 78 days of sick leave or workers’ compensation in the previous 12 months. When Lyle arrived at work at 6:45 AM, the operations manager, Stan, told him he had seen Noel at a pub the night before, enjoying a drink, possibly more than one. Lyle hired a private investigator to follow Noel and see if he breached his medical restrictions. Lyle believed Noel was responsible for his own condition and that it had nothing to do with work.

In his view, Noel’s problems were a result of poor lifestyle choices. Lyle thought that if Noel had taken better care of himself, the injury would’ve remained a small cut and healed properly. A few days later, the private investigator returned with three videos, Noel wearing pajamas while sitting on the front porch of his home having a coffee and a cigarette, the pajama trousers were long, Noel was doing yoga with his wife rather than resting, and Noel was at a men’s workshop supervising another man using a wood lathe. Lyle sought to have Noel’s workers’ compensation payments terminated. By this time, Noel had been absent for 94 days and planned to terminate his employment for willful self-harm, preventing a return to work.

Andrew Douglas: There you go, so the questions, was the evidence collected by the private investigator contrary to Noel’s medical condition? And the answer is no, no, not at all. Wearing a pair of pajamas and sitting on the front porch when you’re not working and exercising doesn’t mean that the long pants are causing any form of irritation or rowing. Doing yoga is probably pretty healthy for me, to be perfectly honest.

Kim McLagan: Yeah.

Andrew Douglas: What was the third thing he did?

Kim McLagan: Well, the one thing was working at the men’s workshop, and using a wood lathe.

Andrew Douglas: Yeah.

Kim McLagan: Which I imagine was a dusty environment.

Andrew Douglas: Well, could have been.

Kim McLagan: So that could be the-

Andrew Douglas: Could have been, except where’s the evidence of dust? So it could have been, yeah. So my point about is each one of them had a descending order of risk that attaches to it, but you can see Noel getting into court and saying, “Yeah, well, they’re using a lathe, but a lathe takes off clean sheets. It doesn’t create dust, for instance,” and you go.

Kim McLagan: Oh, no.

Andrew Douglas: Yeah, okay, not…

Kim McLagan: Yeah, you knew.

Andrew Douglas: Well, I use a wood lathe. You know, I’m wearing pajamas, but what am I going to do, go and buy shorts to go to bed? I’ve always worn them, and I’m not doing anything. I’m just sitting there. So every one of the things that happened is explicable, and it’s certainly not a basis for seeking termination of entitlements, and no insurer would touch it if they did.

Kim McLagan: No, which is the second question.

Andrew Douglas: Yeah.

Kim McLagan: No.

Andrew Douglas: And so the answer is no, but talk more about the insurer.

Kim McLagan: Yeah. So insurers are very reluctant to, A, undertake surveillance ’cause it’s expensive, but, also, people often… Employers will often suggest to the insurer, “Oh, we think he’s working somewhere else.” They treat that evidence very skeptically and would need to be very, very strong evidence before an insurer would investigate fraud.

Andrew Douglas: Yup.

Kim McLagan: And there would also have to be medical evidence that he’s doing something which a medical doctor said he actually can’t do, rather than just acting contrary to the doctor’s advice.

Andrew Douglas: Yup. So I think that’s a pretty important part. So let’s go on… Before we go on, I’m not sure what the questions are. I’ve forgotten ’em all now, but one of the tricks in this problem was to say you’re over 90 days, okay?

Kim McLagan: Yeah.

Andrew Douglas: And over 90 days means you get past the general protections risk of terminating a person who’s been absent for a period of 94 days.

Kim McLagan: Yeah.

Andrew Douglas: But, of course, that 94 days doesn’t include workers’ compensation.

Kim McLagan: Yeah.

Andrew Douglas: And it would require all personal leave entitlements to be finished by that time, the person without some method of payment for the injury that’s received.

Kim McLagan: Yeah.

Andrew Douglas: So you’re right in the general protection territory, ’cause you’re terminating on the basis of an injury without a proper reason.

Kim McLagan: Yeah.

Andrew Douglas: So that’s not a question.

Kim McLagan: Well, it is a question later on. So you’ve answered it-

Andrew Douglas: There you go, is that one-

Kim McLagan: And I might as well finish the rest of that question.

Andrew Douglas: Yeah.

Kim McLagan: You’d been breach of the workers’ comp legislation for terminating within the obligation.

Andrew Douglas: Yeah, which it has. Most people don’t understand that there’s an adverse action provision that sits in all workers’ compensation with a reverse onus that says, “You must not treat someone adversely for putting in a certificate of capacity threatening to do it or to have a workers’ comp claim,” and once you do it, the onus goes onto you to show that you weren’t terminating him for that reason. So be aware. It’s a big issue.

Kim McLagan: Yeah.

Andrew Douglas: And it sits in every worker’s comp legislation. Just like in safety, there’s a provision for breaching someone for raising a safety issue. Most people don’t even know that it’s there.

Kim McLagan: Mmm.

Andrew Douglas: But it is. It’s just not frequently litigated.

Kim McLagan: Yeah.

Andrew Douglas: All right, goodie so.

Kim McLagan: So are there privacy risks in the action taken by the private investigator?

Andrew Douglas: Yeah, because they went on the private property.

Kim McLagan: Oh.

Andrew Douglas: Mmm. So in Victoria, peering in the private property without a person’s consent is a real problem. In every other jurisdiction, it’s covert surveillance and would be very problematic, and in Keenan’s case, in Queensland, there was somebody looking in, seeing somebody working in a car in a garage, and their commissioner made it absolutely clear that there was a breach of privacy. So be very careful what you ask and remember, PIs are often ex-cops.

Kim McLagan: Yeah.

Andrew Douglas: They’re a bit oblivious to the privacy legislation and the risks that sit around it. So be careful about how you shape what you are doing so that you’re not offending it, because it’s unlawful to do it, and it can be lead to the exclusion of the evidence you’ve got in any event.

Kim McLagan: Okay. So the next question was would there be workers’ compensation, discrimination, adverse action risks? So we’ve really covered off on that.

Andrew Douglas: Yup.

Kim McLagan: So the next question would be is there an inherent requirements pathway where they could have lawfully terminated his employment, and they would have to get an independent medical assessment of him? And there would have to be me medical evidence that because of his underlying medical condition, he wasn’t able to do the role safely and the role provided for… What’s the word I’m looking for?

Andrew Douglas: No, it’s okay, but there is… So the answer is was there evidence that shows, given the nature of his susceptibility to serious injury, the result of minor cuts?

Kim McLagan: Yes.

Andrew Douglas: Was he not fit? Was there no reason to just… But I think it’s a good argument. The problem is the obligation period in Victoria, ’cause Victoria is 12 months, New South Wales, six months, Queensland, 12 months.

Kim McLagan: Yeah, they wouldn’t be able to terminate.

Andrew Douglas: They wouldn’t be able to do it now, so what they’ve got to do is start building evidence, and the second thing is all the evidence they’ve got at the moment is workers’ comp evidence. None of which is admissible.

Kim McLagan: Yeah.

Andrew Douglas: So they have to create their own part of evidence, which is not connected to workers’ compensation about it.

Kim McLagan: Yeah, so the…

Andrew Douglas: But they’ve got to wait.

Kim McLagan: Yeah.

Andrew Douglas: Until the obligation period is complete before they can do it on the relevant. Now, some jurisdictions don’t have obligation periods, but of the Eastern Seaboard they do.

Kim McLagan: Yup.

Andrew Douglas: So that’s it.

Kim McLagan: That’s it.

Andrew Douglas: Let’s go. It was interesting to say that there was an interesting problem, wasn’t it? Okay, guys, thank you, and see you at the same time in , cheers.

Kim McLagan: Yeah.