Andrew Douglas: Main topic today. This is SafeWork New South Wales and Mills is the case I want to talk about. But it is a very limited case about trenching. All right? But what we’ve now seen is four or five safety cases that repeatedly come up and say, when you’re dealing with high risk, whether it’s whether at heights, whether it’s working in a confined space, whether it’s trenching. If you don’t hold the requisite skills, you must get experts to assist you. Because the nature of the risk is so high.

Kim McLagan:  Yeah. And obvious too.

Andrew Douglas: And obvious.

Kim McLagan:  Yeah.

Andrew Douglas: That you need to know what is the correct method of control. Remember, reasonable practicability has four elements. Is there a hazard working in a trench, working in a confined space, working at heights hazard?

Kim McLagan:  Yeah.

Andrew Douglas: What is the level of risk based on risk of injury and frequency? Okay, what’s the highest level of risk you can have? ‘Cause a collapsing wall in the trench will kill you. Falling off will kill you. Gas in a confined space will kill you. All right, so we know it’s really high risk. So, what is the control? Well, we go to the hierarchy of control. We know at high levels of risk, administer control, the bottom level of the hierarchy is not enough. We are looking at elimination or mechanical methods that prevent that risk from materialising. If you don’t know it, you’ve got to go externally. And that’s what this case is about, isn’t it?

Kim McLagan: Mm-mm.

Andrew Douglas:  Now, you talk more about the facts, but it is alarming that something like this could happen.

Kim McLagan: Yeah, so they dug a trench for a residential build, put all the landfill next to the trench, and they didn’t shore it up. Apprentice got into the trench to clear away some debris and the landfill fell in on top of him and crushed him.

Andrew Douglas: Yeah.

Kim McLagan: He survived. Fortunately.

Andrew Douglas: Yeah. Can I just say it’s very common? ‘Cause normally you do put it and you have this mound on the side of it, and the depth of the trench is from the top of the mound, not from the soil when you look at how the regulations apply to it.

Kim McLagan: Yeah.

Andrew Douglas: So, you’re over 1.8 metres down, at that stage, you’ve got a problem. But even if you’re not, you do understand that you’re dealing with volatile substance. In other words, recently dug up ground, which is not solid with an unstable boundary.

Kim McLagan:  Yeah.

Andrew Douglas: So, you’ve got to put up a border to protect yourself. So again, I guess when we are talking to clients, one of the things we talk about in safety, and you’ll hear Nina say it all the time, is, “But isn’t this a high risk? What is your expertise? If you don’t have that expertise, let’s get it for you. But just don’t wing it.”

Kim McLagan:  Yeah.

Andrew Douglas: And this was a case of wing it. “Look, he’s only in there for a second. What does it matter?”

Kim McLagan:  Yeah. They didn’t even have SWMS.

Andrew Douglas: No.

Kim McLagan:  No.

Andrew Douglas: No, no. Yeah, I know it’s scary. And remember, just say you’re on a bad day and you didn’t have a do of a SWMS, but you still have to do some form of risk assessment. So yes, the regulations define when you do have to use SWMS. They’re such great documents ’cause what they articulate is, from the start to the finish, the job, in the order in which you do it, what is the hazard? What is the risk? What is the control? So, in an ambulatory way, as if you are walking through the project, you could go, “I’m about to dig a trench. The risks in trenching are if people go inside the trench.” Okay, that is a high risk. It’s a hazard. At the moment they get in, it’s a hazard. Okay, what do I need to do to protect that? Even if no one’s meant to get in it.

Kim McLagan:  Mm.

Andrew Douglas: Okay? So, maybe I’ve got my backhoe and I’ve dug it out, but there is a risk that someone could get in. So, I’ve got to prevent people from getting in it. Do you see what I mean?

Kim McLagan:  Yeah.

Andrew Douglas: As you go along, the controls become very, what if someone does get in, even though we’ve told them not to get in? Okay, we need to make sure it doesn’t collapse. If you haven’t got the skills-

Kim McLagan:  Yeah.

Andrew Douglas: Go get ’em. And if you don’t, you’re going to end up like this case where you’re going to be prosecuted as a result of it.

Kim McLagan:  $225,000 later.

Andrew Douglas: Yeah. And can I just say? You know, in the Eastern seaboard in South Australian jurisdiction, the person who is the operating mind of that organisation, if they don’t have the systems in place and aren’t being satisfied the systems are being implemented, would be at high risk of personal prosecution in Victoria under 144, under Section 27 of the Model Act, with the due diligence obligations. Much easier everywhere else than Victoria to be prosecuted. But in Victoria, if the owner of the business, and this was a small business, was there, saw it and didn’t have it in place, they’d be prosecuted.

Kim McLagan:  Well, he was.

Andrew Douglas: Yeah. Yeah.

Kim McLagan:  Yeah.

Andrew Douglas: So, look interesting stuff. Why don’t we go onto the case study.

Kim McLagan:  Okay. Okay. “Jan was a clerk at Nimbus paper. She managed inward invoicing. Her boss, Cedric, was an uninspiring man who often struggled with Jan. He considered her a thirty-something who was full of entitlement. One Friday, Jan attended work feeling unwell. Her lips were dry, she was sweating profusely, her pupils were dilated, and she appeared confused. Cedric formed the view that she was a meth user. His son had been an addict, and the symptoms were well known to him. He confronted her near the lifts, where she was standing, holding her stomach and appearing obviously confused and irritable. Jan looked startled. She told Cedric to go away.

She was unwell and wanted to be left alone. She said she needed to go home, but urgently needed to use the bathroom before leaving. She stumbled to the bathroom, returned visibly distressed, and then fled from the office. When Jan arrived at work the following Monday, she was given a letter directing her to participate in an investigation into alleged elicit drug use and intoxication at work. She was stood down on the basis that she posed a risk to herself and others. She received an allegations letter that described her physical presentation and alleged drug use and intoxication.

Jan denied using drugs and complained that the process was flawed and unsafe for her to participate in. She stated that there was no support person offered, that the process lacked procedural fairness, and was based on an incorrect medical conclusion, and lacked direct evidence. No one asked whether she had seen a doctor, if there was anyone who could substantiate her explanation, or for further details about when or where she had eaten the food that allegedly poisoned her. As three witnesses observed her confused behaviour, and in lay terms, it was not consistent with their understanding of food poisoning, the allegation was substantiated and her employment was summarily terminated. Cedric was the decision-maker. He considered her alleged drug use, rudeness toward him, and complaint about the process typical of her entitled behaviour.”

Andrew Douglas: There you go.

Kim McLagan:  Okay.

Andrew Douglas: Good. I thought it was fun, wasn’t it? Right?

Kim McLagan:  Yeah.

Andrew Douglas: So, the first question is, “Would the investigation offer sufficient procedural fairness under both Fair Work Act and at common law?”

Kim McLagan:  No.

Andrew Douglas: And the answer is absolutely not.

Kim McLagan:  No. Yeah.

Andrew Douglas: We don’t know what would’ve happened, but let me be really clear. When someone comes unwell and confused to work, and it’s a risk, you do have to take them away from work. So, when they’re in that state, well, she fled. You’re fine with that.

Kim McLagan:  Yeah.

Andrew Douglas: When she does come back, you’d have to be satisfied she was fit on her return to work. So, you’d need at least a certificate from a doctor saying that she was fit for work.

Kim McLagan:  Yeah.

Andrew Douglas: Okay? Good. But when I go to investigate, I have to investigate the underlying facts, okay? You say you’ve been food poisoned. When did you eat the meal? Where did you eat? And is there anybody else who can tell us about what happened afterwards? And did you go and see a doctor? Now, she-

Kim McLagan:  Yeah.

Andrew Douglas: In food poisoning and I’ve spent my life being food poisoned around the world. I don’t often see a doctor. But over a number of people around, they can tell you exactly what did happen three hours later. So, had those inquiries been made, they’d probably support her. But what’s happened is that Cedric has formed a view, a predetermined view based on a protected attribute.

Kim McLagan:  Yeah.

Andrew Douglas: So, he’s in a lot of strife. So, the answer is no. It doesn’t make your own ways at common law. There’s not a procedural fairness and it certainly doesn’t meet the Fair Work Act procedural fairness requirements. And she’s a clerk under the Clerks Award. So, she’s covered by the Fair Work.

Kim McLagan:  Okay.

Andrew Douglas: Was the employer’s conduct a breach of safety legislation? Okay now, I want to just, she’s saying she, she could be saying she’s being discriminated because she raised a complaint around her safe workplace. And Cedric’s own comments reveal that that is one of the determining facts that made him make the decision. So, there is a risk of discrimination under safety law. I know it’s not often done and it’s the safety regulator who brings that. But the other part is the behaviour that goes towards providing a safe workplace. The failure of the investigation is a breach of the obligations to provide a safe workplace.

The failure to check on a health, to monitor a health on a return. All those go towards a breach. Would they be prosecuted? No. But I want to show you that those breaches are frank and can be used and leveraged off in other cause of action, like discrimination law, general protections, or unfair dismissal. All of those safety obligations are breaches of procedural fairness. They are breaches of her safe work environment and her complaints form part of a safety-based complaint for general protections, which really does bring us to our next question.

Kim McLagan:  I don’t think a lot of people would appreciate that.

Andrew Douglas: No.

Kim McLagan:  Yeah.

Andrew Douglas: But if we go back to Bourke in Suncorp, I mean, it is the place where we first see safety law infiltrating into a general protections claim where they said, you know, the obligation to monitor health is a part of employment law, and therefore, the failure to do that is fundamental. So, I think we are saying, and Nina and I spoke last time how safety is penetrating like tentacles into every part of workplace law. I just want you to know it’s alive here. So, did she have a claim under General Protections or discrimination law? And I think unquestionably that she did.

Kim McLagan:  Yeah.

Andrew Douglas: Yeah. What do you reckon? That’s us?

Kim McLagan:  That’s us.

Andrew Douglas: Oh my god.

Kim McLagan:  Good. That went quick.

Andrew Douglas: See you later. See you next week. Thumbs up.

Kim McLagan:  Bye.