Andrew Douglas: We’re onto the main topic. I’ve done a lot of talking. You’re honoring your mother’s intention of not speaking, aren’t you? Do you know anything about this case?

Tanya Maithani: Oh, this one?

Andrew Douglas: Yeah.

Tanya Maithani: I only summarized it.

Andrew Douglas: I know. So do you want to tell me about this case?

Tanya Maithani: So this case is about Norton versus Boroondara. In this, the employee was working with the employer for 13 years. He was a law force worker, so he used to drive cars. And earlier he was driving certain kind of cars which were big and comfortable, but then he faced a workplace injury for which he put a workplace claim and he got that claim, of course.

Andrew Douglas: A shoulder injury.

Tanya Maithani: Shoulder injury, yeah. But after that, when he was given a car that was a much smaller car and he couldn’t drive that, when he was driving, it was causing him pain and all. When he reached to the employer saying that this is not a very comfortable car for him

Andrew Douglas: They said, “We have no other cars.”

Tanya Maithani: We have no other cars . And terminated him.

Andrew Douglas: Yeah, they lost .

Tanya Maithani: But they actually gave three show-cause notice, which I don’t know makes any difference, but then terminated him.

Andrew Douglas: Well, look, the answer here is there needed to be an adjustment. This was a guy who had a shoulder injury. They had a fleet of vehicles. They made no reasonable attempt to work at what would work. They ignored medical evidence which was cogent and reasonable. And a result of it, they were left in this terrible bind. They were only going to end up with a 90 grand damages or they had to reinstate him. Now, I don’t know whether they put their hand up at the end. But I guess what I wanted to talk about with this is so often people have a bit all-or-nothing thinking.

Thuy comes to me and says, “Look, I can’t work Monday and Tuesday ’cause our daughter, Moon, goes to school early those days.” And I go, “Well, I’m afraid you just can’t work at all.” And Thuy says, “But I can be here at 8:30 and half the office don’t come till nine o’clock.” I’m already in deep trouble. He’s a bloke with a shoulder injury that prevents him driving a small car, an i30, which is a tiny car. I couldn’t get my leg inside one of them, okay? And they go, “We have no other car.

” It’s just not true. And it is a reasonable adjustment to provide a person with an opportunity to do it, even to break up his rides, do all sorts of things. They could have chosen to do it, but they made no attempt. So please, when people raise a disability, it is a protected attribute. It gives rise to discrimination claims. It gives rise to general protection claims. It gives rise to safety claims. It gives rise to workers’ compensation and common law claims. When you’re up to about four claims, you know you’re being a fool, okay? So great claim, well said, by the way. Do you want me to read the case study?

Tanya Maithani: I can, I can read it.

Andrew Douglas: You can go for it, off you go then.

Tanya Maithani: No, you have to pause. You have to pause.

Andrew Douglas: I’ll do it, it’s okay. Come on, let me go. Digby was a rigger with Bestie Builders. He was also a volunteer lifesaver on weekends. In 2024, he fell through a void on the 22nd floor of a high-rise development. He made a full recovery except for intermittent bouts of acrophobia. Now, Thuy has acrophobia. That’s the only reason we’re talking about this. We were chatting about in a walk the other morning. Sorry I’m drawing you into this, hon. His employment helped him to obtain his dogmen’s certificate so that he would not need to work in a suspended harness many floors above the ground. Do you know what a dogmen is?

Tanya Maithani: No.

Andrew Douglas: They’re people who direct the crane. Come down here, pick this up, tie the loads, do all that sort of stuff. Digby was teased about his acrophobia and was nicknamed Don’t Look. The nickname arose from a direction in his return-to-work plan, “Do not ask or require Digby to stand close to the edge of a floor and look out as this may trigger his acrophobia.” Digby laughed along with the jokes, but he felt increasingly diminished by them. He spoke to his foreman and explained that the jokes were having a negative impact on him. The foreman told the workers to stop.

Although the jokes mostly ceased, Digby could tell they had not disappeared. They’d simply gone underground. Everyone was excited about the Christmas party. Harold, the managing director of Bestie Builders, had secured the rooftop of the new Casino Kings Hotel as the venue. The rooftop featured a bar, a swimming pool, and a six meter diving board. At the end of the night, Harold presented several awards, all of which were jokes. Then a spotlight shone on a large cheque for $50,000 stuck to the end of the diving board made payable to the Royal Lifesaving Society of Australia, of which Digby was a board member. Harold grinned broadly at the crowd.

“Ladies and gentlemen, above us is a cheque payable to the Royal Lifesaving Society of Australia and it is all theirs if their board member, Digby, will climb up and retrieve it.” A roar of laughter erupted from the crowd. Digby, who is now drunk in attempt to numb the anxiety of being 42 stories above the ground took some time to understand what was happening. He grimaced as he looked at his friends’ beaming faces.

Something erupted from deep inside him and he roared, “No fucking problem.” He ran towards the ladder and bounded up. However, when he reached the halfway point, he froze. Everyone held their breath as they watched him curl into a ball and fall three meters onto the pool decking. All right, the questions are, when did the first breach of safety law occur and who committed? You got any guesses?

Tanya Maithani: I mean, it would have occurred when he

Andrew Douglas: It’s the jokes. It’s the jokes.

Tanya Maithani: Is it?

Andrew Douglas: Yeah, it’s the psychological hazard. It’s the jokes.

Tanya Maithani: I didn’t even think about it. I thought it might have happened when he would have said it.

Andrew Douglas: It’s the jokes.

Tanya Maithani: It’s the jokes.

Andrew Douglas: Okay .

Tanya Maithani: Okay .

Andrew Douglas: The moment someone teases somebody with a disability, you’ve got an immediate psychological hazard, okay?

Tanya Maithani: Yeah, yeah.

Andrew Douglas: All right and who’s committed it? Well, individuals with their obligation to exercise reasonable care, not bring harm to another and to comply with the rules, not to discriminate or harass, but clearly the organization is in breach of section 21 and 22 in Victoria and similar provisions elsewhere. Was there a breach of privacy law?

Tanya Maithani: Of course, talking about his health is a breach of privacy law.

Andrew Douglas: Okay, so it’s good, isn’t it? So if I’m going to return to work and it says I’ve got acrophobia and you’re my supervisor, I’ve got to be able to tell you what my fear is. So the answer is, I do consent to the person who’s managing me knowing it and I do consent to a plan, but I don’t consent to identifying a diagnosis and publishing it large.

So in Victoria, that’s a breach of the health records. Can I just say there’s only four states with health records provisions and there’s one mad part of Adelaide which isn’t called health records, it’s something else, but it’s a rule of some sort. But not withstanding that, it still remains a breach of general privacy law, and so it would be captured under that. Was there discrimination or harassment?

Tanya Maithani: Both I guess.

Andrew Douglas: There was both, yeah. And harassment in discrimination law is an aggravating feature. So if I treat you differently because of your disability, but then I continue to harass you about it, I’m making the general damages jump and jump and jump. So in this case, prior to the fall, the harassment that was occurring at that stage would have taken, it was a basic discrimination claim with a general damage about 30 to 40,000.

The general damage would have doubled already. That’s before the injury occurred. If he survived that injury, any claim that was brought upon that basis would be so significant, okay? Would Digby have a valid workers’ compensation claim before the Christmas party? The answer is yes, okay.

Tanya Maithani: Yeah.

Andrew Douglas: Why? Was joking… So there’s this really good argument in Victoria and Victoria’s different to anywhere else. In Victoria, you can say, “Look, it’s part of the usual and typical interaction with people,” which is partly to get around that type of working-joking disagreement, people don’t always get on, but it’s not designed to get around harassment.

So the answer is definitely before the Christmas party. Did safety law apply to the Christmas party? Yes, it did because it is an extension of work and although it’s not paid work, it is deemed a workplace for the purpose of all safety law throughout Australia. If so, were there breaches and who would be prosecuted and what would the charges be? Do you want me to have a go at that?

Tanya Maithani: Yeah, of course there were breaches. The manager, Harold, I think that was the name.

Andrew Douglas: Yeah. So Harold’s breached two different duties. He’s breached his personal duty, which is to exercise reasonable care to prevent harm. He’s breached his due diligence obligation ’cause he’s aware of a system in place and he’s breached it. And he may be off to reckless and danger because he knew the nature of harm that had been done and the risks that come with it.

Harold’s in a lot of trouble. Attribution implies. So whatever he’s done, the company is liable for. So yeah, I think the people that they’d go after, not the whole crowd who were involved, but Harold by inciting the crowd, I think would be in reckless endangerment territory. And I think he’d be sniffing the bars of jail. And you know what? We’ve finished.

Tanya Maithani: Well, done.

Andrew Douglas: Well done you, first one.

Tanya Maithani: Yeah.

Andrew Douglas: Thanks very much. Cheers.

Tanya Maithani: Thank you.