Andrew Douglas: Now, we get to the main topic, okay? This is where I’ve talked about media, employees. This is an incredibly sad case. It’s a case of a guy who was a teacher, being a teacher at a school. This is called Patrick Cogan’s case and a private school. Been there for a long time, his wife had been convicted and sentenced to 18 years for the death of their infant child.

Jim Babalis: Yeah.

Andrew Douglas: And he was agitating and advocating for her release and for fairness and justice. And in doing that from time to time, he used his own email address, and the facilities of the school. The HR manager who gave underwhelming evidence on any basis said that she’d had some private chats with him about not using the email. Please give us a heads up if you’re approached by media organizations. And after they terminated this guy, extraordinarily terminated this guy.

Jim Babalis: Yeah.

Andrew Douglas  It became really clear that none of those could have ever been a lawful and reasonable direction. Why? Because it didn’t say what the lawful requirement was, and why it was reasonable. So it didn’t say, Jim, before you speak to the media, you are required to speak to us and advise us in respect of this issue. That wasn’t said.

Jim Babalis: Yeah.

Andrew Douglas: Rather, while they’re out looking at the kids, you know, if the media ring you, let us know. In relation to using the resources, you know, please don’t use our infrastructure when you’re dealing with this. This is a guy who was swamped with media questions around it, had been doing it for a long period of time. They found out about the “60 Minutes” being interested ’cause he disclosed it, and then when they spoke to “60 Minutes,” “60 Minutes” told them a whole lot of other information, none of which was known by the employee. And then they attributed their knowledge to the employee and used as a basis for termination.

Jim Babalis: Yeah. Yeah.

Andrew Douglas: Now, Deputy President Selvin, decent soul.

Jim Babalis: Yeah.

Andrew Douglas: All Fair Work commissioners deal in a world where, in beneficial legislation where they protect workers, ’cause that’s what they’re obliged to do as a matter of law. But unlike any other jurisdiction, there is a sensitivity towards a wrongdoing towards an employee that sits in the Fair Work Commission.

Jim Babalis: Yeah.

Andrew Douglas: And if what occurs appears to be unreasonable, so, you know, the duck thing. If it looks wrong, smells wrong, and hurts someone, then you know, no matter what, where the law is, you’re going to land on the side of the worker. And this is a case where exactly that happened, where the deputy president said, “I don’t think that was a lawful and reasonable direction. Doesn’t make it.”

Jim Babalis: Yeah.

Andrew Douglas: I don’t think you should have gone and done this, and then attributed it, and so on that basis, it’s unlawful. So the only reason I’ve put it up to today is this.

Jim Babalis: Yeah.

Andrew Douglas: Our employees are constantly using media, whether it’s mainstream media, whether it’s social media platforms. When something bad happens in a person’s life, you have to assume that their principal account will be their work account. You actually need to spend time with them to help them manage those high intensity times to say what the rules are. And if you don’t do that, you’re going to end up in Cogan’s case, where they’re going to make mistakes. They’re going to do things that place the reputation of the school at risk, that bring focus upon the school. But you won’t have done the things that are necessary to manage it. And most importantly, you won’t have helped the Mr. Cogans of the world who desperately needed help.

Jim Babalis: I think something that’s also quite interesting about this case, Andrew, is something that I think we tend to see a lot is the public relations or reputational risks that employees can face with some actions, with some matters that might seem, you know, high profile. I think in this particular one here, you know, the three show cause letters.

Andrew Douglas: Yeah.

Jim Babalis: It was sort of like almost about taking a little bit engineered.

Andrew Douglas: Oh no, of course.

Jim Babalis: And I think that component that just wasn’t that strong link, the link to the reputational damage wasn’t strong through that process.

Andrew Douglas: No.

Jim Babalis: Yeah. It was interesting as well.

Andrew Douglas: And I like your comment about the preconceived, I smell behind this, they wanted to get rid of him.

Jim Babalis: Yeah.

Andrew Douglas: That it was causing them pain.

Jim Babalis: Yeah.

Andrew Douglas: That they didn’t like the exposure they were getting. If we’re dealing with a sensitive person, a person who’s harmed, and remember, he’s been harmed from a reason that’s outside of school. But we’re dealing with that person as they walk through the door, their hours. I want you to think what the commissioner was thinking, here is a vulnerable man grieving for loss of his wife and what he believes is an injustice.

Jim Babalis: Yeah.

Andrew Douglas: And here are pity people digging away at him, chiseling at him all the time.

Jim Babalis: Yeah.

Andrew Douglas: And he’s just trying to get her out of jail.

Jim Babalis: Yeah.

Andrew Douglas: Now, if you think about that, you go, no one’s going to read this well. And then you look at the situation of someone trying to be his mate and give a few sort of informal directions to try and get what they want, but actually not giving them direction. Now, what Cogan needed, really, really needed was clarity.

Jim Babalis: Yeah, absolutely.

Andrew Douglas: That’s what they needed.

Jim Babalis: Yeah.

Andrew Douglas: And he needed for his protection, he needed to know what he could and couldn’t do. But he also needed them to stand behind him. He needed them to come and say, mate, your life’s terrible. I get it. But we’ve got to have a couple of rules to protect the school. Can we stick to those? Here’s some alternatives that you might like to use. Use your Gmail account, use your private mobile phone. Please don’t identify the school in these processes. It’s all had to be said.

Jim Babalis: Yeah.

Andrew Douglas: None of it was there.

Jim Babalis: Yeah.

Andrew Douglas: Went onto the case study ’cause we are busy people, Jim, and we’ve had a few shots at this today.

Jim Babalis: No, no, we have.

Andrew Douglas: So, here you go.

Jim Babalis: Here we go. So, Eyvette had grown tired of Dan. He was abrupt, often late, lazy, and disengaged. A lot of the lazy component.

Andrew Douglas: Yeah.

Jim Babalis: He also reported to her reluctantly. Eyvette spoke to her CEO, Hudson, and her Head of People and Culture, Matthew, asking them to move him on. Hudson said he understood, but couldn’t act on impressionistic complaints. She would need to formalize them into allegations that could be properly considered.

Andrew Douglas: I think that’s a he, I think I turned her into a woman halfway through.

Jim Babalis: Oh, okay. Well, it’s a he.

Andrew Douglas: So just, I’ll let you know.

Jim Babalis: Alright. So within two weeks, Eyvette, with Matthew’s help, drafted 27 allegations of poor performance and minor misconduct. They sent the allegations to Hudson who replied, “I guess you’d better investigate, Matthew, but on their face, they are not hanging offences.” The next day, Matthew spoke to Dan and said he needed to stand him down on pay due to a serious list of allegations made by Eyvette. Dan looked confused, like what? The question is.

I mean, she hasn’t said anything. Dan then spoke to his doctor and went on personal leave due to stress. The medical certificate stated that Dan was suffering stress from being bullied at work and needed a week off with a requirement to return to a safe environment. Hudson was uncomfortable when he read the certificate and learned what had happened. He wrote to Dan, advising that he had arranged for him to work in a different office closer to home under a different leader, and that Eyvette would have no further involvement with him. Dan then called to thank him and returned to work in the new role the following day.

Matthew sent the allegation letter via email, called Dan to check on his wellbeing, and arranged a time to meet and discuss the matter. At the meeting, Dan, in an agitated state explained that most of the allegations were subjective with no witnesses, and that he could demonstrate that they were untrue. He also raised concerns about the process and said that he felt that he was not being treated fairly. Matthew noted what Dan said, listened to his explanations and what he said others would confirm, thanked him and left. Matthew then called Hudson and reported that Dan had been aggressive and unhelpful, and that the allegations appeared substantiated. That night, Hudson sent Dan a show cause letter, inviting him to attend to a meeting with a support person in two days time.

Andrew Douglas: Alright, let’s get on the questions.

Jim Babalis: Let’s get onto the questions here. So question number one, Andrew. Dan spoke to his HSR and Union Delegate. What could they do?

Andrew Douglas: Well, first of all, the Union Delegate could enter on site for safety reasons. They would pull up all the documentation and require them to deliver it. Pretty embarrassing process ’cause the investigation hadn’t been completed. The Union Delegate and the HSR, the HSR could stop what was happening. They have a power in every jurisdiction to actually stop it after consultation. And the Union Delegate would have similar powers, but more importantly, they’d bring the regulator on site, and they’d be asking for prohibition notice to stop what was occurring because it failed every test of procedural fairness, and it did.

Jim Babalis: Yep. So the second question is, was there a proper basis for the stand down?

Andrew Douglas: Well, what do you reckon, Jim? There’s two reasons you stand down. One is that you have to stand down the person to ensure that the investigational lab integrity and that-

Jim Babalis: Yeah.

Andrew Douglas: Secondly, that the matter is so serious that their continuing presence may harm somebody.

Jim Babalis: Yeah.

Andrew Douglas: I’m struggling to find either one of those.

Jim Babalis: Yeah, minor misconduct. I just don’t follow it.

Andrew Douglas: No.

Jim Babalis: Yeah. Next question. Dan’s doctor later diagnosed him with an adjustment disorder under DSM-5. Can he make a successful workers’ compensation claim, and would that impact the show cause process?

Andrew Douglas: Well, yes. So the answer is under Victorian’s amended law, New South Wales potential amended law in every other state and territory, DSM-5 is the step through the door to show there is a definite diagnosis of harm caused by work. The claim will be accepted.

Jim Babalis: Yep.

Andrew Douglas: Particularly given the lack of procedural failures that sat behind it, which can’t be cured. So it will be accepted depending on your state and territory. If it’s New South Wales, once the claim’s up and running, you’ve got an aggregate of six months before you can proceed.

Jim Babalis: Yeah.

Andrew Douglas: To terminate under the show cause, Victoria and Queensland a year. So you’ve got this process in front.

Jim Babalis: Yeah.

Andrew Douglas: That once it’s up-

Jim Babalis: Yeah.

Andrew Douglas: It’s very hard to move on. And then the secondary question is, is the person, although they’re on leave, if it’s so serious, I must move, okay? Is the medical evidence that they’re unable to participate in the investigation? And most certificates don’t say that. They say they’re unable to work, they’re not unable to participate at that stage. You may send them out a letter and give them extra time, which to write a response. But none of that’s been done here.

Jim Babalis: Yep. The next question, has there been any breach of safety law that would allow an inspector to issue a prohibition or improvement notice?

Andrew Douglas: Well, the four university cases, and most recently the Department of Ed case in New South Wales shows that the failure to follow a process, that could cause psychological harm. So the lawful process that could do it, the failure to undertake a risk assessment around that process, given the fact that you’re on notice of a person’s vulnerability, would be a proper basis for them to issue definitely an improvement notice, but most likely in this case, a prohibition notice.

Jim Babalis: Dan attended the meeting with his union representative, who was told they could only provide emotional support and not advocate. Is this correct?

Andrew Douglas: No.

Jim Babalis: No.

Andrew Douglas: Nor has it been correct for over a year.

Jim Babalis: No, I know.

Andrew Douglas: They have a right of representation.

Jim Babalis: Yeah.

Andrew Douglas: So that’s the answer to that.

Jim Babalis: Yeah. And just lastly, Dan’s employment was terminated for misconduct. Does he have a strong unfair dismissal or General Protections claim?

Andrew Douglas: Yeah. If he went to a good plaintiff’s lawyer, it’d be a General Protections claim.

Jim Babalis: Yeah.

Andrew Douglas: If he did it himself, it’d be unfair dismissal claim. But either one, he’s going to win.

Jim Babalis: Yeah, I agree with that completely.

Andrew Douglas: Yeah. He’s raised all the issues around workplace rights.

Jim Babalis: Yeah.

Andrew Douglas: Quite squarely. He’s being terminated and there’s not enough substance in the basis of termination.

Jim Babalis: Yeah.

Andrew Douglas: Based on what we know, the allegations are, the only thing they’re trying to do is get this guy out the door. So he would succeed. Jim, total pleasure in doing that.

Jim Babalis: No, I love it.

Andrew Douglas: Thank you very much.

Jim Babalis: They’re fantastic. Thank you.

Andrew Douglas: Yeah. Look forward to next time. Good luck.