Andrew Douglas: The main topic really came about. There’s been two recent cases. There’s the men’s legal service, very funny case, and there is an inquest, which the, I think the inquest was a fascinating story. We came through on Workplace Express. And what I liked about this inquest, this, this is a tragic circumstance for a man dying. When his car exploded, he’d gone offsite at some stage, came back with three large containers of fuel of some sort. No one knows what triggered the fire. So, there was not a determination that was made.

Nina Hoang: Yeah, the coroner couldn’t find.

Andrew Douglas: Couldn’t determine it. But earlier in the day, as a result of some behaviour, the employee was noticeably affected. His supervisor, I thought, did some good things.

Nina Hoang: Yeah. He, it was like, I’m going to check. I kept checking on him.

Andrew Douglas: Yeah.

Nina Hoang: And then said that, I will come with you to HR to report it.

Andrew Douglas: So, and, and we’d seen past behaviour, which was consistent.

Nina Hoang: Yeah.

Andrew Douglas: So what the inquest did, is it looked in, and I want people to understand inquest, sometimes a precursor to prosecution. Sometimes they’d follow a prosecution. As a precursor, they’re awful because the rules of evidence are involved there, based on a case called Annette v McCann, which is you can admit anything into evidence so long as it’s relevant. So the rules of evidence do not apply. And currently inquiries traditionally, have been used as methods of evidence gathering, by the regulator in complex cases.

But what the evidence revealed in this case was that the employer actually had a good soul, was doing the right things. The leaders were acting appropriately when bad behaviour occurred. Remember, in all workplaces, bad behaviour occurs. So let’s not get into that pure state of there should be no bad behaviour. Humans are humans.

But it comes down to this issue at the end of it, there were jokes, there were things that were done and they harmed this, this person, whether that was the result of his death. Different question altogether.

But I want to raise it because what we see far too often is jokes that built around cultural elements. They’re built around gender, they’re built around all sorts of things.

I grew up in a family where my father banned any jokes based on race or gender. So if anyone came to our table and made a, tried to tell an Irish joke, my father would say, “we don’t do that here. We don’t treat people like that.”

Now, that’s how I grew up. And I know it’s not common, but the fact is, it is frequent that we, that I hear still when I go out to dinner with people, people attempting to make jokes based on gender, race, or other protected attributes.

And I’m always there saying, “Look, it ain’t something that actually makes me laugh. So probably best not to go ahead.” But it’s so frequent and it’s seen as okay, but it damages.

Nina Hoang: Yeah. And I think what people need to remember is it doesn’t matter what the intention was, even if it wasn’t to harm, even if it was just to cause some laughter to make people think it was a joke. Like none of that matters. And the fact that they’re doing these kinds of inquests now, just showed that it won’t be long before they connect the dots.

Andrew Douglas: Yeah.

Nina Hoang: And lead to further prosecutions.

Andrew Douglas: Oh I look, I think the other part, again, I was fortunate to grow up in that household, but there’s no doubt some of my behaviours, are built around unconscious biases that come from all quirky parts of my family upbringing. And I’m not aware of them until they’re out sometimes. So this need for reflection and understanding. But a lot of people find things funny about different people and their differences of things they find funny because they’re unfamiliar and therefore they make jokes about it.

So this isn’t, take all the fun out of the workplace. Okay? This isn’t, “oh, you’ve got to be all so careful.”

Actually you just need to be respectful. Nina has a name, Andrew has a name. Nina is a worker. Andrew is a worker. Nina’s not a female worker. Andrew’s not a male worker. Does that make sense? We just work in an environment together and therefore should be treated in that manner. Doesn’t mean we can’t have fun. You can hear, we have fun all the time.

Nina Hoang: Mm.

Andrew Douglas: And we do poke fun at each other.

Nina Hoang: Yeah.

Andrew Douglas: But we don’t do it on the base of race or gender or something else. We do it on the basis of a relationship of trust. So I want to agitate it because it’s coming through more in cases. The men’s legal service one is a really bizarre case. And I won’t try and I won’t actually try and define what the facts were, but it involved two things, which is some impropriety in relation to how time is recorded on client file.

Nina Hoang: Yeah. That was bizarre.

Andrew Douglas: Which is a bizarre one. But also the use of really offensive language. And once again, there is a difference between language, which is robust language, which is part of cultural language. And that which is used for abuse, denigration, or hurt. You use it to denigrate, to hurt, to harm. It is unacceptable language in whatever guise, it comes through. So being rude, making jokes at other people’s expense, doing things that harms people is per se, serious misconduct. Okay? Alright.

Why don’t we try out the case study and give it a bit of a run.

Nina Hoang: First time I’m reading it.

Andrew Douglas: The first time you read it. Well that’s good. Well you’ll notice this comes from Jason Bourne, the characters in it.

Nina Hoang: Oh, I’m not.

Jason was one once well regarded. But the business who helped make him now struggle with him. Jason was the Executive Sales Director at ICA, an AI solutions business. They had trained him-

Andrew Douglas: That could be CIA. If you looked at another way, that’s the Jason Bourne story, I just thought I’d show you.

Nina Hoang: Okay.

They had trained them to be outgoing, provocative, and sell the mindset change to AI.

Huh? What’s the mindset change?

Andrew Douglas: In other words, people going, oh yeah, I could do that with AI rather than have to work.

Nina Hoang: Oh, right! Got you. Got you.

Andrew Douglas: See you see this is what happens with jokes, when you’ve got to explain ’em, they’re not funny. I just want to put that out there. Off you go then.

Nina Hoang: But really did not enjoy his counterpoint in executive discussions. His habit was to take one of the themes they were discussing in using their own logic, explaining what was wrong. He was smart, logical, and relentless. The perfect sales executive.

Jason had migrated from China. He had worked in major European businesses there selling accounting software solutions. The new CEO did not warm to Jason. His name was Alex.

Andrew Douglas: After Alex Conklin.

Nina Hoang: Alex worked closely with Jason’s 2IC, Nicky.

Andrew Douglas: That’s Jason’s, Jason’s, handler, yeah.

Nina Hoang: Oh, okay.

Andrew Douglas: Nicky Parsons.

Nina Hoang: Okay.

They would make comments to Jason when he was analysing their idea like, “we are not communists, you know,” laughing. “You need to give us some opportunity to think.” There were other remarks about his place of birth. Always lighthearted, but suggesting some inflexibility in cultural misalignment.

These are weird jokes. But these are jokes.

At the executive retreat for a prank, they turned up in Mao Suits to his presentation.

God, that’s so bad.

Alex said, “see Jason now we will follow your lead.

Where would they even get them?

Andrew Douglas: Stop worrying about it.

Nina Hoang: Jason had left China for many reasons.

Andrew Douglas: It’s hard to get Mao Suits are almost impossible.

Nina Hoang: They worked real hard for this prank.

Some of them painful and involved incarceration of his family for political reasons. In the aftermath of the retreat, he took time off. He felt vulnerable at work and he found it hard to concentrate. His numbers dropped off. Alex terminated his employment under the notice provisions in his contract.

Hey, there was no hard words.

Andrew Douglas: No, no, no, no. Well, I know. But there was hard jokes, but they were lost.

Okay. Was it a lawful termination?

Nina Hoang: Well, I’m assuming he was terminated due to performance.

Andrew Douglas: Yeah.

Nina Hoang: So-

Andrew Douglas: So it was a valid reason.

Nina Hoang: What it, I doubt he’s been performance managed. So, no.

Andrew Douglas: Well, even if he was, can I just say the valid reason might get there, but the manner in which he was treated is certainly harsh, unreasonable amount of-

Nina Hoang: Yeah.

Andrew Douglas: So it would lose on every other element of it. So the answer is-

Nina Hoang: So procedural fairness, probably not.

Andrew Douglas: Yeah. So it’s not a lawful termination, but-

Nina Hoang: Bit harsh.

Andrew Douglas: Worse than that. It’s directed at a workplace right. Which is a protected attribute under discrimination law. So you’d have a good general protections claim. You’d have a good discrimination claim.

Nina Hoang: Yeah. And also because his performance is because of the harm and suffering.

Andrew Douglas: By damaging.

Nina Hoang: Yeah.

Andrew Douglas: Yeah. Okay.

Nina Hoang: So. Yep. That answers the second question. Right? Oh, and workers’ comp.

Andrew Douglas: And workers’ compensation. And of course, yeah, that’s, that’s probably line, lining up. He doesn’t have a safety discrimination claim because he didn’t raise safety as an issue. Had he have said, I’m feeling unsafe and all of this, and they proceeded, then he’d have a safety discrimination claim as well.

Jason had a restraint in his contract. Was it enforceable after they terminated his contract?

Nina Hoang: If they had validly terminated, then it is enforceable, isn’t it?

Andrew Douglas: Not really. No under. When that, we can, there’s an argument that comes under Loon’s case, which if it is a, obviously it’s an unlawful termination, then you’re fine. Okay. You-

Nina Hoang: An unlawful termination?

Andrew Douglas: Unlawful termination.

Nina Hoang: You’re fine.

Andrew Douglas: No, you’re fine in the sense that there’s no restraint and go against you because-

Nina Hoang: Oh! So for the, from Jason’s perspective.

Andrew Douglas: Yeah. Yes.

Nina Hoang: Got you.

Andrew Douglas: So he’s probably not restrained at all as a result of the restraint because the termination was invalid.

Nina Hoang: Yeah, but if it was valid. Would it?

Andrew Douglas: Really arguable. And that’s, that’s what’s left in the case. The case is if you terminate someone, do you have an enforceable restraint? The answer is in public, in policy. And the law is based on policy. Yes, you would. But there’s two or three paragraphs in Loon’s case, which leaves that open.

Nina Hoang: That’s crazy. So if you terminated me for serious misconduct, I, I mean, I don’t have restraint, but if I did, I, I could just go and do it. But what?

Andrew Douglas: Yeah. No. Well, I’m just saying, there’s an argument that sits around there. And remember, when you’re having these arguments, the, the difficulty is there’s nothing clear in most terminations. There’s bits of bits of both in it. In other words, there’ll be bits of my conduct that lead to it be bits of your conduct. Enough of that makes it very hard. That’s really what they’ve talked about in where do actually, was this invalid? What? What makes it invalid?

Nina Hoang: That is crazy. ‘Cause I feel like if someone’s terminating for serious misconduct, they’re more than likely to breach their restraints.

Andrew Douglas: They are more than likely. And you would try and enforce it?

Nina Hoang: Yeah. Oh, sorry, there’s more questions.

Andrew Douglas: Oh, there’s more questions. That’s alright. Just arguing with me throughout. But the most important thing is-

Nina Hoang: No, I was winning.

Andrew Douglas: Yeah.

Jason was paid 350,000 per annum and was aged 46. He was unable to find similar work and was forced to take a Sales Manager role and a competitor which paid earning 180,000, what will his claim of damages be?

We’ll have a look at that. If we just say, here’s a guy who’s had repeated success. He’s had a history of time within organisations internationally and nationally.

Nina Hoang: Mm-hm.

Andrew Douglas: And now his reputation’s so tarnished that he can’t get work. What you do is you take the difference. So you take 170,000, you’d extrapolate it over 15 years, you reduce it back for contingencies. So he is worth about $2 million.

Nina Hoang: Is the years up to retirement age?

Andrew Douglas: Up to, it’s based on where his trajectory would be. So you’d assume he would get up to about $500,000 given his skills, over a period of about 10 years. He has the capacity. When, when you look at what other circumstance that reduce that, to find better work to prove himself, there’s a chance he will re succeed.

Nina Hoang: Mm-hm.

Andrew Douglas: So they’ll say it’s really about five to seven years you could expect.

Nina Hoang: Yep.

Andrew Douglas: At that difference. So he’s around about $2 million.

Nina Hoang: Whoa. Okay.

Andrew Douglas: Was there a breach of safety law? If so, by who? And what would happen?

Nina Hoang: Yeah. So they didn’t provide him with a safe workplace. There were probably duty breaches by everyone engaged in the pranks.

Andrew Douglas: Yeah. And I think that the leaders who saw and engaged in that prank.

Nina Hoang: And condoned it.

Andrew Douglas: Yeah. Had some really big issues. If there was, if there was a likelihood of serious harm. So what we’re seeing is genuine harm, someone’s being hurt. But if we started to see his vulnerability and they continue to do it.

Nina Hoang: Mm.

Andrew Douglas: At that stage.

Nina Hoang: Yeah. Like had it been a case like the inquest one.

Andrew Douglas: Yeah.

Nina Hoang: Then the inquest probably would’ve linked it back.

Andrew Douglas: That’s right.

Nina Hoang: And that would be a safety prosecution.

Andrew Douglas: That and that’d be a reckless endangerment one.

Nina Hoang: Yeah.

Nina Hoang: Okay.

Prior to his termination, could he have had a viable workers’ compensation claim?”

Nina Hoang: Yeah.

Andrew Douglas: Absolutely.

Nina Hoang: Unquestionably.

Andrew Douglas: Okay. So in a business, again, say five to $10 million revenue, remuneration in Victoria. Nature of the industry and category of it, it’s a four to $500,000 claim over three years. A lot of money, innit?

Nina Hoang: Yeah. For such a stupid thing.

Andrew Douglas: Yeah.

Nina Hoang: So it’s not worth it.

Andrew Douglas: So it’s, we’re gone from two to 2.4 million.

Nina Hoang: Yeah.

Andrew Douglas: It’s, it’s, it’s pretty crazy, isn’t it? And all they had to do was, not be rude.

Nina Hoang: Not put on Mao Suits.

Andrew Douglas: Yeah, not put on Mao Suits. I thought that was good. Anyway, you obviously didn’t. Great to catch up.

Nina Hoang: Yeah.

Andrew Douglas: Thanks for being with us. Thanks again, Nina.

Nina Hoang: Give us the thumbs up.

Andrew Douglas: Give us the thumbs up. Cheers.

Nina Hoang: Bye.

Andrew Douglas: Bye-Bye.