Andrew Douglas: Why don’t we mift on. Mift on? I dunno what mift is. Why don’t we move on to the next step?

Nina Hoang: I think you’re trying to do move and shift.

Andrew Douglas: Sure, I was trying to move and shift at the same time and I contracted that. Okay, so we’re going to mift on to industrial manslaughter and we’re going to…

Nina Hoang: Well, really, manslaughter.

Andrew Douglas: Well, so Nina, on the HSG asphalt case, two different cases, one is a criminal case, one is a safety case. We’ve seen, not for the first time, but a mixture of jurisdictional responses. We’re seeing safety law responding at one level to breaches of safety law, and we’re seeing crimes act response to individual criminal behaviour by an individual. Can you walk me through the facts of it?

Nina Hoang: Yeah, I think this case will become familiar to a lot of the listeners because we talked about it years ago ’cause it’s just taken so long for them to finalise. But it was the really crazy case where they were drinking after work, one of the employees operated a skid loader and was skip loader? Skid loader? I always say it wrong.

Andrew Douglas: A loader.

Nina Hoang: A loader.

Andrew Douglas: Operating a loader.

Nina Hoang: Operating a loader and was messing around and then tried to go towards another colleague and tried to lift him and then charged him and ended up running him over. So really terrible, terrible negligent conduct.

Andrew Douglas: [Instructor] Yeah.

Nina Hoang: And so the company was charged under safety legislation because they had a practise where they would leave the keys in the loaders because no one, if someone needed it, they could, but.

Andrew Douglas: [Instructor] Yeah.

Nina Hoang: They didn’t assume that people would do such stupid things.

Andrew Douglas: [Instructor] After hours drinking, yeah.

Nina Hoang: Yeah. But interesting in this case, they couldn’t charge Mr. Bell who was the one who was operating in the unsafe way because he wasn’t an officer. So he couldn’t be charged with industrial manslaughter. But the police said, “No, we’re going to charge you under the Crimes Act.” And he ended up getting seven years jail.

Andrew Douglas: Seven years. There’s a maximum of 25.

Nina Hoang: Yeah.

Andrew Douglas: But he got seven years jail. And I guess that comes back, you know, I talked about Colby, which was a truck company owner who, after a near miss where brakes failed, then directed a driver to drive again, the driver thought the brakes had been fixed, and he knew they hadn’t been. And then there was a fatal incident. He ended up with nine years jail, appealed and failed. But interestingly, we’ve got cases like R and A.C. Hatrick, which says quite clearly that not only individuals can be charged under Crimes Act manslaughter,

Nina Hoang: That companies as well.

Andrew Douglas: Companies can. And in that case, theirs wasn’t sufficient.

Nina Hoang: There’s only been one case where it’s been charged because it’s really hard that like, I think what they say is, unless you can prove that someone, who was like controlling like a director or someone was involved in it to control the mind of the company, then it’s really hard to make it stick.

Andrew Douglas: Which is Denver, is the next case.

Nina Hoang: Yeah.

Andrew Douglas: Yeah.

Nina Hoang: But I guess why we are talking about this, which I was really interested ’cause I did not know this was possible, is that, it doesn’t just end with OHS law.

Andrew Douglas: [Instructor] Yeah.

Nina Hoang: Right? There’s always been the possibility for the police to bring criminal charges as well.

Andrew Douglas: [Instructor] Which is Colby, the South Australian case.

Nina Hoang: It’s not common because police like to leave it to work safe. But I suspect if we start seeing more cases like this where it is really, really reprehensible behaviour by the individuals and they get off scot-free for not being an officer, then I can’t see the police not charging them.

Andrew Douglas: Well, I think taking that a step further, I think there was evidence here that this guy could have been charged with reckless endangerment. I think there’s sufficient, to get the subjective element up there, but the maximum he could get is five years. And in the safety jurisdiction, he’d only be looking at one or two years. And clearly, the two groups have got together and said that it’s work safe,

Nina Hoang: Not enough, yeah.

Andrew Douglas: In the place. So I think the interesting part about this case is, it’s a warning out there that for people who are non-officers, because Colby was an officer, but for non-officers, that there will be this liaison or support between work safe and the police and saying, look, what we have as a deterrence is not enough.

Nina Hoang: Yeah.

Andrew Douglas: We want you to take it on. And that’s really why we put this on, ’cause I think this will start a trend.

Nina Hoang: Yeah. I agree. And I think not a lot of people know about this. And I think you’re right in terms of them targeting him, because the actual fine for the employer was really low.

Andrew Douglas: It was 80 grand, yeah

Nina Hoang: Yeah. So they clearly knew that the fault was with the employee because they went obviously against all the safety precautions and everything.

Andrew Douglas: But it just didn’t have the sentencing power under the safety legislation to be the proper deterrent. So I think that’s our learning from this case. But why don’t we get onto the case study?

Nina Hoang: Jules relaxed in his office. He was worn out from the weekend’s work, but felt satisfied. He had landed the deal. Family fund was an online investment platform for SMSFs.

Andrew Douglas: Self-managed super funds for those wondering.

Nina Hoang: Jules, the GM of ICT, had launched a new capability over the weekend providing clients with unrivalled access to their portfolios and the ability to trade with balance analysis of preferred investments. He’d engaged several contractors to support the launch. The ICT hub was a dedicated floor within the offices. For the past three weeks, it had been all hands on deck with FF’s ICT employees. The pressure and high workload had started to expose cracks in the leadership team as early as week one. A major issue was Jules’ preference for Killer Codes. It sounds so bad. A small startup coding business run by Tom, an old school friend. Jules had appointed Tom and his small team as project leads for the technical transformation. KC had been inducted into the code of conduct and contractor behavioural expectations, but effectively ran their own show.

Tom was linear, obsessive, easily distracted and prone to anger. His delivery plan set chaotic and overwhelming expectations. The ICT team was used to practical clarity from Jules, a planner and expert project manager. Tom was the complete opposite. By week two, Cassandra, Jules’ second in command, approached him to say that Casey was out of control. Several women on the team felt unsafe to the macho commentary and sexualized humour. She explained that Tom’s team was ignoring the code and his instructions ranged from erratic to aggressive. Her team was severely stressed. Jules responded that he would reign Tom in. He called Tom into his office and told him to pull his head in. By the weekend of delivery, four women had gone on sick leave, all citing overwork and stress. This represented 30% of Jules’ team. He was beside himself, and the workload only intensified.

On Friday, Cassandra came to Jules in tears. She told him Tom had been making repeated, sexualized comments to her, rubbing her shoulders when she looked tired and hinting at going on a date, once the project was complete, Jules dismissed it saying, “Ignore it. He doesn’t mean it. I need you here over the weekend to land this. He’ll be gone then.” She felt shattered. Back in her office, Tom appeared at the door. He was furious. “Don’t go spreading lies about me to Jules, you eff’ing bitch, or I’ll do you over.” She was speechless. She sat at her desk and cried. 30 minutes later, Tom returned with flowers. He apologised and as she stood up, he reached out, hugged her and kissed her. Ugh. She tried to push past him, but he wouldn’t let go and blocked the door. Then he stopped laughing, said, “See, I know where to find you!” God, I feel like they’re getting worse and worse.

Andrew Douglas: They’re getting worse, are they?

Nina Hoang: Yes.

Andrew Douglas:  I’m sorry. I do the best I can.

Nina Hoang: Oh, gosh. What are the causes of-

Andrew Douglas: This is problem number 250, okay? It’s hard work out there.

Nina Hoang:  What are the causes of action under discrimination law?

Andrew Douglas: Well, they’re obvious, aren’t they?

Nina Hoang:  Yeah, there’s many.

Andrew Douglas:  But I guess what I wanted to say is we keep forgetting that the obvious discrimination and harassment claims are there, both direct and indirect, discrimination and sexual harassment. So you’ve got three to start with. But don’t forget hostile workplace. And the hostile workplace would make this the money claim, ’cause it shows that a whole workforce, a whole cohort of women are being damaged by the behaviour. And Cassandra is an example of that behaviour, okay?

Nina Hoang:  Yeah.

Andrew Douglas: So your general damages would go through the roof.

Nina Hoang: Yeah.

Andrew Douglas: And secondly, you’ve got aggravating damages that would arise as a result of standing in the road, preventing it from getting out, well, the sexual assault after he’d came to apologise. You’ve got a victimising behaviour that sits in on the middle.

Nina Hoang: And also vicarious liability, right?

Andrew Douglas: Oh no, well just say it was in Victoria, which is section 112, at that stage, unless you can show you’ve done things to absolutely prevent it,

Nina Hoang: Which they haven’t.

Andrew Douglas: Yeah, and now under the Commonwealth legislation, the positive duty, you’d bring this under Commonwealth legislation every day of the week, A, because the Commonwealth jurisdiction’s much more generous than its damages. And secondly, it attributes very quickly. So you’re right, the organisation would be liable. Both KC and family fund would both be liable. So there’d be a number of different parties here. Tom would be a party.

Nina Hoang: Yep. You’re answering the second question.

Andrew Douglas:  Sorry. Who

Nina Hoang: Who would be invited to the claim? Yes.

Andrew Douglas:  Yeah.

Nina Hoang: All those people.

Andrew Douglas: What was the guy who was in charge of Tom?

Nina Hoang: Jules.

Andrew Douglas: Jules. So Jules would be in deep trouble.

Nina Hoang: Yeah, yeah.

Andrew Douglas:  Deep, deep trouble. Jules, by the way, would’ve been terminated by this stage in any organisation. So you’ve got to understand the impact here is much broader than just party’s legislation. Jules’s permissive behaviour around this conduct, in any board, which is say this a publicly listed business, he’d be out.

Nina Hoang:  I think it’s more than just permissive behaviour. Like she came to him for help and he deliberately said, just continue.

Andrew Douglas:  Yeah, yeah.

Nina Hoang: Like it wasn’t just,

Andrew Douglas: I know, it’s bad.

Nina Hoang: Like, a little bit.

Andrew Douglas:  If we’re looking at damages, which is the third question here, what are the damages going to be? I think the general damages in the federal jurisdiction and in Victoria and New South Wales, probably South Australia, I think the general damages have been north of 150. I reckon they’d be close to 200.

Nina Hoang: Mhm.

Andrew Douglas: Okay. And I think the aggravating damages around the blocking the exit and stuff, again, 20 to $30,000. So it’s a very large general damages claim.

Nina Hoang: Has there been a breach of safety law? Well, let’s answer that first.

Andrew Douglas:  Yeah.

Nina Hoang: Yeah. Definitely.

Andrew Douglas:  By the way, probably for question one, there is also, even though Cassandra is still employed, her treatment is also a general protections breach, ’cause she raised an issue of safety and he ignored the safety question.

Nina Hoang: Yeah. Well, she made complaints. Yeah.

Andrew Douglas:  Yeah, and so there’s a risk if she brought that claim. But that’s not the money claim. That’s not the claim you’d bring. But it’s an easier claim ’cause of the reverse owner set.

Nina Hoang: Well she could still bring the discrimination claims under general protections too.

Andrew Douglas:  Yeah, she could.

Nina Hoang: Yeah.

Andrew Douglas:  But it’s just not where the money sits.

Nina Hoang: Yeah. Yeah, so definitely safety breaches. So firstly, the psychosocial hazards, they were clearly being overworked.

Andrew Douglas:  Yep.

Nina Hoang: And lack of support, all of that. But also, the sexual harassment is the big one.

Andrew Douglas:  Yeah, and I think the important part about that is Jules is writing the gun on that.

Nina Hoang: Oh yeah.

Andrew Douglas:  So, I think you’ve got reckless endangerment, sitting in there. So you’ve got a risk of known serious harm.

Nina Hoang: Yeah.

Andrew Douglas:  And Jules ignored that.

Nina Hoang: Yep.

Andrew Douglas:  And actually, directed her to go back and take more risk.

Nina Hoang: Yeah. And I think what’s important is, like in this case, which is very common in a lot of real life cases, you can see Jules is not intending to cause her harm, right? He’s dealing with his own psychosocial hazards, which is very common in like management. But the whole point of the legislation is there should be controls in place to help Jules. It’s not for Jules to say, “I’m really stressed and I’m going to push this down and cause harm.”

Andrew Douglas:  That’s right.

Nina Hoang: And that’s what we commonly see. And people kind of think, “Well, doesn’t that justify my behaviour or like mitigate it?” It doesn’t.

Andrew Douglas:  Yeah.

Nina Hoang: Yeah.

Andrew Douglas:  He’s just trying to operationalize risk.

Nina Hoang: Yeah.

Andrew Douglas:  He’s trying to say, “Look, it’s only a day. You’ve got to put up with it.”

Nina Hoang: Yeah.

Andrew Douglas:  Just run with it.

Nina Hoang: But it’s a high risk. You can’t do that.

Andrew Douglas:  Can I say, this is sort of football risk. You know, I’ve got a bad ankle at three quarter time. There’s a quarter to play and I don’t have a reserve to put on the ground. “Just get back out, you’ll be fine.” Then you have an ankle like mine that I can’t run on ever again.

Nina Hoang: Yeah.

Andrew Douglas:  Because I was sent back out to play at last quarter with what was a broken ankle.

Nina Hoang: Yeah.

Andrew Douglas:  So be aware of that sort of stuff. Would Cassandra and other women, concerned about workers-

Nina Hoang: Wait, we have to talk about, did we talk about who would be prosecuted?

Andrew Douglas: Yeah, I think we did.

Nina Hoang: Okay, all right.

Andrew Douglas:  Everyone’s going to be prosecuted

Nina Hoang: And what would the penalty be?

Andrew Douglas:  Oh, okay. Sorry, we didn’t quite talk about that. So let’s start, business Jules. Business FF, I think they’re up for reckless endangerment. So is Jules. Jules is not going to go to jail. Jules is not going to be getting alternative sentencing. He’ll probably be in the fine territory that sits there. He’ll be around about 200,000. I think the business is looking around a million plus for it, I think.

Nina Hoang: And KK?

Andrew Douglas:  KC.

Nina Hoang: KC, oh, sorry.

Andrew Douglas:  Yeah. I think KC.

Nina Hoang: Oh yeah, Killer Codes.

Andrew Douglas:  Is Tom. So I think that the bottom line is, Tom is in deep trouble. I think Tom may get some form of sentencing in relation to misconduct or behaviour.

Nina Hoang: As reckless endangerment.

Andrew Douglas:  Yeah, as reckless endangerment. So he’s definitely going to get a fine.

Nina Hoang: Yeah.

Andrew Douglas:  They may well look at a more coercive thing because of the risk they’re placed in. Unlikely to go to jail, but certainly likely to get a suspended sentence for his behaviour.

Nina Hoang: Okay, so would Cassandra and other women concerned have a workers’ compensation claim? What about a common law claim? Yes, 100%.

Andrew Douglas:  Both, yeah, both of them.

Nina Hoang: Yeah. Like the behaviour was clearly connected to the workplace and has caused them psychological harm.

Andrew Douglas:  Yeah. So there’s your answer. We’ve done it.

Nina Hoang: Yeah.

Andrew Douglas:  Can I just say that’s it. We’ve done really well, haven’t we? We’re having nothing to talk about at the beginning and both saying, I’m not sure I can remember anything we’ve done.

Nina Hoang: I don’t know if mift means we’ve done very well.

Andrew Douglas:  Mif, not mift. No, mif. It’s a crossover. Just saying. All right, well look, I think what we do is say thumbs up at this stage.

Nina Hoang: Yeah. Give us a thumbs up to keep us going.

Andrew Douglas:  Please give us a thumbs up. We need it. Come on. It’s winter.

Nina Hoang: See you next time.

Andrew Douglas:  See you next time. Bye-bye.