Andrew Douglas: Really just a bit of fun in the case ’cause the case doesn’t help us a great deal, no.

Nina Hoang: But I think it brings up an important topic which comes up all the time. Like how do you protect the complainant?

Andrew Douglas: And witnesses?

Nina Hoang: Yeah.

Andrew Douglas: Yeah, so one of the things that happens to Nina and I, and if it’s not daily, it’s certainly every second or third day is, we’ll be involved in a piece of managing misconduct for a client.

There’ll be somebody who’s genuinely scared of the person involved, but raised the complaint or was a witness, and they ask and say, “Look, I don’t want to be named.” But once you know of the information as an employee, you’re obligated to act and you can issue lawful and reasonable directions for people to engage in investigation and give information.

But what do you do with people who desperately are fearful that there will be recriminations? And so we’ve got this case, which is Kemp, Kemp’s case, which is a case where the ombudsman actually accidentally released the name of the complainant and the complainant brought a claim saying, “You’ve now put me at risk and you’ve got a duty to prevent that.”

Nina Hoang: Yeah, but sorry, they brought the claim against their employer because the ombudsman told the employer their name and then it spread. And they said they were faced with bullying and stuff like that. Like people weren’t talking to them and things like that. So they got an adjustment disorder as a result.

Andrew Douglas: Yeah, now there’s a person who already had a psychological vulnerability.

Nina Hoang: Which was unknown to the employer.

Andrew Douglas: Was unknown to the employer. And the employer said, and the court found in the end that, look, much of the people identified who it was by the nature of what the complaints were.

Nina Hoang: Yeah, it was the same complaints he’d already made.

Andrew Douglas: But then the decision sort of went one step further and said there is no obligation on an employer to protect a complainant from the impact of them being identified.

Nina Hoang: Which is just crazy.

Andrew Douglas: Which I think to be clear about the law, that is absolute bullshit.

Nina Hoang: Yeah. That goes against safety law, like-

Andrew Douglas: Yeah. And it does show how common it is, Nina, that people who practise workplace law don’t understand that safety law is the primary law.

Nina Hoang: Yeah.

Andrew Douglas: But it also doesn’t understand common law, doesn’t understand workers’ compensation law. So it’s a shocker of a decision, but it does give us this thing of saying, well, look, what happens when you do have a vulnerable complainant? Does that person have to become a complainant?

Are you obliged to show a respondent all the evidence that you have? Now that’s, you may think, well, that’s not hard. You just give ’em an allegations that, well, that’s actually not what the law is. And if you go back to the baggage handler cases, what the high court has actually said is that there is an obligation of fairness that exists in any investigative process where a person must be shown both evidence of what they did wrong and evidence which would allow them to show that they didn’t do something wrong, which means the videotapes of baggage handlers sticking their hands in and knocking stuff off, well they didn’t show them any of the videos of them not knocking stuff off.

And therefore there was issues around fairness. So the answer is, when you’re doing an investigation, you’ve got to understand there is an obligation of disclosure of relevant evidence. Does that mean you’ve got to disclose the name of witnesses? Not if the nature of the evidence is such that objective evidence is sufficient, but if it is the person involved who you did the wrong to, you can’t seek to hide that person because there’s no alibi, there’s no, well, that person wasn’t there.

Nina Hoang: Yeah.

Andrew Douglas: I need to know who you say I bullied. So what can you do is a much more interesting question ’cause you can be creative. Remember, in safety law, your obligation is once you identify a hazard, someone says they’ve been hurt, your next obligation is to look at what is the level of the risk. And part of that risk assessment is the investigative process that’s undertaken.

Nina Hoang: But also I think like if there is a risk of safety, like separating the people as well. Whether that’s, you know, suspending someone or changing reporting lines, all of those steps need to be taken to ensure it’s safe for everyone.

Andrew Douglas: And that’s the control stage when you get to control. But at the risk stage, what you can do is say, “Okay, I’m aware of these things. I’m aware of the vulnerability of the complainant. I have evidence which sits outside of the complaint which would allow me to own that as a business. And it is the business that brings the complaint and therefore I don’t have to identify the person’s complaint.”

There’s simply a witness and a target of what occurred, and therefore the organisation can protect them. So you are allowed to do that. But when it comes to what evidence you show, your first obligation, of course, is to put it in the allegations letter.

But if you collect other evidence, which is relevant, the person should be able to respond to evidence which could allow them to alibi or to provide an alternative excuse. You’ve got to show it to them.

So be really careful what you ask for, and I think we’ve probably said it far too often, but please plan before you start to investigate. We’ve been running a lot of investigation cases over the last four or five weeks for one reason and one reason only to show that what you do at the beginning is the most important thing, how you prepare. So now a complainant doesn’t always have to be named as a complainant.

The organisation can become the complainant, but they are a relevant witness. And if they’re the victim of it, they’ll definitely have to be, they’ll definitely have to give evidence. And that evidence will definitely have to be shown to a person. So please be careful. I never, ever, ever promise anonymity because you’d actually don’t have that power.

Nina Hoang: Yep.

Andrew Douglas: Okay, so that’s, why don’t we try the problem anyway? ‘Cause the problem sort of teases these ideas out.

Nina Hoang: Matilda was tired of Roy’s behaviour. She was struggling to sleep, had palpitations, and her mind raced with thoughts when he would behave badly again. She’d been his PA for years. Ingrid had been a friend of Matilda’s for nearly 20 years, sitting next to her at work and seeing her outside of work.

She hated Roy. It’s not that he was outright rude, nor that he meant harm. But when pressure built up on him, he would take it out on everyone else.

Roy was the CEO of BlueIdeas, a superannuation investment business. The Reserve Bank’s intransigence?

Andrew Douglas: Intransigence. Yeah, I’ll put that in for you.

Nina Hoang: On interest rates had caused investments to drop. As he felt the pressure, he’d ask more from Matilda. Things he did that were problematic became her problems. His focus on key issues dropped off and others started knocking on her door for answers as he was not responding.

Ingrid spoke to HR. Her friend was falling apart. The HR manager spoke to the chair who had also noticed a problem. She had been chair for 10 years, love Matilda, but had recently seen how damaged she seemed.

The HR manager came back to Ingrid and drafted a complaint letter with her. But at the end, Ingrid said, “Please don’t mention my name. He will kill me if he finds out.”

Vincent, an external investigator, was appointed. He spoke to Ingrid and had her sign a statement. He also spoke to other witnesses and finally to Matilda. Everyone signed statements but requested anonymity.

Andrew Douglas: Anonymity. Yeah, no, I did it. I did it, I’m sorry.

Nina Hoang: Vincent prepared an allegations letter for Roy. When Roy received it, he demanded to see the evidence on which the allegations were based. Vincent explained that his duty was to respond to the allegations letter and Roy denied all wrongdoing.

Vincent found that Roy had engaged insignificant misconduct by way of psychological hazards, including bullying Matilda. At his show-cause meeting, Roy demanded to see the evidence against him, identify the complainant, and view the full report from Vincent, which had been commissioned under legal professional privilege. Chair explained that Roy had been shown the findings as they related to him and no further information would be provided. He left the room saying he would see his lawyers.

Was there an obligation to disclose to Roy who made the complaint?

Andrew Douglas: No, and like, I guess that’s the first thing is, the origin of the complaint doesn’t matter. It’s the evidence that does matter. And that’s obviously, if you do have a complainant who gives a complaint, the evidence of that complaint will form part of a brief evidence that goes to an investigator. And therefore ultimately may have to be disclosed on what we spoke about before to the respondent.

But no, there’s no obligation here because what the organisation did was they raised the complaint as an organisation, even though Ingrid had been the person who started.

Was there an obligation to disclose to Roy the witness statements from other people involved in the investigation?

Well, look, I just want to say this now. It’s one of the reasons I hate witness statements and why I preferred that you take handwritten notes is that once you create a witness statement, you create an expectation that you be shown other people’s witness statements.

And if you are not shown with the sufficient clarity of the evidence that appears in those witness statements and where that evidence is perceived and who it’s from, then you’ve got this problem where you’re probably breaching the anti-baggage handlers case from years ago.

So, you know, for those people who love to create witness statements, bit of a rod for your own back guys, just let me say.

Was Roy entitled to disclosure of Vincent’s report?

Nina Hoang: To require the disclosure.

Andrew Douglas: Yeah. So this is one of the great report under maritime cases, which talks about findings and reports under privilege.

Can I say there is a way to prevent this from occurring and that’s the dual privilege approach, which we can talk about another day.

But where you just have someone who does it under legal professional privilege and they’re doing it in this case under privilege because there’s multiple people making complaints and there’s been a failure to act.

So there is information that is going to come out which reflects the organisational culture which they don’t want to give to Roy. And they don’t want to give it to Roy for two reasons.

One, he says, “Well you can’t blame me for what the culture is.”

Nina Hoang: Yeah, condemnation.

Andrew Douglas: And secondly, it allows changes to be made, which are different than just Roy. So what this case said is, Roy is entitled to findings in a report, irrespective if it’s underprivileged, but it doesn’t waive privilege by providing him with those findings that relate to him.

Nina Hoang: Yep.

Andrew Douglas: Now that sounds good, doesn’t it? Except the way they determine that is you have to hand up the report in the yellow envelope to the commissioner or the judge who’s involved, who then makes the determination whether privilege should have applied and the extent of the level of disclosure that’s made if you don’t get it right.

So can you just remember, nearly all investigations can be done with an open findings. If you want to have something done in privilege, which is conversations that arise out of that, it is something you can separately engage in above. You don’t have to do them both.

But again, misusing legal professional privilege or not having a sophisticated process is another rod for your own back that makes things very confusing and conflicting. And Roy’s starting to win, can you see that?

Nina Hoang: Yeah.

Andrew Douglas: By the process you’ve adopted, Roy is starting to get the leverage he needs to say, “You’re not giving me what I need. I can’t respond to what you’re doing. Now you’re hiding stuff from me, and so it goes on.

So let’s go to number four. When Roy refused to participate in further discussion at the show-cause meeting until he was provided with the documents he sought, his employment was summarily terminated for wrongdoing found by Vincent and for failing to comply with lawful and reasonable direction to complete the show-cause process.

I think I should have put a punctuation in there.

Nina Hoang: Yeah.

Andrew Douglas: Do you know, like, I think that really missed-

Nina Hoang: It’s the longest question.

Andrew Douglas: I got a great set of lungs, but I only died halfway through. I went for the Van Horne.

Does Roy have a viable general protections claim? Could he claim the termination was a fundamental breach of his employment contract and bring common law proceedings? Would he have a good workers’ comp claim?

So workers’ comp one’s not there, but what-

Nina Hoang: Yeah, I was like, what?

Andrew Douglas: Well, what I want to say to you is the failure to actually have a proper process meant all the way through this had a good workers’ comp claim.

Nina Hoang: Yeah.

Andrew Douglas: So just be aware of that, I wouldn’t-

Nina Hoang: And unfair dismissal too.

Andrew Douglas: Yeah, well he’s probably too high for unfair dismissal. We’re going to, so he’s outside, he’s not an award-based employee and he’s probably over that, but that’s a good point. But as a general protections claim, he has raised a workplace right unquestionably.

Nina Hoang: The workplace right to get the information.

Andrew Douglas: Yes, yeah. And that he wasn’t safe in the process. So I think he does have a viable general protections claim and it is a fundamental breach of his contract not to provide him with procedural fairness or fairness under this high court rule. And people don’t get it. People think when you’re dealing with a non-award-based employee over the high income earning-

Nina Hoang: Yeah, it doesn’t matter.

Andrew Douglas: Yeah, and the answer is, if you just want to terminate someone on notice, then just give them notice and don’t talk about it. But if you’re doing it for show-cause, then all these issues start to arise.

So I guess the idea of this problem was really to highlight investigations need to be planned well. You need to determine how and when to use privilege. And you need to be satisfied of what is the documentary process you’re going to go through and what is the onus and obligation of disclosure ’cause what you don’t want to happen is being caught with your pants down in the middle of a termination discussion saying, “You haven’t shown me the right thing.”

Nina Hoang: Yeah.

Andrew Douglas: So what do you reckon, Nina? Do you reckon that’s a shot or you’re usually a bit more aggressive from the employer’s point of view?

Nina Hoang: No, I think in this case, had they done a bit more, than it was defensible. But no, I think they’re stuffed.

Andrew Douglas: Well, there you go. I think that’s it for tonight. Tonight, oh god, I’m going. I’ve had a very late night last night.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Please give us a thumbs up and some oxygen. That was a very long sentence, see you later.

Nina Hoang: And we’ll see you next week.

Andrew Douglas: Bye bye.

Nina Hoang: Bye.