Andrew Douglas: Yeah, our main topic today really is around investigations, which Kim particularly does lots of. And we’ve just got a lovely case that’s come through with Mojanovski and BlueScope Steel, which I’ll let Kim talk about.

But I want you to think about how do we do investigations? So very simply, we can’t begin an investigation until we have a dedicated set of allegations. The law on allegations is very, very clear, it must identify the fact when, where and who must understand that. And it must be something that a person can respond to.

So the second part of it is it has sufficient particularity that a person presented that allegation is able to say, I wasn’t there that day. I was actually in Papua New Guinea. I was whatever. So if you can just remember, that is the beginning of all investigations.

The second part is, do you always need to investigate something or could you just bring people in the room and talk to about it? So it’s based on the seriousness of it. And when you hear these facts, one of the questions you just couldn’t help asking yourself is, yeah, if it was true, it was a terrible thing, but why didn’t you get around the room and just say, look, tell us. And if you did say, why’d you say, I dunno. It’s sort of where I was with it.

But anyway, Kim, over to you.

Kim McLagan: Well, in this case, we just had, the employer decided that it needed to protect this young complainant. And so they didn’t even speak to him. So he raised a safety issue, or he alleged to his manager that another colleague had threatened him and yelled at him.

But the employer, when investigating it, just relied on the statement that he gave to the manager without actually testing the veracity of his evidence in order to protect him from it-

Andrew Douglas: Can I say this is sort of psychological hazards gone crazy?

Kim McLagan: Yeah.

Andrew Douglas: Somebody with some mad wellbeing tilt thought. Woo, we won’t speak to anybody about what they said in case we hurt them. Can I just say, you don’t assume it’s true. So both the alleged victim and the respondent, you treat the same at the very beginning. Always the same. So how could you ever think it’s such a nice wellbeing thing not to tell the person you alleged against who it hurts and would have a good compensable claim by the workers comp. The truth. Why wouldn’t you do it? Because you’re so focused on the bloody victim. And you’re trying to be such a do-gooder that you forget maybe there’s a proper way of doing this.

Anyway, you can see I’m unimpressed with this. And I smell wellbeing sitting in the background being misused again because it’s quite serious. This is a guy who said somebody leaned out of the window of their car, yelled a terrible abuse at them. Came and immediately complained about it. Not only did they not take a witness statement from the person involved, they didn’t check the veracity of the allegation with them. And they didn’t ask them to come to court. And that sort of dumbass stuff is just beyond belief really. And I’m sure that nobody, except the person who was silly enough to do that, was by surprised by it.

Because if Kim and I fall out, but we are employees, I would expect Rob as the CEO to treat us exactly the same until he found out what the truth was. And then because I was bad, I might cup a whack. But all the way through, I must be treated the same as Kim, which means I must be given respect, I must be offered support. I must do all that. But none of that happened. They just took a victim side and they hadn’t even talked to them. Extraordinary isn’t it?

Kim McLagan: And this guy was reinstated.

Andrew Douglas: Yeah. Yeah.

Kim McLagan: It makes it even worse.

Andrew Douglas: I know, I know, because if it’s true, again unsackable. Absolutely unsackable. So, we raised it today really to agitate these issues. And I know we keep doing it, but we keep getting investigations brought to us that have the same flaws.

Kim McLagan: Yeah.

Andrew Douglas: First thing is you don’t have to have a complainant. You can, on the safety legislation, on discrimination legislation, say we as a business raise this matter with you. You can’t hide from who it occurred to or when it occurred or what it was. So you can’t hide from that.

And you actually have an obligation under safety law and workplace law to provide that level of precision. Once you’ve done that and you’ve got an allegations letter together, then you can take that to a person and worker’s comp, you say to that person that, “I need to chat to you ’cause there’s a complaint. You want to have someone present?” Worker’s comp, not any other formal law, ’cause workers comp can’t be law, but nonetheless.

And you present it to them and say, “Look, we’re going to chat about this in a couple of days’ time. If you’d like a support person or delegate, you’re very welcome to bring them.”

If you’re going to stand them down, you can only do it on the basis of there is a reasonable basis for thinking that they’re going to impair the investigations through their behaviour or it’s such a serious thing that it’s a safety issue. Okay. Only two reasons.

And then you go about the process in a mechanically and good way of actually presenting the allegations to a number of witnesses. Telling ’em it has to remain confidential. Getting their first person evidence, not cross-examining on them, so that you’re getting their best record of what occurred. Collecting it together before you take it all in back to the respondent and say, “Alright, this is where we are. This is the final cut of where you are. Please respond to it.” Allowing that person to have a support person providing them with EAP support if they want it. None of that’s hard.

Kim McLagan: No.

Andrew Douglas: And yes, it’s important you get through it quickly, but cutting corners an investigation is just cruel ’cause what you’re really saying to a person is, I know you’re guilty. That’s what you’re saying to them.

Whereas an investigation done well tells a very good story beyond the group that’s there, that when this business believes it could be a problem, they treat people fairly, they’re very candid about them. They listen carefully to them. They make all the inquiries.

So I’m the respondent, I say, but that’s not true because Kim was doing A, B, and C, and she was actually over that part of the room. Well then you need to go back and check that’s true or not true. You can’t just go, “It’s Andrew, you always make shit up.” You can’t do it. That’s before you even get to discipline. But once you’ve got a series of factual findings against an allegations letter, you can then safely proceed to discipline. But you’ve got to have exhausted the process. Not just cut corners.

Kim McLagan: Because if not, you’re leaving yourself exposed when you do discipline someone unfairly.

Andrew Douglas: Well you’re gone.

Kim McLagan: Yeah.

Andrew Douglas: And you know the case law and common law talks about natural justice that you must, and to give someone natural justice, it’s to satisfy that person that you’ve considered what could the, sorry, you’ve considered what are the allegations? You’ve created them in a way that can respond in a reasonable time and in safe circumstances. You’ve allowed them to respond fully. You’ve gone investigated what they’ve said. And then based on the Briginshaw tests of balance of probabilities, you made a set of findings. But that’s the common law.

But you’ve got a provision under the Fair Work Act that actually requires you to have a higher level of fairness, which is procedural fairness, which means that each step along the pathway must be correct.

So natural justice is a broad general concept of what is fair. Procedural fairness is natural justice on steroids. You must do this. You must do this. You must do and if you breach any of those, you fall over on termination, you fall over on workers’ compensation, you fall over on safety law. So you fall over everywhere.

So look, I think a really helpful case personally. And as I said, I think we need to be a bit careful of the well-meaning, that’s a word my father used to describe people are incompetent. They’re well meaning.

But the well-meaning people who think I must look after the victim, well, can I just tell you, that’s not your job. Your job is to look after all your employees. And your job is not to form a view before you’re satisfied with facts that you should be, so well-meaning people keep away please. Just, let’s do what lawfully is required because that is actually wellbeing. Doing what is required to be done properly and generously. That’s wellbeing. Okay?

Kim McLagan: Yep, good. We got a good result.

Andrew Douglas: Okay, let’s go onto the case study. Let’s test you out. Kim, over to you.

Kim McLagan: Okay.

Nancy felt alone. She was sitting in an office with no windows in the basement. She’d been summoned there by Denise, the Head of People and Culture, 20 minutes before. Denise had met her at the door of the office, invited her in and went to get them coffee. When Denise arrived back with two mugs of instant coffee-

Andrew Douglas: You know how much I hate Denise. That when I wrote that, I hated Denise. I just wanted you to know, because if someone did that, I’d just throw it on the ground. Anyway, off you go. You can tell Denise is in trouble, by the way.

Kim McLagan: Yeah.

Anyway, Denise comes back and she reassured Nancy she had nothing to worry about. But Nancy was worried.

Denise said there had been a complaint about Nancy’s attitude to her coworkers. Nancy asked, who complained? Denise said there was no specific complainant, but we as a business are raising this issue with you. Nancy asked who had she shown bad attitude towards and what did it look like?

Denise just said, “To several staff. They don’t feel safe us saying who they are. But on numerous occasions over the last two weeks, you have called some of them idiots, scowled at them, rolled your eyes, and sworn under your breath.”

Nancy was at first shocked, but then started to laugh. She said, “So I did all these things, but you won’t say when, to who and what were the circumstances? How can this be fair? How are my interests protected in all of this? What about how I feel? I feel scared. Doing all of this to me. Are you sh*tting me?”

Got to do it, you made me swear every single time to do this to Nina honestly.

Andrew Douglas: I do. But she doesn’t do it.

Kim McLagan: Denise said for Nancy to hold her tongue. This was just the sort of behaviour that was causing concern. Denise said, “I invited you here to see if we could resolve this. I can see we are not going to be able to, so I’ll start an investigation because the other staff don’t feel safe. And you are unwilling to try and resolve the conflict you have caused. I’m going to stand you down on pay until the investigation is complete.”

Andrew Douglas: You can’t like Denise, you just can’t.

So question one, does Nancy have a general protections claim and could she seek an injunction to stop Denise or anyone else investigating? So the answer is yes to both. Denise unquestionably has formed a view. So there’s no doubt about that.

She’s taken action, which she had no proper basis to take. She’s required things to be done, like try and resolve this, which are improper. And she’s treated her badly as a result of her pushing back on the completely flawed process.

So it’s definitely a general protection. And if you had a decent union, they would be in front of the Federal Court getting injunction to stop the investigation. And can I say it’s been successful a number of times in the past, where the process of investigation is so flawed and directed through, not spite, but through piqued, you know, being annoyed by somebody, Well then not just do this thing.

At those times you’ll get an injunction against you ’cause on the balance of convenience, you’ve got to stop it, which is the test injunction. If you allow this to go with someone with a preconceived view and Denise represents the organisation, then she can’t have fairness.

Once you get an injunction, besides spending $50,000 or $60,000, you also can’t deal with the person ’cause without the investigation you can’t have findings. So at that stage, Nancy can’t be touched. Not good is it really?

If Nancy felt she’d been psychologically harmed by Denise, would she have a solid workers’ compensation claim if her doctor agreed she had a diagnosed psychiatric condition?

Kim McLagan: Yes. She would. So the threshold test injury over the course of employment. So she can demonstrate that through this meeting. And is there any defence of reasonable management action? There wouldn’t be because what she’s done is not in any way, shape or form isn’t it?

Andrew Douglas: So it’s interesting because it’s an investigative resolution process. So it doesn’t even apply. Because it is not dealing with the performance management or the discipline, you would have incredible trouble if there was a workplace lawyer on the other side, who knew anything from being able to run the defence at all. Because it’s not in the performance management. It’s in the finding of fact.

And that means it just has to be in the subjective mind of the person to be enough that you are lucky. Most insurers dunno how to apply the law and the regulator in Victoria most definitely doesn’t know how to apply the law.

So if you had done things fairly, you might still get up in a reasonable management action. But as a matter of law, you shouldn’t be able to. I just raised that.

Was Denise’s conduct a breach of safety law? Yes. In so many ways. You know, Section 21 and 22, did she provide a safe place of work? No. Did she identify just on what is reasonably practical? Did she understand that what she was doing was a hazard? Well, definitely it’s a psychological hazard what she was doing, she was being unfair. You know, so many things that are wrong with it. She’s failing to provide clarity. All those things. So there’s about five hazards that are thrown together.

Okay, did she understand the level of risk that attended that? No. She was ignorant of the risk she was causing. Did she try and control anyone? No she didn’t. In fact, she did the reverse, pretty bad.

So if something bad happened out of this, then WorkSafe would have a go at this both for Denise and for the business ’cause remember, there’s an imputed connection. If Denise does something, the business is liable. Unless it can show Denise did something that’s so out of keeping with their expectation. She’s Head of People and Culture. They’ll never be able to raise that defence. So yeah, this is reckless. These are hazards. I’m indifferent to the hazards. It could cause serious harm. Yep. Just imagine if this person went home, stood down, devastated by what’s being said. No proper basis for it. It is actually untrue and the person harmed.

Kim McLagan: Yeah.

Andrew Douglas: It’s reckless endangerment.

Kim McLagan: But this is actually happening because we’ve got cases here today, where this very scenario has happened.

Andrew Douglas: Ah, that’s why I’m raising it. That’s exactly why I’m raising it ’cause I don’t think people understand that safety law is the governing law of employment. It is the big law that sits above it. And so I think Denise would be prosecuted and so would the organisation. And I think it could be reckless endangerment, and if it led to the death of Nancy, then it could be industrial manslaughter ’cause this is a breach of every piece of workplace law and safety law on the way through. Okay.

Let’s go to the next one.

Does Denise have to disclose who made the complaint? No. That’s one of the things here. She has to disclose the nature of the circumstances around what is wrong. But she doesn’t have to say, “Kim told me.”

Kim McLagan: No, that’s fine.

Andrew Douglas: Okay.

Kim McLagan: She might work it out from the allegations.

Andrew Douglas: Yeah, but if the only two in the room makes it up.

What details did Kim have to disclose? Yeah, I put Denise. I didn’t drink last night.

What details did Denise have to disclose as allegations for the purpose investigation or conduct counseling/warning process? What was said or done, to whom, when and where. That’s it.

Kim McLagan: Quite simple.

Andrew Douglas: How hard is it? Was the stand down lawful?

Kim McLagan: No.

Andrew Douglas: Absolutely not. There was no evidence at all properly presented of a true safety risk and or of seriousness.

Kim McLagan: No, the only thing you could say out of that she says the staff don’t feel safe. So if that was genuine, perhaps it would be. But otherwise, you know, there was not nothing to suggest she was going to interfere with the process or interfere with the people involved.

Andrew Douglas: Well but even if they didn’t feel safe, the nature of the allegations to the extent they were raised was not serious enough to meet the threshold for stand down.

So I think Denise was a total gumby. I enjoyed writing about Denise.

Alright guys, well look, next week what we do want to talk about next week is we had a number of people talk to us and say, “Look, could you do something more focused on offices?”

So next week we’re going to really focus on officer liability. Not only in their responsibility around safety law, but more broadly around leadership and behaviour. But with a real focus on what happens to officers now. Particularly with a change of attitude, both the regulator and courts. Okay.

So it’d be good fun next week. I’ll look forward to seeing and thanks for being here.

Cheers.

Kim McLagan: Bye.

Andrew Douglas: Yeah, thumbs-up. That’s what it says. Thumbs-up.