Andrew Douglas: Can we move on to our main topic, which is restructuring, particularly employees on parental leave. We’ve got a case called Kelly Dyball and Brookfield, where we don’t know exactly what happened. Brookfield eventually released a statement saying that they’re going to go back and retrain and be more careful. But I guess you and I too often see cases of women who are 30 weeks out after child suddenly receiving a note that says, “Look, your job’s been taken over by a number of people.

There’s no longer a job. We want to talk to you about redundancy.” And what I can say to you is there are three key elements here. Let’s go to element three. 20 years ago, restructuring a business to get rid of a person who’s on parental leave would not have had any reputational damage at all. Now it is massive, to the extent that Brookfield published a letter to everybody to say, “We got it wrong.” So does that show you how powerful reputation, in social media times, how dangerous it is?

Monnette Samo: That’s it.

Andrew Douglas: The second thing is the law requires you to act flexibly in bringing people back to work who are on parental leave to be mindful of their capacity to do it and to look for suitable duties. That’s a statutory obligation. That’s actually got to be your lens. Not can I get rid of this person? And, of course, the first thing is, any person who seeks to work flexibly and has a statutory right to flexibility, I must consider what that is and I should not be dealing with old issues, like, “I don’t think this person performs, I don’t think this person’s capable.” That should have been dealt with a long time ago.

And if it’s being dealt with now, it’s far too late. But I come back to the last part. If you were on parental leave and I was a coworker and I heard you got shafted on parental leave, I would not like my employer. But it happens all the time. So I just want you to think as employers out there, what do you think, when you do that, people think about you? And the answer is everyone goes, “Gee, if you’re going to pick on someone as vulnerable as that ’cause they’ve got a child, I don’t like you.” And that’s what social media says every single time and that’s why Brookfield published a letter putting their hand up and saying, “We can do better.”

Monnette Samo: Yeah.

Andrew Douglas: Why don’t we go and have a look at the case study, okay? Interesting case study today ’cause I drafted it.

Monnette Samo: Like always.

Andrew Douglas:  Much shorter, but let’s have a go.

Monnette Samo: All right, so Mick was a bit rough around the edges. He had worked as an apparel buyer for Hot Stuff Online, a brand retailer for women aged 21 to 35. His career began at Myer when he was 17. Now, at 40, he lost his athleticism and looks. Hot Stuff was owned by Steph Glitter, a well-known Sydney influencer and startup model.

Andrew Douglas:  Mogul.

Monnette Samo: Mogul. Her warehouse in Collingwood was staffed by 20-something private school girls. Mick’s thought they had attitude, and Steph wanted them to have attitude. It was the brand. Clementine, head of sales, and Ingrid, the ICT manager, really didn’t like Mick, and the feeling was mutual. They had cultivated complaints about him. Several women came forward saying that they didn’t feel safe and that he was uncouth and that he sexualized them in conversation.

Clementine spoke to Steph, who arranged for her barrister brother Nigel to investigate. Nigel obtained covert recordings of Mick’s conversations at a local bar. From these recordings, he captured key lines, such as, “She’s hot. I wouldn’t say no,” and others. The recordings were benign if listened to in context, however, he rolled them into omnibus complaints about how Mick interacted with women, alleging that he sexualized them and that he understandably felt unsafe.

Andrew Douglas: They, he felt quite safe. They-

Monnette Samo: Oh, they.

Andrew Douglas:  Come on. Stay with me.

Monnette Samo: I can’t see. The complaint did not disclose the lines, they came from a covert recording. Nigel had no intention of advising Mick about the recordings. Nigel approached Mick and asked him to come to Steph’s office for a show cause meeting with Steph present. Mick was given an opportunity to read the complaint. At the end, he stood up and said, “I’m not sticking around for a kangaroo court.

You don’t say when, who, what happened, or where this conversation is alleged to have taken place. This is bullying and nonsense and I don’t feel safe.” He went home and drafted a simple letter saying he was shocked, hurt, and felt very scared to return to work. The following morning, Steph read his email, spoke to Nigel, and they responded by accepting his repudiation of employment, stating that his refusal to participate in an investigation amounted to a breach of lawful and reasonable direction. They further said he had now abandoned his employment and they accepted his repudiation.

Andrew Douglas:  All right, so let’s go to the questions. Did his refusal to come to work amount to abandonment? No, he must show a deliberate intention not to return to work. He didn’t feel it was safe, therefore that would fail. Were there problems with the investigation process, and what was the legal effect? The investigation was deeply flawed. The Ansir baggage handlers case says you must put all evidence to a person so that they can properly respond.

The selective use of evidence, of course, is fatal because it didn’t align with the truth in the allegation. And finally, an omnibus allegation is a rolled up allegation without any particularity. A person, to be able to respond, must know the date at which something occurred, where it happened, what happened, and who with. None of that was possible. This is a flawed investigation and failed at every level. What claim under the Fair Work Act? Well, he’s got everyone you can have. So he’s got unfair dismissal and general protections claim and both would be successful. It’s fun doing this. This is nice and quick.

Monnette Samo: Yeah .

Andrew Douglas: Was there a breach of safety law? And if so, whom, and what would happen? So there was a number of breaches of safety law, but there is a discrimination breach under safety law. He raised a safety issue and was terminated because of it. He’s got an argument on that. There is fundamental primary duty breaches in relation to the risks he was put under by the process. And we’re seeing that process litigate a number of different environments.

And what’s left in the VBA case is directly on point. So there’s safety breaches at an individual and at a corporate level. Does he have a common law psychological claim based on breach of contract? This is Elisha and Vision Australia. The answer is yes, the process was flawed and it caused harm. So yes. He’s not doing too bad. He’s got a lot of claims, doesn’t he?

Monnette Samo: No, tick, tick, tick.

Andrew Douglas:  Would he have a valid workers’ compensation claim based on the flawed investigation? The answer is yes, yes, yes, yes. So there you are. We’re done. We are done, and we are out here. Well done, Monnette.

Monnette Samo: Yeah, thank you.

Andrew Douglas: Thumbs up. Cheers.

Monnette Samo: Bye.