Kim McLagan: So onto our main topic. So we’ve got, we’re talking about a case of SafeWork New South Wales against Steel-Line Garage Doors. I’ll go through the facts ’cause it is important to sort of set the scene of where the court was going with the commentary. So we’ve got an 18-year-old female employee walking in front of a forklift truck, which was moving, and hanging a rolled-up garage door from a sling of the tines of the forklift. So you can imagine the forklift driver is not going to see this girl walking in front or know what happened to her. Turns out she was run over. She suffered horrific injuries to her legs. Her left leg was fractured, her right leg was degloved.

So she had multiple surgeries. You can imagine the trauma, the amount of physical and psychological therapy that she required. Justice Bellew, Bellew, of the New South Wales Industrial Court urged prosecutors to provide more detailed medical evidence about the impact of the injuries on the employee. And I’m amazed, really, having done, we both work in a lot of work cover and injury management. I don’t work in the safety side, but I am really surprised that the extent of the medical evidence isn’t always front and center for the court when they’re determining penalty. So there is finally that shift as evidenced by this case.

So at a minimum, the judge said that the prosecution needs to provide treating doctor notes or clinical notes, details of what treatment, and the consequences for the victim. Now in this case, we have seen penalties gradually increase against employers over the last few years. This employer pleaded guilty at an early opportunity. And received a discount, believe it or not, for its early plea, had an unblemished record, and was proactive in changing its systems of work after this young lass was injured. And that would normally go in an employer’s favor for doing all of those things. But they were still ordered to pay $450,000 plus costs.

Jim Babalis: Yeah, I saw that and I think it’s a massive payment of course. But I think possibly in this context, I mean, they had done a lot of things right, of course, subsequent to this. But perhaps I think that it could be a case of, you know, it wasn’t the reasonable foreseeability of the injury. I mean, maybe-

Kim McLagan: That, well it was a massive clear and obvious risk to this young woman. And so we, I think, forgive my limited safety, this is really Andrew’s bread and butter, but from what I have seen, traditionally, penalties will be based on the risk that was created and the failings in the system of work. Whereas now I think there will be more weight given on the actual harm that was suffered to the worker by the actions of the employer, irrespective of the early plea, their good safety history, and what systems they put in place following the injury. Which as I said, were all mitigating factors, but I think we will probably see a shift in that.

So in terms of what employers need to be aware of, I mean, Andrew talks about this all the time when I do briefings with him. So the high-risk incidents, or activities, at work are mobile plant and people working on mobile plant, inexperienced workers and lack of training and supervision, suspended and unstable loads working from height. I think they’re your sort of, your key major risks of major injury too at work. And so, and I mean, it’s always just the same process in order to, how do we eliminate the risk? You’ve got to, I think employers will really need to be focused on reassessing their high-risk activities, undertaking the risk assessment, identifying what controls they can put in place to eliminate those risks, and making sure they have really good training of their supervisors and managers. And safety always has to be an agenda item at a workplace toolbox meeting.

Jim Babalis: Yeah, I 100% agree. 100% agree with that. Interesting decision though. Yeah.

Kim McLagan: So we might see more of this and I hope we do because having, I’m talking personally here, but having a son who will likely go into a trade, it scares the hell out of me when I see cases like this. And I know we see the worst of it, and my husband keeps saying to me, “But you see the worst of it in your role, this isn’t going to happen to him.” But it does worry me. So I just-

Jim Babalis: I agree with you. And I think in this instance it was, I think a fact to also consider is when I look at the penalty as well, other than the reasonable foreseeability component, obviously it is high risk probably is the nature of the employee in this instance as well. An 18-year-old female, could probably just assume, fresh, first job, and this seems to happen really at the start of their working life. And I think that that’s quite tragic as well. And you could probably to that extent understand, you know, why such a penalty would be so high. There might even be induction processes that may, you know, may not have been very clear to, particularly to a young employee. So, I think it’s the right decision I think, but also a lot to take in for an employer as well.

Kim McLagan: Yeah, exactly.

Kim McLagan: So Jim, now we’ll move on to the case study.

Jim Babalis: Absolutely.

Jim Babalis: No I was looking forward to this one. So Glen looked, sorry, Ben looked at the flexible work request. Betty had been increasing her working-from-home arrangements incrementally over the past few months. Train line down, husband unwell. “I just need to be near him.” And complex work require requiring space to think through it. The list was long. Now, she had submitted a formal flexibility request based on a hip injury that had become arthritic. She said she could not sit on the train or at work, and there were no standing desks available. Even if there were, she said she would still need to lie down.

Ben looked across the room at Betty’s audit team. Her role involved attending client sites, undertaking audits, leading her team, and being physically present. The request included a letter from her GP stating, “Betty suffers from post-traumatic hip arthritis. She cannot get to work because of the pressure on her hip. She cannot sit at work. She cannot undergo a hip replacement due to the extent of the damage to the hip capsule.” Ben then looked at her Facebook page. There she was playing pickleball. The photo was from two weeks ago. There were other photos showing her stretching hard to reach for a shot and jumping to hit a ball above her head.

He arranged a Teams meeting with her. During the meeting, he walked through her role, and explained that he would respond formally within 21 days of her request. He then discussed and sought to consult with her about the inherent requirements of her role, being present at work, attending client sites, and leading her team. He explained that these duties could not perform remotely and that her absences were placing additional pressure on other audit leaders and our own team. It was not sustainable. He said there were no reasonable adjustments that would allow her to work full time from home. If that was what she wanted, there would be no role available.

He also advised that he would need independent medical evidence to substantiate her condition and assess what, if any, adjustments could be made. He said he would arrange this. She reacted strongly, squealing in apparent pain, and shouted, “You have no idea the pain I’m in. I see the only choice you offer is suffering unbearable pain or resign, isn’t it?” The screen went blank. She had left the meeting. When Ben returned to his desk an hour later he found that she had emailed her resignation.

Kim McLagan: Okay. Interesting one.

Jim Babalis: Now there’s a list of questions, isn’t there?

Kim McLagan: We have a few to get through.

Jim Babalis: Now I think we’ve tabled it down as to seven key questions. So that’s just do it as Question 1 and we’ll roll through to the answer.

Kim McLagan:- Okay. All right.

Jim Babalis: So Kim, was she constructively dismissed?

Kim McLagan: No. And this is the case I talked about earlier, Green and Commonwealth, because she did have other options. She could have continued to consult regarding her flexible working arrangement request. She could have seen the IME and undergone that process. She could have discussed other reasonable adjustments. So no, she was not forced to resign.

Jim Babalis: Clear no. We got that one.

Kim McLagan: Clear no.

Jim Babalis: Number 2, was Ben entitled to require her to undertake an IME to determine the nature of her injuries and the possibility of reasonable adjustments?

Kim McLagan: Yes, absolutely. So we’ve got, there’s lots of case law. The ones that we always, Jim, always quotes Grant and BHP, Blackadder and Ramsey. So an IME is appropriate when there’s an reasonable basis to believe that the employee may be unfit to perform inherent requirements of their role. And especially where there’s a sudden escalation or uncertainty regarding the nature of their medical condition, which is impacting them. So yes, always. So OHNS obligation to monitor health, provide a safe workplace. If you’re unsure about a worker’s capacity by reason of a medical illness or injury, yes, always organize an IME or obtain medical information from their doctor.

Jim Babalis: Perfect, I think. Let’s hope employers hear that one. Number 3, under Section 65, capital A of the Fair Work Act was Ben correct to discuss the request with her before responding in writing?

Kim McLagan: Yes, so for a flexible workplace arrangement request, employer must respond within 21 days in writing. But if it’s a negative response, they must consult with the employee within that 21 day period to see if they can reach a resolution about the request.

Jim Babalis: Perfect. That’s what we always advise. Number 4, if Betty brought a general protections claim alleging adverse action for raising a disability and seeking support, would she succeed?

Kim McLagan: No. She did have a workplace right, absolutely. But there was no adverse action taken against her. The request, or Ben’s treatment of her, was lawful. The request to attend an IME was lawful and yeah, so no.

Jim Babalis: No problem.

Kim McLagan: Short answer.

Jim Babalis: Short answer. Number 5, was it unlawful to view her Facebook page as shown by another employee who was her friend, even though it had high privacy settings?

Kim McLagan: Yeah, so OHNS obligations can override privacy considerations. Particularly where there is material relevant to investigating the genuineness of her injury, and her consent is not required in those circumstances.

Jim Babalis: Brilliant. That’s what I want to hear. Number 6, if Betty had not resigned, but instead made a workers’ compensation claim alleging she had been bullied by Ben, would she succeed?

Kim McLagan: No. So we’d have the reasonable management action defense available for that one.

Jim Babalis: All right. And lastly, if the following day she attempted to withdraw her resignation, could she do so?

Kim McLagan: Probably yes, actually. So there is a recognition that employees can resign in the heat of the moment. And then if they come back and say, “Oh look, I’m sorry I resigned in the heat of the moment, can I withdraw that?” And it would only be if, and not the case here, obviously, but if a bit of time had passed, and the employer had made some changes, and employed somebody else within the role, well then no, she wouldn’t be able to.

Jim Babalis: Yeah, the old hospitality defense, that one. Yeah, I do know that one. I’ve seen it many times.

Kim McLagan: Okay. That’s it for this week. Thank you, Jim.

Jim Babalis: Brilliant, no. Brilliant, thanks so much.

Kim McLagan: Good to deal with you again.

Jim Babalis: Likewise. Thank you so much.

Kim McLagan: See you next time.

Jim Babalis: Bye.