Andrew Douglas: We’re moving the Main Topic and the Royal Commission into the Big Build, and the Solicitor General Kouras has been appointed as the Royal Commissioner. Some may have thought actually appointing your own solicitor general as a royal commissioner lacked a bit of transparency, but Ben Garret’s pretty determined to shed his past problems. He’s going into the polls with no improvement of numbers against one nation. Liberals are disappearing down the toilet.

Madelyn Hassan: They are.

Andrew Douglas: But the only thing that everyone’s arguing about is corruption and misconduct by the Labor Party around the Big Build.

Madelyn Hassan: Yes.

Andrew Douglas: So, it was sort of inevitable. He’d say, look, here’s $50 million, go and find all the culprits and it won’t be me. It probably is Jacinta Allan. It probably is a whole lot of bikes. It’s been so dumb that this hasn’t happened, but Jacinta Allan supervised the beginnings of the Big Build. So her fingerprints and her legacy sits around it. She could never back away from it nor her constituency in the CFMEU would prevent her from making the criticism. Ben Carroll’s clean of those things. But politically, this is a political appointment which will unravel the degree of corruption that occurred. They will find a number of people who are corrupt, they will pass bad judgement on a number of politicians, but that will all be after this election.

Madelyn Hassan: Exactly.

Andrew Douglas: But it absolutely nullifies the complaints that are being made by other parties, and he hold his hand up and say, look, he might criticize us, but what about?

Madelyn Hassan: Yeah.

Andrew Douglas: In fact, the scope of the Royal Commission is incredibly broad so he can say, there isn’t a question that you’re agitating that won’t be considered.

Madelyn Hassan: Yeah.

Andrew Douglas: There you go. But it does mean that his own solicitor general does have his hand on the hand braking so we might not see quite what we’re expecting at the end. All right, this is over to you now. Madelyn, this is the case study.

Madelyn Hassan: Nan was sick of Phil’s excuses, problems with attendance and attitude. She had been his supervisor for two years. It was killing her. She was a direct person and had spoken frankly with Phil. “Mate, you are always late, have a million excuses. I need you to just turn up and do the job.” His response was the same every time. “Sorry, Nan, my wife is sick, my mom is ill and probably dying, and my youngest daughter is an uncontrolled diabetic. I’m barely keeping it together.”

His performance had always been poor. In June, he put in a flexible work request to work from home because of his caring responsibilities. Nan couldn’t believe it. She spoke with him and explained that even if he was at home, he had to work during work hours, not care. And as an IT supervisor, he needed to be at work to supervise the help desk function and lead his team. He said, okay, and she confirmed it in writing. Two weeks later, his GP sent a letter.

It was not an offensive or demanding letter. It simply said that Phil had suffered from PTSD and depression since he was in a car accident, which he survived, but his father and brother didn’t. He is not coping at work and needs to care and generosity shown to him, or he will retreat into a serious depressive state. He has been suicidal in the past and I fear that issue may emerge. Nan was shocked, sought P&C assistance, and then Nan, with Emma from P&C, spoke to Phil. In essence, they said they were concerned for him and wanted to assist him, but until his GP could say he was safe for work, he would have to stay home on personal leave. The very nature of his role meant there were many times when his interactions with clients and staff were highly pressured and it seemed that created a risk to his health.

Andrew Douglas: All right, so the first question is, did Nan and Emma make the right decision and follow the correct path, and the answer to that is no.

Madelyn Hassan: Yeah.

Andrew Douglas: So, Grant and BHP say that when you have a reasonable basis for requiring an IME, you can direct it, but what they don’t say is they can require you to stay on personal leave until that occurs.

Madelyn Hassan: Exactly.

Andrew Douglas: Okay, so they are on GP level right there. That’s a General Protections claim jumping off the page. And it’s also a breach of safety legislation and discrimination on a safety issue being raised by the GP and being treated differently. So really, really bad. The correct path, which is, I’m sure that’s the next question. The correct path was really to say, look, we’re concerned about your health. What your doctor told us concerned us given the nature of the role. We’re going to place you on paid leave.

We’re going to organize an IME. And remember, for you to make a decision around someone’s conduct, yes, it’s helpful to get evidence from other people, but when you’re looking at termination, which was obviously looking at, the obligation sits on you to provide the medical evidence upon which you rely. Okay, so that’s the answer to that, no, is shocking what they did. Was there any evidence that Phil could not do the inherent requirements of the role? Hard to say, see, that’s one of the things. The doctor said treat him nicely. Yet at the same time saying work is harming. So Nan and Emma were right when they said, look, we’re worried what work is doing. So there’s evidence of potential harm, but we don’t know, and that is another very good reason for getting an IME.

Madelyn Hassan: Yeah.

Andrew Douglas: Okay? If Phil argued that he was constructively dismissed and brought an unfair dismissal claim with General Protections claim, how would he go? It would be a shoe-in, don’t you think?

Madelyn Hassan: Yeah, pretty well.

Andrew Douglas: Because what they’ve said is you can’t come to work and I don’t have a proper basis for it.

Madelyn Hassan: Yeah.

Andrew Douglas: I reckon that’s pretty close to constructive dismissal. Was Phil discriminated against? Absolutely, okay. So was he treated differently? So it doesn’t matter what state or territory he was in. Did Phil have a protected attribute? Yes, he had a mental health issue.

Madelyn Hassan: Yeah.

Andrew Douglas: Was he treated different to a comparator who didn’t in every other state and territory? Yes, he was treated in a manner which was unfair and unlawful irrespective of who they were. So, in any state or territory under federal legislation, Phil has been discriminated against, he would have a big claim, okay. His general damages, part of it, would be north of $75,000. And he’s not coming back to work. So he’ll have what they call a special damages or compensation claim in the hundreds of thousands of dollars. Would Phil have a successful worker’s compensation claim?

Madelyn Hassan: Yeah.

Andrew Douglas: Couldn’t lose it, could he?

Madelyn Hassan: No.

Andrew Douglas: Was Nan and the business involved in any safety breach or safety discrimination? If so, what would be the breach, the charge and the outcome? The answer is that Nan has breached her personal responsibilities to exercise reasonable care to prevent harm as has Emma, and they were decision makers in the process. We don’t know the officer’s part, so we can’t talk about them. But unquestionably the organization failed to do everything that was reasonably practical to prevent harm, to provide a safe workplace and to monitor health. So yes, and the discrimination breach is really Frank. So there you go, interesting case.

Madelyn Hassan: It was an interesting case.

Andrew Douglas: Interesting first time on?

Madelyn Hassan: Yeah.

Andrew Douglas: Not swearing, you did really well. Cause I did, mine’s been cut out from my mistake, but you did great.

Madelyn Hassan: Thank you.

Andrew Douglas: See you next week, cheers.

Madelyn Hassan: Bye.