Andrew Douglas: Why don’t we move back onto the main topic, okay? Oh, main topic. Can you remember the main topic? So this is the case about safety regulators getting involved in investigations. And what happened is, a person who worked at the Department of Education in New South Wales was alleged to have done some things wrong. And they received a letter which said, don’t come to work tomorrow, you are being investigated, and you’ll be provided with alternative work. Not surprisingly, the person went home very distressed in their life.

So it was a terrible story. So yeah, incredibly sad. And what happened is the safety regulator, SafeWork New South Wales turned up, and they issued some improvement notices. One was, you got your process wrong, okay? You failed to say what the nature of the allegations were, you failed to deal with the investigation appropriately, quickly, so the person sitting there worrying about, hopeless is the thing. And secondly, you gave them a job, alternative work, which was nothing to do with their experience and skills, which was hurtful as well.

And what the employer said is, psychosocial hazards code and regulations have nothing to do with performance management. They had no place in this at all. And the court, which was the New South Wales Industrial Relations Commission said, well, actually they do, and upheld the improvement notices. So the fascinating part, why this is our main topic is, we’ve had the four university cases where the safety regulators got involved in reconstructions where people restructuring, where people are going to be laid off, redundancy processes, and intervened in things like improvement notice and stop orders.

We’ve seen Victorian Building Authority case, which is still proceeding; the defense case, which dealt with performance management and termination, leading to people’s death. But this is a case which goes even further and looks at how we manage procedurally investigations. And I think what’s said is really important is it should remind us about how to investigate, and how to investigate does involve making sure people understand the nature of the allegations against them, making sure you support them, making sure you deal with it quickly, making sure you give them updates.

Moon Nguyen: Yeah.

Andrew Douglas: And if you are giving them alternative work, make it respectful work that relates to what their skills and capacity they have.

Yeah. Okay? How does that sound?

Moon Nguyen: Sounds interesting.

Andrew Douglas: Sounds interesting, doesn’t it? Sounds like you’re bored. Now the case study was something because I’ve been travelling and we travelled nine hours in one day ’cause we didn’t stay at Dubbo, we didn’t really love staying at Dubbos, and we came all the way through to Canberra.

Moon Nguyen:So is eight hours.

Andrew Douglas: It’s a nine, it was nine. You slept through most of it. Anyway, so I’m going to do the case study today off the top of my head, okay? And I could show you the very short notes, but this is the story. I want you to listen to the story, okay? was a production worker in the manufacturing business, that was a 24-hour manufacturing business, okay? His wife, Ferrell, who’d been married to for 25 years was very unwell, and she required hospitalization for awhile and then care at home.

He said to the business, look, I’d work five days a week in eight-hour shifts. Can I just work three days a week while I’m caring for her while she gets better over three to four-month period? And they said, no, look, it places a burden on other people, we can’t adjust, we can’t do those sort of things, I’m afraid. No, you can’t do it. So he tried his very best to work, but he became increasingly distressed and worried about his wife, and his son couldn’t change all his hours, and so bit by bit his mental health started to deteriorate.

So he took some sick leave, so that he could care for her, okay? And after a period of time, they said, “Oh look, you’re about to use up all your sick leave, and it’s simply not good enough that you’re doing this. It’s starting to cause a burden on the business and cost. And if you take anymore sick leave, we’re afraid we’re going to terminate your employment.” Now that’s the case study, okay? So the question is, were they entitled to make that threat?

So the first question is, were they entitled to say, “If you take anymore sick leave, we’re going to terminate your employment”? And the answer is no, it’s pure general protection A person in this capacity to take a sick leave is unlimited to the extent that they have sick leave. And if it’s less than 90 days, you’ve still got to wait 90 days at any period, about 12 month period of employment before you can proceed to terminate.

And you must show at that stage the person’s unable to complete the inherent requirements of the job. So the second question is, was it a reasonable flexible work request? And the answer is quite clearly, a large manufacturing organization can get people working casually part-time. It was for a short period of time, it was reason to support his wife. And so it was a reasonable flexible work request, and he should have been successful had he made a proper application to SafeWork commissioner-

Moon Nguyen: Mm-hmm.

Andrew Douglas: But he didn’t. The next question is, well, he made the request, could they have made reasonable adjustments under discrimination? And the answer is, yes, they could have made that, and they didn’t. All right? The next thing is, have a legitimate workers’ compensation plan before they proceed to terminate? And the answer is absolutely, it was a gift the behavior they did wasn’t a reasonable management decision, and so they had it. The next question is, could you just take sick leave and use up your sick leave? And the answer is, yes, they can’t terminate people on sick leave, well, like I explained. And the last question is, was it unsafe what they did? Did they do something which breached-

Moon Nguyen: Yes.

Andrew Douglas: Safety legislation? They did, that’s right. They breached because their duty of care was to do the standard care through that was reasonably impractical. So what was the hazard? He had stresses at home, he needed to be away from work. He had a leave entitlement, to be away from work. What was the level of risk if they didn’t do that? That was very high. They started to become aware of that because it started to affect What was the control? It was to allow for the flexible work request, to make the adjustments that were required. And did it make his workplace unsafe? Yes.

Moon Nguyen: Absolutely.

Andrew Douglas: Yeah, okay. So certainly a breach of safety. If something happened, such as he was to lose his life, or became very, very unwell, their lack of care would suggest that this would be quite in the regulatory nature will be even potentially workplace manslaughter. So I guess what this case study, probably made up by my dad in the last two minutes shows is that in managing people, safety has a continual hand.

But you must know the basics of law around employment law, to understand people have entitle to use their sick leave as long as there is appropriate medical evidence that But there are legislative regimes that prevention terminating someone once they’ve used up their sick leave for 90 days in a rolling 12-month period, and the workers’ compensation claims was made where people have mistreated in result of a health related issue. So how does that sound?

Moon Nguyen: That sounds… I don’t know what it sounds like.

Andrew Douglas: Yeah, sounds like. Honey, you did a fantastic job. Gimme a hug. Come on, quick, quick, quick, quick. Come on, it can’t be Thank you very much. See you later.

Moon Nguyen: See ya.

Andrew Douglas: Bye-bye.