Andrew Douglas: Which is the main topic. I’m not sure if this is right to remain on topic. I’ve chosen Leismann’s case, not because Leismann’s case says much at all. What it does is, this was a call center operator who didn’t make their KPIs with performance management. And one of the issues that was agitated by the call center operator, which was Leismann, is that the performance management process was culturally unsafe because he was indigenous.

Or she was indigenous. Now, the judgment’s very narrow on what actually did or did not occur, but what’s clear is there was no proper articulation of what cultural safety looked like and how the performance process failed. So the judgement in itself is not that important. In fact, it didn’t meet, there was an onus issue, very agitated, didn’t seem to know what was wrong or right. There’s no proof of more cultural safety required in those circumstances.

Tom Daly: Yeah.

Andrew Douglas: But I guess I raised it because as we started today,

Tom Daly: This is becoming a real…

Andrew Douglas: I think it’s a real issue, Tom.

Tom Daly: Yeah.

Andrew Douglas: If we look in our office where we have around about 15 different national derivatives that sit inside here, which I have no idea of religious beliefs or cultural beliefs that sit by, it is common for me to sit quietly in my room when we’re about to do something and go, “Okay, we’re going to do this. How could this impact?” And start reflecting on what that could look like. And actually, that process is not terribly hard. It just requires a moment of listening and engagement and working with people.

Tom Daly: Turning your mind.

Andrew Douglas: Turning your mind to it. But cultural safety is a real issue. And when we live in a diverse society, whether it’s mental, ethnic or other attributes, people have different and quite proper sensitivities based on things which are protected by our society, which we say are things that deserve protection. There are not many cases on cultural safety.

This is the first one that I’ve seen for a long time, but a breach of cultural safety is a psychological hazard. So it’s a safety issue. The repeated issues against it would be harassment. It’s discriminatory to do it. There’s a whole lot of things that attach to it. So what I though we might do is actually have a case study around it to flesh out what it would look like.

Tom Daly: Yeah, yeah. Because it’s hard to envision sort of what that looks like, yeah.

Andrew Douglas: And do you want me to read this or do you want me to read it? I’m happy to read because I’ve got the control. Yeah, okay. All right. Angus was a quiet, pious man with a soft Scottish lip. Now Tom though that was a kilt.

Tom Daly: That’s why I’m not reading.

Andrew Douglas: That’s why he’s not reading. The first one wrong. Had started working with Johnson and co-accountants six months earlier. Much of Johnson & Co’s work involved clients in the manufacturing industry. Their clients were often engineers who were rough around the edges and directed their communications. Angus spoke to Rebekah, his director. He explained that there were times when he felt uncomfortable with the workplace banter, the misuse of God and Jesus’s name, and profanity is commonly used within the office and by clients.

Rebekah asked whether there was any particular reason for his discomfort, explaining that this was their client based industry and that this type of language was common amongst their clients. Angus reluctantly explained that his belief system was based on the Westminster confession of faith under which using God’s name in vain is forbidden. He also explained that rude and vulgar language was considered unacceptable in the Free Presbyterian Church of Scotland, of which he was a member. Rebekah grinned and said, “Well, we do have a problem, Angus, because this is our workplace and I can’t stop it. It is who we are.”

Angus winced. He asked whether he could be provided with noise cancelling headphones and whether when he was in meetings, people could please refrain from swearing. He grinned innocently and said, “I try hard not to be offended, but it hurts. Is it unfair to ask people not to be rude?” Rebekah obtained Angus’s permission to explain his concerns to his colleagues. A group discussion was held during which everyone agreed to respect his concerns, although they acknowledged that at times, they may unintentionally slip up.

Angus thanked them and left. When Angus arrived at work the following day, there was a printed AI generated poster, displaying a naked woman with the words, “Hey Angus, have a great effing day.” Rebekah walked past, saw the poster, gave a sheepy grin, tore it down, called out across the office that whoever had done it must stop. However, the gossips, drawings and comments continued. They were now often whispered, but remained obvious to Angus. Angus became increasingly sad, fearful of attending work and anxious. Previously, he’d been a hardworking, reliable employer, but now he was struggling to arrive at work on time. Rebekah gave Angus a small private office in an attempt to reduce the risk.

However, drawings, pictures, and offensive comments continued to appear on his desk and around his office. The owner of the business, Jack Johnson, was reportedly heard at his Monday rotary meeting laughing about his Puritan employee and saying that Angus would need to grow a set. Okay, the questions are one, has there been any breaches of workplace health and safety obligations by Johnson & Co, Rebekah, and/or Jack Johnson?

Tom Daly: Yeah, there’s someone who’s clearly got a sensitivity due to a religious attribute, which is a protected attribute, not religious attribute, religious belief that’s a protected attribute. He’s expressed that things happening around him are bothering him and there’s been an inadequate response to what is clearly targeted behavior to it, yeah.

Andrew Douglas: So if we look at it, is there a hazard? Yes, unquestionably. A hazard is something that hurts someone psychologically.

Tom Daly: Yeah.

Andrew Douglas: Clearly it’s hurting him psychologically. What is the level of risk that attacks repeatedly in its statute? So the level is high. What are the controls that could have been in place? Much stronger prevention, modality, proper training going in afterwards, enforcement, all those types of things to provide him with a safe place of work. And he didn’t have a safe place of work. So organizationally, they’re liable. Rebekah and her personal liability must exercise reasonable care to prevent harm to him. She didn’t really do that.

And Jack is out there celebrating the harm that’s being done, so quite the opposite. So there is a bit of reckless endangerment here, risk sitting with Jack particularly where he understands there’s a risk of harm and is curious about it. So safety law says big risk sitting there. Has the business adequately respected Angus’s religious and cultural safety and made reasonable adjustments to accommodate his beliefs?I think that’s just enough, isn’t it?

Tom Daly: No. I mean, they sort of were on the right path. They called the meeting with his permission. They didn’t just go around, divulging into everyone. That was nice, but it didn’t have any teeth like it.

Andrew Douglas: Yeah, and grinning and seeing a photo on there.

Tom Daly: Yeah.

Andrew Douglas: Shouting across the office.

Tom Daly: Yeah, it’s not, yeah.

Andrew Douglas: Yeah. Angus missed out on his promotion following his complaint. Rebekah said they would need to work hard to help him make it, given his views. Could that decision, oh, I’ve got some interesting things here.

Tom Daly: Could that decision not to promote him be in discrimination?

Andrew Douglas: Yeah. Not to promote Angus. There’s a four that just turned up there, amounts of discrimination? And the answer is yes, it could.

Tom Daly: Clearly, because she said it’s going to be hard, given your views.

Andrew Douglas: Your views. Yeah, and would he have a general protections club? And the answer is yes. And was the prior behavior in the workplace discriminatory and harassing? Absolutely.

Tom Daly: Could Angus have a harassment and/or discrimination claim arising from the ongoing conduct towards him, particularly after he disclosed his religious beliefs and raised his concerns?

Andrew Douglas: Yes. Does Angus have a strong workers’ compensation claim, particularly given his increasing anxiety, fear of attending work and deterioration in his ability to perform the work? Answer is yes. Angus explained to Rebekah that the mistreatment had continued over a period of six months. He argued that the failure to adequately intervene meant he could no longer work safely and he had effectively been constructively dismissed. Could Angus especially, could he establish the constructive dismissal and

Tom Daly: That’s a good question because of the earlier example where I believe the headphone, the girl who wanted the headphones, couldn’t point to anything concrete that showed she had no choice. But in this instance, he can.

Andrew Douglas: He’s tried everything he can.

Tom Daly: He’s not safe at work. Objectively, he’s not. So yes.

Andrew Douglas: Just yeah, for frustration of contract, not being safe at work frustrates contract. So I think you’d have a good client. So there you go.

Tom Daly: Yeah.

Andrew Douglas: Great to have you long term. Just to have you in the workplace every now and again, I love it.

Tom Daly: That’s good.

Andrew Douglas: Okay. See you later. See you next week.