Andrew Douglas: Okay, the main topic for today is documentation and safety. Now, normally my topic about safety is over documentation. You know where you come in and there’s 4,000 pages of documents.

Nina Hoang: So, it’s off the shelf.

Andrew Douglas: It’s off the shelf sort of stuff. But I guess Saunders and Civibuild is a case, which remind us probably should be for the millionth time that you must have accurate documentation of risk, you must have proper processes in place, and you must document what occurred. So, over to you, Nina. This is your…

Nina Hoang: Yeah, so this one was essentially, the worker was on top of a truck, I believe it was, and then he told them to lift it up and he wasn’t supposed to be there at all. And he obviously got injured. Their defence was the fact that they had given verbal instructions that no one should ever be on top of the truck. And they said they had done everything reasonably practical. In this case, the court said, “No, the fact that you gave verbal instructions was not enough especially, ’cause it was quite infrequently given. You could have very simply put that in the SWMS, you could have put that in written work instructions, and you could have trained them on it, which gives you that extra layer of reinforcing the rule. So, that would’ve met the test of reasonable practicability.”

Andrew Douglas: Yeah. So, I guess that’s the thing I want to take out of this that particularly when you’re looking at serious risk remember most fatalities don’t, aren’t high frequency, high consequence, they’re just high consequence. In other words, they don’t happen a lot, but when they do happen, it’s terrible. So, we’re really good at documenting high frequency risk, okay?

Nina Hoang: Yeah.

Andrew Douglas: What we’re not good at documenting and we should be and looking for, is those high consequence risk. Like this guy standing on top of a bundle of metal and getting an excavator to lift him up. Anyone who looked at that would go, that’s crazy, don’t do it.

Nina Hoang: Yeah, it’s obvious risk that you get out.

Andrew Douglas: It’s an obvious risk, but the fact is if you don’t put in their SWMS people will go and do what they need to do to get production done. And you know, the beauty of SWMS is they go through the process of the actions that need to be taken sequentially. Therefore saying in the SWMS, you must not stand on this, is a critical part of it, And it wouldn’t have happened. So please, I don’t want documentation for the sake of documentation, but when you’ve got high consequence risk you must have evidence that you’ve trained people. You must have evidence that they’re competent, and you must have an appropriate system that prevents people from harm.

Nina Hoang: Yeah, and I think we should be clear that the case is not saying that if you have everything documented it would prevent every incident. Like that’s not what the case is.

Andrew Douglas: No, that’s right.

Nina Hoang: But if you have it, it gives that extra layer of getting people to pause and consider that risk. And it’s just providing you that level of protection that…

Andrew Douglas: And safety is about reflection then.

Nina Hoang: Yeah, exactly.

Andrew Douglas: You know, it is about the three seconds you stand back from something and go, okay, what are the risks? Okay, how big are they? What are the controls I should put in? You know, like it’s safety is built around reflection not 20 minute reflection.

Nina Hoang: Yeah.

Andrew Douglas: It’s built around the stepping back from something and having the various triggers in your mind that say the following things are hazards, these are high risk hazards, what am I going to do about it? But if you just allow people to flow with the work…

Nina Hoang: Oh, yeah.

Andrew Douglas: …then you’re going to get this sort of fatality, or risk of fatality, or serious injury happen.

Nina Hoang: And expose yourself to more liability.

Andrew Douglas: Yeah, and kill your staff, even worse.

Nina Hoang: Yeah.

Andrew Douglas: And I’m very careful, I don’t kill staff. I don’t breathe colds on them like you did to me. Okay, let’s go onto the case study. Okay.

Nina Hoang: Big Dog Proprietary Limited (BD) was a pet food pellet processor in Dandenong.

Andrew Douglas: Did you like pet food pellet processor? I love that that’s why I did that. I knew you’d struggle on that.

Nina Hoang: This is bullying, if you do it every week, it’s consistent.

It employed 600 staff. It also had operations in Sydney and Perth. It won several significant contracts with Killer Canine, a renowned vet supported food brand for dogs. It allowed BD to invest in new manufacturing capital and outsource much of its R&D to Killer Canine. Goldie was a research scientist in BD’s R&D.

BD made a decision to restructure the business in Melbourne. Sydney had two unfilled R&D scientist roles at the time of the decision. It said notices of the decision on all employees. The notices said a definite decision had been made to restructure the business and included a list of roles that would be affected. Town hall meetings followed across the business in Melbourne. They were not broken down into production groups.

Goldie complained that only general comments were made about R&D. No evidence was provided that Killer Canine would take on new R&D. No suggestion or consultation was discussed about Killer Canine taking on BD staff. No specific consultation had occurred with the R&D group and the process was flawed.

In truth, Killer Canine had discussed with BD the transition of some staff from R&D, but the due diligence process revealed some concerns around Goldie and two other staff who had been difficult during the last EA and had been advocates for industrial action. BD’s HR correctly stated that discussions were in motion with Killer Canine. No decision had been made by them, but it didn’t change the need for BD to proceed.

Goldie said she felt stressed by the process to HR who said it’ll be over soon and not to worry. A risk matrix was developed that was weighed towards team performance and personal consultation occurred in R&D. No collective collaboration had occurred with R&D before the individual meetings. They were not aware of the changed needs suggested reduction in headcount. And each went through the consultation with the three employees. Goldie and the other two staff referred to above ended up with lower scores than the remainder.

A voluntary call was made and no one took it. Goldie said it was unfair to push voluntary redundancy until such time as the deal with Killer Canine about worker transition was known. Her comments were noted. The forced redundancy process followed and Goldie and the other two employees referred to above were all made redundant.

Andrew Douglas: Now, I know a lot about pet food.

Nina Hoang: Why?

Andrew Douglas: Because I seem to spend a huge amount.

Nina Hoang: Ooh!

Andrew Douglas: Not only that, when I went to the local organic butcher and bought two chicken.

Nina Hoang: You give your dog organic?

Andrew Douglas: Well, no. Well, I didn’t normally, I’d normally go to somewhere, which has bulk chicken and I buy it and then cook it.

Nina Hoang: Oh my gosh.

Andrew Douglas: But I ran out and I said to the butcher you know this often happens. Yes, there’s a number of people that love their dogs far too much to be paying for these. So, yes, I paid $30 for three chicken breasts.

Nina Hoang: What, three chicken breast?

Andrew Douglas: They’re organic.

Nina Hoang: Oh my gosh, I don’t even feed myself organic food. Wow.

Andrew Douglas: True. All right, let’s just get on with the questions. Was the redundancy process proper?

Nina Hoang: So, they consulted, had town hall meetings, and then they had the specific meetings.

Andrew Douglas: So, start off, so they formed a decision.

Nina Hoang: Yep, and notified everyone.

Andrew Douglas: So, that’s tick one.

Nina Hoang: Yep, and told them of the adverse impact on them as well.

Andrew Douglas: Yeah.

Nina Hoang: That’s… yep. Then had a town hall meeting to inform everyone more generally.

Andrew Douglas: Yep.

Nina Hoang: And then they had individual consultations about how it would impact them on an individual basis.

Andrew Douglas: Yeah, so the flaw was they didn’t go to the particular areas and talk about the change in needs and how it would impact those areas. Nor did they describe the actual impact it would have on them. They didn’t say how many jobs would be left. They just said, “Look, there’s some jobs will have to go”, but they didn’t even describe the criteria and the weighting of the matrix towards teamwork. You can get away with a bit, but not too much. You have to look at actually particular skills and teamwork in a laboratory is not a key issue. So yes, the process was flawed, okay?

Nina Hoang: Yeah, but what if they cured that through the individual consultation?

Andrew Douglas: Well, they hadn’t cured it through the individual consultation, they may have got out of jail.

Nina Hoang: Yeah. So, I guess if you have the first step and you’re missing information, it doesn’t mean that it’s all over. You can also give extra meetings and get extra information.

Andrew Douglas: But they didn’t give you extra meetings.

Nina Hoang: Yeah, yeah, and I’m just saying as a key lesson.

Andrew Douglas: Yeah, no, no, no. And it’s, this sort of runs in, this is the argument being taken. So, at the moment what we can say is Goldie did raise a workplace right. That is an entitlement she has under the award.

Nina Hoang: To raise a complaint about it.

Andrew Douglas: And the procedural regularity in that process means that it breaches a workplace right. So, we come to the second question then. Was Goldie’s dismissal unfair? And would she have an unfair dismissal claim? Not the same as the general protections.

Nina Hoang: Oh yeah, if there wasn’t a genuine consultation then it’s not a genuine redundancy.

Andrew Douglas: Yeah, so that’s right.

Nina Hoang: Yeah.

Andrew Douglas: So it’s not valid. You don’t even get to process.

Nina Hoang: Yeah.

Andrew Douglas: Even if you say it is a valid, then you’ve got a real question around fairness.

Nina Hoang: Yeah.

Andrew Douglas: So yes, she would’ve a good unfair dismissal claim, but she’d be dumb to bring an unfair dismissal claim.

Nina Hoang: No.

Andrew Douglas: She has a maximum 26 weeks.

Nina Hoang: Yeah.

Andrew Douglas: And there’s no reinstatement.

Nina Hoang: And she’s got a great general objection.

Andrew Douglas: Can I say, she could argue in the alternative in a letter of demand and say, “I want a position in Sydney.” Because there’s two roles there, which they didn’t offer and which they’re obliged to offer as a matter of law as well, because they must.

Nina Hoang: Oh, I thought they were part of, because it couldn’t be filled. I thought that was part of the restructure.

Andrew Douglas: No, no.

Nina Hoang: Okay.

Andrew Douglas: So those, that those two jobs are available and it doesn’t matter where those jobs are in your business in Australia or outside of Australia, what you’ve got to do is make reasonable attempts to mitigate the impact.

Nina Hoang: And consider redeployment.

Andrew Douglas: Yeah.

Nina Hoang: Which they haven’t in this case, if they haven’t considered her for that role.

Andrew Douglas: Yep. So, unfair dismissal may mean she’s reinstated and then they have to find a role for her somewhere as a result of it. So, could be okay. But not the decision I’d make, ’cause the same powers exist under adverse action.

Nina Hoang: Yeah, I think she’s got quite a good general protections claim, because she’s made the complaints. But also, a key part of their decision making in making her redundant was the fact that she’d previously exercised industrial…

Andrew Douglas: Well, it’s Killer Canines not taking them on. So, I’ll put that in as a deliberate trick. Killer Canine didn’t want ’em, okay? Because they’ve been involved in industrial disputation and were promoters of it. The issue here is what does the decision maker know about it? And we don’t have any evidence of what the decision maker knew. So, you’re absolutely right.

Nina Hoang: I feel like it would be considered though, like there was a that case recently where it’s, if you, oh, it’s the Qantas one.

Andrew Douglas: Yeah.

Nina Hoang: Yeah. But I guess you’re right, if it’s coming from Killer Canine and they are giving the direction that they don’t want it to come across, then it would be redundancy.

Andrew Douglas: But you look by then, so, and look, you’ve really got some problems. You’ve got a fundamental breach of contract in employment where somebody passes information on, which is adverse action. This person is an industrial representative who I don’t like. So, there’s a lot of litigation that can sit around all of this. But the big question is now the reverse onus has clicked over, ’cause we do have the wrong. what was the knowledge of the decision maker? And this case doesn’t say what it was, okay? Let’s go to the next question.

Nina Hoang: Successful workers’ conversation claim before her retrenchment. Well, if it wasn’t a proper process, there wasn’t reasonable management action. Yeah, she could.

Andrew Douglas: Yeah, and remember, we’ve just had one workers’ compensation test.

Nina Hoang: On my left ground.

Andrew Douglas: Anything that would be successful under workers’ comp. If what she said and she did say she was stressed.

Nina Hoang: Yeah.

Andrew Douglas: So, she’s on that border line of was it incapacity? If she then had a doctor said she’s incapacitated by the result of the stress, she’d have a good workers’ comp claim. And therefore, in every jurisdiction she cannot be terminated. Very, very hard to terminate, because she’s off, she’s on workers’ compensation, she’s within her obligation period. Last one. Was there any psychological hazards in the process?

Nina Hoang: Yeah, failure to do proper change management consultation, is a big one.

Andrew Douglas: Yeah.

Nina Hoang: And I think lack of support was very clear. And, oh, what’s the one about unclear directions? There’s another one.

Andrew Douglas: I think the nice part of this is, what’s not spoken about in this one, and which is really important is, before you make a decision, there is an obligation under safety to look at potential changes to consult and to do a risk assessment. And the risk assessment is would include a psychological risk to people who are going through the process. So, they need the level of clarity of what role changes. So, the reason the psychological hazards are so important is the consultation process didn’t occur before a decision was made. And therefore, the evidence around which they make the decision already begins is slightly flawed.

Nina Hoang: Hmm.

Andrew Douglas: And there was no risk mitigation process in place for people like Goldie and others as the process went through. So, it wouldn’t be prosecuted, but it’s certainly a psychological hazard that throws back into workers’ compensation, which would make it a good claim.

Nina Hoang: I think also a lack of organisational justice, because they’re treating her differently just ’cause of her industrial advocacy background.

Andrew Douglas: Totally, yeah.

Nina Hoang: Yeah.

Andrew Douglas: Interesting, be fun to transport ourself five years into the future and see how regulators are litigating.

Nina Hoang: I actually would really enjoy seeing that.

Andrew Douglas: Yeah, because I think now no way.

Nina Hoang: Yeah.

Andrew Douglas: But in five years time when we have 30% of our complaints around…

Nina Hoang: Psych hazards.

Andrew Douglas: …psych hazards, reaching accepted claims.

Nina Hoang: You could have so many different compensation claims.

Andrew Douglas: Yeah, interesting. Fascinating, anyway that was all done in 15 minutes this morning when I got up and was having a breakfast. So, it had a few gaps in it. Nina, we are on time.

Nina Hoang: Yeah, thanks for joining us everyone.

Andrew Douglas: Yeah, thank you very much. And we want thumbs up, don’t we?

Nina Hoang: Yeah, we want a thumbs up.

Andrew Douglas: Thumbs up and face masks.

Nina Hoang: Bye.

Andrew Douglas: See you later, bye-bye.