Andrew Douglas: What is that, Victoria? I’m sorry if I seem to be railing against the Victorian government at the moment, but I’m struggling a little bit. So here we’ve got something comes out that sets a code of conduct for how WorkSafe inspectors and every , can I say it’s about time someone did have a code of conduct for WorkSafe inspectors. We’ve recently had them go and bully a site on a psychological threat. And I just think what’s going-

Kim McLagan: But this is only in relation to work cover.

Andrew Douglas: No, no, no, no, no. It extends to all people who work in that area of government. TAC, everybody. So code of conduct on how they deal with people who seek their assistance.

Kim McLagan: Yeah, but it’s only related to comp claims, not safety breaches.

Andrew Douglas: That’s correct.

Kim McLagan: Yeah.

Andrew Douglas: But yeah, so it goes to workers’ compensation when a person, as a result of that, is dealing with any of those agencies.

Kim McLagan: Yeah, so WorkSafe, TAC, self insurer and the agents.

Andrew Douglas: Yep.

Kim McLagan: Yeah.

Andrew Douglas: It says you’ve got to behave with dignity and respect.

Kim McLagan: Yeah.

Andrew Douglas: And it does that at the same time as it steals away everyone’s rights to actually make a workers’ compensation claim. And you can’t be left wandering and you say, so you let me do this. Your delayed psychological, hazardous legislation to make people safe. You’ve stolen people’s opportunity to make claims and now you’ve got to say to treatment with dignity. Do they not have mirrors in the Victorian government? Like when they wake up in the morning, is it just a blank bit of canvas? They don’t look at themselves? Do you think anyone thinks this is ironic?

Kim McLagan: Yeah.

Andrew Douglas: Anyway.

Kim McLagan: But it is, I think it’s silly.

Andrew Douglas: Put it this way, there’s no harm in having a code of conduct that says that people will be treated well.

Kim McLagan: No, but yeah. But then the remedies are only going to be, if there was a breach we’ll apologise to you and we’ll tell you how we’ll avoid non-compliance in the future. So I really can’t see it achieving a hell of a lot.

Andrew Douglas:  Just nonsense.

Kim McLagan: Yeah.

Andrew Douglas:  It is the icing, not the cake.

Kim McLagan: Can I just say though, because I’ve had this inquiry already from return to work coordinators, there will be changes to the legislation requiring coordinators to be trained and to be provided with facilities and assistance from their employers. And will be a breach of the act that they can be penalised if they don’t comply.

Andrew Douglas: Yeah, I think we need to do something specific and send some stuff out on that, ’cause that is a change that’s relevant isn’t it?

Kim McLagan: Yeah, it is, but it won’t come into play until probably 2027.

Andrew Douglas: That’d be after the election by any chance? I’m just having a guess. Just after the election?

Kim McLagan: One good thing about it, they will be providing greater financial assistance to the family of deceased workers.

Andrew Douglas: Yes.

Kim McLagan: So that’s a good thing, Andrew.

Andrew Douglas: Okay, well there’s one thing that’s good. All right, here you go.

Kim McLagan: Case study.

Andrew Douglas: Yeah.

Kim McLagan: Ivy was uncertain about work. She had suffered depression, anxiety, and some learning disabilities from an early age. Her home had been a violent place and she was fostered out of home from the age of seven. Ivy was courageous, resilient and determined to succeed. She went well with VCE, but not without mental health incidents. University was more complex. In the end she completed her business degree with honours and landed a professional year at one of the big four. Six years later she was a senior manager at Whittles, part of the Australian division of a big UK accounting and consulting business. At the conclusion of probation at Whittles, further psychometric testing raised health issues. She was open about her past. HR was astounded, but assured her they had her back. Her boss, Rex, known as Mr. T, by those who knew and loved him was entrepreneurial, loose and prone to bouts of uncontrolled anger if things didn’t go his way.

But Whittles knew his staff and clients loved him. That was true of his clients, but the annual HR survey suggested the contrary, as did HR records including exit interviews, staff performance reports, absenteeism and time records, which showed his team worked 10% more hours than any other partner’s team. Direct conversation with the staff was always the same. “Yes, we love him. He works us hard, but he has our back.” However, the data didn’t lie. There was fear. In Australia, a falling out with Mr. T killed your career. Ivy was no wallflower. She didn’t step back from people being aggressive. Her life had taught her that Mr. T relied upon her. She was clever, would work without a break until the job was done and never said no to work. Not only that, but she was also attractive and Mr. T liked to have her next to him when he was hunting work.

In a client meeting where he had failed to send on her advice, which she delivered to him three days before the meeting, he turned on her in front of the client and said, “Never fail like this again.” She was shocked. She simply nodded. But when they walked out of the room, she confronted him. She told him he was shameless and dishonest and he slunk away. In the days that followed her workload decreased, other partners were pleased ’cause they filled her up. But Ivy started to hear comments from other accountants that Mr. T was done with her.

She had failed him with his biggest client and couldn’t take feedback. She spoke to HR who had also been supported by Mr. T, oh sorry, been approached by Mr. T. Ivy gave them the evidence of what happened, but no action was taken. In the weeks that followed, Mr. T continued to exclude her from meetings with shared clients. The noise about her spread throughout Australia and also in the UK by acolytes of Mr. T. Her resilience failed. She was struggling to sleep, eat and find happiness. She approached HR and asked for them to arrange work so she could avoid contact with Mr. T and stop the untruth that he was spreading. They said, “He will not allow you to work separately and denies spreading any rumours.” She said, “He excludes me.” And they said they understood but couldn’t change the work arrangements. Her health deteriorated and soon she was unable to face work. She sent through a certificate of capacity and a letter of demand from a plaintiff lawyer.

Andrew Douglas: All right, that was a big one. But I think it’s an interesting case study, don’t you? Did Whittles and/or Mr. T breach any safety obligations?

Kim McLagan: You can speak to that one.

Andrew Douglas: Absolutely. It’s the one word isn’t it? I mean the duty of care. Was there any hazards? Yes. What Mr. T was doing breaches about five or six psychological hazards. Like a clarity, bullying, unquestionably bullying that sits in there. Workload, it just goes on and on. So clearly what are their hazards, what were the levels of risk? They were really high and they actually knew her vulnerability. So they knew not only the risks were high, but that it could really harm her. And they put in no controls and therefore they failed to provide a safe workplace, failed to provide systems, failed to monitor health. There’s breaches there that are very, very profound and it’s probably reckless endangerment as she suffered serious harm.

Kim McLagan: Yeah.

Andrew Douglas: Yeah, she’d be there.

Kim McLagan: Would Ivy have a strong workers’ compensation claim? Yes, absolutely, for bullying.

Andrew Douglas: Could not lose, could they? Okay, I just thought the next one would be fun, because we receive them on a regular basis. But what do you think the plaintiff’s lawyer letter claimed?

Kim McLagan: So he would be or she would be demanding an investigation into Ivy’s complaints, requesting change in reporting arrangements for Ivy and that they make reasonable adjustments to accommodate her.

Andrew Douglas: I reckon they’d go harder than that. I reckon they’d say hostile workplace. So I reckon the letter in man would be a claim for damages, saying she could never come back because of his pervasive presence. So it’d say, A, hostile workplace dangerous to everybody because of his behaviour. Secondly, unquestionably discrimination. Unquestionably GP claim. And they’d probably be asking if she’s on about 200,000 for a million bucks and she’ll go away. That’s what I reckon they’d be saying. So it is interesting. So Kim and I work on different ends of the world, okay. So on a continuum, Kim is a creator or fixer of things. I’m a destroyer of things. People come to me when they’re really broke.

People come to Kim and say, “Could you fix this up?” So you’re right. If we looked at a sophisticated plaintiff lawyer before things got bad, that’s exactly what they’d do. They’d come and say, “Look, you failed a investigation.” This would be to get to my letter the second one through. “You failed to that. Please remedy these issues, satisfy there’s going to be a safe place to work. Advise us, da da da.” It’s exactly what they do. But if she’s damaged, could never come back. And this is a clever, astute woman who knows the game. She’s wanting money and she knows Mr. T has reputational risk. This goes live, completely damages the business. So you’d be saying all of those things. Then you’d be saying it’s reckless endangerment. We’ve spoken to WorkSafe. They would pull all the levers on this, because if it’s not resolved, they understand that WorkSafe, even if WorkSafe don’t do something under 630 in Victoria and similar provisions, they would go back to WorkSafe and say, “You must investigate this because it is a serious wrong.”

And they give a victim impact statement, hand it over and say, “Look at what has happened to her.” So then WorkSafe would be in this difficult issue where they would have to investigate and they would find all the failings that existed. And when really good plaintiff lawyers go, what they do is they just blow the world up. They’d also hire a communications business that would leak out the issue. And again, we’ve dealt with that on a regular basis where we find ourself as a byline, starts off in social media scales that there’s been significant damage done. But suddenly a masked head picks it up and runs with it. So what do you think about the merits of those claims though?

Kim McLagan: Oh yeah. She’d be fine.

Andrew Douglas: Yeah, if she actually brought a claim now, let’s just go through what she’d get. General damages or just pure compensation under general protections, she’d be over a hundred grand. Okay, if she seriously knocked around, well over a hundred grand. Had 200,000 say that’s a salary. Unable to work for two or three, there’s four or 500,000 thrown in as well, okay. Very seriously unable to work again. Demonstrated proof of past knowledge of a condition. Yeah, you’ve got a claim which is somewhere between 400 to a million dollars. It’s a lot of money, isn’t it? And if you can manage to get it on the age or the financial review, if you’re a listed organisation, just imagine this is a listed organisation, very large accounting business, which has a high profile and is buying business around Australia. And the financial review got a hold of, so.

Kim McLagan: See, I’m hoping for poor Ivy, she’d be very resilient. Could go back. But anyway.

Andrew Douglas: I hope for Ivy too, because she’s a good character. Okay Kim, that was great. It’s funny isn’t it, you and I always come from things from different ways.

Kim McLagan: We do.

Andrew Douglas: That’s good, isn’t it?

Kim McLagan: Yeah, it’s interesting.

Andrew Douglas: All right, see you next week. Thumbs up please. Cheers.