Andrew Douglas: We’re up to topic the main topic, aren’t we? ‘Cause I think this case, which is the Della Marta and CBK case really brings home what are our common law or fiduciary duties that sit in the employment relationship. So, for Tom as an employee of the business, he must act in the best interest of the business. He must exercise due care and attention in the work that he does. He must act honestly, which is a duty of fidelity. So, they’re the sort of duties and good faith is to act in the best interest of the business effectively. So, in Della Marta case, while she was, while she was, I think she was having difficulty internally in this.

Tom Daly: Yeah, she was a accountant or a bookkeeper that was put on a, or there was questions around her performance and she was, I think, put on a performance plan. Oh, they commenced a formal process about her performance. Anyway, she took it the wrong way and eventually that led to her having meetings with the partner to arrange an exit strategy for her. In the midst of all that though, she had gone to, she’d took, taken a meeting with a client of theirs about potentially accepting a job with them. And I think that’s as far as it went. However, shortly after that, she was in conversations with this partner who claimed to accept her resignation when she had just said that she was negotiating the terms.

Andrew Douglas:  Yeah.

Tom Daly: Of her exit.

Andrew Douglas:  So, Tom, what was the one thing the employer did, which said, “Well, we are going to treat you like you’ve terminated the employment,” even though the employee hadn’t resigned at that stage?

Tom Daly: Yeah, so they terminated access to the IT, her access to the IT system. And…

Andrew Douglas:  They told other employees that she’d actually resigned.

Tom Daly: Yeah. Whereas she said that she’d was only ever trying to negotiate her exit.

Andrew Douglas:  Anyway, so it becomes an unfair dismissal.

Tom Daly: Yeah.

Andrew Douglas:  Constructive dismissal type of argument. But at the end of the day, the question that agitated the commission was, is having discussions with a client of your employer with the knowledge that if you were to get that job, you would decrease the amount of work that came to the client. Is that a breach of your fiduciary obligations? And what the court did is it laid out what the law was very carefully. But those were the two factors. The term said, “Look, this isn’t a restraint issue. This isn’t an issue of termination. This is an issue of a person doing something which is contrary to its fiduciary duties to act in the best interest and to be honest with the client.” So, best interest.

Tom Daly: And their employer.

Andrew Douglas:  Yeah, sorry, with the employer.

Tom Daly: Yeah.

Andrew Douglas:  Best interest of the employer. No, it’s not in the best interest for you to go and work with somebody while you are, to engage in that conversation while you’re an employee. So, you know who the client is. Go and do that knowing that it would decrease the level of work. So, the answer was, it was a breach of fiduciary duties.

Tom Daly: Yeah.

Andrew Douglas:  And therefore-

Tom Daly: And she took steps to hide it from the employer.

Andrew Douglas:  Yeah. Which is the fidelity-

Tom Daly: Yeah. Yeah.

Andrew Douglas:  Yeah. All right, why don’t we go and take this for a bit of a run now, and we try it out on the case study. We’re about to go through a set of facts. This is a trigger warning. We’re dealing with family violence as part of it. If you feel at all uncomfortable, please don’t proceed to listen to it. It’s not graphic in its nature, but I do raise it with you now.

Tom Daly: Okay. Let’s do it. So, Dino met his wife, Glenda, at Pumping Pistons, a fleet management business. Glenda was the Managing Director’s personal assistant, and Dino was the Operations Manager. They became close after the 2022 Christmas party and were openly a couple by July 2023. They married in November 2023. Things didn’t go well for them. Dino was fired from Pumping Pistons in June 2024 by Glenda’s Managing Director Tony, after Tony was informed that Dino had been taking cash from clients in exchange for discounted rates. Shortly after, Glenda and Dino separated. Tony became aware that Dino was regularly messaging Glenda on her work phone and through her work email account. He spoke with Glenda one day when she was crying at her desk and she told him that Dino was not coping well with the separation. Some days, especially when he was drinking, he would message her and email her up to 50 times a day. Tony said he would arrange for Dino to be blocked, but when he spoke to IT, they said that blocking his email address was easy enough, but blocking his phone number was not. Dino then opened numerous other email accounts and the onslaught continued. Glenda’s mental health deteriorated.

She was often late to work, appeared scared, trembling, and tearful. In late October 2025, Glenda arrived at work with bruising around her eye and throat. Tony noticed and asked if she was all right. She burst into tears and explained that Dino had come to her house on Saturday, and after an argument had assaulted her. Tony asked if she had spoken to the police and she said no. She was afraid to provoke him. She had since moved in with her sister. Tony later became aware that Dino would wait outside the workplace near the end of Glenda’s shift. He asked Glenda if she was okay and she said she thought so, but she was very scared. Glenda asked to work from home over the next three months while the police and family law proceedings curbed Dino’s conduct. She had orders preventing him from being at her workplace or within a hundred metres of her and prohibiting any communication.

Dino was currently charged with breaching the order by violently assaulting her outside of work only 10 metres from the gate. Tony said he really felt for her, but needed her to be at work. He was satisfied that the police response to Dino’s breach would prevent further violence. Glenda was distraught. She had been careful to find a safe place to live and feared that if she returned to work, Dino would follow her home and find her. Tony told her she was being paranoid. That night, Glenda left work, climbed into her car in the staff car park and started to drive. She then became aware of Dino hiding in the backseat of her car. So, could the failure to prevent Dino’s communication with her on the work phone and email address lead to a workers’ compensation claim?

Andrew Douglas:  Yeah, so the issue in workers’ compensation, Tom, is, was there a substantial connection to the nature of the impact upon her from being at work? And the answer is, if she’s using a work device and these things are occurring and there are methods of preventing, or it does matter, it doesn’t have to be methods of preventing ’cause it’s not a, it’s merely that it affects her capacity. So, the answer is yes. It’s not like a common law claim where you’ve got to show there was negligence. It just merely has to-

Tom Daly: Just at work.

Andrew Douglas:  Yeah, just at work, so.

Tom Daly: Is it the fact that it’s at work or the fact that it’s using a work email address?

Andrew Douglas:  It’s both. Yeah.

Tom Daly: So, even if she was at home, getting-

Andrew Douglas:  Now, if she was at home but she was carrying, well, she’s using a work asset-

Tom Daly:  Yeah.

Andrew Douglas: At home, then she’s still at work.

Tom Daly: Okay, cool.

Andrew Douglas: Okay. The next question is-

Tom Daly: Under the new Workplace Protection Orders of Law, could she be protected?

Andrew Douglas: Yeah. The answers is in South Australia and the Commonwealth, yes, if she was an employee of the Commonwealth. But at the moment in the ACT, she wouldn’t be protected.

Tom Daly: Gotcha.

Andrew Douglas: All right, were Tony and Pumping Pistons at risk of prosecution under safety law, particularly if Glenda died at Dino’s hands the night he hid the car.

Tom Daly: So, is this an issue of whether there was this, it was reasonably foreseeable the risk to her?

Andrew Douglas: Okay, so let’s, yeah, good question. And the answer is at home, which provision of safety law applies on the workplace manslaughter? So, that’s the first question. So yeah.

Tom Daly: What do you mean at home?

Andrew Douglas: So, if she’s not at work and she’s not doing work, and work is, and home is not a workplace for the purpose of this, then workplace manslaughter. If she was going home and she was in the process, she would normally go home and do work, or home could be seen as a workplace, then all of safety law applies to her. But the issue is the moment she gets in that car, it is a risk that was known. So, what was the duty that was owed is to provide a safe place of work to ensure there was a system that provided safety for her to monitor her health. All of those things Tony could do and realise that it was a risk and that inside his workplace to allow Dino to have access to the car. Given that knowledge and the risk that was there, they’re certainly on liability risk. So there is a chance, quite a good chance that they’d be breached under safety law. The issue of the death being at home means it’s more likely to be a workplace manslaughter issue. But if she commonly worked at home, there’s a good argument.

Tom Daly: Cool. Was Glenda’s Section 65 flexibility requests reasonable, and was the refusal a breach of the Fair Work Act?

Andrew Douglas: Well, I think it is pretty reasonable, isn’t it?

Tom Daly: Yeah.

Andrew Douglas: When you know that you’ve got someone stalking you when the work can be done from home.

Tom Daly: Mm.

Andrew Douglas: Now the issue is, and you asked a great question before we came in. Is there a balance here? I mean, if-

Tom Daly: If the refusal is-

Andrew Douglas: She did have to be there. It’s hard to understand the circumstances where an EA or PA would have to be at work every day to do those types of things. But the issue really for Tony in this case is determine if he did want her at work, how could he get her safely without the risk that arose. So, we don’t have any evidence of what the rejection was or the consultation process. But unquestionably, Section 65, one of the criteria for which you can make a flexibility request is family violence. So, there’s a very strong chance that her request would be reasonable.

Tom Daly: Yep.

Andrew Douglas: So, I reckon that’s it for this week, mate. So, thumbs up. Now, we need them to do it.

Tom Daly: Yeah.

Andrew Douglas: Thanks very much. Cheers.