Andrew Douglas: Smout and BHP, great case to actually talk about investigations. I think you and I have been trying to say to people for a long time that the Fair Work Commission is taking an increasingly dim view of failures of good procedure-

Nina Hoang: Yeah, they’re really focused on them.

Andrew Douglas: Investigations, and I think this case is, to me, this case is the epitome of where the Fair Work Commission is really getting its fingers in ’cause it was highly critical in investigation. What happened in this case is there was a technician who said some things which were clearly sexually harassing.

Nina Hoang: Yeah.

Andrew Douglas: If you look on the scale of sexual harassment, where did they sit at the sort of, if bad is a hundred, good is zero, it was sort of the 40%. They were rank awful things they said.

Nina Hoang: Yeah, just weird things.

Andrew Douglas: They weren’t touching, they weren’t the more-

Nina Hoang: No, just want more implications.

Andrew Douglas: But they were clearly sexual misconduct in the sense that it-

Nina Hoang: Yeah.

Andrew Douglas: Was clearly sexual harassment.

Nina Hoang: And also like sex discrimination, like calling them useless and-

Andrew Douglas: Yeah.

Nina Hoang: The B word and stuff like that, yeah.

Andrew Douglas: Yeah. What happened in the investigation was that a law firm had an embedded employee working for BHP who undertook the investigation. When they undertook the investigation, throughout the investigation, they continued to communicate with the leaders inside the businesses.

Nina Hoang: Yeah.

Andrew Douglas: What happened? There was movement of draughts back and forth.

Nina Hoang: Yeah, gave them the draught report for them to amend

Andrew Douglas: To amend. There were even broader concerns that the interviews were conducted on, you know, virtually conducted on Zoom or whatever it was they were, then when it came to actually telling the guy that they had to show cause, it was done over the telephone. He was given half an hour to speak to his union rep and came back and told he was terminated. He had no idea how serious what he had done.

Nina Hoang: Yeah.

Andrew Douglas: The method of questioning was all through leading questions.

Nina Hoang: Yep.

Andrew Douglas: There was an argument that it was an independent investigation, but the law firm who was actually defending the claim, it was their employee.

Nina Hoang: Yeah.

Andrew Douglas: It was embedded in the organi-

Nina Hoang: So it was all connected.

Andrew Douglas: Yeah.

Nina Hoang: And there was just no procedural fairness basically.

Andrew Douglas: Yeah. Look, the reason I’m going to say it is, lots of people do this. Okay? They were right, this was bad behaviour, but the wrongdoer was never really given a proper chance. The nature of evidence collection was so poor-

Nina Hoang: Yeah.

Andrew Douglas: That it never allowed him to challenge it in an appropriate way or to give his own view of, and he never understood at any stage the seriousness of what was occurring.

Nina Hoang: Plus also the valid reason wasn’t enough for you, like there was no reason that you had to rush through the process.

Andrew Douglas: No.

Nina Hoang: In order, like, it’s not like they were-

Andrew Douglas: They weren’t standing him down.

Nina Hoang: No, it wasn’t-

Andrew Douglas: No one’s safe because of it.

Nina Hoang: There wasn’t like, he wasn’t causing harm to people in that time. So you could have followed due process and still got him out.

Andrew Douglas: Yeah.

Nina Hoang: And then would’ve been no risk.

Andrew Douglas: And look, for me, I think one of the lessons that comes out of this is, everyone’s got used to using Zoom and Teams, can you just not do it? When you want to interview someone, look them in the face. Body language as the commissioner said, is a critical thing. How people respond is part of the way you form a judgement on the truth or lack of truth. And look, the commissioner didn’t find that the technician was an honest person. So yeah, the commissioner was not a friend of the technician at all.

Nina Hoang: No.

Andrew Douglas: But what he said in the end was, this is just not good enough.

Nina Hoang: Yeah.

Andrew Douglas: This process is so flawed. You can’t be a proper thing to do. So look, when we’re doing investigations, can we come back to what Nina and I repeatedly talk about? What do we talk about? Get a letter of allegations correctly drafted.

Nina Hoang: Yeah.

Andrew Douglas: Meet the people. Take appropriate contemporaneous-

Nina Hoang: Do a proper show cause.

Andrew Douglas: Yeah. Make sure the investigator is not engaging with the operational people-

Nina Hoang: Yes.

Andrew Douglas: Who are involved. So if it’s internally and it’s HR, make sure they’re not engaging internally with the operations person. And remember what we say, quarantine that person-

Nina Hoang: Yes.

Andrew Douglas: ‘Cause that’s going to be a decision maker. If it’s somebody independent, make sure it is someone who’s entirely independent who’s doing it.

Nina Hoang: Yeah.

Andrew Douglas: And please, telephone calls to terminate, are you kidding me?

Nina Hoang: Yeah, no telephone calls, no texts. And if it’s serious misconduct, they should be suspended.

Andrew Douglas: Yeah. Well, if there’s any continuing risk, you want to suspend them, wouldn’t you?

Nina Hoang: Yeah.

Andrew Douglas: So look, there are our comments. Why don’t we go to the case study?

Nina Hoang: Big Vac was an international component manufacturing company for electrical engines. It had footprints in Melbourne, Brisbane, and throughout Asia and South Africa. The Melbourne factory was in Keysborough and it had been there for 35 years. Jock was the machine operator. He had worked at the factory for 32 years. He was a rough and tough, gnarled, old Australian man who had seen it all. Everyone knew what he was like. He was prone to calling a spade an effing shovel. It was tolerated by management.

Andrew Douglas: I just thought I’d get that in, I thought you might have done a Kim on that one.

Nina Hoang: He was part of the furniture. On a cold Wednesday morning in winter, he was entering the crib room, stamping his shoes to feel warm. He spoke to two young female employees. They later complained he made suggestive remarks and they felt offended. He was said to have made them in front of his supervisor, Joe Gordon, who said, “Cut it out, Jock, you know better”.

The two women were interviewed via Zoom, by the in-house counsel, Tara Whyte. She explained the investigation was under legal professional privilege. Tara had been instructed by the head of operations, Gavin Firth. He said to her, “This could be a nightmare. The factory is full of troglodytes-”

Andrew Douglas: Troglodytes.

Nina Hoang: What’s that?

Andrew Douglas: They’re very old pre-historic creatures. Troglodytes.

Nina Hoang: Oh, okay. That’s very random.

“There is so much risk and we are tendering to the Victorian government at the moment. This needs to be kept under wraps”.

After speaking to the women, she had a Zoom meeting with Jock, she then gave Jock a letter, advised him she had to stand down and ask for his response to the allegations. He’s a bit flustered, but did his best.

Her questions were very forthright. “Did you,” setting out the allegations. Jock was struggling with the technology and the idea that the women complained. He had said that stuff a million times before. But he denied he said what the women reported. But explained that everyone speaks like that. Why was he being blamed? He asked what stand down meant and Tara said, it meant you don’t come to work. You will still be paid.

Tara didn’t speak with Joe Gordon about what he said, nor did she talk to him about the fact that Jock had said these types of things many times as had others. Jock said he felt targeted and that the whole process was unfair. Tara did a draught report and sent it to Gavin. Gavin marked it up, taking out some things that implicated others. He added a comment in the email attaching the marked up report. “I can’t believe he’s complaining about the process. He has got to go”.

Two days later, Jock was summoned to a meeting in person with Tara. She said she had found what he did was sexual harassment and he needed to say why she shouldn’t terminate his employment. Jock was stunned. She told him to take a break for 10 minutes then to come back and talk. When Jock came back, he said, “This is all bullshit, I’ve been set up”. Tara informed him he was summarily terminated.

So did Jock have a good workers’ comp claim around the investigation, if he could prove psychological illness?

Andrew Douglas: Well, the answer is absolutely yes.

Nina Hoang: Yeah.

Andrew Douglas: But can I just go back, what happened in the Smout case was, there is a rule of law that says if somebody gives evidence and in Smout’s case it was that he was a decent guy and he would never have meant it. Words to that effect. If it’s not challenged, that evidence goes in, okay? So, and that’s what happened in Smout case. And that was one of the reasons why the commissioner said, “It’s hard to understand the seriousness given the fact this evidence is unchallenged and I must accept it.”

Nina Hoang: And so did they try to remove that from the report?

Andrew Douglas: Well, no they didn’t. That’s my-

Nina Hoang: Oh, that’s just yourNina Hoang: okay.

Andrew Douglas: Yeah, that’s my-. So, what we’ve got here is Tara’s legal counsel doing in-house investigation. We’ll come to workers’ comp part in a second. So Power Core says that when your role is a risk manager, not a lawyer doing legal work, that privilege doesn’t apply. Quite clearly part of what Tara was doing here was managing risk, okay? So the report, everything in the report, and everything that happened, comes into evidence. So I just thought we’d put that there because once you see that, you know the workers’ comp claims are laid down with it. What’s our second question?

Nina Hoang: Does Jock have a good unfair dismissal and general protections claim? Yeah.

Andrew Douglas: What do you reckon? I reckon he’s got a killer, hasn’t he?

Nina Hoang: Yeah. Yeah. There was no due process followed. I mean, we don’t know exactly what the comments were in terms of a valid reason.

Andrew Douglas: Yeah.

Nina Hoang: But yeah, definitely no procedural fairness. And also-

Andrew Douglas: For the general protection, he’s raised the problem this is unfair, and then the manager Gavin has written in, “I can’t believe he’s doing this, he’s got to go”. It shows in the mind of the decision maker, a substantial part of the decision to terminate him, was the allegation he made.

Nina Hoang: Oh, so that’s interesting, ’cause I interpreted his comment as like, I can’t believe he’s complaining about the process at all.

Andrew Douglas: Yeah.

Nina Hoang: And I thought he meant like he’s got to go, ’cause the nature of what he did was so bad.

Andrew Douglas: Oh no, I get it, no, no, that’s why I wrote it, because it could fall either way.

Nina Hoang: Yeah.

Andrew Douglas: But remember when you-

Nina Hoang: It’s reverse onus.

Andrew Douglas: Yeah. When you see it’s reverse onus and you see it in the document, he’s got no way of walking away from that allegation against him. No way. He can say, “Oh no, that’s not what I meant. I meant what Nina said”. But the commissioner’s going to look at him and say, “It’s not what the words say”.

Nina Hoang: But also that’s clearly not the reason he’s been terminated, ’cause he’s making a complaint about the process.

Andrew Douglas: Well no, I think Gavin’s comment goes towards it. I think there’s a risk, I think, if the procedure was perfect you’d bring a general protections claim.

Nina Hoang: Yeah.

Andrew Douglas: Okay? You’d probably, a plaintiff lawyer would probably bring a general protections claim in any event because the higher amount of involvement and the unlikely nature of him being reinstated given the conduct that he did. But the other issue here is clearly condemnation, can I just say?

Nina Hoang: Oh yeah.

Andrew Douglas: Yeah.

Nina Hoang: Massively.

Andrew Douglas: Yeah. So we’ll talk about condemnation the end if I didn’t make that a question ’cause I’ve not read my questions yet.

Nina Hoang: I don’t know. No you didn’t.

Andrew Douglas: Can we talk about condemnation now?

Nina Hoang: Yeah.

Andrew Douglas: So one of the things is, as bad as what he has done is, if it is behaviour that he’s done before it’s been accepted, or that others do the behaviour and it’s known that-

Nina Hoang: And they get away with it.

Andrew Douglas: And they get away with it. And remember there is clear evidence here that he has raised it and that part has not been investigated.

Nina Hoang: Yeah.

Andrew Douglas: I think they’re in real trouble.

Nina Hoang: Yeah, ’cause then it’s definitely harsh.

Andrew Douglas: Yeah, then it’s definitely harsh. So he could easily be, reinstatement’s difficult ’cause we dunno the seriousness of it but-

Nina Hoang: And there’s clearly a breakdown in the relationship, so.

Andrew Douglas: Yeah, it’s going to be hard. But interesting, isn’t it?

Nina Hoang: So was the investigative process independent and fair? Well no.

Andrew Douglas: So it comes back, so it’s definitely legal professional privilege that’s been wiped, okay?

Nina Hoang: Yeah.

Andrew Douglas: So now you’re looking just purely at the investigation.

Nina Hoang: Yeah. And I think the fact that you announced that the investigation’s under legal professional privilege kind of waives it all so-

Andrew Douglas: Well, it doesn’t really, you can say that, I can run an investigation and say, look, I’ve been engaged by lawyers to do an investigation. The investigation is privileged, but you will be given access to findings in relation to you. So that’s the law. You can do it under privilege and say-

Nina Hoang: But then once they get it, they can give a tell it, then doesn’t that waive privilege?

Andrew Douglas: No, no. But what happens is you then, it’s Bowker’s case that says at that stage you can’t not give people findings. So in Bowker’s case

Nina Hoang: Oh yeah, of course.

Andrew Douglas: They just said, no, no, no, it’s under privilege. You can’t see them, nah nah nah nah nah, you’re in trouble. They just wrote a letter, and in what the commissioner said, and then ultimately judge said in Bowker’s case is no, it doesn’t matter about privilege, you’re not waiving privilege by providing findings in respect of them.

Nina Hoang: Oh, okay.

Andrew Douglas: But you can’t do an investigation in respect of a person

Nina Hoang: And not provide findings.

Andrew Douglas: And seek to hide the findings in respect of the individual.

Nina Hoang: Yeah, of course.

Andrew Douglas: So very risky process, isn’t it? So once you disclose privilege, you’ve actually made a rod for your own back.

Nina Hoang: Yeah, ’cause it makes it seem suspicious.

Andrew Douglas: Yeah.

Nina Hoang: Like why do you need to have it under the-

Andrew Douglas: And that’s why the two step privilege process where they’re engaged independently by the client-

Nina Hoang: And also under privilege.

Andrew Douglas: And then hired by you through privilege works. But it’s a terrible investigative process. We haven’t put all the problems of Smout in there, but you can see different problems arising here.

Nina Hoang: Yeah, it’s not like they’re changing and removing evidence.

Andrew Douglas: Oh, no, no, and all I’m saying Nina, is I just want to raise these because I don’t think, I think maybe once a month we get one of these really compromised ones, and there’s only so much that we can do to cosmetically clean it for the purpose of litigation.

Nina Hoang: Yeah.

Andrew Douglas: ‘Cause once it’s done, it’s done.

Nina Hoang: Yeah, and the fact that they didn’t even check with other witnesses, like they really cherry picked the evidence.

Andrew Douglas: Yeah, I know.

Nina Hoang: That’s not great.

Andrew Douglas: Well look, any other questions?

Nina Hoang: Yeah, so was Jock’s psychological safety protected?

Andrew Douglas: No, it wasn’t. So if we look at psychological hazards, I threw that in ’cause it’s right in the middle of this you’ve got clear breaches of psychological hazard.

Nina Hoang: No.

Andrew Douglas: I don’t think anyone would be prosecuted.

Nina Hoang: No.

Andrew Douglas: But once again, you’ve got a psychological breach which gives a general protections claim.

Nina Hoang: Yes.

Andrew Douglas: So you’re often running with it.

Nina Hoang: Yep, so they’re screwed.

Andrew Douglas: They’re screwed.

Nina Hoang: Yeah.

Andrew Douglas: Well thank you very much for coming up to Mount Bulla with me.

Nina Hoang: No, no, it’s nice.

Andrew Douglas: You’re in a dorm. I’m in a house.

Nina Hoang: Yeah.

Andrew Douglas: Oh, lucky you.

Nina Hoang: It feels very different. But it’s big. Tom and I have to, it’s like a 10 person dorm or something. It’s huge. But it’s nice. So we’re very looking forward to it. But yeah, tune in next week where we’re back in Andrew’s office.

Andrew Douglas: There we are. Okay, thumbs up.

Nina Hoang: Yeah. Thank you, give us thumb up.

Nina Hoang: And thank you very much.

Nina Hoang: Okay, bye.

Nina Hoang: [Andrew] See you later, bye-bye.