Andrew Douglas: I think we’re onto the major topic now, are we, or have I jumped on-
Jim Babalis: No, no, we are-
Andrew Douglas: We’re onto the major topic.
Jim Babalis: Yep.
Andrew Douglas: Okay. This is me who put this here because we act for a whole lot of businesses that do exist either in Asia and Australia or in Australia and New Zealand. This is Sanderson and Brightest. And this is a, again, a case of somebody who’s working overseas, doing work overseas for an Australian-based entity. Now, you happy to go with this one or do you want me to keep going?
Jim Babalis: I think you love it, so you can do it. But I mean, there’s something I like about this, but we’ll get to it.
Andrew Douglas: You’ll get to it. Okay.
Jim Babalis: Yeah.
Andrew Douglas:- So the issue here is in contract law.
Jim Babalis: Yeah.
Andrew Douglas: That the place of the contract is the place of acceptance, okay? And there was all sorts of, when we went through first year Cheshire and Finfoot, if you can remember the textbook, when we’d have all those exceptions-
Jim Babalis: That brings back-
Andrew Douglas: Try to bring back those bad-
Jim Babalis: That brings back bad memories.
Andrew Douglas: Where we have all these different tests based on the nature of how you communicate, whether it was by telephone, whether it was by fax, whether it was by signed contract. So if you signed a contract in New Zealand and that was the acceptance of the contract, then New Zealand law would apply.
Jim Babalis: Yep.
Andrew Douglas: Okay? That’s the old law. If it was the transmission of that document and the receipt of it that gave rise to the employment contract being accepted, the place of receipt. Okay, so that’s the rule.
Jim Babalis: Yeah.
Andrew Douglas: Here, because the place of receipt of acceptance was Victoria, and there was a jurisdictional clause that said the law of Victoria shall apply. Although this person was working, selling, this is an unfair dismissal claim. Was selling in New Zealand and missed their targets. I think they had to get 75 and they only sold 38, whatever the time was. Brightest Australia said, “Well, look, unfair dismissal jurisdiction doesn’t apply to New Zealand employee.” I tell you what, that was… I can’t say the words. That was dumb, because if you understand the unfair dismissal jurisdiction over in New Zealand, the outcome would’ve been a lot worse for them.
Jim Babalis: Yeah.
Andrew Douglas: But the reason I’m raising this case is, for this reason, the safety law. So we’ve established through this case, workplace law applies to people mainly temporarily absent from Victoria, if it was Victoria, temporarily absent from their jurisdiction in Australia, or where it’s very clear there is a jurisdictional clause that ties it to a particular state or territory, and where the acceptance occurs in that state or territory.
So you can see how important this is in your contract of employment. The world becomes much more complex after that. ‘Cause if we look at discrimination law, same. Okay, you’re safer there, but you get to work as compensation. The connection’s much more tenuous. And so part of choosing the law or the jurisdiction that applies in your workers’ compensation, you must be absolutely clear that the clause does say the state of Victoria. And there is some case law that says where the absence is not temporary, but long term it may not be. An Australian jurisdiction. In safety law, it’s even more confused because both jurisdictions apply.
So the jurisdiction of Victoria applies in this circumstance in safety, but also the jurisdiction of New Zealand. Now you can see, given the recent cases in New Zealand and Victoria, and New South Wales, and Queensland, for that matter, around what are the obligations, the safety regulator towards behavior, which is unreasonable, unfair in performance management discipline. You can see how dangerous this could become because you could have two jurisdictions arguing. New Zealand WorkSafe or Safe Work and WorkSafe Victoria saying, the manner in which you are managing this process improper. You could get a prohibition notice in both jurisdictions.
You can get prosecuted in both jurisdictions. Now that’s not something that the law is designed to actually manage because the law sitting in different jurisdictions doesn’t have a double jeopardy element. So you could end up in four different jurisdictions, ’cause the crimes act in each jurisdiction also applies, rather than just normally where you are. So how important is a contract? How important is that contract that says the place of acceptance is the jurisdiction? And it does say the jurisdiction. So there you go. I’m sorry I went too long.
Jim Babalis: No, no, no, no, no. You hit a couple of points there. I think the jurisdiction argument was obviously the key component and the most interesting. But what I found really unusual about this case, and I think from my perspective, this is where part of the problem that also exists. The performance descriptors, though, were New Zealand-based. So-
Andrew Douglas: Yeah, right.
Jim Babalis: ‘Cause if you actually, and that’s the first thing that really rang out for me when I thought, “Oh, I’m not sure if I agree with this.”
Andrew Douglas: So which were the performance way?
Jim Babalis: Well, the performance indicators were the sales targets were all New Zealand-based. Yes, it was a contract that was clearly executed here. Victoria was the jurisdiction. You could say the legislation applies. But if you’re actually thinking about it, if this person was being terminated, whether they’re being terminated based on work performed in New Zealand.
Andrew Douglas: Well, let’s test it, okay, because remember the four corners of a contract, right, Cheshire. So remember the choice of law, which law applies is different from the performance of the contract. So if the person was in Victoria, but selling in the New Zealand, we wouldn’t worry about it at all. The four corners of the contract sits around. First of all, what is the law that applies? Secondly, how do you execute against the performance? What are the termination provision? But I think it’s really interesting, and this case does sit just on the edge ’cause this is a permanent employee. A workers’ comp claim for him would’ve been really complex, and a safety issue would’ve also been really complex.
Jim Babalis: I think it’s going to open up a little bit of a can of worms, I think, Andrew.
Andrew Douglas: You like can of worms.
Jim Babalis: Yeah, I do.
Andrew Douglas: It is one of your favorite sayings.
Jim Babalis: I do, I do. But particularly, people, for argument’s sake in the IT sector, software programmers who work across jurisdictions, this will be interesting.
Andrew Douglas: Well, we are dealing with cases like this just at the moment and we’re particularly dealing with cases who would be deemed to be an employee in Australia, but can be in a contractor in another jurisdiction where Australian-based business are hiring people under Australian law jurisdiction, treating them as contractors, when under Australian law, they’re employees. My, oh my. Where do we end up with that? And because we’ve got a globalized world, the answer is, we’re going to end up with a lot more disputes. So, please, when you’re applying Australian law, get it right.
Jim Babalis: Yep.
Andrew Douglas: And make sure that your contracts are right, and your methods management and performance management are right. So let’s take that for a bit of a run. Okay, let’s do the case study.
Jim Babalis: The case study. Absolutely.
Andrew Douglas: I think our case study’s going a bit slow on the screen, so I might speak slowly and do it, okay? Adrian sat at the Crab Shack in Wellington, eating Bluff oysters and Greenland snow crab with jalapeno creme fraiche. Now I speak in New Zealand every May to get Bluff oysters, ’cause they are the best in the world. Sorry, I just thought we’d get to it. And that’s where I go to eat them. Musing whether crabs would leave if Trump took over Greenland.
He heard a ding on his laptop and saw his contract as IT manager for Sixties Super, a boomer SMSF trading platform appear in his inbox. The contract specified Victorian law as the governing jurisdiction, and acceptance of the contract was deemed to occur upon receipt of the signed contract through DocuSign at the Melbourne office. His place of work was his Wellington home for the next six months, after which he would relocate to Melbourne. He signed the DocuSign contract, which landed in the HR manager’s inbox in Melbourne two minutes later. Adrian had worked as a consultant throughout the world for many years. He worked whatever hours were required to deliver a solution.
Heather, the operations manager and member of the executive team, never warmed to Adrian. He never seemed to be available. Adrian, in turn, found Heather to be a micromanager who needed instant gratification. You could not simply drop critical IT risk issues when clients depended on instant access to a platform, just because Heather wanted to chat. However, Heather was relentless. When she could not get hold of him for a budget meeting with only two hours’ notice, she approached the CEO. The CEO sent Adrian a Teams message instructing him to make time for Heather. So he did. However, the meeting went on for two hours, resolved nothing, and delved into details that were irrelevant to Adrian. Frustrated and stressed, he excused himself and immersed himself in the team’s defense against a hacker.
They successfully repelled the attack and celebrated remotely with pizza and beer. Adrian later received an email from HR requiring him to attend a meeting with HR and Heather. Attached was a detailed complaint listing all of Heather’s attempts to contact him and his departure from the recent meeting. However, it made no reference to his emails attempting to make time, understanding the purpose of the meeting, or request details of what Heather wanted to discuss. The meeting began calmly. Don from HR outlined the concerns. Adrian forwarded the relevant emails and attempted to find a practical way forward, while Heather remains silent, visibly angry and hostile towards him. Eventually, she said, “This remote work arrangement is not working.” Adrian can feel a familiar emotions returning.
He had previously taken six months off work due to anxiety and depression following a damaging engagement with a US start-up, and the same feelings were resurfacing. He said that he needed to leave the meeting because he could not cope with the comments like that and told Heather to read the contract. 20 minutes later, he received a notice from Heather requiring him to attend a disciplinary meeting, citing his alleged rudeness and his failure to remain in the meeting with Don and Heather.
The disciplinary meeting went badly. Adrian had not slept. Even over Teams, it was apparent that he had been crying and was unable to concentrate, and was visibly distressed. When he refused to respond to Heather’s allegations, repeatedly saying, “Stop bullying me,” she abruptly ended the conversation. 10 minutes later, he received a notice terminating his employment. His employment was covered by an enterprise agreement underpinned by the Professional Employees Award, although his salary with 320,000 per annum plus superannuation.
Jim Babalis: Andrew, I’m going to jump straight into the questions. Does the OH and S Act apply to Adrian? And if so, has there been a breach and by whom? Does New Zealand health and safety legislation also apply?
Andrew Douglas: So the answer is yes to both of them. And that’s part of the complexity of this case. But, certainly, Heather is in breach of her primary duty. She’s not exercised reasonable care.
Jim Babalis: Mm.
Andrew Douglas: To prevent harm to others, her behavior is harmful. It clearly breaches what the four university’s cases. And the most modern legislation says that managing people, when they put their hands up and start to show, that it’s affecting them emotionally, she should have stopped, stopped, walked away. Nothing that gets to reckless endangerment at that stage, and there’s a primary duty breach by the organization itself. New Zealand would not prosecute, whether there was an Australian prosecution admit to him, but it could. So let’s go onto the second question, and I’ll read this one out. Does Victoria’s workers’ compensation law apply to Adrian, and could he bring a successful workers’ compensation claim? And the answer is yes.
Jim Babalis: Yes.
Andrew Douglas: Okay? Temporary. So temporary employee, going to work in Victoria when he comes back, signed up at a Victorian contract, has been mentioned in court. In the premium Victoria, there’d be no difficulties about it. Adrian has engaged a lawyer to bring a dismissal claim. Does he have a viable unlawful dismissal claim or general protections claim? Jim, over to you.
Jim Babalis: Yes, I believe so.
Andrew Douglas: Yes in both. By raising the bullying, he’s raised a workplace, right?
Jim Babalis: Yeah.
Andrew Douglas: So he’s right there. As he was paid above the high income threshold, did it prevent the unfair dismissal claim? And the answer is, he’s an enterprise agreement. So by being an enterprise agreement underpinned by the award, probably badly drafted but approved, he’s still got an unfair dismissal claim. And question five, if there ever was a question five, and there’s not. It’s goodbye. So there’s no question five. Thank you very much for watching today. Thanks, Jim. Always a pleasure, mate.
Jim Babalis: Thank you.
Andrew Douglas: Cheers.
Jim Babalis: Of course.
