Andrew Douglas: Major topic today is really about something, you may feel I’m a bit sick, that I’m a bit overly agitated, but we run a business across three states, and I have three different jurisdictions of safety. Two of them are WHS, but have variants arising.

I have three different workers’ compensation regimes. I’ve got now, in New South Wales, the Industrial Relations Court deciding to handle issues which in any other jurisdiction are a non-judicial jurisdiction. So they’re run by Fair Work Commission, who can arbitrate. So we’re getting these variations and it sounds like, “Oh, that’s nice. They’ve got that here,” but the cost of doing business in Australia is growing.

Kim McLagan: True.

Andrew Douglas: Simply as we try to deal with the idiosyncrasies of state and territory governments who think something’s a good idea. These people should just leave it alone. Like, what we need is consistency across legislation. And the nonsense that’s come out from New South Wales around bullying. Talk about what what they want to do.

Kim McLagan: So there’s a bill before parliament that they want to empower the Industrial Relations Commission to issue orders to stop workplace bullying and sexual harassment and they can award payments of up to a hundred thousand dollars to victims of bullying and sexual harassment and also impose penalties on companies and individuals who contravene the stop bullying and stop bullies.

Andrew Douglas: Yeah, and you’d wonder why you’d do that when you’ve got a safety legislation that does exactly that. Wouldn’t you?

Kim McLagan: Yeah.

Andrew Douglas: You’d just wonder, mm. I just, why do people wake up in the morning and forget to read the safety legislation when they’re doing something that has to do with safety? You know, like, the primary duties, the reckless endangerment, the industrial manslaughter, they are all there with very, very significant, yes, they don’t pay the person, and there’s a reason for that, because there’s discrimination law and there’s common law and all the remedies already exist. So we’ve just created another little quasi-jurisdiction to deal with something. So when the plaintiff law firm gets hold of this, they’re going to triple dip.

Kim McLagan: Mm. Yep.

Andrew Douglas: They’re going to just run around and have fun just doing different stuff. And what that’s going to do is create a huge cost to business. Not assist a plaintiff in any way at all. Not assist the regulator in any way. Every owner is going to be trying to do their own thing. What people crave for in law is simplicity and consistency. So once again, we’ve had Queensland government come in and roll back the sexual harassment provisions that were set into their safety legislation.

Goodness knows why they were there, but they were there. Similar to the Canberra, to the ACT ones. We have Safe Work Australia that sets out guidelines, what is good process. It’s funded well, it undertakes very detailed research, and it provides a coherent basis for managing safety law in Australia.

Victoria continues to ignore it. But wouldn’t it be nice if we just all agreed and therefore when we run our business, Kim, across three states, we don’t have to keep an eye out for all the idiosyncrasies that relate to one of our people in a different jurisdiction where we treat slightly different to another? It’s just nonsense. And it’s disturbing that we continue to do this. And it’s disturbing the state and territory governments, every time they come in, their political interests push back or move across. We’ve got a central authority that is based on evidence of best practise. We should just stick to it.

Kim McLagan: Yeah, agreed.

Andrew Douglas: All right, I’m going to get you to read the case study.

Kim McLagan: Heard your rant.

Andrew Douglas: This is you.

Kim McLagan: Give your voice a break.

Andrew Douglas: Yes, please go.

Kim McLagan: So, I just want to confirm, Dallas is a female.

Andrew Douglas: For the purpose of today, Dallas is a female, yeah.

Kim McLagan: Why you picked Dallas I have no idea.

Andrew Douglas: Oh, ’cause when I was a young boy, I had a crush on a girl called Dallas when I went on tennis camp. I was very short. She was very tall. She was three years older.

Kim McLagan: There you go.

Andrew Douglas: That’s it.

Kim McLagan: Too much information, all right.

Andrew Douglas: But she didn’t like me much. That’s why she copped shit in this. Sorry, Dallas. You probably can’t remember me now.

Kim McLagan: Oh, your wonders never cease. Okay, Emma was unhappy with her treatment by Dallas, her operational manager. Dallas had a habit of having a conversation, then following it up with a self-serving email that portrayed her as being in the right. Emma had sent several examples to HR complaining that Dallas was constantly gaslighting her and that it was affecting her mental health, future, and potential remuneration. Ken from HR discussed the concerns with Dallas and explained his worries about the impact on Emma’s mental health.

Dallas responded by saying that Emma was an underperformer who needed constant supervision, something Dallas had never previously raised, although she had marked down some of Emma’s subjective KPIs the previous year. Emma’s hard KPIs, however, were excellent. Following the HR meeting, Dallas called Emma and arranged a one-on-one meeting. They met in a conference room. Dallas told Emma that she had heard scuttlebutt or rumours that Emma had been complaining about her and said that if Emma had an issue, she should raise it directly with her.

Emma took the opportunity to raise her concerns, outlining several examples of what she described as gaslighting. Dallas sat straight-faced and tense as Emma concluded her remarks: “I just don’t feel safe with the way you change what I say and make it always look like I’m wrong, you are right, and I agree that I’m wrong.” I don’t understand that, but anyway. Dallas boiled over and then burst out screaming, “You are an ungrateful, useless waste of space. You are dead to me.” 10 minutes-

Andrew Douglas: By the way, Dallas never said that to me. She just ignored me.

Kim McLagan: Aw.

Andrew Douglas: Yeah, I felt like all that.

Kim McLagan: 10 minutes after the meeting, Dallas wrote to her boss, the CFO, stating that Emma was incompetent and dishonest and must go. She copied the CFO into an email she’d sent to Emma seconds earlier, which said, “Thank you for meeting with me. It is disturbing that you have fabricated such obvious untruths and failed repeatedly in the work I have given you.

I commend you for recognising this at our meeting today, but I feel there is now a significant breach of trust and confidence between the business and you, which needs to be addressed.” Emma left work after receiving the email and saw her doctor. The following day, she received a show cause letter based on Dallas’s email, requiring her to attend a meeting. It was signed by the CFO. Emma responded by sending a transcript of the meeting with Dallas and a link to the full audio. Emma had recorded the meeting. Okay.

Andrew Douglas: All right, so the first question is, was it lawful to record the meeting? And if not, would it still be admissible in any court or tribunal hearing? So, different jurisdictions, there’s five jurisdictions that deal with surveillance. There’s others that have oddities that sit around it. So they’re all basically different. But Victoria, okay for me to record Kim, but I couldn’t record a third person, okay? So I couldn’t sit at a window and record what’s being said by third parties.

But I have limits upon the use of that information once I do it. In every other jurisdiction, you cannot covertly record where there is legislation that controls, particularly New South Wales and Queensland, except for the exceptions that Kim has already raised. But can I just say, it’s not the point. The point really is, and you should have it in your own businesses, you should say, “Look, when conversations are being had, you must not covertly record a conversation.

To do so would be in breach of trust and confidence. It would be a fundamental breach of your contract.” Because we really can’t, particularly with modern technology, go round with people recording stuff because we’re no longer able to identify the edits that occur on it. It’s not easy. Even with experts, they struggle with iPhone editing. So it just mustn’t happen, okay? And if it does happen though, so here’s the rub, can I use it? Well, once you can demonstrate the authenticity of it.

So start time meeting was 10:19, finish was 10:23, and you’ve recorded that and that’s the length of it. Once you can demonstrate it is the recording, yes, it can be admitted under discretion if it’s probative weight, in other words, what it proves is so strong and it’s not prejudicial, okay? Now, the fact that it breaches trust and confidence makes it always a bit prejudicial and the fact that you don’t disclose you’re doing it makes it a bit prejudicial as well.

So it’s never going to be easy to get the evidence in. But it is commonly going to be admitted at times when you have sexual harassment. Where someone is doing it privately, then the probative weight is essential and the prejudicial is less, okay? So I just put that out there ’cause I think it’s an interesting topic that’s often missed, mainly ’cause most workplace lawyers have never been to court, so they don’t actually understand those things. All right, would Emma have had a good workers’ compensation claim?

Kim McLagan: Yes, undoubtedly. Even without all the history, just Dallas’s blow up in the meeting would be enough.

Andrew Douglas: Yeah, over the line. Other staff had raised similar concerns about Dallas. Is there a risk of safety prosecution? Additionally, could there be a safety-related discrimination claim? So let’s deal with the back end of it. All safety legislation says you can’t treat someone adversely as a result of them raising a safety-related issue. Patrick Stevedores’s case, $180,000 fine for a delegate who said, “Look, we’re not lifting this steel up correctly.”

They went and organised a contrived risk assessment, which said, “Oh, we’re all fine.” And he said, “I’m still not doing it,” they sacked him. This is a case where this would apply. And I just want you to remember it’s a reverse onus as well. And sometimes we think of safety as just the big hand that goes, bang, you’re off to jail, but safety law and workers’ compensation law has these catchall discrimination provisions of treating people adversely in all states. So I think that’s a risk, but I would’ve thought that the CFO and Dallas were in real strife, okay? And the organisation.

And certainly more than a primary duty breach. The CFO’s failure to address the lasting concerns about Dallas from other people means the CFO’s state of mind is complex and puts them in the reckless endangerment space. So, you know, interesting stuff. Would someone bring a claim, sorry, would a prosecutor pursue such a claim? Yeah, they would because this is the direct actions of an executive member in relation to somebody who’s clearly being bullied and for which there is objective evidence it’s occurring.

I think there’s a real problem with it. And this is close to where the Victorian Building Authority prosecution, and we still haven’t, the case hasn’t been heard yet, but it’s where they were going. All right.

Kim McLagan: Well, you’ve answered this next question. Did Dallas’s conduct constitute bullying? And could Emma seek a stop bullying order?

Andrew Douglas: Yeah, yeah, so it’s repeatable. So it’s three tests. Was it repeatable conduct? Yes. Did it objectively harm? Yes, it hurt, humiliated, intimidated, yeah, done what a reasonable person would, so. Did it affect her safety at work? Quite clearly. It’s bullying. Okay, how would you characterise Dallas’s decision to issue a show cause letter following Emma’s complaint?

Kim McLagan: It’s clearly victimisation, isn’t it?

Andrew Douglas: Yeah, it is. So in discrimination law, they actually talk about victimisation, but victimisation is a common law term as well and it happens wherever you treat someone adversely as a result of them threatening to or actually making a complaint about you. Here we have the set of facts where Dallas goes on the front foot, not only treating her a little bit adversely, trying to sack her because she raises these issues. And Ken should never have done what he did-

Kim McLagan: No.

Andrew Douglas: In doing it. So I think we forget victimisation is the money claim in discrimination law. So if you look at what general damages are, if you’ve got victimisation, they double. But the worst part of victimisation is the likelihood of serious injury following it are so significant. So when a person has the courage to step up and make a complaint and then they’re hurt for it, the likelihood of psychological harm is real. So I think they’re all my questions for today. We’ve done all right.

Kim McLagan: That was it.

Andrew Douglas: Yeah.

Kim McLagan: Well, well done you, despite your sore voice.

Andrew Douglas: Yeah, there we go. We’ll see you next week.

Kim McLagan: Yeah.

Andrew Douglas: Okay.

Kim McLagan: Bye, everyone.

Andrew Douglas: Bye-bye.