Andrew Douglas: This recent case that’s been charged in South Australia. What’s happened is importantly for us, that this is somebody disabling a lockout, a known issue that was raised, saying, “I’ve seen that lockout’s been disabled,” all that sort of stuff. It’s classic fatality. It’s an awful fatality that occurred. Two directors have been charged under workplace manslaughter. It’s potentially 20 years jail over there. One operations manager has been charged with a similar reckless endangerment, five years jail. Significant fines that attach to both. Why is that important in South Australia? South Australia’s never done that before.

They’ve only got one or two reckless endangerment charges that exist there. They’re a much stronger workers’ compensation jurisdiction because the different law than they are is safety jurisdiction, and they’re wildly undermanned in their safety jurisdiction. So, not many prosecutions, not many high fines, but gee, when they get going, they really do. And if we go back to when WorkSafe in South Australia came across Colbert, which was the owner of a truck company. He’d previously been a driver and directed someone to drive a truck with known foul brakes. They went through the Crimes Act or the equivalent of the Crimes Act over there, and Colbert ended up with nine years jail. So they sort of go in hard when they have to.

So I wouldn’t want to be these guys when it happens, and the courts are strong. But we’ve seen only two other jurisdictions where we’ve seen significant cases. We’ve seen the growth of the jurisprudence in Queensland particularly, and the most recent case was $7.4 million fine that exists up there. And five years jail, 18 months, which is suspended. So Queensland is the place with the most serious ones. We’re starting to see the emergence of that jurisprudence in Victoria. There’s now four cases ranging between $3 to 3.4 million. But I think you and I have said a million times, what happens is regulators start off doing low punishments.

Jim Babalis: Yeah.

Andrew Douglas: Primary duties. They move up to the next one. So there’s been probably in the last five years, 50 reckless endangerment charges. Prior to that, there was one, Orbit Drilling, for the whole history of when it’s been in. We saw one industrial manslaughter case in Queensland around about four or five years ago. And suddenly, we’ve now got nine. And that’s going to go fast. We saw the Canberra Hospital where everyone traded down from it. But my point about this is we’re now at that stage in Australia where every jurisdiction will look to the jurisprudence in Queensland and Victoria to determine sentencing.

Jim Babalis: Yeah.

Andrew Douglas: So it means, if you make a mistake in another state, you’re not starting off at the low level, you’re starting off at the median level.

Jim Babalis: Yeah.

Andrew Douglas: And I suspect we’re going to start seeing penalties much more like $10 million. And we are going to see genuine jail terms of four to five years given out over the next couple of years. So, it’s me who put that in.

Jim Babalis: No, no, no. And it’s interesting. I mean, I still think obviously the potential penalties in this one are getting, you know, the risk of it being significant are there.

Andrew Douglas: Oh look, and they’re well under way there. So you know, Victoria, you know, 25 years jail, nearly $20 million. Northern territory, life imprisonment. So there, you know, we saw what happened with Canberra Hospital where the penalties are incredibly low. And ACT are addressing that, and we will start to see sentencing provisions that exist in ACT, which parallel other states. But most states are over 15 years in jail and over $10 million. So, it’s serious stuff. Do you want to read this? Because you’ve got the newsreader voice.

Jim Babalis: I’ve got the newsreader voice, so here we go. So our case topic for today. “Nick’s wife has been unwell for several years. She had an immune disorder that meant she was at high risk of infection. Nick disliked being at work because it increased the likelihood of bringing an infection home. Candice was his manager, and to try to accommodate Nick’s circumstances, staff were required to wear face masks in meetings if they had any symptoms, and Nick was allowed to work from home at least two days a week.

Nick was the internal IT manager and Candice needed him in the office to support staff with hardware and software issues. Allowing him to work from home two days a week was already a significant accommodation. As Nick became increasingly anxious about his wife’s deteriorating health, the quality of his work declined and he became more irritable. Jodie was the helpdesk IT officer, reported to him. She was new to the role and had not yet developed the diagnostic skills that Nick had gained through years of experience. Nick became increasingly frustrated by what he considered her inability to resolve relatively simple technical issues. His emails and Microsoft Team messages became brusque, unsupportive, and unnecessarily direct.”

Andrew Douglas: That could have been me. Who wrote that? I think I did. Sorry, that was just drawing upon me. The mirror is a dangerous place.

Jim Babalis: That’s okay. Might not explain my issue with Teams this morning, but we’ll leave that aside for the time being. “Before long, Jodie began taking significant personal leave, increasing Nick’s workload and making the situation even worse. Candice met with Nick to discuss his increasingly hostile and destructive behavior towards Jodie, as well as his declining performance. A PIP was developed that was fair, well-resourced, and built around deliverable measurement. Nick reacted poorly to the feedback.

The following day with the support of a medical certificate from his doctor stating that he had a medical condition requiring him to work from home, together with caring responsibilities for his wife, Nick submitted a flexible working request seeking to work from home full-time. Candice wrote to Nick requesting a meeting. She explained that the inherent requirements of his role required him to be physically present in the office at least three days each week. She also advised that she intended to contact his doctor to better understand his ‘medical condition,’ quote, and identify any reasonable workplace adjustments that could be made. She invited Nick to discuss the request further.

Nick refused to attend the meeting, stating that he felt unsafe. In the meantime, Nick repeatedly failed to meet the service delivery KPIs under the new PIP. He also began arriving late and leaving early, explaining that he needed to take his children to and from school. Nick was directed to attend to a further PIP meeting. During the meeting, Candice addressed his ongoing failure to meet reasonable performance expectations and raised concerns about several abusive and disrespectful emails he had sent to Jodie, who was now absent on personal leave for a week. At the PIP meeting, Nick blamed Candice. He alleged that the PIP process had made his workplace unsafe and that Candice had shown no regard for either his health or his wife’s health. He then stormed out of the meeting.”

Andrew Douglas: Good, you said that well. That was very good. It’s a long one, wasn’t it?

Jim Babalis: It’s a long one, but obviously within… just the general theme of some of the earlier cases we discussed.

Andrew Douglas: Yeah. No, I think so. I try to do that. I’ll do the best I can.

Jim Babalis: So I might just jump into the questions.

Andrew Douglas: Yeah, you go.

Jim Babalis: Let’s do a fire approach.

Andrew Douglas: Okay.

Jim Babalis: Okay.

Andrew Douglas: You want to say it? You go. Come on.

Jim Babalis: Here we go. “Does Nick…” Sorry, Andrew, let’s start from the top. “Does Nick have a valid workers’ compensation claim?”

Andrew Douglas: No.

Jim Babalis: Absolutely. I’ll be shocked.

Andrew Douglas: Yeah, and that goes… No, no, no. Look, I think it’s really interesting because probably in one jurisdiction, there is still an ongoing lingering risk in the New South Wales jurisdiction where as part of a performance management, the subjective perception can be relevant. It’s not relevant anywhere else. So New South Wales, there’s an element of risk, but everywhere else, it is, both Victoria, usual and typical sort of stuff. And more importantly, it’s reasonable management action. So no. So the next question was, “Was Candice’s response to the Flexible Work Request reasonable? What should she do next?” Interesting one. I think it’s exactly what she should have done because she said, look, this is where our rough position is. We want to discuss it. He refused to attend.

Jim Babalis: Yeah.

Andrew Douglas: So for what she should have done next is give it direction to attend to have the discussion. I don’t think what happens next is terribly surprising when we go through the questions. What I’m saying is, just because something goes wrong in a process, don’t stop.

Jim Babalis: Yeah.

Andrew Douglas: Section 61 sets, 61 or 65, I forget the Flexible Work Request, sets out the process. And the process is you provide it, you respond, and you acquire a meeting. Failure to attend a meeting is a statutory breach of an obligation of fairness.

Jim Babalis: Yeah.

Andrew Douglas: And therefore, you don’t tolerate it because you can’t formalize your response until you’ve had the discussion.

Jim Babalis: Yeah. And interesting, I think there’s the background to the PIP tying into this was there as well.

Andrew Douglas: Yeah.

Jim Babalis: So it’s not exactly like he’s been caught by surprise.

Andrew Douglas: Not at all. Not at all. “Does Nick have a valid discrimination, General Protections, or Flexible Work claim?” And I’m raising that around his own health-related issues. So is the decision Candice made in relation to saying, “I’m rejecting at the moment, but I want to talk to you about the Flexible.” That’s all she’s done, and do a PIP. Was that in any way adverse action? And did it relate to a prohibited reason? No, for General Protections. Was it correct in relation to Flexible? Yes, it was. Did it treat him adversely as a result of a protected attribute? At the moment, nothing that she does goes to his physical or mental health. It goes towards his performance. So the answer is no, no, no. All good news for the employer.

Jim Babalis: Yeah. And then we’ve got the next one, which is, “Is Candice and the business exposed to liability under the work health and safety laws for failing to adequately protect Jodie?”

Andrew Douglas: Absolutely. And that’s, can I just say, the stage you know someone is being harmed. If we talk about reckless endangerment, is there an imminent risk of injury to someone? A high level of risk? Absolutely. We know Jodie’s being hurt. Were you indifferent to it? Were you careless? What action have they actually taken to stop him doing that? The answer is none. So, if Jodie were to die as a result of this, you write down workplace manslaughter, industrial manslaughter if you’re outside of Victoria.

You’re certainly close towards reckless endanger, but you have absolutely failed, and Candice has failed to exercise reasonable care to prevent foreseeable injury. Common law? Failed to exercise reasonable care to prevent harm. Section 20… 20… God, I keep doing this. 25 here. And similar provisions elsewhere. That’s an obligation of an individual. Organizationally, you know where the hazard is, so it’s breach of reasonable and practical. You know there’s a hazard, you know the level of risk, you failed institute of control to provide a safe workplace.

Jim Babalis: As well as remove the risk.

Andrew Douglas: Yeah. Yeah. So they are at risk.

Jim Babalis: Yeah.

Andrew Douglas: “Could Candice and the business lawfully terminate Nick’s employment based on his performance failure to meet the PIP requirements and his behavior towards Jodie?” That’s the answer, isn’t it? And that’s why we did the PIP case today. They’ve done everything right.

Jim Babalis: Yeah.

Andrew Douglas: In the sense towards Nick, they have, perhaps not towards Jodie, but they’ve done everything right. They’ve said what the problem is. They’ve provided the measurable process. It’s reasonable and fair. He has failed at every level to do what he’s been directed. And remember, a PIP is a process of lawful and reasonable direction, which throws you to what is serious misconduct, which is the failure to comply with the lawful arrangement.

Jim Babalis: And it’s a step process to get to termination.

Andrew Douglas: Yeah. So I think it’s okay. “What legal and practical risks arise from Nick’s medical certificate, his own health, and his wife’s health? If his employment is not terminated, how should those risks be done?” Now see, this is the interesting part.

Jim Babalis: Yeah.

Andrew Douglas: And I guess you and I say it all the time. Don’t keep trying to dodge the bullet.

Jim Babalis: Yeah.

Andrew Douglas: This is a termination, fair and square. But if you don’t do it, I’m afraid it turns to shit really… That’s not the word I should use.

Jim Babalis: No.

Andrew Douglas: No. It goes badly very quickly, doesn’t it? Because you start to play back into the narrative, and therefore, you are going, so… I’m going to have to go and get you independently assessed.

Jim Babalis: Yeah.

Andrew Douglas: I’m going to have to do a whole lot of things. And moment I do that, I’ve polluted the clarity of the wrongdoing. What has he done that’s wrong? Failed to comply with the PIP and is abusive and rude. What is the breach of? It’s breach of the law, statutory law. It’s a breach of your policy’s code of conduct. What impact is having? Very, very significant impact on both business and Jodie. What’s his answer to that? He doesn’t actually have a good answer to that.

Jim Babalis: No.

Andrew Douglas: So it has to be termination. But the moment you step away from it, you’re left in this terrible situation that the world becomes murky very fast, and you’re enlivening all the actions, all the problems that we said you don’t have.

Jim Babalis: Yeah.

Andrew Douglas: So, that was the reason for that question. Now I need to let you get on a plane. Okay, you ready to go?

Jim Babalis: I, just about, I think.

Andrew Douglas: We’re not going to see for a month or so, which is sad, but…

Jim Babalis: But I’ll be online.

Andrew Douglas: He’ll be online. All right, guys, thank you very much.

Jim Babalis: Thank you.

Andrew Douglas: Cheers. Bye-bye.