Andrew Douglas: This is our main topic, Nina, and it’s about Elisha and Vision Australia. I think, and I’ll talk about why in a second, this is probably the biggest case for the last year, and it will massively affect the way we manage discipline and we manage performance management. And it comes along with the Victorian Building Authority case, which says something different. So five years ago, employment law governed employment law. It was the only thing at play. Does that make sense?

Nina Hoang: Yeah.

Andrew Douglas: So how you’d manage someone was covered by the general group of employment law. This throws it out the window. So Elisha is a case of a guy who had an underlying and known mental health issue with anxiety and depression. For work he was at a hotel, this is back in 2015. It’s found it all that time to get through to the high court. He had an argument with a hotel person who reported to his boss.

Nina Hoang: Yeah, like he verbally abused them.

Andrew Douglas: Allegedly.

Nina Hoang: Yeah. Well as in, that’s what came out in the case, yeah.

Andrew Douglas: The HR manager comes down, speaks to the hotel manager, says sorry, goes back, stands down Mr Elisha, then sends him a show cause notice with an allegation that says –

Nina Hoang: Relating to the hotel incident only.

Andrew Douglas: “Only just limited the hotel incident.” But the decision is then made to terminate him, even though he denied vehemently the facts and circumstances around it. And the termination letter described a series of other concerns which were never put to him –

Nina Hoang: Yeah.

Andrew Douglas: which were not substantiated as truthful, but coloured the decision as well. ‘Cause they said there was a pattern of this aggression.

Nina Hoang: Yeah. But he’d never seen any of those allegation before.

Andrew Douglas: He’d never seen it. And they’d never found any of them. That was impressionistic stuff. So it doesn’t sound that exciting in a way, except overwhelming since adds Addis and Gramophone, a very old House of Lord’s decision, you could not claim psychological damages for a breach of contract.

Nina Hoang: Yeah.

Andrew Douglas: Now, was this a breach of contract?

Nina Hoang: Wait, sorry. I think you need to say, after everything that happened with that case he got major depressive order.

Andrew Douglas: He did. Yeah. So sorry. So he went to the unfair dismissal, they paid him out under a deed, the maximum amount they could pay him and they thought that washed it away. And then through a plaintiff’s lawyer, he went and brought a common law claim. And the common law claim said that the contract had been breached. It said the contract was breached because his contract said that he must comply with policies and procedure of Vision Australia. And Vision Australia’s obligation during that process were to appropriately investigate.

Nina Hoang: Yeah.

Andrew Douglas: And they didn’t. And unquestionably didn’t do it. Vision Australia said, “Well, look, we’ve done a deed go away.”

Nina Hoang: Yeah.

Nina Hoang: And the court said, you did a deed or agreement of release on the basis of an unfair dismissal claim, which only pleaded really the unfair dismissal claim, the normal parts of it. Can I say, it’s scary because I’ve done those agreements thinking they released a lot more. So I want you to know that is the first thing you change when you’re there.

Nina Hoang: Update your deeds.

Andrew Douglas: Update your deeds, and we’ll talk about that more another time. And when they came before the court, the first court, they said they were obliged, Vision Australia, to comply with the policy. There was a mutuality and they didn’t so it breached the contract, and therefore the injury I suffered, the psychological injury deserves to be compensated. First instance court of appeal said “No, we’re stuck by Addis’s case, you can’t do it.” Went to the high court and the high court said No of course if you do something that harms somebody by breaching contract they’re entitled to bring psychological damages. We’re talking about $1.4 million.

Nina Hoang: Crazy. It’s just overturned it all.

Andrew Douglas: It has. But what does that mean? And I guess this is what it means. One, the people that Nina and I argue against are usually trained employment lawyers. There is clarity and precision about what we’re doing. The difference between us is factual, and there is a customary series of behaviours that go towards settlement quickly, painlessly. We probably run one in every 15 cases, if that. This will now have a group of people who see this as a product, a common law product –

Nina Hoang: Oh yeah.

Andrew Douglas: they can sell, a no win, no fee product. So we’re going to see this boom of cases coming through, where at the unfair dismissal stage, it’s also being run by long employment lawyers.

Nina Hoang: So it doesn’t end at that stage.

Andrew Douglas: No.

Nina Hoang: No.

Andrew Douglas: And then it rolls onto this larger claim three to five years later. Yes you’re insured for it, not saying you’re not.

Nina Hoang: But it’s still going to be very expensive and take a lot of time.

Andrew Douglas: And if it’s commenced quickly, because in plaintiff land the speed at which you settle a matter is how plaintiff practise is measured. It means it is going to hit premium. So you’re going to max out premium during that period. There are very serious ramifications occurred to it. Another question that was agitated is, does your duty under negligence, ’cause that was pleaded, does your duty of having safe systems include investigation and disciplinary process? And the high court said “We’re not going to get drawn. That’s not the issue that’s here.” I just want to put that out there ’cause it’s on the agenda. They dismissed it and they weren’t interested in it. But this is a black letter high court. If it goes back to being a greener high court, more policy driven high court, they’ll grab that.

Nina Hoang: Yeah.

Andrew Douglas: And I just want you to remember on the other side of this case there is the VB, the Victorian Building Authority case that says you prosecute a process of discipline of redundancy when you know a person is injured, I’ll charge you with a reckless endangerment. So now we’ve got these two groups. We’ve got common law and we’ve got safety coming in, broadening the field on employment law.

Nina Hoang: Yeah.

Andrew Douglas: But most of all, broadening the powers of unions and plaintiff lawyers to engage in much more destructive, much more lengthy and hugely expensive litigation around what is a simple termination. Which had it have been done right, had the contract been right, didn’t incorporate the policies and procedure, the policies and procedure said you’re not incorporated, there was no management responsibilities in there and you followed good process when you did it, you would’ve won at the unfair dismissal stage and the commonwealth stage, and the safety stage. So there is a simple pathway through. That’s why this case is so important. Why don’t we go and have a look at the problem for today.

Nina Hoang: Yeah, but before we move on,

Andrew Douglas: I’ve missed something, hey?

Nina Hoang: I think, wait. Make sure you tune into Andrew and Tom’s thing where it’s a deeper dive into it. We only very briefly touch on the case.

Andrew Douglas: Yeah.

Nina Hoang: But if you want to learn more, then definitely check that out.

Andrew Douglas: Yeah, we’ll send a link out to that in this. Nina, over to you.

Nina Hoang: Alright. Case study.

Andrew Douglas: Not much time left I might add.

Nina Hoang: I have no idea what the time is. I’m so confused.

Andrew Douglas: Around about six minutes then.

Nina Hoang: Alright. “Gill had been unwell. She was the accreditation manager at an aged care provider. Two facilities had received show cause letters inquiring why they should retain their accreditation. Gill reported to Terri, the head of operations. Terri was furious about the risk posed by failure and accreditation, with the looming threat of defunding and closure.

She called Gill and told her she needed to see her immediately. Gill was working from home and offered to meet via Teams, but Terri insisted she travel in. In the meantime, Terri had spoken to Tom, the head of facilities management, her direct report, who told her it wasn’t their fault, it was Gill’s. He claimed she hadn’t prepared them properly and had been sick throughout the process.

When Gill arrived at work.” Why is it Gill, as a woman?

Andrew Douglas: Could be Jill.

Nina Hoang: Oh, okay.

Andrew Douglas: But anyway, I’m just going to let that go for welfare first.

Nina Hoang: But it’s a G!

Andrew Douglas: I know, but we’ve got a Gill who works for us. You know that don’t you?

Nina Hoang: Do we?

Andrew Douglas: Yeah, we do. Yeah. South Australia.

Nina Hoang: Oh, okay.

Andrew Douglas: By the way, sorry Gill.

Nina Hoang: Do you just use all these work people in here?

Terri kept her waiting in the anteroom for 45 minutes. Terri was aware that Gill had been very sick but was still working hard to help the business, even though she should have been off work. Terri’s PA then brought her into a room where Terri and the facilities manager Tom were sitting behind a large wooden table.

Terri asked Gill to sit down and explained how distressed she was about the regulators show cause letters, especially since the situation was all preventable. Gill explained that her lupus diagnosis during the accreditation audit combined with her sickness made the process very difficult. But she had worked through it for the business. Terri cut her off shouting that the problem rested with Gill, not the facilities managers. It was her incompetence.

Gill couldn’t believe what was being said. She asked, ‘How can you blame me?’ Terri responded that she had investigated and found it was Gill’s fault, even though the investigation was nothing more than Tom blaming her. Gill tried to explain that several of the failures were clearly not her fault, such as the CFO’s refusal to replace broken lifting apparatus in the geriatric wards, and each manager’s failure despite repeated entreaties to train and learn their own procedures. But she was interrupted when Terri said, ‘Tom is investigated and found it’s your fault. We have no choice but to terminate your employment immediately.’ Gill suffered a severe panic attack and collapsed. They called an ambulance and Gill spent several days in the hospital recovering and receiving inpatient support as the panic attacks kept returning.” Gosh that was long.

Andrew Douglas: That’s hard, and you didn’t breathe, I thought that was good.

Nina Hoang: Yeah, because it’s just so long.

Andrew Douglas: Can I just ask the first question? Does Gill have a workers’ compensation?

Nina Hoang: Oh yeah, definitely.

Andrew Douglas: So the answer is just ticked. That’s so obvious. And then we don’t need to tell you why. But can I just say, if you’re struggling with it, it’s called reasonable management action. Was there a safety breach by Terri in the business? Psychological hazards. It’s got ‘them all, hasn’t it?

Nina Hoang: Yeah.

Andrew Douglas: The failure of internal fairness,

Nina Hoang: Lack of support.

Andrew Douglas: Lack of support. Lack of appropriate process.

Nina Hoang: And was also aware that she’d been sick and was forcing her to work.

Andrew Douglas: Yeah, it’s not good is it. Does Gill have any remedy under the Fair Work Act? I think she’s got them all.

Nina Hoang: Yeah, definitely in general protections.

Andrew Douglas: And definitely unfair dismissal. Do you see how we’re going with this? This is a problem, and I know you probably got all those answers, but the next question is, so the moment you’ve got an exposure of maybe 30,000 under unfair dismissal, probably around as an absolute maximum in it, you’ve probably got a claim with special damages for general protections, maybe 150 to 200,000. But psychological injury claims at common law, because general protection hasn’t kept up with common law.

Nina Hoang: And a descrim case too.

Andrew Douglas: Yeah, and you got a descrim case. You’re upwards of a million dollars.

Nina Hoang: Yeah.

Andrew Douglas: Isn’t that amazing? And your premium during that time when the claim is brought in the first review, when other jurisdictions within five years that hits it’s premium. This is a massive premium hit, okay? And look, the last thing that’s not there is, were they negligent in the way that they treated it? They breached a duty of care. Can I just say they did breach a duty of care, it’s the traditional one, which is they failed to exercise reasonable care to prevent foreseeable injury.

Nina Hoang: Yeah, they exacerbated it .

Andrew Douglas: So that ties back to the damage, which is psychological. But I’m just saying that’s the breach in negligence. And the breach in negligence of psychological injury’s always been present.

Nina Hoang: Could there be like a breach despite, oh no. There would be nothing in the contract to keep you safe.

Andrew Douglas: Well, there might be. And so there are often obligations to set out, particularly in senior executive ones which have a series of obligations around safety. Could be, could be. But I think a fascinating case study.

Nina Hoang: Cause you wrote it?

Andrew Douglas: I did write it actually. You knew that didn’t you? And lovely to have you back.

Nina Hoang: Yeah, it’s nice to back.

Andrew Douglas: Do you have your head to the grindstone? I’ve never been allowed to use those. When you put your head to the grindstone?

Nina Hoang: What are you talking about?

Andrew Douglas: That’s just me.

Nina Hoang: I think that means that’s the end of the first one.

Andrew Douglas: And that means how hard you’ve been working, sorry. But it is the end of the first one. And thank you very much.

Nina Hoang: Give us the thumbs up –

Andrew Douglas: Give us the thumbs up.

Nina Hoang: to show that it’s worth it.

Andrew Douglas: And we will send you Tom and my link as well.

Nina Hoang: And we’ll see you next week.

Andrew Douglas: See you next week. Cheers.

Nina Hoang: Bye.

Andrew Douglas: Bye bye.