Andrew Douglas: We’re going to talk about Ballarat Health Services and the coronial inquest that occurred. And once again, if I can just remind you, we are going to talk about the death of a person in this, and if you–

Kim McLagan: By suicide, I think.

Andrew Douglas: By suicide.

Kim McLagan: It’s important that we mention that.

Andrew Douglas: Yeah. And if you’re uncomfortable, please don’t watch further from it. All right, we’ll give you a chance. We’ll now move on. This is pretty troubling. I read the inquest findings. This was a woman who worked in the accounting area. She’d had a pretty dreadful experience over a prolonged period of time. There was no doubting that her mental health had declined. She put in a workers compensation claim, that was accepted. On her return to work, her new boss was aggressive. That was her view of it.

When the coroner came in to investigate, because when she did come back to work, back to full pre-injury duties, she was immediately given a job, which was highly complex and shortly afterwards, she took her life. When the inquest was being undertaken, there was an acknowledgement by Ballarat Health Service that this area was a toxic area, that it was full of favouritism, that there had been not only unkindness, but aggression, rudeness, a range of behaviours which were just abominable and they weren’t just one offs, they were a whole culture.

The tragedy of this is that a person lost their life, and I think we need to stay at that and say, this is what happens when you treat people in a cumulative, awful manner over a period of time in an organisation, which is unforgiving. And I think that is terrible and people should understand that psychological hazards is not a nice phrase, it’s not yoghourt and yoga, it’s too easy to trivialise it. This is an example of what it’s really like when it does get out of control and this is the impact it has.

But the reason I’m raising this case today is not because of any of that, it’s to say, we’ve just talked about two cases, one reckless endangerment, one workplace manslaughter. This is at the high end of a workplace manslaughter, okay? This is where there is a state of knowledge inside an organisation of a highly dangerous culture that hurts people, where there’s abundant evidence that people are being hurt and that the vulnerable person has been hurt and deserves care and is not given that care, I think that’s middle to upper level industrial manslaughter, I think, to the relevant person who is responsible as an officer and had the knowledge of that, there’s a risk of jail, but for the organisation fines in the four to five to six million dollars.

And I think that as you hear this you should take it away as an organisation and go, do we have any pockets that are like that in our organisation? Are there people who behave badly? Because it started off by people behaving badly a little bit was condoned, and then they built cliques of people who could behave badly and that was condoned. The trajectory is really well known. We all know it because we all went to school. We’ve all seen it at school. We know what it’s like at work.

But in this case, we’re leading towards the death of an employee and I think towards the imprisonment of somebody and really serious fines. So there’s not a lot more, I think, that we can say about it other than this is a terrible tragedy, but it highlights the difference between seven years ago and now because seven years ago nothing happened. There was an improvement notice issued.

That’s it. Now, there would definitely be reckless endangerment prosecution, if we look at the VBA case as an example of a prosecution, for much lesser, although that involved death as well. But for much lesser behaviour, much lesser corporate risk. This is profound risk, and I think would probably go higher than reckless endangerment and we’d see industrial manslaughter. So why don’t we go and test that a little bit on the case study and again, the case study has similar risks, so again, relates to suicide. So if people could just be mindful of that before they proceed further.

Kim McLagan: Okay, thanks, Andrew. So Rachel was a project manager at Super Duper Design. Her role involved designing air conditioning systems for large commercial premises. Sammy was the CEO. He was the son of Ted, the original owner. Sammy had grown the business by heavily leveraging it through debt equity. His father had been a direct simple man who built a successful business through strong relationships with major commercial builders and a team of hardworking men and women. It was a tough but close knit culture, and that culture changed under Sammy.

Sammy was mercurial, he liked… Sorry. He liked to use the consultants from major firms micromanaged everything and his emotional volatility meant that few dared to challenge him. The project consisted mostly of people from firms like Deloitte and PWC. They were high performing, hardworking, and driven to succeed, but none of them were used to Sammy’s management style. It caused significant stress, as he would frequently change direction, assign blame, act rudely and aggressively, and never offer praise or rewards.

Rachel had led the team, working on large public enterprise projects. She had successfully secured tenders for major initiatives and was well respected in the business community. She was direct, honest, and deeply committed, but Sammy had worn her down. His emails arrived at all hours of the day or night, often critical and blunt in tone, his phone calls were filled with bluster and harsh criticism, and his expectations were often unrealistic and unhelpful. Rachel’s marriage was falling apart, she couldn’t sleep.

During the most important pitch of her career for the Melbourne Arts precinct refurbishment, Sammy pulled staff from her team. One day she collapsed at her desk. Struggling to breathe and overcome with emotion, she fell to the ground. Her team gathered around her and she sat crying and visibly distressed. She went home and saw a doctor who diagnosed her with severe anxiety and confirmed that she had suffered a panic attack. The doctor prescribed rest, sleeping tablets and anxiolytics.

Andrew Douglas: Anxiolytics.

Kim McLagan: Anxiolytics.

Andrew Douglas: Anxiolytics, yeah.

Kim McLagan: Thank you. Anti-anxiety medication would’ve been so much easier, Andrew, but anyway.

Andrew Douglas: , it’s my health background.

Kim McLagan: Sammy heard about the incident and expressed concern. However, when Rachel didn’t show up to work the next day, having overslept due to the medication and failed to notify the office, he sent a text message. “Sorry about yesterday, but if I don’t hear from you in the next hour, I’ll have to get someone to take over.” When she read the message, she collapsed onto her bed, overwhelmed by despair and terrible thoughts entered her mind.

The following day, she returned to work, having sent Sammy a doctor’s letter explaining that she was emotionally fragile, needed care, and was suffering from serious psychological issues that needed care. In her email, she told him that she would return to see the project through, but would require time off afterward. Sammy attended the team meeting that morning. Her colleagues greeted Rachel with kindness, hugging her and offering warm words. When Sammy walked in, speaking loudly, he said,

“As you know, Rachel is mentally knocked around and can’t lead the team at the moment, so I will. She’s struggled with timelines and the stress of the job, so from now on, you all report to me. Rachel, just take it easy.” While perhaps meaning to be supportive, Rachel was devastated. She sat in the restroom staring into space consumed by dark thoughts.

Andrew Douglas: So question one, does Rachel have a workers compensation claim?

Kim McLagan: Undoubtedly.

Andrew Douglas: Undoubtedly. I’m sorry this was a long one, but I had to get all the facts in there. Okay. Does Rachel have a general protections or discrimination claim?

Kim McLagan: Yeah.

Andrew Douglas: Yeah. I mean, there’s no doubt at all. She’s raised questions around her health, that’s a protected attribute under general protections. So, yeah.

Kim McLagan: Discriminated against her for a disability by taking staff off her.

Andrew Douglas: All those things.

Kim McLagan: Yeah, and all that.

Andrew Douglas: Okay, is there a safety prosecution risk here, and if so, against whom and what would the sentencing be? I think it’s pretty obvious that it’s against the business and Sammy. What’s the nature of the risk? It’s clearly reckless. So Sammy is aware of the risk of serious harm. He has personal knowledge of it. His knowledge is attributed to the organisation, so they’re both at that stage of having knowledge and they were indifferent to it. The actions they took didn’t seek to control or prevent that level of risk. In fact, it provoked that level of risk, which probably means that Sammy is borderline workplace manslaughter and so is the organisation.

Kim McLagan: If she were to do something.

Andrew Douglas: Yeah, if she were to do something, and I guess–

Kim McLagan: And she doesn’t.

Andrew Douglas: And if Rachel dies as a result of her treatment by Sammy, would anyone be prosecuted?

Kim McLagan: Same again.

Andrew Douglas: And that’s what I’m talking about. Were she to die as a result of what occurred, I think there is a better than 50% chance that Sammy would be charged with workplace manslaughter in Victoria, industrial manslaughter elsewhere, and I think so would the business. Well, there you go.

Kim McLagan: That’s it.

Andrew Douglas: That’s it for today. Thank you very much. That was a tough day because we dealt with some really difficult issues and I think from time to time it’s really important we do, that we do actually talk a particular truth, which is hard to hear, but I also want to know, and that everyone’s knowing that truth, there are really dire outcomes as well, not just for family and the person who suffered, but for those who did the wrongdoing.

Kim McLagan: Yeah. Thanks, Andrew.

Andrew Douglas: cheers, bye-bye.

Kim McLagan: Bye.