Andrew Douglas: Okay, now this time we’re going to go onto the final, aren’t we?

Nina Hoang: The main topic.

Andrew Douglas: Yeah, let’s go onto the main topic. What can I say about the most recent industrial manslaughter? It’s workplace manslaughter in Victoria where we’ll talk about a case, the LH Holding case and we’ll drill down a bit more in a second. But what I want you to understand about this case is this is really turning a corner.

This is not a case which is just another sentencing case. This is the Victorian Court of Appeal, which is a highly-recognized court of appeal on safety law and remember, there are more safety cases run and litigated and appealed in Victoria than any other state. So this is a jurisdiction which is renowned for their judgements on it.

Nina Hoang: Yep.

Andrew Douglas: And when we talk about sentencing and a judge’s sentence, we talk about tariffs. That is what is the bottom and the top of averaging sentencing for a wrongdoing? Now in this case, what we’ve got is a forklift that turned over. What’d it do, it knocked?

Nina Hoang: Oh, so the director, sole director was lifting an A-frame using a forklift on a sloping hill.

Andrew Douglas: Yeah.

Nina Hoang: And then it tipped and the mass fell onto this other worker who was helping him and fatally crushed him essentially.

Andrew Douglas: Yeah, so at the beginning, so the appeal was done by DP, by the Department of Public Prosecutions. There was a $1.3 million fine.

Nina Hoang: The original fine, yeah.

Andrew Douglas: Yeah, the original fine which could never be paid in any circumstances and there was 200 hours of?

Nina Hoang: Yeah, so both parties, both him, the director and the company were convicted and the director also had 200 hours of unpaid community service and a community corrections order, which was suspended for two years.

Andrew Douglas: Two years and there was a $120,000 judgement for the sister who-

Nina Hoang: Oh yeah, compensation pay for the sister, yeah.

Andrew Douglas: What I want you to understand about this is, okay, this was not a high order breach, okay?

Nina Hoang: No.

Andrew Douglas: So when we look at breaches, first of all, you’re going to have a breach of a duty. So the breach of duty is there but then there’s the highest level of negligence that attaches to that. This is just inside the industrial manslaughter breach, okay?

Nina Hoang: Or, well, I think the court said it wasn’t on the lower end.

Andrew Douglas: It wasn’t the lowest. But well, it effectively is to be candid with you. Anything less than that’s reckless.

Nina Hoang: ‘Cause it was like a couple of seconds.

Andrew Douglas: Yeah, a couple of seconds. But my point about it is even if it’s the middle, what do we know about the sentencing now? We know for this relatively, I mean, it’s terrible, it’s fatal but it was a couple of seconds, it was a bad system.

Nina Hoang: It was like also a one-time thing. It wasn’t a repeated practise-

Andrew Douglas: No.

Nina Hoang: Done over multiple times.

Andrew Douglas: So there you go. You got there, so I’m saying it’s on the lower order but certainly not above the middle order of industrial manslaughter and you got a $3 million fine.

Nina Hoang: No, it was 1.3, now it’s been increased to three million.

Andrew Douglas: Sorry, yeah, the Court of Appeals raised it to $3 million and has not dealt with the other orders. But my point about it is $3 million for this means that a high order breach is somewhere between five to $10 million wherever you go, okay? And community correction orders is definitely jail for high order breaches.

So where there’s a systems breach, where there’s known risk where people fail to take notice of that risk and a person, there’ve been other pre-ones where people nearly, that stuff is off to jail and we can assume off to jail for some time because we do have reckless endangerment like Jackson’s case where there’s been one year’s jail.

So we now know in serious risk industrial manslaughter cases, the bottom line is one year of jail but could be significantly more and we know the fines will be five, up to 10, maybe more based on the serious nature of what occurred. So this case changes the game because prior to this, we’ve had a couple of $3 million and $1 million and stuff.

But this one sets the tariff. It takes the trouble of saying where the wrong was and what is right in sentencing tariff for the wrong and as the most senior jurisdiction because it deals with the most cases and the most relied-upon jurisdiction, it tells the rest of Australia, okay, well Victoria has $25 million as a penalty.

Three for low order. Mid, probably five. Very serious, 10 and above. It is going to change the way regulators prosecute and it is changing the tariffs for Australia. So I think this is a really important case.

Nina Hoang: Yeah, I think it’s a big warning to everyone, particularly after we saw those new sentencing recommendations that the regulators are really trying to increase the fines and so are the courts really.

Andrew Douglas: Okay, so there we go. Okay Nina, the case study.

Nina Hoang: All right, so.

Andrew Douglas: Bit of a dark one today. I got to tell you.

Nina Hoang: I know. I called you right after reading it and I was like “Gosh, this is morbid.”

Nadia was the CEO of an advisory business called Acuminate, part of a first-tier accounting firm. Acuminate provided corporate advisory, business broking and a range of people-based analytics. There were considerable pressure to hit financial targets at Acuminate as the accounting firm had suffered both brand and financial damage due to government contracts. Nadia and her leadership team felt the pressure.

Her corporate team leader, Conrad, a member of the executive, was a former partner in both the accounting firm and previously in a successful banking business. He was from another generation, fast-working, emotionless and driven.

Andrew Douglas: Not like me.

Nina Hoang: I was literally just thinking that. His team had rated him below average-

Andrew Douglas: I’m feeling a bit depressed. I was trying to show I was different.

Nina Hoang: In the annual review and recently Sienna, a manager reporting directly to him, had raised an incident report claiming psychological hazards were impacting her mental health.

HR raised the incident log with Conrad. They explained that Sienna had previously raised concerns with him: His instructions lacked clarity, the volume of work he required her to do was excessive, often given late in the day with early deadlines. He treated her male contemporaries more generously in a matey and forgiving manner and he was often disrespectful to her. HR had facilitated this conversation.

Despite her speaking up in a generous and respectful manner, he was now targeting her, challenging her agreed work from home arrangement and disparaging her to coworkers. Her work volume had increased but much of it was beneath her skill level, which was demotivating and hurtful. Conrad simply told HR she was a dud and that they needed to get rid of her. He said that her billings had dropped as he had to write off so much useless production time and that she was not trusted or liked by her peers.

HR advised Nadia of his response and she met with Conrad. She explained that he needed to pull his head in and act properly with her. There was no evidence in her reviews to support any of the complaints he now made and other leaders respected and trusted her. Conrad was dismissive and said she needed to reflect and listen to him but he would be more careful.

Three days later in the midst of a major transaction, Conrad had Sienna undertake hours of low-grade work in the audit room for due diligence. Her fellow workers had noticed she was regularly in tears, terribly tired and sad. They’d noticed she was given all the worst jobs and when one colleague, Karen, raised it with Conrad, she suffered a stinging rebuke. Tired, sad, depressed and anxious, Sienna walked out of the office to get a cab at 1:00 AM and was struck by a tram and died. People who saw her said she looked like an automaton.

Andrew Douglas: Automaton.

Nina Hoang: Automaton.

Andrew Douglas: Yeah, somebody doom, doom.

Nina Hoang: A robot.

Andrew Douglas: Yeah, a robot, I could’ve said robot.

Nina Hoang: Just use “robot.”

Andrew Douglas: No, but I always put one word in for you every time.

Nina Hoang: You’re such a lawyer.

Andrew Douglas: I know.

Nina Hoang: Using unnecessary words.

Andrew Douglas: I’m such a lawyer. Okay, so the first question is “Did Sienna have a strong worker’s compensation claim prior to her death?” Absolutely, so.

Nina Hoang: It was clearly linked to her work.

Andrew Douglas: Yeah, clearly linked to her work, so it was causative.

Nina Hoang: Not reasonable management action.

Andrew Douglas: Yeah, well it didn’t need to be. It was her experience of behaviour addressed towards her, which was non-performance related. So it’s subjective, so she was up. In relation to any, if you wanted to allege, it’s certainly the actions of Conrad were not reasonable in respect of her actions and not reasonably done. So no matter which basis you look at worker’s comp claims-

Nina Hoang: No, there was no way, yeah.

Andrew Douglas: She’s across the line.

Nina Hoang: “Did Sienna have a strong General Protections Claim prior to her death?”

Andrew Douglas: So I’ve checked into Burke and Suncorp. There’s no doubt at all that if we look at the last part of the problem-

Nina Hoang: So you’re saying if she was terminated or just like a non-termination one?

Andrew Douglas: No, non-termination, yeah.

Nina Hoang: Okay, got it.

Andrew Douglas: So that’s a good question in some ways. For General Protections, it has two differences, three differences. One, unfair dismissal, practical ones. One, anybody can be joined as a respondent to it. So it can be the organisation, it can be Conrad, it can be Nadia. So that’s one. The second issue is that-

Nina Hoang: It doesn’t have to be a dismissal.

Andrew Douglas: Doesn’t have to be a dismissal. It can be done in respect to the behaviour that’s occurring.

Nina Hoang: Yeah.

Andrew Douglas: And finally, there is a reverse onus. So once it’s alleged, then the employer and the respondents have to prove it’s not so. Now in this case, 2015, Burke and Suncorp said “Look, you can become aware of a person’s particular attribute that is protected under any form of legislation.” So legislation protects someone with an injury or illness.

Nina Hoang: Yeah.

Andrew Douglas: Here, if a reasonable person could have observed that she was anxious and unhappy-

Nina Hoang: Which was very clear by this time, yeah.

Andrew Douglas: Very, very clear then any behaviour that directed her to do work under those circumstances would be based on a subjective intention to give her work with the knowledge of that.

Nina Hoang: Yeah.

Andrew Douglas: Even though it’s imputed and at that stage, you got a General Protections claim.

Nina Hoang: Also she complained and then he took adverse action against her.

Andrew Douglas: Oh yeah.

Nina Hoang: He didn’t terminate her but he started micromanaging her.

Andrew Douglas: And he victimised her.

Nina Hoang: Yeah. So definitely under multiple grounds.

Andrew Douglas: Yeah, multiple grounds. So I just want to raise it because I think people forget General Protection lurks there.

Nina Hoang: Yeah.

Andrew Douglas: Particularly where someone hasn’t been dismissed.

Nina Hoang: Yeah.

Andrew Douglas: But there are two or three clever plaintiff law firms who would agitate this and seek an injunction as well.

Nina Hoang: Yeah.

Andrew Douglas: So I’m just putting it out there.

Nina Hoang: And treating her differently ’cause she was a woman as well. They would join all of these things under one claim.

Nina Hoang: And they would say hostile workplace as well.

Nina Hoang: Yeah.

Andrew Douglas: So they’d also use that as the factual basis. They’d pick some other women that Conrad’s not been good to and raise it.

Nina Hoang: Yeah, exactly.

Andrew Douglas: So the third question’s a much more interesting question for us is-

Nina Hoang: “Were there any safety breaches?”

Andrew Douglas: Safety breaches and answer is there’s an abundance of psychological hazards. In fact, I think I managed to get most in there.

Nina Hoang: Yeah, pretty much.

Andrew Douglas: Yeah. So the psychological hazards are present. So the next question is given the nature of the psychological hazards, what is the nature of the breach that occurred? So we’ve definitely got a primary duty breach.

Nina Hoang: Yeah.

Andrew Douglas: But given the number of them that occurred and the victimisation, in other words-

Nina Hoang: Yeah, they were aware of it.

Andrew Douglas: Now you’ve raised this and now you treat her worse as a result-

Nina Hoang: Yeah.

Andrew Douglas: In discrimination law, so that’s the money claim. So there is a discrimination claim here too. We’re not dealing with that at the moment.

Nina Hoang: But reckless endangerment as well.

Andrew Douglas: But reckless endangerment’s proven, okay?

Nina Hoang: Yeah, definitely against Conrad.

Andrew Douglas: Conrad can’t get away from it because he was aware of the impact ’cause he’d been told of the impact and with the knowledge of the risk of serious injury, not only was he careless, he was premeditatedly bad towards her.

Nina Hoang: And increased his behaviour.

Andrew Douglas: Yeah. And I think Conrad is not, I think Conrad did form as an officer. Was he a member of the executive or not?

Nina Hoang: He was a member of the executive.

Andrew Douglas: Yeah, so he’s an officer as well. So industrial manslaughter is possibly there. This is something which will be agitated with industrial manslaughter. This case in two to three years time will be an industrial manslaughter case without a doubt, both for the organisation and for Conrad. But the person who’s really at risk in all of this that’s the hidden risk is Nadia.

So here is an officer seized with the responsibility of providing a safe place of work, was the person who managed the intervention and allowed it, she’s off for reckless endangerment as well because she knew the risk and she was indifferent. She allowed it to go. She told him off but she didn’t take the step to prevent it. So interesting, I think it was an interesting case and I’m raising it now I guess because now we have the LH case, which talks about what are the tariffs? I think Conrad could be in jail.

Nina Hoang: Yep.

Andrew Douglas: All right, that’s it for this week.

Nina Hoang: Thanks for joining us.

Andrew Douglas: Thank you very much, cheers.

Nina Hoang: Yeah, bye.

Andrew Douglas: Bye-bye.