Andrew Douglas: I want to talk a little bit about directing people when they’re being injured, whether it’s physically or whether they’ve got a disease, process, a mental health issue. When can an employer direct, you know, what’s the test, which goes back to Ramsey V Blackadder and is seen in Grant and BHP. But more importantly, because the most recent decision of Davies, what happens when someone seeks to frustrate that process?

Kim McLagan: Yeah.

Andrew Douglas: And really this is all you, Kim, ’cause this is what you do every day.

Kim McLagan: I was doing one this morning. It is frustrating.

Andrew Douglas: Yeah. Do you want to talk about Davies though? ‘Cause it’s a good starting point, isn’t it?

Kim McLagan: Yeah, so this is one where we had a long-term employee, so he was very well known to the organisation, but he was showing really obvious signs of mental health, well, mental injury. And they said okay. And being a psychiatric nurse, he had a very highly responsible job. So he had to be fit for his job, which, obviously. So these signs were started to show employers.

Andrew Douglas: I must say, I started life as a psychiatric nurse.

Kim McLagan: Yes.

Andrew Douglas: I’m not sure that’s true, what you just said, anyway. Anyway, back to it.

Kim McLagan: So long of the story, short of it is, if an employer has reasonable grounds to, oh jeez.

Andrew Douglas: Turning up with the water here. You don’t often see the live camera like this, do you? It’s just great. I’ll pull the water and try not to lose straight.

Kim McLagan: Okay, you drink. So if there are reasonable concerns held by an employer as to an employee’s health and ability to do their job, they can make inquiries and require the employee to provide medical evidence. They tried to get the employee to provide or get his consent to obtain medical information from his treaters. Refused to provide that.

Next obvious thing for them to do was direct him to an IME. He refused, refused, refused. And they terminated him. He brought an unfair dismissal claim, saying their actions weren’t reasonable. The court held, absolutely they were, because he tried to frustrate the process. He didn’t cooperate with lawful and reasonable directions and he was terminated on that basis.

Andrew Douglas: Yeah.

Kim McLagan: And there’s a multitude of case law that supports an employer in that process.

Andrew Douglas: And look, it’s worth going back, you know, in Grant and BHP, which followed Ramsey V Blackadder which is the original case, what Ramsay V Blackadder said, if a reasonable person observing conduct behaviour or the nature of a person believes they’re unsafe to carry out the work, then it is reasonable to direct them. And that is a lawful and reasonable direction.

Lawful and reasonable direction is a direction at common law, which if you’re not complying of, it’s a fundamental breach of contract and it’s captured in regulation 107 of the Fair Work Act. So, yeah. The difference, though, is in this area is, I’m cutting your lunch at the stage, but in this area, a person may fail once and that will not be enough because there is this sense of supporting vulnerable people, which means they’ll be given a couple of chances.

Kim McLagan: Yeah.

Andrew Douglas: And that probably comes to be in the Star Casino case.

Kim McLagan: Yeah.

Andrew Douglas: Which is a fun case.

Kim McLagan: Mhm.

Andrew Douglas: Okay? It’s a guy, it’s not fun if you’re the guy, he’s a diabetic who couldn’t wear vests because he got too hot and he had constant problems as he wouldn’t wear his vest and they gave him a direction not to do it.

And his doctor said, no, he’s diabetic and he can’t overheat. That’s all uncontentious. But then something changed in the manner in which he behaved. So as he was resisting these directives to do it and bumping into people and they were mishandling and it was chaotic, his mental health appeared to go off the chart a little bit. And he started doing some really odd stuff, saying some bad things. And the organisation, quite properly, became concerned and said, “Look, we need to get you assessed and these are the reasons. And he just refused. He said, “I’ve got a physical problem.

I don’t have a mental problem.: They said, “Well, based on what we’ve seen, we dunno what you are, but we’re actually going to stand you down ’cause we don’t dunno if you’re safe to be at work.” Again, he was eventually terminated. He argued, it was all wrong and that, and the court said, “No, no.” Look, if you turn up to work with a limp and they ignored the limp, that would be a problem. If they direct you to get assessed because of a limp, that would be reasonable. Limp and mental health, they’re just different sides of a coin.

Kim McLagan: Yeah.

Andrew Douglas: That’s a proper thing to do. And I guess that takes you through to a whole series of case but turns up at Laviano v, which is Laviano v and Fair Work Ombudsman.

Kim McLagan: Yeah.

Andrew Douglas: Where a person deliberately failed to talk, to respond, to do anything in relation to directions. And the court said, look.

Kim McLagan: You can’t not communicate with your employer.

Andrew Douglas: Yeah, they gave the three blind monkeys, you know, three monkeys saying you’re not told, not see. If you are told to do something, you can’t ignore them.

Kim McLagan: Mm.

Andrew Douglas: And therefore, even though the person was on leave,

Kim McLagan: Yeah.

Andrew Douglas: Because of the nature of their injury and it was a mental health issue, you cannot simply refuse to respond.

Kim McLagan: No.

Andrew Douglas: And that’s quite a difficult process because for you and I, we both know we’re commonly dealing with people that are quite vulnerable and therefore, the nature in which we write them is generous and kind. We give people plenty of opportunity in which to respond.

Kim McLagan: Yeah.

Andrew Douglas: We follow up kindly. We make sure there are taxis, that everything is there, they’re looked after.

Kim McLagan: Yeah.

Andrew Douglas: But it’s still a lawful and reasonable direction, isn’t it?

Kim McLagan: Yeah, that’s right. Just on that point, whenever you prepare any correspondence to an employee, I think it’s very important just to remember, this could end up in front of the Fair Work Commission. So you want to come out looking good as an employee. You don’t want to be harsh and rude. You do want to be generous.

Andrew Douglas: Yeah, and you don’t want legalese in there or HR speak. We refer to our letter of the 7th of January.

Kim McLagan: Yeah.

Andrew Douglas: We note the following. I mean, why would you write to anyone like that?

Kim McLagan: Yeah.

Andrew Douglas: You’ve got to assume the person, and look, all these cases have some fun letters that you’ll read and go like, business has some fun letters in it. Just be nice.

Kim McLagan: Yeah. Not that hard.

Andrew Douglas: It’s not hard. And it’s how, if you just think, if this was my child, how would I like to write to that?

Kim McLagan: Yeah.

Andrew Douglas: How would you want them to be written to? ‘Cause any time you’ve used formal language, you take a position of power.

Kim McLagan: Mm.

Andrew Douglas: And the moment you take a position of power, you’ve got the Fair Work Commission against you, every time.

Kim McLagan: Yeah. Correct.

Andrew Douglas: Why don’t we head over to the case study?

Kim McLagan: Okay. I like this one.

Andrew Douglas: And this is, I think this is a good case study. Over to you, Kim.

Kim McLagan: Okay.

Andrew Douglas: Go.

Kim McLagan: So Doris felt under attack. Her boss, Ruby, had become more aggressive in enforcing the flexible work arrangement of three days at work. And Doris couldn’t stand it. Ruby had consulted with the union and workplace delegates in early 2024, and it was agreed that by 1 July 24, everyone would return to work three days a week in the office and two days working from home. A roster was created to ensure overlap and efficient use of the office.

The change kicked off to a rocky start in July. But by the end of the moratorium period, on 1 September 24, everyone except Doris was complying. Rather than attend work, Doris began taking sick days, having accumulated over 93 days. Her medical certificates indicated that she had an adjustment disorder and could not safely return to work. Her GP had failed to return calls or agreed to meet with Ruby’s HR and return to work team.

Ruby directed Doris to see a consultant psychiatrist to assess any impairment, and determine what adjustments, if any, were necessary. Doris called two hours before the first appointment and claimed her car had broken down, preventing her from attending. A second appointment was made and taxis were arranged, but Doris refused to respond to calls or confirm her attendance. Ruby cancelled the appointment, made a new one, and sent a letter, stating that it was reasonable and lawful direction and Doris must attend.

Doris ignored the letter and did not attend. In response to a show cause letter sent one day after the expiration of her 93 days of accumulated personal leave, that’s important, from Ruby regarding her breach of the direction, Doris claimed she felt bullied by Ruby to return to three days a week and that she was being targeted due to illness. She argued that there was no need to force her to attend independent medical examinations, as her treating GP had made it clear that she was unfit for work.

Okay, so Andrew, did Ruby and her business breach safety law by requiring everyone to return to work without individual consultation, failing to intervene earlier before her personal leave was used up, and forcing her back to three days a week?

Andrew Douglas: Interesting. ‘Cause can I just say to you, probably not, but what I will say is, the individual consultation is a critical part of any major change. It was a major change under an award, which does require individual consultation, along with group consultation.

Kim McLagan: Yeah.

Andrew Douglas: So there may be an award breach, very small, and there is an argument that could go to safety law, but there is a lack of nexus between the individual consultation and the subsequent harm, which would do it. The rest of it, I’m afraid they’ve done everything right. So I think the chances of this ever ending up in a safety jurisdiction is absolutely zero.

Kim McLagan: Yeah.

Andrew Douglas: So Kim, did the threat of termination, violate the temporary absence provision?

Kim McLagan: No, it didn’t, because she was off work for a period of more than three months and she’d had at least one day on leave, unpaid leave.

Andrew Douglas: After the expired.

Kim McLagan: After the expired, accumulated three months.

Andrew Douglas: Well, her accumulated leave.

Kim McLagan: Yes.

Andrew Douglas: So it can be over three months. If I had 120 days, it’d be 121 days.

Kim McLagan: Right.

Andrew Douglas: Before the temporary absence provision kicks in.

Kim McLagan: Yeah. Okay.

Andrew Douglas: Kim, could Doris have sought a stop bullying order at any time?

Kim McLagan: The employee’s conduct did not constitute bullying.

Andrew Douglas: No, in fact, it was reasonable management action.

Kim McLagan: Yeah.

Andrew Douglas: So I think no is that one as well.

Kim McLagan: Yeah. Yep.

Andrew Douglas: Okay. Let me give you another one. Was her proposed termination discriminatory or an adverse action?

Kim McLagan: Not where, sorry, I’m reading my notes because all the technology has died. Sorry. Were the refusal-

Andrew Douglas: I am the technology. You understand? You’ve watched my nose. There you go. Sorry, Kim.

Kim McLagan: We might have to redo this one. It wasn’t discriminatory because of her. It was due to her refusal to participate in the process.

Andrew Douglas: Well the argument is, is it discriminatory because she had an adjustment to disorder. And the argument would then be that no proper adjustments or intervention occurred, but she wouldn’t allow them to assess her.

Kim McLagan: To determine if adjustments were, yeah, required.

Andrew Douglas: So no discrimination. General protections are both out, even though there’s a reverse onus in general protections. So let’s stretch a bit here. What about workers’ compensation? Because part of this is not performance management. So it’s subjective assessment of pain. So would she have a worker’s comp?

Kim McLagan: Oh, I was thinking in terms of the directions to bring her back to work would be reasonable management action.

Andrew Douglas: Could be. Could be. But it’s not performance management. The direction to come back to work wasn’t performance management.

Kim McLagan: Yeah. But management action isn’t always performance management.

Andrew Douglas: No, no. It’s not. I think there’s a risk of subjective element playing. So just to be clear, there’s two parts that come in workers’ comp.

Kim McLagan: Yeah.

Andrew Douglas: If you are part of any management process that’s a direction or requirement, or I’m actually managing your conduct or performance.

Kim McLagan: Mm.

Andrew Douglas: The defence of reasonable management action, that is that there was a fair reason for doing something and it was done in a fair way apply. In every other part of workers’ compensation, it is your subjective, personal experience of something that occurs that creates liability.

Kim McLagan: Yeah.

Andrew Douglas: And there’s enough in this story where she could, and remember, regulators are generous in this process where she could hang ahead and say, “But look, they didn’t help me. They didn’t assist me. I felt lost in a process. I think there’s a chance that a claim could be accepted.

Kim McLagan: There’s always a chance in workers’ comp.

Andrew Douglas: Yeah, and look, if we go through it, I mean in South Australia, probably not accepted in Victoria at the moment, probably. Yeah, no, probably. Yeah, yeah. New South Wales definitely accepted Queensland, probably not. It’s crazy, isn’t it? We get to a jurisdiction by jurisdiction. Who’s got the hammer as to what’s going to happen? It’s just nonsense, workers’ comp law, isn’t it?

Kim McLagan: Yeah.

Andrew Douglas: Did Ruby act lawfully?

Kim McLagan: I believe so.

Andrew Douglas: I think Ruby acted lawfully. Well done, Ruby. So that’s it for this week. By the way, we’ve got, coming out, Workplace Watch that talks about the new psych regs and the new suggestions that sit around sentencing in OHS in Victoria and how they apply across Australia. That’ll be out in the next day or two. So please watch out for that. Otherwise, number 200, we’ve done it, Kim. Without technology, we’ve done it.

Kim McLagan: Yeah, it wasn’t great. Sorry.

Andrew Douglas: Give us a thumbs up. If there’s anywhere to give us a thumbs up on that technology, just give it to us. Thank you very much. See you later.