Kim McLagan: So now onto our main topic. We’ve got a couple of cases noted for the viewers at home. But another case came out yesterday, which contradicts or not contradicts, but is in contrast to the first case of at Adamic, which is, I really like this case. So we’ve got an administration officer. She claimed that she was bullied by three of her supervisors. She put in a Workcover claim, which was accepted. So yes, there was probably some basis to her complaints against her supervisors.
But then through the return to work process, she had a capacity to return to work. So they put her at an alternate workplace, and the medical evidence was that she would not be fit to go back to that previous workplace, where the supervisors were. But despite that and the union were actively encouraging her to bring a stop bullying application. But the commission held, there was no ongoing risk to her because she wasn’t going to be going back to that workplace. And because there was no ongoing risk, they didn’t have jurisdiction to determine her implication that it was dismissed.
Monnette Samo: Yeah.
Kim McLagan: A case came out yesterday, Chimel and Ecclesia University College, very similar situation. However, in that case, the medical evidence wasn’t as conclusive and the medical evidence was there is a possibility that she could get back to that workplace and on that basis, the application was successful and the stop bullying order was made. Now the next case of Hinton-Tooley and Glumac, this is a really unusual one because we’ve got a childcare worker who brought a stop bullying application against a customer. So I’m assuming one of the parents of the childcare center. And so the first thing the commission commented was, it is unusual to be making or to be seeking a stop bullying order against a non-employee. But in this case, her application failed because the customer was a former customer. And again, there was no risk of ongoing bullying. So the application was dismissed.
But what the customer did, Ms. Glumac, she sought an order in the commission for the payment of her legal costs and also for anonymity in relation to any decision. She didn’t want her name published for fear of reputational risk. And the Fair Work Commission denied her application. And so then she appealed to the full bench. And the full bench equally denied her application. Basically on the basis that the principal, legal principal that there’s got to be transparency in the administration of justice. But she also couldn’t demonstrate, even though the stop bullying application was untenable, Ms. Glumac make the customer couldn’t demonstrate that the Stop Bullying application wasn’t brought without any reasonable cause. So she failed she honestly, she would’ve been better off just going a lot away quietly.
Monnette Samo: Because now her name’s in the public domain anyway.
Kim McLagan: Drawing much more attention to herself.
Kim McLagan: So now moving on to the case study, Monique, can you read that for us?
Monnette Samo: Yeah, let’s go. So Margaret saw at first an argument had broken out in the shop floor between Ned, the supervisor and Con, the plant operator. The noise of the machinery meant she could not hear what was being said, but there were others nearby. Suddenly she saw Con lunge at Ned. She ran towards them, but they had separated by the time she’d arrived. As the OHS manager, Margaret knew what she had to do. She completed an incident report. Once she had finished her part, she found Ned and asked him to explain what had happened. He muttered “Nothing”. He turned on his heels and walked away. Frustrated and confused, she went looking for Con. One of Con’s coworkers said he had gone home distressed. She rang HR who knew nothing about the incident and then called Con, but he did not answer. Margaret filed the incident report and shared it with the operations manager, Daisy. Daisy called a few seconds later, she sounded tense and blurted out, “What the hell is going on? I have Ned shouting that you are targeting him.
I have no idea where Con is. And the incident report is not signed or acknowledged by either of them, what is happening?” Margaret explained what she had seen and what had happened to clearly exacerbated Daisy. Daisy eventually calmed down to explain that she had received a text message from Con saying he was being bullied by Ned and did not feel safe at work at about the same time Margaret said the altercation occurred. Daisy ended the call by saying, “Let’s chat tomorrow.” The next morning, Daisy rang Margaret and said she had spoken to Ned, who confirmed that Con had tried to punch him. She said she was going to issue a show cause letter to Con.
Con then sent in a doctor’s certificate, placing him on stress leave, the show cause letter was sent, giving him seven days to respond. Five days later, Con replied with a complaint stating that over several months, Ned had been targeting him, provoking him, taunting him about his weakened left arm, calling him a spaz, which resulted from a mild stroke several years ago, and constantly finding fault with him. Con said he did not try to punch Ned. Instead, sorry, he claimed he stumbled when Ned pulled away a low bench that he had been leaning on.
Daisy discussed the matter with Ned, and together they decided to terminate Con’s employment. Ned later rang Margaret and said Con had come back with a cock and bull story about slipping and blaming him. Margaret called Daisy and said they needed to investigate properly. Daisy explained Con’s version of events and then added that it was a total fabrication. Margaret pressed further, “There were many more people nearby besides me. I didn’t speak to all of them, but there is also CCTV footage. Daisy, we really should investigate.
I know you trust Ned, but my advice is to investigate.” Daisy simply told her to drop it and said they would terminate Con later that day. Margaret was angry and confused. She downloaded the CCTV footage and saw that Con had indeed slipped. She rang Daisy to explain, but before she could say anything, Daisy told her they had already held a Zoom meeting with Con and fired him.
Kim McLagan: Poor Con. Okay, so our first question is, was there an obligation under safety law to investigate? Yes, undoubtedly. So what we’ve got here is we’ve got evidence of what appeared to be workplace violence. A counter allegation from Con, a bullying allegation from Con. So definitely had to be investigated.
Monnette Samo: Was there an obligation to investigate under employment law?
Kim McLagan: Yes, well, for the same reasons really. But procedural fairness required a proper investigation with the allegations being put to Con, which they weren’t. And especially given the seriousness of the alleged violence. His counter bullying allegation against Ned, and also to investigate the possibility that Con had slipped. So failure to investigate would definitely render his termination harsh. And so he’d be, well actually I won’t answer that, say that because that’s our next question.
So would Con have a good claim for unfair dismissal, discrimination and general protection? So yes, definitely very strong claim for unfair dismissal. He’d have a claim for discrimination based on his disability and also breaches of general protections law because he’d made a bullying complaint and also raised safety concerns, which may constitute workplace rights. And also under the Equal Opportunity Act, there would be an application based on disability and physical features.
Monnette Samo: There’s a lot going on with that one.
Kim McLagan: There always is with case studies. Okay, so next questions.
Monnette Samo: So were there breaches of safety law and if so, by whom?
Kim McLagan: Potentially, yes. So Ned may have breached his personal duty under safety law through the alleged bullying behavior. Daisy would also be at risk for breaching her obligations, particularly if she was an officer of the company. And the business itself may have breached its primary duty of care by failing to investigate and by terminating a worker who was already on stress leave and yeah, with the known risk to his psychological health.
Monnette Samo: Right, so last question is, could Con have made a successful worker’s comp claim?
Kim McLagan: Yeah, without a doubt, no problem at all. So we’ve got the alleged bullying, we’ve got the psychological distress, his stress leave, the circumstances of his termination. No reasonable management action grounds to terminate because, or sorry to defend the claim. So yes, undoubtedly would succeed. That’s right, so there we go. Another one done. Thank you Monnette, we’ll see you again soon.
Monnette Samo: Yeah, thanks.
