Kim McLagan: Main topic.
Andrew Douglas: Okay, when is a workplace right not a workplace right? Okay, and this is Davies and Department of Transport. Can I say Carl Blake, I think it was Melison’s, but I can’t remember who he used to be a partner in. So he was part of the dark world before he became a commissioner. But he’s a straight shooter, and always has been a straight shooter. And if I can take you back a little way, when we saw Shay in True Energy case many years ago, which is about when you can get costs in a, in a discrimination matter, Shay brought this argument that she was being sexually harassed.
It was found, at first instance, that, this was a contrivance, and it was done to prevent her termination of employment. Okay, and so it was thrown out and she was given a cost order against her. And it came to the full court, and full court said, you’ve got to be very careful about a person raising a complaint. Legislation’s designed that people can raise complaints. You’d have to be able to show that, and it’s a positive duty on you to show that this contrivance was done for an ulterior purpose, and to avoid the effect of something. You’ve got to show it. You got to show a lack of good faith.
Kim McLagan: Yeah.
Andrew Douglas: So it’s interesting that that language has got picked up and taken to this case, which is what is a workplace right. And now, remember, a workplace right under the Fair Work Act is any entitlement that arises out of employment law. So if I put my hand up and say, I’ve raised a safety concern, it’s a workplace right, and that’s squarely where we’re sitting here. I have been treated in a way that’s unlawful and I’ve raised it as being unlawful, workplace rights. So do you want to hit the facts now?
Kim McLagan: Yup. So an employee was under a performance improvement plan to address, obviously gaps in performance. She made allegations throughout that process that her manager was being dishonest and also raised, that she was subject to occupational violence by the manager.
Andrew Douglas: And he was scary.
Kim McLagan: And he was scary. So the allegations were not substantiated, and they have ended up terminating the employee on the basis of poor, poor performance. And went to, well this ended up in the Federal Circuit court. But the court of Judge Blake found that the complaints were deliberately designed by the employee to disrupt the performance improvement process, and they were not made in good faith, and so therefore their claim was dismissed.
Andrew Douglas: Isn’t it fantastic? I, look, I, we often look for an opportunity, too often people go, oh, they’re doing it dishonestly, and they’re not. They genuinely believe it, and I think you and I would have that conversation daily. Look, I know you hate them, I know they’re difficult people, but they probably believe that, and if they don’t believe there’s enough in there to stop us. But there are some bad people who do bad staff and you’re looking at methods of defending it?
Kim McLagan: Yeah.
Andrew Douglas: This is a method of defending it. It’s a really good argument around it. So I think this is just a great case.
Kim McLagan: Yeah, it is. And this is relevant to our case study.
Andrew Douglas: It is, funnily enough. Okay, let’s do the case study.
Kim McLagan: It had been a tough week for Connie. The restructure was progressing well, but it was clear that many around her were struggling with the change and the fear of loss of jobs. She had developed the consultancy model well before a final decision was made to implement the restructure. However, within her department, Cliff, her second-in-command was not an advocate. Cliff had made several comments that had begun to frustrate her. He had questioned the legitimacy of the restructure in discussions with the executive making remarks to the COO and CFO, such as, I’m not sure there’s a strong business case for the restructure as its currently mapped out.
The change process is a little opaque and it may stir up the unions, and given recent cases around change management, I’m not concerned, I’m concerned this process may not be psychologically safe. When Connie became aware of these comments, she convened an informal executive meeting, which Cliff attended. She walked the group through the business case, the clarity of the steps and the communication plan, seeking their endorsement. The CFO and COO appeared positively reassured. After the meeting, Connie spoke with Cliff and asked for his feedback. He responded, I thought we already had their sign off, why go through it again? Connie calmly explained her reasoning, as she did so, his face reddened, he stood up and walked out saying, so you did this to humiliate me. I raised concerns about safety and this is your response.
Connie allowed him some time to cool off. A few hours later she visited him in his office and explained her rationale, to ensure alignment across the executive team, to demonstrate that he had a voice in the process, and to remove potential obstacles arising from concerns he had raised. Cliff nodded, apologized for his tone and thanked her. Connie documented the interaction and confirmed in an email. Once the restructure was complete, Connie met with the CFO and COO to debrief. They were very pleased with the outcome. Cost savings were evident, key skills had been retained, and the business was now aligned with the COO strategic plan. However, both noted the Cliff continued to speak critically about the project with staff. They shared examples, including comments suggesting the consultation process had not been psychologically safe.
While the remarks were relatively minor, they were unhelpful and suggested that the earlier discussion had not fully resolved the issue. Connie then met with Cliff again. She explained that she needed to address the situation and presented examples of emails and messages in which he criticized the restructure process. Her intention was constructive, to help him understand her concerns, to ask him to stop undermining the process, to rebuild their working relationship, and to better understand his views on psychological safety. Particularly given that the consultation process had been thorough, thorough, while structured and even endorsed by the union. Cliff’s response was to accuse Connie of bullying. He left work immediately and later sent a message stating that he had raised concerns about psychological safety and was now being harmed as a result. He said he had no choice but to resign. That was a long one.
Andrew Douglas: It was, yeah, no, I got a bit carried away. It was late. Was the issue of psychological hazards in the process a proper workplace right?
Kim McLagan: He can raise it and even though it lacked merit it’s still, can still exercise it as a workplace right, but the difference comes if, he did it, because he was being dishonest, he made it in bad faith, he was being vexatious.
Andrew Douglas: Yeah, so the issue here is he’s in the process of being counselled on both occasions, and both times he weaponizes psychological hazards and says, but this had psychology. Then he says it himself, I’m being bullied. I think it’s probably a workplace right at this stage, and the reason is because Connie had no one with her. So it stands on its own. Does it make sense? There’s no evidence to counter it, and nobody knows really how Connie spoke to him, and it is repeat of the same stuff. There’s a risk, it mightn’t be bullying, but whatever it is, he could feel unsafe. If he feels unsafe as a result of it, it could be misconduct, it could be a workplace right. And I guess Connie did one thing brilliantly, she took notes and she confirmed in writing. So she did do the contemporaneous record, but she made the biggest mistake of all dealing with the contentious person without someone else in the room.
Kim McLagan: Okay.
Andrew Douglas: Yeah. Had he been treated adversely in any event? No.
Kim McLagan: No.
Andrew Douglas: No he hadn’t. He’d just been called to account. See this is one of the nice things that we forget that everything we deal with has elements. You know, the elements of unfair dismissal start with, was it valid? Then was it harsh, unjust, or unreasonable? When you look at something, you’ve got to go through each one, tick, tick, tick, and if you go across, you’re home. Here, was the employee, yes. Did he exercise a workplace right? Arguably. Was he treated adversely?
Kim McLagan: No.
Andrew Douglas: No, so there’s no demotion, no discipline. Actually there was a conciliatory process of trying to reach understanding. So no, he can’t bring his claim, it’s unsuccessful. Was there a constructive dismissal?
Kim McLagan: No.
Andrew Douglas: Absolutely not. Okay, he had plenty of choices, like coming back and saying, I don’t agree with you. Were there any safety issues with what-
Kim McLagan: Hang on, we missed one.
Andrew Douglas: What?
Kim McLagan: Would he have a strong workers’ compensation claim? No.
Andrew Douglas:- No.
Kim McLagan: No evidence of bullying, pure reasonable management action defense, I’d say.
Andrew Douglas: Perfect yeah. Where particularly, now, mind you, with the Allen government getting closed, I suspect a lot more claims are going to be accepted from, trying to appease the union part of it. Isn’t it terrible we’re doing this? It doesn’t matter whether it’s labour or liberal, by the way, there will be an appeasement process. We always see around premium management, in the six months prior to an election, when it’s labour, happens every time claims start getting accepted. Why? ‘Cause the union will start pressing them, that’s the why.
Kim McLagan: Were there any safety issues in what Connie had done?
Andrew Douglas: Well, so this, this is the Four Universities case. It’s Turner, and it’s all the most recent case. Quite exciting group of cases that talk about change management. VBA, people management, which says, that the traditional method of running employment related discussions has a safety risk, particularly in the early parts that are in consultation and engagement. And if what you’re doing at any stage creates a risk of psychological harm, you may not have reached your employment practices, but you will have breached your safety practice. And that’s where the emerging law is. But that hasn’t happened here.
Kim McLagan: No.
Andrew Douglas: Everything Connie has done, as with the workers’ comp, has been reasonably based. I hear this, I tell you straight away, I give you a chance to respond. I’m not disciplining you, I’m trying to find a good pathway forward. So I know there’s not, but the opportunity is. So there you go. So this last question I think is, is just a fascinating question. So I’m doing a restructure at the moment. I’m sorry to the client who’s out there I’m doing.
But one of our discussion was, okay, we used to, did it when you or I’d do a restructure, we craft the definite decision. So we build a documentation to show when a definite decision is made, because from that time under the award, we have to mitigate or avoid the impact on the person. So there’s a consultation obligation, but the safety obligation arises earlier. So when you contemplate change in somebody, you must consult.
So there are two different periods of consultation. One after a definite decision, one at the commencement of change, or the where the idea of change exists. So, what we’re now doing in restructuring is saying to people, look, we’re in a process of considering a restructuring change and we want to be open with you what we’re doing. We do want to talk to you about what our needs are, and we’re going to do a town hall meeting that describes that.
Which replaces the old town hall meeting, when you’re stuck up on a wall exactly who was going to go and what was going to do. And all you’re consulting about is this is a stream of service we need, this is where we think it’s going to be affected. In the next week we’re going to come and speak to you individually if you’re affected by this and we’re going to do. So it doesn’t change it much, but what it does allow is a consultative process to occur in the immediate aftermath of it.
And from that, if you go back to the Deacon, Deacon Union and all those cases, you go back to the various industry or departments and you go, look, this is the change, it could affect you this way. Which Deacon didn’t do and got into trouble, but that was under employment law. But you do those things by talking to people, and not being fearful that everyone’s going to go on worker’s comp ’cause you’re going to do a restructure.
Because that’s not true, that’s not what happens. They go and worker’s comp, when you don’t engage them, and they feel targeted. And suddenly they find out they’re about to lose a job and they go, press the red button. So, the case law is getting very interesting, but what it’s really about is bringing people on the pathway of change management. That’s what it’s about. God, it’s fun doing this with you. I talk too much, I’m sorry.
Kim McLagan: It’s quite alright.
Andrew Douglas: Okay.
Kim McLagan: I don’t talk much, that’s fine, suits me.
Andrew Douglas: On here, on here, yeah. See you next week. Cheers.
Kim McLagan: Cheers.
Andrew Douglas: Buh-bye.
