Andrew Douglas: Why don’t we head off to the main topic, which is AI? And I’ve had a bit of a rant about this because we, I think in the last five general protections claims that I’ve got in, not one of them has been under 25 pages. Most of them have bits of legislation which don’t exist. They have tables of facts which are untrue and contrived.

AI lies when it doesn’t know the answer. That’s something they call hallucinations. It’s clear. But how do you actually go about doing that? ‘Cause Bessini’s case says you can’t ignore it just ’cause it’s 150 pages long.

Kim McLagan: Yeah.

Andrew Douglas: You do have to look to see if there is something to respond to. Okay. Then you’ve got the second problem, which is, well, I’ve got this and I can’t make any sense of it. What do I do? Well, actually there’s some things you can do and I’ll talk about that in a second ’cause we’re currently doing that, which is a strikeout application to try and get rid ’cause we just can’t plead to it. But then things get a bit more difficult ’cause you’re down the track and you’re going, “Well, now I’m here and I’m trying to respond to this.

What do the courts say about it?” Well, the court’s actually on your side. The courts, all courts and tribunals have rules against the misuse of AI, the obligation to advise if you are using it. And therefore, there’s someone on your side sitting up at a bench looking at you saying, “I can help you, but you have to come to me with the right thing.” And the right thing under those circumstances is to say, say it’s a general protections claim. We admit we did terminate the employee. So, that’s the adverse action.

Kim McLagan: Yeah.

Andrew Douglas: There was no relevant complaint made. So, there is no workplace right for which we acted upon. We acted because of these behaviors. And we can demonstrate that the decision maker only acted on the basis of that. We can’t understand the unintelligible, it’s called chromatographic, which is huge quantities of rubbish just continually piling out of someone’s mouth. That’s what it’s like. We can’t respond to all that. We can respond to this. The mistake is to try and put your hands up and say, “Oh, we can’t do anything.

” Okay? So, strategically what you could do is back the person into a corner and say, “Look, we can’t understand. Can you please re-plead? These are the rules of pleading. Can you do it this way?” Pleading is how you write a claim. Please identify what is the workplace right and what are the facts that show you exercise it? Please identify what happened as a result of that, and please identify for us how you say we made a decision related to that workplace right. Can you just do that? If nothing else, just do that.

Kim McLagan: Yeah.

Andrew Douglas: And if they don’t do that, all courts and tribunals will strike it out. They won’t strike out the claim for good, but they’ll strike that out and say to the person, “You better get it right next time.” And under Khan’s case, if people do stuff which is not right and they’ve been warned upon it, then you can actually get costs against them as well. So, that’s what you do when you’ve got a plaintiff or an employee, and this could be in performance management when you get it in performance, which is daunting, isn’t what you do.

The first thing I said, which is to say, “Sorry, sit down with me. What is the workplace right you exercised? Tell me what it is. Or what is your complaint? Who are the people who did that? What impact does it have on you?” That’s just a performance management discipline though. When it comes to litigation, much easier. Do the process I said, but please don’t be drawn into it and start trying to respond to 180 paragraphs because you’re just making a mess you can’t dig out of.

Kim McLagan: Yeah, true.

Andrew Douglas: And don’t say no ’cause Bessini says, if you do that, you’re in deep strife. But the other problem that’s running towards us is at times clients will send us questions which they’ve generated from AI and it takes you days to unravel because the same pollutant details live. What it means is you’re responding to questions which aren’t proper questions and you try to understand from the client why they would ask that question when it’s not relevant. You try not to be rude either and say, “What?” But AI distorts and distracts.

If you instruct me, I want you to tell me what is the question and what are the facts. I want it simply so that I can actually start developing a strategy around it. But if I get 20 pages of elaborate stuff and I don’t know what’s true and what’s not true, then I’m lost for a day, and the cost associated with that is enormous. So, AI can be a great friend, but when you’re instructing lawyers, please keep away from it.

And when you were dealing with HR management, there’s a case that we all know about which is the redundancy case where all the redundancy letters were created. And as a result of that, there was no proper consultation process and the employer lost. Please be really careful using AI in things where there is an accepted methodology which is simple. Always stay with what is simple and get it right.

Kim McLagan: Yeah. Yeah.

Andrew Douglas: But is it costing business a lot of money at the moment? A huge amount of money. Is it killing Kim and I quietly? It is. And they’re the very simple strategic rules, which is don’t say no, define what is the issue. Give the person a chance to remedy. If they don’t, be strict and go hard. And when you come to deal with an issue which has an accepted methodology of dealing it, which is simple, don’t try and do the shortcut through AI because you will not get it right.

You’ll get into trouble and yet the process is simple. And if we look at any industrial process that we deal with, most complex and industrial relations I’m going, I want to bring an application for bargaining or I want to determine whether we got a majority vote. There’s actually a simple process that sits there. Kim and I know them off by heart. It takes us only 10 minutes to tell you what it is.

Kim McLagan: Yeah.

Andrew Douglas: Please don’t make it up.

Kim McLagan: Yeah.

Andrew Douglas: Okay? Kim, one case study. Off she goes.

Kim McLagan: Thanks. Dave was a well-liked boss at the call center. He always threw a Christmas party in July, sorry, always threw a Christmas in July party for his staff. The call center was staffed mainly by well educated young men and women who were transient workers often on holiday visas, and more longstanding women of Asian background who spoke good English, although it was their second language. Denise liked Dave. She was a shy, naive, young, single Indonesian woman who had worked at the call center for over a year. She knew Dave was married, but he often flirted with her. She did not know why, but it made her feel good. At times he draped his arm over her shoulder and she liked the sensation.

He was strong and she was attracted to him. On the night of the Christmas in July function, he sent her a text saying, “Show me what you’re wearing.” She sent him a modest photo of herself in her dress standing in front of her mirror at home with her mom. He danced with her at the party, sometimes very close, too close for her comfort. She felt embarrassed, but she smiled. He brought her drinks and sent her texts telling her how beautiful she was. The alcohol impaired her judgement .

She felt her resistance crumbling, but she wanted to leave. She knew he was married and she felt she must not give into her attraction. As she went to leave, he held her hand and said, “Hang about. We’re all going out later, then I can drive you home.” But she felt she had no choice but to stay. The after party lasted only an hour. As people began leaving, she asked, “Can we go now?” She felt unwell and very drunk. He said, “Just let me take you to a fun place for half an hour and then we will go.”

He took her to a Gentlemen’s Club just around the corner. She was shocked and embarrassed and demanded to be taken home. He laughed, pulled her onto her lap, onto his lap, and demanded that she dance for him. She fled the club, and while running away, fell down the stairs and badly twisted her ankle. She sent a certificate of capacity the following day. Aw. I’m twisting all my words. Sorry about that.

Andrew Douglas: That’s all right.

Kim McLagan: So, does Denise have a strong workers’ compensation claim?

Andrew Douglas: So, this is a modest question.

Kim McLagan: Yeah.

Andrew Douglas: And also Telstra and Tran. And what those cases say is there must be an expectation or an understanding that they’re meant to be doing something, that this is part of a work related activity. That doesn’t mean you’ve got to take notes when you go to a strip club. That’s not what it means. It means that the person who has authority and power has asked you and if they do that, then I’m afraid workers’ comp is a tick, okay? Because it is condoned.

Workers’ compensation is benevolent legislation designed to protect workers. Now, in Tran & Telstra, two women went for a drink. No one authorized them to do that. They were staying overnight at a conference. They drank two bottles of Chardonnay and then she fell over at 3:00 in the morning. She was not successful, right? But there has been a range of workers’ compensation cases, after party cases where a manager has been present, where the manager was the invitee that workers’ comp has been granted.

Kim McLagan: Yeah.

Andrew Douglas: So, I’ve done this problem partly ’cause we’re running towards Christmas and there will be a whole lot of functions where people have sort of pretend functions where they go, “Oh look, we’re going to go and see some clients, then why don’t we catch up as a team? Like, we’re having a team dinner.” Okay. And after the team dinner, it won’t be happening with our team.

Kim McLagan: No.

Andrew Douglas: Three youngest will go, “Why don’t we go out afterwards?” And they’ll look at you and you go, “No, no, no, not you go out afterwards. No.” So, we need to be really clear and sever that link of authorization and expectation. So, one of the really good examples is in a first year firm I used to be in, there used to be three parties. So, there used to be the principal party, which started at midday, went to six o’clock. Then, there used to be the Christmas party that started at 6:00.

Kim McLagan: Oh no.

Andrew Douglas: And then at midnight, the principals would take out their team, barely able to move

Kim McLagan: Oh, that’s crazy.

Andrew Douglas: For drinks afterwards. And then, the young guys would go out after that and often with some cash from the principal. Okay?

Kim McLagan: That didn’t happen recently.

Andrew Douglas: And every single party that was compensable and the damage to me as a principal, it was devastating. Anyway.

Kim McLagan: Good thing you were a lot younger back then.

Andrew Douglas: Well, I was, but I was also the one that left at nine o’clock when I realized things were getting out of control. All right. Does she have a strong sexual harassment claim and general protections? Now, I raise it because she did like him, but she’d made a decision not to. And his conduct created increasing conflict within her.

She was not consenting. So, the fact that I’m attracted to a person doesn’t make their behavior not harassment. It’s a statement of truth. I am, but I’ve made a decision no. And when I make the decision no, and you breach that by continually sending texts and doing all that grooming type of behavior that exists.

Kim McLagan: Yeah.

Andrew Douglas: And remember, sexual harassment is the grooming stage. It starts at the grooming stage. So yep, you’d win. Before the function, Denise had told the HR manager that although she liked Dave, she felt uncomfortable with his advances and felt unsafe. The HR manager witnessed Dave’s conduct at the party and was also at the after party where Denise was visibly drunk and Dave’s hands were all over her. Is the HR manager at risk of liability under discrimination and general protect? Answer is absolutely will be named as a party. And can I just say? Also under safety prosecution, so there’s risk.

Kim McLagan: Yeah.

Andrew Douglas: Was there a breach of workplace health and safety? And if so, who was responsible? Absolutely. Just the drinking is a breach. To allow someone to become in a vulnerable state by pushing grog into them. Forget about the sexual harassment part of it. That’s a clear breach of safety law. What happened after that by all the participants is unquestionably a breach both individually and organizationally. And the HR manager, although not an officer, has a heightened level of responsibility because they are seized with supervision, and they knew what the risk was and did nothing. So, their prosecution would be much more serious. There you go.

Kim McLagan: There you go. Done.

Andrew Douglas: We got through didn’t we?

Kim McLagan: Good.

Andrew Douglas: It wasn’t too bad, was it? See you next week. Cheers.

Kim McLagan: Bye.