Kim McLagan: Our main topic, yes.
Andrew Douglas: I think I’ve talked about why I wanted to talk about this at the beginning, which is one of the things I love about you is your determination to do the right thing. And if people don’t like that, it’s bad luck, really. You’re generous and kind, but at the end of the day, you will do the right thing. And being respected is much more important to you than being liked.
And that’s why our young staff flock towards you and feel safe. They don’t feel quite as safe with me, they feel safer with you. But it’s because of that remarkable quality that you’ve got that you are down the line. I’m here to support you. I will be good to you, but this is my expectation, okay? I think that’s a remarkable learning for any leader to have, that being good doesn’t mean you’ll be liked. Nice to be liked. I don’t think I don’t like being liked.
Kim McLagan: I think I am liked.
Andrew Douglas: Yeah, you’re loved, loved, loved. No, you are liked, but you’re not hungering for it. What you’re after is good behavior. And you drive that behavior through the team, which is seen through our productivity and success. But people make this mistake. They disclose. They try to win friendship by saying, you know, I had a bad night last night with my boyfriend or girlfriend. I don’t know. And in doing so, they open a door to a life, which nobody asked. Nobody wanted that part of their life. Now, you and I as a leader may say to someone, look, are you okay? And they may say, I had this difficult time last night.
But we know how to contextualize that. That’s part of what’s making it hard for them to be at work. It’s not part of a disclosure that seeks to win friendship and intimacy. It’s so different, okay? Because once you open the door with that level of intimacy, you invite the comments you don’t want, because you don’t know the person. You and I know each other because we’ve been around each other for 25 years. But if I say to Nassim, who’s standing the other side of the camera, A, B, C, and D, I don’t know. She may say, well, don’t be a fool. And that’s not what I wanted. Nassim would say that, by the way.
She would say to me, don’t be a fool. But the point is, we don’t know the people we work with. We think we do, but we don’t. And therefore, when we make those disclosures to try and win intimacy and friendship and reliance, we may get back what we don’t want. And then suddenly, a relationship which was once based on trust and respect is lost. So I just want to raise it, because my fear is, it is increasingly part of our environment through social media that disclosure is made in all different forms in a manner which I think is not helpful for work. And it is creating risk. So why don’t you jump into the case? Or do you want me to jump into the case?
Kim McLagan: This case?
Andrew Douglas: Yeah.
Kim McLagan: Oh, we’re talking about the facts, are we?
Andrew Douglas: No, I thought we’d go No, Harnett’s case, which I think is really, Harnett’s is a hands-on case.
Kim McLagan: Oh, yes.
Andrew Douglas: Yeah, this is the HR manager.
Kim McLagan: Yeah. And this is the one we’re talking about.
Andrew Douglas: This is the one we’re talking about. You want me to talk about it?
Kim McLagan: No, no, no. We’ve got a general protections claim. There was a jurisdictional objection on the basis that she resigned. She said she was constructively dismissed, so that was the argument. So she claimed they took adverse action against her because she raised compliance concerns to personally put in a work cover claim. But the main part of this case that you’re talking about is she claimed that she was discriminated against by her managing director because he made comments about her and her relationship with a gay colleague and attributed their relationship to the breakdown in her marriage, and that’s what she took great offence to.
Andrew Douglas: Yeah. And again, I think I’ve forgotten the name of the commissioner, actually. So I’ll just, Paul Spencer.
Kim McLagan: Paul Spencer.
Andrew Douglas: Yeah, what Paul Spencer said, which I thought was lovely, is look, you invited this. You made the disclosure. You know, be careful what you ask for. She didn’t say that part, I said that part. And it’s not good what he said.
Kim McLagan: No.
Andrew Douglas: But you did invite it.
Kim McLagan: Yeah. And also, the difference with her is she was a senior leader, so she had the ability to say to him, “You’re being inappropriate and I don’t appreciate the comments,” but she never did.
Andrew Douglas: No, no. So look, the case is really just an illustration of the point that I want to make, which is, here’s a person of seniority, raises an issue of a private nature, gets the feedback she doesn’t like, then feels it’s tainted the whole process. And by the way, it might have, but you started it. And you didn’t put your hand up and say, “No, no, no, no, stop.” So it’s only a brief comment. I guess it’s something that I’m seeing in the cases that come through with me at the moment. There’s this increasing level of personal disclosure and damage in relationship from disclosure, which would never have been made. I just wanted to raise it as a bit of a warning sign. Why don’t we go on the case study? And the warning is, this is a difficult case study.
Kim McLagan: Yeah, it is. Nick always wanted to be an electrician like his dad. He knew it was a no-nonsense trade. His dad was a quiet, direct, and deliberate man. His dad helped him secure an apprenticeship through Livewire’s Apprentice Hire, a labor hire business for apprentices, ensuring they received a full rotation of domestic and commercial placements to complete their training. Gonza, the MD of Livewire, was a decent man who worked hard. He was also a friend of Nick’s dad.
Nick’s first placement in year two was at Cardi Board, a specialist box-making plant for wholesale and agriculture. It was an old facility with aged machines and little automation. Nick worked in the electrician’s maintenance team. The head of the electricians was Serge, a cold, distant, and powerful man. Serge treated Nick like a little boy, explaining every single task in excessive detail, clearly micromanaging. Nick did not perform well under such strict supervision, but he still made mistakes. Serge would publicly ridicule him in front of the crew, which encouraged them to play practical jokes on Nick. These jokes were degrading and not funny.
Nick called Gonza to report the harassment and explain that it was troubling him, but the bullying did not stop. Gonza visited the site, spoke with Dale from HR and Serge, and addressed the situation directly. He identified three problems, that Nick was being bullied, nasty and dangerous practical jokes were being played on him, and Nick was being asked to perform dangerous work on live electrical circuits that had not been isolated. Gonza noted that Nick was near breaking point.
However, when Serge returned to the workshop, he and the crew tied Nick to the forklift tines, pulled his pants down, and drove him around the work floor with his genitals exposed. Serge warned, “Ever air your dirty laundry outside the group again, and you won’t make it home.” Despite the threat, Nick spoke to Gonza again. He said he didn’t want to take action against anyone, but he wanted a new placement as soon as possible. Gonza then spoke with the CEO of Cardi Board, Mary Anne, and Dale from HR. He explained everything, including Serge’s threat. Although Nick did not want to pursue action, Gonza requested that they monitor and protect him. The following day, Serge instructed Nick to replace the broken circuit…
Andrew Douglas: Kim McLagan: Broken circuit breaker.
Kim McLagan: Tongue twister, on the Kramer solder box machine. Nick asked whether the circuit had been isolated. Serge screamed at him to stop being a girl, put on your insulated gloves and get it done, and then walked away. Nick did not know what to do. He opened the machine, located the redundant circuit breaker, and as he tried to remove it, the breaker arced, earthed, and exploded, giving him a fatal shock. He was found by a fellow worker a few minutes later.
Andrew Douglas: Now, you may think that’s an awful set of facts. Can I just say to you, that’s drawn from when I first started working in safety. All of those things that I’ve described have happened, and that’s over about four or five different incidents, but every part of it, as I deal with trades still to this day, initiation processes and exposing people with genitals and doing all this other stuff, it’s still alive, it’s still happening all the time, and I don’t think anybody can understand how hurtful and damaging that is. So yeah,
I’m sorry it’s a bit challenging today, but I’ve just gone around Australia dealing in the bricklaying trade, which to all the men and women, it was lovely, but once again, I heard stories again, initiation stories and other things, and I just went, are we still here? So that’s why it’s there. So the first question, was there any breach of safety law by Livewire and Gonza? The answer’s yes, unfortunately, because Gonza is both a director, so he’s got an officer liability. He’s also an employee. He has direct knowledge of what is occurring.
Yes, he did try to intervene, but for reckless endangerment, that’s not enough. He’s got to stop it. And even when he hears someone say, “I don’t want you to do anything about it,” once he’s seized with the risk to somebody, he must intervene and prevent it, and he didn’t. So he has a risk of workplace manslaughter, more likely he’d be charged with reckless endangerment, and he’d be exposed to a risk of jail term in it. And of course, Livewire would be in the same place. The second one is the CEO, Marianne, at risk under safety law, and I just want to go, absolutely, okay? ‘Cause once again, she now knows the terrible circumstances, which is the victimization that occurred after a complaint was raised.
When victimization occurs, that is when someone raises or threatens to raise a complaint which is based in law, and you treat the person adversely, and particularly in the manner in which you did, it is such a serious, because the law is designed to allow people to raise complaints around their personal risk. So Marianne is facing workplace manslaughter in Victoria, industrial manslaughter. Again, likely because this is new in the area, she’d be at the reckless endangerment.
She’d certainly got an officer’s breach, but probably reckless endangerment, because she absolutely knew the high levels of risk that existed in the behavior of surge. She had nothing about it. And to our evidence, we don’t have a She certainly didn’t intervene to understand the safety risk, but working on live wires that are not isolated is horrendous in the safety industry.
Kim McLagan: And what about surge?
Andrew Douglas: Surge, well, good old surge. He’s off to jail, is our surge. There’s no doubt at all he’s off with reckless endangerment and probably workplace manslaughter. And because in Victoria 143 and similar provisions elsewhere makes charges attributable, in other words, what surge is liable for, unless the company did everything to prevent it, the company is liable for. So in this case, I’m afraid Cardi Board is up for workplace manslaughter as well. So when you’re in Australia, in Victoria, that’s 80 million top fine for him, it’s 25 years in jail. It varies, ACT is much lower, but across Australia, you’d be looking at a fine, which is a minimum of $3 million for what occurred.
Kim McLagan: So if Nick had made a workers’ comp claim after the threat from surge, would he be successful?
Kim McLagan: Well, there’s no doubt. He was micromanaged, he was publicly ridiculed and degraded, he was threatened, he was victimized, he was a victim of practical jokes.
Andrew Douglas: Yeah, and so there’d be absolutely no doubt at all that Livewire would have the workers’ comp claim, but the recovery claim would be absolute. And by the way, if there’s a fatal accidents claim or a death benefits claim from family or whatever, the negligence here is so obvious that it would get up as well. So I thought it’s, I know it’s a challenging set of facts, but I don’t think people understand the nature of bullying that occurs in workplaces, the conduct that’s normalized and condoned, and people fail to intervene after they’ve been told, ’cause someone says, “Don’t do anything about it.”
And the last question is the electrical regulator. The electrical regulator would be all over this, okay? Lack of supervision for a start working a Livewire’s apprentice on their own, absolutely illegal. So there is so much the electrical regulator would do, Work Safe wouldn’t get a foot through the door here. This would be all electric regulator, and they’re much more aggressive, much faster in what they do. So interesting set of facts, okay? Great to work.
Kim McLagan: All right.
Andrew Douglas: Cheers. See you later, guys. Bye-bye.
Kim McLagan: Bye.
