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Workplace in-Brief: 16 October 2020

Andrew Douglas


News and developments

  • COVID-19/JobKeeper Update 

Case updates

  • Employment: Doing nothing is not condoning
  • Discrimination: Sexual harassment and damages
  • Workers’ Compensation: It is all fun at conference until someone gets hurt


You would hope that our response to COVID-19 and our economy would be based on solid risk analysis and evidence. I would. Perhaps I am maturing slowly. But my disappointment is visceral.

Here are some facts:

  1. We are in recession-as is the rest of the world. And the rest of the world is rapidly going backwards in managing
    Justice Flick’s decision in Qantas v Flight Attendants has been appealed by Qantas. The decision is based on a literal interpretation of the JobKeeper provisions in the FWA and creates a windfall for some employees across industries in Australia.the pandemic (except NZ). That means supply lines are, and will remain, vulnerable for another 12-18 months and when JobKeeper stops in March 2021 we will arrive at an economic cliff. We will have done nothing about supply sovereignty and be vulnerable to any other crisis like we are now.
  2. The Federal Government is on the verge of calling an early election to bank the goodwill of the budget spending and the incumbency benefit during a crisis.
  3. Our media, and some politicians, are engaged in exceptionalism (feverishly identifying failure and liberally allocating blame and division)
  4. Yet our community is acting well, generously and is compliant.

Two interesting concepts jump to mind. Placebo – a big spending budget with no identified strategy makes people feel safe that the Government will protect us. Reinforced by Nocebo, the dread and blame of the media saying everything is flawed, people are breaching rules and the law of the jungle prevails.

Outside of NZ, Australia, and that includes Victoria, have faired better than any other western country. We are doing well and our economy, although in recession, is doing ok. We are acting in a cohesive and generous manner with each other at a personal level. But we have no clear collective and cohesive risk strategy and economic strategy to make Australia safe in the future. Why? Because our leaders are afraid to lay bare a strategy that would be difficult and uncomfortable because the politics of being courageous and honest are tricky. Better to hold our hand and say, ‘there there’, than ask for more sacrifice to ensure future sustainability. Yet Victorians, despite the raucous, and uniformed criticism, have held the line. Yes, they are sick of it, but still they step in behind each other, support each other and comply.

Some feel better for the placebo and some feel worse for the nocebo. But most of us crave truth, rusk analysis and long-term strategy to bring us through. I guess I’m at loss to understand why our collective governments miss this courage and sentiment of Australian people and fail to respond accordingly.

Employment: Doing nothing is not condoning

The doctrine of condonation is that you can’t punish that which you permit. But condonation is not mere neglect. It requires ignoring a known wrong. This is eloquently explained in Bryant v Southern Midlands Council.

Sharon Bryant was an Animal Management Officer, who was regularly late to work and commonly was not at work when she was meant to be. How could you miss this? She worked remotely in a vehicle. Nobody was aware of her aberrant work patterns, but her GPS data made it very clear. You just had to look at it.

At the hearing in the FWC, Commission Lee made it clear her explanations were not plausible (see paragraph 78.. ‘another fiction’) and he found she was intentionally committing ‘time fraud’. Describing her manager as ‘being asleep at the wheel’, the Commissioner then considered whether that amounted to condonation. See below:

“[84] However, the fact that the Respondent had not raised the issues with the Applicant previously does not excuse the Applicant from engaging in the behaviour as the evidence demonstrates that she whilst she knew that it was wrong, she nevertheless engaged in the misconduct. In that context, the failure of the Respondent to raise the matters with the Applicant meant that the Applicant was able to continue the behaviour for a long time. However, I do not consider that the Respondent’s failure to properly manage the Applicant had the effect of condoning the Applicant’s behaviour.”

Condonation is not applicable where the person knowingly does the wrong thing and the employer, even through its own neglect, didn’t know of the wrongdoing.

Discrimination: Sexual harassment and damages

Oracle v Richardson set the tariff for damages in sexual harassment. The order of $100k for non-touch sexual harassment has become a median benchmark for repeated sexualised behaviour, inuendo, sexual invitations and seeking unwanted relationships. Awards vary across Australia with states like Victoria and New South Wales having high awards of general damages and South Australia and Tasmanian being lower. This was the case, as recently demonstrated in Orchard v Higgins, a Tasmanian case.

The complainant, Ms Orchard was clearly a resilient woman who tolerated repeated comments and treatment of sexualised and favouring nature, leading up to styling a sexualised nick name ‘Juicy Lucy”, and slapping her on the bottom. None of this was consented to. It impacted her mental health. In the end, Mr Higgins once he was aware he was at risk, issued her with a defamation letter to dissuade her from taking action. In a well-reasoned decision, Tribunal Member Cuthbertson, awarded $45k general damages and $20k aggravated damages – see Hills v Hughes (threat of legal action to stop complaint).

In NSW or Victoria, it is likely the award would have been double. It is interesting to consider what the award would have been for a less resilient person who suffered more profound mental health problems and could not work? It would be disappointing if the size of damages becomes tied to vulnerability.

Workers’ Compensation: It is all fun at conference until someone gets hurt

We recently reported on the case of Dring v Telstra where a woman who drank until the early hours of the morning, between days of a conference, fell over in the hotel that Telstra had paid for and injured herself. Ms Dring was denied compensation under the Hatzimanolis Principle (that for out of hours liability -where on work retreat but during a non-work interval a person is injured -does the injury arise out of or in the course of employment -the test is an objective question as to whether the employer induced or encouraged the injured employee to undertake the activity leading to the injury).

In the recent case of Ng v Pharmacor, Ms Ng was encouraged by two senior managers to participate in paddle boarding during a break in the final day of the program of the Bali retreat. She suffered a head injury. The managers had approached her directly to paddleboard, one participated and had sent a WhatsApp message to all attendees at the conference inviting them.
The encouragement was objectively clear. That it was done by senior leader fortifies the fact that it was work related. She was successful in her claim.

Andrew Douglas


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