1 00:00:00,560 --> 00:00:05,680 Speaker 1: Already and this is the Daily This is the Daily os. Oh, 2 00:00:05,880 --> 00:00:06,880 Speaker 1: now it makes sense. 3 00:00:14,800 --> 00:00:17,000 Speaker 2: Good morning and welcome to the Daily Oz. It is Monday, 4 00:00:17,040 --> 00:00:18,320 Speaker 2: the fifteenth of December. 5 00:00:18,360 --> 00:00:21,440 Speaker 1: I'm Sam and I'm a child. Last week, the High 6 00:00:21,480 --> 00:00:24,119 Speaker 1: Court made a decision in a landmark case that will 7 00:00:24,160 --> 00:00:28,680 Speaker 1: no doubt have major implications for Australian employees. It opens 8 00:00:28,720 --> 00:00:31,560 Speaker 1: the door for workers to sue the employer for poor 9 00:00:31,600 --> 00:00:34,160 Speaker 1: mental health after being unfairly dismissed. 10 00:00:37,680 --> 00:00:41,440 Speaker 2: It's funny because this almost seems like an inevitable part 11 00:00:41,680 --> 00:00:44,920 Speaker 2: of an unfair dismissal case. The idea that that would 12 00:00:44,960 --> 00:00:47,879 Speaker 2: be an unpleasant experience that would cause at least some 13 00:00:48,000 --> 00:00:51,360 Speaker 2: level of mental harm didn't really surprise me. It's an 14 00:00:51,360 --> 00:00:54,840 Speaker 2: incredibly traumatic experience for all parties involved, and it does 15 00:00:54,920 --> 00:00:57,320 Speaker 2: make sense that we're talking about mental harm in the 16 00:00:57,360 --> 00:01:00,160 Speaker 2: process of a dismissal. But now it's been tested in 17 00:01:00,160 --> 00:01:03,720 Speaker 2: front of Australia's highest court. And what I think we're 18 00:01:03,720 --> 00:01:05,920 Speaker 2: going to see after this decision which you're about to 19 00:01:05,920 --> 00:01:09,080 Speaker 2: take us through, is it becoming part of how employers 20 00:01:09,240 --> 00:01:13,760 Speaker 2: actually think about their behavior during the dismissal process. But 21 00:01:13,840 --> 00:01:15,720 Speaker 2: let's slow down. Why don't we take this in two 22 00:01:15,760 --> 00:01:19,040 Speaker 2: parts atrol. First, take me through the actual case and 23 00:01:19,080 --> 00:01:21,040 Speaker 2: what happened, and then let's look at what the High 24 00:01:21,040 --> 00:01:21,839 Speaker 2: Court had to say. 25 00:01:22,319 --> 00:01:24,600 Speaker 1: Okay, so this is quite a long story that kind 26 00:01:24,600 --> 00:01:26,120 Speaker 1: of develops over the last. 27 00:01:25,840 --> 00:01:28,199 Speaker 2: Five years, as these cases often are, YELP. 28 00:01:28,640 --> 00:01:31,520 Speaker 1: So the High Court ruling last week's centers around the 29 00:01:31,600 --> 00:01:35,360 Speaker 1: unfair dismissal of a man called Adam Alisha. So he 30 00:01:35,440 --> 00:01:38,280 Speaker 1: worked for Vision Australia for almost a decade and in 31 00:01:38,319 --> 00:01:41,880 Speaker 1: his last role there he was an adaptive technology consultant 32 00:01:42,080 --> 00:01:46,080 Speaker 1: and that's relevant to the story. Alicia's role basically required 33 00:01:46,160 --> 00:01:48,400 Speaker 1: him to travel across Australia where he would set up 34 00:01:48,400 --> 00:01:53,280 Speaker 1: technology for vision impaired people in their homes and offices. Now, 35 00:01:53,440 --> 00:01:55,720 Speaker 1: the court document shows that towards the end of his 36 00:01:55,800 --> 00:01:58,560 Speaker 1: time that he wasn't really having a good time. He 37 00:01:58,640 --> 00:02:02,400 Speaker 1: was treated for anxiety and depress related to sound sensitivity issues, 38 00:02:02,480 --> 00:02:05,720 Speaker 1: or that's what court documents described them as, and that 39 00:02:05,880 --> 00:02:09,240 Speaker 1: was among other things such as workplace stress and issues 40 00:02:09,280 --> 00:02:10,239 Speaker 1: with his colleagues. 41 00:02:10,400 --> 00:02:13,000 Speaker 2: Interesting, so he was having problems at work. He was 42 00:02:13,040 --> 00:02:17,240 Speaker 2: having these sound sensitivity issues which were directly impacting his 43 00:02:17,360 --> 00:02:20,760 Speaker 2: job working with sound and that was causing stress and 44 00:02:20,800 --> 00:02:24,120 Speaker 2: that was causing conflict with colleagues. Was that part of 45 00:02:24,160 --> 00:02:26,120 Speaker 2: the reason why he was actually fired? 46 00:02:26,400 --> 00:02:30,320 Speaker 1: Well, yes and no. So in March twenty fifteen, while 47 00:02:30,360 --> 00:02:33,160 Speaker 1: on a work trip in rural Victoria, Alicia made a 48 00:02:33,240 --> 00:02:35,560 Speaker 1: noise complaint at the hotel he was staying at. Right, 49 00:02:36,120 --> 00:02:38,520 Speaker 1: But then after his stay, the hotel actually made a 50 00:02:38,520 --> 00:02:41,840 Speaker 1: complaint to his employer, alleging that he was aggressive and 51 00:02:42,000 --> 00:02:43,679 Speaker 1: intimidating during that interaction. 52 00:02:43,919 --> 00:02:45,520 Speaker 2: Right, so, not a good stay at a hotel. He 53 00:02:45,560 --> 00:02:48,720 Speaker 2: complains about the sound, the hotel complains about his behavior. 54 00:02:49,160 --> 00:02:52,440 Speaker 2: It's then in vision Australia's court to respond. How did 55 00:02:52,440 --> 00:02:53,440 Speaker 2: they respond to that? 56 00:02:54,040 --> 00:02:57,320 Speaker 1: So actually it wasn't immediately dealt with because he went 57 00:02:57,360 --> 00:02:58,399 Speaker 1: on annual leave. 58 00:02:58,520 --> 00:03:01,000 Speaker 2: Right, Okay, So he goes on annual after this trip 59 00:03:01,040 --> 00:03:04,040 Speaker 2: which had some issues, and when he comes back that's 60 00:03:04,040 --> 00:03:05,680 Speaker 2: when the problems start exactly. 61 00:03:06,080 --> 00:03:09,400 Speaker 1: So the issue was referred up to the HR department. 62 00:03:09,760 --> 00:03:12,480 Speaker 1: But what was interesting was their reaction to the complaint. 63 00:03:12,800 --> 00:03:15,600 Speaker 1: Management said it wasn't surprising and that his behavior had 64 00:03:15,639 --> 00:03:16,320 Speaker 1: gotten worse. 65 00:03:16,600 --> 00:03:18,840 Speaker 2: And so I imagine there were conversations that were happening 66 00:03:18,880 --> 00:03:21,839 Speaker 2: whilst this employee was on his annual leave, he gets 67 00:03:21,880 --> 00:03:24,400 Speaker 2: back to work, management wants to have a chat with him. 68 00:03:24,440 --> 00:03:25,760 Speaker 2: How did that then pan out? 69 00:03:26,000 --> 00:03:28,480 Speaker 1: Yeah, that's right. So on his first day back from 70 00:03:28,480 --> 00:03:30,600 Speaker 1: annual leave, he was given a letter explaining that he 71 00:03:30,680 --> 00:03:33,359 Speaker 1: was being stood down because of what happened at the hotel, 72 00:03:33,600 --> 00:03:35,920 Speaker 1: and this is where the legal issues seemed to arise. 73 00:03:36,440 --> 00:03:38,680 Speaker 1: So he was told to return to the office in 74 00:03:38,720 --> 00:03:40,960 Speaker 1: two days where he was going to be given the 75 00:03:40,960 --> 00:03:44,520 Speaker 1: opportunity to kind of explain himself. Along with that, Alicia 76 00:03:44,600 --> 00:03:47,040 Speaker 1: was given strict orders not to speak to any other 77 00:03:47,080 --> 00:03:49,720 Speaker 1: staff members or he would be immediately fired. 78 00:03:50,280 --> 00:03:53,000 Speaker 2: It's interesting how this one has panned out, and I 79 00:03:53,000 --> 00:03:55,040 Speaker 2: guess we only know so much about it because it's 80 00:03:55,040 --> 00:03:58,440 Speaker 2: been detailed in the court documents. But he did get fired. 81 00:03:58,640 --> 00:04:01,880 Speaker 2: He didn't get fired for talking to his colleagues though. 82 00:04:01,760 --> 00:04:05,160 Speaker 1: That's right. At the meeting, Alisha denied these allegations, but 83 00:04:05,320 --> 00:04:07,800 Speaker 1: he was still fired. We'll be back with a deep 84 00:04:07,840 --> 00:04:09,400 Speaker 1: dive after this short break. 85 00:04:12,360 --> 00:04:15,880 Speaker 2: Okay, So we have an employee who's dismissed because of 86 00:04:16,160 --> 00:04:19,120 Speaker 2: what management says is a pattern of behavior that kind 87 00:04:19,200 --> 00:04:23,520 Speaker 2: of all accumulated in this incident at a hotel in Victoria. 88 00:04:24,080 --> 00:04:26,799 Speaker 2: I'm normally the person who kind of explains the legal 89 00:04:26,880 --> 00:04:29,240 Speaker 2: stuff here at TEDA, but you've really owned this story 90 00:04:29,240 --> 00:04:31,159 Speaker 2: and this reporting over the last week. I want you 91 00:04:31,200 --> 00:04:33,200 Speaker 2: to try and run with it. Talk me through what 92 00:04:33,320 --> 00:04:37,919 Speaker 2: happens then when Elisha brings a case of unfair dismissal 93 00:04:38,080 --> 00:04:40,160 Speaker 2: against Vision Australia to the courts. 94 00:04:40,400 --> 00:04:43,040 Speaker 1: Okay, so I'll give you the spark Notes version without 95 00:04:43,040 --> 00:04:46,520 Speaker 1: all the legal jargon. So Alicia first filed an unfair 96 00:04:46,520 --> 00:04:48,840 Speaker 1: dismissal case with the Fairwek Commission, and that was a 97 00:04:48,880 --> 00:04:50,360 Speaker 1: couple months after he was fired. 98 00:04:50,760 --> 00:04:52,080 Speaker 2: And what actually. 99 00:04:51,839 --> 00:04:55,200 Speaker 1: Happened was Vision Australia settled and agreed to pay him 100 00:04:55,200 --> 00:04:56,839 Speaker 1: more than twenty seven thousand dollars. 101 00:04:56,960 --> 00:04:59,440 Speaker 2: Which is not unusual for employers to try and kind 102 00:04:59,440 --> 00:05:02,880 Speaker 2: of make something go away and for it to not 103 00:05:03,000 --> 00:05:05,680 Speaker 2: eventuate into a year's long case. But that's exactly what's 104 00:05:05,680 --> 00:05:08,320 Speaker 2: happened here. They settled, but then it landed up back 105 00:05:08,360 --> 00:05:08,960 Speaker 2: in court. 106 00:05:08,839 --> 00:05:12,839 Speaker 1: Right yeah, And that happened years later. So in twenty 107 00:05:12,839 --> 00:05:15,640 Speaker 1: twenty he launched a case in the Victorian Supreme Court 108 00:05:15,960 --> 00:05:19,320 Speaker 1: and basically he alleged that his termination breached his employment 109 00:05:19,400 --> 00:05:23,720 Speaker 1: contract and he argued that that firing caused depression and 110 00:05:23,880 --> 00:05:27,839 Speaker 1: left him with no capacity to work for the foreseeable future. Interesting, 111 00:05:28,200 --> 00:05:31,440 Speaker 1: So that was the lengthy process and what ended up 112 00:05:31,480 --> 00:05:34,400 Speaker 1: happening was the court ruled in his favor, calling the 113 00:05:34,440 --> 00:05:39,760 Speaker 1: dismissal unfair, unjust and wholly unreasonable, and Vision Australia was 114 00:05:39,839 --> 00:05:42,679 Speaker 1: ordered to pay him one point four million dollars. 115 00:05:43,200 --> 00:05:45,520 Speaker 2: So it's interesting. It sounds like it's moved from a 116 00:05:45,560 --> 00:05:48,600 Speaker 2: case at the Fair Work Commission where it has settled 117 00:05:48,640 --> 00:05:51,880 Speaker 2: quite quickly, to really a more substantive case in the 118 00:05:51,920 --> 00:05:55,880 Speaker 2: Supreme Court, which is much more about Alicia's ability to 119 00:05:55,960 --> 00:05:59,800 Speaker 2: have ongoing employment. And he would have argued that because 120 00:05:59,800 --> 00:06:02,560 Speaker 2: of that traumatic experience, he's lost all of these earnings 121 00:06:02,600 --> 00:06:05,520 Speaker 2: that he could have gotten over the next couple of decades. 122 00:06:05,560 --> 00:06:08,240 Speaker 2: Even it's a big penalty for Vision Australia to pay 123 00:06:08,240 --> 00:06:11,080 Speaker 2: one point four million is a lot. What did they 124 00:06:11,120 --> 00:06:12,919 Speaker 2: say when that judgment was handed. 125 00:06:12,640 --> 00:06:15,960 Speaker 1: Down, Well, they reacted like any other company that wouldn't 126 00:06:15,960 --> 00:06:19,080 Speaker 1: want to pay a former employee a million dollars. Yeah, 127 00:06:19,120 --> 00:06:22,440 Speaker 1: they actually appeal the decision and in court they argued 128 00:06:22,480 --> 00:06:25,280 Speaker 1: that Elisha shouldn't have been paid that much money for 129 00:06:25,400 --> 00:06:26,480 Speaker 1: two main reasons. 130 00:06:26,520 --> 00:06:29,000 Speaker 2: Okay, And this is the really important bit. This forms 131 00:06:29,040 --> 00:06:32,080 Speaker 2: the basis of their appeal. Let's go through a number one. 132 00:06:32,279 --> 00:06:36,040 Speaker 1: Okay, So number one, under Australian law, Alisha wasn't entitled 133 00:06:36,040 --> 00:06:39,880 Speaker 1: to damages for poor mental health resulting from the breach contract. 134 00:06:40,160 --> 00:06:42,440 Speaker 2: Okay, So break that down. That means that Vision Australia 135 00:06:42,440 --> 00:06:45,480 Speaker 2: tried to argue there's nothing in Australian law that says 136 00:06:46,000 --> 00:06:50,320 Speaker 2: if you're sacked, you are entitled to damages if you 137 00:06:50,600 --> 00:06:53,640 Speaker 2: are mentally harmed because of that incident. Okay, So then 138 00:06:53,720 --> 00:06:54,480 Speaker 2: what's number two? 139 00:06:54,880 --> 00:06:57,560 Speaker 1: So number two, Vision Australia basically tried to argue that 140 00:06:57,640 --> 00:07:01,880 Speaker 1: his poor mental health post firing was actually a product 141 00:07:01,920 --> 00:07:04,359 Speaker 1: of his pre existing mental health conditions. 142 00:07:04,640 --> 00:07:08,000 Speaker 2: And we've talked through that before. That was part of 143 00:07:08,120 --> 00:07:11,040 Speaker 2: how Vision Australia kind of diagnosed his behavior at that 144 00:07:11,320 --> 00:07:15,080 Speaker 2: hotel and led to his sacking. So Vision Australia takes 145 00:07:15,080 --> 00:07:17,400 Speaker 2: this decision from the Supreme Court and appeals it. And 146 00:07:17,440 --> 00:07:19,200 Speaker 2: that's where we get to the High Court, which is 147 00:07:19,360 --> 00:07:22,200 Speaker 2: why we're talking about this today. We've just had a 148 00:07:22,280 --> 00:07:25,800 Speaker 2: decision from the High Court. Take me through what they said. 149 00:07:26,200 --> 00:07:30,560 Speaker 1: Well, the High Court actually overturned vision Australia's appeal and 150 00:07:30,800 --> 00:07:34,280 Speaker 1: supported the original ruling, which was in favor of Alisia. 151 00:07:34,400 --> 00:07:37,560 Speaker 1: That original ruling basically called his firing a sham and 152 00:07:37,600 --> 00:07:38,360 Speaker 1: a disgrace. 153 00:07:38,840 --> 00:07:41,440 Speaker 2: Okay, So that's really interesting because the High Court is 154 00:07:41,480 --> 00:07:44,480 Speaker 2: when the decisions are made that actually can't be appealed 155 00:07:44,560 --> 00:07:47,000 Speaker 2: anymore unless there's some sort of new evidence or anything. 156 00:07:47,320 --> 00:07:49,960 Speaker 2: What are the wider implications here? Then if we have 157 00:07:50,040 --> 00:07:50,640 Speaker 2: that decision? 158 00:07:51,040 --> 00:07:55,400 Speaker 1: Yeah, you're absolutely right. So high Court judgments set legal precedents, 159 00:07:55,440 --> 00:07:58,480 Speaker 1: which are basically cases that established the rules and principal 160 00:07:58,600 --> 00:08:03,000 Speaker 1: subsequent cases with similar facts and issues must follow. And 161 00:08:03,280 --> 00:08:05,440 Speaker 1: usually these cases are the first of their. 162 00:08:05,440 --> 00:08:07,240 Speaker 2: Kind, which kind of is what happened here. 163 00:08:07,520 --> 00:08:12,240 Speaker 1: Absolutely and like you said, high court decisions can't be appealed, 164 00:08:12,360 --> 00:08:15,000 Speaker 1: so this basically is the definite end of a case 165 00:08:15,160 --> 00:08:15,360 Speaker 1: like this. 166 00:08:15,800 --> 00:08:19,360 Speaker 2: And so in reality, what this means is that Australian workers, 167 00:08:19,720 --> 00:08:23,080 Speaker 2: because of this High Court decision, now have grounds to 168 00:08:23,200 --> 00:08:28,000 Speaker 2: sue for damages relating to a psychiatric injury after they're 169 00:08:28,000 --> 00:08:31,560 Speaker 2: dismissed unfairly. And it's a really interesting one, a toll, 170 00:08:31,640 --> 00:08:35,080 Speaker 2: because what often happens in these sorts of employment scenarios 171 00:08:35,080 --> 00:08:37,880 Speaker 2: where something is tested for the first time in the court. 172 00:08:38,200 --> 00:08:41,120 Speaker 2: Is that then we often find employers having to respond 173 00:08:41,640 --> 00:08:44,360 Speaker 2: to not get in danger themselves from this new rule 174 00:08:44,440 --> 00:08:47,000 Speaker 2: of the game essentially, So I wouldn't be surprised if 175 00:08:47,040 --> 00:08:51,600 Speaker 2: we see new policies in the workplace around how we 176 00:08:51,640 --> 00:08:54,599 Speaker 2: preserve the mental health of our employees when there is 177 00:08:54,640 --> 00:08:58,880 Speaker 2: an investigation into potential misbehavior or when there's disciplinary action 178 00:08:59,040 --> 00:09:03,200 Speaker 2: taken at the very extreme, when there is a dismissal process, 179 00:09:03,920 --> 00:09:06,360 Speaker 2: and that's not necessarily a bad thing. I mean, we 180 00:09:06,400 --> 00:09:09,640 Speaker 2: should be caring for the mental health of employees who 181 00:09:09,679 --> 00:09:12,240 Speaker 2: are going through something like that despite the fact the 182 00:09:12,280 --> 00:09:13,520 Speaker 2: relationship has broken down. 183 00:09:14,080 --> 00:09:16,160 Speaker 1: Yeah, and it's taken us quite a while to get there, 184 00:09:16,200 --> 00:09:18,280 Speaker 1: But it will be interesting to see how kind of 185 00:09:18,480 --> 00:09:21,760 Speaker 1: workplace lawyers kind of respond to this major decision made 186 00:09:21,840 --> 00:09:23,079 Speaker 1: last week very interesting. 187 00:09:23,160 --> 00:09:25,160 Speaker 2: We're going to keep tabs on this story because I 188 00:09:25,200 --> 00:09:28,160 Speaker 2: know this type of story really does have relevance to 189 00:09:28,200 --> 00:09:30,439 Speaker 2: a lot of people who are in the workforce, particularly 190 00:09:30,480 --> 00:09:32,839 Speaker 2: young people. A troll, thank you so much for taking 191 00:09:32,880 --> 00:09:36,160 Speaker 2: us through that you passed your legal bar exam, Flying Colors, 192 00:09:36,200 --> 00:09:37,959 Speaker 2: and thank you for joining us on the daily ours 193 00:09:38,040 --> 00:09:40,480 Speaker 2: this morning. If you're listening to this podcast on Spotify 194 00:09:40,600 --> 00:09:43,520 Speaker 2: or Apple, it would absolutely make our week. It was 195 00:09:43,520 --> 00:09:46,240 Speaker 2: my birthday last week. It would make my birthday if 196 00:09:46,240 --> 00:09:50,160 Speaker 2: you pressed subscribe or follow or get this episode five stars. 197 00:09:50,280 --> 00:09:52,520 Speaker 2: Let's climb up the ranks towards the end of the year. 198 00:09:52,600 --> 00:09:55,520 Speaker 2: If you're watching on YouTube, click follow on this channel 199 00:09:55,559 --> 00:09:57,880 Speaker 2: and we're going to have an incredible episode of journalism 200 00:09:57,920 --> 00:10:00,560 Speaker 2: for you every weekday Morning. Will be back again this 201 00:10:00,600 --> 00:10:02,920 Speaker 2: afternoon with the headlines until then, see you later. 202 00:10:07,120 --> 00:10:09,440 Speaker 1: My name is Lily Maddon and I'm a proud Arunda 203 00:10:09,640 --> 00:10:14,439 Speaker 1: bunjelung Caalcuton woman from Gadighl Country. 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