WEBVTT - Can you sue for mental harm after getting sacked?

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<v Speaker 1>Already and this is the Daily This is the Daily os. Oh,

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<v Speaker 1>now it makes sense.

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<v Speaker 2>Good morning and welcome to the Daily Oz. It is Monday,

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<v Speaker 2>the fifteenth of December.

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<v Speaker 1>I'm Sam and I'm a child. Last week, the High

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<v Speaker 1>Court made a decision in a landmark case that will

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<v Speaker 1>no doubt have major implications for Australian employees. It opens

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<v Speaker 1>the door for workers to sue the employer for poor

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<v Speaker 1>mental health after being unfairly dismissed.

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<v Speaker 2>It's funny because this almost seems like an inevitable part

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<v Speaker 2>of an unfair dismissal case. The idea that that would

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<v Speaker 2>be an unpleasant experience that would cause at least some

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<v Speaker 2>level of mental harm didn't really surprise me. It's an

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<v Speaker 2>incredibly traumatic experience for all parties involved, and it does

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<v Speaker 2>make sense that we're talking about mental harm in the

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<v Speaker 2>process of a dismissal. But now it's been tested in

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<v Speaker 2>front of Australia's highest court. And what I think we're

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<v Speaker 2>going to see after this decision which you're about to

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<v Speaker 2>take us through, is it becoming part of how employers

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<v Speaker 2>actually think about their behavior during the dismissal process. But

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<v Speaker 2>let's slow down. Why don't we take this in two

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<v Speaker 2>parts atrol. First, take me through the actual case and

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<v Speaker 2>what happened, and then let's look at what the High

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<v Speaker 2>Court had to say.

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<v Speaker 1>Okay, so this is quite a long story that kind

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<v Speaker 1>of develops over the last.

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<v Speaker 2>Five years, as these cases often are, YELP.

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<v Speaker 1>So the High Court ruling last week's centers around the

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<v Speaker 1>unfair dismissal of a man called Adam Alisha. So he

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<v Speaker 1>worked for Vision Australia for almost a decade and in

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<v Speaker 1>his last role there he was an adaptive technology consultant

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<v Speaker 1>and that's relevant to the story. Alicia's role basically required

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<v Speaker 1>him to travel across Australia where he would set up

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<v Speaker 1>technology for vision impaired people in their homes and offices. Now,

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<v Speaker 1>the court document shows that towards the end of his

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<v Speaker 1>time that he wasn't really having a good time. He

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<v Speaker 1>was treated for anxiety and depress related to sound sensitivity issues,

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<v Speaker 1>or that's what court documents described them as, and that

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<v Speaker 1>was among other things such as workplace stress and issues

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<v Speaker 1>with his colleagues.

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<v Speaker 2>Interesting, so he was having problems at work. He was

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<v Speaker 2>having these sound sensitivity issues which were directly impacting his

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<v Speaker 2>job working with sound and that was causing stress and

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<v Speaker 2>that was causing conflict with colleagues. Was that part of

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<v Speaker 2>the reason why he was actually fired?

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<v Speaker 1>Well, yes and no. So in March twenty fifteen, while

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<v Speaker 1>on a work trip in rural Victoria, Alicia made a

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<v Speaker 1>noise complaint at the hotel he was staying at. Right,

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<v Speaker 1>But then after his stay, the hotel actually made a

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<v Speaker 1>complaint to his employer, alleging that he was aggressive and

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<v Speaker 1>intimidating during that interaction.

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<v Speaker 2>Right, so, not a good stay at a hotel. He

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<v Speaker 2>complains about the sound, the hotel complains about his behavior.

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<v Speaker 2>It's then in vision Australia's court to respond. How did

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<v Speaker 2>they respond to that?

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<v Speaker 1>So actually it wasn't immediately dealt with because he went

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<v Speaker 1>on annual leave.

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<v Speaker 2>Right, Okay, So he goes on annual after this trip

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<v Speaker 2>which had some issues, and when he comes back that's

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<v Speaker 2>when the problems start exactly.

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<v Speaker 1>So the issue was referred up to the HR department.

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<v Speaker 1>But what was interesting was their reaction to the complaint.

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<v Speaker 1>Management said it wasn't surprising and that his behavior had

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<v Speaker 1>gotten worse.

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<v Speaker 2>And so I imagine there were conversations that were happening

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<v Speaker 2>whilst this employee was on his annual leave, he gets

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<v Speaker 2>back to work, management wants to have a chat with him.

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<v Speaker 2>How did that then pan out?

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<v Speaker 1>Yeah, that's right. So on his first day back from

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<v Speaker 1>annual leave, he was given a letter explaining that he

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<v Speaker 1>was being stood down because of what happened at the hotel,

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<v Speaker 1>and this is where the legal issues seemed to arise.

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<v Speaker 1>So he was told to return to the office in

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<v Speaker 1>two days where he was going to be given the

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<v Speaker 1>opportunity to kind of explain himself. Along with that, Alicia

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<v Speaker 1>was given strict orders not to speak to any other

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<v Speaker 1>staff members or he would be immediately fired.

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<v Speaker 2>It's interesting how this one has panned out, and I

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<v Speaker 2>guess we only know so much about it because it's

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<v Speaker 2>been detailed in the court documents. But he did get fired.

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<v Speaker 2>He didn't get fired for talking to his colleagues though.

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<v Speaker 1>That's right. At the meeting, Alisha denied these allegations, but

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<v Speaker 1>he was still fired. We'll be back with a deep

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<v Speaker 1>dive after this short break.

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<v Speaker 2>Okay, So we have an employee who's dismissed because of

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<v Speaker 2>what management says is a pattern of behavior that kind

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<v Speaker 2>of all accumulated in this incident at a hotel in Victoria.

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<v Speaker 2>I'm normally the person who kind of explains the legal

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<v Speaker 2>stuff here at TEDA, but you've really owned this story

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<v Speaker 2>and this reporting over the last week. I want you

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<v Speaker 2>to try and run with it. Talk me through what

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<v Speaker 2>happens then when Elisha brings a case of unfair dismissal

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<v Speaker 2>against Vision Australia to the courts.

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<v Speaker 1>Okay, so I'll give you the spark Notes version without

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<v Speaker 1>all the legal jargon. So Alicia first filed an unfair

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<v Speaker 1>dismissal case with the Fairwek Commission, and that was a

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<v Speaker 1>couple months after he was fired.

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<v Speaker 2>And what actually.

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<v Speaker 1>Happened was Vision Australia settled and agreed to pay him

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<v Speaker 1>more than twenty seven thousand dollars.

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<v Speaker 2>Which is not unusual for employers to try and kind

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<v Speaker 2>of make something go away and for it to not

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<v Speaker 2>eventuate into a year's long case. But that's exactly what's

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<v Speaker 2>happened here. They settled, but then it landed up back

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<v Speaker 2>in court.

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<v Speaker 1>Right yeah, And that happened years later. So in twenty

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<v Speaker 1>twenty he launched a case in the Victorian Supreme Court

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<v Speaker 1>and basically he alleged that his termination breached his employment

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<v Speaker 1>contract and he argued that that firing caused depression and

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<v Speaker 1>left him with no capacity to work for the foreseeable future. Interesting,

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<v Speaker 1>So that was the lengthy process and what ended up

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<v Speaker 1>happening was the court ruled in his favor, calling the

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<v Speaker 1>dismissal unfair, unjust and wholly unreasonable, and Vision Australia was

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<v Speaker 1>ordered to pay him one point four million dollars.

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<v Speaker 2>So it's interesting. It sounds like it's moved from a

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<v Speaker 2>case at the Fair Work Commission where it has settled

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<v Speaker 2>quite quickly, to really a more substantive case in the

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<v Speaker 2>Supreme Court, which is much more about Alicia's ability to

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<v Speaker 2>have ongoing employment. And he would have argued that because

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<v Speaker 2>of that traumatic experience, he's lost all of these earnings

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<v Speaker 2>that he could have gotten over the next couple of decades.

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<v Speaker 2>Even it's a big penalty for Vision Australia to pay

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<v Speaker 2>one point four million is a lot. What did they

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<v Speaker 2>say when that judgment was handed.

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<v Speaker 1>Down, Well, they reacted like any other company that wouldn't

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<v Speaker 1>want to pay a former employee a million dollars. Yeah,

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<v Speaker 1>they actually appeal the decision and in court they argued

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<v Speaker 1>that Elisha shouldn't have been paid that much money for

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<v Speaker 1>two main reasons.

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<v Speaker 2>Okay, And this is the really important bit. This forms

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<v Speaker 2>the basis of their appeal. Let's go through a number one.

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<v Speaker 1>Okay, So number one, under Australian law, Alisha wasn't entitled

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<v Speaker 1>to damages for poor mental health resulting from the breach contract.

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<v Speaker 2>Okay, So break that down. That means that Vision Australia

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<v Speaker 2>tried to argue there's nothing in Australian law that says

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<v Speaker 2>if you're sacked, you are entitled to damages if you

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<v Speaker 2>are mentally harmed because of that incident. Okay, So then

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<v Speaker 2>what's number two?

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<v Speaker 1>So number two, Vision Australia basically tried to argue that

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<v Speaker 1>his poor mental health post firing was actually a product

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<v Speaker 1>of his pre existing mental health conditions.

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<v Speaker 2>And we've talked through that before. That was part of

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<v Speaker 2>how Vision Australia kind of diagnosed his behavior at that

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<v Speaker 2>hotel and led to his sacking. So Vision Australia takes

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<v Speaker 2>this decision from the Supreme Court and appeals it. And

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<v Speaker 2>that's where we get to the High Court, which is

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<v Speaker 2>why we're talking about this today. We've just had a

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<v Speaker 2>decision from the High Court. Take me through what they said.

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<v Speaker 1>Well, the High Court actually overturned vision Australia's appeal and

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<v Speaker 1>supported the original ruling, which was in favor of Alisia.

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<v Speaker 1>That original ruling basically called his firing a sham and

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<v Speaker 1>a disgrace.

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<v Speaker 2>Okay, So that's really interesting because the High Court is

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<v Speaker 2>when the decisions are made that actually can't be appealed

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<v Speaker 2>anymore unless there's some sort of new evidence or anything.

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<v Speaker 2>What are the wider implications here? Then if we have

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<v Speaker 2>that decision?

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<v Speaker 1>Yeah, you're absolutely right. So high Court judgments set legal precedents,

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<v Speaker 1>which are basically cases that established the rules and principal

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<v Speaker 1>subsequent cases with similar facts and issues must follow. And

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<v Speaker 1>usually these cases are the first of their.

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<v Speaker 2>Kind, which kind of is what happened here.

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<v Speaker 1>Absolutely and like you said, high court decisions can't be appealed,

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<v Speaker 1>so this basically is the definite end of a case

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<v Speaker 1>like this.

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<v Speaker 2>And so in reality, what this means is that Australian workers,

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<v Speaker 2>because of this High Court decision, now have grounds to

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<v Speaker 2>sue for damages relating to a psychiatric injury after they're

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<v Speaker 2>dismissed unfairly. And it's a really interesting one, a toll,

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<v Speaker 2>because what often happens in these sorts of employment scenarios

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<v Speaker 2>where something is tested for the first time in the court.

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<v Speaker 2>Is that then we often find employers having to respond

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<v Speaker 2>to not get in danger themselves from this new rule

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<v Speaker 2>of the game essentially, So I wouldn't be surprised if

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<v Speaker 2>we see new policies in the workplace around how we

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<v Speaker 2>preserve the mental health of our employees when there is

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<v Speaker 2>an investigation into potential misbehavior or when there's disciplinary action

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<v Speaker 2>taken at the very extreme, when there is a dismissal process,

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<v Speaker 2>and that's not necessarily a bad thing. I mean, we

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<v Speaker 2>should be caring for the mental health of employees who

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<v Speaker 2>are going through something like that despite the fact the

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<v Speaker 2>relationship has broken down.

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<v Speaker 1>Yeah, and it's taken us quite a while to get there,

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<v Speaker 1>But it will be interesting to see how kind of

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<v Speaker 1>workplace lawyers kind of respond to this major decision made

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<v Speaker 1>last week very interesting.

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<v Speaker 2>We're going to keep tabs on this story because I

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<v Speaker 2>know this type of story really does have relevance to

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<v Speaker 2>a lot of people who are in the workforce, particularly

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<v Speaker 2>young people. A troll, thank you so much for taking

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<v Speaker 2>us through that you passed your legal bar exam, Flying Colors,

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<v Speaker 1>My name is Lily Maddon and I'm a proud Arunda

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