Speaker 1: Already and this is the Daily This is the Daily os. Oh,
Speaker 1: now it makes sense.
Speaker 2: Good morning and welcome to the Daily Oz. It is Monday,
Speaker 2: the fifteenth of December.
Speaker 1: I'm Sam and I'm a child. Last week, the High
Speaker 1: Court made a decision in a landmark case that will
Speaker 1: no doubt have major implications for Australian employees. It opens
Speaker 1: the door for workers to sue the employer for poor
Speaker 1: mental health after being unfairly dismissed.
Speaker 2: It's funny because this almost seems like an inevitable part
Speaker 2: of an unfair dismissal case. The idea that that would
Speaker 2: be an unpleasant experience that would cause at least some
Speaker 2: level of mental harm didn't really surprise me. It's an
Speaker 2: incredibly traumatic experience for all parties involved, and it does
Speaker 2: make sense that we're talking about mental harm in the
Speaker 2: process of a dismissal. But now it's been tested in
Speaker 2: front of Australia's highest court. And what I think we're
Speaker 2: going to see after this decision which you're about to
Speaker 2: take us through, is it becoming part of how employers
Speaker 2: actually think about their behavior during the dismissal process. But
Speaker 2: let's slow down. Why don't we take this in two
Speaker 2: parts atrol. First, take me through the actual case and
Speaker 2: what happened, and then let's look at what the High
Speaker 2: Court had to say.
Speaker 1: Okay, so this is quite a long story that kind
Speaker 1: of develops over the last.
Speaker 2: Five years, as these cases often are, YELP.
Speaker 1: So the High Court ruling last week's centers around the
Speaker 1: unfair dismissal of a man called Adam Alisha. So he
Speaker 1: worked for Vision Australia for almost a decade and in
Speaker 1: his last role there he was an adaptive technology consultant
Speaker 1: and that's relevant to the story. Alicia's role basically required
Speaker 1: him to travel across Australia where he would set up
Speaker 1: technology for vision impaired people in their homes and offices. Now,
Speaker 1: the court document shows that towards the end of his
Speaker 1: time that he wasn't really having a good time. He
Speaker 1: was treated for anxiety and depress related to sound sensitivity issues,
Speaker 1: or that's what court documents described them as, and that
Speaker 1: was among other things such as workplace stress and issues
Speaker 1: with his colleagues.
Speaker 2: Interesting, so he was having problems at work. He was
Speaker 2: having these sound sensitivity issues which were directly impacting his
Speaker 2: job working with sound and that was causing stress and
Speaker 2: that was causing conflict with colleagues. Was that part of
Speaker 2: the reason why he was actually fired?
Speaker 1: Well, yes and no. So in March twenty fifteen, while
Speaker 1: on a work trip in rural Victoria, Alicia made a
Speaker 1: noise complaint at the hotel he was staying at. Right,
Speaker 1: But then after his stay, the hotel actually made a
Speaker 1: complaint to his employer, alleging that he was aggressive and
Speaker 1: intimidating during that interaction.
Speaker 2: Right, so, not a good stay at a hotel. He
Speaker 2: complains about the sound, the hotel complains about his behavior.
Speaker 2: It's then in vision Australia's court to respond. How did
Speaker 2: they respond to that?
Speaker 1: So actually it wasn't immediately dealt with because he went
Speaker 1: on annual leave.
Speaker 2: Right, Okay, So he goes on annual after this trip
Speaker 2: which had some issues, and when he comes back that's
Speaker 2: when the problems start exactly.
Speaker 1: So the issue was referred up to the HR department.
Speaker 1: But what was interesting was their reaction to the complaint.
Speaker 1: Management said it wasn't surprising and that his behavior had
Speaker 1: gotten worse.
Speaker 2: And so I imagine there were conversations that were happening
Speaker 2: whilst this employee was on his annual leave, he gets
Speaker 2: back to work, management wants to have a chat with him.
Speaker 2: How did that then pan out?
Speaker 1: Yeah, that's right. So on his first day back from
Speaker 1: annual leave, he was given a letter explaining that he
Speaker 1: was being stood down because of what happened at the hotel,
Speaker 1: and this is where the legal issues seemed to arise.
Speaker 1: So he was told to return to the office in
Speaker 1: two days where he was going to be given the
Speaker 1: opportunity to kind of explain himself. Along with that, Alicia
Speaker 1: was given strict orders not to speak to any other
Speaker 1: staff members or he would be immediately fired.
Speaker 2: It's interesting how this one has panned out, and I
Speaker 2: guess we only know so much about it because it's
Speaker 2: been detailed in the court documents. But he did get fired.
Speaker 2: He didn't get fired for talking to his colleagues though.
Speaker 1: That's right. At the meeting, Alisha denied these allegations, but
Speaker 1: he was still fired. We'll be back with a deep
Speaker 1: dive after this short break.
Speaker 2: Okay, So we have an employee who's dismissed because of
Speaker 2: what management says is a pattern of behavior that kind
Speaker 2: of all accumulated in this incident at a hotel in Victoria.
Speaker 2: I'm normally the person who kind of explains the legal
Speaker 2: stuff here at TEDA, but you've really owned this story
Speaker 2: and this reporting over the last week. I want you
Speaker 2: to try and run with it. Talk me through what
Speaker 2: happens then when Elisha brings a case of unfair dismissal
Speaker 2: against Vision Australia to the courts.
Speaker 1: Okay, so I'll give you the spark Notes version without
Speaker 1: all the legal jargon. So Alicia first filed an unfair
Speaker 1: dismissal case with the Fairwek Commission, and that was a
Speaker 1: couple months after he was fired.
Speaker 2: And what actually.
Speaker 1: Happened was Vision Australia settled and agreed to pay him
Speaker 1: more than twenty seven thousand dollars.
Speaker 2: Which is not unusual for employers to try and kind
Speaker 2: of make something go away and for it to not
Speaker 2: eventuate into a year's long case. But that's exactly what's
Speaker 2: happened here. They settled, but then it landed up back
Speaker 2: in court.
Speaker 1: Right yeah, And that happened years later. So in twenty
Speaker 1: twenty he launched a case in the Victorian Supreme Court
Speaker 1: and basically he alleged that his termination breached his employment
Speaker 1: contract and he argued that that firing caused depression and
Speaker 1: left him with no capacity to work for the foreseeable future. Interesting,
Speaker 1: So that was the lengthy process and what ended up
Speaker 1: happening was the court ruled in his favor, calling the
Speaker 1: dismissal unfair, unjust and wholly unreasonable, and Vision Australia was
Speaker 1: ordered to pay him one point four million dollars.
Speaker 2: So it's interesting. It sounds like it's moved from a
Speaker 2: case at the Fair Work Commission where it has settled
Speaker 2: quite quickly, to really a more substantive case in the
Speaker 2: Supreme Court, which is much more about Alicia's ability to
Speaker 2: have ongoing employment. And he would have argued that because
Speaker 2: of that traumatic experience, he's lost all of these earnings
Speaker 2: that he could have gotten over the next couple of decades.
Speaker 2: Even it's a big penalty for Vision Australia to pay
Speaker 2: one point four million is a lot. What did they
Speaker 2: say when that judgment was handed.
Speaker 1: Down, Well, they reacted like any other company that wouldn't
Speaker 1: want to pay a former employee a million dollars. Yeah,
Speaker 1: they actually appeal the decision and in court they argued
Speaker 1: that Elisha shouldn't have been paid that much money for
Speaker 1: two main reasons.
Speaker 2: Okay, And this is the really important bit. This forms
Speaker 2: the basis of their appeal. Let's go through a number one.
Speaker 1: Okay, So number one, under Australian law, Alisha wasn't entitled
Speaker 1: to damages for poor mental health resulting from the breach contract.
Speaker 2: Okay, So break that down. That means that Vision Australia
Speaker 2: tried to argue there's nothing in Australian law that says
Speaker 2: if you're sacked, you are entitled to damages if you
Speaker 2: are mentally harmed because of that incident. Okay, So then
Speaker 2: what's number two?
Speaker 1: So number two, Vision Australia basically tried to argue that
Speaker 1: his poor mental health post firing was actually a product
Speaker 1: of his pre existing mental health conditions.
Speaker 2: And we've talked through that before. That was part of
Speaker 2: how Vision Australia kind of diagnosed his behavior at that
Speaker 2: hotel and led to his sacking. So Vision Australia takes
Speaker 2: this decision from the Supreme Court and appeals it. And
Speaker 2: that's where we get to the High Court, which is
Speaker 2: why we're talking about this today. We've just had a
Speaker 2: decision from the High Court. Take me through what they said.
Speaker 1: Well, the High Court actually overturned vision Australia's appeal and
Speaker 1: supported the original ruling, which was in favor of Alisia.
Speaker 1: That original ruling basically called his firing a sham and
Speaker 1: a disgrace.
Speaker 2: Okay, So that's really interesting because the High Court is
Speaker 2: when the decisions are made that actually can't be appealed
Speaker 2: anymore unless there's some sort of new evidence or anything.
Speaker 2: What are the wider implications here? Then if we have
Speaker 2: that decision?
Speaker 1: Yeah, you're absolutely right. So high Court judgments set legal precedents,
Speaker 1: which are basically cases that established the rules and principal
Speaker 1: subsequent cases with similar facts and issues must follow. And
Speaker 1: usually these cases are the first of their.
Speaker 2: Kind, which kind of is what happened here.
Speaker 1: Absolutely and like you said, high court decisions can't be appealed,
Speaker 1: so this basically is the definite end of a case
Speaker 1: like this.
Speaker 2: And so in reality, what this means is that Australian workers,
Speaker 2: because of this High Court decision, now have grounds to
Speaker 2: sue for damages relating to a psychiatric injury after they're
Speaker 2: dismissed unfairly. And it's a really interesting one, a toll,
Speaker 2: because what often happens in these sorts of employment scenarios
Speaker 2: where something is tested for the first time in the court.
Speaker 2: Is that then we often find employers having to respond
Speaker 2: to not get in danger themselves from this new rule
Speaker 2: of the game essentially, So I wouldn't be surprised if
Speaker 2: we see new policies in the workplace around how we
Speaker 2: preserve the mental health of our employees when there is
Speaker 2: an investigation into potential misbehavior or when there's disciplinary action
Speaker 2: taken at the very extreme, when there is a dismissal process,
Speaker 2: and that's not necessarily a bad thing. I mean, we
Speaker 2: should be caring for the mental health of employees who
Speaker 2: are going through something like that despite the fact the
Speaker 2: relationship has broken down.
Speaker 1: Yeah, and it's taken us quite a while to get there,
Speaker 1: But it will be interesting to see how kind of
Speaker 1: workplace lawyers kind of respond to this major decision made
Speaker 1: last week very interesting.
Speaker 2: We're going to keep tabs on this story because I
Speaker 2: know this type of story really does have relevance to
Speaker 2: a lot of people who are in the workforce, particularly
Speaker 2: young people. A troll, thank you so much for taking
Speaker 2: us through that you passed your legal bar exam, Flying Colors,
Speaker 2: and thank you for joining us on the daily ours
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