QLD EILS Seminar: Workplace Investigations

20 August 2014

WORKPLACE INVESTIGATIONS

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Workplace Investigations

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Agenda

Welcome

Part 1: The Investigation

Morning Tea

Part 2: Disputing Process and Findings

Guest Speaker: Trent Johnson

Questions


7

PART I: THE INVESTIGATION

Emma ThorntonSenior AssociateEmployment & Industrial Law Section

Agenda

Part I

The landscape

Problems with workplace investigations

Cases considering the process of workplace investigations

The role of unions in workplace investigations

Whether the respondent has rights to natural justice and procedural fairness

Participation as a reasonable and lawful direction

Refusal to answer questions

Involvement of external lawyers and claims of privilege


The landscape

Investigations usually take place in relation to allegations of misconduct such as:

bullying or harassment

safety breaches

other disciplinary matters

This presentation is focussed on the representation of some subject to allegations

Usually 3 methods of investigating :

1. Investigation by employer (usually HR)

2. Investigation by third party retained by employer (workplace investigators /

lawyers), and

3. Investigation by OHS authority (e.g. Workplace Health and Safety Queensland)


Problems with investigations

Investigations by employers present a number of risks:

Prejudgement of the issues because the investigators are too close to the people and

issues in question

Lack of expertise to conduct investigations

Inadequate separation between the investigator and the decision-maker, which may

limit the investigator’s independence

Having a preconceived outcome – designed to target someone or avoid legal liability

Bias in an investigation or decision maker

In Nikolich v Goldman Sachs, the Federal Court awarded the applicant over $500,000 for a

major depressive illness that the Court attributed primarily to botched handling of an

investigation of the applicant’s complaint, rather than the original grievance.


Problems with investigations

Investigations by third parties retained by employers:

Can bring more independence if the investigators are diligent and skilled

However, the industry itself has a number of systemic problems:

It is largely unregulated so anybody can set up as a workplace investigator

irrespective of skills and training – no accreditation is required

There is a strong financial incentive for the investigators to produce reports

that satisfy the employer for repeat business

Where lawyers conduct the investigation and reports or findings may be

withheld with a purported claim of legal professional privilege or re-written to

legally protect the employer

The employer often retains control and engineers its desired outcome


Problems with Investigations

The employer and investigator agree on terms of reference with no input

from the employee

Frequent communications between the employer and the investigator

without the employee’s knowledge

Provision of draft reports to the employer for review or editing prior to its

issuing to the employee

Full investigation reports being withheld from the employee – given minimal

information relying on confidentiality


Cases where form of investigations considered

AMWU v Visy Packaging Pty Ltd (No 3) [2013] FCA 525

Discussed need for workplace investigation

Found the investigation and disciplinary action taken against the employee was

adverse action

Found the investigation was not independent and impartial because:

The employer framed the questions to be asked

Attended the interview with the employee

Intervened in the investigation, revising the investigator’s findings

The employer’s lawyers communicated with the investigator during the

investigation with questions for clarification ‘in case this leads to you

updating or reviewing the report’.



Leyshan v Wyndum City Council [2013] FWC 7024

The Council engaged a private investigator to investigate a ‘target’

In the course of investigating the target, the investigator commenced an investigation of

Leyshan

The subsequent dismissal of Leyshan was harsh, unjust and unreasonable on account of

factors that included:

the Council’s unquestioning and uncritical reliance on the investigator’s report as the

basis for the allegations without going behind it or conducting their own investigation

as required by their Conduct and Performance Management policy

the employer’s evidence that they had not read the applicant’s written response at the

time of making the decision to dismiss him – despite asserting otherwise in the letter

of termination.



Szentpaly v Basin Sands Logistics Pty Ltd [2013] FWC 4213

The investigator approached the applicant for an impromptu discussion and he was

not put on notice about the matters of concern or provided with a considered

opportunity to respond.

Gregory C held:

‘I am not satisfied BSL’s investigation of what occurred enabled it to actually be in a

position to establish, at the time it made the decision to terminate Mr Szentpaly’s

employment, whether it had a “valid reason” or not. This occurred because that process

of investigation did not involve, in particular, a detailed exploration with Mr Szentpaly

about what actually occurred.’


Thomas and Goddard v St Vincent de Paul Aged Care and Community Services [2006] AIRC 46.

Hingley C held:

“I do not accept on the evidence that the consultant’s report was “poorly prepared and considered”. I

can understand the perception, that “the panel” comprised of the consultant and the HR Manager,

may have biased the consultant towards the respondent, but I doubt that in fact this was the case.

Although for the sake of perception it would have been better had the consultant acted entirely alone

and this in my view was a flaw in the process, it did not on balance deprive it of basic objectivity or

fairness.”

The dismissals were found to be for a valid reason and the presence of HR in the independent

investigation was not sufficient to undermine the basic objectivity or fairness. Even where the

employer had a policy requiring natural justice be afforded.



Mrs Nelli Berberian v Tiny Scholars [2013] FWC 5376

Cambridge C found:

Any investigation or inquiry undertaken by an employer is an important aspect of any

consideration as to whether any belief was subsequently formed on reasonable grounds

Only in unusual circumstances will an employer be able to form a reasonable belief about

misconduct without testing the subject matter directly with the accused employee

In this case, to determine if the respondent held a reasonable belief that the misconduct

occurred factors for and against have to be weighed up.

‘ A careful evaluation … leads me to conclude that although it involved unfortunate errors and

deficiencies it nonetheless represented an inquiry which … provided reasonable grounds upon which

the belief of the employer was established.’



Dragan Marijan v Rail Corporation New South Wales t/as RailCorp [2013]

FWCFB 15

In refusing permission to appeal, the Full Bench of the Commission found

that the delay in a 3 year investigation into misconduct did not, on the

evidence, amount to a condoning of the conduct alleged.



The role of unions in investigations

Initially a strategic decision to determine whether, based on the situation, you:

a) do your best to influence the process to your member’s advantage; or

b) let the employer ‘hang’ themselves on improper process to be used in some form of

dispute or action.

If it is the former, then it is about getting into the process and asserting any right to

represent, ensuring processes in awards, agreements, policies and contracts are followed

The object of the Fair Work Act is to ‘provide a balanced framework for co-operative and

productive workplace relations … ‘ by, amongst other things, ‘enabling fairness and

representation at work …’

The only other provision which suggests access to representation for employees is the

unfair dismissal consideration to have a ‘support person.’


The role of unions in investigations

The object of the Act referring to representation, however, does not create positive

rights for members to be represented by unions.

As you are aware, this leaves the creation of rights to representation by delegates

and union officials primarily to enterprise bargaining.

Company policies may provide for a role of representatives, but will rarely make it

easy for unions.

Use process defined in agreements and policies to your member’s advantage by

demanding adherence where it assists them and inserting yourself into the process

where you can.


Rights to natural justice and procedural fairness in investigations Policies and attitudes developed by employers over time to afford employees procedural

fairness in investigations and disciplinary processes, including providing them with an

opportunity to respond to allegations, have largely been in response to successful unfair

dismissal claims.

A right to natural justice or procedural fairness in a workplace investigation may be

addressed in a contract or industrial instrument prescribing that it be afforded. It can then

be enforced as a term of the contract or instrument.

As a matter of common law, it is not entirely settled if an employer has a duty of fair and

reasonable treatment. If a duty does exist if it would likely extend to investigations dealing

with disciplinary matters.


Rights to natural justice and procedural fairness in investigations

Policies and attitudes developed by employers over time to afford employees

procedural fairness in investigations and disciplinary processes, including providing

them with an opportunity to respond to allegations, have largely been in response to

successful unfair dismissal claims.

A right to natural justice or procedural fairness in a workplace investigation may be

addressed in a contract or industrial instrument prescribing that it be afforded. It can

then be enforced as a term of the contract or instrument.

As a matter of common law, it is not entirely settled if an employer has a duty of fair

and reasonable treatment. If a duty does exist if it would likely extend to

investigations dealing with disciplinary matters.


Rights to natural justice and procedural fairness in investigations An inquiry about misconduct may not be a breach of this implied term, but it is

arguable that an investigation conducted, with a predetermined outcome, in a way

that humiliates the employee, significantly damages their reputation, is undertaken

following an allegation of serious misconduct made without any reasonable basis, is

significantly flawed or conducted maliciously – may be a breach of the implied term.

Quinn v Grey (2009) 184 IR 279

Commonwealth Bank of Australia v Barker [2013] FCAFC 83

Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney

(2008) 72 NSWLR 559


Rights to natural justice and procedural fairness in investigations

In summary, there is not a clear implied right to procedural fairness in

investigations. An express right may exist in a contract or industrial

instrument.


Participation as a reasonable and lawful direction

A direction to participate in an investigation whether it is to attend and answer

questions in an interview, provide a written response or relevant documents is likely

to be a reasonable and lawful direction to the employee.

There is an implied term in an employment contract that an employee has an

obligation to obey directions about the performance of the work they are contracted to

perform that are lawful, reasonable, consistent with the contract and within the scope

of employment. A wilful refusal is a breach of the obligation of an employee.

The duty to follow a direction to participate in an investigation may also be an express

obligation contained in the contract of employment or an enterprise agreement.



In general terms, employees are obliged to answer questions from their

employer about matters within the scope of their employment.

An employee is obliged to answer the questions honestly.

An employee does not breach the duty to answer honestly if they refuse to

answer questions about matters outside of their employment.

The duty on the employee to answer has a corresponding duty on the

employer to ask questions that are fair and reasonable – Patty v CBA (2000)

FCA.

The duty to ask reasonable questions is especially important if there are

pending criminal proceedings.



Grant v BHP Coal Pty Ltd - [2014] FWC 1712 and appeal [2014] FWCFB 3027

At first instance Spencer C found that his conduct in refusing to answer the

questions was ‘inconsistent with an investigation interview. … To require all

questions to be put in writing would unreasonably restrict the purpose of the

process. … The stance by the Applicant, gave further insight into the

Applicant’s approach to the employment relationship.’



And on appeal in rejecting the ground of appeal arguing the worker was not obliged to

obey an order which required him to incriminate himself, the Full Bench found:

‘We do not construe a workplace investigation interview intended to inquire into an

employee’s conduct as attracting the application of such principles as asserted. This

is particularly so when the single query put to the employee (which in effect was to

explain his reason for not attending the medical appointments as directed) was

material to the employment relationship.’

They also commented that ‘had the questions being posed had some unusual

character or complexity to them it might be reasonable to seek to have a meeting

adjourned and the questions or allegations particularised. But this was not the case

here.’



Appeal by Telstra Corporation Ltd (2008) AIRCFB 15 – Streeter case

At first instance SDP Hamberger determined that her conduct was not serious enough to

warrant dismissal and dishonesty was not a valid reason because it was about personal

activities.

The majority in the Full Bench rejected that finding and held:

‘We are satisfied there was a valid reason for the termination of Ms Streeter’s employment by

Telstra related to her conduct, being her dishonesty with Telstra during the investigation it

conducted’ … Ms Streeter’s dishonesty during the investigation meant Telstra could not be

confident Ms Streeter would be honest with it in the future. The relationship of trust and

confidence between Telstra and Ms Streeter was, thereby, destroyed.’

‘Whether the matters were personal or not, [the employee] had an obligation to answer

Telstra’s reasonable inquiries honestly.’


External lawyers and claims of privilege over outcomes

Difficulties are created for members when employers engage lawyers to undertake

investigations and then claim the report of outcomes cannot be released because the

contents are covered by legal professional privilege.

If there is any opportunity, concerns about engaging lawyers as investigators can be

raised with the employer and an attempt made to agree on the release of findings.

If you are bargaining about clauses dealing with investigations, attempt to specifically

exclude the employer’s lawyers as investigators and/or include a step to agree an

investigator.

Otherwise you are left arguing about the flawed process after the findings are

withheld.


External lawyers and claims of privilege over outcomes

Bartollo v Doutta Galla Aged Care Services [2014] FCCA 1517

Judge Whelan agreed that the Board engaged the law firm to obtain legal advice, it

also engaged it to conduct out an investigation of the employee's actions that didn't

necessarily have to be carried out by a legal practitioner.

However, she found that when the client has put in issue its state of mind and it

appears that legal advice was given at the relevant time, the privilege was lost where

it was shown that there is a likelihood that the legal advice contributed to that state of

mind

She held that it would be unfair to deny the employee access to the "factual basis on

which the Board formed the reasons which gave rise to the recommendation" that he

be dismissed.



Emma Thornton

Direct line: 07 3016 0337

Email: [email protected]

Questions?

mailto:[email protected]

33

PART II: DISPUTING PROCESS AND FINDINGS

Giri SivaramanPrincipal Employment & Industrial Law Section

Agenda

Part II

Practical considerations

Disputing the process and findings of an investigation

Using other options to address adverse investigations

industrial disputes

bullying complaints

discrimination / victimisation complaints

public interest disclosure legislation

general protections complaints

Agreement clauses and policies about investigations: what to include


1. Make a Strategic Decision

No two cases are the same

Proactive v Reactive

Shaping and challenging process

Unfair Dismissal – last resort?

If it is the former, then it is about getting into the process and asserting any

right to represent, ensuring processes in awards, agreements, policies and

contracts are followed.

Even if employer say no to your requests, and you take legal action, you will

have a much stronger claim to argue if you have challenged the process

along the way.


2. Threshold Considerations Threshold question of whether there should be a formal investigation

Informal resolution through management action / mediation?

Impact on health of respondent

How serious are the allegations?

Has there been a suspension?

Lawful?

What does Agreement say? Some say only where allegations of serious

misconduct.

Review Agreement and Policies;

Is there a right to natural justice or procedural fairness;

Does the Agreement set out very clear steps that an employer is required to

follow and do they appear to be following it;


3. Preliminary Steps

Ask for allegations in writing and clarification regarding process and applicable policy;

Doesn’t mean you have right to original complaint;

Have all relevant documents been provided. If not, request.

Form assessment as to whether allegations clear and specific enough to respond to

or whether further details, known as “particulars” are required. If so, request.

Is it a situation where particulars deficient but strategic decision not to request further

particulars.

Who is the investigator?

Who is the decision maker?

Are they the same person?

Are there any bias issues with either?


3. Preliminary Steps

Request from employer, particularly when external investigator:

Copy of Terms of Reference or letter of engagement;

Undertakings from employer

Full transparency in all communications and correspondence to and

from the employer, employer’s representatives and the investigator;

Support person permitted to attend interview;

Provision of draft report at same time provided to employer and

reasonable opportunity to respond;

Opportunity to comment on proposed disciplinary action, prior to any

final decision being made.


4. Written v Verbal Response

Depends on options provided by employer

– obliged to comply with lawful direction to attend interview

Number of allegations

Seriousness of allegations

Health of respondent – fit to attend?

Preparation required in either


Face to Face Interview:

Advantages:

face to face;

Real person rather than words on page;

Conveying image of nothing to hide;

Quicker and more efficient

Disadvantages:

Open ended or irrelevant questions;

Employee may put their foot in it by telling more than required

Limited opportunity for union rep to answer or clarify for employee;

Value of written statement even in interview



Written Response

Advantages:

Time to consider allegations;

Ensure you only answer the specific allegations;

Can contextualise if need be;

Union can flavour response;

Can put in brief “I deny the allegations”;

Disadvantages:

Time and resources;

How much detail required to respond;

If employer has requested face to face but you produce a written response it

may cause employer to doubt how truthful the employee is being.



5. Denials and Context

Obligation to tell truth

Various ways to frame answer:

Deny the allegation;

Deny the allegation, but acknowledge, for example, that a conversation about a

topic occurred but not in the way alleged ie contextualise;

Admit that you said or did something but not in the way alleged – contextualise;

Admit that you did what is alleged but intention wasn’t to offend or be malicious

and apologise

Hindsight

Concessions – shows reasonableness.

Admit and explain any mitigating circumstances (depending on the seriousness

of the allegations)


6. Submissions by Unions

Limitations – support person v advocate;

Raise procedural problems – judgement call;

What other evidence does the employer intend to rely upon?

Has that evidence been put to the employee?

Credibility of allegations or original complaint – careful juggling act

Are the facts made out on the balance of probabilities;

Even if proven, would it be a valid reason justifying termination or is it minor that

warrants a warning etc.?

What does the policy / agreement say – e.g. is counselling more appropriate?

Request copy of statement to review and approve;

Agreement on timeframe and provision on report.


7. Preliminary Report

Request employer/investigator to provide preliminary report at the time

provided to employer / decision maker and give employee reasonable

opportunity to respond / comment (e.g. 7 days);

Enables employee to have a second go, particularly where they have only

provided a brief response;

Can wait to raise procedural issues or other legal avenues at this point:

E.g. some employers start on a complaint process but jump to a

misconduct outcome

Other legal challenges if termination looks likely


Internal appeals

Industrial disputes

Anti-bullying applications

General protections disputes

Discrimination/victimisation complaints

Public interest disclosure legislation

Disputing process and findings


Some larger workplaces, particular public sector entities, have internal

mechanisms for appealing an investigation finding.

It is important to follow the steps outlined in the policy document when

appealing the policy.

It is also recommended that, unless urgent action is required (i.e. there is an

impending dismissal), internal appeal processes be exhausted prior to

escalating the matter external to the workplace.

Internal appeals


Jurisdiction depends on sector of employer.

QIRC for public sector employers and most GOCs.

FWC for private sector, some local councils and some GOCs.

The High Court has found that management decisions (including with respect to an

investigation) can be the subject of an industrial dispute:

“... we reject the suggestion, based on the remarks of Barwick C.J. in Melbourne & Metropolitan

Tramways Board, that managerial decisions stand wholly outside the area of industrial disputes

and industrial matters. There is no basis for making such an implication. It is an implication

which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction...

Indeed, the difficulty of making such an implication is accentuated by the fact that the extended

definition of ‘industrial matters’ proceeds on the footing that many management decisions are

capable of generating an industrial dispute…

Industrial disputes


These considerations indicate that the objection voiced by O’Connor J. in Clancy to the

regulation and control of business enterprises by industrial tribunals is not a matter that

goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal

should exercise caution before it makes an award in settlement of a dispute where

that award amounts to a substantial interference with the autonomy of management

to decide how the business enterprise shall be efficiently conducted.”

- Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [ 1987] HCA 28; (1987) 163

CLR 117 (16 July 1987).

Industrial disputes


For public sector, and most GOC, employees, disputes about the processes and/or finding

of workplace investigations can be raised directly through the QIRC.

File an industrial dispute under section 229 of the Industrial Relations Act 1999 (Qld).

Requirement that dispute be about “industrial matters”. “Industrial matters” has a very

broad definition, under section 7, and includes matter affecting:

(a) work done or to be done; or

(b) the privileges, rights or functions of—

(i) employers or employees; or

(ii) persons who have been, or propose to be, or who may become,

employers or employees; or

(c) a matter (whether or not an industrial matter as defined in this section) that the

court or commission considers has been, is, or ma be a cause or contributory

cause of an industrial action or industrial dispute.

Industrial disputes - QIRC


(2) However, a matter is not an industrial matter if it is the subject of proceedings for an

indictable offence.

(3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial

matter if it relates to a matter mentioned in schedule 1.

Schedule 1 has a very long list of matters that are considered industrial matters.

In short, a complaint about an investigation being undertaken at work is very likely to be

considered an “industrial matter” for the purpose of the Act.

There is no pre-filing process required, however, the Commission is likely to be more

helpful if the employee has attempted to dispute the process and/or findings internally

first.

The first step is a conciliation with a Commissioner, which is recorded and transcript

provided to the parties.



This is an excellent opportunity to seek a recommendation and/or order

from the Commission about how the employee’s concerns ought to be

addressed.

For example, the employee can seek a requirement that the employer meet

deadlines, produce documents and allow a formal response process for the

employee.

The Commission is usually open to providing formal orders with respect to

agreed procedural steps.

If the matter cannot be resolved, it can progress to arbitration.



In order to escalate a dispute to the Fair Work Commission for matters involving an

investigation process and/or findings, you need to ensure:

The Instrument covering the employee has a broad dispute resolution clause

(including all employment-related matters); and

The union or employee has complied with the required procedural steps as outlined

in the dispute resolution procedure.

Conciliation is the first step for dispute resolution.

Opportunity to meet with employer in formal setting to agree to procedural steps, such as

deadlines, production of documents, inclusion of employee’s witnesses, formal response

opportunities.

Can seek a recommendation from the Commission about the process and/or findings.

If the matter cannot be resolved at conciliation, can refer to arbitration (provided Agreement

allows for it).

Industrial disputes - FWC


Part 6-4B of the Fair Work Act 2009 (Cth):

Requirements to successfully obtain anti-bullying order:

1. The person making the application must be a “worker”…

2. Who “reasonably believes”…

3. That he or she has been “bullied”...

4. “At work”

5. In a “constitutionally-covered business”

6. AND there must be a “risk that the worker will continue to be bullied

at work by the individual or group”



The definition of “bullied” excludes “reasonable management action carried out in a

reasonable manner”

The EM provides examples of “reasonable management” action:

Reasonable for employers to allocate work

Reasonable for managers and supervisors to give fair and constructive feedback

on a worker’s performance

Similar to workers’ compensation legislative definition.

Difficult to prove that a flawed investigation process and/or findings aren’t “reasonable

management action”.

Conciliation still provides a formal forum to discuss the issues, with the input of an

objective third party, and agree to processes.



Part 3-1 of the Fair Work Act 2009 (Cth):

Section 342 defines “adverse action” for the purpose of the FW Act.

With respect to employees, adverse action occurs where an employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the

employer.

“alters the position of the employee to the employee’s prejudice” has been interpreted

very broadly, and includes circumstances in which the employee’s legal rights are not

directly affected: Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of

Australia [1998] HCA 30; (1998) 195 CLR 1.



Commencing an investigation into an employee’s conduct has been determined as capable

of being adverse action for the purpose of the FW Act:

Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) [2010] FCA 399;

(2010) 186 FCR 22 at [80]- [82] per Collier J;

Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v

Visy Packaging Pty Ltd [2011] FCA 1001 per Dodds-Streeton J;

Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v

Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (Visy (No 3)) at [103]-[105] per

Murphy J.

Requiring an employee to participate in an investigation has also been determined as

capable of being an alteration to an employee’s position to his/her prejudice:

Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319 per North J.



Adverse action must be for a prohibited reason:

Section 340 and 341 – exercising or proposing to exercise a workplace

right;

Section 346 and 347 – engaging in industrial activity;

Section 351 - discriminatory reasons (must be an employee);

Section 352 – temporary absence due to illness or injury (restricted to

employer dismissing an employee);

Section 358 – to engage as a contractor (must be an employee and must

involve a dismissal).



Where non-dismissal related, can file directly in Federal Court or Federal Circuit Court –

must do so within 6 years.

Can seek an injunction to stop the investigation: Automotive, Food, Metals, Engineering,

Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001;

National Tertiary Industry Union & Anor v University Of Technology Sydney [2014] FCCA

1243 (unsuccessful applications).

Can apply to the Commission first, but respondent not obligated to attend conciliation.

Potential outcomes:

compensation for economic loss (i.e. if employee stood down without pay);

general damages;

penalties;

injunction.



State (ADCQ) and federal (AHRC) discrimination jurisdictions.

Similar processes, though if matter proceeds to trial:

State jurisdiction complaints go to QCAT (primarily a no cost jurisdiction);

Federal jurisdiction complaints go to federal Court or Federal circuit Court

(costs jurisdictions).

Can seek interim injunctions in both (McIntyre v Hastings Deering (Australia) Ltd and

Anor [2012] QCAT 438).

Preferable jurisdiction will depend largely on facts and priorities.

Victimisation is an offence (in both jurisdictions) and occurs where a person causes, or

threatens to cause, another person to suffer a detriment for raising genuine

discrimination complaints.

Useful if employer uses investigation to turn on discrimination complainant.

Discrimination / victimisation


Public Interest Disclosure Act 2010 (Qld).

Covers employees of State of Queensland, most GOCs, State Authorities, local governments.

“Public interest disclosure” by a public officer includes information about—

(a) the conduct of another person that could, if proved, be—

(i) official misconduct; or

(ii) maladministration that adversely affects a person’s interests

in a substantial and specific way; or

(b) a substantial misuse of public resources (other than an alleged misuse based

on mere disagreement over policy that may properly be adopted about amounts,

purposes or priorities of expenditure); or

(c) a substantial and specific danger to public health or safety; or

(d) a substantial and specific danger to the environment.

Public interest disclosures


(2) The person may make a disclosure under section 17 in relation to the information to a

proper authority.

(3) For subsection (1), a person has information about the conduct of another person or

another matter if—

(a) the person honestly believes on reasonable grounds that the

information tends to show the conduct or other matter; or

(b) the information tends to show the conduct or other matter, regardless of

whether the person honestly believes the information tends to show the conduct

or other matter.

If the entity has reasonable procedures for making a public interest disclosure (which

must departments and local governments have), the employee must use the

procedure: section 17.



Usually where a State of Queensland employee makes a complaint of serious harassment,

he/she will receive a letter advising that the matter has been referred to the ESU or CMC

and that it is being treated as a public interest disclosure.

Relevantly, the Public Interest Disclosure Act provides that it is unlawful to cause detriment

to, or conspire to cause detriment to a person who has made a public interest disclosure:

sections 40 and 41 (referred to as a “reprisal”).

The maximum penalty is 167 penalty units or 2 years imprisonment.

In most circumstances, the public sector entity is vicariously liable for reprisals taken by its

employees: 43.

Can be addressed as a tort through the District or Supreme Court or, the ADCQ has

jurisdiction to deal with a complaint of reprisal as if it were a discrimination complaint:

section 44.



It is ideal to have dispute resolution clauses that are broad enough to include

disputes about all matters relating to the employment relationship.

Some Agreements have provisions about disciplinary action. You may want to

include in those provisions, or have entirely an entirely separate provision, for

matters involving investigations.

You may want to use the Agreement to ensure members are entitled to

procedural fairness and an efficient process.

Enterprise bargaining agreements


1. Truly independent investigation;

2. Transparency in process;

3. No secret communication;

4. Input as to the external investigator;

5. Obligation to provide Terms of Reference or letter of engagement;

6. Requirement for procedural fairness;

7. Union representation in interviews;

8. Copy of preliminary report;

9. Opportunity to comment on preliminary report;

10. Timelines; and

11. Appeal process.

Agreements wishlist



Giri Sivaraman



Questions?


66

ASBESTOS, DUST DISEASES AND SKIN CANCER CLAIMS

Trent JohnsonSenior AssociateAsbestos, Dust Diseases & Skin Cancer Claims

6 months from date of injury / diagnosis to lodge workers’ compensation claim in

Queensland

Onus on worker to prove on balance of probabilities

Evidence required:

Statutory declaration of client confirming both occupational and non-

occupational exposure

Independent evidence of employment / exposure

Evidence of diagnosis / prognosis

Workers’ compensation medical certificate

Evidence that exposure falls within accepted latency periods

Evidence that exposure is a known / accepted causes of illness or disease

Evidence of any financial dependency (for dependency claims / lump sum)

Queensland workers’ compensation claims


No provisional damages in Queensland – once and for all basis

In Queensland, timelines apply for filing court proceedings:

Dust-related conditions – within injured person’s lifetime

Non dust-related conditions – within 3 years of date of initial injury /

exposure or within 1 year of material fact of decisive character

Otherwise, the vast majority of entitlements / damages to injured

party and their estate are statute barred and extinguished upon death

Note: non-dust related latent injuries on and after 15 October 2013 may need

to comply with 6 month limitation date for requesting NOA

Common law (damages) claims


Minimum 10 years post exposure

Minor exposures can cause terminal illness (mesothelioma)

Prolonged exposures can cause all illness – minor to severe

Must establish cause of exposure and duration / frequency of exposure,

particularly for asbestos related lung cancer

It’s helpful to establish the manufacturer of the asbestos product

Occupational and non-occupational exposure must be differentiated

Asbestos related illness claims


Self-employed female, early 60’s, diagnoses with terminal mesothelioma

No direct work with or use of asbestos by client or her current husband

Investigations revealed client laundered work clothing of her ex-husband whilst married

several decades earlier

Ex-husband was employed by an air-conditioning manufacturer; duties included

construction of AC ducting and installation

Ex-husband suffering from asbestosis

Ex-husband handled and used asbestos mill-board to line the heather boxes of the AC

ducting, and installed AC ducting in various high-rises, including one in Brisbane CBD

known for lagged asbestos as a fire-retardant – also confirmed by ex-husband’s co-

workers

Claim settled pre-trial

Case study: Mrs M.


Skin cancer claims


Can be caused by sunlight or other forms of ultra-violet (UV) light (e.g. Mig /

Tig welding)

Need to prove duration and extent of occupational exposure

Need to differentiate between occupational and non-occupational (particularly

childhood and adolescent) UV exposure as a cause of the illness

Need evidence of PPE – i.e. work clothing, hats, sunscreen, gloves, etc.

Need direct and independent evidence of duties performed. E.g. truck /

delivery drivers

Need direct and independent evidence regarding occupational exposure

Case study: Mr. B


Early 40’s male, contacted MB in late February 2014 when claim was rejected

Died late March 2014 from malignant melanoma of the lower leg with brain metastases

Employed as a truck / delivery driver in Queensland from 1990 – 2008

Self-employed truck / delivery driver in Queensland from 2008 – 2012; had own

workers’ compensation policy ($50k cover limit)

Workers’ compensation, personnel and union records confirmed work history (some

employers no longer exist)

Direct and independent evidence supported absence of suitable PPE in work

environments

Industry (and insurer) studies confirmed it was a high risk industry for skin cancer –

experts briefed with this and supported claim

Claim accepted for more than $740,000 with full entitlements

Evidence


Prior workers’ compensation claims are important – including report only

exposures

Incident reports sometimes kept by client’s and / or personnel files

WHP&S investigations

Union records are vital

Co-workers – details sometimes from incident reports and workers’

compensation claims

Historical searches for records / articles regarding injuries, workplace

prosecutions, building modifications, etc.

As always, it is important that legal advice is obtained as soon as possible

after diagnosis / injury

Trent Johnson



Questions?



Personal InjuryThis information is prepared for the purposes of the seminar conducted on 20 August 2014 only. The content of this paper is not legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the content of the foregoing but should take appropriate legal advice.

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