Thursday, February 17, 2011

South Australian bureaucracy claims to be a Model Litigant! Bollocks!!


Wednesday morning, tuned to ABC radio, I was intrigued as I listened to Matt Abraham and David Bevan lock horns with the South Australian Attorney-General (now, Deputy Premier) Mr John Rau.


My morning was relatively peaceful. Breakfast was good. My granddaughter’s first birthday the next day. Cat strolled past and flicked her tail.

All was fine until I heard Mr Rau utter two words, MODEL LITIGANT. In that same breath, he stated that The Crown, as in, I suppose, the Crown Solicitor’s Office, conforms to a Model Litigant policy. Mind you, in all my years of interfacing with these people, I have never, ever seen a document purporting to be thee Policy. Every other state has one. Google it!

As many will know, I have not enjoyed good health for some time, since leaving the public service. But, I have learned how to recognise ‘my moments’ and how to manage them.

The more I listened to this interview, the more livid I became.

So, what does Model Litigant mean? Here are a few pieces from the New South Wales Policy:

‘......The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards....’

‘..... where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by not requiring the other party to prove a matter which the State or an agency knows to be true, and not contesting liability if the State or an agency knows that the dispute is really about quantum...’


‘....Not taking advantage of a claimant who lacks the resources to litigate a legitimate claim, not relying on technical defences unless the interests of the State or an agency would be prejudiced by the failure to comply with a particular requirement...’


‘...... apologising where the State or an agency is aware that it or its lawyers have acted wrongfully or improperly.....’

Let me put the State Government to the test.

In 2004, after several years of blowing the whistle on sexual harassment and workplace bullying, within Mister Rau’s own portfolio, self-represented I caused a trial to be conducted in the District Court by the Equal Opportunity Tribunal.

http://www.austlii.edu.au/au/cases/sa/SAEOT/2004/1.html

Whilst the sexual harassment claims were prominent, my focus was on the Court determining that the bureaucracy sat back on its fat arse ignoring my complaints for years. The Justice Department was simply validating the bullying and the harassment, by doing nothing.

I am happy to say the findings of the Tribunal totally vindicated my position. I was very, very pleased!

I was again in Court, last September. Same idea. I said one thing, in defence, the government said another.

Those two court cases have a common thread. Obviously under instruction from the government agency, the Crown Solicitor’s Office was to convince the Judge I was a liar, that I tended to re-write history, and that I was a man with questionable motives.

So, how did they go about trying to discredit me? Specifics.

EQUAL OPPORTUNITY TRIBUNAL 2004.

I was in the Witness Box for two days. It was savage. The Crown lawyer hit me with accusation after accusation. Some of them downright bizarre. Absolutely nothing to do with the case itself. Just good old-fashioned mudslinging. I am a strong person, but I took one helluva pummelling those two days. It was bad.

The night before the case began, the Crown lawyer and THE BULLY and the CEO of Public Trustee called my star witness to the executive boardroom. She called me in tears that night. I had lost my witness. Infer what you may.

Unfortunately, for the government, anything they thought achieved by that pummelling did not make it to the Determination handed down 25 June 2004. Although the sexual harassment allegations did not hold water, TECHNICALLY, I certainly got what I wanted. Proof the government lied. Proof I was not a bullshit artist. Proof they damn well knew about the bullying, about the harassment! The government agency, Public Trustee, was found to be vicariously liable for the actions of an employee.

DISTRICT COURT 2010

Same crap! Only this time, it was downright gutter tactics. The Hearing was one of Administrative Law. Leading up to court day, there were several Preliminary Hearings. That was a hoot! From memory, the majority of my requests for discovery were, yeah, just ignored. Yet, each time Crown wanted something, it was pistols at dawn stuff!

A few days before day one, I had a conversation with the Crown lawyer. Nice guy, only doing his job, I guess. He made it very clear to me that providing I did not introduce any new evidence, it would be a 10-minute in & out affair. We hand up or read out our statements. Home in time for lunch.


Well, as I walked into the courtroom and up to the Bench, the tomes of material he had strewn across that bloody great big bench puzzled me.

He put me in the Witness Box.

That was in the morning. Sometime after four, I slid out. Yep, just like in 2004, he did his best to convince the Judge I was a liar, and a re-writer of history. He introduced paperwork I had never seen before. Paperwork from years prior. Sitting in that box, my brain went into meltdown. I got confused. I was upset. But, hey, he was only following instructions. I had been ambushed.

BACK TO THE MODEL LITIGANT POLICY

If the elusive South Australian Policy is anything like that of the NSW Policy, I hope you draw the same conclusions. Is Crown a Model Litigant?


In my second case, I had my sickness insurance entitlements withheld due to an alleged pre-existing condition non-disclosure back in December of 2002.

During Preliminary Hearings, Crown did agree with some of my allegations: that my insurance form had been filled-in by counter staff, that there were no policies or procedures for counter staff, that many of the staff were contractors. HOWEVER, they did not agree with me when I said I had told the staff member all of my medical history.

Hell, but that was why I went there in the first place. This government superannuation manager does not have any medical questionnaires. The form has one question, and asks you to report what you think, in your past, may cause you to become disabled in the future. Too bad if that freckle does turn out to be cancer many years later.

Well, they did a great job of ambushing me. Of deceiving me. Crown Law lied to me. I was set-up. But, hey, I have lodged an Appeal with the full bench of the Supreme Court. Give it another shot. Be more alert this time.

So, give me a verdict. Did Crown behave as a Model Litigant?

Dear Attorney-General Rau.

With the greatest of respect, I must disagree with what you said on ABC891. Moreover, if you are even half the man I believe you to be, you will seek time with me. I have been and I remain a victim of a very cruel and adversarial system that is entrenched within the public service.

As a taxpayer, well, if I ever get a job again, you should want to hear it from my side. From one of many  who has been through eleven years of hell. Years of no one wanting to help me. Years of bullying, victimisation. Years of ill health. Years of frustration with an employer who deserted me, who now is screwing me, all over again!

You have the findings of Judge Rice. You have the findings of the Alan Moss Inquiry. You have the findings of the Parliamentary Inquiry. Vindication. Vindication. Vindication.

And, do you want to know how it all started? Back when I was a normal person, a great father, a good husband. All I did, one day in March of 2000, was to say to the CEO; “That new guy is touching himself in front of staff members.”

This is nothing to do with law, with legislation, or with policy. This is to do with the truth. And, certainly in my experiences, truth is the first casualty in this adversarial system we call justice. A Model Litigant? I do not think so!

This is The Bank calling.....your payment is 5 minutes late!


I might be wrong, but since the Banks reduced various fees, such as late fees, I have been getting calls the day after the monthly payment is due.

Used to get a letter, or even better a note on the Statement a few weeks later.

This happened this morning. It is fair dinkum, and I have rushed the story out before I forget the details.

My phone rings:


ROB: Hello.

BANK: Is this Robert Mckibbin?

ROB: No. This is Rob McKibbin.

BANK: Rob McKibbin? Can I speak to Robert McKibbin please?

ROB: No.

BANK: No?

ROB: No. I’m Rob McKibbin. But you can call me Robert.

BANK: Robert, can I confirm your date of birth please?

ROB: What’s yours?

BANK: What?

ROB: What's your date of birth?

BANK: But I need your date of birth.

ROB: Me too.

BANK: I need to verify your identity.

ROB: Me too. You could be anybody mate. A nutjock. A cuckoo. A bloody terrorist. Anybody.

BANK: I am calling from the Bank.

ROB: No you’re not. You're calling from India.

BANK: I am calling from the Bank about your account. This is urgent.

ROB: Don’t care. I don’t know you. I’m not giving you my personal details.

BANK: Robert, can I have your date of birth please?

ROB: Yours first please.

BANK: Robert. I need to discuss your account.

ROB: I don’t. What is your phone number.

BANK: Robert, I am calling from the Bank and I..........

ROB: Look mate. I don’t know who you are. You have told me jack shite about yourself. I'm gonna hang up. You are so rude.

BANK: Robert, I need to verify your date of birth.

ROB: I’m not sure which particular word you don’t understand, BUT, I’m bustin for a crap, I got the hangover from hell, and I don’t need some pinhead calling me up in the morning wanting to know when I was born. Adios.

CLUNK

Better check to make sure that thirty-eight bucks went through!

Monday, February 7, 2011

Workplace Bullying: Do employers have strategies to avoid stress claim payouts?

You feel you have no option other than the Workcover option. You have fought the workplace bully for what seems like an eternity. However, the problem remains. And, you get sicker with each passing day.

Whatever management says it is doing, is not working. Your doctor pulls the plug. Anxiety, depression, adjustment disorder...irrespective of the term, you are sick.

It was a gut-wrenching two years and seven months from my first complaint to my stress claim. Then I persisted with my war for a further six years before I felt compelled to resign.

As in my case, here in South Australia, the process begins with a Workcover Prescribed Medical Certificate (PMC) from a General Practitioner. This is what you attach to your Workcover Claim Form.

BOTH documents will detail your medical condition. Both will detail THE ALLEGED CAUSE.

And that, my friends, is when your worst unsuspected nightmare goes supersonic.

Put yourself on the management throne. By signing off on the Claim, legitimacy attaches to your declaration that your illness is directly linked to workplace bullying.

And if all goes your way - you actually survive - the only thing you have left to prove, in any legal arena, is that management sat back on its arse, as in my case, doing what it is very good at...nothing!

In my old workplace, the bully (now proven to have been a bully by a subsequent Disciplinary Inquiry) was one-down from the CEO. The Big Kahuna Number Two, the self-appointed deity who signed-off on EVERYTHING!

I was buggered, right from the get-go. It was like soliciting Caesar for a life membership of the RSPCA.

That sign-off does not happen overnight, or in the week after, or in the month after, or.........

The South Australian Public Service AND the inept State Government created my experiences. The department I toiled for, the Office of the Public Trustee, an agency under the Attorney-General’s Department umbrella, was and still is a self-insured entity.

The only good thing I have to say about the self-insured position, is that I avoided being managed by one of those independent, profit-driven insurance companies. From all accounts, that was a godsend, in relative terms anyway.

In my case, I was sent to a Psychiatrist of my employer’s choosing. Moreover, the report from that employer-paid-for expert was a medico-legal report. It was NOT a medical report. There is a difference. And, if you ever wind up in a witness box, you will realise the report was not obtained to help you, the injured worker.

N.B. You have the right to obtain a report from a specialist of your choosing.

Now, getting back to my legitimacy attachment comment. Even though co-workers were managing me, the process was, for the sake of better words, both backbreaking and stress making.

It was as though that much-needed sign-off was as elusive as fluffy ALF returning from Melmac looking for another garage to crash through.

It was as if my employer was being guided by some secret document. A ‘How to avoid stress claims’ type document.

Do such documents exist? HELL YEAH!

Not for the first time, I received one such document yesterday. Prepared by a Law Firm for a government agency. It needs to be read a few times in order to transform your mindset from that of an injured worker to that of a bushwhacker.

When I first read it, I could not quite get my mentally damaged psyche around it. I was looking for the benevolent bits. I was assuming the needs of the employee were a consideration on some level, any level.

Then it struck me. The guide I was reading has nothing to do with the wellbeing and the interests of the worker. The guide is the 2011 version of the 15th century Malleus Maleficarum, the Witch Hunter’s Bible.

Because, I’ll tell ya, you feel like you’re being led to the bloody stake as you wind your way through the sea  of constantly popping-up obstacles on a ‘Talking Heads’ road to nowhere.

After my employer received the first psychiatric report, management was pissed. Human Resources, at the request of Big Kahuna Number Two, yep, the bully himself, penned a response letter asking the Psychiatrist to RECONSIDER his findings!

I HAVE THAT LETTER. Yep, my employer, a government agency within the Department of JUSTICE!!!

The Psychiatrist said NO!

I have that response, and it sure does make interesting reading. I got the impression Sigismund 'Sigmund' Schlomo Freud was wondering what planet he was communicating with.

Now folks, back to the nefarious employer Stress Claim Avoidance Manuals (SCAM) I mentioned.

Here are some tantalising extracts from a few of the documents in my possession:

‘...obtain the necessary information if you later want to claim an exemption from the statutory requirement to provide ‘suitable employment to the worker...’

‘...obtain the necessary information required to dismiss the worker for incapacity in a legally effective manner...’

'...Dismissal by reason of disability is not unlawful if the worker is unable to perform their duties due to their disability...'

And,

‘...if a private sector company and a Government department were found to have breached their safety duty for the same issue, the private company could be fined or prosecuted but the government department would be issued with a Notice of Non Compliance...’

I think it necessary to say that I do not believe all employers behave nefariously. I have knowledge of an  employer that dealt with the bullying problem decisively, and assisted the worker towards a full recovery.

Well...I know of one case.

Over the past few weeks, I have helped some people, people targeted by workplace bullies, people who are sitting at the crossroads, the same t-junction I found myself back in late-2002.

I turned right and filed a stress claim. I could have turned left, walked, and saved myself years of grief.

You are not the only one who will suffer. Factor in your family.

My best word of advice? HEALTH! Do not take on a system that is hell bent on self-preservation. Do not hop on that white horse if you know your health is on wobbly legs. It will not be worth it. Walk away. They are not worth it.

And, do yourself a huge favour. Google the word whistleblower. I doubt you will find a whistleblower who still has employment, who still has sanity, and who still has the life that was enjoyed before taking on the devil.

It is a cold world my friend. Take on bullying and the system, and it becomes a lonely world. Think carefully.

But.....would I do it again?     HELL YEAH!

Friday, February 4, 2011

How effective, how diligent is the South Australian Equal Opportunity Commission.


According to the website, http://www.eoc.sa.gov.au/, one of its three mandates (information, education, assessing & resolving complaints) is ‘...Our complaint handlers assist people to reach an agreement if a complaint of discrimination or harassment is made. We do not act as advocates. Our aim is to bring people together to try to resolve the complaint. If a complaint cannot be resolved, it may be referred to the Equal Opportunity Tribunal...’

By its own admittance; a dog without a bark, a snake without venom, a tiger missing a few molars.

How effective is this well-oiled machine. From the 2010 Annual Report:

‘...satisfaction with the conciliation process remains high on the part of both complainants and respondents...’

‘...will continue to deliver valuable services to help protect South Australians against unlawful discrimination...’

‘...Over the past year 59% of complaints within our jurisdiction were resolved through conciliation...’

‘...Eighty five percent of conciliated outcomes involved the respondent making an apology or providing another undertaking to the complainant...’

How effective? Let’s put it to the test. In fact, let’s deal with specifics.

ACTUAL COMPLAINT FORM.

For years, I have assisted workplace bully targets with filling-in the Complaint Form. You see, if you don’t get it right, I assure you, it WILL come back and bite you in the bum.

On Thursday, 24 March 2005, at 4.08pm, I lodged a completed Complaint Form claiming I was being victimised for having lodged a previous complaint of sexual harassment on 26 February 2003.

The Equal Opportunity Tribunal in the District Court, to my satisfaction, had dealt with that previous complaint, the 2003 complaint. However, had the Commissioner dealt with it appropriately, Court action would not have been necessary.

Be aware that under the legislation you are permitted to lodge a victimisation complaint provided you can link that behaviour to a previous EOC complaint.

AND, also be aware that if the Commissioner brushes aside your complaint, you do have the right to request it be referred to the Equal Opportunity Tribunal within the District Court. I had to do that!

On page two of my 2005 complaint, I named, in section A, the Office of the Public Trustee as the organisation I was making a complaint against.

On page two of my 2005 complaint, I named, in section B, an Executive Officer of the Office of the Public Trustee I was making a complaint against.

The Form clearly states: ‘...I am complaining about:...’, and ‘...I am also complaining about:...’

WHAT HAPPENED

What struck me as bizarre from the onset, was that Public Trustee staff trotted across the way to the EOC and sought (and got) assistance with putting together a response to my complaint. Eh???

Can you imagine: "Hi, this is Joe from Joes Chip Shop. You guys sent me this complaint asking for a response within 21 days. Can you help me put it together?'.


During December of 2005, a conciliation conference had been organised by the EOC and attended by me and a proxy for the Public Trustee. Note: the Public Trustee, the ‘...I am complaining about...’ bit.

An agreement was signed. I was happy to release the organisation from my grip.

It was around this time I was sent home, apparently for my own safety. A full-on investigation began, immediately, and for the next three years, everything hit the fan. Investigations, Inquiries, and then a Parliamentary Inquiry.

During all of this time, albeit somewhat distracted, I continued to wait for the EOC to address the other part of my complaint, the ‘...I am also complaining about...’ bit.

On 18 July 2007, I wrote to the then Commissioner, Ms Linda R Matthews.

I received a response dated 26 July 2007. It said:

‘...I refer to your letter of 18 July 2007 requesting information about the progress of complaints against Ms Cath O’Loughlin (the then Public Trustee) and Mr X (I won’t shame the poor bugger anymore) of the Public Trustee...’

‘...I do not have any record of a request to consider your complaint against any individual respondents other than the Public Trustee, nor do I understand that you asked for your complaint to be considered against individual officers...’

MY BEWILDERMENT

I really, really, really hope I am not the only one bewildered here. It is possible that Ms Matthews was in wind-down mode as she drifted toward her exit from the EOC in 2010. Who knows!

One thing I do know, with absolute certainty, is that Ms Matthews was wrong!

The only question worthy of an ask is; ‘WHY?’

It is worthy of mention that there are plenty of media-reported cases of small business operators copping it fair & square for a helluva lot less than the years of crap I went through in the public service.

Should I mention that the EOC, the Public Trustee, the Attorney-General’s department, the State Ombudsman, the Government Investigations Unit, et al, all live inside the Department of Justice tepee?

CONCILIATION AGREEMENTS

From my experience, not worth the paper they are written on. I had an agreement I signed-off on in December of 2005. It included a date for my return to Public Trustee, hopefully after the investigation was over.

On 30 November 2006 I wrote; ‘...the 12-month assignment, as per my Settlement, expires in less than a fortnight...’ In other words, tally-ho, get my desk ready.

Four hours later, a response, ‘...you will not be returning to Public Trustee...’

Not long after I contacted the EOC. I wanted that Agreement enforced. Ooppss...sorry, no can do. The tootthless tiger had spoken.

So much for Conciliation. So much for the EOC.

The three mandates? Maybe just stick to Information and Education. The rest just doesn’t work, well, not for me!

Thursday, February 3, 2011

Something GOOD my government has done!


Well, my story about the goings-on with HousingSA shot my Blog hits count into interstellar orbit, after it featured in an on-line media edition.

From the thousands of hits, there was ONE email I received, someone who took a potshot at my gloominess, my negativity, my....whatever!

OK. For a change, then, I though I would Post a story highlighting something really, really good the current Labor Government has done for it's people....
















Good story?