Abdelkawy v ANL Container Line Pty Ltd
[2021] VSCA 342
•9 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0020
| AMRO ABDELKAWY | Applicant |
| v | |
| ANL CONTAINER LINE PTY LTD | Respondent |
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| JUDGES: | BEACH and OSBORN JJA and FORBES AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 November 2021 |
| DATE OF JUDGMENT: | 9 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 342 |
| JUDGMENT APPEALED FROM: | [2020] VCC 2024 (Judge Lauritsen) |
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NEGLIGENCE – Liability – Duty of care – Workplace injury – Psychiatric injury – Alleged workplace stress, constant harassment and victimisation – Whether open to trial judge to accept applicant’s evidence of the history of his employment as generally truthful and reliable and reject his claim – Whether trial judge’s conclusions as to the facts of victimisation and harassment and concerning the lack of apparent risk of psychiatric injury were against the evidence and the weight of the evidence – Plainly open to accept applicant’s account of the objective history and course of employment and to reject applicant’s subjective characterisation of that history as demonstrating a conspiracy against him or process of deliberate victimisation and harassment – Judge’s conclusions accord with the evidence and the weight of the evidence – No error demonstrated in conclusion that a reasonable employer in the position of the respondent would not have appreciated that the applicant was at risk of developing a recognised psychiatric illness – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Ibrahim | Wise Legal Solutions Pty Ltd |
| For the Respondent | Mr A D Clements QC with Mr G A Worth | Thomas Geer |
BEACH JA
OSBORN JA
FORBES AJA:
Introduction
The applicant was employed by the respondent performing roles in the area of import customer service between July 2007 and August 2010.
During this period, and in particular in 2009 and 2010, the applicant alleges he suffered a psychiatric or psychological disorder.
The applicant ceased work on 16 August 2010.
As his solicitor put it on the appeal, in the years that followed the applicant sought to ‘rationalise’ what had occurred. In consequence he became convinced that he had been the victim of a deliberate conspiracy to harm his career.
In July 2017, the applicant issued proceedings alleging that his mental condition was the consequence of workplace stress and constant harassment and victimisation.
The applicant further alleged that the respondent knew or ought to have known that in the circumstances the behaviour complained of was likely to cause the applicant injury, and that the applicant was injured as a result of the respondent’s negligence.
By its defence, the respondent denied the allegation of constant harassment and victimisation, and further denied that it knew or ought to have known that the applicant’s work environment was likely to cause the applicant injury. It denied negligence and, in the alternative, alleged contributory negligence.
The matter came on for hearing before Judge Lauritsen in the County Court in June 2020. At trial, his Honour was confronted with a difficult task:
·the applicant was self-represented;
·the events at issue had occurred 10 or more years earlier; and
·the establishment of the elements of a plaintiff’s claim against an employer in negligence for damages for psychiatric injury is not straightforward.
As his Honour recorded, it was only because of the intelligence of the applicant and the generosity of the respondent’s lawyers that a reasonably coherent trial was achieved.
The trial proceeded on the question of liability only and for that purpose the judge assumed the applicant had suffered a mental injury caused by his employment.
The applicant summarised the matters of which he complained in 11 particulars:
(a)prolonged micromanagement and unfair criticism by Cathy Paschalidis;
(b)overworked;
(c)unfairly targeted and discriminated against due to his race and gender;
(d)unfairly treated when re-applying for his position in 2009 including being ignored in the interview process;
(e)excluded from meetings, etc and left off group emails;
(f)abruptly told of redundancy without adequate notice, opportunity to respond or engage in support measures (e.g. counselling);
(g)persecuted after his letter sent to Chief Executive Officer;
(h)pressured into accepting a new role;
(i)made to feel isolated when moved to new role, including not being introduced to his new team;
(j)having difficulty with his work despite repeated requests for assistance, support and training; and
(k)refused appropriate prayer space despite requests.[1]
[1]Abdelkawy v ANL Container Line Pty Ltd [2020] VCC 2024, [2] (‘Reasons’).
In addition, he made an overarching complaint that he was the subject of a conspiracy on the part of senior employees of the respondent to remove him from his employment.[2]
[2]Ibid [135].
The trial judge found the applicant to be a truthful and reasonably reliable witness. He also accepted the evidence of five witnesses who were called on behalf of the respondent as truthful but found that due to the lapse of time there were gaps in their recollection. Those witnesses were John Lines, the Chief Executive Officer and Managing Director of the respondent during the relevant period; Pascale Toussat, a Human Resources Manager; Shalini Gupta, a Senior Human Resources Advisor and second in that department to Ms Toussat; Alex Sismanis, National Customer Service Manager in charge of Export Customer Service during the relevant period; and Cathy Paschalidis, Export Customer Service Supervisor during the relevant period.
Having reviewed the evidence, his Honour accepted that the applicant’s work history followed the course the applicant alleged, but was not persuaded that it involved unfair victimisation or harassment.[3]
[3]Ibid [143]–[173], [176].
He rejected outright the applicant’s conspiracy theory.[4]
[4]Ibid [196].
Further, and fatally to the applicant’s claim, the trial judge was not persuaded a reasonable employer in the respondent’s position would have foreseen the risk of recognised or recognisable psychiatric injury to the applicant.[5]
[5]Ibid [193].
Accordingly, the applicant failed to establish a relevant duty of care.[6]
[6]Ibid [198]–[199].
The applicant now seeks leave to appeal on the following grounds:
Ground 1:The trial judge drew erroneous and/or unsubstantiated inferences from the facts attributing credibility to witnesses of the Respondent without a proper basis.
Ground 2:The trial judge failed to provide an intelligible explanation of the path of reasoning that lead to the conclusion reached with regards to the question as to whether the Respondent breached its duty of care owed to the applicant.
Ground 3: The trial judge failed to consider the facts as a whole.
Ground 4:The trial judge failed to duly consider that the Respondent breached its duty of care owed to the applicant by not merely denying him his workplace rights but by subjecting him to the continual and perpetual degradation and oppression that this causes such that it would be inevitable that the Applicant would incur mental illness as a result of the actions of the Respondent.
Ground 5:The trial judge failed to consider and therefore correctly consider the that the Respondent failed in its duty of care to the Applicant in that it committed breaches of its statutory duties owed to him, namely including:
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 21
Duties of employers to employees
FAIR WORK ACT 2009 - SECT 389
Meaning of genuine redundancy
FAIR WORK ACT 2009 - SECT 343
Coercion
FAIR WORK ACT 2009 - SECT 345
Misrepresentations
FAIR WORK ACT 2009 - SECT 351
Discrimination
Ground 6:The trial judge failed to make a proper assessment of the facts by not requiring the Respondent to discharge its reverse onus of proof with respect to the factually proven acts of discrimination committed by the Respondent’s agents and therefore by the Respondent against the applicant.
Ground 7:The trial judge erred to not direct that medical professionals who were responsible for producing medical reports that attested to the respondent failing in its duty of care it owed to the Applicant should be called to give evidence and therefore failed to consider the health reports and assessments that indicated that the injuries causing damage sustained by the Applicant were directly as a result of acts perpetrated on him by agents of the Respondent and therefore by the Respondent vicariously.
Ground 8:His Honour the trial judge erred in his assessment of the actions of the Applicant by determining that they contributed to the negligence of the Respondent which caused him injury.
Ground 9:The written records of the respondent concerning the applicant makes false recordings and therefore such documents should not be given weight and especially if not in original hand-written form.
Ground 10:The trial judge erred in finding that there was no conspiracy against the Applicant or failed to recognise or acknowledge the concerted adverse efforts made against him.
Ground 11:Minimal study assistance provided by the Respondent to the Applicant should not be given weight.
Ground 12:Documents the Respondent failed to discover that needed to be and documents entered into the court book contrary to court order of the 29th of May 2020 with the intent to pervert the course of justice.
Ground 13:Judge failed to give due consideration to Applicant as a self-represented litigant.
It can be seen that none of the proposed grounds directly addresses the fundamental question of the existence of a duty of care. Grounds 2, 4 and 5 simply assume such a duty.
The applicant’s written case addresses ground 1; treats ground 2 as going to the weight of the evidence; offers no argument in support of grounds 3, 4, 5, 6, and 7; addresses the essentially irrelevant question of contributory negligence under ground 8; provides no argument in respect of grounds 9, 10, 11 and 13; and complains in support of ground 12 that certain documents which were provided in the course of the trial were not included in the court book.
As the matter was argued orally, the applicant’s essential complaints appear to be that:
·it was not open to the judge to, on the one hand, accept the applicant’s evidence of the history of his employment as generally truthful and reliable, and on the other hand, reject his claim; and
·the judge’s conclusions as to the facts of victimisation and harassment and his further conclusion concerning the lack of apparent risk of psychiatric injury were against the evidence and the weight of the evidence.
In our view the proposed appeal is hopeless.
·It was plainly open to the judge to accept the applicant’s account of the objective history and course of his employment and to reject the applicant’s subjective characterisation of that history as demonstrating a conspiracy against him or process of deliberate victimisation and harassment;
·The judge’s conclusions accord with the evidence and the weight of the evidence, and in particular no error has been demonstrated in the conclusion that a reasonable employer in the position of the respondent would not have appreciated that the applicant was at risk of developing a recognised psychiatric illness. There was no reason for the respondent to suspect a risk to the applicant’s psychiatric health at all.
Background facts
The applicant is a 48 year old man who was born and raised in Egypt. He is highly educated and impressed the trial judge as intelligent.
After arriving in Australia, he obtained business administration and accounting qualifications.
He joined the respondent in July 2007 as an Import Customer Service Co-ordinator.
In his judgment the trial judge set out a very detailed history of the applicant’s subsequent employment with the respondent.[7]
[7]Ibid [12]–[105].
In outline, the sequence of events was as follows:
·The applicant initially worked in a small section overseen by Rod Fry, alongside two fellow employees, Helen Zhang and Krista Callus. The section managed two accounts — Toyofuji and Djakarta Lloyd Limited.
·In 2009, due to the Asian Financial Crisis, the respondent lost the Djakarta Lloyd account. It was decided the section would be closed and the Toyofuji work would be transferred to a section known as Export Customer Service run by Mr Sismanis. One of Ms Zhang and the applicant would be made redundant. The respondent would adopt a policy of freezing recruitment.
·Ms Callus was transferred to Export Customer Service and the applicant became very busy. He asked for help but did not receive it.
·It was decided a new position in Export Customer Service would be created to undertake the Toyofuji work and some further work. The applicant and Ms Zhang applied for this position. It was awarded to Ms Zhang after an interview process conducted by Mr Sismanis, Ms Gupta and Ms Paschalidis. Mr Sismanis explained the reason for this preference in evidence.
·The applicant was told of his redundancy on 22 June 2009. The next day he wrote a letter to Mr Lines complaining that the interview was unfair and that he believed he had been unsuccessful because Mr Fry was biased towards women. The applicant also agitated the personal hardship which he and his family would suffer if he were made redundant. Mr Lines required the allegation of favouritism to be investigated and revoked the retrenchment relying on factors personal to the applicant.
·Insofar as the substance of the applicant’s allegations against Mr Fry are concerned, the judge was confronted with a situation in which Mr Fry had died six to seven years earlier. Nonetheless, on the whole of the evidence, the judge was not persuaded that the allegations of bias were made out. Further, he was satisfied that the interview process was genuine.
·As it happened, a Mr Granville, an Export Customer Service co-ordinator, resigned with effect from 10 July 2009 and the applicant was appointed to his position.
·Ms Zhang started Export Customer Service training and the applicant was required to continue doing Toyofuji work. He did not disagree or complain with respect to these duties.
·There were more than 20 employees in Export Customer Service. The applicant was omitted from one email list but included in others. Ms Paschalidis, his superior, could not explain in evidence how this had occurred.
·On 22 July 2009, Ms Zhang resigned and the applicant was required to continue on with the Toyofuji work. He did not receive computer training in a program known as ‘LARA’ which was necessary for full participation within the work of the Export Customer Service department.[8]
[8]In evidence, Mr Sismanis explained that the work for Toyofuji involved cars and was differently organised from the balance of the shipping work.
·On 30 September 2009, Ms Paschalidis conducted an Internal Transfer Progress Review with the applicant. She rated him as generally meeting performance expectations. She noted:
The plan is for Amro to be trained in Lara and assist with duties with the Export Customer Service team. It is envisaged that this will commence as of November 2009.
Under the heading ‘Additional comments’ she noted:
With the loss of DJL, Amro has continued in the role of looking after the Toyofuji business and has not had the opportunity to be trained in other areas of customer service. He has performed his Toyofuji duties in an acceptable manner and has shown interest in to further develop his skills in other areas of Customer Service.
·Mr Sismanis made arrangements to facilitate the applicant’s training in November 2009.
·Email evidence showed Ms Paschalidis to be a tolerant and sympathetic supervisor.
·In February 2010, the applicant applied for assistance in undertaking a course of study in a Diploma of Maritime and Logistics Management. The course proposed involved four semester units over two years. The cost of each unit was $2,050. The application was supported by Mr Sismanis, Ms Toussat and Mr Lines and the cost for the first unit approved. The trial judge noted this was a ringing endorsement of the applicant as an employee of the respondent.
·In March 2010, Mr Sismanis conducted a performance appraisal of the applicant. The appraisal included a nine page form filled in by both Mr Sismanis and the applicant. Mr Sismanis rated the applicant as meeting requirements. The applicant rated himself somewhat more highly in a number of respects. Mr Sismanis added the following comment:
Amro has performed well but under very little pressure now that he has only the Toyofuji work to contend with. He has met the work requirements of this part of the business. The plan is for Amro to get full training in Lara so he can take on extra responsibility, duties over the next few months.[9]
[9]Reasons [51].
The applicant did not comment on this observation.
·The applicant expressed the following aspirations in answer to particular questions. Asked what sort of experience would benefit him in the next year, he said:
To completely move and work as an export customer service after been doing TF [Toyofuji] customer service for almost 2 years.[10]
[10]Ibid [53].
In the long term his goal was:
To develop my skills in the Shipping industry and gain more experience in different tasks and departments.[11]
[11]Ibid [54].
·Mr Sismanis stated in evidence that the applicant had the opportunity during the appraisal to complain as to his work progress and environment but did not do so.[12]
[12]Ibid [55].
·On 13 May 2010, the applicant met with Ms Gupta and had a long conversation about his position and the issue of his desire for further training. He then wrote a long letter addressed to Ms Toussat setting out an account of the conversation and handed it to Ms Gupta, saying that he did not want to go ahead with a complaint but the letter was for the record.
·Ms Gupta made a file note:
No action taken/required
Amro commenced training on 17/5/10 and does not want to go ahead with a complaint.[13]
[13]Ibid [57].
·The letter set out a series of frustrations with the course of the applicant’s training for work in Export Customer Service. It concluded:
All of this put me under tremendous stress for a period of almost 12 months.
The question in my mind all the time is: Why is Alex doing this to me, when I have not done anything to deserve this treatment? Why is he trying to kick me out of the company? Why did he deprive me of my training for my new role in Export Customer Service and lock me in Toyofuji this past 11 months? I consider this to be a major setback in my career in Export Customer Service, since I have not learned anything at all (that’s why I went to study to make up for this loss). Moreover, my morale, self esteem and motivation have reached their lowest levels ever.
So I have decided to share this information with you and leave it in your hands. Bear in mind this is only for your information; as yet, I do not ask for any action to be taken, but rather I felt the need to speak up and explain my situation.[14]
[14]Ibid [58].
·Arrangements were then made for the applicant to undertake fulltime training commencing 17 May 2010.
·During July 2010 the applicant was also given buddy training at his request.
·In June 2010, the applicant had presented as part of a public speaking program. He spoke of Egypt and of racism and discrimination in Australia, but did not mention the respondent or his work experience adversely in this regard. Ms Gupta gave evidence that she spoke to him afterwards:
I think anyone would just make sure, you know, ‘Are you okay’, kind of chat. Like, ‘Is everything okay? Are you okay? And he said, ‘No, these are just my’ – something along the lines of this is his experience or, you know – and it must have been a very general chat. I can’t recall exactly what, but I do remember Amro saying that they were his – that was his experience in the country.[15]
[15]Ibid [74].
·In July 2010, the applicant applied for a new internal position called ‘Logistic Customer Service’. He was unsuccessful. A fellow employee told him the Human Resources Manager had intervened in the selection and the applicant believed he was unsuccessful because Ms Toussat had acted unfairly.
·On 30 July 2010, the applicant was advised by Ms Toussat that his title had changed to Toyofuji and Export Customer Service Co-ordinator and was given a new written job description. The document reflected the Toyofuji role which he had been fulfilling but was perceived by the applicant as a major disappointment to the applicant’s aspirations to move to a full Export Customer Service role.
·The applicant refused to sign the document. In an event summary submitted to the trial judge, he summarised his reasons as follows:
First it was a clear attempt to giveaway [sic] my rights for ever [sic] to get my position back. And for ANL to get away from breach of contract responsibility.
Secondly, I will be locked permanently in toyfjui [sic] job & this is will add more damage to my career which will push me to fed up and resign.
Thirdly, my salary is very low having been in the company for more than three and half years, so I cannot afford to lose both side salary wise and experience/career wise.
·Both Mr Sismanis and Ms Toussat gave evidence that the documentation was simply amended to more accurately reflect the work the applicant was actually doing.
·In the days before he stopped work, Ms Paschalidis was in frequent contact with the applicant. He regarded these actions as unnecessary micromanagement. The communications related to log off procedures and were not unique to him.
·During the course of his employment the applicant sought the use of a prayer room. For much of the time he was required to share a space and from time to time experienced practical difficulties in this respect.
·The applicant consulted his general practitioner regarding stress at work on 5 August 2010.
·The applicant ceased work on 11 August 2010.
The judge’s Reasons
After summarising the evidence, the trial judge addressed relevant legal principles. In so doing, he identified the central need for the applicant to establish a relevant duty of care by reference to a risk of psychiatric injury to the applicant in particular which was reasonably foreseeable.[16]
[16]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 57 [35] (McHugh, Gummow, Hayne and Heydon JJ).
After making general findings as to credit to which we have already referred, the judge went on to deal with each of the applicant’s particularised complaints. It is necessary to set out his Honour’s conclusions in this regard in detail.
(a)Prolonged micromanagement and unfair criticism of Cathy Paschalidis
143This particular refers to the emails of Ms Paschalidis on 9 and 10 August 2010. I heard Ms Paschalidis’ explanation of these emails, including the reason she copied herself into emails to Mr Abdelkawy. It is clear Ms Paschalidis is the type of supervisor who wants to know the whereabouts of her staff. She was insistent on this. She wants to be able to account for the whereabouts of her staff if she is asked or if there is an emergency, citing occupational health and safety as the justification. She is not a martinet. She is the type of person who needed to be on top of the activities of the staff she supervises. There was nothing particular about 9 and 10 August emails except she had occasion to send a total of five emails to him. I do not find she ‘micromanaged’ Mr Abdelkawy or unfairly criticised him. She did not act in this fashion at the behest of Mr Sismanis or anyone else. The fact that these emails came while Mr Abdelkawy delayed signifying his acceptance of the ‘new contract’ is, on the evidence, coincidental.
144There is no evidence of micromanagement through people passing Mr Abdelkawy’s desk and looking at him.
145 There is no merit in this particular.
(b) Overworked
146This particular refers to the last months of Mr Abdelkawy’s time in Mr Fry’s section until he was transferred on 1 July 2009 (March to June). On his evidence, which I accept, he was very busy in that period. He was doing the work of Ms Callus and his own work. He may also have done the work of a manager, Tim Kirley, in this period.
147But that was the reality of what was happening to the defendant then. After his transfer, Mr Abdelkawy was not overworked. If anything, he was underworked.
148That circumstance has nothing to do the allegations of victimisation, harassment and discrimination. It is tangentially relevant to the broader tort.
(c)Unfairly targeted and discriminated against by reason of his race and gender
149Insofar as it concerns gender, the allegation is directed at the late Mr Fry. Mr Abdelkawy believed Mr Fry favoured women over men. His evidence on this point is tenuous. It is denied by witnesses of the defendant. I do not accept it has any basis in fact.
150Insofar as it concerns race, this allegation is directed at the actions of Ms Toussat. Underlying his perceptions of Ms Toussat is Mr Abdelkawy’s belief that Ms Toussat was a French Jew. This is untrue. She is certainly French, but is not a Jew. She was baptised a Catholic. The way she gave this evidence, I would infer she is a non-practising Catholic. It was never clear why the conjunction of French and Jew was important to Mr Abdelkawy, but it was. In any event, I accept her evidence that she did not act in relation to him on the ground of race. As she pointed out in her evidence, the composition of her human resources team at the time was truly multi-racial.
151Mr Abdelkawy’s memorandum to Ms Toussat and Ms Gupta in May 2010 does not raise either race or gender. He does question the reason why Mr Sismanis is seeking to ‘kick me out of the company’.
152 There is no merit in either allegation.
(d)Unfairly treated when attempting to re-apply for his position in 2009, which included being ignored in the relevant interview process
153Mr Abdelkawy saw himself as the better candidate due to his performance of the role, Ms Zhang lack of background in the role, the falsity of her application and the unnecessary opportunity given her to update her resume.
154Objectively, the interview process was fair. The applications of both applicants were given to the members of the interviewing panel. The panel interviewed both applicants. The allegation of being ignored in the interview process is not borne out in the evidence of Mr Sismanis. The panel preferred Ms Zhang to Mr Abdelkawy. Its reasons related to Ms Zhang’s personality and the requirements of the position. On the face of it, that seems a reasonable basis if one had confidence in her ability to carry out the role.
155 This particular fails.
(e)Excluded from meetings, farewell gatherings, office ‘chit chat’ and left off group emails
156This is an odd circumstance. Mr Abdelkawy gave evidence of the typical process when a person joined the Export Customer Service: one month to six weeks of Lara training; followed by a month to six weeks of ‘buddy’ training; and followed by independent work. By the last stage, the person would enter the department mailing list. Mr Abdelkawy was not added to the mailing list until he complained and then it was haphazard. Although Mr Abdelkawy denied the existence of personal mailing lists, I accept the evidence of Ms Paschalidis of her keeping one.
157 Mr Abdelkawy was isolated to an extent but it was not deliberate.
(f)Abruptly told by Rod Fry that he was going to be made redundant without any or any adequate notice, opportunity to respond or support measures such as counselling being put in place
158The announcement of his redundancy was abrupt. There was no support. However, Mr Abdelkawy reacted quickly in writing to Mr Lines. His redundancy was promptly withdrawn and he was offered another position, which he accepted.
159Once it was announced Ms Zhang obtained the position, the events moved quickly. No doubt, it was unsettling for Mr Abdelkawy but he gave no inkling that that was so, at the time or subsequently.
(g)Persecuted following correspondence he sent to the defendant’s CEO
160To an extent, this particular repeats earlier matters: Ms Zhang moving to Export Customer Service and Mr Abdelkawy retaining the Toyofuji work; being asked to train Suryani and Ms Callus; asking for new position 11 times; not being placed on the mailing list; from the start being isolated from the Export Customer Service team.
161Coupled with the denial of a prayer room and his failure to get the position of Logistics Officer, for Mr Abdelkawy, these actions constitute persecution or victimisation, all stemming from his approach to Mr Lines and having his redundancy cancelled. It is his interpretation of his perception of these events. I do not accept the interpretation for the perception is itself unsound factually.
162 There is no merit in this particular.
(h) Pressured into accepting a new role
163This particular relates to the proposed ‘new contract’ in 2010. Mr Abdelkawy believes Mr Sismanis was pressured by the Human Resources department to get him to sign it. Ultimately, Mr Abdelkawy sees the actions of Mr Sismanis as part of a conspiracy with Ms Toussat and others to rid the defendant of him. This belief in a conspiracy led to this surprising question and answer in the examination-in-chief of Mr Sismanis:
Q:Were you acting as a tool or a henchman or an agent of Pascale Toussat because she wanted Amro to leave?---
A:No, absolutely not. I find that quite — an unusual comment.
164There were many instances where Mr Abdelkawy spoke of this belief. In a long question, he put his belief to Mr Sismanis, who answered:
A:I find that very offensive to our characters, to our morals, to our responsibilities of the department and your judgment of Pascale is so, so out of kilter, it is — you have defamed the individual and it’s not right.
165That answer, along with other evidence, convince me there was no conspiracy to rid the defendant of Mr Abdelkawy. To Mr Sismanis, the proposed document was a correction. It was given to him to pass onto Mr Abdelkawy.
166There was no desire of Mr Sismanis, acting alone, to do so. There was no pressure to sign the agreement and the request was never part of a larger plan to force Mr Abdelkawy from the defendant.
(i)Made to feel isolated when moved into a new role, which included not being introduced by his new team
167This particular involves what happened to Mr Abdelkawy when he went to Export Customer Service. He was welcomed by someone outside the department. He was not inducted into the new department, its policies and procedures. He was not introduced to members of the department and told of their respective roles. By contrast, Ms Zhang was. He was not on the internal email list.
168To Mr Abdelkawy, these circumstances were part of the conspiracy to get rid of him. Each was a deliberate act in furtherance of the conspiracy. I am satisfied there was no such conspiracy. Gobi was part of Export Customer Service, not from outside it. Although described as an Export Customer Service Consultant, his new duties included his previous duties with Toyofuji. There was a degree of unpreparedness for him. This is evidenced by the haphazardness of his training in the computer system.
(j)He was having difficulty with his work and his repeated requests for assistance, support and training were ignored
169There are two aspects to this particular. First, in the last months of his time in Mr Fry’s department, Mr Abdelkawy was doing two jobs and he asked Mr Fry for help. It was not given. Second, there were his repeated requests for training after he joined Export Customer Service.
170As to the first, it is true Mr Abdelkawy was busy in those months and his request for help was not answered. However, Mr Fry’s section was short staffed and the burden fell on Mr Abdelkawy.
171As to the second, it is also true he requested training and, as I have said, the response was haphazard. Until May 2010, the training came in bits and pieces. His requests were subdued. The training picked up significantly after the letter in May 2010 and his conversation with Ms Gupta. There was still training arranged at the time he ceased working.
(k) Was refused appropriate prayer space despite requests
172The history of his use of a room to pray after the arrival of Ms Toussat, Mr Abdelkawy invites the conclusion that Ms Toussat was biased against him and his religion.
173I am afraid Mr Abdelkawy was dealing with people who placed less importance on prayer than he did. The use of a room was never denied to him. It was that the room would have other uses and he needed to arrange a time. It was clear he would not have a room solely dedicated to him for prayers. I do not accept Ms Toussat was biased against him or his religion.[17]
[17]Reasons [143]–[173] (citations omitted).
It can be seen that the trial judge dealt with the applicant’s case at a very fine level of circumstantial detail and sought to assess his complaints within a balanced and comprehensive framework. Ultimately, his Honour simply was not persuaded by the characterisation which the applicant sought to place on the facts.
His Honour then analysed the applicant’s claim and concluded that:
·he was not satisfied the applicant was subject to harassment and victimisation;[18] and
·the events leading up to the applicant’s cessation of work (including the May 2010 letter) were insufficient to give notice of an impending recognised psychiatric injury.[19]
[18]Ibid [176].
[19]Ibid [185].
In his Honour’s view, the applicant’s response to his work experience was not reasonably foreseeable.[20] There was no reason for the respondent to suspect a risk to the applicant’s psychiatric health at all and certainly not a risk of recognised psychiatric injury.[21]
[20]Ibid [197].
[21]Ibid [198].
Accordingly, the applicant’s claim failed.
The credibility of the witnesses
Proposed ground 1 is intended to raise the following proposition:
In his reasons for judgement at paragraph 138 the trial judge refers to the applicant as being a ‘truthful witness’ and at paragraph 141 he refers to the agents of the respondent as being ‘reliable’ witnesses but this cannot be the case because the applicant and agents of the respondent’s evidence is opposing[sic]. It is however the evidence given by the agents of the respondent who were its witnesses that was untruthful and whose evidence should not be weighted credibly.
In oral argument, the applicant’s solicitor pursued the proposition that the trial judge’s conclusion that the applicant was truthful and substantially reliable necessarily meant that his case must succeed.
There are serious problems with this argument.
First, the fact that the trial judge found the applicant to be a truthful and generally reliable witness as to the course of events does not mean that he was bound to accept the applicant’s beliefs as to conspiracies against him or the applicant’s confabulations with respect to the motivations of others. The distinction is exemplified in the following evidence the applicant gave concerning his supervisor, Ms Paschalidis:
Our relationship with me and Cathy has two stages; beautiful relationship, very good, laughing, joking, friendly in the first time. Once I start demand my job and then refuse to sign the contract, I’ve seen the different face. So it was somebody who was good with you and friendly and everything was smooth, and all of a sudden towards the end when I refused to sign, she start micromanage me and harassed me in email, all these email, all these things happened, because I know she is subjected to somebody above her, somebody above her, somebody above him, and it’s all coming from the top down.
Secondly, the binary alternatives which the applicant postulates as to the factual situation do not reflect reality. To take a simple example, the applicant believes that, although he was best qualified for the job, he was not preferred for the 2009 appointment because of bias against him on the part of his former superior, Mr Fry. Those involved in the selection process maintain the choice between the two job applicants was made on merit. As a matter of logic and general human experience, it is entirely possible that the applicant did not succeed although he was in fact the best qualified to fulfil the position, without any inference of bias or malice on the part of the decision-makers. The job interview process may simply have been fallible giving too much weight to performance at the interview itself. The choice may have been one on which reasonable minds might differ having regard to the available evidence. Or, the interview panel may simply have made a mistake.
Thirdly, the trial judge found that the applicant’s beliefs as to the basis of the actions of others were materially deluded. Most significantly, the applicant believed that he was the subject of a conspiracy and that this conspiracy was motivated in part by religious hatred. The trial judge found as follows with respect to a key misconception of the applicant:
104For much of the hearing before me, it was obvious Mr Abdelkawy was convinced Ms Toussat was a French Jew. This was significant to him because, as he put it repeatedly, he was a Arab Muslim. This contrast in their respective backgrounds was part of his belief that his troubles started when Ms Toussat joined the defendant.
105First, Ms Toussat is French. Second, she is not Jewish and never has been. As she put it, she was born a Catholic. The defendant’s counsel asked her these questions:
Q:Whether you be Jewish or not, do you hold prejudice towards Muslims?---
A:No. I’ve got diversity in my team. I have a lady from Afghanistan, a lady from Iran, a lady from — two ladies from India, a lady from New Zealand, and I’ve got one Australian person. So, diversity is the (indistinct) now.
Q: Or animosity towards Arabs?---
A: No, I don’t.
Q: Or Egyptians?---
A: Not at all.
I accept the entirety of her evidence in this regard.[22]
[22]Ibid [104]–[105] (citation omitted).
Fourthly, the history upon which the applicant relied in fact demonstrated a willingness on the part of his employer to respond to the applicant’s complaints which on the face of it is entirely inconsistent with the applicant’s overarching conspiracy theory of victimisation. When the applicant sought reconsideration of his redundancy, it was revoked. When the applicant sought further training, it was provided. When he sought funding for further academic study, it was provided.
When the trial judge’s Reasons are read as a whole, they explain clearly why, despite the finding that the applicant was a truthful and generally reliable witness, he lost his case.
The trial judge’s path of reasoning
Proposed ground 2 asserts that the trial judge failed to provide an intelligible explanation of his path of reasoning with respect to the question of breach of duty of care. In support of this proposition, the applicant’s case simply advances an alternative narrative by way of ‘a proper account of the facts’. There is nothing in this ground. The trial judge’s Reasons were readily comprehensible and cogent. The applicant failed on the threshold issue of duty of care.
The weight of evidence
Proposed ground 3 of appeal is that the trial judge failed to consider the facts as a whole. We take this ground to embrace the proposition that the judge’s decision was against the evidence and the weight of the evidence. No written case is advanced with respect to it.
When invited to address the issue of the duty of care, the applicant’s solicitor submitted orally that the May 2010 letter was sufficient to alert a reasonable employer to the risk of recognised psychiatric injury to the applicant. We do not agree. As the trial judge held, that letter and its manner of presentation alerted the respondent to the fact that the applicant was frustrated and aggrieved as to the slow progress of his training. It did not raise any prospect of recognised psychiatric injury. Nor did the applicant’s subsequent conduct prior to his resignation raise such a prospect.
In further elaboration of the applicant’s case it was submitted that the trial judge overlooked two matters in his reasoning. First, it was said that the redundancy which occurred in 2009 was a ‘sham redundancy’ because another position fell vacant at that time. This characterisation fails to recognise the fact that the down-sizing of Mr Fry’s department was undertaken for legitimate reasons and the redundancy in issue was the consequence of that decision. Moreover and in any event, the redundancy was immediately reversed.
Secondly, it was submitted that the failure of the applicant to obtain the new position necessarily showed the process was a sham. We have already addressed the logic of this proposition. The trial judge heard the evidence of Mr Sismanis, Ms Gupta and Ms Paschalidis and there is nothing glaringly improbable in his conclusion that the decision was not a sham.
In argument, attention was also drawn to the fact that Mr Lines gave evidence that he reversed the redundancy decision not only after reading a letter from the applicant but also after meeting with the applicant face to face. The applicant’s evidence was that no face to face meeting took place. On balance, the trial judge took the view that it was more probable than not that a meeting did occur but expressly recorded that this subsidiary issue was of no real significance. The circumstantial nature of Mr Lines’ evidence favoured this conclusion but in any event we agree that the issue was entirely peripheral. If there was no meeting this does not materially affect the history of the applicant’s employment or assist in making out his case.
Next it was submitted that the trial judge failed to give due weight to the omission of the applicant from some emails, the fact the applicant did not receive full training, the applicant’s reasonable expectations given the terms of his contract, and the fact that he was pressured to change his job description. Taken at their highest, these matters raise questions of the applicant’s industrial rights but neither establish victimisation nor provide a basis for the alleged duty of care and its breach.
Having read the extracts of transcript contained in the appeal book we have no doubt his Honour was correct in dismissing the applicant’s allegations of victimisation and persecution. Further, as the respondent’s witnesses made clear there was no reason connected with the applicant’s work for his employer to anticipate that he was likely to suffer a recognised psychiatric illness.
The remaining grounds of appeal
There is nothing in the remaining proposed grounds of appeal.
·Ground 4 is no more than a rhetorical assertion.
·Ground 5 raises allegations which were not pursued at trial and could not overcome the fundamental evidentiary problems with the applicant’s cause of action.
·Grounds 6, 7 and 8 are simply misconceived.
·Ground 9 goes nowhere in terms of establishing the applicant’s cause of action.
·Ground 10 reiterates the allegation of conspiracy which the trial judge was entirely justified to reject.
·Ground 11 seeks to minimise the significance of the study assistance provided to the respondent but does not go to the trial judge’s critical conclusions.
·Ground 12 goes to questions of discovery which have not been demonstrated to have led to any ultimate material deficiency in the evidence. The applicant withdrew the assertion that the respondent’s discovery and preparation of the court book was an attempt to pervert the course of justice.
·Ground 13 asserts the trial judge failed to give due consideration to the applicant as a self-represented litigant in circumstances where it is apparent the trial judge gave careful and detailed attention to this consideration.
For completeness we add that the applicant made an ancillary application to rely on fresh evidence in support of proposed ground 12. It was substantially misconceived in that the bulk of the documents in issue were in fact produced at trial. More fundamentally, none of the evidence is materially probative of the applicant’s case in any event. It did not meet the requirements for fresh evidence and the application should be rejected.[23]
[23]Clark v Stingel [2007] VSCA 292, [25] (Warren CJ, Chernov and Kellam JJ); Li v So [2021] VSCA 32, [34] (Tate, Emerton and Sifris JJA).
Conclusion
Leave to appeal should be refused.
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