Abdelkawy v ANL Container Line Pty Ltd
[2020] VCC 2024
•15 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-03481
| AMRO ABDELKAWY | Plaintiff |
| v | |
| ANL CONTAINER LINE PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 15-19, 22-24 June 2020 | |
DATE OF JUDGMENT: | 15 December 2020 | |
CASE MAY BE CITED AS: | Abdelkawy v ANL Container Line Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2024 | |
REASONS FOR JUDGMENT
---
Subject:
Catchwords:
Legislation Cited: Occupational Health and Safety Act 1985 and 2004
Cases Cited: Brown v Maurice Blackburn Cashman (2013) 45 VR 22; Waters v Commissioner of Police for the Metropolis [2000] 4 All ER 934 at 942; Tame v New South Wales (2002) 211 CLR 317; Czatyrko v Edith Cowan University (2005) 214 ALR 349; Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 441; Wyong Shire Council v Shirt (1980) 146 CLR 40; The Age Company Ltd v YZ [2019] VSCA 313; George v Rockett & Anor (1990) 93 ALR 483
Judgment:
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Defendant | Mr D Masel QC with Mr G Worth | Thomson Geer |
HIS HONOUR:
Introduction
1 This case is an example of how protracted this kind of proceeding can become. The events of which Amro Abdelkawy complains occurred in 2009 and 2010. In March 2017, a judge of the Court gave him leave to bring this proceeding. Between 12 and 24 June 2020, it proceeded before me, with Mr Abdelkawy representing himself. It is only because of the intelligence of Mr Abdelkawy and the generosity of the defendant’s lawyers that a reasonably coherent trial was achieved. In any event, with the consent of the parties, I ordered the splitting of the trial. The trial proceeded on the question of liability. For that purpose only, I assumed Mr Abdelkawy suffered a mental injury caused by his employment with the defendant.
2 Mr Abdelkawy seeks damages from his former employer. He alleges psychological injury at work because of “workplace stress and constant harassment and victimisation” and his employer knew or ought to have known the stress, harassment and victimisation was likely to cause him injury. What he meant by stress, harassment and victimisation emerged in his further and better particulars of his statement of claim, of which there are eleven:
(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.
Circumstances
3 Mr Abdelkawy was born and raised in Egypt. He is highly educated. In Egypt, he obtained a tertiary qualification in electricity. After arriving in Australia, he obtained a Master of Business Administration from Ballarat University in 2003 and a Diploma of Accounting from Swinburne University in 2004.
4 In Australia, he worked in hospitality and a call centre before joining the defendant in July 2007 as an import customer service coordinator.
5 He is married with two children. Because it will become relevant later, he practises the Islamic faith.
6 Apart from Mr Abdelkawy, I took evidence from employees of the defendant. I give a brief description of them.
7 Between 1998 and 2017, John Lines was the Chief Executive Officer and Managing Director of the defendant. After ceasing in those positions, he remained with the defendant as the Chair of its Board until 30 June 2019.
8 Again because of its relevance later, Pascale Toussat was born in France. She came to Australia in 1991. She worked in Human Resources for several companies before joining the defendant in November 2008 as its Human Resources Manager. She holds a Graduate Diploma in Business from Swinburne University, specialising in Human Resources.
9 In 2009 and 2010, Shalini Gupta was employed in the defendant’s Human Resources department. She was a senior Human Resources advisor and second in that department to Ms Toussat. She joined the defendant in September or October 2008 and left in about October 2011. When employed by the defendant, she already held a degree in Psychology and had completed courses in Human Resources.
10 Alex Sismanis is now retired. He started with the defendant in 1993. He was promoted to Import Manager before leaving in 1996 or 1997. He re-joined the defendant in 1998, ultimately becoming its National Customer Service Manager. He was in charge of Export Customer Services.
11 Cathy Paschalidis commenced with the defendant in about 2005. She started as an Export Customer Service Consultant and became an Export Customer Service Supervisor in about 2008. In 2009 and 2010, she supervised some aspects of Mr Abdelkawy’s work. She left the defendant in 2013.
Turning to the events
12 On 3 July 2007, Mr Abelkawry commenced with the defendant as an Import Customer Service Coordinator. He worked in a section overseen by Rod Fry. It was a small section, comprising Mr Fry, Mr Abdelkawy, Helen Zhang and Krista Callus. The section had two accounts, known by the names of the client, Toyofuji and Djakarta Lloyd. Mr Abdelkawy worked mainly on the Toyofuji account, but did work on the other account. Ms Zhang performed similar duties, working mainly on the Djakarta Lloyd account.
13 In 2009, due to the Asian financial crisis, the defendant lost Djakarta Lloyd as a client. This had three consequences. First, Mr Fry’s section was to close. The work of its other client, Toyofuji, would be transferred, along with most of its staff, to another part of the defendant’s business known as Export Customer Service, run by Mr Sismanis. Second, only one of Ms Zhang and Mr Abdelkawy would be transferred, with the other becoming redundant. Third, the defendant adopted a policy of freezing recruitment and not replacing employees who leave, unless it was necessary to do so.
14 In June 2009, Ms Callus was transferred to the Export Customer Service. Even though the defendant lost Djakarta Lloyd as a client, the defendant needed to complete outstanding work. Since Ms Callus did the Djakarta Lloyd work, the burden of that work was taken by Mr Abdelkawy, while also retaining the Toyofuji work. He became very busy and asked Mr Fry for help but received none.
15 Apart from Mr Fry, with the transfer of Ms Callus, Ms Zhang and Mr Abdelkawy were left in the section. The decision was made to retain one of the two. What the remaining person would do is explained in an email from Ms Toussat to Mr Lines on 9 June 2009. In part, it said:
“I met with Alex [Sismanis] today and further to my email sent to you on Friday, there is a requirement to retain 1 person in Melbourne to handle Imports and Exports Documentation for Toyofuji. Whilst the role might not be 1FTE, it is close to 0.6 0.7 FTE. If we include this person in Alex’s team we will also benefit from being able to provide support and backup when the person goes on leave, as Krista who previously worked for DJL has joined Alex’s team at the start of the month.
The way we would handle this 1 role, will be to ask Amro [Mr Abdelkawry] and Helen [Ms Zhang] to apply for the role. HR will then take them through the normal internal recruitment process and one person will be made redundant at the end of June.
This means that Customer Service headcount will go up by 1 more headcount.”
16 As can be seen, the successful applicant would become part of Export Customer Services, handling the Toyofuji work with imprecise support and backup. Essentially, it was an appointment to the Export Customer Services, focussed mainly on the Toyofuji work.
17 Both Mr Abdelkawy and Ms Zhang applied for this position. Each submitted a written application together with a curriculum vitae. Oddly, each described the position differently in their applications: Ms Zhang as “Toyofuji customer service”[1]; and Mr Abdelkawy as “DJL Customer Service Co-ordinator”[2]. Despite his apparent belief, Mr Abdelkawy saw himself experienced in handling the work of both clients[3]:
“In my 18 months experience in Toyofuji department & 6 months in Djakarta Lloyds as Import & Export Customer Service Coordinator I have gained a [variety] of experience and work skills which can greatly help me to do the job smoothly with the minimum of supervision.”
[1]Joint Court Book (“JCB”) 547
[2]JCB 379
[3]JCB 379
Interview
18 On 16 June 2009, Ms Zhang and Mr Abdelkawy were interviewed separately by a panel comprising Mr Sismanis, Ms Gupta and Ms Liberatore[4]. Mr Abdelkawy was unhappy with the interview. He believed Mr Sismanis had not read his application, an allegation Mr Sismanis denies. Since the application was short and accompanied by a three-paged CV, it is hard to accept Mr Sismanis would not read it.
[4]Liberator is married surname of Ms Paschalidis. It is unclear whether there was a fourth person on the panel
19 From Mr Sismanis’ perspective, the job entailed the Toyofuji work together with other Export Customer Service work after the successful applicant received training in the work of that department[5].
[5]See the letter of Mr Abdelkawy to Ms Toussat sent on 13 May 2010
20 Following the interview, Ms Zhang was successful and appointed to a full-time position called “Toyofuji Customer Service Coordinator” in the Export Customer Service team or department[6], starting on 1 July 2009. From Mr Sismanis’ perspective, she was appointed because[7]:
“…she was quite proactive. She was good with clients on the phone. She picked things up quite quickly. …and I’m not saying that Amro couldn’t do those things but, at the end of the day, you’ve got one job in that area…”
[6]JCB 555
[7]Transcript (“T”) 232
21 By a letter dated 22 June 2009, Mr Abdelkawry was told of his redundancy, effective on 30 June 2009[8]. The next day, he wrote to Mr Lines[9]:
[8]JCB 387
[9]Exhibit 5, JCB 392
“I am writing to you regarding my unfair redundancy. I have been working for ANL for the past 2 years in DJL customer service department. In the last 18 months I have been looking after Toyofuji customer service. I was asked to do both DJL & Toyofuji after the transfer of one of our staff to export customer service, when my manager ROD FRY informed me the DJL is going to close and I have to go for an interview (for my own job that I have been doing successfully in the past 18 months) with Helen Zhang the DJL export customer service consultant.
From that moment I have no doubt that I lost my job because I know ROD FRY will not let a female lose her job and I stay in the company, when he was trying hard to get rid of me or replace me by a female. I have so [many] incidents but I don’t want to waste your valuable time.
I found very hard to believe that this is going to be a FAIR contest due to a long history with my manager ROD FRY who is constantly used to favour every single female worked in DJL department over myself. I am the oldest in the department I have witnessed how he deals with the other females and how he dealt with me he was completely RACIEST (sic.) against me his racism based on Gender.
His support and help for every female was so obvious on contrary he never help or support me. I had to do every thing on my own to the extent I have not had any training at all I had to learn through my mistakes which he always uses against me.
He use to cover up the females mistakes and shortcoming while expose mine. I remained silent for all this times so that I don’t be title as trouble maker. I have ignored and lived with this unfair treatment but now it has cost me my job.
The interview was not fair and was just set up to take my job away and give to someone else. My resume has not been looked at the report was given by ROD FRY was enough to give my job to someone else.
You would understand how hard is it for a married person like me with child and mortgage to find him self out of work and loosing his own job for someone else because of likes and dislikes.
I am a very silent person never have made problem with any one, always do my job quietly and did worked hard when we were short staffed and when people go on holidays/leave I always step in and do the job.
I have train most of the new staff and when the job needs me in such times like (good Friday, xmas I was always there for the job, and here I am losing my job in such unfair and unjust way. I am not a person who like to complain his manager or even criticise the management rather I always leave a good name behind but this time it’s totally different and I thought I need to speak up.
I believe that you are a fair man and you will look into this issue with a just approach.”
22 Unfortunately, Mr Fry could not answer these allegations for he died six or seven years ago. None of the defendant’s witnesses viewed Mr Fry as biased. Understandably, this allegation was not much explored in the evidence. It is impossible to make a finding one way or another, but Mr Abedkawry believed Mr Fry was biased.
23 On 23 June 2009, Mr Lines sent an email to Ms Toussat[10]:
“These are serious allegations, are we certain there is no favouritism or racism involved.”
[10]Exhibit 21, JCB 599
24 Mr Lines says he met with Mr Abdelkawy, which Mr Abdelkawy denies. Whether a meeting occurred is relatively unimportant. However, if pressed, I would find the meeting did happen. Mr Lines appears to be a “hands on” CEO, an aspect of which is his mingling with his fellow employees. Below I quote from his oral evidence. His decision to revoke the redundancy relied on factors personal to Mr Abdelkawy. Most likely they came from the meeting. More importantly, he ordered the continued employment of Mr Abdelkawy[11]. His reasons were:
“Why was that exception given in Mr Abdelkawy’s case? Because I felt concerned about him. His family situation that he explained to me, that he was the breadwinner, he didn’t know how he was going to tell his wife about the problem, and I just felt sorry for him, and I said, well, look, you know, if we can do something, and from my recollection, which could be wrong, but from my – Amro will be able to confirm, but from my recollection, I think there was a temporary role found for him until something more solid came available.”
[11]T410-411
25 As it so happened, on 15 June and within Export Customer Services, Mr Granville, an Export Customer Service Coordinator, resigned, with effect on 10 July 2009.
26 The meeting had an immediate effect. On 24 June 2009, Ms Toussat wrote to Mr Abdelkawy:
“Congratulations! This letter confirms your appointment to the full-time position of Export Customer Service Coordinator and your transfer to the ‘Export Customer Service’ team.
Effective date: This appointment takes place effective 1st July 2009.
Reporting: You will report directly to the Export Customer Service Supervisor, Cathy Paschalidis.
Remuneration: Remuneration for this position will remain unchanged at $40,000 plus 9% superannuation.
Other: Please find the attached Position Description. All other Terms and Conditions of your employment remain unchanged.
To confirm the changes to your contract and acceptance of the new position description please sign and return a copy of this document to Human Resources.”
He signed the next day.
27 The position description is a five-page document, dated the previous year. The position title is “Export Customer Service Coordinator”. On its first page, it sets out the purpose of the position in dot points: to efficiently handle all enquiries from a group of designated clients, thereby ensuring their requirements are satisfied where possible; and work closely with Sales/Marketing staff and provide effective sales and administrative support.
28 The next two pages contain a long list of “key accountabilities”. Apart from the first, the rest are specific. The first is general:
“Assist the National Customer Service Manager/Export Manager and Sales Team as directed”.
29 The remaining pages deal with the expected qualities of the position holder, as well as occupational health and safety matters and quality assurance.
30 On 1 July, Mr Abdelkawy started in the Export Customer Service. He was shown to a desk in the Export Customer Service by a person called Gobi. Mr Abdelkawy believed then, and still does, that Gobi came from an area called Corporate Accounting and was not by a member of Export Customer Service. In his evidence, Mr Sismanis corrected that assertion twice, saying Gobi belonged to Export Customer Service and was in an area called “Global Accounts”[12]. I accept Mr Sismanis’ evidence on this point. He should know, being the person in overall charge.
[12]T279
31 Mr Abdelkawy took the position description at face value and saw his role as an Export Customer Service Coordinator. This role was different from the role obtained by Ms Zhang, which to Mr Abdelkawy was as a Toyofuji Customer Service Coordinator. Despite the description of Ms Zhang’s role, she started Export Customer Service training almost immediately. Since she was training, Mr Sismanis required Mr Abdelkawy to perform the work of Toyofuji. Mr Abdelkawy agreed, keeping any reservation or disagreement to himself. He did not complain to Mr Lines.
Emails
32 Ms Paschalidis was the supervisor of Export Customer Service. She supervised more than 20 employees. She would write to those she supervised. However, the persons she supervised were divided into teams, one for each State and one for a management team. She kept several distribution lists for her emails. These lists needed altering from time to time. She cannot now explain why Mr Abdelkawy was not included in at least one list from the outset.
33 Mr Abdelkawy did not receive emails. Judging from the emails admitted into evidence, Ms Paschalidis made a practice of announcing staff changes in emails to those persons she supervised. No such email about Mr Abdelkawy has been produced and I assume there is none. Although he did not receive some emails, he did receive others.
34 On 7 December 2009, Ms Paschalidis included him in an email about after work drinks. On 4 February 2010, she sent an email to her staff about the move to new premises. Somehow she realised Mr Abdelkawy was not included and did so about 30 minutes later, adding her sincere apologies[13].
[13]Exhibit 10, JCB 464
Zhang resigns
35 On 22 July 2009, Ms Zhang wrote to Cathy Paschalidis resigning her position[14]: “I’m sorry to say that I need to resign because of my pregnancy.” Coming only 22 days after taking up the position, this was unfortunate.
[14]JCB 561
36 Even before Ms Zhang left, Mr Abdelkawy had taken over the Toyofuji work because she had gone into training. With her resignation, the plan remained the same. Mr Abdelkawy would continue working on Toyofuji and receive training so he could work as an Export Customer Service Coordinator. Another person would need training in the Toyofuji work as there needed to be two persons capable of performing that work.
37 To Mr Abdelkawy, an essential part of the function of an Export Customer Services Coordinator is an ability to use a computer program called “Lara”. This requires training. The Lara program is concerned with containers, which are an important part of the work of Export Customer Service. When Ms Zhang left, it was necessary for Mr Abdelkawy to be trained in the work of an Export Customer Service Coordinator. The Toyofuji work was not full-time and rest of the time needed to be spent on the coordinator’s work.
38 On 16 September 2009, Mr Abdelkawy wrote to Ms Paschalidis asking when he would start his Export training[15]. She replied on 28 September[16]:
“Apologies for the late reply.
Rod Pritchard is on annual leave at the moment, so once he returns we can look at you spending some time with Rod for your Export Customer Service Training.
However having said that, if you have the time and are not busy during the weeks, please feel free to come and see me and I can sit you with one of the staff members so you can get an idea of how we work in this department.”
[15]Exhibit 8, JCB 439
[16]Exhibit 8
39 Mr Sismanis intended Mr Abdelkawy’s training in Lara to start in November 2009. It takes three months for a person to be trained in the Export Customer Service functions including Lara. The training need not be continuous, it can be broken up. If broken up, it may take longer, depending on the person. For Mr Abdelkawy, his training was never likely to be continuous because of his Toyofuji work. Mr Sismanis decided to make his personal assistant’s role full-time and for that person to do the Toyofuji work, thereby releasing Mr Abdelkawy for training. His personal assistant was Suryani.
40 On 30 September 2009, Ms Paschalidis conducted an “Internal Transfer Progress Review” with Mr Abdelkawy[17]. Under six key performance factors, she rated him as a 2 in five and 3 in the other. “2” means “consistently met performance expectations. “3” means “met most performance expectations”. In section 2 of the review and under the heading, “Training Requirements”, it is noted:
[17]Exhibit 7
“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 of “Additional comments”, this appears:
“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.”
41 On 15 and 22 October 2009, Ms Paschalidis wrote to Mr Abdelkawy about his use of the desk top phone system and the codes describing the nature of his absence from his desk[18]. Judging from further emails, Ms Paschalidis was a tolerant and sympathetic supervisor[19].
[18]Exhibit 30
[19]Exhibit 31
Study assistance
42 In February 2010, Mr Abdelkawy applied to the defendant for its assistance in undertaking a course of study, a Diploma of Maritime and Logistics Management[20]. He listed four subjects: business logistics, international trade, international maritime policy and ports and terminals management; but noting there were six to eight subjects. The course would take two years to complete, involving four semesters. The cost of each subject was $2,050, but he added, the overall cost of the course depended on the number of credits he was granted.
[20]Exhibit 12
43 In answer to: “Provide a statement outlining how the content of the course will contribute to your current job requirements or future career development needs within ANL”, he wrote:
“I feel the opportunity for studying this course will expand my knowledge in the shipping industry by gaining knowledge in various areas such as logistics, supply chain management & maritime policy. These subjects will definitely enhance my career and benefit me in my current role & future role.”
44 On 25 February 2010, his application was approved by his “immediate manager”. This was Mr Sismanis and not Ms Paschalidis. As I said earlier, Mr Sismanis was the National Customer Service Manager. It was also approved by Ms Toussat and Mr Lines. With those three senior persons approving, it was a ringing endorsement of Mr Abdelkawy as an employee of the defendant. These persons held very senior management positions in the defendant. The defendant was prepared a spend a sizeable amount of money, spaced over two years, to further educate Mr Abdelkawy. It should have given Mr Abdelkawy great confidence in his continued employment with the defendant.
Performance appraisal
45 On 30 March 2010, Mr Sismanis conducted a 2009 performance appraisal of Mr Abdelkawy. Normally, Ms Paschalidis conducted these appraisals. However, she did not with Mr Abdelkawy because part of his work involved Toyofuji and she did not know about his performance in that area of work.
46 The appraisal includes a nine-page form, filled in by Mr Sismanis and Mr Abdelkawy[21]. His position is recorded as “Export Customer Service Co-ordinator”. His department is recorded as “Toyofuji”.
[21]Exhibit 13
47 The form contains five sections. The first section has seven sub-sections. These explore various qualities of an employer under the headings: quality and standard of work, work planning and efficiency (productivity), teamwork and co-operation, communication and interpersonal relationships, internal and external customer service, initiative resourcefulness and leading – aligning and empowering people. The last sub-section did not apply to Mr Abdelkawy and was not completed.
48 Each of the other sub-sections had five evaluation criteria or levels. The least is entitled “needs improvement” and the greatest is “exceeds requirements”. Beside each of these criteria is a sentence explaining its meaning. For example, in the first sub-section, the criterion “needs improvement” is described – “work is often inaccurate, poorly organised or unfinished, needing regular supervision. There is a constant need for follow-up”.
49 In each of the first six sub-sections, Mr Sismanis rated Mr Abdelkawy as “meets requirements”. In three of the sub-sections, Mr Abdelkawy rated himself in the next higher category —“occasionally exceeds requirements”; and in one, in the next lower category – “occasionally below requirements”.
50 Section 2 is entitled “Performance objectives”. Under each of the three key performance indicators, Mr Sismanis has rated him as “occasionally exceeding requirements”, while Mr Abdelkawy has rated himself in the top category for two and the same category as Mr Sismanis for the other.
51 In section 3, both Mr Sismanis and Mr Abdelkawy agree he meets requirements under “behavioural competences”, and occasionally exceeds requirements under performance objectives. Mr Sismanis added this 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.”
Although there is space for Mr Abdelkawy to comment, he did not.
52 Section 4 deals with training, career development and career aspirations. It poses three questions. The first question concerns training in the next 12 months. It is answered by Mr Sismanis: “Full training in Export Customer Service for the ANL business”.
53 The next question is answered by Mr Abdelkawy. It asks what sort of experience would benefit him in the next year. He answered:
“To completely move and work as an export customer service after been doing TF [Toyofuji] customer service for almost 2 years.”
54 To the final question, which asked about the type of position he would like to be working towards over the next 3 to 5 years, Mr Abdelkawy answered:
“to develop my skills in the Shipping industry and gain more experience in different tasks and departments.”
55 This process gave Mr Abdelkawy an opportunity to raise again his wish to have someone replace him to do the Toyofuji work, undertake training as an export customer service coordinator and work as an export customer service coordinator. But he did not according to Mr Sismanis[22]:
“Even at appraisal level, you never showed any real concern, right, even at that level, Amro. Right, you had opportunity…at appraisal level to have made your points you’re making now. And that never ever came across to me that the way you’re selling it to me it never ever came across to me at the point of your concern.”
[22]T288-289
May 2010 letter
56 On 13 May 2010, Mr Abdelkawy met with Ms Gupta. They had a long conversation. Despite the passing of 10 years, Ms Gupta retained some memory of their meeting, but generally she relied heavily on a letter and supposition. She remembers a long conversation about his position, his training and how he thought he was not getting trained. She does not recall victimisation being raised.
57 Nevertheless, Mr Abdelkawy wrote a long letter recording the content of their conversation[23]. According to Mr Abdelkawy, he handed it to Ms Gupta, saying he did not want to go ahead with the complaint and the letter was for the record only. This accords with Ms Gupta’s file note, written on the top of the first page of her copy:
[23]Exhibit 15.
“FILE NOTE
ONLY
No action taken/required
Amro commenced training on 17/5/10 and does not want to go ahead with a complaint.
(signed: Shalini). 19/5/10.”
58 The letter is long. It is addressed to Ms Toussat with a copy for Ms Gupta:
“This letter just to confirm our verbal conversation which took place on Wednesday 13/05/2010.
I am writing to you regarding my position in ANL (Export Customer Service) which commenced on 01/07/2009.
The first contact between me and my manager Alex was during the interview when we agreed that the Toyofuji job had dropped to 60%. Alex said that the person who is going to get the job will do Toyofuji plus receive training in Export Customer Service.
After the interview, I signed a contract with ANL on 27/06/2009 for Export Customer Service. Since this date up until this moment (Wednesday 13/05/2009), I have been deprived of my role in Export Customer Service and deprived of any sort of training related to the position. I want to share some facts regarding the situation: On 30/06/2009, I completely finished training Helen [Zhang] to take over my previous role and handed her all my files, documents and template e-mails to help her in her new role, and I even sent an e-mail to the other departments that I deal with on a daily basis informing them that Helen will take over my role, and that soon we will provide them with her new e-mail address. (my underlining)
Around 03.30 pm on 30/06/2009, my manager Alex called me to his office and informed me that someone had resigned so they had decided to take me back. And then he told me that I am not going to do Export Customer Service, but that I would go back to Toyofuji and they would train Helen first (Helen has also signed a contract for Toyofuji Customer Service commencing on 01/07/2009), and that once her training was completed she would do Toyofuji and then I would go for Export Customer Service training, and that we would take things from there.
Then it was Gobi from Corporate Accounting who came to inform me about my new desk, not my supervisor or my manager. My first week in Export Customer Service was stressful as no one ever talked to me, greeted me or gave me any instruction on anything I have to do. I had to request one of the staff to send me a test e-mail just so I could copy the phone and fax number of my new department. So I was in complete isolation for the very beginning.
Once I changed my phone to the ANL customer service number, I did not realise that I put myself in the queue and that I had to transfer call and answer inquiries, and I wasn’t trained to do any of this.
I did not even get a piece of paper telling me who does what. I was isolated from the first moment; no one from the staff knew I am or what I had to do. It seems that I had just moved desk from one department to another. So I had to change my number back to the old number.
In the second week, Suryani rejoined us after 1 year of maternity leave. On her first day back, she received an e-mail welcoming her back, stating what her role is and telling everyone when she will be trained in Export Customer Service. Cathy, my supervisor called Helen, Suryani and I to introduce us to the team and Cathy introduced me as follows: ‘This is Amro. He has joined us but he is only going to do Toyofuji and not Export Customer Service’.
A month later, Helen suddenly resigned. I expected that she would take over Toyofuji since she was already trained and the handover was completed (she even told me the day after her resignation: I guess you will get your training soon’).
But what happened? Things remained the same since Helen left.
Alex requested that I train Suryani just in case I am sick or want to go on leave. Later on, he requested me to train Krista for the same reason (note that Suryani used to do Toyofuji before, and Krista was trained by me before I went overseas) so both of them are ready to do Toyofuji at any time, and I could go for my training as soon as Alex wished to do so.
Months passed by, and many staff resigned or moved to other departments. With all of this, I began to lose hope in ever getting my training. New staff are being hired, external as well as internal, and I am still sitting down waiting.
There were several occasions in which Alex asked me if Toyofuji had picked up or not, and every time the answer was no. I requested verbally from him to find someone to take the Toyofuji job so that I could start in Export Customer Service. I have put this request down in writing in the appraisal form as well.
Every time I requested to be trained, a new reason or excuse was given why I could not, such as: when Helen finishes her training you will be trained, when Alex (the Co-operative) finishes, because he has been on our book for a while, when Suryani finishes her training, when Suryani comes back from vacation, when the New Year is finished, you will get training in January, you will get training in February, when we move to the new building, etc.
In total, I have been going into this loop for 11 months.
I did not lose hope; I came up with another initiative. I told Alex that I have free time on hand during which I could commence my training with Rod Pritchard, so that he doesn’t need to take Krista or Suryani off their job while I am in training. He said that this was a good idea and that he didn’t see any reason why I shouldn’t have it that way, and he suggested that I go and work it out with Rod Pritchard.
I requested Rod Pritchard to give me his available time so that I can work around it, but he said that it was better we do it on a daily basis.
I got my first training session (30-40 minutes), however he was too busy to continue the second session until Tuesday next week. By that time I had already forgotten what was in the first session. I was very frustrated & give up all together.
The last time I requested my training was during the appraisal with Alex which took place a month ago (by the way Alex said that Cathy refused to make my appraisal because she do not know anything about my role). I said that I was bored with Toyofuji and I need to do Export Customer Service. All he said is that I will be trained in the next 6 months, without any specific dates, it seems that this is only because we are short in staff.
All of this put me under tremendous stress for a period of almost 12 months. (my underlining)
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. (my underlining)
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.”
59 Although the letter is addressed to Ms Toussat, it does not confirm a conversation with her, rather a conversation with Ms Gupta. After receiving the letter and reading it, they had a further conversation. Again, Ms Gupta supposes what was said for she has no memory including that everything was “okay” because no action was required or taken. She recalls the dominant topic was lack of training.
60 Again, Ms Gupta could not remember what exactly she did, but believes she contacted others about his training[24]:
“When he said the things to you what did you do? – To be very honest, I can’t recall 100 per cent. That was some time ago, but what I would have done, and reading my file notes, I would have definitely not – as a HR practitioner, wouldn’t have just left it. I would have done something about it. So I would have spoken to Amro at that time at length to make – and got an understanding of what was actually was lacking, I would have closed the loop with the managers, made sure that he was receiving training. I would have asked if he needed to put in a formal complaint about how he was feeling in terms of discrimination or bullying. The fact that I’ve put in file notes there saying (indistinct)[25] further action required, I believe then that means that I – that there was no – from my discussions with Amro, there was no discrimination (indistinct) sometimes people – I deal with this all the time – people use bullying, harassment, discrimination words very loosely.”
[24]T332-333.
[25]The missing word is likely to be “no”
61 I accept Ms Gupta did “close the loop” over the training issue. Her evidence is about her usual practice, the importance of which was stressed in Pell v R[26]. It is supported by the subsequent efforts of others to provide training.
[26](2020) 376 ALR 476 at [93]
62 The reaction was almost instant. Late on 13 May, Mr Sismanis wrote to the employees in Export Customer Service:
“Team, before we have these 2 new members of staff commencing we will implement the following:
1)Suryani will take over from Amro looking after Toyofuji for approximately 1 month. With this Suryani will continue to do her Admin role but will not be involved with any of the other Customer Service functions.
2)Amro will be on full time training with Rod Pritchard re Customer Service duties. This will give Amro the opportunity to further develop his skills and longer term be in a position to assist Customer Service in a variety of duties.
This will commence as of Monday 17/5.”
63 On 31 May, Ms Paschalidis noted in an email that Mr Abdelkawy was currently in training in Export Customer Service with Rod Pritchard.
64 The training started on 17 May and, by 31 May, Mr Abdelkawy was still with Mr Pritchard. Mr Abdelkawy says the training lasted two weeks and was “part-time”.
65 On 5 July, Ms Paschalidis wrote to Mr Abdelkawy and copied the email to her staff:
“Congratulations on your 3rd year at ANL.
Amro commenced in the Customer Service Department on the 2nd July 2007.
All the best and hope you are enjoying yourself at ANL.”
66 Mr Abdelkawy replied shortly afterwards and very simply: “Thanks Cathy.”
67 According to Mr Abdelkawy, this was standard practice at the defendant. Employees were congratulated on the their birthdays and the anniversaries of their joining the defendant. If so, then in sending this email, Ms Paschalidis was not treating Mr Abdelkawy differently from other employees she supervised.
68 On 6 July, Mr Abdelkawy wrote to Ms Paschalidis:
“I need to buddy (I got some time on hands from Wednesday till Friday 05.00 pm sharp).”
69 The next day, Ms Paschalidis wrote to Mr Abdelkawy:
“As per discussion I have organised the following for you. Once you have finished off what you are doing please go over and sit with your buddies, they are expecting you.
Buddy with:
Wednesday Geoff
Thursday Tim
Friday Leanne.”
70 This buddy training did occur. Mr Abdelkawy was interested in learning through this process.
71 On 13 July 2010, Ms Paschalidis wrote to Mr Abdelkawy[27]:
[27]Exhibit 17
“Hope you are well.
Can you please let me know when you are ready for your next training with the team?
I would like you to get on the phones and take calls and also action emails and order out.”
While the tone of her email is cordial, his reply was positively cheerful[28]:
[28]Exhibit 17
“Congratulation you won the bet (Spain world cup champion). I heard you went home early yesterday to despite the cash. [There followed three happy faces]
I will let you know when I finish TF work usually the first 3 days of the week are busy days. I will keep you updated with my availability.”
She replied, equally cheerfully:
“Yes left early had some shopping to do to spend my money hehehe.
Ok let me know when you are free so that we can continue with your training.”
72 On 9 August, Ms Paschalidis wrote to her staff including Mr Abdelkawy. In part, the email reads:
“As we have discussed previously there will be some changes within the Customer Service department and below is the current situation/proposed changes in Cust Service.
- Amro Abdelkawy: To continue the ongoing training Amro has moved to Cust Service on as full time bases for two weeks. He has been placed in the Sydney team and will be looked after by Adam. In the meantime Suryani will be looking after Toyofuji…”
Public speaking program
73 Meanwhile, the defendant introduced a program to improve the public speaking skills of the staff. Initially, a staff member would talk about a subject he or she knew well. This gave them confidence. Their confidence was then built up over a period of 12 weeks. Ms Gupta led a small group of five or six.
74 On about 23 June 2010, Mr Abdelkawy presented at one of these programs. He spoke about Egypt and showed many pictures of pyramids. Despite the passing of time, Ms Gupta remembered his presentation reasonably well. He started with Egypt, then about himself and his movements. However, there was a lot in his talk about racism and discrimination in Australia, but no mention of the defendant in that regard. The content caused Ms Gupta to speak to him afterwards[29]:
“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.”
[29]T351
75 Ms Gupta thought there was no need to go further. She did not refer him to the employee assistance program. Mr Abdelkawy cannot recall this presentation.
Logistics job
76 After a conversation with Ms Paschalidis in July 2010, Mr Abdelkawy applied for a new internal position called “Logistic Customer Service”. He was trying to escape his present job[30]:
“So I said, okay, now I’ve reached the end with these people. I have to find my way out. And I have applied internal – there was internal hiring…”.
[30]T29
77 It was advertised internally. He did not think it would be a much sought after position. He spoke to a fellow employee whom he knew and who worked in that department. This person said he would put a good word in for Mr Abdelkawy.
78 Mr Abdelkawy was interviewed. To him, it was the best interview of his life. But an email told him there would be an extension of time for applications and the field of potential applicants was widened to allow persons not employed by the defendant to apply. This was normal practice within the defendant. It allowed internal staff to apply first and then was opened for external applicants.
79 Someone from Human Resources told Mr Abdelkawy he was unsuccessful, saying “It was a very close race, but we decided to get somebody from outside the company”. Mr Abdelkawy thought it significant that the news was not brought by Ms Gupta. In his mind, it was her job to convey such news.
80 His fellow worker confirmed his suspicion by telling him: “Amro, keep it between us. We wanted you, but the HR manager intervened. I cannot say more than that.” Ms Toussat denied she intervened in this process or recruitment generally. She disagreed it was not a sought after position. I accept her evidence on this point. However, Mr Abdelkawy did not voice this belief to anyone in authority. To him, Ms Toussat was behind what had happened to him[31]:
“I’m not successful in getting my position at Toyofuji, I’m made redundant, I’m unsuccessful in getting a position that I am the only one that applied for it. I’m not successful in anything under her management.”
[31]T168
New contract
81 On 30 July 2010, Ms Toussat wrote to Mr Abdelkawy:
“Please be advised that effective 2nd August 2010, your title has been changed to Toyofuji and Export Customer Service Coordinator. Please find the attached updated position description.
All other Terms and Conditions of your original employment contract remain unchanged.
To signify your acceptance to the above, please sign and return the attached duplicate of the letter as soon as possible.”
82 The attached position description comprises five pages. The position is within the Export Customer Service section. Like its predecessor, it contains two primary objectives: to efficiently handle enquiries from customers, prepare error free Bills of Lading, clear cargo through ICS Web Site and process and clear cargo through CMR import documentation on behalf of Toyo Fuji Shipping; and adhere to all procedures within the Quality Management System and, where necessary, recommend alterations to the procedures in accordance with the system, to ensure reflection of current practices.
83 The key accountabilities are more precise than its predecessor. They are divided into exports and imports. In the terms of the number of individual duties, they largely relate to the Toyofuji function. On the fourth page, there appears the single dot point: “Assist National Customer Service Manager as directed”. This duty also appeared in the 2009 document. Although, in the covering letter, the job is entitled “Toyofuji and Export Customer Service Coordinator”, that is not how Mr Abdelkawy viewed the document[32]:
[32]T177-178
“Q:All right. It might be part of Toyofuji as well, but you weren’t – if you look back to the letter which you refused to sign – it was changed to, ‘Toyofuji and export customer service coordinator.’ You were being offered a job which involved Toyofuji and general duties, weren’t you?
A:Yes. Again, what’s written on paper, not what’s happening on the ground. That’s why I refuse to sign.
…
Q:Mr Abdelkawy, do you know the expression, ‘my way or the highway’?
A:There is no (indistinct) ‘my way or highway’. I cannot be taken from redundancy, to new contract, to breach of contract, to isolation from team, to a new department, to a new contract. That’s not happening to anyone in a very short period of time, and it was through all this, it is very clear that they don’t want to give me my position. They want to lock me permanently in Toyofuji and they want me to sign it so I would never ever claim my job any more or say, ‘Why don’t you give it to me’, so they want to shut this down by making me sign this one, that’s why I refuse to sign.”
84 This is very largely a document defining the Toyofuji role within the Export Customer Service area. Given his expressed desire to train as an Export Customer Service Coordinator, this was a major disappointment for Mr Abdelkawy. Despite requests to sign, he refused to do so.
85 Why was it sent? Someone within Human Resources realised the role of Mr Abdelkawy in Export Customer Service differed from the role of Export Customer Service Coordinator. Human Resources prepared a new position description and asked Mr Sismanis to ask Mr Abdelkawy to sign the accompanying letter. This was to ensure there was a document reflecting what work Mr Abdelkawy performed for the defendant. It appears the letter of May 2010 alerted Human Resources to the fact Mr Abdelkawy was not doing the job stipulated in the 2009 position description. It wanted to rectify that by having him sign a new letter stipulating he was doing the Toyofuji and Export Customer Service Coordinator role.
86 According to Ms Toussat, it was a change of title. To her, it was not big enough for Human Resources to be involved so that was why Mr Sismanis gave the document to Mr Abdelkawy, rather than Ms Toussat or Ms Gupta. He was given a different job description. It is the normal process when someone changes title and job description. Ms Toussat disagreed that the second document is a new contract: it is a letter of offer with a change of title. Ms Toussat became aware Mr Abdelkawy would not sign the document.
87 Mr Sismanis saw the document in a similar light[33]:
“When, when people’s jobs do change along the way, HR do an update to PDs, okay, and the new PD is signed. That’s what all that would have been about, Amro. That happens systematically with ANL.”
[33]T314
88 Mr Sismanis gave the document to Mr Abdelkawy[34]:
“I remember it, because I – HR gave it to me, and I said, ‘No problems, I’ll talk to Amro and pass it on to him’, and that’s when I – we had our discussion, and then you said you would take it away and then revert.
…You didn’t – you didn’t say anything else in that discussion that we had, that you were just going to take it away, have a look at it and come back to me.”
[34]T314-315
89 According to Mr Sismanis, their last contact regarding this issue[35]:
“The last time we spoke about that, Amro, is on the phone when I was trying to find out where you were when you never returned. You did say in that phone call, ‘I refuse to sign a PD’. This is after you sent in your sick leave documentation.”
[35]T315-316
Micromanagement
90 In the days before he stopped working, Ms Paschalidis was in frequent contact with Mr Abdelkawy. He viewed these actions as micromanagement and linked to his unwillingness to sign the new “contract”[36]:
“The contract was made on 30 July, and the last day of work was 10 October [August]. So now I have a contract with me for approximately 11 days. No-one from the HR department ever, ever spoke to me regarding this contract; not the HR manager or staff. They assigned Alex to pressure me to sign it. Obviously with these things going on, another fresh and tense harassment campaign statement called micro management. He pushed Kathy the supervisor. Every minute I move, cc emails. ‘Where have you been? Left your desk. You weren’t there.’ They’re driving me nuts.”
[36]T35-36
91 As part of the evidence are three emails sent to Mr Abdelkawy on 9 and 10 August 2010. The first, on 9 August, is sent to a large number of staff members, including Mr Abdelkawy. I have already quoted part of it.
92 Pausing there, according to Ms Paschalidis, every member of staff is allocated to a state-based team when he or she joins the defendant. Staff can be moved from one team to another due to need.
93 On the evening of 9 August and morning of 10 August, there were a series of emails between Ms Paschalidis and Mr Abdelkawy. The first was sent at 5.05pm on 9 August, reminding Mr Abdelkawy to log off his phone when finishing work for the day. He replied, saying he did. Then she reminds him to log into the desk top system at 8.45am, noting he had not logged into phone system yet and querying whether there was something wrong with his personal computer. He replies, “OK now”. Then at 9.21am, she wrote[37]:
[37]JCB 488
“Thanks again Amro,
As you are aware our start times are from 8.45am – 5pm. I would like to see you logged in at 8.45am each morning as per company policy.
You are also to have 1 hour for lunch.
I would also like to take this opportunity to advise that if you are leaving your desk for personal reasons you are to place yourself on break time. If you are leaving your desk for work related issues you need to place yourself of[f?] work time.
If you are leaving the floor and building (apart from lunch) for any reason and as per OH&S I will need to know where you are going.
The above is standard procedure for all Staff so trust you do not have any issues. If you please feel free to come and see me.”
94 At 3.44pm that day, she wrote[38]:
[38]JCB 487
“Hi Amro,
I have noticed that you have been away from your desk for some time.
I do not recall you advising me that you are going away from your desk on a break for over 20 minutes.
As mentioned below Amro, I need to know that you are leaving the floor especially for OH&S reasons.
Thanks to acknowledge this email with your understanding for the future.”
95 She attached a print-out with 17 names, including Mr Abdelkawy’s name. To her, it suggests he was absent from his desk for 20.58 minutes, returning at 3.22pm.
96 These emails were the final step in what he saw as a concerted effort to remove him from the defendant[39]:
“These tricks haven’t end. They don’t want to leave me alone from the beginning to the end. They continuously have one target, kick me out of the company. I’m like in a corner. I don’t know what to do. From HR to the (indistinct) to the supervisor, to the assistant HR, all of them are ganging up on me.”
[39]T36
97 Her emails to him were copied to herself. Mr Abdelkawy was concerned about this. Her explanation was simple. She did that so she could place the email on the file of the particular employee. It was not a practice reserved for him alone. She denies Mr Sismanis asking her to put Mr Abdelkawy under “micromanagement”. Her comment[40]:
[40]T529
“A:I mean these emails to regarding your whereabouts logging on to the phone. It was my job as a supervisor to run a department, being customer service, our bread and butter would have been the phones.”
And again[41]:
“A:Yeah, like I said, it’s always been an OH and S issue, again not just yourself, with everyone across the team. If you’re leaving the floor for X amount of time I – as a supervisor this is how I ran my business, my team – whether you ran it differently when you were in another department or to another department, I don’t know. But all I wanted to know was where the staff were going in case anyone or other management asked me the question, ‘Where is so and so?’ I have an answer. I was never the type to not have an answer for anyone. OH and S, we did many fire drills and it was, you know, raised to me then, ‘Make sure you know where your staff are in case there is a fire, we need to get everyone out for safety’, that’s the OH and S part.”
[41]T530
98 Mr Abdelkawy believes Ms Paschalidis sent him five or six emails on 10 August. I counted four in the exhibited material, and five, if one includes the email at 5.05 pm on 9 August.
99 These emails were not unique. On 15 and 22 October 2009, Ms Paschalidis sent two emails to Mr Abdelkawy about his work practices. The first on 15 October said:
“Hi Amro,
Can you please use WORK TIME only when you are away from your desk (work related).
Only use Lunch and break time when you are on a break.
Please do not use counter/meeting etc.
If you have any queries please feet (sic) free to come and see me.”
100 The second, on 22 October:
“Hi Amro,
As requested below, I have noticed that you are still using COUNTER on the desktop phone system. Please do not use COUNTER as the reason for being away from your desk for work related issues.
Please place yourself on worktime only.
Please feel free to come and see me if you are not sure of the procedure.”
101 Mr Abdelkawy stopped work on 11 August 2010. He has not returned to any form of paid employment since. He saw his general practitioner who has since referred him to a psychiatrist and a psychologist.
Prayer room
102 In the old building in St Kilda Road, the previous Human Resources manager, Vicki McLachlan, gave Mr Abdelkawy a room to use as a prayer room. For two years he used that room. After Ms Toussaut became the Human Resources manager, and before the move to new premises, the room started to be used as a training and meeting room. He asked for a replacement room but none was given. Because the room was used so often, he missed his Salat. Mr Abdelkawy turned to using the stairs as a place to pray. The stairs were inappropriate for prayer for they were dusty and dirty. He asked a manager, Anna Macino, to intercede. Apparently, she tried on three occasions without result. She told him he would have to book the room like everyone else.
103 In February 2009, the defendant moved to new premises in South Wharf. Mr Abdelkawy was assigned a room in which to pray, but it was also used as a sick bay and a mother’s room. It caused him embarrassment for, on one occasion, he went to the room to pray and found a woman expressing milk. She abused him and reported the incident. Mr Abdelkawy was found not to blame for the woman should have locked the door.
104 For 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.
105 First, 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[42]:
[42]T429
“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.
Legal considerations
Negligence
106 Mr Abdelkawy’s statement of claim and particulars do not use the word “bullying”. The former pleads an injury by gradual process as a result of workplace stress and constant harassment and victimisation[43]; the latter refers to discrimination[44]. Nevertheless, the defendant treated the allegations of harassment, victimisation and discrimination as coming within the concept of “bullying”. The defendant submitted the appropriate definition of workplace bullying is set out in the Workplace Victoria Guidance Note, February 2003, and adopted by the Court in Brown v Maurice Blackburn Cashman[45]:
[43]See paragraph 5 of the statement of claim.
[44]See particular c to paragraph 10 of the statement of claim
[45](2013) 45 VR 22 at [14]
“Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.
Within this definition:
Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten.
Behaviour includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.
Risk to health and safety includes risk to the mental or physical health of the employee.”
107 In Brown’s case, the Court said the definition raised two threshold issues[46]:
“(a)was there unreasonable behaviour directed towards the appellant, ie behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten the appellant; and
(b)if there was, did it occur repeatedly.”
[46]At [15]
108 The trial judge in Brown’s case adopted the definition for the purposes of that case, as did the Court of Appeal. In so far as it relates to harassment, victimisation and discrimination, so will I in this case.
109 The behaviours involved in harassment, victimisation and discrimination fall within the tort of negligence for as Lord Hutton said in Waters v Commissioner of Police for the Metropolis[47]:
“I consider that a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence.”
[47][2000] 4 All ER 934 at 942
110 Why this is so is understandable when one looks at the elements of the tort of negligence. The tort is far more complex than the popular notion of negligence. In Tame v New South Wales, McHugh J said of the tort[48]:
“The common law of negligence has three elements – a duty of care owed to the plaintiff, a breach of that duty and a causal connection between the damage sustained and the breach of the duty. Furthermore, the damage must not be too remote from the breach.”
[48](2002) 211 CLR 317 at [88]
111 While in Tame’s case, there was no pre-existing duty of care owed by Acting Sergeant Beardsley to Mrs Tame, in this case, there is. It arises out of the employer/employee relationship: the defendant employed Mr Abdelkawy.
112 Broadly, an employer’s duty of care has been stated[49]:
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”
[49]Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12]
113 Tame’s case made clear that “injury” includes “psychiatric injury”, where the central inquiry is[50]:
“…whether, in all the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.”
[50]Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 441 at [33]
114 The expressions “recognisable psychiatric illness” or “recognised psychiatric illness” focus attention on the degree of mental disturbance. As Gaudron J said in Tame’s case[51]:
“…a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric injury is not entitled to recover. Grief and sorrow are among the ‘ordinary and inevitable incidents of life’; the very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial.”
[51]At [193]
115 With psychological injury, what is reasonably foreseeable must be a significant disturbance of a person’s mental state justifying the description of a recognisable or recognised psychiatric illness. An employer is not necessarily concerned with labels but must be concerned with the symptoms, the outwards manifestations of the inner person.
116 The expression “far-fetched or fanciful” derives from Wyong Shire Council v Shirt[52]:
“The tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is currently unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable…”.
[52](1980) 146 CLR 40 at 47-48
117 The question of “normal fortitude” of a plaintiff arose in Tame where the Court did not exclude the possibility of recovery of damages for pure psychiatric damage by a plaintiff who was not of normal fortitude. Certainly, Mrs Tame fell into that category. However, Gummow and Kirby JJ said[53]:
“Where the plaintiff’s response to the defendant’s conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it.”
[53]At [201]
118 The risk of a response falling short of the “so extreme” or “so idiosyncratic” is not far-fetched or fanciful and is reasonably foreseeable. A reasonable employer must bear in mind the existence of employees who are not of “normal fortitude”.
119 As Koehler’s case made clear, it may be insufficient to rely on the broad statement of an employer’s duty of care to an employee[54]:
[54]Koehler at [22]
“What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.”
The joint judgment continued[55]:
“It is only when the contractual position between the parties (including the implied duty of trust and confidence between them) ‘is explored fully along with the relevant statutory framework’ that it would be possible to give appropriate content to the duty of reasonable care upon which an employer claiming damages for negligent infliction of psychiatric injury at work would seek to rely.”
[55]Koehler at [24]
120 In the present case, it was not suggested any relevant statutory framework affected the content of the duty of care.
121 In Koehler’s case, the joint judgment rejected Ms Koehler’s claim for two reasons[56]:
(a)Ms Koehler agreed to perform the duties which were the cause of her injury; and
(b)her employer had no reason to suspect that she was a risk of psychiatric injury.
[56]Koehler at [27]
122 As to (a), the joint judgment noted[57]:
“…her agreement to undertake the work runs contrary to the contention that the employer ought reasonably to have appreciated that the performance of those tasks posed a risk to [Ms Koehler’s] psychiatric health. It runs contrary to that contention because agreement to undertake the work not only evinced a willingness to try but also was not consistent with harbouring, let alone expressing, a fear of danger to health.”
[57]Koehler at [28]
123 As to (b), since the duty of care is owed to each employee and “the relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable”, this involves an examination of the nature and extent of work being done by the particular employee and signs given by the employee concerned[58].
[58]Koehler at [35]
124 Ultimately[59]:
“…there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury…”.
[59]Koehler at [41]
125 In a separate judgment, Callinan J was critical of the far-fetched or fanciful test but felt obliged to follow it. It is a theme his Honour returned to in two subsequent cases in joint judgments with Heydon J[60]. I will quote the passage in Koehler where his criticism was voiced:
“Three Justices of this Court in Wyong Shire Council v Shirt held that any risk, however remote or even extremely unlikely its realisation may be, that is not far-fetched or fanciful, is foreseeable. I suppose that it is true that there is nothing new under the sun. With enough imagination and pessimism it is possible to foresee that practically any misadventure, from mishap to catastrophe is just around the corner. After all, Malthus in 1798 famously predicted that the population of the world would inevitably outstrip the capacity of the Earth to sustain it. The line between a risk that is far-fetched or fanciful is a very difficult one to draw. The propounding of the rule relating to foreseeability in the terms that their Honours did in Wyong requires everyone to be a Jeremiah, and has produced the result that undue emphasis has come to be placed upon the next element for the establishment of tortious liability, the sorts of measures that a reasonable person should be expected or required to take to guard against the risk. Wyong has however been constantly applied throughout this country and in this Court since it was decided, and neither party sought to challenge it here. I am therefore bound to apply it.” (citations omitted)
[60]Vairy v Wyong Shire Council (2005) 221 ALR 711 and State of New South Wales v Fahy [2007] HCA 20
126 I have cited this passage simply to emphasise the “so undemanding” nature of the test posed by Wyong Shire Council v Shirt[61].
[61]Vairy at [213]
127 Nevertheless, for his Honour, Ms Koehler fell at the threshold issue of foreseeability[62]:
“…it was far-fetched and not foreseeable that the appellant, a competent, seemingly well woman would suffer within six months of taking up a part-time position, a disabling psychiatric injury, or, indeed, any psychiatric injury by reason of the work that the position entailed.”
[62]Koehler at [55]
128 Almost invariably, alleging a breach of an employer’s duty of care through bullying, victimisation or harassment involves asserting a series of events. So much is clear from the nature of bullying, etc, and from the definition of bullying used by WorkSafe. An individual incident may seem minor or even harmless in isolation but as part of a collection of incidents may be seen in a very different light. Although unsuccessful, Ms Brown alleged a series of events to support her claim, as does Mr Abdelkawy in this case. As Osborn JA noted in that case[63]:
“Further, insofar as it may be true that in a given case a series of inappropriate behaviours may collectively amount to bullying, when individually they would not…”
[63]At [187]
129 Recently, the Court of Appeal in The Age Company Ltd v YZ[64] examined the tort and psychiatric injury.
[64][2019] VSCA 313
130 In that case, for about 10 years, the plaintiff was a journalist with the defendant’s newspaper. She worked on crime reporting and court rounds. As a result of being exposed to traumatic events in the course of her work, she developed post traumatic stress disorder. She issued proceedings, seeking damages. A judge of this Court awarded her damages. The defendant appealed against the judge’s finding of liability.
131 In examining the scope and content of the duty of care, the Court started with a warning[65]:
“In identifying general precepts that apply to an action in negligence brought by an employer, it is important to emphasise that, in assessing the content of the duty, the steps that would reasonably be required of an employer to address risk and causation are heavily fact dependent. There remains the inevitable risk that general concepts will be applied as if they are governing principles of law to be applied in every case.”
[65]At [100]
132 Subject to the warning, the Court stated these propositions:
(a)in framing the content of the duty of care and the steps an employer ought to have taken to avoid an injury, care should be taken to avoid framing both through the “lens of litigious hindsight”[66];
(b)the content of the duty and whether it has been breached must be identified and addressed in each particular case. If it is alleged the employer failed to provide a safe system of work, then the plaintiff must identify the elements of the system alleged to be reasonably required to be put in place to meet the foreseeable risk of injury[67];
(c)whether an employer breached its duty of care, the approach taken by Mason J in Wyong Shire Council v Shirt[68] must be applied[69];
(d)with psychiatric injury, Koehler’s case[70] established that since the employer’s duty is owed to each employee, the relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. This involves attention to the nature and extent of the work being done by the particular employee and the signs given by the employee concerned.
[66]At [101]
[67]At [102] and [103]
[68](1980) 146 CLR 40 at 47-8
[69]At [104]
[70](2005) 222 CLR 44 at [35]
133 The Court then considered two cases of psychiatric injury arising from occupational exposure to trauma: Hegarty v Queensland Ambulance Service[71]; and State of New South Wales v Briggs[72]. It then made these observations[73]:
(a)whether psychiatric injury is reasonably foreseeable involves difficult questions because the risk of injury may be less apparent than in cases of physical injury and may depend on the vagaries and ambiguities of human expression and comprehension;
(b)whether a response to a perceived risk to psychological health is reasonably necessary to ameliorate that risk may be uncertain, and the likely efficacy of responses more debatable than a mechanical alteration of the physical environment;
(c)both the content of the duty of care and the duty to take steps to prevent injury must take into account the private and personal nature of psychological illness and the dignity of employees and their entitlement to undertake their chosen work free of harassment and intimidation;
(d)it may be difficult to establish that injury would have been avoided if the proposed steps had been taken by the employer.
[71][2007] QCA 366
[72](2016) 95 NSWLR 467
[73]At [129] to [132]
Discussion
134 Mr Abdelkawy’s statement of claim pleaded negligence, breach of duty and breach of the Occupational Health and Safety Act 1985 and 2004 and the regulations made under those Acts. The defendant pleaded contributory negligence. Under the heading of particulars, a series of material facts were pleaded. They were not particulars to material facts but material facts themselves. Later, this shortcoming was remedied through the provision of further and better particulars. There are 11 and I will deal with each in turn.
135 However, neither the statement of claim nor the further and better particulars capture an aspect of the case Mr Abdelkawy presented in the trial: there were a series of events in 2009 and 2010 which were part of a conspiracy (“ganging up”) among senior employees of the defendant to remove him from his employment, whether through resignation or some other means.
136 In light of the statement of claim and the particulars, the defendant saw Mr Abdelkawy’s case in largely conventional terms. It did not address the allegation of conspiracy, focussing instead on the alleged breach of duty in negligence. As will be seen from examination below, Mr Abdelkawy is convinced there was a conspiracy, however, there was none. After I have examined the 11 particulars, I will turn to Mr Abdelkawy’s case on the conventional lines. Before doing so, I will deal with the question of Mr Abdelkawy’s credit.
Credit
137 The defendant described Mr Abdelkawy’s evidence as unreliable. It pointed to two matters: his detailed recollection of some matters and an inability to recall others; and his rigid, fixated beliefs dominating his evidence.
138 The question of the credit of a witness often involves two things: truthfulness; and, if truthful, reliability. The defendant does not submit Mr Abdelkawy is untruthful, and rightly so for he is a truthful witness.
139 For Mr Abdelkawy, the events of 2009 and 2010 have almost been his constant companion, going over those events in his mind repeatedly. His belief in a conspiracy coloured his evidence. But, surprisingly, this belief did not cause him to alter his recall of events.
140 The defendant relied upon five examples. None concerned a significant event or circumstance. His inability to remember a time, period or person does not affect my assessment of his reliability as a witness.
141 I consider Mr Abdelkawy to be a reasonably reliable witness.
142 I have no hesitation in accepting the defendant’s witnesses as truthful. Their reliability as witnesses varied because the events they were recalling were 10 and 11 years earlier: there were gaps in their evidence which is understandable.
(a) Prolonged micromanagement and unfair criticism of Cathy Paschalidis
143 This 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.
144 There 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
146 This 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.
147 But 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.
148 That 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
149 Insofar 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.
150 Insofar 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.
151 Mr 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
153 Mr 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.
154 Objectively, 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
156 This 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
158 The 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.
159 Once 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
160 To 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.
161 Coupled 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
163 This 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[74]:
“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.”
[74]T244
164 There were many instances where Mr Abdelkawy spoke of this belief. In a long question, he put his belief to Mr Sismanis, who answered[75]:
“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.”
[75]T321
165 That 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.
166 There 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
167 This 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.
168 To 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
169 There 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.
170 As 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.
171 As 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
172 The 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.
173 I 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.
Conventional lines
174 Mr Abdelkawy alleges he suffered a psychiatric or psychological disorder in his performance of his work with the defendant. It was suffered by way of gradual process over the period between about 1 July 2009 and 11 August 2010. There were two causes of his injury:
(a) harassment and victimisation based on gender, race and religion; and
(b) negligence in the workplace.
175 Although his action relied upon three areas of liability, those relating to occupational health and safety legislation (including subordinate legislation) were not pursued.
176 The defendant submits the claim of harassment and victimisation are not proven. Without recourse to the principle in Briginshaw v Briginshaw[76], I agree.
[76](1938) 60 CLR 336.
177 As to the second basis, it relies upon the defendant knowing or ought to have known of a real risk of psychiatric injury due to his employment and the defendant failed to act as a reasonable employer should with that knowledge.
178 The defendant raises the issue of the content of the duty of care. Not unnaturally, as a self-represented litigant, Mr Abdelkawy was silent on the issue. The defendant pointed to the factors in Koehler[77].
[77]At [21], [22] and [23]
179 Although not explicitly stated by Mr Abdelkawy, the defendant suggested Mr Abdelkawy’s position on what the defendant should have done consistent with the proper content of its duty to him: relieve him of his Toyofuji duties shortly after 1 July 2009, train him in Lara and the other duties of the Export Customer Service so he would become a fully-fledged member as soon as possible. Put that way, it is consistent with Mr Abdelkawy’s belief of what his new position in the Export Customer Service department meant and that his involvement with Toyofuji should end.
180 It is not incumbent upon the defendant to argue Mr Abdelkawy’s case, but the critical event was the presentation of the “new contract” for him to sign coupled with the emails received from Ms Paschalidis.
181 The letter sent to Mr Lines was disturbing in its allegations and it caused an immediate change of direction. The content and circumstances of the May 2010 letter was more subtle. Ms Gupta took away a message about a lack of training. I have underlined sentences in his letter which, directly or indirectly, highlight the issue of training:
(a)the denial of training has put him under tremendous stress for almost 12 months;
(b)implicating Mr Sismanis was behind this denial of training, alleging his attempt to “kick me out of the company”;
(c)his morale, self-esteem and motivation have reached their lowest levels.
182 These events resulted in immediate action by the defendant despite Mr Abdelkawy saying he did not want action taken. I do not understand the letter as a warning to the defendant of the deep malaise he was in over his perception of the events of 2009 and 2010.
183 There are two motives behind Mr Abdelkawy’s behaviour. First, after nearly losing his job in June 2009, a desire to retain his employment with the defendant. Second, a desire to progress within the defendant: he was ambitious. Accordingly, the May letter reflects both desires. To entrench his position within export customer service, he believed training was necessary. Initially, it came in dribs and drabs. Since his earlier complaints were not couched as complaints but as polite requests, they were not acted upon in the way he wanted.
184 The emails from Ms Paschalidis came at an unfortunate time. Through coincidence, they came at a time when Mr Abdelkawy was offered a “new contract”, which, in his mind, cemented his work on Toyofuji and virtually eliminated the other work of the Export Customer Service. He was asked to sign but did not. He ceased work.
185 The events leading up to his cessation of work, including his May 2010 letter, seeking the logistics job and his presentation to a small group, were insufficient signs of an impending recognised psychiatric injury. Ms Gupta discussed with him the contents of his letter. He did not want any action taken even though she would have treated it as a complaint, if he wished. In any event, action was taken over his wish for training. She was disturbed enough to speak to him after his presentation. Again, nothing was done because his assertions of racism and discrimination were aimed at Australia generally and not the defendant.
186 A constant theme in this case is that Mr Abdelkawy rarely complains. Apart from asking Mr Fry for help, he did not complain about performing two jobs in Mr Fry’s section after Ms Callus left[78]:
“For three months I’ve been asking Rod Fry for help, he wouldn’t give me any response. I used to eat my lunch at my desk because I have no time. I used to juggle between tasks so I can do my job and do – as I have backlisted job. This intense three months passed and I said: ‘It doesn’t matter. Whatever pressure I’ll take. We are already moving to another time and then it will be ending soon’”.
[78]T6-7
187 He said nothing to Mr Sismanis when told he would continue in the Toyofuji role. When he was given training at the Export Customer Service, he did not complain that his training was inadequate.
188 Until May 2010, Mr Abdelkawy did not complain to the Human Resources section because he believed Ms Toussat was prejudiced against him and part of the conspiracy to rid the defendant of him. Only then did he speak with Ms Gupta even though she was a most approachable person, walking the floor almost daily and speaking to employees.
189 He did not even complain about his perceived treatment by Ms Paschalidis after speaking to Ms Gupta in May. Putting aside whether Ms Paschalidis’ attention was reasonable or not, his saying nothing about it deprives the defendant of an ability to perceive his increasing anxiety over what he believes is happening to him.
190 His refusal to sign the “new contract” was not accompanied by any allegation of the conspiracy he firmly believed was present. He had complained once to Mr Lines successfully, he did not do so this time.
191 Even over the provision of a prayer room, Mr Abdelkawy raised the issue with Anna Macino and she made inquiries on his behalf. He did not complain to Ms Toussat, Ms Gupta or anyone else.
Contract
192 The defendant was at pains to point out that breach of contract was not part of Mr Abdelkawy’s pleaded causes of action, whether based on an express or implied term regarding particular duties or training. That is correct and where his submissions strayed into that area, I will ignore them.
Conclusion on negligence
193 I agree with the defendant’s submission a reasonable employer in the position of the defendant would not have foreseen a risk of recognised or recognisable psychiatric injury to Mr Abdelkawy. He did not complain about his extra work in 2009. He coped because he saw the imminent prospect of change. Far from suggesting he was under pressure, he told the interviewing panel in 2009 that he enjoyed stress. After Mr Lines reversed the decision of the interview panel and the subsequent redundancy, he remained silent. He did his work to his satisfaction and that of his employer. In fact, he was under no pressure with the work he did after 1 July 2009 because it did not fully occupy him. He remained silent from 1 July 2009 until he wrote to, and spoke with, Ms Gupta.
194 Objectively, the first important event is Mr Abdelkawy’s meeting with Ms Gupta in May 2010 and his letter re-iterating his concerns. As I said earlier, there are three aspects of the letter:
(a)his assertion of being under tremendous stress for nearly 12 months with his morale, self-esteem and motivation reaching their lowest levels ever;
(b)his lack of training and being locked into the Toyofuji work as a major set-back to his career in Export Customer Service. His mention of the course of study reinforces the idea of ambition being at the core of his upset;
(c)his assertion, in the form of a question, that Mr Sismanis is trying to get him kicked out of the company.
195 As to what is to be done, Mr Abdelkawy says he wants nothing. To Ms Gupta, the message of his letter, and his conversation with her, is his lack of training. It underlies the allegation Mr Sismanis wants him out of the defendant. She acts and training is planned and given. Outwardly, things are moving smoothly. He did not raise the issue of stress, low morale or Mr Sismanis’ wish again before ceasing work. To reinforce the lack of notice, Mr Abdelkawy did not take any sick leave between 15 November 2008 and 5 August 2010. He did take two days of such leave after 5 August, after seeing his general practitioner, Said Mirranay.
196 As I said earlier, the evidence does not establish a conspiracy between certain employees of the defendant to rid the defendant of Mr Abdelkawy. Mr Abdelkawy believes it to be so. Initially, he thought it was Mr Sismanis; later, he included Ms Paschalidis and Ms Toussat and others.
197 I return to the test of foreseeability posed in Wyong Shire Council v Shirt and as formulated in Koehler’s case for psychiatric injury. The focus is on the individual employee. The psychiatric injury must be recognisable or recognised. It must be a foreseeable risk. Mr Abdelkawy’s response to the defendant’s conduct was extreme or idiosyncratic. It fell into the area of far-fetched or fanciful. Except for the hint in his May 2010 letter, he gave no sign to the defendant of an impending injury.
198 In Koehler’s case, the joint judgment spoke of there being no reason for the employer to suspect Ms Koehler was at risk of psychiatric injury. I suppose if one suspects a person is at risk of psychiatric injury, then that risk is reasonably foreseeable. Looking at reasonable foreseeability in terms of suspicion[79], there was no reason for the defendant to suspect a risk to Mr Abdelkawy’s psychiatric health at all, and certainly not amounting to a recognised psychiatric injury.
[79]“Suspicion…in its ordinary meaning is a state of conjecture or surmise where proof is lacking”: George v Rockett (1990) 93 ALR 483 at 490.
199 Mr Abdelkawy’s claim against the defendant must fail. Since the trial was split only the issue of the defendant’s liability was examined. Its pleading of contributory negligence was not considered. Nor were the remaining elements of the tort of negligence considered. In view of my decision on liability, plainly, there is no need to examine those other issues.
200 For completeness, a redacted version of the affidavit of Cyrus Verdi and an attachment was admitted into evidence. It does not alter my view that there was no conspiracy to rid the defendant of Mr Abdelkawy.
201 In relation to the two cases relied upon by Mr Abdelkawy, Gorgievski v BTI Pty Ltd & Anor[80] was a serious injury application and of no relevance to the issues in this case. Doulis v State of Victoria[81] is a judgment of Ginnane J. Apart from a helpful summary of the applicable law in this area, it offers no further assistance. The dispute was resolved on its own facts.
Conclusion
[80][2018] VCC 2115
[81][2014] VSC 395.
202 I will dismiss Mr Abdelkawy’s claim and will hear the parties on the question of costs.
16
0