Andrews v VWA
[2013] VCC 1615
•15 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-13-0051
| KEVIN JAMES ANDREWS | Appellant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 3 June 2013 - 18 July 2013 | |
DATE OF JUDGMENT: | 15 August 2013 | |
CASE MAY BE CITED AS: | Andrews v VWA | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1615 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW - APPEAL
Catchwords: Workplace bullying
Legislation Cited: Occupational Health and Safety Act 2004 (Vic)
Judgment: Convicted and charged $50,000.00
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APPEARANCES: | Counsel | Solicitors | |
| For the Appellant | Self-represented | ||
| For the Respondent | Ms C Gwynn | Victorian Workcover Authority | |
HIS HONOUR:
1 Kevin Andrews has appealed against a conviction and sentence imposed in the Magistrates’ Court at Mildura on 5 December 2012. The appeal has been conducted as a hearing de novo.
2 Ms Gwynn, of counsel, appeared on behalf of the Victorian Workcover Authority (“VWA”) who prosecuted the appeal. Mr Andrews represented himself on the appeal, having been represented by counsel at the original hearing.
3 The appeal was conducted over 23 sitting days between 3 June 2013 and 18 July 2013. A further number of days were expended on resolving some 68 subpoenas issued by or on behalf of Mr Andrews. It was at times necessary to tailor sitting times to accommodate the health problems of the appellant and the difficulties associated with self-representation. It should be noted that during the course of this hearing Mr Andrews conducted himself courteously and respectfully.
4 Mr Andrews is charged with failing to provide a safe working environment pursuant to ss21 and 144 of the Occupational Health and Safety Act 2004. It is alleged that Mr Andrews engaged in systemic and systematic bullying of employees at Mallee Laundry and Linen Services (“the Laundry”), a commercial laundry owned and operated by Mr Andrews, between January 2007 and January 2009.
5 The prosecution called 13 witnesses who were employees at the Laundry at various times during the charged period, and a further four witnesses in support of the allegations. The prosecution also relied on evidence from Mr Andrew Carnegie, a consultant psychologist. The admissibility of the expert evidence was contested by the appellant.
6 Mr Andrews gave evidence on his own behalf but ultimately did not call any other witnesses.
7 Although some witness statements contained material that was irrelevant to the charge being prosecuted, at Mr Andrews’ request, witness statements were tendered in full as evidence-in-chief which was briefly amplified upon by oral evidence adduced by counsel for VWA. Mr Andrews relied upon supposed inconsistencies within and between the witness statements, alleged inaccuracies as to time periods worked and varying descriptions of the general functions of the Laundry in order to attack the credibility of prosecution witnesses and to advance his own case.
8 The prosecution were not able to locate Ishtar Lynch, from whom a statement had been taken during the investigation. At Mr Andrews’ request, the statement was ultimately tendered pursuant to s60 of the Evidence Act 2008. Ms Gwynn did not rely upon the contents of the statement as proof of the charge, having formed the view there was sufficient evidence before the court and conscious of not causing disadvantage to a self-represented appellant. Mr Andrews referred to Ms Lynch’s statement while cross-examining other witnesses.
9 Mr Andrews denied all allegations of bullying including those of abusive, threatening, aggressive or intimidatory behaviour. The focus of his case was that an elaborate fraud had been perpetrated against himself and his business by prosecution witnesses and in collusion with his former accountant, Mr Robert Verstappen.
10 Cross-examination of prosecution witnesses was somewhat unfocused and tended to be discursive. Mr Andrews was afforded a great deal of latitude, with the prosecution assisting him in the framing of questions, and he was permitted for the most part to ask questions without objection being taken.
11 The appeal amassed 1926 pages of transcript and 114 exhibits totalling many hundreds of pages.
The legal framework
12 The allegation is one of workplace bullying. The charge is brought against the appellant under ss.21 and 144 of the Occupational Health and Safety Act 2004 (“the Act”).
13 In my view, it is unfortunate that extreme cases of workplace bullying are not the subject of a discrete legislative provision. In the absence of such a provision a somewhat cumbersome route must be undertaken to prosecute such conduct.
14 In order for the charge to be proven, the prosecution must prove the following elements beyond reasonable doubt:
(i) a body corporate, being Mallee Laundry and Linen Services, contravened a provision of the Act, in this case the duty to provide and maintain a working environment for employees that is safe and without risks to health; and
(ii) Kevin Andrews was an officer of the body corporate; and
(iii) Kevin Andrews had a duty or responsibility to act for or on behalf of the body corporate in relation to the matter; and
(iv) Kevin Andrews failed to take reasonable care in relation to the matter, in that he failed to take all reasonably practicable steps that could have been taken to reduce or eliminate the risks to the health and safety of an employee or employees; and
(v) the contravention of the body corporate is attributable to Mr Andrews’ failing to take reasonable care.
15 Section 21(1) of the Act provides that:
“An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.”
16 Section 20 of the Act particularises the obligations to ensure health and safety within the workplace. Section 20(1) states that the duty involves eliminating or, where not reasonably practicable, reducing risks to health and safety. Section 20(2) sets out factors, that are to be had regard to, in determining what is reasonably practicable in ensuring health and safety and include:
· the likelihood of the risk eventuating;
· the degree of harm that would result;
· the knowledge that the person had, or ought to have had, of the risk and any ways of eliminating or reducing the risk; and
· the availability of ways to eliminate or reduce the risk.
17 Section 144 of the Act establishes the liability of officers of a body corporate. Section 144(1) states that:
“If a body corporate … contravenes a provision of this Act … and the contravention is attributable to an officer of the body corporate failing to take reasonable care, the officer is guilty of an offence… .”
18 In this case, the employer, Mallee Laundry and Linen Services was, in the relevant period, wholly owned by Mallee Laundry Pty Ltd, of whom the sole director was Mr Andrews. The prosecution also alleged that Mr Andrews was ultimately responsible at all relevant times for the day to day operation of the Laundry, notwithstanding the appointment of supervisors or managers.
19 The objects of the Act are set out at s2 and include securing “the health, safety and welfare of employees and other persons at work”.
20 Section 5 of the Act defines “health” as including psychological health.
21 There is no definition of “bullying” under the Act.
22 The prosecution relied upon a definition of workplace bullying contained in Exhibit AE, the Prevention of Bullying and Violence at Work Guidance Note, WorkSafe Victoria (February 2003 and since updated): “repeated, unreasonable behaviour directed towards an employee, or group of employees, that creates a risk to health and safety.”
23 The Australian Concise Oxford Dictionary defines “bully” (v) as to “persecute, oppress, physically or morally, by (threat of) superior force; frighten into or out of”. A “bully” (n) is defined as a “person who uses strength or power to coerce others by fear”.
24 In 2003, Chris Maxwell QC, as he then was, was commissioned by the Victorian Government to review and update the Act. A particular focus of his report was on the recognition of “psychosocial” hazards within the workplace, including stress, fatigue, bullying and occupational violence.
25 He wrote:
“Part 1 [of the Report] deals with the changing nature of work relationships, and with new and emerging risks such as stress and bullying, the so-called psychosocial hazards. These hazards are covered by the general language of the Act, in that they are ‘risks to health’, but the Act should be amended to embrace the right to a healthy physical and psychosocial work environment”.
26 This reflected a growing recognition that workplace environments can present risks to employees’ psychological as well as physical health.
27 Sections of the report warrant quoting at length as they provide a background to the new legislation.
28 Maxwell noted that:
“Some commentators draw a distinction between “good” stress (stimulating and challenging work that carries little or no risk) and “bad” stress (excessive demands that cause harm). But attempts to draw the dividing line inevitably become bound up in debates about individual resilience. Similarly, discussions about fatigue often seek to separate “normal fatigue” (ordinary tiredness resulting from a good day’s work) from “excessive fatigue” (impaired physical & cognitive performance that poses risk to self and others).
There is often overlap between work-related stress and “rest-of-life” stresses, such as family breakdown or drug addiction. Similarly, fatigue may be work-related (e.g. extended shifts and poor rostering) or non-work-related (e.g. sleep disorders, family commitments or excessive socialising). Not surprisingly, employers baulk at being held responsible for management of individual and broad social problems.
Given this complexity, it is unsurprising that workplace parties often have difficulty in recognising psychosocial hazards and risks, and in determining how to control these risks.
The issue of varying individual susceptibility to psychosocial risks is a vexed one. However, there is a gathering consensus that the most effective means of addressing psychosocial risks is to focus upon the creation of safe systems of work rather than upon vulnerable individuals.”
29 Maxwell stated:
“There is a cautious consensus in the literature that the condition of chronic stress gives rise to physiological changes and psychological strain symptoms in the worker, which may in turn lead to disease.”
30 Maxwell noted that symptoms of occupational stress, can include:
“ … headaches; sleep disturbance; coronary heart disease; high blood pressure; migraines; gastro-intestinal problems (such as ulcers); fatigue; musculoskeletal disorders (MSDs); eczema; shingles; muscular spasms; blackouts; reduced capacity in cognitive exercises (short-term memory loss, distraction, reduced creativity); depression; drug and alcohol dependency; and feelings of anger, indifference or helplessness.”
31 In the Second Reading Speech introducing the new legislation on 14 December 2004, Minister Lenders stated:
“The bill places beyond doubt that employees and other persons at work must be protected from work-related hazards and risks to both their physical and psychological health. These hazards and risks may include work-related stress, and workplace bullying and violence. The bill defines 'health' to specifically include psychological health.”
32 It is clear that the new workplace legislation introduced in 2004, contemplated the possibility that psychological injury could result from conditions within the workplace and, of particular relevance to the case before this court, that stress could be caused by workplace bullying.
The Commonwealth Regime
33 The Commonwealth Fair Work Act 2009 (Cth) has recently been amended to enable an employee who is bullied at work to apply to the Fair Work Commission for an order to stop the bullying.
34 The definition of workplace bullying used by the Commonwealth regime is framed in the same way as in the Guidance Note used by the Victorian authority.
35 Section 789FD(1) of the amending legislation, the Fair Work Amendment Act 2013 (Cth) which received Royal Assent on 28 June 2013, states that:
“A worker is bullied at work if:
(a) while the worker is at work in a constitutionally‑covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.”
36 The Fair Work Amendment Act 2013 (Cth) followed an enquiry by the House of Representatives Standing Committee on Education and Employment (the “Committee”) into workplace bullying: Workplace Bullying: We just want it to stop, October 2012 (the “Report”). The Committee recommended the adoption of a definition of workplace bullying as “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”. The Committee noted the definitions that have emerged across state, territory and federal jurisdictions have tended to be in substantially the same terms. The Committee noted that “unreasonable behaviour” had been defined in a submission from Safe Work Australia as “behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening”.
37 The Report refers to the definition of the International Labour Organisation of workplace bullying as a form of psychological violence: “Workplace bullying constitutes offensive behaviour through vindictive, cruel, malicious or humiliating attempts to undermine an individual or group of employees”.
The prosecution case
38 The prosecution put the case on the basis that:
(a) during the charge period, Mr Andrews engaged in repeated bullying behaviour towards employees at the workplace; and
(b) there were no systems or procedures in place at the Laundry to deal with workplace bullying
and that this created a risk to the health of employees at the Laundry.
39 The prosecution submitted that bullying requires repeated behaviour but can take many forms, including: verbal abuse; excluding or isolating employees; intimidation; psychological harassment; changing rosters to inconvenience; and withholding information which allows employees to do their job properly. It contended that bullying can be overt, including abusive, insulting or offensive language; behaviour that frightens, humiliates, belittles or degrades such as throwing things or yelling and screaming; teasing or making a person the butt of jokes or ridicule; and threats of dismissal or denial of promised promotion. Bullying can also be covert, such as psychological harassment.
40 The prosecution alleged that Mr Andrews engaged in all forms of this conduct within the charge period.
41 Mallee Laundry and Linen Services employed approximately 7 to 10 people at any one time who worked in the Laundry on the machines or as delivery drivers, collecting and delivering laundry to restaurants, motels and later hospitals in the area. The prosecution adduced evidence of extremely high staff turnover, in the context of a small working environment and where unemployment in the area was substantial, as proof of a difficult and dysfunctional workplace environment. A Payroll Activity [Summary] for the Laundry from 1/10/2006 to 30/06/2009 which was tendered as Exhibit AU, identifies 78 employees employed by the Laundry over that period. Mr Andrews’ evidence was that the high staff turnover could be explained by people who had come to the Laundry for trials but had not stayed on as permanent employees, staff dissatisfaction with Tracy Bond [a Laundry supervisor] and general overstaffing. However, he also gave evidence that people who were on trial or were training were paid out of a separate “expenses” book and would not show up on payroll figures.
The appellant’s case
42 Mr Andrews denied the allegations of bullying behaviour and argued that the prosecution witnesses had produced false and fraudulent statements in an effort to destroy him and his business. I will later deal more specifically with instances of alleged falsification and the purported motivations of particular ex-employees but in broad compass Mr Andrews submitted that he had been the victim of four intersecting frauds which had culminated in complaints to WorkSafe and ultimately to prosecution. He identified the conspirators as comprising:
(a) “The Verstappen group”: Mr Andrews argued that his former accountant Robert Verstappen, together with his wife Kirsten Verstappen, had been trying to rob him of his business and had colluded with Laundry employees and encouraged them to make false statements. In the case of Kym Seago, Mr Andrews suggested that he was financially rewarded by Mr Verstappen for making a statement.
(b) “The Bond group”: This group, which included witnesses Angie Russo, Rebecca Douglas, Debbie O’Blein, Russell French and Bernadina Marriott, was driven by Tracy Bond, a former employee with whom Mr Andrews had had a personal relationship. This fraud was motivated, according to Mr Andrews, by the breakdown of his relationship with Ms Bond, the fact that she thought he owed her money and her general vengeful desire to “bring him down”.
(c) “The Seago group”: Mr Andrews argued this third group was driven by Kym Seago and, to a lesser extent, Janet Reed. Mr Andrews alleged that Mr Seago had engaged in wage fraud over the period of his employment by falsifying the hours he worked on his timesheets and further that he encouraged other workers to do the same. “The Seago group” included witnesses Sandra Renton, Vicki Kendrigan, Maureen Catlin and Cheryl Page.
(d) “The Scarman group”: This last group was comprised of Patricia Scarman and, to some degree, her mother Maureen Catlin. Mr Andrews argued that Ms Scarman had been planning to set up a rival laundry business with her husband whilst in his employment and had made a false statement to WorkSafe to eliminate him as competition.
The allegations of bullying behaviour
43 This case involved the calling of a large number of witnesses and many days of evidence. Much time was consumed with peripheral matters not directly relevant to the charge. Were it not for the fact that the appellant was self-represented, much of his questioning would not have been permitted. Except insofar as it relates to alleged bullying behaviour or goes to the credibility and reliability of a witness’ evidence, I do not intend to recite all the evidence that was before me.
44 Mr Andrews clearly stated, in respect of each witness, that every allegation of bullying made against him was false.
45 I propose to summarise the prosecution evidence by reference to categories of alleged bullying behaviour.
Verbal abuse
46 Witnesses described Mr Andrews using aggressive, insulting, highly critical, abusive and profane language to, about or around employees in the workplace on a regular basis.
47 Kym Seago said that Mr Andrews would criticise anything, saying, “That’s fucking wrong”, “The cunts have no idea what their (sic) doing”. He said this was how Mr Andrews referred to the women staff and that he would tell Mr Seago, “Their (sic) all cunts, every single one of them”.
48 Sandra Renton gave evidence that one day Mr Andrews turned to her and said, “I hate women, they are all brain dead cunts”. She said, “I didn’t think there was any reason for him to say something like this when women are his main workforce, and most of them here were working their arses off for him.”
49 Bernadina Marriott described an incident when she and “Rebecca” were shaking linen out on the ground and Mr Andrews yelled at them “You’re not fuckin’ doing it right, shake it more”. She went on to say:
“I started to see how Andrews treated the women who worked in the Laundry itself. I can’t remember their names, but I remember him using abusive language towards them on more than one occasion. I wasn’t in there very often, I put my head down and did what I had to do, but I noticed that his behaviour was disgusting.”
50 She said that in the period she worked there – which was some three weeks or so – she witnessed Mr Andrews using abusive language a couple of times a day.
51 Rebecca Douglas said that Mr Andrews would come into the ironing room where they were working and scream, “Shut the fuck up”. She said, “[H]e would call us ‘lazy bitches, get back to work’ … I didn’t expect that anyone would talk to anyone like that seriously, I thought he must be joking.” She said later that he would refer to the women at the Laundry “as cunts and cocksuckers. I saw him call both Marlena and Emma these names.” She said, “Andrews would be on Emma’s back constantly. He would call her a fucking idiot, a cunt, a dickhead, and would say things to her in Italian. He would tell her to stop talking and start to do some fucking work, she was nothing but a worthless piece of shit, she was a bush pig”.
52 Angie Russo stated that she observed that Mr Andrews seemed to pick on particular people, mainly “Emma”. She said that he would yell at her: “[H]e told her to ‘f’’ng shut up. He was really angry. He spoke to her really badly”.
53 Janet Reed stated that she had observed Mr Andrews “walking up behind the girls and literally standing behind their shoulder and saying, ‘Are you stupid that’s not the way it’s supposed to be done’.” She said Mr Andrews was constantly calling the girls “stupid” and “idiots”. She described one occasion about three weeks before Easter when Mr Andrews came over to another worker, “Marlene”, and said to her, “Are you bloody stupid, separate them into the other bin … Did your father know how stupid you would be, I would have drowned you at birth.”
54 Patricia Scarman said that on 3 April 2008, she witnessed Mr Andrews yelling at Marlene Drust and “Leanne”. She said, “He was saying to them they are fucking stupid, and idiots. It was loud and abrupt. He told Marlene on this day that her mother should have shot her at birth.” She described another occasion on 17 June 2008 when she said Mr Andrews had started yelling at “Marlene”, “I don’t tell you to fucking think, you’re an idiot”. Ms Scarman said that on 27 August 2008 she was working with “Marlene”, “Leanne” and her mother Maureen Catlin, when Mr Andrews said, “You stupid idiots, I can get girls with brains and IQ’s”. She said, “I know Kevin hates women. He literally has said, ‘I hate women’. He has had three broken marriages and he hates women. He made a mention of it once and we all said, ‘why don’t you hire men?’.”
55 Maureen Catlin described similar incidents, saying that Mr Andrews constantly picked on “Marlena” and would say things like, “You’re so fuckin’ useless your father should have shot you at birth” or “You’re so fuckin’ useless your mother should have shot you”. She said he would say this regularly over quite a period. She said that if someone was visiting the Laundry, Mr Andrews would loudly say things like, “I wish they’d send me decent staff instead of the crap I keep getting”. She said that, “Everyone in the laundry would hear it, he meant us to.”
56 Leanne Burnett said of Mr Andrews, “I heard him say once that ‘women are a waste of space’. When I heard him say this I asked him why he employed women then. He just walked away”. Leanne Burnett also described an incident when there was a mistake in the delivery to Stefano’s. She said:
“All the way back I was feeling nervous as I thought it was my mistake. When I got there Andrews came out and said something like ‘I’m sick of delivery drivers making mistakes and costing me money’. He was muttering stuff like ‘you can’t get fuckin good help these days’. He scared me, I was in tears, he is an intimidating man.”
57 Debbie O’Blein also gave an account of this incident. She said that one day she overheard a telephone conversation in which Mr Andrews was discussing linen being returned to Stefano’s. She said that when “Leanne” returned, Mr Andrews yelled at her saying, “this is no good, you keep stuffing up the deliveries, you’re ruining my fuckin’ business”.
58 Leanne Burnett gave evidence that Mr Andrews would tell “Marlena” she was stupid and that all stupid people came from Broken Hill. She said he would threaten “Marlena” with the sack. She said that Mr Andrews would call Emma Mazza “stupid wog” and “useless”. She said:
“[He] would stand over her yelling abuse. He really used to go for her. I’ve never seen anyone so scared, she was petrified of him. She used to do everything for him as she was scared of losing her job. She was always in tears, if she did something wrong she would start to cry. I tried to cover for her many times, if something wasn’t ironed right or a mistake had been made I would try to hide it from Andrews.”
59 Tracy Bond gave evidence that on her first day she witnessed Mr Andrews yelling and screaming at “Emma”, telling her to work quicker and to hurry up. She said that “Emma” was in tears. She said that on the second day, she sat at the back of the Laundry with Mr Andrews and he discussed how stupid his workers were.
60 Ms Bond stated that after she had started as assistant manager and was still learning what to do, she would occasionally leave something out of an order and Mr Andrews would scream, “you idiot Tracy”. Ms Bond’s evidence was that when Mr Andrews was angry with her he would tell another worker in her presence and that if he told her off, he would yell so that everyone could hear.
61 Ms Bond gave evidence that she would speak to Mr Andrews about the way he spoke to her and the staff generally. She said, “I would tell him that he could not speak to us like this. His answer was consistently, ‘I pay you’. Another response was, ‘If people weren’t idiots I wouldn’t have to speak to them like that’.”
62 Tracy Bond gave evidence that on one occasion around August 2007, Mr Andrews was picking up sheets to see if they had creases, then throwing them and saying, “You fucking ain't doing them right, you dogs. You're trying to destroy my business”. She said that Debbie O'Blein, “Leanne”, “Angie”, “Emma”, “Brad” and “Russell” were there. However these witnesses did not corroborate Ms Bond’s account. Neither Leanne Burnett, Angie Russo nor Russell French were able to recollect such an incident. Debbie O’Blein also could not recall this incident and said that she did not remember him saying “dogs” but said she did recall Mr Andrews saying “you’re trying to destroy my business”.
63 Ms Bond’s evidence was that after the initial exchange, Mr Andrews then called the accountant, Robert Verstappen. She said that Mr Verstappen came to the Laundry and that Mr Andrews said to him in her presence, “… the dogs are destroying my business”. She said that she had yelled at Mr Andrews and that Mr Verstappen had replied that Mr Andrews could not speak to his staff like that.
64 Robert Verstappen, Mr Andrews’ former accountant, gave evidence that he rarely visited the Laundry. He said that in August 2007 on one occasion when he had visited, Mr Andrews “was loudly saying that the workers were nothing but a pack of fucking dogs, they are just here for the money. I don’t remember his exact words, but it was offensive enough for me to pick up on it and pull him up. I told him that that type of language was totally inappropriate.” I consider that Mr Verstappen’s account of this incident is corroborative of Ms Bond’s recollection of what took place.
65 Russell French worked as a delivery driver and gave evidence that he did not see much of Mr Andrews on a daily basis as he was mostly out conducting deliveries. He said that he remembered an occasion when he saw Mr Andrews stand in the middle of the Laundry and say in a loud voice that they were all a “pack of lazy cunts”. He said he was absolutely dumbfounded by that. Mr French’s evidence was that whenever he was at the Laundry:
“I would hear and see Andrews going crook at the workers, particularly Emma. She seemed to be a constant source of his tirades, but he would have a go at all of them. He would constantly criticise the girls for doing something wrong such as putting the linen in the wrong place, linen not washed properly even though he did the washing, that sort of thing.”
66 Debbie O’Blein recounted an incident when she had forgotten to lock a door when on a delivery. She said, “About 10 minutes later [Mr Andrews] got a phone call from the client. Andrews got off the phone and started yelling ‘Did you lock the door?’ ‘Did you lock the door?’ I couldn’t remember. He yelled ‘well that’s not fuckin’ good enough, next time you do that you’re fuckin sacked’.” Ms O’Blein said that Mr Andrews constantly yelled at the workers, mainly “Emma”. She said that Mr Andrews would curse “Emma” in Italian. She said that one day she heard him call a woman called “Sarah” a “big fat bush pig”.
67 Cheryl Page’s evidence was that Mr Andrews “would speak to the girls in a very abusive and intimidating way. He would say things like ‘fuckin’ hell Leanne, you ought to know what you are doing, you’ve been here for fuckin’ years’, it was a very venomous, angry way of talking”. She said that she had heard him talking to a visitor one day “and he said ‘no fuckin’ women work here, its only the men, the women just suck me dry, they are only good for one thing’. He really hated women, he really had a thing about them”. Ms Page said that the first time Mr Andrews had actually sworn at her, was when she had said that some sheets could be redone but would take time and he said “don’t tell me how to fuckin’ suck eggs Cheryl”.
68 Eva Bolvary owned Irymple Fast Foods, the shop next door to the Laundry. She gave evidence that she could hear a lot of what was going on in the Laundry from next door, particularly when she was out the back of the shop. She said that Mr Andrews would scream things like, “how many fuckin’ times do I have to tell you, are you fuckin’ stupid?”.
69 Rebecca Douglas, Janet Reed and Tracy Bond all gave evidence that Mr Andrews had made comments about their weight. Rebecca Douglas said, “He would refer to my weight everyday. If I had a soft drink, he would say shouldn’t you be drinking water, I would bring an apple to work, he would say, see you should be eating more of that”. Janet Reed said that Mr Andrews had told her that the girls were saying she was getting fat and that he then referred to her as “porky”. Tracy Bond said that in the period after she had loaned Mr Andrews money, he treated her “like dirt”: “Every time I would have something to eat, Kevin would say ‘You don’t need that, you’re too fat’.”
Physical intimidation and threats of physical harm
70 Witnesses described Mr Andrews physically intimidating employees by standing over them, staring at them from a doorway of the Laundry, and pushing trolleys towards them if they were in the way.
71 Maureen Catlin described an incident she witnessed when she was working with another employee called Leanne Draper. She said that this occurred in the last two weeks she was working there. She said that she was working with Ms Draper on the big ironer and that Mr Andrews would walk to the door and stand there and stare at Ms Draper for anything up to 15 minutes. She said that Ms Draper would eventually make a mistake and he would yell at her, saying things like “you’re useless”, “don’t know why I bothered hiring you”, “no wonder you didn’t have a job before”.
72 Janet Reed gave evidence that Mr Andrews would walk through the Laundry with the stick he used to mix a starch compound. She said she had seen “him hit the machine next to Emma with the stick. This would give her a fright and make her jump”. She said he would walk through the Laundry tapping the stick on his leg but she did not see this as a threat and did not see him use the stick on the machines after “Emma” left.
73 Eva Bolvary gave evidence that one day she was out the back of her shop having a smoke when she heard Emma Mazza ask, “Why do you have to hit us with the stick?”. She said she then heard Mr Andrews say, “Well if you did your work properly I wouldn’t have to hit you with a stick”.
74 Janet Reed gave evidence that she had witnessed Mr Andrews pushing a trolley at “Marlene”. She said, “He would physically follow her with the trolley and then push it towards her. Sometimes he would say hurry up, get out of my way, I am going to hit you with it. Marlene would just jump clear”.
75 Leanne Burnett also gave evidence that Mr Andrews would push trolleys into the workers. She said that, “If you happened to be standing in front of the dryers when he pushed them out he would push them into you. This happened to me and it hurt. If he pushed the trolley hard it would bruise you”. Tracy Bond gave evidence that in about August 2007 there was an incident where Mr Andrews grabbed the trolleys full of wet linen and pushed them out to the girls. She said, “The trolleys are very heavy with sheets. The trolleys actually struck my legs and I have witnessed the trolleys hitting Leanne, Angie’s and Emma’s legs on a number of occasions”.
76 Kym Seago stated that he had seen Mr Andrews nudging employees with the trolleys in the workplace on a number of occasions. He said:
“I actually saw Janet fall into one. It hit her on the back of the legs. It wouldn’t have hurt it was just one of those things. I have witnessed him with the trolleys close up behind staff virtually herding them in a direction. I believed this behaviour to be deliberately intimidating to the girls.”
77 Leanne Burnett said that after the incident with Stefano’s order, she was offered work in the front of the Laundry instead. She said:
“During this time, I would see Andrews yelling abuse at the girls in the laundry. He would time the girls working to see if they were too slow on the ironers, being too slow taking clothes out of the dryers. He even timed them if they went to the toilet. If the towels weren’t folded properly he would stand over them and intimidate them, as I have said he is a scary man. He would say things like ‘if you don’t do it properly you are only on probation, I’ll get someone else’.”
78 Rebecca Douglas gave evidence that Mr Andrews had a stick, about four feet long, that he called the “get back to work stick”. She said that he would threaten “Emma” with it, and that “Emma” would laugh, but she could tell she was scared of him. She said that she saw Mr Andrews smack “Emma” on the bum with it: “It wasn’t hard, but he did hit her”.
79 Ms Douglas gave evidence that on another occasion just before Christmas 2007, when a WorkSafe inspector came to visit the Laundry, “Emma” came out with a wad of dirty napkins, asking Mr Andrews where to put them. She said, “Andrews went off his head at her, and started to punch the wall beside her head, screaming abuse. I can’t remember exactly what he said, but I remember being really scared. I really thought he was going to hurt her. Emma walked out crying.” When cross-examined, Mr Andrews said that he had been upset that day because “I saw it just as another problem of Tracy Bond and I was upset about it”.
80 Ms Douglas described an incident when she had left some napkins behind in a pick-up from Stefano’s. She stated that when she returned to the Laundry, “He was right in my face, his nose was within inches and he was screaming. He was spitting in my face, he was so close. He screamed ‘You are all fucking useless, I should sack you all and do it myself. You are wasting my time and money’.”
81 Angie Russo’s evidence was that after a few days of working at the Laundry:
“I started to notice Kevin would come to the door of his office and stand there smoking and watching us work. I didn’t like it, I thought it was creepy and just not right. He would stare at us if we were talking, he would just stand there. He wouldn’t actually tell us himself, he would get whoever was supervising to come over and tell us to be quiet.”
82 Cheryl Page said that Mr Andrews would “stand by the door and stare at [Marlene and Leanne] for five minutes at a time. He did this to me towards the end. It was a vile stare, his eyes were like daggers. He would wait for them to slip up and pounce, like a snake”.
83 When asked what she observed Mr Andrews to do at the Laundry, Debbie O’Blein said, “Well, he'd stand in the doorway and watch. You weren't allowed to talk. If you talked he'd say ‘Quiet, keep working’”.
84 Tracy Bond described an incident around March 2007 when Mr Andrews became extremely angry, went red in colour, picked up a plastic bucket and threw it at “Emma”. She said that Mr Andrews screamed, “Fucking Emma”. She said the bucket missed “Emma” and hit a man called “Anthony” who was there repairing the big ironer. She said that “Emma” began crying. When cross-examined, Ms Bond said that she would “never, ever, from this day forget that day”. Ms Bond agreed that it was possible she had been mistaken in describing “Anthony” as a mechanic, but he did come to fix the machines. Mr Andrews put to Ms Bond in cross-examination – and later tendered as Exhibit 59 a Guest Registration from the Commodore Motor Inn – that Anthony Kingsley had been at the Laundry on 24 February 2007 with another man, John Marsden, and not in March 2007. Ms Bond responded saying:
“I know two men come one time (sic) and then I know – sorry, the other guy he’s talking about come on his own (sic), and the day that the bucket was thrown was that one, um, guy was in the laundry. Two guys come earlier (sic), I remember that, but this other guy come on his own (sic) in the laundry the day the bucket was thrown.”
85 While I do not place great weight on the specific date that this incident is said to have occurred, I found Ms Bond’s evidence and recollection of this event credible and accurate.
86 Several witnesses gave evidence about a chemical called oxalic acid, saying that Mr Andrews had told them that it was a flesh-eating acid that could dissolve bodies. Witnesses said that Mr Andrews would threaten staff that he was going to dissolve them in acid if they did not do their jobs properly. Maureen Catlin gave evidence that Mr Andrews had told them about a new chemical he was using that could dissolve bodies and that they had better watch themselves. She said he laughed and walked off, and that they had been shocked but then thought he was joking. Mr Andrews denied saying this and suggested to witnesses that it was Kym Seago who had said this to staff. Sandra Renton gave evidence that it was Kym Seago who first looked up what the acid was and told her that it was protein-eating. Mr Seago denied that he would have said it could “dissolve bodies”. I am not satisfied that it was Mr Andrews who initiated the comments about dissolving bodies, and am not satisfied that discussion about oxalic acid was undertaken for the purpose of intimidating employees.
87 Kym Seago said that Mr Andrews was “constantly telling me to bring in my dogs so they could be tied up next to Marlene and Leanne and if they stuffed up my dogs had full permission to bite them”. He said, “I thought this behaviour by Kevin was really insane”. Sandra Renton also gave evidence that Mr Andrews made mention several times of bringing in Mr Seago’s basenji dogs and getting them to bite anyone who was talking when they should have been working.
88 Janet Reed made a particularly telling observation in her statement when describing the jokes surrounding Kym Seago’s dogs. She stated, “We joked about it, and the story was later portrayed at work to all the girls. Like other things, it started out as a joke, he said things like we will get them in to patrol the laundry to get you to work harder.” She said that Mr Andrews would then use the threat of dogs to intimidate Marlene Drust and Leanne Draper.
89 I accept the evidence of witnesses on this topic. Whether initially a joke or otherwise, the threats to bring dogs into the workplace are indicative of a poisoned workplace environment, marked by intimidatory threats.
Unpredictability of behaviour and differential treatment of employees
90 Several witnesses gave evidence about the unpredictability of Mr Andrews’ behaviour and the stress that this created in the working environment. Witnesses described Mr Andrews’ mood and treatment of them as “flicking like a switch”. Some witnesses described this as day-to-day unpredictability. Other witnesses gave evidence of being “in the good books” and then falling out of favour. Some witnesses described being promised pay rises or promotions that they never received.
91 Kym Seago described in his statement: “He could flick like a switch. I witnessed him banging his hand on his desk and tables extremely hard and saying things like, ‘You fucking idiot’.” Mr Seago stated, “During the initial time … he was really good to me and Janet. It was just like this switch thing, the very next day Janet and I were basically shit in his eyes”. Mr Seago gave evidence that soon after he started working at the Laundry, Mr Andrews was impressed with his enthusiasm. He said, “In the eyes of some of the staff there, I had become known as the golden boy. I was in the good books with Kevin and could do no wrong”. He said that he was nicknamed “Captain Napkin” by Mr Andrews. Mr Seago stated that he began to take on more responsibility and that Mr Andrews had taken him, another employee Janet Reed, and his partner Vicki Kendrigan out to “top notch restaurants”. He stated that he was offered a pay rise of $100,000-$150,000 a year and a 10 per cent share of the business. Vicki Kendrigan gave evidence of the same conversation. She said Mr Andrews and Mr Seago seemed “great mates” around this time. Both Mr Seago and Ms Kendrigan agreed that this was an unbelievable offer to have been made, but maintained that Mr Andrews had said this. Ms Reed recalled being taken out for dinner by Mr Andrews with Mr Seago and Ms Kendrigan but could not recall exactly what was said.
92 Mr Seago’s evidence was that Mr Andrews’ behaviour towards him changed around the time that Janet Reed left. He stated that Mr Andrews would grunt at him, and on some occasions told him to “stand there do nothing”. He said where previously Mr Andrews had introduced him to clients as his “new manager”, he now told clients that Mr Seago was incompetent. He stated:
“My hours were basically halved. He would belittle me in front of staff. An example was asking staff to help me to get King or Queen Sheets (sic) because I didn’t know what I was doing … I was working in the finishing room doing napkins and he would ask other staff members to supervise my work … I basically lived with this for two months not knowing when the axe was going to fall”.
93 When cross-examined, Mr Seago said:
“After I had my little annual leave, I'd been demoted, as such. I was told, under no uncertain circumstances, am I to touch any of the machines or to go out the front of the shop, or to talk to any of the female staff members, and my hours were reduced … trying to talk to Kevin from that period on, he just simply grunted at me, no explanations given.”
94 Janet Reed gave evidence that in June 2008, Mr Andrews wanted her to become a “napkin”. She said Mr Andrews had nicknames for people and Kym was classified “Captain Napkin”. She said to become a “napkin” you had to drink with the boys after work.
95 Sandra Renton gave evidence that “the ‘A Team’ was known by Andrews as ‘the Napkin Club’. I was christened ‘Private Napkin’”. She said Mr Andrews had introduced her to Kym Seago as “Captain Napkin” and that the Napkin Club were the people that Mr Andrews would drink with after work.
96 Ms Renton described how, after she started, there were two people who had been sacked. She said that Mr Andrews then christened her “the Angel of Death” and that he would tell people that if she tapped them on their shoulder, they would be going to heaven, and that he would use this as a threat that people would get the sack.
97 Sandra Renton stated that when she had broken up with her partner, Mr Andrews had let her stay at his motel as she had nowhere to sleep. She said that when she reunited with her partner, Mr Andrews’ behaviour had changed towards her. She said, “I virtually had no breaks, there was no more offers for a beer after work, I was working to impossible schedules, he would pretty much ignore me”. Ms Renton observed that during the period she worked at the Laundry there were a lot of people who were employed and then sacked. She said, “It was a very noticeable pattern, they would be in the good books, at some stage he would find a new best buddy, then they would get the silent treatment, then they would be gone. I knew that it was happening to me, it was only a matter of time.”
98 Maureen Catlin gave evidence that on 15 August 2008 Mr Andrews had asked her out to dinner. She had refused. She said that his behaviour changed towards her after this. She said she was made to work in the “punishment corner” which was the lowest job in the Laundry. She said that on her twenty-sixth straight day of work, she was too exhausted and took the day off. She said the next day, when she arrived at work, she said hello to Mr Andrews and he just stared at her: “it was so nasty I called it the death stare. It would make you feel like absolute crap”. She said for the rest of the time she worked there he spoke to her through “Leanne” or “Marlena”: “He totally ignored me. He would treat me as though I was stupid by criticising everything I did”.
99 Janet Reed gave evidence that in her last month of employment, July 2008, Mr Andrews was away for two weeks and she and Kym Seago ran the place. She said that on the day he came back, a Saturday, Mr Andrews flew into a rage about part orders that were on the folding table, “Kevin flew into a rage and said to me, ‘Don’t tell me how to run my business, I tell you, I don’t pay you to think’”. She said, “Kevin spoke around me and not to me for the rest of the day”. Mr Andrews put to Ms Reed, during the course of cross-examination, that she had nominated Kym Seago as a witness to this incident in Exhibit 11, a document entitled “Workplace Bullying Summary of Events”, and that Mr Seago had not worked that day. Ms Reed said if the timesheet indicating that Kym Seago did not work that day was accurate, then she was mistaken in naming him as a witness to that incident.
100 Janet Reed said that the day following this incident, Mr Andrews would not speak to her or acknowledge her and would motion with his hand for her to go away when she tried to speak to him. She said she was told she no longer had a job that following Wednesday.
101 Tracy Bond gave evidence that, “When Kevin would yell at me, his face would go bright red. He had this mean look about him; he is physically a big man. He scared me. He would also be silent sometimes, just not talk. I did not know what sought (sic) of mood he would be in”.
102 Tracy Bond also gave evidence that she was promised a pay rise that she never received, and that after a few days of commencing work Mr Andrews told her she was in charge of the front management but that she should not tell the other workers. She stated, “He said I’m not sacking them I want them to leave. He thought by me telling them what to do that they would become annoyed and angry and that they would leave”. Ms Bond said that when she took a week off to visit her father shortly before the end of her employment, Mr Andrews offered her job to Debbie O’Blein. She said:
“At the time when Deb was there he would turn to Deb and knock Leanne. It was like he wanted to play one off on the other. He would offer different positions to the girls but they would never eventuate … I heard him offer Debby the position of my job. He gave Debby my job the week I went to my Dads (sic).”
103 Debbie O’Blein gave evidence that Ms Bond was away for about two weeks prior to her leaving. She said:
“Tracy Bond left, and I was put in charge … While she was away Andrews was sucking up to me. Always asking me what I thought. He asked me what he should do with Tracy when she came back. I said he should do what he thought, he was the boss.”
104 Leanne Burnett gave evidence that after making a mistake with a delivery to a restaurant, Mr Andrews was “good as gold, but over the next few months his behaviour to me changed. He would dig at me, but he never really dealt with me face to face, he would walk away muttering … You would hear him saying things like ‘they cost me money with their mistakes’, that sort of thing”. Ms Burnett’s evidence was that after Tracy Bond left in around October 2007, she more or less took over her role, though Mr Andrews had not asked if she wanted to do this. She stated that after taking holidays over Christmas, Mr Andrews gave her the cold shoulder. She said that in the last two weeks of her employment, after giving notice, Mr Andrews did not speak to her at all, and would not even look at her:
“If he had to tell me anything he would tell whoever was standing next to me to pass on the message to me.” Janet Reed’s evidence corroborated this. She said, “When Leanne came back, around the middle of January and I noted that Kevin treated Leanne with contempt … His basic thing was he would walk in, ‘You know that job was supposed to be done why haven’t you got the girls doing it?’ He would say this in a loud standover voice … A couple of times I saw her get really uptight and angry about it.”
105 Rebecca Douglas described how the first few weeks she worked there Mr Andrews was really encouraging. She said Mr Andrews would tell them they were doing a good job but that after the first week he started on them: “He would question us constantly about how long we took. He would say things like ‘I could do it in 15 minutes, you should be able to do it in less’”. Ms Douglas’ evidence was that in the last three weeks of her employment, Mr Andrews was treating her “like a piece of dirt”. She said, “I would make a mistake and he would call me a ‘fucking idiot’. I was doing long days, getting home and crying all the time”. She said, on the last day she worked there, “Andrews was calm that day, but then he would call the girls cunts, cocksuckers, dickheads. He would swing from one to the other, it was strange”.
106 Witnesses also gave evidence about Mr Andrews talking about other employees behind their back, or “backstabbing” them.
107 For example, Rebecca Douglas gave evidence that on one occasion when she had stayed back to have a beer after work:
“Andrews started talking about a girl called Emma. He said that she was the Napkin Queen, she could do 500 a day. He went on to say that she was a cunt of a thing, she was more trouble than she was worth and he was going to sack her when she got back.”
108 She said that at these times when Mr Andrews had a beer after work, he would talk about the other girls:
“He would tell us that Leanne used to do the deliveries, but she was too slow … He would keep going on about Emma. But this time, she wasn’t even referred to by her name, he referred to her as ‘that cunt’. About this time, he asked me to take Emma down to the river and drown her before he did. She was standing there at the time, and she said ‘but I can’t swim’ Andrews said ‘yeah I know, that’s why we are going to throw you in the river’”.
109 Bernadina Marriott gave evidence of an incident when Rebecca Douglas asked Mr Andrews for a couple of days off, he refused, and she took them anyway. Ms Marriott gave evidence that Mr Andrews complained to her about this:
“[H]e said things like fucking stupid bitch, I fucken’ need her here, she’s my number one driver … He would always talk about other workers behind their backs, I didn’t pay much attention to him, by this time I thought he was disgusting how he treated his workers.”
110 Tracy Bond gave evidence that Mr Andrews would invite staff to have a drink after work. She observed that after he started drinking “he would use this time to downgrade the staff at the premises. Whoever listened to him, it was like he felt good by downgrading the other staff and that person would listen to him”.
111 Debbie O’Blein gave evidence that she had heard Tracy Bond and Mr Andrews discussing Leanne [Burnett]. She said they would say things like “she’s fuckin’ useless, she’s ruining the business”. She said, “This would make me wonder what they were saying behind my back”.
Unreasonable workplace rules or expectations
112 Witnesses gave evidence about not being allowed to take breaks with other employees, about not being allowed to talk, about being told not to go to the shop next door for their lunch, and about being placed under unreasonable pressure to complete tasks within particular timeframes.
113 Bernadina Marriott worked at the Laundry for approximately three weeks. Her evidence was that on the second day she went to the fish shop next door for her lunch and when she got back Mr Andrews told her not to go there again. She stated, “When I asked him why, he told me that they wanted to close him down. I just shook my head and walked off”.
114 Eva Bolvary, who operated the shop next door, gave evidence that the girls from the Laundry would come into her shop for smoko or lunch. She said they would often come in crying and sometimes talked to her about the Laundry. She said that Emma Mazza came into her shop one day and told her that Mr Andrews had forbidden the girls from going into the shop. She said Emma Mazza had described it as the “Golden Rule”. She said that girls stopped coming into her shop. Ms Bolvary also described an occasion when she was out the back with her son and she heard Mr Andrews say, “If I see you go in there again I’ll slap your face”. She heard “Emma” say “What? What?” and then she heard a loud slap. She said she did not know whether he had hit her or not and that “Emma” had not answered when she asked her later. When cross-examined, it was put to Ms Bolvary that staff did not stop coming into her shop. Ms Bolvary said:
“[T]hey did for quite a while and they were going to the general store … and some of them would walk around the block and sneak in the back, whispering, saying that they weren't allowed to come in, that the golden rule was they weren't allowed in my shop, and I couldn't understand why, and that was why they stopped coming in. And then when Mr Andrews went, then they started coming back in when Kirsten was there.”
115 It was put to Ms Bolvary that it was false that she had heard a slap. She said, “I'm sorry, but it's not, because my son was there too, having a cigarette with me out the back, and he heard it and was going to go in but I told him not to”.
116 Kym Seago gave evidence that during the last six weeks of working at the Laundry Mr Andrews would not let him have smoko with anyone. He stated, “The girls were instructed by Kevin not to talk to me at all”. During cross-examination, Mr Seago said that by the time he left he was not allowed in the front of the shop, that he was told to stay at the rear of the shop and work there and that the reason given was so that there would be no communication between the workers.
117 Maureen Catlin said of her last few weeks of employment: “Each day was the same, being ignored, being stared at for minutes at a time, being instructed through a third person … He would change our lunchbreaks or smokos together so we couldn’t talk, we weren’t allowed to talk to each other as we worked.” She also corroborated Mr Seago’s account of how he was treated in this last period: “Kym was also in trouble with Andrews. I witnessed Andrews ignore him, talk to him a third person (sic), or just stand in the corner and eyeball him. One day Kym asked Andrews what he wanted … him to do. Andrews said to him to stand still and don’t move“.
118 Cheryl Page gave evidence that Mr Andrews made “Marlene” take her breaks by herself. She said, “[H]e didn’t want her talking to the other staff, he did the same thing to Kym. Both Marlene and Leanne were always scared to be seen talking to the others.”
119 Rebecca Douglas gave evidence that during the last few days she worked there they “weren’t allowed to take breaks together with the other women because Andrews thought we were talking about him. Emma was always in tears”.
120 Russell French said that “Andrews had a rule about not talking at work, even at smoko or lunch. All the work had to be done in silence”.
121 Sandra Renton gave evidence that Mr Andrews was “always on about people chatting to each other”. She said one day he had pointed out a large fake baby’s dummy that was on top of the ironer and laughed and said it was a speech inhibitor.
122 Debbie O’Blein gave evidence that Mr Andrews would constantly have his eye on the time it took her to do deliveries.
123 Rebecca Douglas said that she was placed under pressure to work faster. She said that to work any faster, they would have had to lift three or four 25 kilogram bags at a time or speed and that Mr Andrews’ response was that if that was what it meant, they would have to do it.
124 A “General Fines List” was tendered as Exhibit D and is reproduced below:
125 Mr Andrews agreed that this list had been displayed around the workplace. The prosecution relied upon this bizarre document as evidence of unreasonable workplace rules, which outlined fines for particular things, such as: “delivering wrong goods $35; loosing (sic) goods/orders $100; stabbing other staff members in the back $105; pissing on the toilet seat $11; saying sorry $200”. Witnesses varied in whether they described this list as a joke shared within the workplace, or whether it was a quite serious description of consequences that would follow from particular behaviour. Janet Reed said that she had laughed when she first saw it but that some of the women working there believed it. Russell French said the fines list was so outrageous that it was not even funny. Debbie O’Blein said she could not believe how rude it was and said that Mr Andrews had said to her, “Well fuckin Emma always pisses on the toilet seat”.
126 Rebecca Douglas gave evidence that she was fined on two occasions in accordance with the General Fines List, for delivering wrong goods, and for forgetting. She said it was deducted from her pay, that it did not show up on her payslip and that it was Mr Andrews who told her that she had been fined. She said that she had initially thought the list was a joke.
127 Debbie O’Blein gave evidence that she thought that Tracy Bond’s daughter had typed up the list. Tracy Bond said that the list was just a workplace joke and she did not believe anyone would have actually been fined from it. Mr Andrews himself gave a far-fetched explanation in evidence that the General Fines List had originated in a light-hearted joke that he shared with Emma Mazza about encouraging her to confront staff in the workplace when she had an issue, rather than bitching to him.
Insensitivity to complaints or concerns of employees
128 Witnesses described Mr Andrews’ response to employees expressing concern about being injured at work or workplace conditions. The prosecution does not rely upon this as evidence that the Laundry was a physically unsafe workplace. However it does rely upon the response of Mr Andrews to employee complaints and concerns as evidence of unreasonable behaviour and treatment of employees.
129 Janet Reed described an occasion when she cut her finger at work. She said Mr Andrews’ response was, “Don’t get blood on my sheets and don’t make a racket”. She said that she had just laughed and put a bandaid on it.
130 Leanne Burnett gave evidence that she had once cut her left cheek on the door of the van. She said when she got back to the Laundry, she had blood all over her shirt. She said, “Tracy came out and noticed the blood all over my shirt and took me in and sat me down. She got some detol (sic) and cleaned me up. Andrews came out of the office and said to me ‘I hope you didn’t hurt the van’. He also asked if I had finished my deliveries. He then walked off”. During cross-examination, Mr Andrews put to Ms Burnett that he had not been aware of this incident. Her response was fierce: “You were there. You were there when I pulled up with blood all over my shirt, Kevin. Yes, you were”. When it was put again that he was not aware of it, she said, “Well that’s a lie”. She showed the Court a scar on her left cheek. I found her description of this incident and the manner in which she recalled Mr Andrews’ response, thoroughly convincing.
131 Leanne Burnett also described an incident when a “wonky” rack came back on her right foot and left a nasty bruise. She said she raised a concern with Mr Andrews about the rack but nothing was done about it. Janet Reed described an incident when Leanne Burnett cut her foot on a square frame. She said that it was a deep cut and was bleeding. For her part Ms Burnett could not recall an incident when she had cut her foot. I consider that the evidence on this incident is contradictory and not capable of establishing that the event occurred.
132 Tracy Bond gave evidence that on one occasion an employee called Carmel McCarthy had burnt her hand on the ironer. She said Mr Andrews said to Ms McCarthy, “Stop being a sook, and get back to work”.
133 Tracy Bond also described an occasion around August 2007 when she had gone to work and had been vomiting. She said that Mr Andrews would not let her go home and that she later collapsed on the floor. She said that “Angie” had yelled at Mr Andrews to send her home. She said that Mr Andrews had passed her the van keys and said, “I expect you to be here tomorrow”. She said “Angie” and “Leanne” had helped her off the floor and she had driven herself home. Angie Russo could not recollect this incident. Leanne Burnett said she recollected Ms Bond collapsing, that she could not recollect Angie Russo being involved, and that she thought she might have actually driven Tracy Bond home. Given the uncertain evidence about Mr Andrews’ response to Tracy Bond’s collapse, I have disregarded this incident.
134 Bernadina Marriott gave evidence that she was disgusted by having to handle soiled laundry with her hands, and was concerned at the risk of cross-contamination in the laundry by having clean and dirty linen in the same place. She stated, “Andrews didn’t like it when I pointed the possibility of cross contamination. He told me to mind my own business.”
135 Rebecca Douglas stated that during the last three weeks of her employment, she was picking up soiled linen from Wentworth Hospital. She said, “This would really stink, and we had to handle it without gloves. When I complained, Andrews just said ‘toughen up’.”
136 Tracy Bond said in her statement that when she asked where the protection gear was for handling the hospital foul, Mr Andrews would laugh and walk away. She also said that the tea towels from Pizza Hotel were full of mould and food. She said:
“They were always damp cloths. They are disgusting. They smell they are really bad. You have to put your hand in shake them (sic) without any protection gear. I would tell Kevin all the time how bad this was. He would say, ‘You have to do it’. He would never do it.”
137 Several witnesses described how Mr Andrews had taken away the water dispenser. Leanne Burnett said:
“We had a water dispenser in Andrews’ office that we would use when we could. One day it just disappeared. When I asked him where it had gone he told me that Emma had been using too much water, it cost him money when we came to get a drink as we weren’t working, so we had to bring our own drinking water to work after that.”
138 Debbie O’Blein’s evidence was that early on there was a water cooler next to Mr Andrews’ desk. She said:
“The laundry was very hot, and Emma would bring in a couple of water bottles, fill them up, and have them with her throughout the day. The other workers would use a cup when they needed it. One day Andrews said ‘Emma’s drinking too much water, its (sic) costing me a fortune’. The next day it was gone, and we had to bring our own drinking water to work.”
139 Tracy Bond said in her statement that there had been a water dispenser and that Mr Andrews had said to her, “Leanne”, “Angie”, “Emma” and “Debbie”, that they drank too much water and he was going to take it away. Angie Russo said in evidence that she did not recollect this incident or whether there had been a water dispenser there.
140 Kym Seago described an incident involving an employee called “Jodie”. He said that there had been an attempted rape in Irymple, that “Jodie” was working late, that she was concerned as she had seen two male persons nearby, and that she had subsequently contacted police to tell them she thought it had been the attempted rapist. He said that she was really upset about it, and that Mr Andrews would tease her constantly, saying, “You’ll have to work harder, Jodie, there’s a rapist waiting for you”. Sandra Renton also gave evidence about this incident. She said she was at the Laundry that night because she had broken up with partner, had nowhere to sleep and had called Mr Andrews to ask if she could sleep at the Laundry for a night. She said she told Mr Seago and Mr Andrews about “Jodie” being scared. She said from then on, whenever Jovial (Jodie) was working at night, “Andrews would say things to her like ‘the rapist is out there waiting for you’. He said it time and time again, it went on for over a week, and I could see it was really getting to her, she was genuinely scared”.
141 Eva Bolvary gave evidence that sometime in the middle of last year [2008] she heard Mr Andrews talking to somebody in “a funny tone of voice ‘you better be careful, the rapist might be watching you’.” She said that she thought he was “just being an idiot”. She said that later someone told her that there had been an attempted rape in Irymple Avenue and that one of the girls from the Laundry had been involved. She said that there was a girl from the Laundry about this time who had been parking in front of her shop. Ms Bolvary said she had asked the girl if she could move her car and the girl had said that she was scared to park it elsewhere as she would have to walk in the dark. Ms Bolvary’s evidence was that she then offered the girl to park out the back of her shop.
142 Mr Andrews’ evidence on this incident was that Mr Seago had been sitting there one night, that “Jodie” had come in to say there were two men outside and she was a bit worried. He said she asked if she could shut the door and he said, “Yeah fine”, and closed the door.
143 Mr Seago also described an incident where Mr Andrews was away and he and Janet Reed had been receiving phantom phone calls. He said that he told Mr Andrews he had been receiving heaps of them and Mr Andrews just grunted at him. Janet Reed gave evidence about receiving phone calls where no one was on the other end. She said this was in July 2008 and that Mr Andrews was away. She said:
“[T]he calls were distressing for Kym, he had been taken on as a driver, and he was running the laundry. We were really busy, we were working well together. Kym had a lot to think about, and the calls were disrupting his work. By the end of the first week it was obvious something was going on. He would have to drop what he was doing in case the call was an order. We were trying really hard to prove that we could do the job with or without Andrews to secure our future, but it did not matter in the end as we both lost our jobs shortly after this time.”
144 Maureen Catlin described how on 16 August 2008, there was a new girl called “Cheryl” starting. She said they had a disagreement. She put this down to a clash of personalities but also the pressure she was working under. She said that Mr Andrews was drunk and had passed out so she was trying to do his job as well as train “Cheryl” and was flustered. She said that she spoke to Mr Andrews about it and the next day when she was working with “Cheryl” again and having a similar day, he came out and said, “If you two can’t work together and can’t get on then leave”.
145 Leanne Burnett said that the workplace was extremely hot in summer and that they had tried to get Mr Andrews to install air conditioning but it never happened. Tracy Bond also gave evidence that the Laundry was a very hot place to work in the summer and that the only air conditioner was positioned over where Mr Andrews worked. Ms Bond said that she had raised the issue with Mr Andrews on a number of occasions and that his response was “so”.
146 The allegation that the workplace was oppressively hot does not form part of the bullying charge. However I accept that if it is used to demonstrate that when employees approached Mr Andrews with legitimate concerns about conditions in the workplace and they were rebuffed or ignored, this can contribute to an overall pattern of unreasonable behaviour.
Sexual abuse allegations
147 The prosecution stated on a number of occasions that any allegations of sexual abuse or sexual harassment did not form part of the case against Mr Andrews. However, in order to challenge their credibility, the appellant put to a number of witnesses that they had made up sexual abuse allegations against him. Mr Andrews sought to prove that witnesses had initially fabricated sexual abuse allegations and that they had then changed tack to falsify bullying allegations.
148 Several witnesses gave evidence of inappropriate comments being made by Mr Andrews. For instance, Rebecca Douglas stated that during a conversation with Mr Andrews there had been a reference to her having children from different partners. Her evidence was that Mr Andrews said to her, “So you got into 2 stallions. I’m known as a stallion myself. If you get fit enough you’d be a nice little filly”. She said, “He kept going on about being a stallion, he’d had a few girls in his time. During this conversation he had found out that I cut hair, so he asked me if I could come around to where he lived and cut his hair. Just the thought of being by myself with him made me feel ill”.
149 Sandra Renton gave evidence that at one stage Mr Andrews allowed her to sleep in another bed in his motel room when she had separated from her partner. She did not suggest that any sexual overtures were made to her by Mr Andrews.
150 It was put to Patricia Scarman that she had been involved with Kym Seago in trying to persuade staff at the Laundry to make sexual abuse allegations against Mr Andrews. Ms Scarman rejected this but said that the sexual abuse allegations arose because Mr Andrews had “hit on” her mother and that Mr Andrews wore tracky pants and “quite regularly kneaded his doodle in front of everyone”.
151 It is necessary to clearly state that allegations of sexual harassment within the workplace are not the subject of the charge before this court and do not require determination.
Credibility of the witnesses
152 I have sought to categorise the relevant species of bullying as involving verbal abuse, physical intimidation, unpredictability of behaviour and differential treatment of employees, unreasonable workplace rules or expectations and insensitivity to complaints or concerns of employees.
153 In my view the manner in which Mr Andrews is alleged to have behaved is so stark that upon proof of its occurrence, a finding that it constitutes repeated and unreasonable conduct would be inevitable. Indeed such a conclusion would necessarily follow a finding that verbal abuse alone had occurred as alleged.
154 It is essential in the circumstances of this case, where it is alleged by the appellant that witnesses have falsified their statements, to deal at some length with the credibility of the prosecution witnesses.
155 The appellant’s case was clearly that all the witness statements and oral evidence was false, including that of non-employee witnesses Ms Kendrigan, Ms Bolvary, Mr Verstappen and Ms Wilson. Mr Andrews contended that all the witnesses had a motive to lie or were persuaded by those who did, to make false statements. Mr Andrews submitted that the witnesses were all connected, knew one another, collaborated together and were in ongoing contact right up to this court hearing in the furtherance of a conspiracy.
156 Mr Andrews divided the witnesses into four intersecting groups as previously outlined: the Verstappen group; the Bond group; the Seago group; and the Scarman group. He argued that there were certain connections between these groups which tied the respective frauds together and tendered, as Exhibit 65, a handwritten outline of the persons involved in the fraud. As I understand the way it was put, Mr Andrews suggested that Mr Verstappen and his wife, Kirsten Verstappen, had cultivated the respective grievances of Tracy Bond and Kym Seago and encouraged them to make, and organise others to make, false statements. Ms Bond and Mr Seago were also connected, as submitted by Mr Andrews. Ms Burnett belonged to the “Bond group” but was also connected to Ms Reed who was part of the “Seago group”. He submitted that Ms Scarman, whilst pursuing her own agenda, was also connected with Ms Reed, Ms Burnett and Mr Seago in organising false statements.
157 The appellant’s cross-examination of witnesses and his own evidence was focused on a number of particular arguments:
· that witnesses used a “template” in preparing their statements, provided by Tracy Bond;
· that witnesses had been in close contact with one another and coordinated their statements;
· that Tracy Bond, Kym Seago and Janet Reed had particular grievances against him;
· that Robert Verstappen and Patricia Scarman had financial or business motivations for destroying his business;
· inaccuracies of times nominated or descriptions of jobs done, were used to attack the credit and reliability of witnesses in general;
· Tracy Bond, Patricia Scarman and Kym Seago brought family members to work at the Laundry;
· there were alternative explanations for particular incidents described by witnesses.
158 It would be impossible to deal with every detail of the vast and complex fraud enumerated by Mr Andrews. I will focus on those aspects that go to the credibility of prosecution witnesses generally and in particular the assessment of the credibility of major witnesses whom Mr Andrews alleged had perpetrated the conspiracy. It is unnecessary to canvas the evidence of every witness.
Tracy Bond
159 In the case of Tracy Bond, who had an intimate relationship with Mr Andrews – the details and duration of which are not pertinent – and where it is suggested that she was motivated by vengeance, I accept that her evidence must be subjected to particularly close scrutiny. In the absence of corroboration or support, I would be cautious in accepting the evidence of Ms Bond given the undisputed fact of her past personal relationship with Mr Andrews and her allegation that he still owes her money.
160 Mr Andrews submitted that Ms Bond had made a false statement and encouraged other employees to do the same. This was suggested to be because of the breakdown of their relationship or because Mr Andrews owed her money. When cross-examined as to these points, Mr Andrews said that after their relationship ended, things were okay and he thought that he had in fact repaid all money owed. Ms Bond disagreed with Mr Andrews’ characterisation of the duration of their relationship and disputed that they had ever lived together. She said that most of the money that she had loaned the Laundry had been repaid but was clearly angry over money that she maintained was still owed to her.
161 Mr Andrews asked Ms Bond why, if conditions were so bad at the Laundry, her sister and two daughters had come to work at the Laundry. Ms Bond’s evidence was that the “nastiness” had not really started at that point.
162 Mr Verstappen in his evidence said that after August 2007 he received a message on his answering machine from Tracy Bond saying that “she was getting a group of ex-employees to a meeting to bring Kevin and the company down”. He said, “I knew that Bond had lived with Andrews in the past, so had a concern that it might be driven by this”. When asked by the prosecution what he meant by this, he was non-committal but said, “Well, I - I just - yeah, normally when it goes to the court the bottom gets dragged out so that was just, you know - I just let Tracy know if it ever goes to the court it could get ugly”.
163 Mr Andrews relied upon Exhibit 7, an email dictated by Mr Seago and sent, on 23 September 2008, to the Fair Work Ombudsman, and Exhibit 14, a handwritten statement of Leanne Burnett dated 18 September 2008, as proof that Ms Bond had written the statements of Mr Seago and Ms Burnett. The evidence of Mr Seago and Ms Bond was that the contents of the email contained Mr Seago’s words. Likewise, the evidence of Ms Burnett and Ms Bond was that the contents of the handwritten statement were Ms Burnett’s words and were simply dictated to Ms Bond to write. In my view, the existence of these documents does not implicate Ms Bond in any fraudulent manipulation of other witness’ evidence. These documents are capable of being viewed as representations of initial complaint and are consistent with later statements made to WorkSafe by Mr Seago and Ms Burnett.
164 There is no dispute that Ms Bond provided a measure of organisational force to the initial investigation of the WorkSafe case, to the extent that she was involved in contacting employees to enquire whether they had a desire to make a complaint to WorkSafe and in organising a meeting of former and current employees in August or September 2008.
165 Ms Bond gave evidence that the reason why she organised the meeting “is because how he hurt (sic) every single person that was at that workplace … including myself. Someone had to do something …”. A handwritten list of names and phone numbers that Ms Bond had compiled was tendered as Exhibit 2. Mr Andrews relied upon this list to suggest firstly that Ms Bond had organised witnesses to make false allegations and false statements, and secondly that the WorkSafe investigation had relied solely on this list, and in doing so had been biased, one-sided and incompetent. Ms Bond’s evidence was that the list had been compiled at the meeting and included both participants and non-participants whose names were suggested by others. She said, “I wrote the people down at the time, cause I didn’t even know, like I say, most of them”.
166 Mr Andrews argued that witness statements followed a “template”, suggesting that common incidents described by witnesses were evidence of collusion between them. He identified particular words, such as “scary”, “dumbfounded” and “gobsmacked”, as “Tracy Bond words” and suggested that Tracy Bond had masterminded several witnesses’ statements. Mr Andrews conceded in cross-examination that those words did not appear in Ms Bond’s own statements. Mr Andrews’ asserted that Rebecca Douglas’ statement followed a Tracy Bond script. The prosecution relied upon Exhibit AV – notes from Inspector Stephen McNair of a conversation he had with Rebecca Douglas, before taking a formal statement. In my view, those notes demonstrate the independent recollection of Ms Douglas and I reject the proposition that witnesses simply provided WorkSafe with pre-prepared template statements.
200 Mr Andrews’ evidence was that Ms Mazza, Ms Drust and Ms Draper were very good workers. He gave evidence that he had a particularly close relationship with Emma Mazza, that she became his “right-hand girl”, that they were “quite good friends”. He said that she used to stop back after work and tell him her life story. Mr Andrews said he was concerned that other workers might think he favoured Ms Mazza and that one person thought they had a “father-daughter relationship”. He said, “Emma Mazza would be the best ironer one could ever see, beautiful when she did her napkins. So it's just nonsense”. When discussing his relationship with Emma Mazza and Marlene Drust, Mr Andrews’ evidence was, “Well, put it this way, your Honour, if I could say this, in my time at the laundry, of all the good things that happened there, Emma and Marlene Drust were - I don't know how to say it. Something that was achieved and, you know, from where they were as people”.
201 Mr Andrews gave evidence that “basically with me if you didn't get a pay rise there's a problem, because every one that I considered good I always give them a pay rise”, and tendered as Exhibit 50 a handwritten list of employees who had received pay rises. When cross-examined, Mr Andrews agreed that Emma Mazza and Marlene Drust had not received pay rises during the whole period they had worked there and that Leanne Draper had received a pay rise of $1.50.
202 I find Mr Andrews’ account of his relationship with these three women wholly unbelievable. I consider that the evidence of employees that Mr Andrews targeted – Emma Mazza, Marlene Drust and Leanne Draper, in particular, is overwhelming.
Timesheets and hours worked
203 Many days of this hearing were occupied by cross-examination of witnesses as to the hours worked, the accuracy of their timesheets, and dates when they started and finished at the Laundry. Mr Andrews relied upon the timesheets for two purposes, to show on occasions, that people were not working at the Laundry when they said certain events occurred and secondly to demonstrate that employees had engaged in wage fraud.
204 The contention can be illustrated by some select examples.
205 Kym Seago described an event occurring where Mr Andrews came into the Laundry late at night and told Mr Seago to “stuff up the business”; to tell the Verstappens that the Laundry could not function without Mr Andrews. Mr Seago said this happened on the Tuesday before Janet Reed left. Ms Reed agreed that she left the Laundry on Wednesday 23 July 2008. Mr Andrews made much of the fact that Mr Seago’s timesheet showed him finishing at 4.30pm on Tuesday 22 July 2008, in an effort to prove that Mr Seago was not even at the Laundry that evening. Ultimately, Mr Seago gave evidence that he thought this conversation had occurred on the Tuesday of the week before Ms Reed left the Laundry, rather than the night before. Timesheets tendered by the appellant indicate that Mr Seago worked until 9.30pm that evening.
206 It was put to Mr Seago that his hours had doubled over the period of June/July 2008 and then dropped back after 24 July 2008. Mr Andrews suggested that this was because he had a conversation with Mr Seago and told him to record his hours accurately, and the fraud then stopped. Mr Seago rejected this, and gave evidence that those were the hours that he was working. When it was put to Mr Seago that he had falsified his timesheets in May, June and July 2008, Mr Seago’s response was that this was “bullshit”. His partner, Vicki Kendrigan, confirmed that during the period Mr Seago worked at the Laundry, his hours increased, and at one point he was not getting home until 10 or 11 at night. In his own evidence, Mr Andrews stated that it was impossible for Mr Seago to be working so late and that in fact he was off drinking with other employees.
207 When cross-examined, Mr Andrews gave evidence that before sending timesheets through to his accountant, Mr Verstappen, he would “just check ‘em”. He said, “I’d just flick through, just to make sure – I would sit down and read through. I might just flick through ‘em, check them … that the people are there, you know, just check the names”. He said that he had not seen Kym Seago’s timesheets.
208 Mr Andrews also suggested that Cheryl Page, Sandra Renton and Maureen Catlin were falsifying their timesheets, and tendered as Exhibit 66 a handwritten outline of the wage frauds alleged to have been committed.
209 The evidence of Mr Andrews himself was that he was a competent and experienced businessman who had run a number of factories abroad. The evidence reveals that Mr Andrews monitored the operation of his business assiduously. It beggars belief that people would have been paid for hours not worked and that Mr Andrews was not intimately familiar on a daily basis with the operation of the business.
210 In my view the timesheets do not necessarily provide an accurate or complete record of the time that employees worked at the Laundry. Several witnesses gave evidence that they were paid cash for a period, before going “on the books”. Mr Andrews himself gave evidence that people were usually paid cash or “cash cheque” whilst on trial or whilst training. It was put by Mr Andrews to Rebecca Douglas that she started working at the Laundry in November rather than in September 2007 and her timesheets were tendered by Mr Andrews in support of this proposition. Ms Douglas maintained that she started work at the Laundry in September and was paid cash for a period before going on the books. She said that she was paid cash from September to November except for 10 hours for which she was paid on the books in order to prove to SuniTAFE that she was working there. Ms Douglas further gave evidence that even after going on the books, she was paid in cash for hours worked overtime. She stated that there was a separate book in which she would record her overtime hours and that she was paid cash for such work. Ms Marriott was also challenged as to the time she worked at the Laundry and said that she had been paid cash for the first couple of weeks she worked there. Janet Reed said that she began working at the Laundry a couple of days before Christmas 2007, rather than January 2008 as Mr Andrews asserted.
211 When cross-examined, Mr Andrews agreed that a former employee, Kate Milne, whom he had called as a witness to the Magistrates’ Court hearing gave evidence that she had been paid cash for hours worked overtime. When this passage of transcript was put to Mr Andrews, his evidence in the hearing before this Court was, “No. All as I was saying, they'd work back and I'd say put it on the time sheet and they'd go, no, no, no, no, her and, m'mm, Christine, and I'd just say take it out of my pocket, here, buy yourself a meal or something”.
212 There were occasions when the times nominated by witnesses as to when particular incidents occurred may not have been precise. For instance Rebecca Douglas described an incident, when she made a mistake in the pick-up of napkins from Stefano’s, and Mr Andrews screamed at her, as having occurred at the end of January 2008. When cross-examined, she agreed that she had left the Laundry on 19 January 2008. It was put to her that this was not “the end of January”. Ms Douglas said that she could not say exactly when this happened but that the events she described did occur.
213 I do not accept that some imprecision, uncertainty or inaccuracy in identifying specific days when incidents were alleged to have occurred means that the events themselves have been fabricated or inaccurately described. The inability of some witnesses to accurately nominate particular dates is readily explicable when taking into account the lapse of time between when witnesses worked at the Laundry and when they made their statements, and when having regard to the regular and repetitive nature of Mr Andrews’ conduct towards employees. This Court is not concerned with whether employees were paid on the books or off, however, in so far as it goes to show that timesheets do not necessarily reflect the totality of hours worked or the period when their employment began, I accept that some employees were paid cash for periods. I do not accept that witnesses were grossly exaggerating their hours in order to get overpaid.
Workings of the Laundry
214 There was extensive cross-examination of witnesses about the workings of the Laundry, the organisation of workers and division of tasks, the hours of shifts, the role of supervisors and the number of folds to a sheet. This questioning was directed to discrediting the witnesses generally and to demonstrate that they were lying. It must be emphasized that the prosecution is not seeking to prove that there was no formal training on how to operate the laundry machinery, that employees were or were not paid cash in hand, or that some employees worked long hours. To the extent that this evidence affects an evaluation of credibility I consider there was a high level of consistency as between the evidence of witnesses; that whilst some workers had particular “roles”, nearly everyone could undertake a variety of tasks, and workers changed duties. For example, Kym Seago said, “Everyone was multi-skilled and anyone could work any machine, any job”. Debbie O’Blein gave evidence when cross-examined that when she was working as a delivery driver, she was not just doing deliveries, that she would be back separating linen, in the front of the shop doing the ironing, folding up linen, then sometimes might be back out doing deliveries again in the afternoon. Tracy Bond said that staff did not just have the one job; it would depend on how busy they were. She said the only person who only worked on one ironer was Emma Mazza and that others would move from one machine to another.
Assessment of Mr Andrews
215 Mr Andrews gave evidence and was cross-examined. His explanation for the volume and consistency of complaints about his bullying conduct was that he was the victim of a sophisticated conspiracy to fabricate false allegations about his conduct in order to further personal vengeances and to destroy his business and bring him undone. In my view that claim is entirely fanciful. Mr Andrews’ evidence is to be rejected.
216 It was suggested by Mr Andrews that the WorkSafe investigation had been one-sided, prejudiced and incompetently carried out. I consider that assertion to be entirely unfounded.
Assessment of prosecution witnesses
217 The following factors, in my view, support the overall credibility of the prosecution witnesses:
(i) There was overwhelming consistency in accounts of insulting and derogatory words that Mr Andrews used.
(ii) There was overwhelming consistency in the descriptions of Mr Andrews’ behaviour.
(iii) There was substantial corroboration in the description of particular incidents.
(iv) There was no substance to the allegation of an overriding conspiracy – many witnesses did not know one another and had not worked together.
218 I am entirely satisfied that acts of bullying did occur and that Mr Andrews engaged in “repeated, unreasonable behaviour directed towards an employee, or group of employees”. Other than where I have previously stated, I accept the evidence of prosecution witnesses as to bullying conduct.
Risk to psychological health
219 Employees gave consistent evidence of psychological and emotional responses to Mr Andrews’ behaviour experienced in the workplace. Witnesses reported crying at work and at home, fighting with their partner or children, difficulty sleeping, nightmares, anxiety and feeling stressed. Witnesses also gave evidence about observing other employees crying in the workplace, and looking scared or stressed.
220 Kym Seago gave evidence that after leaving the Laundry he had suffered sleeplessness, saying, “My woman holds me when I am bloody crying”. He said that his self-esteem was basically non-existent, that he had been apprehensive about getting another job afterwards and that he had become “very angry at times over the experience and broken promises”. He stated, “The whole experience of working in that environment has left me physically and mentally stressed”.
221 Vicki Kendrigan, gave evidence that during the last few months that her partner, Mr Seago, worked at the Laundry, their relationship struggled. She said that Mr Seago was stressed all the time, was not sleeping and was having nightmares. She said that he was crying a lot and that she was concerned for his emotional and physical health. She said that they did not usually argue but had been arguing and yelling at each other.
222 Sandra Renton said that her relationship suffered because she was working such long hours. She said, “I was under a lot of pressure, I needed to keep working, I actually like the work, but I was mentally and physically shattered. I suffer from depression which is controlled by medication, Andrews knew this, but over the last two weeks the work pressure just kept increasing”. She said that on 23 June 2008 she started crying whilst doing deliveries and could not stop.
223 Bernadina Marriott worked at the Laundry as a driver for a short period of time. Her observations are limited mostly to Mr Andrews’ treatment of other employees. After describing how Mr Andrews used abusive language towards the women who worked in the actual Laundry, she stated, “After Andrews would scream at the women, he would go absolutely ape shit, they would be very subdued, it was a horrible atmosphere”.
224 Ms Marriott spent most of her employment working with Rebecca Douglas. She gave evidence that over those weeks she observed a change in “Rebecca”. She stated:
“She [Rebecca] wanted to leave and didn’t know how to do it. She was actually physically frightened of telling him. I noticed her getting more and more withdrawn over the three weeks I had known her, she had seemed like a happy person when I started, but now she was tense and upset. I saw tears in her eyes a few times, she was clearly stressed.”
225 Rebecca Douglas said:
“I was constantly tired, I was often crying, I was having sleepless nights, but when I could sleep I would have nightmares about Andrews or the job. I was petrified of Andrews, I had seen him go off and it was scary. I couldn’t keep up with my workload, it was one of the worst times of my life.”
226 After the incident when she forgot part of the napkin delivery to Stefano’s, Mr Andrews sent her back with the remainder of the order. She said, “I was shaking when I left, and I cried as soon as I got in the car. I thought I had to quit, but I was too scared, I was petrified of him doing something”. She said she was let off early that day and she rang Kirsty from SuniTAFE in tears. She said that she left the following day.
227 Janet Reed gave evidence that:
“After I left the workplace I was really angry. I felt that I had put [in] more than what was required. I was suffering emotionally. I had nose bleeds that had no reason for occurring. I could not sleep. I would suffer nightmares when falling asleep. I’d fall into tears at the drop of a hat. I’d be doing something and I would start shaking. My temper with the kids became really short.”
228 Patricia Scarman’s evidence was that Mr Andrews’ behaviour had affected her psychological wellbeing and that she was a lot more edgy and cried at home when she had a bad day. She said that her marriage suffered and she was arguing with her husband. She said that on 14 April 2008 she had visited a general practitioner about cold sores on her lips. She believed that this was caused by stress in the workplace and specifically Mr Andrews’ attitude and the way he spoke.
229 Maureen Catlin gave evidence that after Mr Andrews’ behaviour towards her changed, it was “really affecting her”. She said, “I would keep up a stiff upper lip at work but when I got home I couldn’t stop crying. I would even have nightmares about going to work. I went through nights of not sleeping … I was desperately worried that I would lose my job”. She said that at the time of making her statement she still had nightmares. She said that she had had other health issues and the situation had “exasperated (sic) those”.
230 Leanne Burnett spoke of a period of time when she had been at the Laundry some months and was working as a driver:
“At this time, I was starting to feel very stressed. It was taken out on my husband Robert at home … I was very irritable and snappy. I had constant headaches and would often come home from work crying. In the mornings I would feel sick in my stomach at the thought of going to work and seeing Andrews. You never knew what sort of mood he would be in.”
231 Tracy Bond gave evidence that over the last three months of her employment she was in tears every day. Leanne Burnett gave evidence that she would go out the back and find Ms Bond in tears. Debbie O’Blein gave evidence that she saw Ms Bond in tears more than two or three times a week but not every day. Ms Bond stated that she found herself “constantly crying both at home and work”. She said, “I had no self esteem left. I felt poorly about myself. I couldn’t sleep or couldn’t eat. I found myself locked at home. I took the anger and frustration out on my two girls.”
232 Angie Russo gave evidence that “After the first few weeks working there was really starting to upset me. I would come home stressed and upset about what had happened and how the girls were treated”. She also stated, “It was like walking on egg shells, you never knew what would set him off. He was very scary when he lost his temper, you were too afraid to look or speak, you just put your head down and continued working”.
233 Debbie O’Blein described how after Mr Andrews had yelled at her one time, she had tears in her eyes and had to walk off. She said she was having trouble with her relationship by the end of her employment at the Laundry. She said she was tense because of the surroundings at work, and the pressure she was under.
234 Witnesses described observing the reactions of other employees in the workplace. For instance, Leanne Burnett gave evidence that Mr Andrews would call Emma Mazza a “stupid wog” and “useless”. She said:
“He would stand over her yelling abuse. He really used to go for her. I’ve never seen anyone so scared, she was petrified of him. She used to do everything for him as she was scared of losing her job. She was always in tears, if she did something wrong she started to cry.”
235 Janet Reed gave evidence that:
“I would watch the girls quite literally jump away from Kevin when he yelled out [at] them. There was a girl there called Emma. She used to look absolutely petrified. I would see Emma crying, tears streaming from her eyes on numerous occasions after being yelled at and screamed at by Kevin. I felt ropable after seeing what happened to Emma.”
236 Eva Bolvary described employees from the Laundry coming into her shop crying and shaking. She said the girls would tell her they needed the work, and that they were petrified.
237 Angie Russo gave evidence about an incident when “Emma” put napkins through the big ironing press and two of the napkins got stuck. She said, “Emma was really frightened, she was doing her best to get them out. She was really scared of what Kevin would do to her if he found out”. Leanne Burnett also described an incident where “Emma” got napkins stuck in the big ironer. She said, “When they got stuck I found her behind the ironer sobbing, Deb and I tried to get them out before Andrews came out. I’ve never seen anyone so scared, she was sobbing”.
238 In this case there is no need for me to find that a psychological injury eventuated. The charge is premised on a failure to provide a safe work environment, and the presentation of a risk to the psychological health of employees at the Laundry.
239 The prosecution relied upon evidence from Mr Andrew Carnegie, a consultant psychologist, who had reviewed the witness statements. The appellant challenged the admissibility of the evidence, arguing firstly that Mr Carnegie had not himself interviewed the witnesses so was unable to assess them adequately; and, secondly, that the conclusion of whether a risk to psychological health was present was capable of being decided upon by a lay person.
240 I consider that I am well able to form a view as to whether the pattern of Mr Andrews’ behaviour constituted a risk to the psychological health of employees. In my view, in the circumstances of this case, no special skill or knowledge is necessary to come to a conclusion on this issue. I also note that I have had the benefit of being able to closely observe witnesses over many days of evidence including the difficulties encountered by some witnesses in reliving past events.
241 However, if it is necessary to rely upon the opinion of an expert in finding that a risk to psychological health was present, then I find Mr Carnegie a suitably qualified expert capable of giving such an opinion. Mr Carnegie described this as “one of the most extreme cases I have ever reviewed”. He opined that, overall, “the described work environment within the Mallee Laundry and Linen Services and the reported inappropriate behaviour of Mr Andrews posed an unnecessary, unreasonable and very real risk to the psychological health of workers”.
242 In reviewing the evidence of witnesses, certain features of the behaviour that they recount are common: the unpredictability of Mr Andrews’ behaviour; verbal abuse; physical intimidation; unnecessary or excessive criticism of performance; ridicule; witnessing others treated in the same or similar way; insecurity of employment.
243 In my view, these factors would, and on the evidence did, all contribute to a high level of stress, anxiety, worry, fear and low self-esteem, that over a sustained period of time risked psychological injury.
244 I am therefore satisfied that the repeated and unreasonable bullying behaviour of Mr Andrews did pose a risk to the psychological health of employees at Mallee Laundry and Linen Services within the charged period.
The liability of Mr Andrews
245 Some of Mr Andrews’ cross-examination was intended to suggest that he was not the person in effective charge of the Laundry at particular periods. For example, it was put to several witnesses that Tracy Bond was responsible for hiring particular people, for phoning in hours worked by employees to the accountant, for delegating tasks and the general day-to-day running of the Laundry. It was also put to witnesses that at various times, particular people were “supervisors” at the Laundry. This was directed to establishing that Mr Andrews was not responsible for deficiencies such as a lack of adequate training, irregular pay arrangements, long hours, conflict between employees and confusion as to rostering.
246 Janet Reed gave evidence that, “The supervisors gave us instructions but Mr Andrews constantly walked through the finishing room and made remarks randomly … to the girls working the machines”.
247 Mr Andrews also gave evidence that, at particular times throughout the charge period, he was not at the business as he was working on setting up a laundry at Wentworth, and later at Buronga. He said that from February to May 2007 he was hardly at the business. When cross-examined, Ms Gwynn asked Mr Andrews whether he was at the business in June and July 2007. Mr Andrews’ reply was, “I was there at the business all the time. You know, when I say ‘all the time’, in and out. I’m trying to get the Wentworth thing going and I’m in and out”.
248 When cross-examined as to his reaction when Kirsten Verstappen organised for a smoko room to be set up, Mr Andrews’ evidence was that he was upset because they had not cleared it with him “Because they had no authority to do it, they should have spoken to me”.
249 The evidence of WorkSafe witnesses was that even when Mr Andrews was absent from the business, he was still there, and he was still the boss. Kym Seago’s evidence was that around June/July 2008, Mr Andrews was away from work a lot. When cross-examined, Mr Seago’s evidence was that “On the days Kevin wasn't there he would come in 6.30, seven o'clock onwards and have his little rant. On the days he was there, yeah, this was everyday occurrence”. When asked to clarify what was an everyday occurrence, Mr Seago said, “Kevin's behaviour towards women, name calling. … The common one was you fucking idiots, that was quite common that comment. Yeah, it's just along those lines … ”.
250 Debbie O’Blein gave evidence that she had been told by Mr Andrews to speak to Tracy Bond when she had any questions, as she was the boss. However, she recounted an occasion when she was folding linen out the front and went to ask Ms Bond a question. She said:
“As I walked up to her Andrews came round and stood next to Tracy. He said something to me, and I said, ‘Just a minute Kevin, I’m asking Tracy something’ Andrews yelled at me ‘When I talk to you, you listen, I’m the one with the fucking money, I pay your wages’.”
251 Debbie O’Blein worked at the Laundry for approximately six months from about May 2007. When cross-examined, Ms O’Blein disagreed with the suggestion that Mr Andrews was not as involved in the Laundry as she had claimed.
252 Cheryl Page gave evidence that Mr Andrews was at the Laundry; that he was in and out all the time.
253 Russell French gave evidence that Mr Andrews was the one who employed him and was ultimately in charge of the Laundry and that he reported to both Ms Bond and Mr Andrews.
254 I consider that the question of whether Mr Andrews appointed “supervisors” or “assistant managers” or even “managers” does not detract from the overall responsibility and ultimate authority that he had over the business and his employees.
255 I have no difficulty in finding that in those circumstances he can be considered a proper officer for the purposes of s144 of the Act and was therefore in a position of having the responsibility to ensure the health and safety of employees.
Reasonable steps
256 The prosecution must prove that Mr Andrews, as the appropriate officer of Mallee Laundry and Linen Services, failed to take reasonable steps to ensure the health and safety of employees – in this case the psychological health of employees.
257 The case is put on the basis that Mr Andrews engaged in bullying behaviour and that Mallee Laundry and Linen Services did not have systems and procedures in place to deal with workplace bullying.
258 The evidence of WorkSafe inspector, Malcolm Randall, was that there were no policies or procedures in place. The workplace was inspected in late 2008, and a number of Improvement Notices were issued. Exhibits AF to AL document this process. On 15 January 2009, Mr Randall visited Mallee Laundry and Linen Services. He was provided with a document, entitled “Mallee Laundry and Linen Services Pty Ltd Workplace Bullying”, dated 4 December 2008, signed by Kevin Andrews and tendered as Exhibit AL. Mr Randall’s stated that upon receipt of the document he formed the opinion that this document adequately addressed workplace bullying.
259 Mr Andrews agreed that before that date, “technically” there were no policies or procedures in the workplace to deal with bullying. When cross-examined on this point, Mr Andrews said it has “sort of become the flavour of the month, hasn't it, this bullying, in the last couple of years”. While I would not put it in such terms, it is certainly the case that recognition of the devastating effect that bullying can have has grown in recent years. This case is a stark example of why legislative protection is so critically important to protect employees against extreme examples of workplace bullying.
260 I am satisfied that throughout the charged period, there were no systems or procedures in place at Mallee Laundry and Linen Services to deal with workplace bullying and that Mr Andrews was the appropriate person to have implemented those procedures.
261 Being the sole director, manager and undisputed “boss” of the Laundry, the existence of workplace bullying procedures is likely to have had little impact on Mr Andrews’ behaviour, other than perhaps assisting employees in recognising his behaviour as “bullying”, or providing them with information as to which external authorities to contact for help.
262 As the person directly responsible for the repeated and unreasonable bullying behaviour right throughout the charge period, the obvious course, to alleviate the risk to psychological health, was that Mr Andrews cease behaving in such a manner. This did not happen.
263 I am satisfied that Mr Andrews took no reasonable steps to remove the risk posed to employees.
Finding
264 In my view, Mr Andrews’ conduct represents a high water mark of denigration, humiliation and verbal abuse of employees.
265 Debbie O’Blein stated during the course of her evidence, “I thought asparagus cutting was hard, but it was nothing to this”. Angie Russo stated that the Laundry reminded her of a “third world sweat shop”. Bernadina Marriott stated that when she began working for Mr Andrews she was desperate for work: “If you remember, at the time, I had dirty shorts and a dirty T-shirt on, and that was the only clothes that I owned to my name, and as I said, I was very grateful and I still am”. Ms Marriott said, “I’ve seen the best and worst of people over the years but Andrews takes the cake. If he treated his workers with respect he would have a gold mine. I have never seen any employer treat people like that. I would never recommend anybody work there.”
266 This is not a case where it could be said that laundry workers had overwrought sensibilities and an excessive sense of entitlement. On the contrary, workers presented as remarkably resilient and were for the most part prepared to undertake, and used to undertaking, hard physical labour, uncomplainingly. They were treated shamefully.
267 I find Mr Andrews guilty of the charge.
Orders
1 The orders imposed in the Magistrates’ Court of Victoria on 5 December 2012 are set aside.
2 On the charge of failure to provide a safe working environment, Kevin Andrews is convicted and charged $50,000.00.
3 Order that Kevin Andrews pay costs in the sum of $129,181.38 to the Victorian Workcover Authority, for the prosecution of this appeal.
4 Order that Kevin Andrews pay costs in the sum of $50,000.00 to the Victorian Workcover Authority, for the prosecution of the hearing in the Magistrates’ Court.
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