Barnes v Hatch Associates Pty Ltd
[2015] FCCA 3375
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARNES v HATCH ASSOCIATES PTY LTD | [2015] FCCA 3375 |
| Catchwords: INDUSTRIAL LAW – Adverse action – rebuttal of presumption – what constitutes “alters the position of the employee to the employee’s prejudice” – compensation assessed but not awarded – application dismissed. |
| Legislation: Fair Work Act 2009, ss.336, 340, 341,342, 360, 361, 370(2) and 545(2)(b) |
| Shea v Truenergy Services Pty Ltd [2014] FCA 271 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 |
| Applicant: | ANTHONY JOSEPH BARNES |
| Respondent: | HATCH ASSOCIATES PTY LTD |
| File Number: | BRG 1036 of 2012 |
| Judgment of: | Judge Vasta |
| Hearing dates: | 13,14,15,16 and 27 July 2015 22 September 2015 |
| Date of Last Submission: | 3 December 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr K. Watson |
| Solicitors for the Applicant: | Slater & Gordon Lawyers |
| Counsel for the Respondent: | Mr L. Copley |
| Solicitors for the Respondent: | Milner Lawyers |
ORDERS
The Application filed on 27 November 2012 be dismissed.
Any application for costs be listed for hearing at 10:00am on 5 February 2016 in the Federal Circuit Court of Australia sitting at Brisbane.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1036 of 2012
| ANTHONY JOSEPH BARNES |
Applicant
And
| HATCH ASSOCIATES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a declaration that the Respondent, Hatch Pty Ltd has, by dismissing the Applicant, contravened s.340(1)(a) (ii) or s.340(1)(a)(iii) or s.340(1)(b) of the Fair Work Act 2009 (Cth) (“ the FW Act”).
The Applicant also asks for a declaration that the Respondent, by accepting the Applicant’s request to be removed from the Thick Seam Mining Project (“TSM project”) on or about 3 August 2012 and subsequently removing him from that project, contravened those same sections of the FW Act.
In addition to these two declarations, the Applicant seeks an order pursuant to s.545(2)(b) of the FW Act that the Respondent pay compensation to the Applicant as a result of the loss he has suffered because of the Respondent’s contraventions of the FW Act.
In short compass, the Applicant, Anthony Joseph Barnes, joined the Respondent company in February 2012. He became the project manager for the TSM project in March 2012. In that role, he answered to three other people; Vanessa Visman, Peter Brown, and David Eutick.
The Applicant alleges that he made thirteen complaints to the Respondent, in effect, alleging that he was subject to bullying, harassing and isolating behaviour that was calculated to demean the Applicant. In particular, he made complaints against Ms Visman. He alleges that on these complaints, there was no action taken by the Respondent. The Applicant requested that he be moved from the TSM project. He began to initiate a grievance procedure against Ms Visman. Two weeks after his departure from the TSM project, the Applicant was made redundant by the Respondent.
The Applicant claims that his redundancy was an adverse action by the Respondent and this action was caused by his exercise of a workplace right. The Applicant also claims that the Respondent should not have acceded to his request to be removed from the TSM project without informing him that there would be no other work for him to do, as this was to his prejudice.
As a result of s.361 of the FW Act, the onus is on the Respondent to show that the removal of the Applicant from the TSM project and the dismissal of the Applicant was not as a result of his exercising a workplace right.
The Applicant alleges that the adverse action taken by the Respondent has resulted in him suffering a psychiatric injury, namely, a major depressive illness. Alternatively, he alleges that the adverse action has contributed to the psychiatric condition that he now has.
That condition presently precludes him from working. The condition will not improve in the short term. The Applicant seeks compensation for the adverse action.
The Applicant’s Time in the Army
The Applicant was born on 27 September 1981. In 2000, the Applicant joined the army and studied a Bachelor of Arts degree through the University of New South Wales. He was based in the Australian Defence Force Academy (“ADFA”) as an officer cadet for the three years of his studies.
He graduated from ADFA at the end of 2002 and then attended the Royal Military College (Duntroon) in 2003. After successfully completing this training, the Applicant began work in the Intelligence Corps in January 2004. His first post was in an infantry division where he remained until December 2005. During that time he was at one stage deployed to Papua New Guinea.
During the last six months of that first posting, the Applicant was given intensive intelligence training. From 2006, the Applicant was allocated to full-time intelligence operations and was posted to Darwin. During the next four years, the Applicant was deployed to Indonesia, Papua New Guinea, Iraq, Kuwait, East Timor and Afghanistan. He saw “war like” operations in Iraq and Afghanistan.
He was deployed in Iraq near the Baghdad airport where he worked with other allied intelligence officers overviewing the Middle East region. During this time he made contacts with private agencies as well. The Applicant admitted that he had seen people in distress and had seen death during this time.
In late December 2007, the Applicant was deployed to Kabul in Afghanistan. He lived in the suburbs of the capital and, because of this, made sure that his own movements were such that he would not attract attention, even though he was in an Australian Army uniform. The Applicant testified to an incident at a hotel in Kabul where the Taliban entered and began killing guests of the hotel. He had to be part of the team that extracted the Australian ambassador who was in the hotel.
In the course of his evidence, the Applicant was nonchalant about what he had seen and experienced in these war zones. He said that death and distress was “par for the course”. He said that what he had seen and experienced did not affect him at all.
The Applicant Post Army
The Applicant testified that he was not happy with the Army as they had mandated his deployment to East Timor at a time that he did not want to travel to that place. He was discharged in December 2009 however this did not take effect until March 2010. In late December 2009, the Applicant began working with Aegis, a private company working with the American military in Iraq. In this job, he was often on the ground and looking at projects. He did have to carry a firearm with him.
His contract with Aegis finished around February 2011. He then took some time off and visited a friend who was doing “military type” work in Southeast Asia. After this, the Applicant backpacked around Southeast Asia. The Applicant was then employed by Anglo-American and, in the role he had there, the Applicant prepared operational schedules. He left Anglo-American in February 2012 when he joined the Respondent company.
The Applicant’s Time with the Respondent
The Applicant joined the Respondent in February 2012. On 24 January 2012, the Applicant signed his contract of employment. The position was that of project manager within the Project Delivery Group (PDG) project management team. The Applicant was allocated to the TSM project soon after he began his employment. This project was, in a manner of speaking, set up to support BHP Billiton (BMA) in the setting up of a “wall” of support machinery for an underground mining project.
Ms Vanessa Visman was the technical manager for Operation Readiness projects being conducted or negotiated by the Respondent with BHP Billiton. The Applicant believed her position to be that of Technical leader for strategic asset management services (SAMS) during this project. As such she was in a more senior position to that of the Applicant. She was overseeing at least five other projects at this time. The Applicant had to deal with Ms Visman on an almost daily basis whilst working on the TSM project. The Applicant also reported to Mr Peter Brown and Mr David Eutick whilst project manager.
The Applicant dealt with Mr Ian Glazebrook and his assistant Ms Natalie Crone, from BHP Billiton, for the duration of the project. It must be noted that the TSM project was, at all stages in which the Applicant was involved, still comprised of a series of negotiations and plans. This is because, until BHP Billiton sign a purchase order (PO), there is no agreement as to what the Respondent will do and what BHP Billiton will pay. The behaviour of the Applicant and other employees of the Respondent during this period must be seen in this light.
The Applicant, in his statement of claim, says that:
“During the course of his employment with the Respondent, the Applicant was subjected to workplace bullying, harassment by Ms Visman. This bullying and harassment commenced in April 2012 and continued through until the conclusion of his employment with the Respondent on 20 August 2012”.
The Applicant also says:
“Ms Visman’s bullying and harassing behaviour included typically, but was not limited to, repetitious isolation of the Applicant in his role as the TSM project manager, rude and abrasive interactions towards the Applicant, as well as deliberately tardy or poor support for the Applicant, in her role as the S A MS technical lead to the project.”
As previously mentioned, the Respondent does not agree with the categorisation of Ms Visman as SAMS technical lead.
The Applicant makes thirteen distinct complaints about his treatment.
The First Complaint
The first complaint stems from a meeting that was held on 3 April 2012. In short compass, Mr Glazebrook had asked for a meeting on 3 April. Ms Visman had clearance at the BHP building because of her extensive contact with that company. The Applicant claims that Ms Visman went straight to a meeting room, took it over, told the Applicant to go and get Mr Glazebrook and then behaved in an unprofessional manner during the meeting. He said that Ms Visman behaved in a demeaning and rude manner towards him and constantly cut him off or talked over him.
The Applicant claims that Ms Visman displayed what he called “an appalling lack of even the most basic knowledge of underground coal mining operations”. He was also critical of the standard of attire worn by Ms Visman to this meeting, in that it was far too casual.
The Applicant says that after the meeting he offered Ms Visman respectful comments on what could have been done better. The Applicant says that Ms Visman became indignant and said that she knew how these people worked and that the Applicant needed to follow her lead as she knows how they do business.
On 4 April 2012, the Applicant approached David Eutick to make a complaint about the conduct of the Ms Visman at the meeting the day before. He says that he wanted to seek a resolution to such behaviour. The Applicant said that he made his complaint to Mr Eutick who replied that the Applicant was “not the first” to have complained about this type of behaviour from Ms Visman and that Ms Visman has a long history of behaviour like this. The Applicant says that Mr Eutick said that Ms Visman had lost work for the Respondent in the past because of her behaviour and that he would speak to her about her behavioural issues.
The Applicant says that there was no action taken by the Respondent in relation to this complaint and that Mr Eutick did not ever indicate to the Applicant that he had counselled Ms Visman or taken any active steps to monitor her behaviour.
Incidents Post the First Complaint
The Applicant says that over the course of the period from 3 April 2012 to 24 May 2012, the poor treatment and approach by Ms Visman towards the Applicant continued to escalate into obvious and consistent bullying and harassing behaviour. The Applicant went on to particularise this behaviour by reference to a number of emails.
The Applicant also detailed a threat made by Ms Visman on 19 April 2012. The Applicant contends that Mr Visman said “if you really want to piss people off in this company, especially me or Peter Brown, continue to put complaints in writing.”
The Applicant said that it was unmistakable, from the tone and demeanour of Ms Visman, that this was a threat and that there would be repercussions for him if he continued to document failings on her behalf or formalise complaints.
The Second Complaint
On 6 July 2012, the Applicant attended a meeting with Mr Eutick, Mr Brown and Ms Gardner. The Applicant says that he raised multiple issues regarding the conduct of Ms Visman. These issues were:-
a)Ms Visman’s repetitiously declining the Applicant’s verbal and electronic requests for meetings to discuss the TSM project;
b)Ms Visman not acknowledging the Applicant in the office;
c)When Ms Visman did engage with the Applicant, she was dismissive, curt and rude;
d)Ms Visman did not respond to any of the Applicant’s requests for projects support or, on the occasions that she did, she responded in a deliberately tardy manner and only to the bare minimum required;
e)Ms Visman had isolated the Applicant from BHP portfolio meetings to which all other project managers were invited as a matter of course;
f)Ms Visman did not treat the Applicant to the same standard that she treated other project managers.
The Applicant says that Mr Brown and Mr Eutick acknowledged the poor behaviour of Ms Visman and undertook to counsel her about her conduct over the coming week. He complains that no action was taken by the Respondent in relation to this complaint.
The Third Complaint
On 11 July 2012, the Applicant claims that he made a verbal request to Mr Brown to discuss the Applicant’s ongoing issues with Ms Visman. In making that request, the Applicant stated that:-
a)Ms Visman was continuing to isolate the Applicant in his role as the TSM project manager;
b)Ms Visman had been tasking other project managers to collate information for her about the TSM project without his knowledge;
c)He wanted a resolution to the conduct of Ms Visman.
The Fourth Complaint
On 12 July 2012 the Applicant met with Mr Brown. In that meeting, the Applicant claims that he told Mr Brown that:-
a)Ms Visman was tasking BHP and other personnel with collecting information about TSM without the Applicant’s knowledge and those actions were aggravating BHP and undermining the Applicant’s position as the TSM project manager;
b)BHP was becoming perturbed at expending effort to collect information for the Applicant when that information had already been sourced by Ms Visman through other channels outside of the previously agreed communications plan;
c)BHP was becoming perturbed at receiving multiple requests for multiple employees of the Respondent for the same information;
d)The conduct of Ms Visman was having an adverse impact on the Applicant’s client relationship and the Respondent’s reputation within BHP Billiton;
e)The Applicant was feeling increasingly isolated from the TSM project and poorly treated by Ms Visman;
f)That the co-workers of the Applicant were openly discussing their confusion as to why Ms Visman was tasking them with TSM oriented work and why she would not talk to the Applicant about the TSM project;
g)That the Applicant was feeling intimidated and coerced by Ms Visman into acting in what the Applicant believed to be an illegal and unethical way in the Respondent’s engagement with BHP Billiton;
h)The Applicant wanted Mr Brown to counsel Ms Visman about her conduct;
i)He wanted Ms Visman to be instructed to cease isolating the Applicant from the TSM project and matters directly relevant to it;
j)He wanted Ms Visman to be instructed to cease tasking other staff with TSM related work without the Applicant’s knowledge or approval;
k)He wanted Mr Brown to raise with Mr Ian Skipper (from BHP Billiton) the Respondent’s intention to engage Mr Evan Westlake as an advisor on the TSM project; and
l)That Ms Visman be instructed to provide to the Applicant the same level of project support enjoyed by other project managers.
The Applicant says that no action was taken by the Respondent in relation to the Third or Fourth complaint.
The Fifth Complaint
On 16 July 2012, the Applicant met with Mr Brown and Mr Eutick to discuss the Applicant’s ongoing issues with Ms Visman. The Applicant claims that this was a prearranged follow-up to a previous meeting (the meeting that constituted the second complaint). The Applicant says that this meeting was to discuss what action Mr Brown and Mr Eutick had taken to curb the behaviour of Ms Visman or what measures had been put in place to monitor her ongoing behaviour.
In that meeting the Applicant stated to Mr Brown and Mr Eutick that:-
a)Ms Visman had continued to systematically isolate the Applicant in his role as the TSM project manager;
b)Ms Visman had been tasking other staff with the collation of TSM information without his knowledge or approval;
c)Ms Visman had lied on several occasions to the Applicant about when and how her aspects of the TSM project should or would be set up;
d)Ms Visman had continued to ignore his request for support unless absolutely pressed to do so;
e)He was continuing to feel bullied by the actions of Ms Visman in systematically isolating him from key project decisions or information;
f)He informed Mr Brown and Mr Eutick that, on 19 April 2012, during a motor vehicle journey back to the Respondent’s premises from the BHP Billiton hub, Ms Visman said to the Applicant words to the effect “if you really want to piss people off in this company especially me or Mr Brown continue to put complaints in writing”;
g)The way to resolve the concerns that the Applicant had in relation to the conduct of Ms Visman was to formally counsel her and direct her to immediately stop treating the Applicant in the manner that she was.
The Applicant says that Mr Brown and Mr Eutick stated that they had not counselled Ms Visman as they had promised to in the previous meeting (the meeting on 6 July). He says that Mr Brown and Mr Eutick undertook to formally counsel Ms Visman in the next few days. The Applicant says that there was no action taken by the Respondent in relation to this complaint.
The Sixth Complaint
On 23 July 2012 the Applicant met with Mr Brown to discuss the continued poor behaviour of Ms Visman during a client kick off meeting held on 20 July 2012. During this meeting the Applicant says that he stated to Mr Brown that:-
a)The conduct of Ms Visman during the client meeting was rude and disrespectful to both the client and the Applicant;
b)During the course of the meeting Ms Visman proceeded to flutter in and out of the meeting and when she was present she simply sat back from the table in order to text and take phone calls despite the previous instructions of Mr Eutick that mobile phones were not acceptable in such meetings;
c)At the conclusion of the client meeting, several people approached the Applicant and provided unprompted remarks about the appalling behaviour and lack of knowledge of Ms Visman;
d)That despite requests to provide support to the Applicant for the kick-off meeting or to make a presentation at it, Ms Visman declined to assist the Applicant;
e)Ms Visman continued to display total contempt for the Applicant as a project manager and that she did not want to actively assist the Applicant in any way;
f)The treatment by Ms Visman of the Applicant in comparison to other project managers within the BHP portfolio was exceptionally poor and that he did not believe that Ms Visman genuinely wanted him to succeed as a project manager and was being repeatedly obstructionist, dismissive or evasive in her approach to him;
g)That the Applicant felt continually bullied an isolated by Ms Visman on the TSM project;
h)That the Applicant wanted Ms Visman formally counselled about her behaviour towards him, removed from input into the TSM project or that Ms Visman be banned from any contact with BHP so as to preserve a positive relationship between the Respondent and BHP.
The Applicant says that Mr Brown refused to have Ms Visman removed from input in relation to the TSM project or to have Ms Visman banned from any contact with BHP but did agree to counsel Ms Visman about her poor behaviour and treatment of the Applicant. The Applicant maintains that this was not done.
The Seventh Complaint
On 1 August 2012, the Applicant had a meeting with Ms Els. During that meeting the Applicant stated to Ms Els that:-
a)Ms Visman had no knowledge of underground coal mining and has been embarrassing in her technical knowledge of the TSM project in front of BHP;
b)Ms Visman had repetitiously ignored his requests for support or suggestions about the execution of the TSM project;
c)The current problems that were being experienced with the TSM project were a direct result of the tardy support by Ms Visman for the TSM project or poor technical execution of aspects of the TSM project;
d)Ms Visman was planning to lie about the true nature of TSM project proposal estimate shortfalls for which Ms Visman was responsible during a meeting Ms Visman had scheduled with Ms Els later that same afternoon;
e)Ms Visman and Mr Brown were continually committing to projects without any technical risk review of the Respondent’s ability to deliver the TSM project or without any resource risk review to ensure the Respondent had adequate personnel to deliver the TSM project.
The Applicant says that Ms Els informed the Applicant that she understood what the Applicant was saying and that she would look into it herself.
The Eighth Complaint
On 2 August 2012 at 3:06pm, following the meeting the previous day with Ms Els, the Applicant sent an email to Ms Els requesting that he wished to be removed from the TSM project due to his unabated issues with Ms Visman. That email reads
“From: Barnes, Anthony
Sent: Thursday, 2 August 2012 3:06PM
To: Els, Jeanne
Subject: Removal from TSM
Afternoon Jeanne,
I would like to formally request that I be removed as the PM from the TSM project. Despite my requests to Vanessa to be included, I have been excluded from all resource discussions and meetings today. Vanessa has subsequently proceeded to independently decide the key project positions, method of package delivery and sequencing of deliverables without any input from myself. Consequently I feel this has undermined my position as PM and that I no longer have positive control or input into how the project will be conducted. I am bitterly disappointed at this outcome but don’t feel that I can proceed with this project without the support of Vanessa as Technical Lead or respect for my position as the nominated PM of the project.
I have concluded the project estimate and proposal for Vanessa’s final review and release. I will be concluding work for the day now, but remain available on my mobile should you wish to discuss these matters in more detail
Kind Regards
Anthony
Anthony Barnes
Project Manager…:”
Ms Els replied the next day that following discussions with the project leadership team, the Respondent agreed to release him from the TSM project.
“From: Els, Jeanne
Sent: Friday, 3 August 2012 8:46am
To: Barnes, Anthony
Subject: RE: Removal from TSM
Hi Anthony,
After careful consideration, and discussion with the project leadership team, we agree to release you from TSM. David will be in touch with you to discuss the handover procedures.
Kind Regards
Jeanne.”
Those two emails are Attachment “AJB 66” to Exhibit 1 in these proceedings (the affidavit of the Applicant filed 16 January 2014).
The Ninth Complaint
On 3 August 2012, the Applicant contacted Ms Els via email in response. That email is Attachment “AJB 67” to Exhibit 1 in these proceedings and says as following:-
“From: Barnes, Anthony
Sent: Friday, 3 August 2012 11:25AM
To: Els, Jeanne
Subject: Re: Removal from TSM
Morning Jeanne,
Thank you for your response below. As previously discussed I am bitterly disappointed that it has come to this. I have repeated(sic) raised significant professional and technical concerns about Vanessa with both Peter and David, but to no avail. Her total isolation of me from all decision making yesterday was the final straw for me. I feel as though the leadership within SAMS has let me down. I would have been more than happy to continue as the PM had Peter Brown been able to provide some clarification around roles and responsibilities as I had requested. Without this support and guidance though the project was likely to continue suffering problems unless either Vanessa or I stepped aside. Please accept my apology for the awkward position this has placed both yourself, the client and the project in. Sadly this could have all been avoided with a little leadership and action from David and Peter earlier in the peace.
Kind Regards
Anthony.”
The Applicant claims that on the evening of 2 August 2012, he was contacted via phone by Mr Eutick and instructed not to attend the Brisbane office the next day (3 August 2012). The Applicant says that he told Mr Eutick that he was happy to present to the office as normal and, if necessary, to elaborate on his reasons for requesting removal from the TSM project. The Applicant says that Mr Eutick stated that, under no circumstance, was the Applicant to come into the office that day and it was to be taken as a special leave day. The Applicant did not attend work that day.
The Tenth Complaint
On 6 August 2012, the Applicant sent an email to Ms Gardner (a person working in the HR section of the Respondent). He sought advice as to how he could lodge a complaint against Ms Visman. That email is Attachment “AJB 73” to Exhibit 1 in these proceedings the email reads as follows:-
“From: Barnes, Anthony
Sent: Monday, 6 August 2012 11:25AM
To: Gardner, Cassandra (Armagnacq)
Subject: Harassment/Bullying
Morning Cassy,
If possible could we please meet at some stage today to discuss how I can lodge a harassment and bullying claim against Vanessa Visman in relation to the recent events that have unfolded? I’d sincerely appreciate your advice.
Kind Regards
Anthony
From: Gardner, Cassandra (Armagnacq)
Sent: Monday, 6 August 2012 10:15AM
To: Barnes, Anthony
Subject: RE: Harassment/ Bullying
Attachments: Hatch_Workplace_Dispute_and_Greivance_Resolution_Procedure.pdf.
Hi Anthony
I have attached the Grievance Resolution Procedure. DO you want to have a read and we can catch up this afternoon and go through any questions you may have?
We can meet at my desk at 3pm and find a free meeting room if this time suits you.
Thanks
Cassy Gardner (nee Armagnacq)
HR Advisor
…”
Later that day, the Applicant met with Ms Gardner. In that meeting he says that he said to Ms Gardner:-
a)That he had raised repetitious issues about Ms Visman with Mr Eutick and Mr Brown on multiple occasions both formally and informally but neither of those men had taken the Applicant’s complaints seriously and neither had taken any action to curb the behaviour of Ms Visman.
b)That he felt he had become totally and systematically isolated from the TSM project by Ms Visman and that her behaviour was unlikely to cease;
c)That he felt in order to escape the behaviour of Ms Visman he had no other alternative but to request that he be removed from the TSM project;
d)That he felt horribly let down by both Mr Eutick and Mr Brown especially given that both were aware of Ms Visman being previously referred to counselling for poor behaviour in 2011;
e)That the Applicant had been informed by multiple colleagues that Mr Eutick was reluctant to raise any complaints about Ms Visman with Ms Els because of the personal admiration Ms Els had of Ms Visman and their long-standing friendship from their time together at the Wollongong office of the Respondent;
f)That the reluctance of senior staff such as Mr Eutick to raise any issues about Ms Visman with Ms Els had led to Ms Visman being commonly, but privately, referred to around the office as “Teflon” due to her ability to avoid any criticism about her poor conduct both on the TSM and other projects within the BHP portfolio;
g)That the Applicant was aghast at the inaction of Mr Eutick in relation to the multiple complaints the Applicant had raised with Mr Eutick especially given the public comments of Mr Eutick about the generally poor demeanour behaviour of Ms Visman during selected team meetings. During these meetings Mr Eutick stated words to the effect of “Hatch cannot tolerate the abrasive and rude approach to clients and colleagues alike perpetrated by individuals such as Ms Visman”. These comments were in addition to similar remarks made to the Applicant by Mr Eutick during a meeting on 12 June 2012.
In response, Ms Gardner purportedly gave advice to the Applicant as to how to lodge a bullying and harassment complaint against the Respondent in accordance with the grievance resolution procedure of the Respondent. The Applicant says that during the course of this meeting, Ms Gardner undertook to receive and have the Applicant’s complaint investigated by the Respondent’s HR team. The Applicant says that Ms Gardner further stated that regardless of the Applicant’s own personal desires, that the HR department had a responsibility to investigate serious complaints such as those which the Applicant had raised.
The Eleventh Complaint
On 7 August 2012, the Applicant had a meeting with Mr Eutick and Ms Gardner. During the course of this meeting the Applicant reiterated in detail to Mr Eutick and Ms Gardner the dates, times and witnesses to the instances of bullying and harassment of the Applicant by Ms Visman. In addition to this, the Applicant specifically reiterated to both Mr Eutick and Ms Gardner that the Applicant wanted to proceed with the formal complaint.
Following the Applicant’s meeting with Mr Eutick and Ms Gardner on 7 August 2012, the Applicant was subsequently requested by Mr Brown to travel to the Respondent’s Wollongong office the following day to affect a project handover to Mr Mario Blasi. The Applicant complied with Mr Brown’s request and as such was absent from the Brisbane office from 8 to 10 August 2012.
Upon his return to the Brisbane office on 13 August 2012, the Applicant had another meeting with Ms Gardner. During this meeting the Applicant says that he was informed by Ms Gardner that it had been decided to formally move the Applicant back to PDG where he had been originally stationed at the commencement of his employment with the Respondent.
The Twelfth Complaint
On 14 August 2012, the Applicant had a meeting with both Mr Eutick and Ms Gardner. This meeting was recorded with the consent of both Mr Eutick and Ms Gardner in lieu of a support person for the Applicant. During this meeting the Applicant re-iterated many of his complaints to both Mr Eutick and Ms Gardner. I have seen the transcript of this meeting.
The Thirteenth Complaint
On 14 August 2012, immediately following the previous meeting, the Applicant had a private meeting with Ms Gardner. During this meeting the Applicant stated to Ms Gardner that he wished to extend his formal complaint to include both Mr Eutick and Mr Brown in light of: -
a)The admission by Mr Eutick during the previous meeting that he had failed to take timely and appropriate action to curb, monitor or report the behaviour of Ms Visman as required by the policy of the Respondent;
b)Mr Brown’s previous admissions of inaction;
c)Mr Eutick and Mr Brown’s neutral knowledge of the history of abrasive behaviour towards clients and colleagues of Ms Visman for which she had been previously formally counselled;
d)The fact that Mr Eutick had disclosed the Applicant’s complaints to other colleagues within the Respondent and had warned them of the complaint.
The Applicant says that he reiterated to Ms Gardner that he would collate and submit all relevant supporting evidence for his complaint when he returned to the Brisbane office on Monday, 20 August 2012. He says that Ms Gardner undertook to receive the complaint and said she would inform her manager of it but, due to the individuals involved, it would likely have to be referred to the lead human resources officer in Perth for further investigation.
The Applicant says that he and Ms Gardner agreed to an investigation conducted by the Perth office so as to remove any perceived internal bias of the investigation of the complaint. The Applicant says that Ms Gardner further stated that because of Mr Brown’s position the complaint may have to be outsourced for investigation by a third-party investigative body. The Applicant stated to Ms Gardner that he had no issues with this should this be the preferred course of action to investigate and resolve his complaint.
With respect to all thirteen complaints, the Respondent takes a different view than the Applicant. In some cases, the Respondent denies that such conversations occurred, and in others, the Respondent submits that the substance of what was said could not amount to a workplace complaint. The differences in the respective versions are not matters which have to be resolved by me.
Whilst I do not have to ascertain the merits of any complaints, it is important that the areas of complaint are identified to put what occurred next into a proper context.
20 August 2012
The Applicant had been on annual leave for the three days following the meeting with Ms Gardner (i.e. the following Wednesday, Thursday and Friday). The Applicant was due to return to work on Monday, 20 August 2012.
Before he came to the office that day, the Applicant attended upon a medical clinic at Petrie Terrace and was seen by a doctor. Dr Zillman gave the Applicant a medical certificate certifying that he was unfit to continue his usual occupation from that day until 31 August 2012.
The Applicant then attended at the office of the Respondent. He says that, while at the office of the Respondent, he was asked by Mr Loxton to attend a meeting and he agreed to do so. The meeting was with both Mr Loxton and Ms Helen Turner, the Respondent’s human resources leader.
There is a conflict between the Applicant and Mr Loxton and Ms Turner as to what was said in that meeting. The Applicant contends that:-
a)Mr Loxton stated that the purpose of the meeting was to offer the Applicant a redundancy;
b)The Applicant said that he should have had notice of the meeting and be allowed to have had a support person present;
c)Ms Turner said that as they were all there they may as well have the meeting;
d)The Applicant was advised that his employment was terminated by way of redundancy;
e)The Applicant was provided with a letter which is Attachment “AJB 95” to Exhibit 1 in these proceedings :
“ PRIVATE AND CONFIDENTIAL
20 August 2012
Anthony Barnes
*Address omitted*
Dear Anthony
As discussed with you today we have reviewed the operations and staffing for the Project Management Group in the Brisbane Hub to establish the needs of the business in the current environment. It is with regret that this has resulted in the need to make your position redundant and therefore terminate your services effective 20 August 2012.
Your entitlements are in accordance with your employment contract and the Company’s policy on redundancy. Please find attached a Redundancy Payment Schedule, which provides the details of your redundancy payment.
We would ask you to observe the continued obligation of confidentiality in respect of information to which you have been privy in the course of your employment with the Company.
We wish you all the best for the future.
Yours sincerely
John Loxton
PDC Director – North East Australia”
f)The Applicant stated to Mr Loxton that he thought he was being terminated because of his complaints about Ms Visman, Mr Eutick and Mr Brown;
g)Mr Loxton denied this;
h)Mr Loxton admitted he was aware that the Applicant had lodged bullying and harassment complaints with the Respondent;
i)Mr Loxton said that in coming to his decision to dismiss the Applicant, he had sought performance advice from Mr Eutick and Mr Brown.
The Applicant further contends that he, in response to Mr Loxton, stated words to the effect that the advice of Mr Eutick and Mr Brown may be biased against him because he had told the Respondent he intended to make a complaint against both of them. The Applicant asked about the detail of the review to which Mr Loxton said that the review had occurred over the past two days. The Applicant asked Mr Loxton if he could give the Applicant twenty-four hours to find another role in which Mr Loxton could put the Applicant. Mr Loxton refused that request.
Mr Loxton says that during this meeting, his discussions were about these matters:-
a)the outlook for the Respondent in the current business climate in terms of workload and skills required based on business forecasts, client and project requirements;
b)that there had been a vast reduction of workload in the last week with clients stopping projects, slowing down or delaying project commencement dates and/or reducing reliance on external consultants;
c)That in these circumstances he had to review current workload forecasts and match those forecasts against skill sets required and make decisions on workforce requirements;
d)That following a review that he had described, he could not see any ongoing requirement for the Applicant’s skill set and therefore he regarded the Applicant’s position as redundant. The Applicant stated to Mr Loxton he believed there was a sequence of events which led to him being selected for redundancy and that was his request to be taken off the TSM project and his intention to raise a grievance against Ms Visman;
e)Mr Loxton and stated to the Applicant he was not involved in discussions in relations to those issues;
f)He stated to the Applicant that his decision was based purely upon assessing the skills required to undertake the various complex projects;
g)The Applicant asked whether he could still raise a grievance and if he did whether he would still be informed of the outcome;
h)Ms Turner advised the Applicant that he could still submit a grievance and, that if he did, he would be informed of the outcome;
i)Mr Loxton informed the Applicant he would be ceasing employment on that day and that he would now leave the Applicant with Ms Turner to go through the exit processes and paperwork associated with his redundancy ;
j)The Applicant reiterated that it was his intention to submit a grievance prior to the meeting that day;
k)A letter confirming the termination of the Applicant’s employment was handed to him (as previously detailed above);
l)Mr Loxton denies that the Applicant said that he should have had a support person present;
m)Mr Loxton denies that he had sought performance advice from Mr Eutick and Mr Brown;
n)Mr Loxton denies there was any discussion about Mr Eutick or Mr Brown.
Workplace Rights and Adverse Action
The Applicant’s claim is a general protections application as defined in s.370(2) of the FW Act to mean “an application to a Court under Division 2 of Part 4 – 1 for orders in relation to a contravention of this Part.” Section 370(2) is contained in Part 3-1 of the FW Act. For the purposes of his application the following are the relevant legislative provisions in the FW Act.
Section 336 of the FW Act provides:
“336 Objects of this Part
(1) The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii)free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.
(2) The protections referred to in subsection(1) are provided to a person (whether an employee, an employer or otherwise).”
Section 340 of the FW Act provides:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4‑1).”
Section 341 of the FW Act provides:
“341Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.”
Are the Complaints a Workplace Right?
The Applicant has a workplace right within the meaning of s.341 of the FW Act to make a complaint about the conduct of persons in the workplace. There is no question that this right exists and that the Applicant was perfectly entitled to exercise that right.
Whilst the Respondent has put into evidence many emails and file notes that dispute the truth of what it is that the Applicant alleges against Ms Visman, Mr Eutick and Mr Brown, that is not the point of this litigation.
Even if it were shown that there was no substance whatsoever in the complaints made by the Applicant, it was his right to make those complaints. I am not going to trawl through the huge amount of material before me as if I were conducting an inquiry or Royal Commission as to the probity of the Respondent’s handling of the TSM project.
Whether the Applicant was totally in the right or whether the Applicant was oversensitive and unable to handle a strong woman in a superior position is not the question in issue in this litigation.
I have gone through the Applicant’s complaints in some detail so as to put into a proper context the manner in which he exercised that workplace right. However, it is true that the Applicant must believe that he is making a genuine complaint about the workplace.
I have been referred to a decision of Justice Dodds-Streeton in Shea v Truenergy Services Pty Ltd [2014] FCA 271 at [620] where the Court said that the grievance “must at least be genuinely held and, where it takes the form of an accusation of fault, the complainant must believe it to be valid.”
While there may be debate as to whether the Full Court of the Federal Court approved this particular aspect of the judgment, what was said in that matter is reflected in the Harassment and Bullying Policy of the Respondent.
While I do have many reservations as to the genuineness of the Applicant’s complaints, I do accept that he genuinely believed that he was being “side lined” and “disrespected” by Ms Visman and he believed that this was something that the Respondent ought to have, at the very least, properly investigated. I don’t consider that all 13 complaints constitute the exercise of a workplace right though I do not propose to go through each complaint. The Seventh and Twelfth complaints, at the very least, are sufficient.
I am therefore of the view that the Applicant has exercised a workplace right.
Was the Applicant subjected to Adverse Action by Mr Loxton?
The question for me is whether the decision by Mr Loxton to make the Applicant’s position redundant was an adverse action within the meaning of s.342 of the FW Act.
Section 342 of the FW Act provides a number of circumstances which constitute adverse action against another person. One of these circumstances is an employer dismissing an employee.
Therefore, the Respondent has taken adverse action against the Applicant by making the Applicant redundant.
The Applicant claims that the reason, or part of the reason, that Mr Loxton decided to make him redundant was that he, the Applicant, had exercised the workplace right of making a complaint against Ms Visman, Mr Brown and Mr Eutick.
Section 360 of the FW Act provides:
“360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”
In a general protections claim brought pursuant to s.340 of the FW Act, success depends upon the Court being satisfied that the Applicant has been subjected to adverse action for one or more of the specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the Applicant may be taken.
A general protections proceeding is not a broad inquiry as to whether the Applicant has been subjected to a procedurally, or substantively unfair, outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:
…A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts…”
Section 361 of the FW Act provides:
“361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection(1) does not apply in relation to orders for an interim injunction.”
Pursuant to s.361 of the FW Act, it is the Respondent that must, in effect, prove to me that the decision of Mr Loxton to effectively dismiss the Applicant was not a decision made (or even partly made) in retaliation for the complaints that the Applicant had made against Ms Visman, Mr Eutick and Mr Brown.
Whilst Mr Loxton denies that the decision to make the Applicant redundant was anything other than a business decision, all the circumstances must be looked at.
The Previous Decision Involving Redundancy
At the beginning of 2012, the outlook in the mining area was very promising. The mining boom was in full swing and companies, such as the Respondent, were swamped with work. This is evident from the evidence of Mr Loxton, who said that, at one stage, he was wondering how the Respondent would be able to cope with all the work that they would be getting in 2012.
However, this outlook changed very suddenly. Confidence had gone out of the mining sector and projects were being delayed or discontinued. This meant that the Respondent could not sustain its current workforce by June 2012.
Ms Els, Mr Brown and Mr Eutick all gave evidence of the Applicant being identified as suitable for a redundancy in early July 2012.
Ms Els said that by the middle of 2012, there had been quite a dramatic reduction in work for the Respondent and this change had occurred over a short period of time. At this stage, BHP had not committed to the TSM project. Ms Els knew that even if the project did proceed, the role of project manager for the TSM project would not be a full-time role.
The TSM project was one of, if not the, smallest projects that the Respondent was working on with BHP. The decision was made by Ms Els, Mr Brown and Mr Eutick that the Applicant and two other employees would be made redundant. Notwithstanding that this decision had been made, it would not have occurred unless it was approved by Mr Loxton.
The paperwork regarding the redundancy of the Applicant was prepared. However, the decision to make the Applicant redundant was reversed before Mr Loxton became involved. This followed a meeting that Mr Brown and Mr Eutick attended with the Applicant and BHP.
An email sent by Mr Eutick to Mr Troutman (the regional director for South East Australia) on 9 July 2012 illustrates this evidence. The email is attachment “DE 3” to Exhibit 33 in these proceedings, the affidavit of David Newman Eutick.
“From: Eutick, David
Sent: Monday, 9 July 2012 10:07AM
To: Troutman, Chris
Subject: SAMS NEA Staff- in-Confidence
Hi Chris,
Just got your SMS from Friday.
Kevin Maher accepted his redundancy and was off site by lunch, after farewelling the team-no incident and very mature. I think that he was half expecting it.
Anthony Barnes has a stay of proceedings because the BHBP Project Manager (TSM) spoke very favourably regarding Tony’s ability, professionalism and the significant progress he has made to date. That said we will be reviewing utilisation and deliverables on TSM closely.
Rob Skoda is back in the office today, having returned for A/L 1 day early. I will offer him a redundancy tomorrow as planned.
Rob’s paperwork and entitlement(s) have been calculated for Tuesday 10th July. With approval from Jeanne Els, Rob will be offered additional payment to support him and the very new addition to his family, a daughter born Wednesday last week. Sometimes timing is just all wrong!
I will keep you and NN fully informed.
Regards
David”
What is obvious from this email, is that the relationship that the Applicant had formed with BHP had been the decisive factor in not proceeding with the redundancy. However, it is also obvious that the TSM project was going to be watched and that the “reprieve” given to the Applicant could not be described as “permanent”. As described in the e-mail, it is simply a “stay of proceedings”. This becomes evident when one notes that between July 2012 and December 2012, 46 persons were made redundant by the Respondent at their Brisbane headquarters.
The Decision of Mr Loxton
Following the decision to remove the Applicant from the TSM project, the Applicant was back in the PDG group. In his affidavit, Mr Loxton states:-
“ The Redundancy Review
21. In early August I found out that the Applicant was no longer the project manager on the TSM project. I don’t recall being told why the Applicant was no longer the project manager on the TSM project. I knew BHPB were trying to cut back on spending and I also knew that there had been juggling on scope on some of the projects in this area and I believed that there was reassigning of work for that reason. I did not know that the Applicant had asked to be removed from the Project due to his health or wellbeing. I did not know that he had asked to be removed from the TSM Project to escape the behaviour of Vanessa Visman. On a date that I am unable to recall, I had a discussion with Ms Els whereby she told me that the performance of the Applicant was not satisfactory and that he had made a number of complaints about Ms Visman, Mr Brown , Mr Eutick and Hatch generally. I do not recall the specific nature of the issues Ms Els raised about the performance of the Applicant however my recollection was that it was along the lines that the Applicant does not have the necessary skills to be a project manager.
22. Once the Applicant ceased to be on the TSM project he was still a member of the PDG and my role was to allocate the Applicant to another available project.
23. On 10 August 2012 I met with Ms Gardner to consider work opportunities and further work with PDG. There didn’t appear to be any new work coming in and the outlook looked bleak.
24. On 10 August 2012 at 3.16pm I received an email from Ms Gardner attaching a copy of the Applicant’s curriculum vitae and informing me that the Applicant was still preparing his Hatch curriculum vitae. I had asked for a copy of the Applicant’s curriculum vitae to consider what roles may be suitable for him.
25. I emailed the Applicant on 11 August 2012 at 1.39 requesting that he attend a meeting on 16 August 2012 at 8.30am. The purpose of the meeting was to discuss the Applicant’s options and any upcoming work.
26. I received an email alert stating that my email was undeliverable. As a consequence, I emailed Ms Linda Grams, my personal assistant requesting that she ensure that the Applicant received my email.
27. The Applicant responded to my meeting request on 13 August 2013 (Sic) at 3:22pm.
28. On 14 August 2012 at 3:50pm the Applicant emailed me to request annual leave on 15 and 16 August 2012. The Applicant stated that ‘ given recent events’ , he would like to take a few days off to relax. I replied to the Applicant’s email and granted him permission for his annual leave. I suggested that we arrange to meet early the next week since our meeting scheduled for 16 August 2012 would not take place.
29. By 20 August 2012 I had made the decision to make the Applicant redundant. When deciding to make the Applicant redundant, I took into account the following factors:
(a)The Applicant’s curriculum vitae including his qualifications and prior industry experience which I had received and reviewed;
(b)The only other project manager at the same level as the Applicant was a long standing employee of Hatch;
(c)Weekly utilisation reports which showed the deterioration in available chargeable work;
(d)The business forecast for Hatch as shown in the WIH/WIV reports, the utilisation reports and the other informal reports about the market and general market conditions that I was receiving on a regular basis that was confirming the deterioration of the market;
(e)The availability of alternative roles suitable to the Applicant’s qualifications and experience; and
(f) The possibility of redeployment in other division of the business or in other business Hubs;
30. After considering these factors, I decided that there were no roles available for the Applicant and no roles available for the Applicant and no opportunity to redeploy him.”
I have earlier detailed what Mr Loxton says occurred at the meeting on 20 August 2012. Where such recollection differs from the Applicant, I have no hesitation in accepting the evidence of Mr Loxton. I will talk of the credibility of the Applicant later in these reasons.
Mr Loxton was not challenged in cross examination about the reasons for his decision to offer the Applicant a redundancy. He was challenged as to whether he had meetings or discussions with Mr Brown about the Applicant and his answers were consistent with what he had said in his affidavit.
Notwithstanding this, I was urged by the Applicant to not accept Mr Loxton when he says that the reasons for offering the redundancy are those to which Mr Loxton testified.
The Applicant points to the fact that Mr Loxton did not have his attention drawn to emails that have been sent through the HR division of the Respondent warning about the manner in which any redundancy for the Applicant should be handled. (This occurred because Mr Eutick wanted to make the Applicant redundant on 3 August 2012. Mr Eutick did not have the authority to do this).
The Applicant also points to a “redundancy checklist” that is part of the HR documents disclosed by the Respondent. It appears as if that “checklist” was not followed to the letter. The Applicant further points to the fact that no opportunity was given to the Applicant to put forward an alternative to his dismissal.
The Applicant says that his situation must have been discussed by Mr Eutick and Mr Loxton so that, consciously or unconsciously, the matters of the complaints made by the Applicant must have been acting on the mind of Mr Loxton when he made the decision.
I reject all of these submissions. To my mind, Mr Loxton was a witness of truth and I have no hesitation in accepting his evidence.
Therefore, in relation to this part of the claim, the Respondent has rebutted the s.361 presumption.
Was the Applicant subjected to Adverse Action by Ms Els?
A much more difficult question for me is whether the decision by Ms Els to accede to the request of the Applicant to be removed from the TSM project was an adverse action pursuant to s.342 of the FW Act. This part of the claim was made in the Second Further Further Amended Statement of Claim filed on 15 June 2015. The original Statement of Claim was filed on 13 March 2013.
When setting out circumstances in which a person takes adverse action against another person, s.342 of the FW Act says that adverse action is taken by an employer against an employee if the employer alters the position of the employee to the employee’s prejudice.
Contrary to what the Applicant submits, such a decision by Ms Els did not cause any variation in the employment contract of the Applicant. The Applicant was always assigned to the PDG group but would be assigned from that group to other projects within the organisation of the Respondent.
Was the Applicant Prejudiced?
The Applicant submits that he was prejudiced, by the Respondent acceding to his request to be moved, in two ways. These are:-
a)The Applicant became more vulnerable to be terminated on the basis of redundancy because there were no other jobs for him to do. The Applicant submits that the Respondent knew of the deterioration in conditions in the mining industry and, therefore, knew that termination was likely. In other words, the Applicant was giving up the relative certainty of the ongoing employment that he had for an uncertain future with the Respondent.
b)The immediate security of the employment of the Applicant was jeopardised as was his ability to further impress the Respondent with how well he could work with BHP who undoubtedly were an important client of the Respondent. This ability had already saved his job once.
At first blush, it seems contrary to common sense to say that an employer has prejudiced an employee by doing exactly what that employee has asked the employer to do. But one must look at the words of the FW Act. The question has to be whether the position of the Applicant is worse than the previous position.
Security of the Position
The position as the TSM project manager did have a “shelf life”. It is obvious from the evidence of Ms Els, Mr Brown and Mr Eutick that the TSM positions were going to be constantly reviewed. If there had been a PO made by BHP for the TSM project, the project manager position would only have taken 20% of the employee’s time; there had to be other work to occupy the employee’s other 80%. The “security” of the TSM project was not as great as the Applicant seems to believe.
To my mind, the Applicant was still vulnerable to being terminated on the basis of redundancy even if he had stayed at the TSM project. However, it would seem to me, based on the evidence before me that such redundancy at the TSM project, would not have occurred before there was a decision by BHP as to whether they would proceed with the project.
In this way, it may be said that the position as TSM project manager was more “secure” than returning to the PDG group. As to whether this fact automatically means that the Applicant was prejudiced is not clear.
The Events leading up to the request for Transfer
The events leading up to the request of the Applicant are also very instructive. I have already detailed these events from the point of view of the Applicant earlier in these reasons.
Without going into great detail, the TSM project needed to have a proper resource schedule and an estimate for the project submitted to BHP by 3 August 2012. By 1 August 2012, the working relationship between the Applicant and Ms Visman had become dysfunctional.
Ms Els, in her supervisory role, was to meet with the TSM team to review the proposal as it was at a point where a decision by BHP would have to be made. Ms Els met with the Applicant earlier on 1 August 2012. Both Ms Els and the Applicant have given evidence about the content of that meeting. I accept the evidence of Ms Els about the content of this meeting where it conflicts with the evidence of the Applicant. This is because of the lack of credibility of the Applicant which I will address later in these reasons.
The Applicant presented Ms Els with his resource schedule and estimate for the project. It became quickly evident to Ms Els that these documents were not workable. After talking to the Applicant for over ninety minutes, Ms Els also was of the view that the Applicant was not equipped to handle the job as project manager.
Ms Els made a decision to “bypass” the Applicant and ensure that what needed to be done for the project was going to be done on time. She was of the view that if the Applicant was involved in this process, a suitable proposal would not have been made to BHP. That decision was hers and hers alone.
By 2 August 2012, Ms Els had formed the view that the Applicant should not continue in the role of project manager for the TSM project. Having made that decision, she did not get the opportunity to put that decision into action.
At 3:06 PM that day, the Applicant wrote the email to Ms Els requesting that he be removed from the position of project manager of TSM. Ms Els did not immediately reply to the Applicant, notwithstanding her decision that she had not yet implemented.
Instead, she waited till she could consult with Mr Brown. Mr Brown told her that his view was that if the Applicant “had asked to be removed, we shouldn’t force him to stay in the position as it might cause more problems”.
At 8:46 AM on 3 August 2012, Ms Els wrote to the Applicant acceding to his request.
Is there Further Prejudice?
The second limb to what the Applicant says is the prejudice to his altered position, is that he submits that he had lost the further opportunity to impress the Respondent and to demonstrate how well he could work with BHP. Given the history I have just related, it seems difficult to accept such a submission.
The Applicant had demonstrated to Ms Els that he was simply not suitable for the position as a project manager of TSM. Given the tight deadlines of the project, the Applicant would never have been able to demonstrate how well he could work with BHP.
I accept the evidence of Ms Els that the work presented to her by the Applicant was of a poor standard. If such work had been submitted to BHP, there would be very little to salvage of that relationship. Whilst the Applicant submits that the good relationship had saved his position once, I cannot see how it would be able to have been saved a second time.
The Mental well-being of the Applicant in the TSM project
There is another aspect to the question of prejudice. It seems to me that when considering whether an “employer has altered the position of an employee to the employee’s prejudice”, the consideration must be an objective consideration; that is, “is the employee in a worse position than the employee was before the alteration?”.
While I will talk of the psychiatric evidence in this case later in these reasons, it cannot be ignored that the Applicant was suffering a mental illness when he began working with the Respondent. There is also little doubt that the illness was not getting better during June and July 2012.
The Applicant was receiving treatment during this time from the Veterans and Veterans’ Families Counselling Service (“VVCS”). Even though it is not evident from the reports of that service, there does seem to be a great deal of stressors in the Applicant’s life at that time.
Both Dr Mathew and Dr Larder opine that whatever was happening during the employment of the Applicant by the Respondent, contributed to his mental state. As a matter of common sense, this must include the relationship between the Applicant and Ms Visman.
In hindsight, it was in the best interests of the mental health of the Applicant that he and Ms Visman did not work together. Although this was not known at the time, the Applicant was in a better position mentally by the cessation of the working relationship between the Applicant and Ms Visman.
It seems to me that all of these matters need to be weighed up before one can come to a decision as to whether the alteration of the Applicant’s position by the Respondent has actually been to the Applicant’s prejudice. It is not a simple calculation to be performed as if one were solving a mathematical equation. In this case particularly, it is not a “black and white” matter; there are many “shades of grey” because of the mental illness.
Choosing a Position that is Worse
The Respondent submits that the situation that obtained here was one where the Applicant knew the potential consequences and still took the action that he did.
The Respondent points to conversations that the Applicant had with Ms Gardner on 7 August 2012. Those notes (Attachment CG 17 to Exhibit 24) indicate that the Applicant realised that, in asking for his transfer away from the TSM project, he would now be in jeopardy of being made redundant.
“…Anthony acknowledged that there are no other opportunities in the OR team and his decision to be removed from the project may ultimately result in a redundancy; however he hoped it would not come to that. Anthony said he wants the business to grown (sic) and learn from this situation, to see a clear RACI matrix for the OR team and that he does not want to be disadvantaged by the events as he did not make the decision lightly. Anthony said he intend to raise a grievance against Vanessa separate to this discussion and that he had met with Cassy to discuss the process.”
In the meeting of 14 August 2012, the Applicant, Ms Gardner and Mr Eutick discussed a project manager (Kevin Maher). The transcript of that meeting (attachment CG 30 to Exhibit 24) discloses the Applicant saying the following:-
“AB: Yep and look it may well be, but I am saying the perception and the feeling that the rest of the team got was that we had what was an exceptionally strong PM offered a redundancy when there were other people there who had been repetitiously involved in quality incident reports who, just because they were billing more hours than what Kev, was were safe and Kev was the one that got offered the redundancy…”
It seems to me that when looking at both of these excerpts, the Applicant made his decision with his eyes well and truly open. Whilst he knew that moving from the TSM project manager position could lead to a redundancy, he hoped that it would not. He knew that other managers, in a similar position to his, had been offered redundancies.
The question can then be asked as to “whether the Respondent has truly altered the position of the employee to the employee’s prejudice if it acceded to a request of that employee who knew full well what the consequences of his decision would be?”.
Conclusions on the Term “Prejudice”
In my view, the question of “prejudice” must be looked at in a broad context. To merely say (as the Applicant now says) that going from the position as TSM project manager to the PDG group ended up being worse for the Applicant in his employment with the Respondent and therefore must be a prejudice, is too narrow a construction of the word “prejudice”.
The term “employee’s prejudice” must be looked at holistically. It must cover not just the aspects of remuneration or position but must also include the well-being, both mentally and physically, of the employee and personal considerations of that employee, including the wishes of that employee.
If it were otherwise, an employer who, at the request of the employee, moves that employee to a position that entailed less work and the less remuneration, so as to fit in with the lifestyle of that employee, would commit an adverse action and be liable to penalties under the FW Act.
In such a case, the employee would be exercising a workplace right because they are, in effect, complaining about the conditions of their employment. The employer has altered the position to one that has less remuneration. Therefore, under the hypothesis proffered by the Applicant in this case, the altered position is to the employee’s prejudice. The hypothesis would then lead to a conclusion that there had been a breach of the FW Act. Such a hypothesis is absurd.
In this case, the employer transferred the employee to another position. That position was more vulnerable to redundancy action. The employee, knowing this, requested the transfer. By doing this, the employee relieved himself of major stressors that affected his mental health.
In these circumstances, I am not persuaded that the action of the Respondent in transferring the Applicant from the position as project manager of the TSM project, altered the Applicant’s position to the prejudice of the Applicant.
Therefore, I find that this second part of the claim has not been made out.
What if the Action were Prejudicial?
Even if I were wrong about the proper construction of the word “prejudice” and the mere transfer of the Applicant back to the PDG group was to the prejudice of the Applicant, I would still be of the view that this part of the claim had not been made out.
The decision to transfer the Applicant was made by Ms Els. Ms Els made the decision to agree to the request of the Applicant. It is clear, from her affidavit, that Ms Els had come to a decision that the Applicant ought be removed from the TSM project for reasons to do with his work performance and nothing else.
The request made by the Applicant came before Ms Els could put her proposed plan into action. But once it came, Ms Els discussed the matter with Mr Eutick and Ms Visman before consulting with Mr Brown the next morning.
In the affidavit of Ms Els, Ms Els refers to (at paragraph 48) expressing her frustration to the Applicant about him complaining about the processes of the Respondent. At paragraph 63, Ms Els speaks of her concern about the capabilities of the Applicant but also her concern about the relationship between the Applicant and Ms Visman.
At paragraph 71 of her affidavit, Ms Els speaks of discussing with Mr Eutick the working relationship issues between the Applicant and Ms Visman and asking Mr Eutick to resolve the matter.
At paragraph 92 of her affidavit, Ms Els speaks of the conversation she had with the HR manager. She said “I told (the HR manager) about my views about the Applicant’s competence, his withdrawal as project manager and the fact that he had raised issues about his relationship with Ms Visman...”
The Decision to Accede to the request of the Applicant
The Applicant submits that those passages illustrate that Ms Els must have had the fact of the Applicant exercising a workplace right, in her mind at the time of making the decision.
The Applicant submits that there is a high standard for the Respondent to achieve before it can be said that the Respondent has rebutted the presumption under s.361 of the FW Act. The Applicant submits that there was no denial by Ms Els that she was influenced in her decision-making by the complaints the Applicant had made against Ms Visman. The Applicant submits that the presumption cannot be rebutted.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, the High Court (French CJ and Crennan J) said:
“42. Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
44. There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
The question for me is “what was the reason for the decision?” In coming to my conclusion, I must take into account all the circumstances and facts as I find them.
What is clear from the evidence of Ms Els is that her primary concern was the competence of the Applicant. While she acknowledges that she knew about the problems between the Applicant and Ms Visman, she had not come to any view as to whether or not these claims were justified or frivolous. Her clear evidence is that she asked Mr Eutick to fix the problem between the Applicant and Ms Visman.
It may be true that she was never asked the direct question as to whether she acceded to the request of the Applicant because he had made complaints against Ms Visman, but her affidavit was sworn and filed in this Court some fourteen months before the Applicant amended his statement of claim to include this particular allegation.
Rebuttal of the Presumption
The Applicant says that there was no supplementary affidavit tendered in these proceedings, nor was further evidence in chief elicited from Ms Els when she gave evidence in these proceedings. Of course, the Applicant did not ask any questions of Ms Els relating to the reason for her decision either, however, the Applicant does not have to prove the reasons for the decision.
While the Applicant submits that it is “inconceivable” that Ms Els was not motivated by the complaints the Applicant made about Ms Visman, it is clear, in my view, that the reaction of Ms Els to these complaints was tasking Mr Eutick with the job of sorting the matter out.
It seems to me that the sole reason for acceding to the request of the Applicant is the same sole reason that Ms Els came to the view that the Applicant ought be replaced in the TSM project; his competence or lack thereof.
Therefore, even if the action to accede to the request of the Applicant was to the Applicant’s prejudice, the Respondent has rebutted the presumption and this part of the claim also fails.
Conclusion on Adverse Action
I am of the view that the Respondent has proved to me that they have not engaged in adverse action contrary to the FW Act.
Notwithstanding that I have ruled that there is no breach of the FW Act, I am still required to look at the aspect of compensation and assess it.
Credibility of the Applicant
Before moving on with this aspect, I should say some things about the credibility of the Applicant. Credibility has not loomed large in this matter. The evidence as to what occurred is largely not in dispute. But there are some matters where I have found against the Applicant where his evidence conflicts with other witnesses.
The Applicant was extremely careful when giving his evidence. He was always conscious of the impression he was making and sought to illustrate how his view of the circumstances could be the only view of the circumstances.
The Applicant took very little, if any, responsibility for the state of affairs in which he now finds himself. He sought to convince me that every bad aspect of his life was always someone else’s fault. Whilst this trait is not an unusual one and does not automatically call into question the honesty of a witness, there were two aspects of the Applicant’s testimony that did call into question his honesty.
The first aspect is his CV. It is abundantly clear on any reading of the CV that the Applicant submitted to the Respondent in order to gain employment, that the Applicant was claiming that he had a Master’s Degree in Project Management. The Applicant has no such degree.
While some criticism can be made of the Respondent’s failure to check this aspect, to my mind, making such a claim in a CV is tantamount to fraud.
The second aspect is the Applicant’s failure to mention any of the psychological or mental health treatment he had received from the army or the veteran’s counselling service (VVCS). The Applicant had every opportunity to disclose this before trial or whilst giving evidence in the first days of this trial. The fact that the Respondent had to discover this crucial fact by requesting material by subpoena, does the Applicant no credit whatsoever.
Whilst this aspect plays no part in the ultimate decision I have made, it explains why I have no hesitation in favouring the evidence of Mr Loxton and Ms Els over that of the Applicant.
Compensation
The claim in this case is for compensation for loss that the Applicant has suffered because of the contravention of the FW Act by the Respondent. The loss falls into two categories; firstly for hurt, distress and humiliation, and secondly, for past and future economic loss.
Hurt, Distress and Humiliation
The statement of claim asked for the sum of $100,000.00 for hurt, distress and humiliation. How this sum is arrived at is not clear. There was very little evidence from the Applicant as to his humiliation or hurt.
I can, however, assume that if a person were dismissed from his employment because he made complaints against a co-worker, such an action would be hurtful and humiliating.
If a person were transferred from a position, at their own request, I find it difficult to conceive that such an action would be hurtful or humiliating. If the Applicant is to be believed, that he made this request because his position was untenable, then there may be a consequential hurt or humiliation. But I can only assess compensation for the “adverse action”.
Without any further guide or assistance from counsel as to how I should assess this aspect of the claim, I can only look at the circumstances and make a general assessment.
Consistent with the facts as I find them, the Applicant would have been made redundant in the very near future, even if the “adverse action” had not occurred. Also consistent with the facts as I find them, the Applicant would have been transferred from the TSM project because of his lack of competence, even if the “adverse action” had not occurred.
The compensation therefore must be minimal. I assess compensation in this category at $5,000.00 for the “adverse action” of dismissal and $100.00 in this category for the “adverse action” of acceding to his transfer request.
Past Economic Loss
The assessment of past economic loss is a relatively simple. There is no compensation that can be awarded in this category for the “adverse action” of transferring the Applicant in accordance with his request.
On the most generous view of the evidence, I consider that the Applicant may have been employed by the Respondent until 20 December 2012 if he had been competent (or his incompetence had not come to the attention of the Respondent) and stayed with the TSM project.
This equates to a further four months of employment. This should be the extent of the claim for past economic loss. The Applicant was earning a salary of $165,000.00 a year. Therefore, the salary for four months would amount to $55,000.00.
Future Economic Loss
Future economic loss is a somewhat more difficult proposition. What is clear from the evidence is that the Applicant cannot work at this point in time. This is because he has a psychiatric “injury”. The Applicant has a major depressive illness and the evidence before me suggests that this illness has proved to be somewhat treatment resistant.
The Applicant submits that I need to compensate the Applicant for a loss of earning capacity. The Applicant lost his earning capacity soon after he ceased employment with the Respondent.
This trial had many adjournments. On one occasion when the Court was ready to resume hearing, the Applicant could not attend because of his hospitalisation. Evidence was received by Dr Short who was, at that time, the treating psychiatrist of the Applicant. On that occasion, I raised with Dr Short as to whether he had considered electroconvulsive therapy (ECT). Dr Short said that he hadn’t.
It is well known, within psychiatric circles, that ECT is an effective treatment against depressive illnesses. It is not known exactly why this treatment is so effective, but its use is not uncommon.
It later emerged in evidence, that the treating team of the Applicant had raised the question of ECT with the Applicant in 2014. The Applicant chose not to undertake this treatment. In evidence before me, the Applicant said that he was worried about the procedure occurring under a general anaesthetic and that there may be some subsequent memory loss.
The Applicant is not getting better. However, it seems to me that, with the change of attitude, there could be some progress in the mental health of the Applicant.
For that reason, I am of the view that I ought limit the future economic loss to loss that will occur up until December 2018. Though it is not an orthodox approach, I will look at the period of future economic loss as commencing at the expiration of the period I have allowed for past economic loss.
I have decided to fix that sum using the salary that the Applicant was earning whilst an employee of the Respondent. I do note that the Applicant may have found it difficult to obtain a position that paid so well, especially considering that he did not have the educational qualifications that he purported to have.
Nevertheless, I have assessed the Applicant’s earning capacity at $165,000.00 a year for the period from December 2012 to December 2018; that is a period of six years.
That sum is $990,000.00. That amount is the total earning capacity of the applicant. The Applicant claims that his loss of earning capacity is totally the fault of the Respondent because of the “adverse action” it took against him.
The evidence before me does not disclose that this loss of earning capacity is, in reality, totally the fault of the Respondent.
The Psychiatric Evidence and Collateral Material
In this trial, Dr Joseph Mathew and Dr Gary Larder presented reports and gave evidence before me.
The psychiatric evidence discloses that the Applicant was a model soldier and a true asset to the Australian Defence Force from the time he began at ADFA until 2008.
The collateral material considered by the psychiatrists disclosed a number of significant matters. On 26 June 2008, Col Platt (in Exhibit 46) noted of the Applicant:-
“…I have counselled him on the need for consistency of performance and judgement, and the reality that all officers are expected at some time to do jobs they don’t want to do. He is intolerant of those he perceives to be unprofessional or incompetent; in this respect he needs to develop his interpersonal relations. To his credit, in the latter part of the reporting period he has taken feedback on his performance well and has modified his actions promptly when required.”
A lot of what Col Platt observes is apposite when considering the behaviour of the Applicant in his relationships with other employees of the Respondent, especially Ms Visman. A number of reports from the Army, from this point onwards, reveal psychological distress and symptoms of depression. These reports are Exhibits 47, 49 and 50 in these proceedings.
It does not seem that the Applicant was being properly treated at this time though such an observation is far easier made in hindsight than it would have been at the time.
There were quite a deal of stressors in the Applicant’s life in 2009. He was deployed to East Timor which was a deployment that he did not want to take up. He blames that deployment for the breakup of the relationship in which he then was.
He left the Army at the end of 2009, though his discharge was not until March 2010. In August 2010, some five months after his discharge, he wrote an email to his former CO. The Applicant was in Iraq at this time. The Army report (which is Exhibit 51 in these proceedings) discloses this:-
“ File Note
The OC 1 INT COY revealed to 1 INT BN Psychologist an email he had received from the mbr (CAPT Barnes) that morning. The email was very emotive and made very harsh accusations towards the OC regarding his perceived treatment of the mbr whilst under his command. The mbr disclosed a history of significant emotional turmoil whilst under the OCs command, including intense suicidal ideation. In his final paragraph the mbr made the statement ‘if or when I ever commit suicide’.”
The Applicant’s explanation for this, in evidence before me, was that he was told by his counsellor that he should write down his feelings and send them to his CO to assist with dealing with his issues. I do not accept this explanation.
The description of this email is eerily similar to the email that the Applicant wrote to a HR manager of the Respondent on 23 October 2012 after a hearing in the Fair Work Commission two months after his redundancy. That email is Exhibit 11 in these proceedings and reads as following:-
“From Anthony Barnes< [email protected]>
Sent: Tuesday, 23 October 2012 4:31PM
Subject: Your all dead
To: Turner, Helen (Bloore)
I don’t care if I have to kill you all in the process. I’m coming for all you all today. If you didn’t lie in court today it wouldn’t have come to this. You had your chance to be honest. I will now teach you all he repercussion of lying. Australia is one of the best, if not the best nation on earth. Founded on honesty and robust and fair legal system. You spat in be face of that today to save your own arse. I spent years overseas away from family and friends putting my life at risk for pathetic, weak individuals like yourself to protect this great nation and our ideals Of a fair go and democracy and he rule of law. I had to see men skinned alive so you can get a latte in peace. When it coming to making the most basic of moral stands, yourself and others in Hatch are all found wanting. You’re weak and have no moral fibre or courage to do wants right. I’m not going to make his pleasant. Hoover had your chance and crumbled like weak apathetic individual. I fell sorry for all he soldiers overseas protecting the liberties of weak individuals like you, Peter, David, Vanessa and Jeanne every day. You should be ashamed of yourselves. You all have no integrity.
Sent from my iPhone.” (Typos in accordance with email)
In 2011, the Applicant engaged with VVCS and the reports from that service indicate depressive symptoms. In 2012, whilst employed with the Respondent, the Applicant was also engaging with VVCS. These reports are also instructive as there is no mention in them of any problems that the Applicant has at his workplace.
Dr Mathew
Dr Mathew originally provided a report that opined that the Applicant’s experiences with the Respondent were wholly responsible for the psychiatric injury that prevents him from currently working. In that first report he sought to assign weightings to particular features of the employment.
Dr Mathew originally estimated that the relationship the Applicant had with Ms Visman, the relationship the Applicant had with management and the reaction of removal from the TSM project equally contributed to 50% of his mental condition (that is, 16.7% each). The other 50% contribution was from the reaction to the end of his employment with the Respondent.
At the time of this report, Dr Mathew had not been provided with the collateral material I have just detailed. On 27 November 2015, Dr Mathew was provided with all of the collateral material. On 1 December 2015, Dr Mathew was asked to provide a further report. He provided that report and gave evidence later that same day.
Dr Mathew changed his opinion quite markedly once he had been given that collateral material. He is now of the opinion that the Applicant had a depressive illness when he started with the Respondent. He said that there were three factors that worsened the illness.
The first factor was the cumulative effect of the four aspects spoken of in paragraph 203 above.
The second factor was the criminal proceedings of October 2013 that followed the sending of the email spoken of in paragraph 200 above.
The third factor is the unresolved issues that the Applicant has with the army.
Dr Mathew cannot give a percentage contribution as he could at the time of his first report as he now says that the whole picture of the Applicant is not fully known.
Dr Larder
Dr Larder gave very similar evidence to Dr Mathew. Dr Larder had been given the collateral material before he had assessed the Applicant.
Dr Larder is of the opinion that the Applicant has understated his difficulties and stresses with the military. He said that the Applicant has fixated upon what Ms Visman did to him and what the Respondent didn’t do in response.
He says that the Applicant didn’t display symptoms of his illness during the time that he was working for the Respondent because he was able to “mask and cover up his illness, put his best foot forward and just get on with it”. However, the Applicant was not getting the treatment that he needed.
Dr Larder is of the opinion that the termination of employment “tipped him (the applicant) over the edge”. He said that the illness may have been held back by the proverbial “dam wall” that starts to crack until it finally breaks. Dr Larder said that the Applicant can become extremely enraged when slighted.
Dr Larder says that the Applicant has become fixated with the idea that it was what occurred to him during his employment with the Respondent that is the cause of his current illness. The Applicant has excluded any other possibilities for his illness.
Dr Larder says that the Applicant has not displayed insight into the fact that he is very sick and has been for a long time. He also says that the Applicant needs to embrace recommendations for his treatment. Dr Larder is of the opinion until these matters are resolved, the Applicant will not get better.
Contribution by the Respondent to the Psychiatric Injury
There is an “artificiality” in apportioning the contribution made by the Respondent to the psychiatric injury of the Applicant. It is beyond doubt that the Applicant was mentally ill at the time of his employment with the Respondent. It is clear that many of the same troubles the Applicant had whilst in the Army were re-surfacing during and after his employment with the Respondent. It is also clear that the Applicant did not disclose this illness to the Respondent and it is also clear that the Applicant was able to mask any symptoms from the Respondent.
To this extent, it is difficult to see what the Respondent could have done given the dearth of information that it had. Nevertheless, the respondent must take its employees as it finds them. This is really an extension of the “egg shell skull principle”.
It is the current mental state of the Applicant that has disabled his earning capacity. There is no doubt that the experiences of the Applicant during his employment with the Respondent have contributed to that mental state.
However on the evidence before me, the largest contribution to that mental state is the Applicant’s experiences in the military. I do think the “dam wall” analogy is apt. The cracks in the dam wall were already there when the Applicant began employment with the Respondent. It was through sheer force of will by the Applicant that the dam wall was kept together for so long.
In these stressful situations that occurred in the workplace, the personality traits of the Applicant noted as far back as 2008, meant that the dam wall was under continuing pressure. The redundancy was, to use another metaphor, the straw that broke the camel’s back.
It is for this reason that, in hindsight, I am of the view that the removal of the Applicant from the TSM project was to the benefit of the Applicant rather than his prejudice.
Notwithstanding the earlier opinion of Dr Mathew, I could not attribute any contribution to the Applicant’s mental state by the removal from the TSM project.
I am of the view that the redundancy was the factor that caused the “dam wall” to finally give in, I attribute a 20% contribution to the Applicant’s present mental state. Therefore, I assess the Respondent’s contribution to future economic loss at 20% of $990,000.00; that is a sum of $198,000.00.
Future Medical Expenses
There was a claim for future medical expenses but these have not been in any way proven. The Applicant does have a Veteran’s White Card which does give him certain benefits. He has failed to prove how he will be out of pocket because of his need to fund his future medical expenses.
I therefore award no compensation under this head.
Total Compensation
The total compensation is $5,100.00 for hurt, distress and humiliation; $55,000.00 for past economic loss and $198,000.00 for future economic loss. That is a total of $258,100.00.
This is, however, an academic exercise because I have not found that the Respondent has breached the FW Act.
Ultimate Orders
I dismiss the application. I will hear the parties on the issue of costs.
I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 18 December 2015.
6