Bau v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3701 of 2007

VICTORIA BAU	Appellant
	v
STATE OF VICTORIA	Respondent

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JUDGES:	NEAVE and DODDS-STREETON JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2008
DATE OF JUDGMENT:	22 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 107

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NEGLIGENCE – Alleged failure to provide a safe work environment – Harassment – Trivial nature of events constituting harassment – Causal connection between workplace environment and psychiatric injury – No basis for setting aside findings of fact.

CONTRACT – Alleged breach of contract – Compliance with employment contract – Compliance with human resources policies – Whether policies implied into contract – s 14(4) Accident Compensation Act1985 - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
Appellant	Mr J Kennan SC with Mr T D Best	Clark & Toop
Respondent	Mr D Beach SC (as he then was) with Mr P A Jewell SC and Ms R M Doyle	Lander & Rogers

NEAVE JA:

I BACKGROUND TO THE APPEAL

This is an appeal from the decision of a County Court judge dismissing the claim of the appellant, Ms Victoria Bau, for damages for negligence or breach of contract resulting in psychiatric injury. The appellant claims that her injury was caused by her employment in the Special Projects Unit (‘SPU’) of the Victoria Police, between approximately November 1999 and September 2000. It is not contested she now suffers from a severe psychiatric illness.

In her statement of claim the appellant alleges that she was ‘required to work in a highly stressful environment’ in which she was exposed to harassment by Inspector Wilson (‘Wilson’), the head of the SPU, and Senior Sergeant Moxon (‘Moxon’), who was the appellant’s immediate superior in the evidence preparation section of the SPU.

The particulars of negligence alleged that the respondent had failed to provide her with a safe system of work by requiring her to work in an environment where she was subject to bullying and harassing behaviour, and exposed to sexually explicit remarks, and sexual innuendos. It was also alleged that Victoria Police did not train Wilson and Moxon in managing officers in the SPU, did not train Wilson and Moxon to avoid sexually explicit and bullying behaviour and did not properly supervise them in the performance of their duties.

In addition to these general claims about her work environment, the appellant relied on ten specific incidents which were said to have occurred in her workplace during the period November 1999 to September 2000, ‘as examples of her general criticism’.[1] These were summarised by the trial judge as follows:
[1]Bau v State of Victoria [2006] VCC 1779 (‘Reasons’), [13].

THE AIR HOSE INCIDENT
The plaintiff said that in the evidence preparation section there was a bottle of compressed air to which was connected a flexible hose fitted with a metal nozzle. In February 2000 she was standing near it when she suddenly felt a ‘shot of air’ between her legs. She said that Wilson had operated the nozzle to direct a flow of air underneath her dress and onto her legs. Whether the flow of air was directed up the dress was unclear. Moxon had been standing in the vicinity and had seen what had occurred. She made the comment that if the plaintiff complained about it, she would get a ‘tennis court’ out of it. The plaintiff said she laughed along with the others but felt embarrassed, degraded and humiliated.

NEW PUBLIC SERVANT INCIDENT
The plaintiff asked Wilson whether the arrival of a new public servant would make him change the way he spoke in front of others. Wilson replied that if she (the new public servant) did not like the way he conducted himself she could pack her bags and leave. It was unclear whether this incident was alleged to be an example of Wilson's harassment or an admission by him of inappropriate behaviour.

HRT INCIDENT
In August 2000, in the kitchen area, the plaintiff was discussing hormone replacement therapy with a policewoman and a female public servant. When she returned to the evidence preparation section she heard Wilson’s voice. He asked whether they had been talking about ‘hooters’ (being a slang reference to breasts). He said something to the effect that he understood the effect of HRT treatment on breasts as his wife was having this treatment. He made it obvious that he had overheard the plaintiff’s conversation with her female co-workers. The plaintiff said that she had not realised that he had been listening and felt embarrassed and vulnerable upon appreciating that he had done so.

FLETCHER-FENG INCIDENT
The plaintiff said that in September 2000 there was a discussion between a number of police members about Sergeant Russell Fletcher driving home a Sergeant Simone Feng. The plaintiff said that she believed that the background was that Feng had problems with a new car and Fletcher had agreed to drive her to where the car could be collected. The plaintiff said that participants in the conversation were Wilson, Fletcher and other police by the name of Barrett and Elsten. In the conversation Wilson suggested to Fletcher that when driving Feng home they had engaged in sex. Wilson enquired of Fletcher as to how it had gone. The plaintiff said that Fletcher indicated that it had gone well by making a sign with his hand that he was smoking, thus confirming that he had had sexual contact with Feng. The plaintiff said that all in the conversation were joking and laughing.

ORAL SEX
The plaintiff said that in September 2000 she was in what was known as the mail collection area which was near Wilson’s office. As she entered the area she appreciated that Wilson was on the telephone. He started to talk loudly and commenced to detail how some female police member had ‘gone down’ on him, thus giving him oral sex. The suggestion was that Wilson had commenced to talk loudly and to make this claim deliberately upon appreciating that the plaintiff had come into the area adjacent to his office.

THE MOXON RAPE INCIDENT
On the morning of 18th September 2000, in the course of regularly circulated ‘switch messages’, the SPU had been informed that the victim of a recent rape on a ship in Williamstown had been a woman by the name of Patricia Moxon. This was a Tuesday morning. The alleged rape was supposed to have occurred on the weekend. In an officers’ meeting that morning, an enquiry had been made of Wilson as to whether Senior Sergeant Moxon could possibly be the nominated victim. Wilson thought it most unlikely but the senior officer, Assistant Commissioner Davis, had requested that this be confirmed. Accordingly, after the meeting, Wilson went directly to Moxon’s office to do just that. It was quickly appreciated that she was not the victim. According to the plaintiff, Wilson started to make a joke of the alleged incident and enquired of Moxon whether her husband had ‘bent her over the table and given her one’ and that there must have been semen (being a play on the word ‘seamen’) all over the place. The plaintiff said that Wilson was joking and talking rudely about this with Moxon and that she was laughing.

WITCH CONVERSATION
The plaintiff said that in about June 2000 she had arrived at work with her hair dyed somewhat darker than was normally the case. She was sitting at her desk when Wilson came up behind her and asked ‘Are you a witch?’

THE FOOTBALL INCIDENT
The plaintiff said that Moxon had a small blue and white soft football in her office. For reasons that were unclear, Wilson picked it up and threw it at her aggressively telling her not to smirk at him. It did not strike her. She said that Wilson was upset with her for some reason that she did not understand.

PORNOGRAPHIC VIDEOS
The plaintiff said that on one occasion she went over to the officers’ area and came across a number of male police members and public servants in a conference room watching what she understood to be a pornographic video. She did not see the video and her only knowledge of what it was, was what she was told by a Constable Tim Thompson. She did say, however, that of a store of films available to be borrowed by employees, some were pornographic.
DISABLED PARKING PERMIT
This was the incident that led to the plaintiff’s resignation. She conceded that for a period of about six weeks leading up to 21^st September 2000 she had been using a disabled parking permit to obtain free parking in St Kilda Road. The permit was attached to her car because at the time her disabled mother was living with her. The plaintiff claims that when pursuing this matter, Wilson and Moxon made too much of a minor transgression, discriminated against her, as opposed to others that were doing the same thing, and conducted the interview in an unnecessarily aggressive and intimidating manner. She became upset and left the office, as it happens, never to return.[2]

[2]Ibid [14]–[23].

The appellant pleaded her claim in contract, in the alternative to negligence. Her statement of claim alleged that she was employed by Victoria Police under an employment contract, which incorporated terms based on various documents setting out the defendant’s human resources management policies and documents.[3] In the alternative it was pleaded that the defendant failed to comply with the terms of the human resources policies which were implied into the appellant’s employment contract in order to give business efficacy to it.
[3]The source of these is set out at paragraphs [118]-[119] below.

The defence case was that the appellant’s complaints about the general workplace environment and the behaviour of Wilson and Moxon were not made out and that the specific incidents on which she relied had not occurred.[4] It was also contended that even if these claims were established, there was no causal connection between her psychiatric condition and her employment in the SPU.

II THE TRIAL JUDGE’S DECISION

[4]Reasons [24].

The trial judge held that:

·the appellant’s allegations about the harassing and stressful nature of the evidence preparation section of the SPU were not made out;[5]
·the oral sex conversation and the air hose incident did not occur;[6]
·even if the new public servant incident, the HRT incident, the witch conversation and the football throwing incident had occurred, these were trivial incidents to which the appellant had over-reacted;[7]
·the Fletcher-Feng incident, the Moxon rape incident and the alleged viewing of pornographic videos did not directly involve the plaintiff even if they had occurred, and could not legitimately be classified as harassment of her. To claim that they had distressed her demonstrated ‘a quite abnormal level of sensitivity’;[8]
·the one incident which did occur was the confrontation between the appellant, Wilson and Moxon , over the misuse of the disabled parking permit. His Honour did not accept that Wilson became angry with the appellant or that he had discriminated against her compared with his treatment of two other police sergeants, whom she said had done the same thing.[9]

[5]Ibid [77].

[6]Ibid.

[7]Ibid [48].

[8]Ibid [49].

[9]Ibid [78]-[80].

Further, his Honour said that even if some of the events alleged by the appellant had occurred he ‘would be wary about accepting’ that they were the cause of the appellant’s severe psychiatric illness.[10] He noted that unfortunately the plaintiff had had a number of difficult and traumatic life experiences and there was, therefore, no reason to ‘isolate the plaintiff’s relationship with her two superiors between November 1999 and September 2000 and to blame her illness upon it as opposed to all the other stressful experiences to which she has been subjected’.[11]
[10]Ibid [88].
[11]Ibid [87].

Finally, his Honour briefly referred to the alleged breach of contract of employment between the defendant and the plaintiff. His Honour said that this issue had been hardly touched upon in counsel for the appellant’s final address and that he was:

at a loss to understand on what basis it could be said that this policy becomes an implied term of any contract of employment. That is not to say that there was no restraint on the plaintiff being harassed by Wilson and Moxon. To the contrary, there was such a restraint, but I do not accept it was brought about by any contract between the defendant and the plaintiff.[12]

[12]Ibid [91].

IIIGROUNDS OF APPEAL

At the hearing of the appeal the appellant was given leave to amend the grounds of appeal. In essence, the amended grounds fall into four categories.

The first category (grounds 1.9 to 1.12 and 2.4 to 2.5) challenge his Honour’s findings on the appellant’s credibility, and his factual findings about the appellant‘s allegations. It is said that his Honour’s findings were against the weight of the evidence.

The second category (grounds 1.8, 1.9, 2.3 and 2.5) allege that his Honour gave insufficient weight to the medical evidence about the cause of the appellant’s condition. It is said that his Honour wrongly considered that the appellant’s personality caused her to magnify innocuous events and erred in finding that the appellant’s psychiatric condition was attributable to events other than those occurring at work and her relationship with Wilson and Moxon.

The third category (grounds 1.5 to 1.7) allege that his Honour erred in law by categorising four of the incidents relied upon by the appellant as trivial[13] and in deciding that the three incidents[14] which ‘did not directly involve the plaintiff’ could ‘not amount to harassment’.
[13]The new public servant incident, the HRT incident, the witch conversation and the football incident.
[14]The Fletcher-Feng incident, the Moxon rape incident and the viewing of pornographic material.

Finally, grounds 1.1 to 1.4, 1.7, 2.1 and 2.2 allege that his Honour erred in law in concluding that Victoria Police human resource policies were not implied or incorporated terms in the contract of employment between the appellant and Victoria Police and in failing to find that the incidents on which the appellant relied were breaches of these contractual terms.

The respondent filed a notice of contention claiming that the judgment should be affirmed on the grounds that

A. Breach of contract
1.In the event that the human relations policy formed part of the contract of employment between the Appellant and the Respondent then on the findings of the trial judge and/or the evidence adduced:
(a)there was no breach of terms of the policy; and/or
(b)in the event that there was a breach of policy it was not causative of any loss or damage sustained by the Appellant.

B. Negligence
2.(a) It was not reasonably foreseeable that any of the actions or omissions of the Respondent’s employees or agents, as found by the trial judge to have occurred, could lead to a recognizable psychiatric injury.
(b)In those circumstances the Respondent is not liable to the Appellant.

I deal first with the grounds of appeal relating to his Honour’s findings that even if some of the alleged events occurred they were ‘trivial’, or did not amount to harassment and that the other matters on which the appellant relied were not made out.

IV       FACTUAL FINDINGS AND CHARACTERISATION OF EVENTS
A        Evidence of the workplace environment
1         The appellant

The appellant’s evidence about the atmosphere of the evidence preparation section of the SPU was that:

Mr Wilson would come over all the time, laugh and joke with Senior Sergeant Moxon, sexually motivated talk continuously, everything that he would talk about was perverted or of a sexual nature. Over time it started to get more aggressive towards me and Senior Sergeant Moxon would just laugh at everything he said, basically.

In her evidence-in-chief the appellant said that pornographic videos were kept stacked on the floor in the sergeant’s area. She said that:

A lot of them were just black covered cases but I had one that Tim Thompson showed us that was of a sexual nature, the cover. It referred to anal Asian women or Asian women, anal cuties or something. It was common knowledge they were pornographic.

In cross-examination she said that this was the only video she had seen which was identifiably pornographic, though she believed other videos to be pornographic as well.

The appellant said that on one occasion she had seen a number of men in the conference area viewing a video of a particular celebrity, which she believed to be pornographic. She said that she was told by Constable Tim Thompson at a work Christmas party that they had been viewing a pornographic video involving this celebrity. She also said that she had seen Wilson walking out with a black covered video and that there was a recorder on which he could view it. In cross-examination she said that Wilson was ‘hanging around the videos’ and sat down near them and later walked out with a video, which she understood to be pornographic.

The appellant relied upon the evidence of Senior Constable Paula Brosnan, Ms Kathleen Elek, Senior Constable Rennie Koslowski, Ms Janine Groves-Murphy, and Ms Suzanne Mackie, in support of her claim that Wilson constantly spoke about sexual matters and that Moxon acquiesced in these conversations. Some of these witnesses said that pornographic videos had been present in the SPU at various times. The appellant’s grounds of appeal allege that his Honour gave inadequate weight to the evidence of Brosnan and Mackie.

Brosnan worked in the monitoring unit of the SPU between 1990 and 2001, during part of the time that Wilson was managing the unit. She said that she did not have a great deal to do with him and that:

He was jovial, perhaps a bit immature, joked a lot … some of his jokes I thought were – were rather – had sexual connotations that I think weren’t quite appropriate in the work environment and were perhaps befitting a younger person.

She said she did not remember the jokes ‘but it was just general silly banter that had sexual overtones at times’. She ‘wasn’t particularly offended but found it a bit boring and monotonous’. She said that he was quite friendly to people in the monitoring unit and that she didn’t ever see him target or be nasty to anybody. It was put to her in cross-examination that Wilson had a ’general jovial presence’ and that there were not sexual overtones in what he said. She replied: ‘No, that’s not correct.’ In re-examination she said she simply put her headphones on when he was talking and ignored him.

2 Groves-Murphy

Ms Groves-Murphy was subpoenaed to give evidence on behalf of the appellant. She worked in the monitoring area of the SPU as a police officer from 1991 to 1996 and returned there in 1999 as an unsworn member, remaining until about 2004. She gave evidence that Wilson was not sympathetic to requests made by women for shifts which they could accommodate with their family responsibilities. Groves-Murphy was particularly critical of the failure of management to deal with problems created by the behaviour of a staff member, Sergeant Steve Johnson, who came into work drunk, wandered around the unit in his underwear on night shift and watched videos containing pornographic material.

She said that Wilson had not made any inappropriate comments of a sexual nature to her but that she thought that his sense of humour at times ‘verged on the inappropriate for perhaps someone of his rank’. In response to a question put by his Honour, Ms Groves-Murphy said that:

I think I can appreciate the situation Vicky would have found herself in working at SPU as a single mother because I’d probably experienced some of the situations she’d found herself, not finding a supportive work environment in relation to probably her child care issues, also the environment that exists that allows, you know, the viewing of pornographic material, the display of pornographic material in a workplace situation to be – I can understand her distress at some of that because at certain times when I was there, I felt it was just totally over the top.

Groves-Murphy gave evidence that during the time she worked in the monitoring section videos were stored close to the men’s change room. These ranged from family and children’s videos to pornographic videos which were ‘clearly labelled in the register as being X-rated with exclamation marks around them’. She also said that she had seen pornographic material being watched in the monitoring area, because it was visible from where she sat. She did not know whether the videos viewed were those which were kept in the section. They were watched by people on night shift, but the only person she could clearly recall watching them was Sergeant Steve Johnson.

3 Elek

Ms Elek had worked in the SPU unit for six years before she resigned from Victoria Police in 1998, but she returned to work there in May 2001 as an unsworn member. She was subpoenaed to give evidence on behalf of the appellant and questioned about the culture of the SPU.

After giving evidence that the culture was ‘fantastic’, that the SPU had ‘bent over backwards’ to give her shifts that she could accommodate with child care and that Wilson was ’very supportive’ she was declared a hostile witness on the application of the appellant. The application was made because of the inconsistency between her evidence at the trial and comments she was said to have made when interviewed by the Equity and Diversity Unit in April 2001 as part of the investigation of the appellant’s complaints. The notes say that she described ‘TW’ as ‘chauvinistic, backstabbing, two-faced, derogatory towards women’. She said that since she had returned to the section she had not spoken to him and had kept a low profile, but that he came into the monitoring section and made jokes about women and that ‘he would always come in when Trish Moxon was there’. She said that Moxon would bear the brunt of his jokes but that she did not know of anything that had happened between him and the appellant.

In response to questioning by the appellant’s counsel, Ms Elek said she did not recall having been interviewed about the appellant.

Ms Elek was asked whether she had ever described Wilson as chauvinistic, backstabbing, derogatory towards women, two-faced and ‘treating the personnel like shit’. She denied that these had ever been her views. She said Wilson had never been derogatory to her, that she did not recall Wilson making jokes and that ‘there is nothing Mr Wilson has said around me that I have pricked my ears and thought that is derogatory or offensive to me’. She was not cross-examined by counsel for the respondent.

4 Koslowski

Senior Constable Koslowski was also subpoenaed by the appellant. She worked in the monitoring section of the SPU between 1994 and about October 2000. She said that in the early years the workplace was a very good one which was highly regarded, but that when the monitoring section was restructured police members had found it difficult because they had to find a job in another section of the SPU or outside it. She had not felt supported by Wilson when she decided to work part-time because she had a young child.

Koslowski said that the culture of the monitoring unit changed over the time that she had worked there. She said that pornographic videos were stored for members’ use during the late 1990s. She said that there were about a half a dozen videos with covers indicating they were pornographic in one of the sergeant’s drawers on the 6^th floor of the SPU. They were ‘there to be used’, but she had not seen anyone watching those videos and could not recall anyone walking around with them. She said that as far as she could tell the only person who was interested in these videos was Sergeant Steve Johnson.

Koslowski said that in the time leading up to October 2000, when she herself left the SPU, she was aware that the appellant was distressed. She could recall a number of occasions when the appellant came over from the evidence preparation to the monitoring section and was upset over things that were happening there. She appeared to be distressed.

5 Mackie

Policewoman Suzanne Mackie worked in the monitoring section at the SPU between 1997 and September 2000. In response to a question about the general culture of the workplace she said ‘For me it was reasonably unpleasant. There were a couple of men in the office who gave me a very hard time, mainly about being a part time member.’

She also said that there was constant swearing, that ‘use of the “f word” was very very common’ and that she had been offended by the tone in the section and had made a complaint about the behaviour to the Equity and Diversity division in September 2000 but nothing had been done. She had been told by Sergeant Rawlings to try to confront the two men who were badgering her. She attempted to do this, but it did not work. Because of something that had happened in the past she had decided not to complain to Wilson.

6 Witnesses for the respondent

Wilson, Moxon, and thirteen other people who were currently working or who had worked in the SPU, as police or public servants, gave evidence on behalf of the respondent. All of these witnesses denied the appellant’s allegations that Wilson constantly talked about sexual matters or that he was aggressive and bullying and that Moxon acquiesced in this behaviour.[15] In particular, Senior Constable Mandy Smirnis, a friend of the appellant, said that Wilson was a jovial man, and that he was friendly and approachable. She denied having heard complaints about his behaviour.
[15]Detective Senior Sergeant Fletcher was in charge of the affidavit preparation section at the SPU. He did not ever hear Inspector Wilson ‘engaging in sexually perverted talk’ or being aggressive to staff. Sergeant Feng began working in the monitoring unit at the SPU in 1997. She said she did not agree with the suggestion that Wilson used sexually charged or perverted language. Senior Constable Komisarczyk has worked in the SPU for 17 years. He said he had not heard Wilson make sexually perverted jokes or seen him be aggressive to Ms Bau. Timothy Thompson was a former member of Victoria Police; his evidence is discussed at [38]. Hedwiga Samsa was a public servant who typed up video tapes and sat near Mr Wilson’s office. She denied that he talked about sexual matters. Francis Gibbard shared a work area with Samsa. She said she could hear Mr Wilson talking if he raised his voice and that she had not heard him using sexually charged language. Mark White was an audio typist in the administration section of the SPU. He did not ever hear Mr Wilson using sexually charged language. Detective Superintendent Phillip Masters was at the SPU between 1994 and August 2000, though he had spent some time during this period in other areas. Wilson had worked under Masters. Masters did not hear Wilson using smutty language and said that Moxon was an excellent officer. Senior Sergeant Barrett worked in the affidavit preparation section of the SPU from November 1998 to January 2001. He did not hear Wilson using sexually charged or perverted language. Julie Grubits worked as an administration officer in the SPU from July 2000 until August 2003. She said she was unaware of Wilson speaking in a sexually charged way and that he was jovial and not aggressive. Peter Blick was a retired police superintendent, who had an adjoining office to Wilson from 1996 until July 2005. He said that Wilson’s interaction with staff was excellent and that although he would joke he would not do so in a distasteful manner. Sergeant Wayne Alston was Ms Bau’s direct line supervisor. He said that Wilson did not use smutty language or tell sexually charged jokes and that it was not in Senior Sergeant Moxon’s demeanour to laugh at such jokes.

Moxon said in re-examination that there were management problems with Paula Brosnan in the late 1990s and 2000 and that there had also been problems with Groves-Murphy and Mackie, which had produced discord in the unit.

Both Wilson and Moxon denied that there were pornographic videos in the SPU and Wilson said he was unaware that the particular video which the appellant said she had heard about had ever been in the unit. Wilson said he thought he had worked the night shift once or twice with the appellant and that on one of those occasions he may have watched a part of a video, which might have been a Clint Eastwood Dirty Harry film. He said that he could recall watching this video almost six years later, because it was something he did only once.

7 Thompson

Timothy Thompson worked in the monitoring section as a police member for about five years and then in the evidence preparation section for two years. He left the SPU and Victoria Police in November 1999. He said that Wilson ‘seemed a jovial sort of fellow’ and that he did not recall him using sexually charged or perverted language. He was not aware of there having been pornographic videos at the unit though he said there were general films for staff to borrow. He denied having watched a particular pornographic video in the conference room or telling the appellant at a Christmas Party how revolting it was. He said he had never seen the particular video.

Detective Senior Sergeant Russell Fletcher, Senior Sergeant Barrett, a former police superintendent Peter Blick, Sergeant Alston and Senior Constable Komisarczyk also denied knowledge of pornographic videos in the SPU.

B Evidence of specific incidents

The appellant’s evidence was that Moxon had been present at the alleged air hose incident and had made the remark that she would get a tennis court out of it. Moxon denied having seen any such incident and Wilson also denied that it had occurred.

Wilson denied having the conversation on which the appellant relied. Ms Grubits, a public servant who had worked in the SPU and was alleged by the respondent to have been the ‘new public servant’ in question, said Wilson has been terrific with staff, she had never seen behaviour involving sexually charged content and she had no problems with Wilson.

Wilson also denied that his wife was on hormone replacement therapy or that the ‘HRT incident’ had occurred.

The appellant said that Wilson had laughed and had asked about Fletcher having sex with Feng. This incident was said to have occurred when Wilson, Fletcher and Barrett were sitting around a coffee table and Alston was sitting at his desk. Komisarczyk was also said to have been present.

Wilson denied that the conversation had occurred. Fletcher denied he had ever driven Simone Feng to Parkdale or that the conversation about him having sex with Feng had ever taken place. It will be recalled that the appellant said that Fletcher had ‘made a sign with his hand that he was having a smoke as though he had had sex with Sergeant Feng’, and they were all joking and laughing. Senior Sergeant Barrett denied that the conversation about Fletcher having sex with Feng had occurred and Sergeant Alston said he was not present when any such conversation occurred. Sergeant Feng said she had never had a lift home from work or a lift towards her area by Fletcher.

Wilson denied that he had had a telephone conversation in his office about having oral sex with a policewoman. Samsa worked near Wilson’s office and could sometimes hear his conversations. She did not hear Wilson talking about a female sergeant ‘going down’ on him, but conceded in cross-examination that she left her desk from time to time.

Francis Gibbard shared an office with Samsa. She said that from about 1993 she and Samsa began to stagger the times they were away from their desks, so that there would always be someone there to answer the phone. She did not ever hear a conversation in which Wilson referred to oral sex.

Mark White was an audio typist in the administration section of the SPU. His desk was outside Mr Wilson’s office. He also denied hearing Wilson speaking about oral sex. He said that if he left his desk either Ms Samsa or Ms Gibbard would answer his phone.

It was not contested that the rape of a woman called Moxon had been reported. The appellant’s evidence was that Wilson made a joke about it and went into Moxon’s office and made another joke.

Blick said that when the report of the Moxon rape had come in he made inquiries to ensure that it was not Senior Sergeant Moxon. It was put to him in cross-examination that the incident was ‘the subject of some playful unfortunate and unacceptable joking between Wilson and Moxon.’ He replied that it was far more serious than to make a joke of it and that he did not believe that this happened. Wilson and Moxon also denied that there was joking or laughter relating to the ‘Moxon rape incident’ of the kind that the appellant described.

No evidence was given on this matter by Sergeant Alston and Senior Constable Komisarczyk, whom Wilson said he thought were present when there was discussion about the rape.

Wilson denied the appellant’s account of the ‘witch’ conversation. He said that he had said to the appellant that her hair was looking nice and it was she herself who had made reference to being a witch.

The appellant said that Wilson had thrown a blue and white football at her and told her not to smirk at him. Senior Constable Komisarczyk said he had seen the football but had no knowledge of the ball being thrown at the appellant. He said he had seen her play around with the ball and ‘quite enjoy it’. Wilson and Moxon, who was said to have been present, denied the incident had occurred.

The appellant also gave evidence about the events which led to her resignation. While her mother was living with her she used her mother’s disabled parking permit to obtain free parking in St Kilda Road. She did this for about six weeks prior to being confronted by Wilson and Moxon about it. The appellant said that she was called into Wilson’s office where Moxon was present and interviewed in an unnecessarily aggressive and intimidating manner. She complained that other police members who had also misused disabled parking permits were not treated in this way.

The appellant said that when she was confronted about her use of the disabled parking permit by Wilson she had given a stupid grin and said she was ‘wicked’. She said that she had been told by Wilson and Moxon that her position was at risk. Wilson had stood up, yelled at her and told her she might not have a job tomorrow and that he did not like her attitude. Moxon had told her that she was ‘disgusting’ and that Moxon was disgusted with her. The appellant said she was shocked and dismayed and had put in her resignation shortly afterwards. She advised that she had been contacted by Sergeant Johnson who had told her that Wilson would hang on to her resignation for two weeks and that she should see a doctor and think about it.

Barrett said that he had prepared a report on the appellant’s misuse of the disabled parking permit and given it to Wilson for investigation.

Wilson gave evidence about the circumstances leading to the appellant’s resignation and his notes of the conversation with her were tendered. He said that when he asked the appellant about her inappropriate use of the disabled parking permit she said that it was not serious and that she was ‘just beating the system.‘ He said that he was not aggressive and did not shout at her as she had alleged and denied that Moxon had told the appellant that she was ‘disgusting’. Moxon gave a similar account of the meeting.

Wilson also said that he had investigated allegations that two other members were displaying disabled parking permits on their car and found that they were actually paying for their parking, so they were not committing any offence. He had counselled them about their lack of judgment. In cross-examination he denied that the appellant had been targeted and said it was her attitude to her misuse of the permit that had concerned him.

He said he was shocked and concerned about the appellant’s resignation and would not accept it until Ms Smirnis went and talked to her. He did not submit the resignation immediately because he knew that Sergeant Johnson had been to see the appellant and believed that she had changed her mind.

C The trial judge’s reasons

1 Credibility

The trial judge’s factual findings were, to a large extent, based on his views as to the appellant’s reliability as a witness. The trial judge noted that the appellant had been emotionally affected by the breakdown of two relationships, one in 1994 and one in 1998. At that time she was seeing Dr P Davis at the Ashwood Medical Centre. Dr Davis was not called to give evidence, but the appellant was cross-examined on her clinical records from the Centre. His Honour summarised the evidence as follows:

Between 2nd December 1999 and 23rd August 2000, the plaintiff attended the [Ashwood Medical Centre} on no fewer than 17 occasions. On not one occasion was there a mention of employment related stress. On 17th March 2000 the plaintiff reported a ‘relationship crisis’. She said she found it difficult to talk about the problem. She requested non-addictive sleeping medication. On 20th June 2000 she reported that she was depressed again and had been for the last few months. On 3rd July she was much improved. She was seen on three occasions in July and again in August and September for unrelated problems. The date is unclear but it would seem to me that she was seen on 23rd September 2000, when she complained of a problem in the right hip and right thumb. She was seen in February 2001, when she requested a script for Efexor, an anti-depressant that she had been prescribed in 1998. She reported then that she was slowly improving and that her appetite and sleep were okay. The medical practitioner notes that she was ‘beginning to enjoy life more. Otherwise well.’[16]

[16]Reasons [31].

It will be recalled that the appellant came under the supervision of Wilson and Moxon from November 1999.

The judge also referred to a letter dated 12 October 2004 containing information about her treatment by Dr Matthew Rubenfeld of the same clinic. His Honour said:

Obviously the plaintiff’s solicitors had requested information concerning her and whether she had complained of mistreatment in the workplace. On that date Dr Rubenfeld said that he had been ‘managing’ Victoria over the previous year. He said that within that time they had not discussed her time in the police force. He said:
‘In order to write this report, I plan to look into Victoria’ [sic] medical file to address the issues you have requested. Unfortunately (as I had told Victoria) we have no record of any incidents at the Victoria Police Force. On two occasions Victoria had mentioned that she was “stressed at work” but she was “reluctant to discuss” these issues.’

I have examined the medical records and I think the comments of Dr Rubenfeld accurately state the position. On 20th October 1998 the plaintiff told Dr Davis that she was depressed. She was working full-time with Victoria Police. She attributed her depression to her relationship breaking up over the past two years and her son, Davis, playing up. He had had behavioural problems that had required the plaintiff to take him to a clinic at the Alfred Hospital.
The plaintiff told Dr Davis that she was either in, or had the prospect of, a new relationship but this partner was off to Sweden in six months time. The plaintiff was prescribed Efexor and Serepax. On 27th October she reported that she was less depressed. The note is not easy to read but my interpretation of the record of her attendance on 19th January 1999 was that she was improved, although a repeat prescription for Efexor was given. On 25th June 1999 she said that she was unwell and was tired. She reported that her depression was returning. She said she was “stressed’ at work. Of course these attendances were before the plaintiff’s contact with Wilson and Moxon began. As I read the notes, this was the only occasion in many attendances where the plaintiff reported that her work played any part in her condition.[17]

[17]Ibid [32]-[34].

His Honour then described a series of other stressful events which had affected the appellant, both while she was working for the respondent and after her resignation. Since these events are set out in the reasons of the trial judge it is unnecessary to describe the matters in detail. I refer only to two examples. Following a relationship breakdown in 2002 the appellant’s doctor assessed her condition as serious enough to require her admission into the Melbourne Clinic for a week. In November 2003 the appellant was seriously assaulted by a group of younger women on a train, as a result of which she had more frequent panic attacks and nightmares.

At the trial counsel for the respondent submitted that the appellant’s psychiatric condition made her an unreliable witness. His Honour rejected that submission but alluded to other matters which in his view affected the appellant’s credibility. He said that:

[Counsel for the defendants’] point was that the plaintiff’s psychiatric condition, coupled with her involvement in all these stressful incidents, demonstrated a personality type which should caution me in accepting her evidence. I do not regard the existence of a psychiatric condition or her involvement in the various incidents to which I have referred, as, of themselves, adversely affecting the plaintiff’s credit. However, I did regard her as an unsatisfactory witness. She displayed a remarkable reluctance to come to grips with the point of a question. There were many occasions on which, rather than answer the question, she took the opportunity to reiterate her complaints. Further, there were times when I thought she was evasive. I also thought that the plaintiff repeatedly demonstrated what [counsel] called a “hyper-reactivity” in that, on her account, she took very personally any failure to accept a complaint or any criticism of the work that she had done.[18]

[18]Reasons [45]. As examples, his Honour referred to an occasion when she had ‘stormed off’ after her work in the affidavit section was criticised and another occasion when she formally complained about the insensitivity of suggestions made to her by Inspector Thiessen when he visited her at home in 1994 to discuss her application for special consideration because of her child-minding difficulties. His Honour said that the proposals were insensitive, but that Ms Bau had over-reacted and that this was ’a feature of [her] personality’: Reasons [47].

His Honour said that an example of this ‘hyper-reactivity’ was the appellant’s reaction to a criticism of her work performance while she was working in the affidavit preparation section of the SPU for about six months in 1997. She appeared not to have forgiven Russell Fletcher, her supervisor, for that criticism, even though on her own account she was not good at that work.[19]
[19]Ibid [46].

His Honour also made findings about the credibility of Wilson and Moxon. He said that:

[b]oth… were articulate and intelligent. Their position was that there was never any departure from complete propriety in the workplace. Further, they denied any cultural pressure on members of the police force to support their fellows. Both Wilson and Moxon were competent witnesses whose evidence must be put in balance, but I would have found their evidence more convincing had they been prepared to acknowledge the occasional sexually suggestive comment or some cultural pressure. I find it difficult to accept that the culture at the SPU was as pristine as they claim.[20]

2 The workplace environment

[20]Ibid [65].

His Honour acknowledged that the appellant’s general complaint about the workplace culture received some support from the evidence of Koslowski, Brosnan, and Groves-Murphy, all of whom had worked in the SPU and were called by the appellant as witnesses. These witnesses spoke of a work culture in which Wilson made jokes with sexual connotations and Koslowski and Groves-Murphy said that pornographic magazines or videos were available for members’ use, though this did not necessarily occur after Wilson arrived.

His Honour said it was unnecessary to refer in detail to evidence given on behalf of the respondent by Fletcher, Feng, Komisarczyk, Thompson, Samsa, White, Masters, Grubits or Blick, but that he accepted their evidence that ‘the relationship between Wilson and other members of staff, particularly the plaintiff was not as she described it’.[21] He made specific reference to the evidence of Barrett and Alston, who impressed him as ‘being completely honest and straightforward,’ and as attempting to give a balanced account.^[22]
[21]Ibid [64].
[22]Ibid.

His Honour also emphasised the evidence of the appellant’s close friend Mandy Smirnis. He regarded Smirnis as a ‘very impressive and convincing witness’ who, despite her divided loyalties, was ‘attempting to give an account of events as she saw them.’[23] Ms Smirnis said she had never experienced behaviour of the kind described by the appellant, that Wilson was quite approachable and friendly and that she had never heard any complaint about him using bad language.
[23]Ibid [75].

Smirnis also said that the appellant did not complain about sexual innuendos or maltreatment by Wilson and Moxon while she was at the SPU and that it was not until after the appellant left that she began to make allegations against Wilson.

3 Specific incidents

His Honour noted that all of the personnel who had worked in the SPU and were said by the appellant to have been present at the time any of the particular incidents had occurred had been called as witnesses.[24] All of them denied that these incidents took place.^[25]
[24]Reasons [63].
[25]Specific reference was made by his Honour to the plaintiff’s witnesses Koslowski, Brosnan, Groves-Murphy and the evidence given on behalf of the defendant by Fletcher, Feng, Komisarczyk, Thompson, Samsa, White, Masters, Grovitz, Blick, Smirnis, Wilson and Moxon: Ibid [64].

His Honour characterised the new public servant incident, the HRT incident, the witch conversation and the football throwing incident as ‘trivial’.[26] He said that the Fletcher-Feng incident, the Moxon rape incident and the alleged viewing of pornographic videos did not directly involve the plaintiff even if they had occurred, and, in his Honour’s opinion, could not legitimately be classified as harassment of her. His Honour said that although these incidents might be regarded as puerile, bawdy or distasteful and might legitimately have lessened the appellant’s opinion of the participants, they did not directly involve her and to claim that they had distressed her demonstrated ‘a quite abnormal level of sensitivity’.[27] He said that the appellant’s personality had led her to over-react to these incidents.[28]
[26]Ibid [48].
[27]Ibid [49].
[28]Ibid [47].

Having reviewed the evidence his Honour said that he did not accept either the plaintiff’s general criticism of the workplace environment or her account of the specific incidents. He concluded that neither the air hose incident nor the oral sex conversation took place and that he was not satisfied that the alleged harassment occurred.[29] He said that:

It must be borne in mind that the plaintiff’s complaint here is of harassment over a 10 month period…. When giving examples of the general complaint she referred to the 10 incidents that I have specified. Of those 10 incidents I regard only two as examples of the general behaviour which she alleges. They are the air hose incident and the oral sex incident. In my opinion, it is quite remarkable that the plaintiff should describe the behaviour of Wilson and Moxon in such sweeping terms but be able to provide an account of only two incidents that are supportive of her general criticism, and then only against Wilson.
Further, I regard it as significant that she attempts to rely upon a number of incidents that I regard as trivial or not directly involving her. It follows that even if I accepted everything that the plaintiff said concerning those specific incidents, I would not accept that they justify the general criticism she has made and could not, in my opinion, amount to harassment. There is, in my opinion, a significant difference between occasional, boorish, vulgar or juvenile behaviour and sustained inappropriate conduct that could be classified as harassment. The plaintiff gives a general description of the behaviour of Wilson and Moxon that might amount to harassment but when it comes to providing examples, her account is quite inadequate.[30]

[29]Ibid [77].

[30]Ibid [53]-[54].

His Honour concluded that the only incident which had occurred was the confrontation over misuse of the disabled parking permit and he did not accept the appellant’s account of that event.

D Appellant’s submissions

Counsel for the appellant submitted that the appellant’s claim that she had been subjected to a ‘highly stressful workplace environment’ in the SPU had to be assessed in light of the human resources policies of the Victoria police. These policies were relevant to claims in both contract and tort.

The Victoria Police Workplace Conflict Issue Resolution Process and Guidelines (‘the Guidelines’)[31] said that ‘Victoria Police will not tolerate inappropriate workplace behaviour (including bullying)’ and defined workplace bullying as ‘repeated unreasonable behaviour directed towards an employee, or group of employees, that intimidates, humiliates or undermines others, and creates a risk to health and safety.’ In addition the Guidelines set out provisions intended to prevent workplace conflict and to require ‘all managers and supervisors to demonstrate and model their own behaviour’ on workplace values and to ensure that occupational health and safety requirements were satisfied.
[31]These guidelines were dated 7 April 2005. Counsel said that there had been non-compliance with a notice to produce the guidelines in existence in 1999.

Counsel submitted that his Honour had given no, or insufficient, weight to the evidence of Mr Jim Bailey, an expert in personnel and human resource management. In his report to the appellant’s solicitors dated 2 July 2004, Mr Bailey said that the appellant did not recall receiving any training on harassment and that from the information she had given him she had been exposed to such harassment by Inspector Wilson and Senior Sergeant Moxon. Mr Bailey said that, from the information made available to him, the management at Victoria Police had ‘by virtue of its entrenched workplace behaviours’ breached good management practices, over a lengthy period. Corrective action had not been taken to address inappropriate behaviour or complaints.

In his oral evidence Mr Bailey said that he would have expected the employer to have introduced policies about harassment and bullying to managers, supervisors and staff. He said that such policies had been in force in workplaces since the late 1990s and that the failure to implement them would have made it difficult for the appellant, because she would not have known what avenue to pursue when she was harassed or bullied.

Counsel said that having regard to the evidence of Brosnan, Mackie, Groves-Murphy, and Koslowski, his Honour’s conclusions were against the weight of the evidence. These witnesses had testified that the SPU was a highly stressful workplace environment in which Wilson constantly made sexual allusions and jokes, and that pornographic videos were kept in the section and viewed by the men who worked there. Mackie’s evidence indicated that there was no training or effective monitoring of the behaviour of those working in the SPU to ensure they did not engage in sexually harassing behaviour. Counsel contended that there had been no real challenge to the evidence of these witnesses and that his Honour had failed to consider whether their evidence corroborated the appellant’s account and undermined the credit of the defendant’s witnesses.

Counsel submitted that his Honour should have given greater weight to the report of the internal investigation conducted by the Victoria Police Equity and Diversity Unit into the appellant’s allegations. Although the report said that her allegations as to specific events were unproven, it found that ‘on the balance of probabilities video tapes of a sexually explicit nature were kept/stored at the SPU, available for members to view or take home.’ Counsel submitted that the fact that Wilson, Moxon and some of the other witnesses for the respondent had denied that such videos were present in the SPU, cast doubt on their credibility. It was said that if his Honour had taken account of this false denial and of the evidence of Mackie, that there was a ‘toxic’ and harassing work environment in the SPU which Wilson had done nothing to address, his Honour must have necessarily found that the respondent was in breach of its obligation to provide a safe working environment.

Counsel submitted that his Honour had ignored the fact that the appellant’s friend, Mandy Smirnis, had conceded that the appellant was a private person who kept her problems to herself and that similar evidence was given by the appellant’s sister. It was said that his Honour’s characterisation of the appellant as ‘hypersensitive’ had ignored this evidence. Counsel also contended that his Honour did not take sufficient account of the fact that the culture of the police force encouraged police not to give evidence against other police officers, in weighing the relative credibility of the appellant’s and respondent’s witnesses.

Counsel further submitted that his Honour had incorrectly characterised some events as trivial and others as not amounting to harassment because they did not directly involve the appellant. Counsel submitted that it was not clear whether his Honour had made any findings as to whether the four incidents he characterised as trivial had actually occurred, but that in any case it was wrong in law to regard acts of this kind as trivial when they were done by a person in a supervisory position. In particular the aggressive throwing of a football at the appellant would have added to her stress and fear.

None of the particular incidents relied upon should be regarded as trivial when done by a person in a management position and even if the particular incidents, standing alone, were minor, their cumulative effect would have been to produce a stressful and harassing work environment. It was also wrong in law for his Honour to disregard behaviour which did not directly affect the appellant, because such acts could contribute to a stressful workplace environment. As the Victoria Police human resources policies acknowledged, a reasonable employer would not have permitted the behaviour of which the appellant complained.

E Respondent’s submissions

The respondent submitted that there was no basis for setting aside the factual findings made by the trial judge and that his Honour’s judgment made it clear that he had dismissed the appellant’s claim about the specific incidents. In particular his Honour said that the one incident that had occurred was the confrontation over the disabled parking permit. His Honour’s reference to four of these incidents as ‘trivial’ and his comment that the plaintiff was only a bystander to three of them, were not the primary basis for his decision, but simply fortified it. His Honour was entitled to regard the finding that none of the alleged incidents occurred as relevant to the credibility of the appellant’s evidence about the general nature of the workplace.

Counsel submitted that even if the judgment was ambiguous as to the occurrence of some of the specific incidents, the onus was on the appellant to show that this was the case. On any reading of his Honour’s reasons there was no positive finding that they had occurred.

F Conclusion on factual issues

I deal first with the appellant’s claim that the trial judge erred in law by characterising the ‘new public servant incident’, the ‘HRT incident’, the ‘witch conversation’, and the ‘football incident’ as trivial, and in saying that the ‘Fletcher-Feng’ incident, the ‘Moxon Rape’ incident and the viewing of pornographic material did not amount to harassment because they did not directly affect the appellant.

I accept the appellant’s submission that even if some of the alleged events taken individually were relatively minor, their cumulative effect may have been to cause injury to the appellant. This could also be the case even if she was not directly involved in the particular events.

The human resource policies of an employer are relevant in determining the scope of the duty of care which it owes its employees. The policies of the Victoria Police (which are set out at paragraphs [118]-[119] below) may therefore be taken into account in deciding whether the respondent breached its duty of care to the appellant. It is reasonably foreseeable that an employee who is exposed to sexist, bullying or demeaning workplace behaviour, may suffer injury because of the cumulative effect of a series of minor events, or because of harassment or bullying which they have observed but is not directed at them. In some circumstances an employer’s failure to take steps to prevent ‘boorish, vulgar or juvenile behaviour’ or to establish a means by which workers can complain about conduct of this kind, may amount to a breach of the duty to provide a safe workplace to its employees. The fact that some employees participate in, or do not object to that behaviour does not relieve the employer from the duty to take reasonable steps to prevent other employees from being harmed by it. That being said, I do not consider that his Honour erred in law by taking account of the nature of the alleged incidents and the extent to which the appellant was affected by them, in considering whether they would have amounted to a breach of duty, if they had been found to occur.

The key question, however, is whether his Honour erred in finding that the appellant did not establish her claims about the nature of the workplace environment or the specific incidents on which she relied.

Having read the transcript I agree with his Honour that it is unlikely that the SPU was ‘as pristine’ as witnesses for the respondent testified. In particular I consider that the evidence of the appellant’s witnesses was sufficient to establish, on the balance of probabilities, that videos which were, at the least, sexually explicit, were present in the unit at some time.

However I do not accept the appellant’s submission that the evidence established that Wilson and Moxon knew of the presence of the videos, that Wilson viewed pornography at work or that the videos were regularly viewed by members of the SPU. The evidence of the appellant’s witnesses did not indicate who was aware of the presence of sexually explicit material or who viewed it. The only specific allegation related to Sergeant Johnson’s viewing of pornography late at night, when many of the appellant’s and respondent’s witnesses would not have been present.

The report of the Equity and Diversity investigation on which the appellant relied found only that ‘at some point’ sexually explicit videos were kept in the SPU. Contrary to the appellant’s evidence, Tim Thompson, who was previously a member of Victoria Police, denied that he had told the appellant that he and others had watched the video of a named celebrity while he was at work. For these reasons I do not accept the appellant’s submission that his Honour should have taken an adverse view of Wilson and Moxon’s credibility, because they denied knowledge of the presence of such videos.

His Honour had the difficult task of weighing the competing evidence of the appellant’s and respondent’s witnesses. His summary of the evidence of the appellant’s witnesses was entirely fair and he specifically referred to Brosnan’s comments about Wilson’s ‘inappropriate’ sense of humour. I do not consider that his failure to refer to Mackie’s evidence was of any moment.

I consider that his Honour took account of the difficulties which the respondent’s witnesses were likely to face in criticising their workplace environment or the behaviour of Mr Wilson. His Honour’s comment that he doubted whether the workplace was ‘as pristine’ as the evidence of Wilson and Moxon suggested, reflects that he recognised the difficulties which members of the police may have in contradicting the evidence of their colleagues. His Honour was entitled to emphasise the evidence of Barrett, Alston and Smirnis, whom he considered to be honest witnesses who were attempting to give a balanced account.

In my opinion his Honour’s judgment, read as a whole, shows that he did not accept the appellant’s evidence that any of the particular incidents, other than the disabled parking permit incident, occurred. The appellant’s credibility was seriously in question because none of the witnesses said to have been present when particular incidents occurred accepted her description of events. I would not necessarily regard the ‘oral sex’ and ‘air hose’ incidents as the most serious matters on which the appellant relied. In my opinion, the deliberate throwing of a football at her could, in some circumstances, be a threatening or aggressive gesture. However, both Wilson and Moxon denied that this occurred and I consider that his Honour was entitled to accept their account. As his Honour correctly said, the conclusion that the air hose and oral sex incidents did not occur in the manner described by the appellant necessarily casts doubt on her evidence about the general nature of the workplace environment.

His Honour was also entitled to take account of the appellant’s failure to complain about the nature of the workplace environment or about specific events to the doctor who was treating her in the period when these events were said to have occurred. Dr Black testified that people subjected to harassment or bullying ‘tend to try and put up with the behaviour, ignore it, hope it’ll go away, complain about it, try all sorts of things and if it keeps going it just gradually becomes intolerable to the person suffering’.[32] She said this would aggravate the severity of their condition and the distress or depression caused by the behaviour.
[32]In relation to the appellant’s likely reaction to workplace bullying, Ms Batchelor said in cross-examination that the appellant is ‘a quiet lady who does not demonstrate her distress overtly’.

I would accept that a victim of harassment might take some time to understand that this is the cause of depression or may feel too embarrassed or ashamed to complain to others. The evidence that the appellant was a private person who did not readily confide in others could also explain her failure to complain to Ms Smirnis. However, if her depression and anxiety was attributable to difficulties in the workplace, I would have expected her to have made some reference about these matters to Dr Davis, who treated her at the Ashwood Medical Centre, particularly when the appellant did refer to being ‘stressed at work’ in the period before she came into contact with Wilson and Moxon.

Finally, to succeed on appeal, the appellant must overcome the principle of appellate restraint which applies when an appellant seeks to set aside a factual finding made by a trial judge based on an assessment of the credibility of witnesses.[33] In my opinion there are no incontrovertible facts or uncontested testimony which show that the judge’s decision is clearly wrong. Nor is the judge’s view of the evidence ‘glaringly improbable’ or ‘contrary to compelling inferences’.[34]
[33]Fox v Percy (2003) 214 CLR 118, 125-126 (Gleeson CJ, Gummow and Kirby JJ).
[34]Ibid 128.

I therefore consider that there is no basis for setting aside his Honour’s factual findings.

V THE CAUSATION ISSUE
A The medical evidence

As I have said, the appellant had medical treatment for depression in 1998, following a relationship breakdown. She also experienced a number of traumatic and stressful events, both before and after she resigned from Victoria Police.

The appellant relied on medical reports from the following treating practitioners:

·Dr Black, a doctor at the Police Clinic whom the appellant consulted for the first time on 2 October 2000, for treatment of a work-related stress disorder;
·Dr Holwill, the appellant’s treating psychiatrist, who first saw her on 16 May 2001; and
·Ms Batchelor, a psychologist to whom the appellant was referred by Dr Holwill, who first saw her for treatment on 15 January 2003.

The appellant tendered a medical report from Dr Dharwadkar who examined her at the request of her employer, for the purposes of her Workcover claim.[35] She also relied on reports prepared for medico-legal purposes by Dr Albert Kaplan, a consultant psychiatrist, and Dr Michael Epstein. Drs Black, Kaplan and Holwill and Ms Batchelor gave evidence at the trial and were cross-examined about whether her psychiatric disorder could be attributed to the events on which she relied.
[35]Ms Bau’s exhibits also included a brief report by Dr A McKenna, assistant police medical officer, who certified that she was depressed and wholly unfit for work on 15 February 2001.

The appellant gave a history of other matters which may have contributed to her anxiety and depression to the practitioners who treated her, or saw her for medico-legal purposes. Based on the history given to them by the appellant, all of the doctors and psychologists who gave evidence at trial said that it was likely that her psychiatric condition was contributed to or caused by workplace stress.

All except Dr Black referred to the fact that the appellant had been raped by a police member in 1993, and most of the other doctors mentioned other difficulties she had experienced, during and after her employment, including the conception of a child as a result of the rape and consequent child care difficulties, the breakdown of a number of relationships with partners, her excessive alcohol consumption and a serious assault she experienced while travelling on the train on 6 November 2003.

At the trial Ms Batchelor was extensively cross-examined about the extent to which these other stressful or traumatic events could have caused the appellant’s depressive disorder. Ms Batchelor said that the appellant had gone back to work after having been raped and had continued to work for a number of years before developing a severe depressive disorder. Ms Batchelor said that it was rarely one event that triggered clinical depression and that it was ‘simplistic to divide people into single events’. She conceded that other matters, including the rape, could have contributed to the appellant’s psychiatric disorder, but said that if it had not been for the alleged bullying and harassment ‘it would be questionable if she would have had a complete breakdown and even if she had suffered from depression for a combination of reasons her recovery might have been better’. She also said that the serious assault on the appellant, after she had resigned from the police, would have maintained the psychiatric disorder which she already had.

In cross-examination Dr Black said that her job was to treat her patient’s work-related illnesses and ‘not report on everything else in their private lives to an insurance company’. In response to a question in cross-examination about whether the rape would have been a factor relevant to the appellant’s condition Dr Black said that ‘it would not take anything away from the severity of the work-related stuff she told me’.

Dr Kaplan was thoroughly cross-examined on whether, and the extent to which, workplace stress had caused the appellant’s psychiatric condition. When he was asked whether other events and stressors would be sufficient to explain her psychiatric state, he said:

I don’t think so, because she described a number of other symptoms as well. She described the preoccupation of the stressors of the previous nine months, the last nine months of her employment, and that was certainly very significant.

Dr Kaplan pointed out that the appellant continued to work up until the incident involving her use of the disability parking permit. He acknowledged that she had been depressed at various times previously, but said that her work experiences were likely to have contributed to the severity of her condition. It was put to him that her work was only ‘a small component compared to the other factors before and after’ and he said:

All I can say is that prior to that victimisation, despite these other stresses that you describe, she was still working and she was still functioning adequately and since she hasn’t been functioning. She hasn’t been working.

In his evidence-in-chief Dr Holwill said that the rape might have increased the appellant’s response to sexual harassment at work and that if it was accepted that she had been bullied at work the interview about the disabled parking permit might have been ‘the last straw’. He was extensively cross-examined about the effect which other traumatic events had on the appellant and on the contribution that work-related stress had made to the appellant’s condition. He said that the appellant might have been hypersensitive to ‘vulgar sexist remarks’ which would have been regarded by her as highly offensive and attacking. The following exchange occurred between Dr Holwill and counsel for the respondent:

Counsel:But if we excise the period from November ’99 to September 2000 and just assume she was sitting under a palm tree for that period of time, there is [sic] plenty of events in this woman’s life to justify her current extreme psychiatric disability?
Dr Holwill:Yes. Yes, you would have to say that. Yes.

B The trial judge’s reasons

His Honour made the following remarks about the cause of the appellant’s psychiatric condition:

Mr Gillies submitted that the existence of a duty of care is dependent upon the employer being able to reasonably foresee the risk of the employee sustaining a recognisable psychiatric illness. In this case the plaintiff would need to establish that Wilson or Moxon ought reasonably to have foreseen that the plaintiff was at risk of suffering a recognisable psychiatric illness as a result of performing her duties at work. Her referred in detail to Koehler v Serabos (2006) 222 CLR at 444.
In my opinion, Mr Gillies’ submission would have been correct if the plaintiff had been claiming now that her psychiatric condition was caused by her duties at work. However, that is not the case. The plaintiff is claiming that her psychiatric reaction was caused by harassment to which she was subjected. There is a significant difference. A recognisable psychiatric illness is not a remote outcome for the victim of harassment. It is not ‘far-fetched or fanciful’ in the terms of the test laid down in Wyong Shire Council v Shirt (1979) 146 CLR at 147.
It is, in my opinion, a matter of degree. However, if Wilson and Moxon had been the perpetrators of behaviour that did amount to harassment of the plaintiff and if that harassment was a cause of recognisable psychiatric illness, then such an outcome would be reasonably foreseeable.
I do think it was legitimate for Mr Gillies to suggest that I could not be satisfied that there was a causal relationship between the incidents upon which the plaintiff relied, or the general behaviour that she described, and the psychiatric illness that she undoubtedly developed. Insofar as a triggering incident be isolated, it was the disability parking permit incident. The sequence of events establishes that the plaintiff did deteriorate in the period following 21^st September 2000. It does not necessarily follow that this incident was the cause of that deterioration but from a temporal point of view it is most closely connected to the plaintiff’s deterioration.
However, the plaintiff’s life has been far from an uncomplicated one. There have been many incidents that have been the cause of stress and distress to her. I have mentioned many, but not all, of the events that emerged. For example, the plaintiff had a history of at least four failed relationships. At least two of those four seem to have been a very unhappy experience for her. In 1998 such a failure was said to be the cause of depression of which she complained and for which she was treated. However, there were many other events, most of which seem to have been more traumatic for her than any of the ten incidents attributed to Wilson and Moxon. There is no logical reason to isolate the plaintiff’s relationship with her two superiors between November 1999 and September 2000 and to blame her illness on it as opposed to all the other stressful experiences to which she has been subjected.
This discussion is all on the assumption that her psychiatric illness has been caused by an event or a combination of events to which she has been subjected. This is an assumption that I would be wary about accepting. The conclusions of Drs Kaplan and Holwill are to this effect, but to me it is not self-evident. Perhaps it might be in some cases, but not in this. Fortunately, this is not a question that I now have to answer.[36]

[36]Reasons [83]–[88].

Counsel for the respondent said that it was unnecessary for his Honour to give detailed consideration to the evidence of Drs Kaplan and Holwill, because he had held that the plaintiff’s factual claims were not made out. He said that in any case his Honour was entitled to disregard the medical evidence of Dr Kaplan and Dr Holwill because it was based on the history the appellant had given to them.

Since I have concluded that the factual findings made by his Honour should not be set aside, it is unnecessary to decide whether his Honour should have accepted the medical evidence that the appellant’s psychiatric condition was caused by harassment in the workplace.

If his Honour had found that the appellant’s factual claims were made out I consider there would have been sufficient evidence that workplace harassment contributed to the appellant’s psychiatric disability, or increased its severity. Dr Kaplan’s comment that she was functioning effectively prior to 1999 and became ill subsequently provides some support for that view. Assuming that Victoria Police breached the duty of care it owed to the appellant, the fact that she may have been more sensitive to harassment because of her previous difficult experiences, would not have precluded her from recovering damages for a psychiatric injury caused by particular incidents or a generally stressful workplace environment.[37]

VI THE CONTRACTUAL ISSUE

[37]See Watts v Rake (1960) 108 CLR 158, 164 (Menzies J, with whom Dixon CJ and Windeyer J agreed). That decision was cited with approval in Spence v Gomez [2006] VSCA 46.

The final group of grounds of appeal relates to his Honour’s dismissal of the appellant’s contractual claim. The appellant’s counsel submitted that paragraphs 7 to 12 of her statement of claim pleaded that Victoria Police human resources policies were incorporated into the appellant’s contract of employment or were implied terms of the contract. It was said that his Honour had not considered this issue although it had been addressed in opening submissions and the closing address made on behalf of the appellant. Instead he had simply said that ‘he was at a loss to understand’ how the policies could become implied terms in the contract and that the authorities relied upon by counsel for the appellant were ‘not to the point’.[38]
[38]Reasons [90]-[91].

The relevant terms were said to be based on sections of the Victoria Police Personnel Management Manual setting out policies on ‘Equal Opportunity and Internal Complaints’ and Workplace Conflict Issue Resolution Process and Guidelines and a submission made to the Equal Opportunity Commission of Victoria with the title ‘Reasonable Equity & Diversity Precautions undertaken by Victoria Police 1993-2001’.

It was submitted that Wilson and Moxon’s behaviour breached these contractual terms.

In support of these submissions, counsel relied on two decisions of the Federal Court of Australia, Riverwood International Australia Pty Ltd v McCormick[39] and Nikolich v Goldman Sachs J B Were Services Pty Ltd,[40] which held that an employer’s human resource policies were incorporated by reference into an implied term in the contract of employment.
[39](2000) 177 ALR 193 (‘Riverwood’).
[40][2006] FCA 784. Note, this decision was upheld on appeal to the Full Court of the Federal Court: Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCFCA 120 (‘Nikolich’).

The appellant’s counsel said that the appellant, Brosnan and Mackie were broadly aware of these policies and that it was not open to Victoria Police to deny that they were incorporated into the appellant’s contract of employment. Alternatively the pleaded terms should be implied into the appellant’s employment contract to give it business efficacy. The appellant’s statement of claim sets out the various terms that are said to be incorporated by reference into the employment contract, and the Court was provided with a document cross-referring those terms to specific parts of the policy documents relied on.

Particular reference was made to the following sections of the Equal Opportunity and Internal Complaints Resolution section in the Personnel Management Manual:

15.14.1POLICY
Victoria Police is committed to providing a safe and healthy workplace, protecting and enhancing the health, safety and wellbeing of all employees.
All Victoria Police employees are required to behave in a professional manner that exhibits the Organisational Identified Values and Attendant Behaviours, Code of Conduct and Code of Ethics and treat each other with dignity and respect, regardless of rank or classification. Victoria Police will not tolerate inappropriate workplace behaviours (including bullying) between employees.
This policy is intended to provide an effective and acceptable means for employees to bring workplace conflict issues and complaints concerning their health and wellbeing at work, to the attention of management. Employees are encouraged to do so to facilitate a prompt resolution of issues.
This policy will be reviewed in December 2005.

15.14.4INAPPROPRIATE WORKPLACE CONFLICT BEHAVIOUR
Inappropriate Workplace conflict behaviour issues may fall into various categories, some of which may be covered by other resolution processes and policies. This policy is designed to cover the following range of issues.
·Alleged bullying behaviours (as defined below);
·Single incidents or behaviours that create or are perceived to create a psychological or physical risk to Health and Safety;
·Workplace conflict that is perceived to have a negative impact on psychological health and wellbeing.

15.14.5WORKPLACE BULLYING
Workplace Bullying is repeated unreasonable behaviour directed towards an employee, or group of employees, that intimidates, humiliates or undermines others, and creates a risk to health and safety.
A person demonstrating such behaviour may be unaware that their behaviour is having any of the above effects. It is sufficient that they could or should reasonably have known that their conduct was affecting people in that way.
Bullying can include the following types of behaviour:
·Hostile behaviour toward a staff member (or group);
·Verbal abuse (eg: being sworn at, threatened, insulted, continual inappropriate and/or invalid criticism, name calling, humiliating practical jokes, unjustified threats of dismissal, belittling and humiliation, gossip and malicious rumours inappropriate language, yelling);
·Abusive e-mails or other correspondence;

·Threatening body language;
·Unreasonable demands, unnecessary pressure and impossible deadlines which are targeted at an individual and unrelated to legitimate operational needs;
·Unfair or unreasonable allocation of tasks and/or working hours;
·Deliberately changing work rosters to inconvenience an employee;
·Unreasonably undermining a person’s work performance, recognition, or position.
·Deliberately withholding necessary work-related information or resources, or supplying incorrect information;
·Inappropriate surveillance or monitoring;
·Inappropriate interference with personal belongings or work equipment;
·Inequitable or unreasonable exclusion from or access to training, conferences or work related travel;
·Inequitable application of work rules and benefits;
·Unreasonably excluding employees from activities;
·Unreasonable implementation of organisation restructure.

As an employer Victoria Police has a fundamental right to direct, control and monitor how work is performed. Accordingly the following behaviours or actions do not constitute bullying:
·Genuine and reasonable orders and instructions;
·Reasonably applied administrative or operational procedures;
·Appropriate performance related feedback and advice;
·Reasonable application of disciplinary procedures;
·Constructive comments which are objective and indicate observable deficiencies in performance or conduct;
·Constructively delivered feedback or counselling intended to assist employees to improve their work performance or the standard of their behaviour;
·Reasonable organisational restructuring;
·Reasonable grievances.

15.14.6 PREVENTION OF WORKPLACE CONFLICT
Victoria Police will aim to prevent inappropriate workplace conflict behaviours. Prevention elements include:
·Policy and guidelines;
·Provision of information, instruction and training on workplace conflict in Police and Public Servants induction, and all training relating to recruitment, confirmation and promotion;
·A specific training program for all employees;
·Monitoring of trends and early identification of issues by Organisational Health Branch;
·The establishment, implementation and evaluation of an effective and confidential issue resolution procedure;
·Annual survey of employee health and well-being, including ongoing assessment of appropriateness of the behaviour of managers and peers;
·Identification of systemic factors, which may contribute to inappropriate behaviours and development of organisational strategies to address these.

Reference was also made to the introduction to the ‘Workplace Conflict Issue Resolution Process & Guidelines’:

It is the responsibility of all employees and managers within Victoria Police to work within the Force Values of Integrity, Leadership, Flexibility, Respect, Support and Professionalism (See Appendix 1). That responsibility also extends to treating each other with dignity and fairness.
It is a shared responsibility between management and employees to manage and resolve conflict issues within the workplace. To meet that responsibility all employees have an obligation to participate in the early identification and resolution of workplace conflict.
It is anticipated that many of the conflict issues will be resolved informally at the local workplace level by local management. This process, Workplace Conflict Issue Resolution, has been developed to facilitate and encourage local resolution. In some circumstances local resolution may not be appropriate or achievable and the issue can be elevated to a level at which resolution can be achieved and assured.
In support of this process Victoria Police have developed Prevention and Resolution of Workplace Conflict Policy (See Appendix 2).
The procedures set out a three-stage process:
·     The first stage attempts to resolve conflicts within the workplace by discussion.
·     The second stage attempts to resolve conflict using local management and mediation if appropriate.
·     The third stage provides for a formal assessment of the issues and organisational resources to address any conflict.
The entire procedure is designed to be non punitive and is focused on resolving the conflict and assisting the parties to improve their situation and the workplace.
No material gathered in this process can be used for other purposes such as discipline, other formal complaints or investigations without written consent of the employee who provided the material.

I have already referred to sections in the Guidelines relating to the requirement that managers comply with occupational health and safety requirements.[41]

[41]See paragraph [75] above.

Counsel for the respondent submitted that, having reached the view that the incidents on which the appellant relied had not been established on the balance of probabilities, it was unnecessary for his Honour to address the contractual argument.

In response to the appellant’s claim that his Honour had not dealt adequately with the appellant’s claim based on breach of contract, counsel for the respondent said that s 14(4) of the Accident CompensationAct1985 deemed a contract of employment to be in existence for compensation purposes, but did not have any broader effect. Even if s 14(4) created a contract between the appellant and the respondent for the purposes of the appellant’s claim there was no basis for incorporating or implying terms into that contract, based on the human resources policies of Victoria Police. The cases of Riverwood and Nikolich, on which the appellant relied, were readily distinguishable.

The language of the respondent’s human resources policy showed that it simply expressed aspirations about the treatment of police members, and was not intended to have any contractual effect. For example, this was the obvious effect of the provision that ‘Victoria Police is committed to a workplace free of discrimination, sexual harassment, and victimisation pursuant to Equal Opportunity legislation’ and the statement that ‘discrimination, sexual harassment and victimisation are unlawful and as such will not be tolerated in the workplace’.

Finally, counsel for the respondent submitted that the appellant had not advanced an ‘implied term’ case at trial.

A Conclusion

I have already said that I do not consider that the trial judge’s factual findings should be set aside. While this makes it unnecessary to consider the appellant’s contractual claim, I will make some brief comments regarding the authorities to which the Court was taken, and their application to this case.

The first question to be resolved is whether s 14(4) of the Accident Compensation Act 1985 creates a contractual relationship between the appellant and Victoria Police for all purposes. Section 14(4) provides that:

(4)For the purposes of this Act every member of the police force... shall be deemed to be employed by the Crown under a contract of service, and notwithstanding any rule of law to the contrary, that contract of service and the relationship of master and servant shall be deemed to exist between the Crown and each member of the police force… in respect of the exercise and performance of all the powers and duties as such a member, whether arising at common law or under any statute or by the instructions of superiors or otherwise.

It is clear that the provision was intended to overcome the principle in Enever v The King[42] that a police officer is not an employee of the Crown, so as to permit a police officer to recover compensation under the legislation. I do not consider that the provision has any wider operation.
[42](1906) 3 CLR 969. See also State of Victoria v Horvath [2002] 6 VR 326, 343.

However even if the provision creates a contract of employment between the appellant and the respondent for the purposes of this claim, the appellant must also show that the deemed contract includes incorporated or implied terms based on Victoria Police human resources policies. The cases on which the appellant relies are clearly distinguishable on the facts.

In Riverwood, an employee had signed an employment letter, under which he was required to ‘abide by all company policies and practices currently in place, any alterations made to them and any new ones introduced’. The majority of the Full Court of the Federal Court[43] upheld the trial judge’s decision that the employer’s Policies and Procedures manual was incorporated by reference into the contract of employment,[44] with the result that the respondent was entitled, as a matter of contract, to the redundancy benefits described in the manual. The majority agreed with the trial judge that because of the ambiguity in the meaning of the requirement to ’abide by’ the various policies it was permissible to examine the facts existing at the time of the letter to ascertain the intentions of the parties.[45]
[43]North and Mansfield JJ, Lindgren J dissenting.
[44]Having reached this conclusion, their Honours did not consider the trial judge’s finding that the manual was also an implied term of the contract.
[45]Riverwood (2000) 177 ALR 193, [89] (North J) and [147] (Mansfield J).

The majority rejected the argument that the purpose of the manual was to confer obligations on the employee but not on the employer and held that the employee’s acceptance of various obligations set out in the manual ‘carried with it [the employer’s] offer to abide by the manual by conferring the benefits provided in the manual on [the employee]’.[46] Mansfield J commented that the policies in the manual were ‘expressed in terms which are entirely apt to be treated as expressing mutually enforceable obligations; they are clear, precise, direct and mainly dealt with matters which one might expect to be addressed within a particular employment contract’.[47]
[46]Ibid [106] (North J).
[47]Ibid [151].

In Nikolich, the respondent employee signed an employment letter which provided that ‘from time to time the Company has issued and will issue in the future office memoranda and instruments with which it will expect you to comply as applicable’. At the time of receiving the employment letter, the respondent also received a copy of the appellant’s ‘Working With You’ (WWU) manual, which contained information and policies regarding many aspects of the appellant’s operations. Some of the sections of the manual were expressed as advice, some as directions and some in the language of contract.[48] In addition to signing a counterpart of the letter accepting the employer’s offer of employment ‘as detailed in the above letter’, the respondent was required to sign forms containing summaries of sections of the WWU manual including a section on health and safety.
[48]See [2007] FCFCA 120, [13] (Black CJ).

Following a considerable absence from work, due to a major depressive disorder that was directly linked to workplace conflict, the appellant terminated the respondent’s employment. The respondent commenced Federal Court proceedings, alleging, among other things, that the appellant had acted in breach of his employment contract by failing to meet certain obligations contained in the manual.

The trial judge found that Mr Nikolich’s contract incorporated by reference a provision in the WWU that JB Were would take ‘every practicable step to provide and maintain a safe and healthy workplace environment for all people’, which appeared as the introduction to a section in which the employer said that ‘the firm has a duty to provide, as far as practicable, a working environment that is safe and without risk to health’. The judge also found that a statement in the manual describing the culture of the firm as requiring avoidance of behaviour which makes a person feel ‘offended, humiliated or intimidated’ and a statement that the firm ‘was committed to make sure that any one who makes a genuine complaint will be able to discuss his concerns confidentially, will be supported by the firm and is not penalised in any way’ were promissory obligations.

On appeal, the majority of the Full Court of the Federal Court[49] found that, although the section of the manual dealing with the provision of a safe workplace was incorporated by reference into the contract of employment, the sections concerning harassment and complaint handling were not. The decision was based on the language in which the parts of the manual were expressed. It was also regarded as significant that the respondent had been required to sign off on the appellant’s health and safety statement. The Court found that the harassment and complaint handling sections of the manual were either aspirational statements, or concerned with providing information to employees, and thus were not of contractual effect.
[49]Black CJ, Marshall and Jessup JJ.

In my view the learned trial judge was right to regard these decisions as being ‘not to the point’. Neither Riverwood nor Nikolich provide a sound basis for the incorporation by reference of parts of the respondent’s policies into the appellant’s contract of employment. I take that view for three main reasons.

First, in both cases, the incorporation argument was founded on a term of the employment contract which referred in some way to the employer’s policies. In this case, the Court has not been provided with a written contract of employment containing such a term, and there was no evidence that there was any oral term to this effect. Section 14(4) of the Accident CompensationAct does not overcome that problem.

Secondly, the decisions in Riverwood and Nikolich were based on the court’s view as to the intention of the parties, which was based on a consideration of the facts surrounding the entry into the employment contract. In this case, there was no written contract of employment, and no evidence was led regarding the intention of the parties, or facts which might support the incorporation argument.[50] The only evidence given by the appellant concerning the respondent’s policies was that she was aware that there were posters in the office regarding bullying, harassment and victimisation. This somewhat vague evidence is entirely inconsistent with the notion that the parties intended and understood that the policies were of contractual effect.
[50]For example, evidence that police officers were provided with a copy of the policies on commencement, or that they regarded themselves as bound to comply with the policies.

Thirdly, I do not consider that the statements in the Victoria Police human resources policy relied on by the appellant impose sufficiently clear and precise obligations on the employer to be regarded as contractual. Some of these terms are, in my view, merely aspirational. This applies for example to the statements that the respondent ‘will aim to prevent inappropriate workplace conflict behaviours’, and ‘is committed to a workplace free from discrimination, sexual harassment and victimisation’.

Other statements, including statements that the respondent ‘will not tolerate inappropriate workplace behaviours’ are concerned with the conduct that is expected of employees, rather than making promises about the conduct of employees.[51] Even if aspects of the policies contain statements that might properly be classified as promissory in nature, the appellant has failed to establish that the policies were provided to the appellant, or to police officers generally, or that the respondent has acted in breach of the policies.
[51]See Nikolich [2007] FCFCA 120, [298] (Jessup J).

Finally, I must briefly deal with the appellant’s submission that the human resources policies of Victoria Police should be implied into the employment contract between the appellant and the respondent, under the principles in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[52]No detailed argument was made on this matter, but I do not consider that s 14(4) of the Accident Compensation Act provides any basis for recognition of a contract containing such implied terms. It is unnecessary to express a view as to whether terms requiring employers to take steps to protect their employees from harassment might, in some situations, be implied into employment contracts in order to give them business efficacy.

[52](1977) 180 CLR 266. See also CodelfaConstruction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337.

For these reasons I would dismiss the appeal. It is therefore unnecessary to consider the respondent’s Notice of Contention.

DODDS-STREETON JA:

I have had the great advantage of reading in draft the reasons for judgment prepared by Neave JA. I agree with the disposition proposed by her Honour for the reasons she has stated. I wish, however, to add some brief observations of my own.

As the learned trial judge concluded that nine of the ten specific incidents relied on by the appellant to establish harassment (including sexually explicit remarks and sexual innuendo) did not occur, his characterisation of them as trivial was hypothetical and obiter dicta. Any opinion expressed by this Court on the nature of the non-existent incidents must bear the same character. I nevertheless agree with Neave JA that a series of separate incidents, minor in themselves, could cumulatively constitute bullying or harassment.

I am not, however, persuaded that all of the alleged incidents, if established, would individually constitute bullying or harassment. Whether comments about a colleague’s hairstyle or participation in a discussion (conducted where it could be readily overheard) about the effects of hormone treatments constitute harassment or an element thereof may depend not only on the spoken words but on context, including the speaker’s accompanying expressions and demeanour. While aggressively throwing objects at colleagues in the workplace is a clear-cut breach of applicable standards, in many instances it may be more difficult to draw the line between, on the one hand, acceptable workplace banter, humour and broad interchange and, on the other hand, offensive and harassing comments which an employer may not tolerate without breach of duty. It will, of course, be necessary to determine such distinctions on a case by case basis.

OSBORN AJA:

I agree that the appeal should be dismissed for the reasons stated by Neave JA.

[2009] VSCA 107

22 May 2009