Billington v Sussan Corporation (Aust) Pty Ltd (ACN 005 489 725)
[2020] VCC 1963
•11 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-03412
| IAN RICHARD BILLINGTON | Plaintiff |
| v | |
| SUSSAN CORPORATION (AUST) PTY LTD (ACN 005 489 725) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6, 7, 8, 12, 13, 14, 15, 19 October 2020 | |
DATE OF JUDGMENT: | 11 December 2020 | |
CASE MAY BE CITED AS: | Billington v Sussan Corporation (Aust) Pty Ltd (ACN 005 489 725) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1963 | |
REASONS FOR JUDGMENT
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Subject: INDUSTRIAL INJURY – CAUSE
Catchwords: The plaintiff, a manager with the defendant company, suffered psychological injury as a result of being harassed and humiliated at an entertainment function during the defendant’s annual conference – action brought in breach of contract of employment, and in breach of employer’s duty of care – issue as to the terms of contract of employment – whether terms from defendant’s policies, in particular harassment and bullying policy, imported into employment contract – whether breach of those terms – remoteness of damages – formulation of duty of care – whether the duty extended to take steps to prevent harassment and, if so, whether breach of that duty – foreseeability of the risk of psychiatric injury
Cases Cited:Toll (FGCT) Pty Limited v Alphapharm Pty Limited & Ors [2004] 219 CLR 165; Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120; Liftronic Pty Ltd v Unver [2001] HCA 24; Leighton Contractors Pty Ltd v Fox [2009] 240 CLR 1; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Hatton v Sutherland [2002] 2 All ER 1; Hegarty v Queensland Ambulance Service [2007] QCA 366; Taylor v Haileybury [2013] VSC 58; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Nationwide News Pty Ltd v Naidu & Anor [2007] NSWCA 377; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; Wyong Shire Council v Shirt (1980) 146 CLR 40; Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Rosenberg v Percival [2001] 205 CLR 434; Jones v Bartlett (2000) 75 ALJR 1; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164; Sydney Water Corporation v Turano [2009] HCA 42; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Gogay v Hertfordshire County Council [2000] EWCA Civ 228; [2000] IRLR 703; Larner v George Weston Foods Limited [2014] VSCA 62; Hadley & Anor v Baxendale & Ors [1854] EWHC Exch J70; (1854) 9 Ex Ch 341; 156 ER 145; Baltic Shipping Company v Dillon (1993) 176 CLR 344
Judgment:Plaintiff’s case fails – judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with Ms M Pilipasidis | Zaparas Lawyers |
| For the Defendant | Mr P B Jens QC with Mr J Angenent | Thomson Geer |
HIS HONOUR:
Preliminary
1 Mr Ian Billington has spent most of his working life in the retail clothing industry. After management positions with a number of large clothing companies, he commenced work with the defendant, Sussan Corporation (Aust) Pty Ltd (“Sussan”), in June 2011 as a business manager. His duties were set out in a job description document.[1]
[1]Exhibit D, Plaintiff’s Court Book (“PCB”) 159 – referred to as “Job Dictionary”
2 In 2015, Sussan operated two hundred retail clothing outlets throughout Australia and New Zealand. Mr Billington was responsible for the oversight of about fifteen of those stores.
3 Around the time he started work with Sussan, Mr Billington had several stressful issues in his life. He was particularly close to a cousin, about his own age, who died in 2013. He was upset at her death and saddened that he was not able to provide more support to her.
4 Mr Billington met and formed a relationship with Mr Paul Aiken, who suffered an undiagnosed illness over an extended period. Their relationship subsequently broke down in particularly difficult circumstances.
5 Mr Billington suffered some stress and anxiety related to his job, which was demanding. He described to a psychologist, Ms Holly Richards, a work environment that was “bitching and backstabbing” and where staff were “criticised and/or discriminated against”.[2]
[2]Exhibit J – PCB 61
6 Mr Billington sought treatment from his general practitioner for symptoms arising from these issues and was referred to a psychologist, Dr Chris Lana, who he saw from April 2015. At the time, he described to one practitioner that he thought he was having a “breakdown”. With treatment, Mr Billington said he was doing quite well by August 2015. Throughout, he remained working full time.
7 Notwithstanding these issues, the evidence points to Mr Billington being regarded by all at Sussan, in particular senior management, as respected, competent and personable. He was said to be well liked by the store managers he oversaw.
8 A Sussan conference was conducted at a function centre at Creswick, near Ballarat, over several days in 2015. There was a dinner and awards ceremony on the evening of Tuesday, 11 August 2015. As in previous years, there was entertainment arranged, on this occasion involving a Kylie Minogue impersonator (“KMI”), dancers and a backing band. At similar conferences conducted in 2013 and 2014, Mr Billington had been involved in the entertainment, and performed on stage.
9 On this occasion, Mr Billington was called up on stage, to the acclaim of the crowd, and sang a song with the KMI. He said he felt uncomfortable doing this. A little later in the evening, he was called back on stage by the KMI, and was asked a number of personal questions, including about his marital status. He was then taken behind the stage and dressed in hotpants, a bikini top and a hat, and returned to the stage. He was cajoled into dancing and singing.
10 Mr Billington said he found the experience degrading, humiliating and embarrassing. In particular, he felt he could no longer maintain the respect of the store managers he oversaw who were present at the function. He suffered a psychological decompensation.
11 Mr Billington did not return to work with Sussan after the conference. He was diagnosed with a significant psychological injury, in the nature of an Adjustment Disorder with Anxiety or a Panic Disorder with agoraphobia.
12 Mr Billington returned to South Australia and has lived with his parents since. He has obtained part-time employment but claims he would not be able to return to the sort of employment he enjoyed at Sussan.
13 Mr Billington alleges the failure by Sussan to prevent his humiliation constituted a breach of the Contract of Employment and a breach of the employer’s duty of care.
14 Mr McCredie, counsel for the plaintiff, said it was not part of the plaintiff’s case that he was sexually harassed nor bullied. No allegations were levelled against the KMI.
The employment contract
15 Mr Billington’s employment contract (“Contract of Employment”) was tendered.[3] The “effective date” was 27 June 2011. The Contract sets out details as to remuneration, conditions of employment, confidentiality, intellectual property and the like. Under the heading “Sussan Policies”, there is stated:
“(a)… you are expected to have read and accepted our Electronic Access, Health and Wellbeing, Harassment and Equal Employment Policies.
…
(c)Sussan may, at its discretion, change, vary, amend or replace any of its policies during the course of your employment. Sussan policies and procedures do not form part of your contract of employment.”[4]
[3]Exhibit F
[4]Ian Billington Contract of Employment at page 4
16 Under “Code of Conduct”:
“Sussan expects all its team members to behave in a manner appropriate for business purposes in the conduct of their duties. Expected standards of behaviour are detailed in the Code of Conduct as amended from time to time … .”[5]
[5]Ian Billington Contract of Employment at page 4
17 Further, there is a heading “Harassment & Bullying”:
“Sussan considers harassment, bullying and unlawful discrimination to be unacceptable forms of behaviour. The company has adopted a policy which you must comply with.”[6]
[6]Ian Billington Contract of Employment at page 5
18 Mr McCredie contended that in addition to these provisions, there were incorporated into the Contract of Employment various additional terms extracted from Sussan policies, including the Code of Conduct, the Harassment & Bullying Policy and the Health, Safety & Wellbeing Policy. What happened to the plaintiff on 11 August 2015, he said, constituted “harassment”, as defined in the Harassment & Bullying Policy.
19 According to Sussan’s “Code of Conduct”:[7]
“This employee code of conduct applies to all employees within Sussan, and forms part of your conditions of employment which if substantially breached may lead to counselling or termination of employment.”
[7]Exhibit A, PCB 107-111
20 Further:
“… Sussan makes the following undertakings for all employees to provide a rewarding and satisfying work environment for all our employees. To achieve this we will:
• …
• Provide an environment free of harassment and discrimination for our employees and customers.”[8]
[8]PCB 107
21 Under the heading “Behaviour of Employees”:
“To achieve this we require you to:
• …
• Respect diversity and recognise this as an organisational strength.”[9]
[9]PCB 108
22 Under the heading “Policies and Procedures”:
“• Employees are required to comply with all company policies and procedures at all times. Failure to [do] so, may result in disciplinary action or termination of employment.”[10]
[10]PCB 108
23 Under the heading “Harassment and Discrimination”:
“• Sussan expects that all employees provide an environment free of harassment and discrimination at all times
• Sussan will not tolerate any form of discrimination or harassment against employees or prospective employees in the areas of recruitment, transfers, training, promotion, conditions of employment, remuneration or dismissal.”[11]
[11]PCB 108
24 Under “Occupational Health and Safety”:
“• Employees must consider their own safety and the safety of those around them whilst at work. This includes following our occupational health and safety policies and procedures at all times.
• …
• All employees must strive to provide a safe and friendly environment for our customers and employees at all times.
… .”[12]
[12]PCB 109
25 Under “Personal Conduct”:
“• Employees are expected to act in a courteous and respectful manner at all times when dealing with fellow employees, internal and external customers, suppliers or contractors.
• Employees are expected to follow all reasonable instructions from Managers and Supervisors.
… .”[13]
[13]PCB 109
26 Under “Work Related Functions”:
“• Employees are expected to behave in a professional manner and to adhere to this code of conduct at work related functions.”[14]
[14]PCB 109
27 There was a “Grievance Procedure”[15] which said that in the event of disputes or grievances arising, employees were to raise the matter with their line manager or through a grievance procedure.[16]
[15]PCB 111
[16]Exhibit 10
28 Sussan had an “Harassment & Bullying Policy”.[17] In that document, under “Scope”:
“This policy applies to all internal and external relationships within the Sussan Group including team members, contractors, consultants, suppliers and customers.”[18]
[17]Exhibit B, PCB 112-120
[18]PCB 112
29 Under “Policy”:
“The Sussan Group is committed to providing a work environment that is pleasant for team members to work in and conducive to positive workplace relations. The Sussan Group is committed to ensuring the work environment is free from all forms of discrimination, harassment, including sexual harassment and bullying, and that all team members are treated fairly and equitably, and work in an environment free from all forms of harassment. The Sussan Group does not tolerate harassment or bullying on any grounds and will take all complaints seriously.
This policy is aimed at ensuring that team members are not subjected to any unwanted workplace harassment or bullying … .
The Sussan Group does not accept or tolerate harassment or bullying of any of its team members by other team members, contractors, consultants or suppliers.
Breach of this Policy
All team members are required to comply with this policy at all times. If a team member breaches this policy, they will be subjected to disciplinary action in accordance with the Sussan Group Performance Counselling Procedures.
What is harassment?
Harassment constitutes behaviour which is inappropriate, offensive and demeaning, is unwanted, uninvited or unwelcomed by the recipient, and creates an unpleasant or intimidating work environment.
Harassment is when a person feels offended, humiliated or intimidated because of one of the attributes listed below. It may involve inappropriate actions, behaviour, comments or physical contact that is objectionable or causes offence.
•… •Lawful sexual activity/sexual orientation or preference •… •Sex Harassment consists of offensive, abusive, belittling or threatening behaviour directed at a person or a group of people, because of a particular characteristic of that person or a group of people. The behaviour must be unwelcome and likely to cause the person/people to feel offended, humiliated or intimidated.
Unlawful harassment may have occurred if the behaviour makes the victim feel:
•Offended and humiliated;
•…
•Uncomfortable at work
Unlawful harassment can include behaviour such as:
Verbal Behaviour
•Making fun of someone because of their sexual orientation, race, disability, age, or sex
•…
•…
•Making derogatory comments or questions about someone’s religion or personal life
•Verbal abuse or insults
•Suggestive comments about a person’s body or appearance
•Asking intrusive questions about someone’s personal life, including their sex life
… .”[19]
[emphasis added]
[19]PCB 112-113
30 Under the heading “Where can harassment, sexual harassment and bullying occur?”:
“Harassment, sexual harassment and bullying in the workplace can take place between:
•A team member and Manager
•Co-workers
•A team member and another person in the workplace, for example, a customer, a visitor, a contractor or a job applicant.
Harassment can occur in any work location, and can occur at work related activities outside the workplace, for example, Christmas functions, unwanted phone calls to a team member’s home, social media, conferences, and during work related travel.”[20]
[20]PCB 115-116
31 Under “Managers and Supervisors responsibilities”:
“• Managers and Supervisors are responsible for ensuring team members and customers are not harassed or bullied within the workplace.
… .”[21]
[21]PCB 117
32 Further, Sussan had a “Health, Safety & Wellbeing Policy”.[22] That document provided:
“We will ensure, so far as is reasonably practicable, team members are not exposed to risks to their health, safety and wellbeing arising from their employment with the Sussan Group. We are committed to providing a safe and healthy environment for the wellbeing of our team members by identifying, assessing and controlling risks associated with hazards in the workplace.”[23]
[22]Exhibit C, PCB 121-124
[23]PCB 121
33 Further, under “Sussan Group Responsibilities”:
“• Provide a safe workplace, so far as is reasonably practicable, for team members.
• Promote and encourage a safe work culture.
… .”[24]
[24]PCB 121
34 The plaintiff contends the extracts from the policies referred to above should be implied as terms in the Contract of Employment.
35 Mr McCredie submitted, given Sussan undertook to provide an environment free from harassment, that the Code of Conduct was a promissory rather than an aspirational provision. Likewise, the provision that Sussan “will not tolerate any form of … harassment”.[25] Work-related functions were included as places where the Code of Conduct was expected to be adhered to.
[25]PCB 108
36 Mr McCredie submitted the Harassment & Bullying Policy set out a broad definition of what constituted harassment, including behaviour that was unwanted, inappropriate, offensive and demeaning. The policy was said to apply to contractors. Sussan committed to an harassment and discrimination-free work environment. It may occur when the victim felt offended, even uncomfortable, and included making fun of someone because of their sex.
37 It was contended that what occurred to Mr Billington at the function fell within the definition of “harassment” and as such represented a breach by Sussan of that contract.
38 This was not a case, said Mr McCredie, which pleaded a contract of employment with terms coterminous with the obligations of an employer under its duty of care. It was a separate and distinct cause of action.
Did the Contract of Employment contain a term that the Plaintiff not be harassed nor discriminated against?
39 It is well established that in a contract of employment, if a promise is made which is intended to contractually bind the parties, even though that promise is not part of the written contract, it may nonetheless bind the employer.
40 In Toll (FGCT) Pty Limited v Alphapharm Pty Limited & Ors,[26] the High Court said:[27]
“… It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”
[26][2004] 219 CLR 165
[27]at 179, paragraph [40]
41 As was pointed out in Goldman Sachs JB Were Services Pty Limited v Nikolich,[28] in order for a term from a related employment document to be implied as a term of the contract of employment, the statement must be said to be promissory or contractual in nature, rather than merely aspirational.[29]
[28][2007] FCAFC 120 (“Goldman Sachs”)
[29]per Black CJ at paragraphs [29]-[31]
42 Mr Billington’s Contract of Employment itself makes reference to Sussan’s policies. Those policies were said to be provided, and it was the expectation that they would be read and accepted.
43 In relation to Sussan’s Code of Conduct, the language used in the Contract of Employment is not aspirational in nature. There was an expectation that employees (referred to as “team members”) would behave to standards detailed in the Code. Sussan stated it had adopted a policy in relation to harassment, bullying and unlawful discrimination which “you must comply with”.[30]
[30]Exhibit F, Ian Billington Contract of Employment at page 5
44 The wording in these parts of the Contract of Employment were clearly promissory and demanding in nature, with significant consequences for a breach, including termination.
45 It is anomalous that the Contract of Employment provided: “… Sussan policies and procedures do not form part of your contract of employment”,[31] when the Code of Conduct provided that the Code applied to all employees and formed part of the conditions of employment.
[31]Exhibit F, Ian Billington Contract of Employment at page 4
46 The Harassment & Bullying Policy was couched in similar language. The Policy was said to apply within the Group, and to contractors and consultants outside. Sussan was said to commit to the Policy and would not accept nor tolerate harassment of employees. Any breach of the Policy would invite disciplinary action.
47 The Health, Safety & Wellbeing Policy was couched in similar language and bore the same tone.
48 It is difficult to reconcile the employment condition stating policies and procedures were not part of the Contract of Employment with what are clear promissory obligations in the related documents.
49 I am of the view that a reasonable person in the position of the parties at the time the contract was entered would have understood that it was the intention that Mr Billington’s Contract of Employment would encompass, where relevant, aspects of the Code of Conduct, the Harassment & Bullying Policy, and the Health, Safety & Wellbeing Policy, notwithstanding the claim that the policies did not form part of his Contract of Employment.
50 Taking then from these policies and importing them into Mr Billington’s Contract of Employment, Sussan undertook to provide a working environment:
· free from harassment or discrimination, including from behaviour which was unwanted, inappropriate, offensive, demeaning, or behaviour which humiliated;
· including behaviour at work-related functions;
· including the behaviour of contractors or consultants who may be retained by Sussan; and
· which required managers and supervisors to be responsible to ensure employees were not harassed.
What happened on the evening of 11 August 2015?
51 The following summary sets out the facts which I think are not contentious.
52 Each year, sometimes twice a year, Sussan had a conference to introduce a new clothing range. Each conference was held over two or three days and consisted of seminars on the issues relevant to the industry, with a social dinner and awards function at the end. They were attended by store managers; that is, those who manage a particular Sussan store; and business managers, those next up the line and in charge of regional groups of those store managers, and their stores. There were also more senior Sussan employees present.
53 Mr Billington started in 2011 as a business manager. His “line manager” was Ms Cristiana Bronson. Later, it became Ms Catherine (Cathy) McNabb.
54 At an earlier conference in 2013, the entertainment at the conference dinner involved different groups with different themes. Mr Billington’s group’s theme was “Bollywood”. He was actively involved in its planning and presentation, including dancing on stage.[32]
[32]See photographs – Exhibit 1
55 In 2014, Mr Billington was involved in the planning and presentation of an ’80s music-themed quiz night. He volunteered with another business manager, Ms Janelle Pandit, to organise the function and again was on stage, performing.[33]
[33]See photographs – Exhibit 2
56 In relation to these performances, Mr Billington said he was nervous but was able to prepare and was in control of what occurred.
57 Each Monday at the Sussan head office there were meetings with the managers. Sometimes there were thirty or so people present. Mr Billington confidently contributed at those meetings and felt his contributions were valued.
58 A conference was arranged for August 2015. It was to commence at a venue at Creswick, near Ballarat, on Monday, 10 August 2015, and conclude with a dinner on Tuesday, 11 August 2015. There were about two hundred or so people present, including not only store managers, business managers and senior management, but also several from a charity organisation with which Sussan had a relationship, and a number from an outside group who assisted in the preparation of the event.
59 All two hundred present were women, save for Mr Billington.
60 Prior to the conference, there was either discussion or email communication reminding those attending they were in a public space, representing the company, and their behaviour should comply with the policies and procedures of Sussan.
61 Despite being the only male present, and a gay man, Mr Billington said he was quite comfortable and felt a part of the group. As stated, he was well-liked and respected by all those he worked with.
62 The entertainment for the evening was organised by the national retail operations manager, Ms Catherine McNabb, and comprised the KMI, a backing band and four dancers: two male and two female. Barely anyone knew what the entertainment was to be, beforehand.
63 In evidence, Ms McNabb said she had seen the KMI perform at an earlier Sussan function which she said was successful and she thought would be appropriate for the 2015 dinner. No particular instruction was given by Ms McNabb to the KMI as to how the show was to be conducted nor any enquiry made as to its content. No instruction was provided to the KMI about Sussan’s policies, including the Harassment & Bullying Policy.
64 The dinner included an awards ceremony. The entertainment started around 8.30 or 9.00pm and went for two hours or so, with an interval. The KMI performed songs and danced with her group on a small stage adjoining a dancefloor. Their costumes were skimpy, described by one witness as “raunchy”, as can be seen from the various photographs.[34]
[34]Exhibit 7
65 During the performance, a number of the Sussan managers were dancing on the dancefloor. Some went onto the stage and danced with the male dancers. During the first part of the performance, Mr Billington went onto the stage and sang with the KMI. Most witnesses said his performance was well received and generally applauded.
66 In the second part of the act, Mr Billington was called back to the stage by the KMI. He was asked a number of personal questions.[35] He was then told by the KMI to go backstage and placed into the hands of one of the dancers.
[35]As shown on a recording – exhibit 5 – see further the transcription of the recording – exhibit H
67 Mr Billington re-appeared shortly afterwards wearing gold hot pants and a bikini top over his dinner suit and some head adornment. He was pressed to join a simple dance with two of the dancers, and then sang on his own for a short time while the KMI went off stage. He was on stage only for a few minutes. His involvement was again met with cheering approval from the audience.
68 There were varying versions from a number of the witnesses called as to how Mr Billington came to be on stage, what occurred and how his involvement was perceived. That is not surprising given the time that has elapsed since the event and the fact that the performance occurred over a short time. I will set out a summary of what the main witnesses said.
Mr Billington
69 Mr Billington said when he was on the dancefloor in the first part of the performance, he was pointed to, singled out and called on stage by the KMI. As he walked forward, he was grabbed and escorted by Ms Rebecca Hard, Sussan’s general manager. The KMI asked him to sing with her, and he performed part of a song, “I Should Be So Lucky”. He said he was not a good singer and was not comfortable. He found it all a little overwhelming. He sang for a minute or more. He left the stage to return to his seat at one of the tables.
70 Mr Billington spoke to two of the senior managers’ executive assistants, Ms Sophie Beven and Ms Laura Wild, on the way back from the stage. They complimented him on how well he had performed. He replied that he was glad they had enjoyed it, but he was not going up on stage again. Both were called to give evidence, but neither could recall the conversation.
71 The music and entertainment continued and the KMI performed a few more songs before taking a break. The entertainers then came back onto the stage. Mr Billington said he was at the back of the dancefloor about 6 metres or so from the stage. A few more songs were sung with the crowd engaged. Some of the women in the audience went up on the stage to dance with the male dancers.
72 And at one point, the KMI said “Where’s Ian?” and she looked around the audience. She saw Mr Billington and called him to come back up on stage. He waved his hands in a negative motion and said “No-no, no-no”. He said the audience was excited and very vocal about him going back on stage. There was cheering and jeering. He was grabbed on one arm, pushed from behind and pushed and pulled onto the stage. It was difficult to see, because it was dark. At this point, he did not want to go back onto the stage and was apprehensive about what might happen. He was unable to break free from those around him as their urging was quite forceful. He felt obliged to go up on the stage as he thought there was an expectation by senior management that he would participate. He felt he had to get back up on the stage and did so. He tried not to feel frightened or embarrassed. A conversation then occurred with the KMI.[36]
[36]See Exhibit “H” – transcript of conversation – exhibit 5 – recording of plaintiff on stage.
73 Mr Billington went backstage where the female dancers were, and was rushed into putting on gold hotpants, a bikini top over the top of his suit, and some head gear. He was off stage for a minute or two, thinking to himself “this is not really happening”.
74 Mr Billington was ushered back on stage, and then invited to follow a dance with the two male dancers. He thought the song was “Locomotion”. He stood between them and did a simple box step. He danced for a minute or a minute and a half and then stopped. The KMI handed him the microphone and asked him to keep singing the verses of the song. He knew the chorus and a few words. He was on his own on stage while the KMI and others left. He was there for possibly 30 or 40 seconds. He was holding the microphone, hoping someone would come up and help him, but that did not occur.
75 He considered himself a competent dancer, but not a good singer.
76 Mr Billington said he felt sick with embarrassment, hot and overwhelmed. He felt humiliated. He said it was really awful and degrading. Some in the front of the dancefloor held up their cameras to take photographs. He said he wanted to sink into the ground.
77 Mr Billington said the music stopped and he went backstage, handing the microphone to somebody. He was there by himself and felt trapped and started to panic. Eventually he found a way out of the area along a service corridor and went outside.
78 When he returned to the function area, lights were on and the show was over. He saw Ms Bronson and had a discussion with her. She complimented him on how well he had done and that she would make reference to what had occurred in his next performance review. Ms Bronson asked him if he was okay, as a couple of managers had come to her to check on him. She said she told them that it was okay as he had a choice as to whether to go on stage.
79 Mr Billington got back to his room and called his partner about what had occurred. He had missed a phone call from Ms Bronson. He rang Ms Bronson back. She asked if he was okay and would he like to go to the bar to have a drink with them. He said he had taken off his suit. She suggested he get changed and come and have a drink with them. He changed and went downstairs as he felt that was expected of him.
80 When he got to the bar, there were about fifteen people there. He was given a glass of wine. He remained there for about ten minutes. Back in his room, he felt tired and numb. He felt embarrassed and humiliated and did not know how the managers that he supervised could take him seriously after what had occurred.
81 He went to breakfast the next morning and then drove a number of store managers back to the Sussan head office at Cremorne. He met Ms McNabb in the carpark and she asked whether he was going home, as the other managers had.
82 Mr Billington did not return to work, and his condition became worse. He saw his general practitioner the next Saturday. He said he enjoyed the job and wanted to return to work, but felt sick and overwhelmed at the thought of returning. He felt embarrassed and let down. His sleep was affected. He started to get panic attacks. He had difficulty with crowds, shopping centres, and other places which were busy.
83 His partner, Paul, was unwell at the time, with an undiagnosed illness, and this put further pressure upon him. Their relationship broke down in acrimonious circumstances, and in March 2016, he returned to Adelaide to live with his parents. He has remained there since. He has been under the treatment of a general practitioner and a psychologist in Adelaide.
84 When questioned as to why he said “‘I feel great, very privileged’”,[37] when asked by the KMI how he felt working with “all these beautiful Sussan’s women”,[38] he said he felt the question was intrusive, and he felt nervous and intimidated when he answered it. At some point in the second session, one of the dancers thanked him for being a good sport.
[37]T198-203
[38]T198-203
Jaime-Lee Darling
85 Ms Darling is employed by Sussan as a store manager. In 2015, Mr Billington was her line manager. She described him as very professional, straightforward and fair. She recalled a conference call amongst store managers before the August 2015 conference, where there was a discussion about how the managers were to behave at the conference, including reference to dress and style.
86 At the dinner with the KMI, she recalled lots of people on the dancefloor. Mr Billington got up on the stage at least twice. She recalled some banter back and forth with the KMI about him being the only man in the room. There was peer pressure for him to go onto the stage, with lots of cheering. She said some people had had too much to drink.
87 Ms Darling recalled Mr Billington kept saying no and tried to point to others who might want to go on the stage. She was next to him on the dancefloor and said he gestured with his arms, trying to deflect attention from himself. She said he looked very uncomfortable. She interpreted his response to being torn between doing the right thing to mix with his team, but at the same time shaking his head and saying “no”. She said there were people crowded around him, some with hands on his back. A couple grabbed his arm and tried to pull him up on the stage. There was lots of cheering. She said there were upper-management people in the crowd encouraging him.
88 At one point, he went back on stage for a few minutes. He came back on stage in a shiny sort of bikini and a headdress. He was trying hard to play the role without making a fool of himself. It was clear, said Ms Darling, he did not want to be there. He looked embarrassed and uncomfortable. There were comments, including “how could he look us in the face tomorrow” and “that just got awkward”. Ms Darling started to move away and did not watch the show very much after that.
89 Ms Darling said the crowd were enthusiastic and appreciated the performance both times Mr Billington was on stage.
Deborah O’Brien
90 Ms O’Brien no longer works for Sussan, but in 2015 was employed as a store manager. Mr Billington was a business manager and was very approachable. He was a very good line manager. Prior to the 2015 conference, like other conferences, she and other managers were instructed to be mindful of their behaviour as they were representing the company in a public place.
91 On the evening in August with the KMI, she recalled Mr Billington being on stage twice. On the first occasion he was involved in a bit of dancing and appeared to be okay. He was enjoying himself. After an intermission break, he went up a second time at the beckoning of the KMI. She said: “Come on … Come on.”[39] She was towards the back of the crowd at the time and he was towards the front. It was clear he was not happy to go back on stage. There was a lot of cajoling from the crowd. There was a sad look on his face. He eventually went back on stage and then was taken to the back of the stage and dressed up. He came back wearing hotpants and angel wings or something. He appeared not happy to be there. His head was hanging down and shoulders slumped.
[39]T310
92 Ms O’Brien said she felt quite sad, as something was not right. He had been pushed to do something he was not willing to do. She did not speak to him afterwards.
93 Ms O’Brien accepted Mr Billington was applauded by all. She thought the crowd was a bit pushy. The first time he went up, it might have been on his own initiative. She recalled a question about whether his wife was in the room. She did not think that was appropriate.
Charlotte Curtin
94 Ms Curtin started with Sussan in May 2013 as the state visual merchandising manager. She worked alongside Mr Billington. He was very competent, well liked and respected.
95 On the evening of the dinner, she recalled the KMI act. The nature of the entertainment had been kept a secret until the night.
96 Ms Curtin recalled Mr Billington going on stage. She went on stage at one point also. It took a couple of goes to get him on stage. The KMI asked him some questions, such as his name and what he did at Sussan. He was asked whether he had a wife. Then he was ushered back off stage. Ms O’Brien had been a professional dancer in a previous life. At one point, she was standing nearby Rebecca Hard. In a jovial manner, Ms Hard encouraged her to get up on the stage. She said no a couple of times as it did not sit comfortably with her. Ms Hard joked she would give her a pay rise if she got up on stage.
97 When Mr Billington was asked to get up on stage, Ms O’Brien said she could hear people saying “Come on, Ian. Woo – go Ian. Get a – yeah”.[40] There was a lot of encouragement for him to get up on stage. You could see he was reluctant. He was being carried by the crowd. She thought it was a somewhat strange question to ask whether his wife was at the function. He did not appear to be comfortable when he was asked the questions.
[40]T436
98 Mr Billington went backstage and re-emerged wearing a pair of gold lamé hot shorts and a feather boa. He was encouraged to dance and then was ushered off stage again. Ms Curtin said Mr Billington was only on stage once, and that was the time when he was asked questions. She agreed there was cheering after his performance.
Janelle Pandit
99 In 2015, Ms Pandit was a business manager for Sussan. She worked closely with Mr Billington over several years. She spoke with him daily. She described him as a very able business manager, a warm person, a savvy retailer and good to work with.
100 Ms Pandit ran the 2014 conference entertainment with Mr Billington. It was an eighties trivia night. They volunteered together and undertook all the preparation. She said the managers liked to see their line managers getting involved in the entertainment at these conferences. She said the 2013 conference was also very successful. Different teams had different themes.
101 At the 2015 conference, the KMI was very popular. Everyone knew the songs and the music. Everyone made an effort to dress up. During the music, the dancefloor was packed. People got up on stage. Ms Pandit did a whole dance with the KMI dancers. She recalled Mr Billington getting up on stage and singing a song “I Should Be So Lucky”. She thought Mr Billington had volunteered. Everyone loved it, as he had an awesome singing voice. He got a great reception, in particular from his store managers.
102 Ms Pandit said Mr Billington got back up onto the stage after she thought the KMI asked him to come up again. Everyone wanted him to sing again. The crowd was excited and there was lots of cheering and clapping. He was asked some questions as to whether this wife was there and whether he liked working with all the ladies. He gave short, comic answers.
103 Mr Billington came back on stage wearing hotpants over his suit and the crowd loved it. He was taught a dance step. He was possibly involved in a final song. The crowd’s reaction was positive the whole way through.
104 She thought the business managers and some of the other senior leaders stayed up for a bit after the show to have a drink.
105 Everyone wanted Mr Billington to get up on stage because he sang so well and because he was well liked. He liked being on stage the first time. The whole night was very positive. Ms Pandit could not recall Mr Billington being pushed and pulled onto the floor. She was standing next to him on the dancefloor and did not remember him saying “No, no, no…”.[41]
[41]T537
106 Ms Pandit did not think it was inappropriate Mr Billington being asked that he worked with all these beautiful women. She agreed the question as to whether he was single was not appropriate, as it asked about sexual or relationship status. Likewise, being asked whether his wife was present was inappropriate. She agreed being asked these questions on stage in front of his line managers and store managers was even worse.
107 Some short time after the incident, Ms Pandit made notes of what occurred.[42]
[42]Exhibit 6
Rebecca Hard
108 Ms Hard has worked for Sussan for twenty years. In 2015, she was the general manager of the company. She knew Mr Billington when he started, and he came with a good reputation. He mixed well with colleagues and staff and was highly regarded.
109 In 2015, the planning of the conference was organised by Ms Catherine McNabb. The purpose of the evening was to present awards to individuals, to thank the staff for their contribution over the year and to have a fun evening. A number of people got up on stage, including Ms Pandit. Mr Billington was on stage twice. On the first occasion he seemed very comfortable and did a great job singing. The crowd were incredibly supportive, cheering and encouraging him. She did not see any sign of distress nor discomfort.
110 Later in the evening, she and others were dancing at the back of the dancefloor. She was with Ms Pandit. Mr Billington was sitting down at a table. She encouraged him to come and dance with them on the dancefloor. He got up to come over and the KMI called for him to join her on stage. The crowd were very enthusiastic for him to go back up. She did not see any sign that he was not prepared to do so.
111 When he was back on stage, the KMI asked him a number of questions. He then went backstage with the dancers and dressed in hot pants and a lei. There was general cheering from the crowd, and Mr Billington seemed fine. He was dancing between the two back-up dancers. She assumed Mr Billington enjoyed the evening.
112 Ms Hard had seen the KMI perform at an earlier function. No one had gone up on stage as it was at a smaller venue.
113 Ms Hard agreed that at a function like this there was a risk of a person being pushed up on stage by peer pressure. She denied she grabbed or escorted Mr Billington onto the stage. She agreed that she said to Ms Pandit “‘Oh no, I just got him up to dance. I hope he doesn’t think I set him up.’”[43] She said this was when he was called up the second time. Ms Hard said she could not recall a conversation with Ms Charlotte Curtin about her being encouraged to dance. She said it was voluntary for people to get up on the stage. If they did not want to participate, that was fine. She agreed no one should feel harassed to get up on the stage. It was important that it was voluntary. She supposed the performance by the KMI was risqué.
[43]T601
114 Ms Hard did not think that a comment about getting cameras ready for bribery was humiliating, but rather part of the act. She did not think that getting him dressed up made him look ridiculous or was an attempt to humiliate him. She thought it was funny. She did not think he was subjected to belittlement, humiliation or ridicule.
Cristiana Bronson
115 Ms Bronson has been the national sales manager for Sussan over the past thirteen years. She came to know Mr Billington in 2011, when he commenced working with the company. She said he was great with people, passionate about fashion and sales, and with good business acumen. He was on target with all aspects of his work. He was also socially well-liked by other employees.
116 Ms Bronson would see Mr Billington each Monday at meetings and undertook store visits with him. During 2014, and the first half of 2015, Ms Bronson was aware that he had some difficulties with his partner at home, who was suffering health issues. He had told her there might be times when he would need time off to accompany his partner to medical appointments.
117 At the 2014 conference, the entertainment was an eighties trivia night. Mr Billington and Ms Janelle Pandit put their hands up to organise and host the night. He was very enthusiastic.
118 Ms Bronson had some early knowledge that the KMI was to appear. She could not recall when she was told about it.
119 The KMI was greeted with cheers and enthusiasm. The singing and dancing was good and everyone in the room was excited. The KMI got people up on stage to sing with a microphone. She said Mr Billington was the first one to jump on stage, joining the KMI in singing and dancing. He jumped on stage from the side, startling even the KMI herself. She said his act went exceptionally well. She did not know he was such a good singer. Everyone clapped and was enthusiastic about his performance.
120 Others also got on stage, including a manager, Deb from Wangaratta, Ms Pandit and Ms Curtin. After he concluded and went to his table, Ms Bronson went to Mr Billington and spoke to him, telling him how amazing he was and that she did not know he could sing like that.
121 After that, the enjoyment continued. She was sitting with Mr Billington at his table having a drink. It was a table close to the dancefloor. Others around, possibly including Rebecca Hard gestured for Mr Billington and herself to get up and dance. Ms Bronson and he went to the dancefloor. When they got there, the KMI spotted Mr Billington in the crowd and said something like “Ian, you know, it’s time to come back up here”.[44]
[44]T692
122 When he was called up by the KMI, everyone started clapping and cheering. The KMI came down and grabbed his hand. The KMI started asking him some questions, including what his role was, whether he was married, and whether his wife was in the room. She asked him if he liked to wear hot pants. At that time, Mr Billington was engaging and answering the questions. Then the KMI said one of the dancers was going to take him out the back and look after him. He came back dressed in gold hot pants over his suit trousers and some other props. The KMI stepped out a dance routine and Mr Billington followed the steps. Ms Bronson said he was participating, smiling and engaging in the performance. She could not recall anything further. He then went off the stage through the back. Everyone was having fun and encouraging him. Everyone was very impressed.
123 After the act concluded, the majority of the managers were leaving. A number stayed back. Mr Billington came back in the room and Ms Bronson had another conversation with him, commenting that the people who went up on stage were part of his team. He then said he was going to go outside as he was feeling a bit flustered and hot. The only time she perceived any awkwardness in Mr Billington was when he was being interviewed, and asked if he was married and his wife was there. She and others in the room knew his sexuality and considered the questions awkward. However, he answered them and went along with the show.
124 About ten or so of those left decided to go to the bar for a drink. Ms Bronson said to Catherine McNabb that Mr Billington had disappeared. Ms McNabb telephoned him on Ms Bronson’s phone to invite him to meet them in the bar. It went to voicemail. She then sent a text to him to say that they were at the bar. He texted back saying that he had already changed. She texted back encouraging him to come to the bar, saying that if he was ready to call it a night that was fine, but that “‘we’re all here’”. He rang back and said “‘I’m in my trackies’”. Ms Bronson said that was fine, but if he was feeling comfortable to come down to the bar. He arrived and was provided with a glass of wine and there was general socialising for twenty or thirty minutes. Mr Billington was sitting close to Ms Bronson. He was talking to one of the visual merchandisers from New South Wales. He appeared to her to be ok. At no time, said Ms Bronson, did Mr Billington perform against his will.
125 After he had been on stage, Ms Bronson said to Mr Billington that he was great, and she would put it down as a key achievement on his next performance review. He laughed. Ms Bronson disagreed that several managers came to her to ask whether Mr Billington was okay. She did not see him wave his hands to say no about going back on stage. She was with him at the time.
126 At an earlier time, Ms Bronson had made a statement as to what had occurred and read it a number of times, including before giving evidence.
127 Some time after the event there was a direction from the Sussan HR Department that Mr Billington had requested that all videos and photographs of the night should be deleted.
Catherine McNabb
128 Ms McNabb has been the national operations manager for Sussan. She said Mr Billington was a valued team member. She was responsible for organising the 2015 conference and entertainment.
129 The entertainment was kept as a surprise. Very few knew about it. When the KMI came out, there were cheers and excitement from all present. The crowd were involved in the act and many went to the dancefloor pretty much straight away.
130 Ms McNabb recalled Mr Billington going up on stage and singing with the KMI. He was amazing and a great singer. The crowd was very excited. He then jumped down off the stage to acclaim.
131 At a later time, he was on stage again, dressed in shorts and a hat, and was dancing with the band. The crowd were again excited and cheered him on. He seemed very comfortable dancing and singing and performed well.
132 After the entertainment had finished, Ms McNabb, Ms Bronson and others went to the bar. Ms Bronson said Mr Billington was not there, so Ms McNabb called him with Ms Bronson’s phone. She left a message to the effect “Oh, it’s Kylie here, can you come down and have a drink with us at the bar?”[45] He came down a little later.
[45]T783
133 It was an incredibly successful night and Mr Billington seemed to have enjoyed himself. He was the life of the party.
134 Ms McNabb saw him the next morning and she asked how he had pulled up. He said he was pretty good. She saw him back at head office and asked if he was going home that day, as were other managers. He said he would take the day off.
135 The booking of the KMI was her decision. On the earlier occasion she had seen the performance, there were a smaller number of people and no on-stage interaction. She did not make any enquiry of the KMI before the 2015 conference to find out what was going to happen in the act.
136 Ms McNabb agreed that there would be some communication to those who were attending about Sussan’s policies relevant to their attendance at the conference. There would be nothing in the material sent out to those attending about the company’s policies.
137 Ms McNabb could recall one other person up on stage, Ms Pandit. Ms McNabb agreed that if someone was pushed up on stage against their will, indicating they did not wish to go up, that would be wrong, however, it could be just part of the fun of the night. If it happened to her, she would walk away.
Findings of fact
138 Although there is not a great deal in dispute, these are my findings of fact.
139 Mr Billington played a significant role in the organisation and presentation of the 2013 and 2014 conference celebrations. I accept he organised his team, sang, danced and generally engaged, and with little reservation. He would have been perceived by those who had attended those functions to be someone prepared to climb onto the stage and be actively involved in the entertainment.
140 However, I accept that on those occasions, he had the advantage of knowing what was involved and was able to prepare for it. That contrasted to the 2015 conference dinner where his involvement was not planned, and he did not have the opportunity to control the performance.
141 At some time prior to the 2015 conference, I accept there was some form of communication, possibly an email or a conference call, amongst the store managers and business managers when a direction was given that it was expected those persons attending would conduct themselves bearing in mind they were representing the company, and in a public place.
142 There were two parts of the KMI performance, separated by an interval. It is clear the entertainment was much appreciated by those present who had made a special effort to dress for the occasion. The music was popular, the presentation colorful and the whole event was met with acclaim. Undoubtedly the managers “let their hair down” as part of the festivities after the presentation of awards.
143 There was a singular feature concerning the crowd. They were all women save for Mr Billington. He was a gay man, but his sexuality was accepted without reservation by the people he worked with and was no impediment to his role at Sussan and his involvement in the conference.
144 At some point in the first part of the act, he was called to the stage. He was no doubt identified by the KMI as the only man in the room and was singled out. While he had little time to plan or prepare, I accept Mr Billington performed admirably, in the eyes of those present, by joining the KMI in some brief song and dance routines.
145 There were no major credit issues put to Mr Billington. He generally gave his evidence in a forthright manner. However, it was clear he held a strong view he had been wronged and humiliated by what occurred and blamed Sussan for it.
146 I do not accept his evidence that he was grabbed by Ms Hard by the arm and escorted towards the stage. Other witnesses did not observe this, and I find it inherently unlikely, even accepting the evening was boisterous, and attended with a level of excitement. Ms Hard emphasised in her evidence that she would never have grabbed Mr Billington nor anyone else, that that was not something she would have done and the involvement of people on the night was voluntary.[46]
[46]T600, L27-29
147 While I do not accept Mr Billington was grabbed and pulled or pushed to the stage when he was singled out, I accept there was general cheering and encouragement for him to be involved. There were probably hands on his back from those around. That was because he was known to be a capable performer from the previous conferences, because he was well liked and probably because he was the only male present.
148 It is also clear from the evidence that his performance provoked an appreciative response from the audience, and he was roundly cheered. At least in the minds of those present, both his singing and dancing was of a high standard.
149 I accept his evidence that he felt a little overwhelmed. I accept he spoke to Ms Wild and Ms Beven, who complimented him, and that he said something to the effect that he was not going to go up on stage again. However, a measure of the fact that he appeared unaffected is that neither Ms Wild nor Ms Beven recalled the conversation. Further, Ms Wild was asked what she would have done had Mr Billington told her he did not want to get back on the stage. She replied she would have done nothing, “I probably wouldn’t have thought twice about it”.[47] I am satisfied that there was nothing about the conversation, nor about Mr Billington’s demeanor which would give either Ms Wild or Ms Beven to the view Mr Billington was distressed or embarrassed and that there was anything that should have been reported to senior management.
[47]T658, L28-29
150 The next matter to consider is how it came about that Mr Billington appeared on stage during the second part of the act. At some point around this time, some managers, including Ms Pandit, Ms Curtin and possibly others, had got up onto the stage and performed with the group.
151 I accept the evidence of Ms Bronson that after Mr Billington’s first performance, she went to sit with him at his table to tell him how much she appreciated it. At that point, others on the dancefloor, including Ms Hard and possibly Ms Pandit, gestured for him and Ms Bronson to come forward and join them on the dance floor. It was not their intention to bring him forward so that he would be called to go back on stage.
152 The KMI, who had resumed her performance, looked through the audience and said something to the effect “Where’s Ian?” and pointed to him, saying she wanted him to come back onto the stage. There is nothing to suggest anyone from Sussan spoke to the KMI to arrange for Mr Billington to return to the stage. That was of her own initiative.
153 I accept his evidence that when he was summoned by the KMI, he indicated, either by hand gestures or speech (the noise would have been loud and it would be difficult to hear what was said), that he did not wish to return to the stage. I accept he attempted to deflect attention from himself.
154 Mr Billington’s evidence was that he was grabbed by an arm and pushed and pulled back onto the stage by those around the dancefloor. He said he was unable to break free as their urging was forceful. This was confirmed by Ms Darling, who said others crowded around him, some with their hands on his back, and with a lot of cheering.
155 I do not accept he was actually forced physically or literally pulled onto the stage when singled out by the KMI but accept there was a crowd around him, if not jostling, certainly cajoling him to return to the stage, accompanied by cheering and applause. While he could have resisted and refused, I accept he felt pressured to return with the presence of senior management, and others who were pressing him to become involved again.
156 At this point, I accept Ms Hard, in conversation with Ms Pandit, said something to the effect “Oh no, I just got him up to dance. I hope he doesn’t think I set him up.” However, this statement does not indicate Ms Hard thought Mr Billington was distressed or embarrassed to return to the stage.
157 What then followed was a conversation between Mr Billington and the KMI on stage. The conversation is recorded[48] and transcribed.[49] The audio and visual recording shows Mr Billington answering the questions put to him by the KMI in a reasonably compliant and lighthearted manner. However, that does not suggest he was comfortable with the way he came to be on the stage, and the questions he was asked.
[48]Exhibit 5
[49]Exhibit H
158 There is no evidence to suggest any of the Sussan employees had any input into the questions. Mr Billington was first asked what it was like to work “with all these beautiful Sussan women”. He said he felt great, very privileged. There was nothing particularly offensive about this question, rather a matter of observation.
159 Mr Billington was then asked whether he was single and whether his wife was present. This provoked some laughter from the audience. These questions enquired of matters which were personal and therefore intrusive, although in the context of the evening, were not intended to cause discomfort or embarrassment. Nonetheless, it is reasonable that Mr Billington could be uncomfortable about being asked.
160 Mr Billington was then asked whether he liked leather hot pants, and fended the question off with some aplomb.
161 To that point, aside from the personal enquiry about his marital status which, in my view, was directed more to the fact that he was the only male in the room, and not intended as a slight because he was gay, there was nothing of real offence about what was asked.
162 The KMI then said for the audience to “make sure the cameras are rolling soon because you’ll have a bit of bribery ladies”. Mr Billington was handed backstage to one of the dancers. This relatively lighthearted banter was well received by the audience who, on the audio recording, can be heard cheering.
163 When Mr Billington re-emerged, he was dressed in gold hot pants, a bikini top and some form of headgear. He joined in a brief dance and sang a chorus of a song as the KMI went off stage. It is particularly this part of his involvement which the plaintiff said was offensive. He was required to wear women’s clothes which made him look ridiculous, and then to perform in front of people who answered to him in the line of management at Sussan. Although his time on stage was relatively brief – several minutes – and he was roundly applauded, he said he felt embarrassed, overwhelmed, humiliated and was panicking.
164 Different people may react in different ways to being exposed on stage wearing inappropriate clothes in such a situation. Some may laugh it off as a bit of fun, or accept that acts such as this involved audience participation and may be prepared to cop some ridicule in the spirit of the evening. However, others may reasonably take offence at what occurred. Mr Billington was one. Generally, the medical evidence all points to this episode as being the source of his significant psychological disorder, notwithstanding the other stressful events in his life. I accept he did feel distressed and humiliated by the events at this part of the night.
165 I am not satisfied the fact that Mr Billington was a gay man played any real role in what occurred. I am not satisfied that the questions he was asked and the outfit he was dressed up in were a slight at the fact that he was gay. I do not doubt he was singled out as he was the only man present, but I am not satisfied his distress and humiliation was because of his sexuality.
166 I accept for a person in Mr Billington’s position in the company, that he was the only man present and that his audience comprised in part of people who answered to him in the line of command, that it was not unreasonable for him to feel embarrassed even humiliated.
167 The fact that he agreed to have a drink at the bar with other managers does not mean he was not affected by what had occurred. I accept he had a drink because he felt that was what was expected of him. Some of those present were concerned for him as they asked if he was alright.
The content and scope of the employer’s duty of care
168 As employer, Sussan owed Mr Billington a duty to take reasonable care in the course of his employment against the risk of foreseeable injury, including foreseeable psychiatric injury.
169 As was said by the High Court in Liftronic Pty Ltd v Unver,[50] in the modern workplace the law places a very heavy duty upon an employer to ensure it provides a workplace free from the risk of foreseeable injury.
[50][2001] HCA 24
170 In relation to the involvement of independent contractors, the duty of an employer was referred to in Leighton Contractors Pty Ltd v Fox[51] in the following terms:
“… An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee. … .”
[51][2009] 240 CLR 1 at 7, paragraph [21]
171 Cases concerning psychiatric injury in the workplace generally fall into one of two categories – injury caused either by overwork or stress; or injury as a result of bullying. This case does not easily fit into either category, although is more akin to the bullying cases. In any event, the principles established in Koehler v Cerebos (Australia) Ltd[52] as to the nature and content of the duty of care concerning psychiatric injury, have application.
[52](2005) 222 CLR 44 (“Koehler”)
172 In Koehler, the worker suffered psychiatric injury as a result of her work duties. She complained on a number of occasions she would not be able to carry out the work she had been assigned, although did not complain that as a result she was experiencing health problems. The Court found that she had agreed to perform those duties, and there was no reason to suspect, on the part of the employer, that she was at risk of psychiatric injury. The Court said:
“The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. … .”[53]
[emphasis added]
[53]Koehler at paragraph [35]
173 Relevant to the content of the duty of care was the parties’ obligations under the contract of employment:
“The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. … Consideration of those obligations will reveal a number of questions that bear upon whether … an employer’s duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee. … .
… What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.”[54]
[54]Koehler at paragraphs [21]-[22]
174 The High Court said[55] that it was not only a matter to ask “whether this kind of harm to this particular employee was reasonably foreseeable”[56] but rather to determine what was the content of the duty of care and the kinds of steps required of an employer in particular circumstances, informed, in particular by the terms of the contract of employment. Account should be taken as to whether there was any express or implicit warning that an employee may suffer psychiatric injury. The Court found that Ms Koehler’s employer could reasonably assume she could perform the tasks that had been assigned to her without injury to her psychological health. The fact that she had complained about not having the time to perform her duties ought not give rise to any suspicion that her mental health was at risk.
[55]Koehler at paragraph [23]
[56]Hatton v Sutherland [2002] 2 All ER 1 at 13, paragraph [23]
175 The starting point, according to Koehler, was to examine the aspects of the relationship between the parties that bear upon the content of the duty of care.
176 In Hegarty v Queensland Ambulance Service,[57] Keane JA said:
“In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd,[58] it was said that a stable appreciation of the content of the employer’s duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that ‘the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer’. Further, ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.”
[57][2007] QCA 366 at paragraph [47]
[58]at 53-55, paragraphs [19]-[25]
177 In Taylor v Haileybury,[59] Beach J, in dealing with a case involving psychiatric injury to a teacher caused by overwork, having considered Koehler and Hegarty, made a number of observations:
[59][2013] VSC 58 at paragraph [116]
“(a)First, in a negligent infliction of psychiatric injury case, the risk of injury may be less apparent than in cases of physical injury.
(b)Secondly, whether a risk is perceptible at all may in the end depend upon the vagaries and ambiguities of human expression and comprehension.
(c)Thirdly, whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.
(d)Fourthly, the private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations.
(e)Fifthly, the dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty that might be asserted by a plaintiff.
(f)Sixthly, issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating an employee’s problems.”
178 In Johnson v Box Hill Institute of TAFE,[60] J Forrest J, applying Koehler’ principles, emphasised that:
[60][2014] VSC 626 at paragraph [406]
“(a)Where a proceeding is grounded in psychiatric injury arising out of the carrying out of work duties, careful analysis of the content of the duty of care is required before questions of breach are considered.
(b)Reasonable foreseeability of psychiatric injury to the particular employee alone is not sufficient to enliven the duty of care.
(c)Other relevant considerations as to whether a duty of care is enlivened include:
· the contract of employment and obligations arising from it; and
· evident signs of an employee’s inability to carry out work activities associated with the risk of psychiatric injury.
(d)Absent those evident signs ‘warning of the possibility of psychiatric injury’, the employer is entitled to assume that the employee is capable of performing his or her job.”
179 In Nationwide News Pty Ltd v Naidu & Anor,[61] Spigelman CJ said of the nature of the psychiatric injury:
“The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
…
The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.”
[emphasis added]
[61](2007) 71 NSWLR 471 at paragraphs [20] and [23]
180 Drawing upon these authorities, and bearing in mind the particular circumstances of this case, the following principles emerge:
(a) In considering the content of the duty of care, the obligations owed by Sussan to Mr Billington under the Contract of Employment are important; further, the scope and content of the duty necessarily depend on the circumstances of the case;[62]
[62]Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 at paragraph [22]
(b) It is not sufficient to state the duty as one to take all reasonable steps against the risk of injury without examining what limits there might be on the kind of steps required of an employer. The duty of care should not be framed from a perspective of taking “absolute and unremitting solicitude for an employee’s mental health”;[63]
[63]As per Hegarty, supra
(c) Before there can be a consideration of the question of breach of the duty of care, careful analysis of the content of that duty is required;[64]
(d) There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.[65]
[64]As per Johnson, supra
[65]As per Naidoo, supra
181 Mr McCredie set out the relevant content of the duty of care and the basis upon which he said Sussan had breached that duty. The duty, he said, had to be seen in the context of the circumstances that prevailed. In particular, it was known Mr Billington was to be the only male present at the event. Further, given the nature of the entertainment, it was likely there would be audience participation, not only with dancing on the dancefloor, but involvement of those present on the stage itself. In those circumstances, it was possible that employees could be called up on the stage and involved in the KMI’s performance. Bearing those matters in mind, Mr McCredie outlined the breaches of the duty as:
(a) Mr Billington should not have been encouraged, cajoled and drawn up onto the stage by the Sussan employees present who were acting, not vicariously, but as agents of the company in the sense referred to in Nationwide News Pty Ltd v Naidu & Anor;[66]
[66](Supra) at paragraph [228]-[237] per Beazley JA
(b) Sussan ought to have made enquiries of the KMI to determine what she proposed in terms of participation by those present to ensure anyone invited onto the stage was not the subject of harassment, embarrassment or humiliation;
(c) Sussan ought to have provided a copy of its Harassment & Bullying Policy and requested the KMI abide its terms;
(d) Sussan ought to have taken steps to ensure that those who would participate in the entertainment did so voluntarily and only after they had freely consented to be involved;
(e) Given the complaint by Mr Billington to Ms Beven and Ms Wild that he was not prepared to go back on stage, they ought to have reported the matter to senior management to prevent his reappearance.
182 Mr McCredie submitted that by exposing Mr Billington to the process of being forced on stage, such as to create the humiliation, Sussan was in breach of its duty of care. He submitted that the actions by Sussan employees in jostling and pressing him to the stage, was in fact the act of Sussan itself.
183 He emphasised that Sussan knew, or ought to have known, it was likely there would be audience participation at the event. Sussan knew, or ought to have known, that such participation involved a risk, even if that risk may be of physical injury in falling from the stage. Appreciation of and attention to that risk would have meant that no-one should have been on stage.
Analysis – content of duty of care
184 There is no doubt Sussan owed Mr Billington the common-law duty to take reasonable care against the foreseeable risk of injury, including psychological injury.
185 Before examining breach, it is necessary to determine the scope of the duty and, in particular, whether it extended to take the steps Mr McCredie submitted were necessary to avoid the risk of injury to Mr Billington.
186 In formulating the duty, it is relevant to consider the following:
(a) Sussan, according to its policies, committed to providing a workplace which was free from harassment and discrimination. In fact, such a term, as I have found, was incorporated into Mr Billington’s Contract of Employment;
(b) It is relevant that on two previous occasions, Mr Billington had shown himself as prepared not only to plan and present at similar entertainment functions, but to be an active onstage-participant. There was nothing to suggest he would be a reluctant to be involved in the entertainment in the 2015 conference, or that any special care should be taken on his behalf;
(c) It was reasonable to expect that at some stage during the night, people would either voluntarily become involved in the entertainment by going onto the stage, or be called upon by the KMI to do so;
(d) There is no evidence to suggest that senior managers at Sussan knew that the KMI was likely to ask personal questions of persons called onto the stage, or expect they would be made to look foolish, even humiliated, by being dressed up, as occurred;
(e) There was nothing to suggest Mr Billington might suffer a significant psychological reaction to being involved in the entertainment. Although it was known he was somewhat stressed at the illness of his partner (as he had requested time off to take him to treatment), there was nothing to suggest he was particularly susceptible to the psychological reaction to being involved in the KMI’s performance;
(f) The fact that he was a gay man was not a matter of any significance on the evening and was not a cause of him being singled out by the KMI. He was well accepted by other employees and admitted himself feeling quite comfortable in their company while involved in work activities.
187 Bearing these matters in mind, I conclude that the scope of the duty of care owed by Sussan to Mr Billington did not extend to encompass any of the areas identified by the plaintiff.
188 The duty did not extend to preventing Sussan employees, even if it is said they were acting as the company itself in encouraging or cajoling Mr Billington onto the stage. He was known to have been an enthusiastic participant in past years. He had performed well on the first occasion that evening, to the crowd’s acclaim, and for that reason, the crowd likewise encouraged him on the second occasion. The fact that there might be a risk of physical injury if someone went onstage is irrelevant. It is difficult to envisage what steps senior managers at Sussan could have taken. It could not reasonably be expected for there to be an announcement that no-one was to be encouraged to come onto the stage. Such a step would have had a dramatic effect upon the enjoyment of the night by those present.
189 In my view, the duty of care did not extent to providing the KMI with the company’s policies on harassment and bullying, nor to make enquiries of her as to precisely what she was going to do in the course of her performance. She had been observed by a number of senior managers on a previous occasion, and although there was not the same crowd participation, nonetheless, her performance was considered entertaining and appropriate for the 2015 conference. If the company was required to provide its policies to an entertainer, then the same would have to apply to other persons and institutions Sussan dealt with, not only within the workplace but in every aspect of its interaction in and outside of it. There was nothing to suggest it was reasonable to make any further enquiries.
190 The discussion between the KMI and Mr Billington when he was on stage suggested the questions that were asked of him were not pre-planned nor had the input of anyone from Sussan. There was no evidence to suggest the KMI knew in advance he was to be the only male present. The calling of Mr Billington on stage by the KMI appeared quite impromptu. To the extent there was some preplanning with the costume he wore, there was no evidence to suggest anyone from Sussan was aware that was going to occur. The best that could be said was that given Mr Billington was the only male present, there was some prospect that he would excite the interest of the KMI. That was not sufficient, in my view, to extend the scope of the duty of care as the plaintiff would have it.
191 While it could reasonably be said that Mr Billington’s return to the stage on the second occasion was not completely voluntary, but rather that he was swept up by the crowd or felt he should participate given senior Sussan people were present, it was unreasonable to expect those planning the event ought to have taken steps to ensure any participation by employees was completely voluntary and only to be undertaken with their clear consent. There was no suggestion in submissions as to how that could be effectively done. It was an evening of entertainment and fun. Laying down strict guidelines to those present would have adversely affected the participant’s enjoyment of the evening.
192 Finally, as earlier noted, the fact that Mr Billington had complained to Ms Beven and Ms Wild that he was not prepared to go back on stage did not disclose any sense to them that he was distressed, or could become distressed, were that to occur. There was nothing to suggest they ought to have disclosed this to others on the evening.
193 In these circumstances, I am not satisfied the duty of care extended to the take the steps as the plaintiff submits. It follows there could be no breach of the duty of care.
If there was a breach, was the risk of psychiatric injury foreseeable?
194 Even if I were to assume the scope of the duty of care owed by Sussan to Mr Billington extended to require Sussan to take the steps the plaintiff suggests, and further, if I was to assume there was a breach of that duty, then the issue remains as to whether, assuming that breach, the risk of psychiatric injury suffered by Mr Billington was foreseeable.
195 In Wyong Shire Council v Shirt,[67] the High Court authoritatively stated the test of foreseeability in determining the content of the duty of care:
“… A risk which is not far-fetched or fanciful is real and therefore foreseeable. … .”[68]
[67](1980) 146 CLR 40
[68]at paragraph [15]
196 The Court went on to say:
“A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.”[69]
[69]at paragraph [13]
197 In Koehler,[70] the High Court said:
“The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far- fetched or fanciful.”[71]
[70]at paragraph [33]
[71]Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 332‑333, paragraph [16]; 343‑344, paragraphs [61]‑[62]; 385, paragraph [201]
198 The question then is whether a reasonable employer, in the position of Sussan in August 2015, had foreseen that its failure to take the steps suggested would have involved a risk of psychiatric injury of the general type as the plaintiff suffered.
199 It is important to avoid litigious hindsight. As Gleeson CJ in Rosenberg v Percival[72] said:
“… In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. … .”[73]
[72][2001] 205 CLR 434 at paragraph [16]
[73]See for example Jones v Bartlett (2000) 75 ALJR 1 at 5-6, paragraph [19]; 176 ALR 137 at 141-142; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164 at 167, paragraph [17], 183-184, paragraph [109]; 176 ALR 411 at 415, 438
200 Further, in Sydney Water Corporation v Turano,[74] the High Court said, in relation to reasonable foreseeability in the context of the existence of the scope of the duty of care:
“… It remains, as Gleeson CJ observed in Tame v New South Wales, that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.”
[74][2009] HCA 42 at paragraph [45]
201 As J Forrest J said in Hardy v Mikropul Australia Pty Ltd,[75] it is necessary to identify, with specificity, the risk which is said to be foreseeable. While it is not necessary for a defendant to foresee the precise risk of injury, or how it might occur, nonetheless the asserted breach requires a risk which can be identified.
[75][2010] VSC 42
202 In the current case, it could be said there was a foreseeable risk that Mr Billington could be called onstage given he was the only male present and that he was known from past performances to be a person prepared to participate in the entertainment. However, it is far more removed from the perception of a reasonable employer that he would suffer a significant psychiatric injury from that happening.
203 In my view, the risk of psychiatric injury in those circumstances was not foreseeable.
204 The starting point is that there was nothing to suggest Mr Billington had any particular susceptibility to the psychological decompensation he suffered after the performance. To the contrary, he was accepted as a robust, capable employee who was known to be a competent stage performer given his performance at the earlier conferences. The only issues of a psychological nature he was known to be experiencing related to his partner, and irrelevant in considering the risk of psychological injury at the work function.
205 Even if it could be said that it was foreseeable Mr Billington’s engagement with the KMI could lead to him being embarrassed or humiliated, and I am not satisfied that it could, it is quite another thing to expect there was a risk of him suffering a psychological decompensation leading to a significant condition as a result.
206 The risk of psychiatric injury in these circumstances was not sufficiently perceptible to require any response from Sussan. It was indeed far-fetched or fanciful.
Was there a breach of the Contract of Employment and did any such breach lead to damage which was not too remote?
207 There is no doubt that damages may be awarded for breach of employment contract resulting in psychiatric injury.[76]
[76]Gogay v Hertfordshire County Council [2000] EWCA Civ 228; [2000] IRLR 703
208 The plaintiff’s contention is relatively straightforward. As I have found, it was a term of his Contract of Employment that Sussan would provide a workplace free from harassment or discrimination. It was submitted that “harassment” was defined to include the sort of unwanted and demeaning behaviour which he suffered at the hands of the KMI. The requirement that behaviour of that sort should not occur extended to contractors retained by Sussan, including, relevantly, the KMI, and extended to work-related functions. Thus, said the plaintiff, there was a breach of the Contract of Employment by Sussan, as it failed to provide a workplace free of harassment. Damages should follow.
209 Even if I was to accept there was a breach of the Contract of Employment, for Mr Billington to be entitled to damages for such breach, he must establish that breach has caused damage and that that damage was not too remote.[77]
[77]Larner v George Weston Foods Limited [2014] VSCA 62 at paragraph [193]
210 In Hadley & Anor v Baxendale & Ors,[78] Alderson B stated:[79]
“… Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. … .”
[78][1854] EWHC Exch J70; (1854) 9 Ex Ch 341; 156 ER 145
[79]at 355
211 In Baltic Shipping Company v Dillon,[80] Brennan J considered the rules in Hadley & Anor v Baxendale & Ors,[81] and said:[82]
[80](1993) 176 CLR 344
[81]Supra
[82]at 368
“Remoteness is governed by the rules in Hadley v. Baxendale … which prescribe the measure of damages in respect of breach of contract to include not only damage naturally resulting from the breach (‘i.e., according to the usual course of things’ …) … but also damage which might ‘reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it’ … . Additional or special knowledge known to both parties may widen or contract the scope of liability for breach. These rules have been merged in a single principle … expressed by Lord Reid in C. Czarnikow Ltd. v. Koufos … and adopted in this Court … :
‘The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.’
The relevant question is therefore whether ‘disappointment of mind’ is sufficiently likely to result from a particular breach ‘to make it proper to hold that the loss flowed naturally from the breach’.”
212 The questions then to be asked is: Can it be said that the psychological disorder of the type suffered by Mr Billington be in the contemplation of the parties as a result of a failure by Sussan to provide a workplace, including a work function, free from harassment or humiliation? Could that psychological injury be said to have been within the contemplation of the parties at the time the Contract of Employment was made, as the probable result of the breach of it? In determining that issue, the legal reasoning must be the same or at least similar as to that undertaken when considering whether the risk of such injury was foreseeable as a result of a breach of the duty of care.
213 I am of the view that a company in the position of Sussan could not reasonably have contemplated that had there been a breach of the Contract of Employment, that Mr Billington would have suffered psychological injury as occurred In August 2015.
214 While it ought to have been within the contemplation of Sussan that a function, such as occurred on the evening in question, would involve crowd participation, even people coming onto the stage, and involved in some way with the KMI, in my view, it was not within the contemplation of the parties that, as a result of such involvement, even accepting Mr Billington was subjected to harassment or belittlement, that he would suffer a psychological injury as a consequence. For the same reasons as set out in considering foreseeability of psychiatric injury for breach of duty, the damage said to have resulted was too remote in the circumstances.
Conclusion
215 I am satisfied that Mr Billington’s Contract of Employment imported terms including that Sussan promised a workplace free from humiliation and discrimination.
216 Upon the evidence I have accepted, I am not satisfied the scope of the employer’s duty of care extended to require Sussan to take the steps the plaintiff suggests. Further, even if there was a breach of that duty of care, the risk of psychiatric injury as a result was not reasonably foreseeable.
217 Even if I was to accept there was a breach of the Contract of Employment, the psychiatric injury said to be a consequence was not within the expectation of the parties at the time the Contract was made, and was thus too remote.
218 The plaintiff’s claim should fail. I will make consequent orders.
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