Broumos v Henry Simon Automotive Pty Ltd

[2019] FCCA 1825

FEDERAL CIRCUIT COURT OF AUSTRALIA

BROUMOS v HENRY SIMON AUTOMOTIVE PTY LTD & ORS [2019] FCCA 1825

Catchwords:
INDUSTRIAL LAW – Adverse action – whether the applicant was injured in his employment – whether the applicant’s position was altered to his prejudice.

Legislation:
Fair Work Act 2009 (Cth), ss.340(1), 341(1)(a), 342, 360, 361(1)
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss.103(1), 104

Cases cited:
Arnett Somerville v Monash Health [2016] FCA 1451
Board of Bendigo Regional Institute of Technical and Further Education v Barclay, (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32
Hammond v Department of Health & Anor (1983) 6 IR 371
Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34; (1999) 165 ALR 67; (1999) 94 IR 244; [1999] FCA 899
Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63

Applicant: EVAN BROUMOS

First Respondent: HENRY SIMON AUTOMOTIVE PTY LTD
(ACN 135 651 142)

Second Respondent JERRY RIZZA

Third Respondent JOE VALVO

File number: MLG 1855 of 2017

Judgment of: Judge Riley

Hearing dates: 18, 19, 20 and 21 March 2019

Date of last submission: 21 March 2019

Delivered at: Melbourne

Delivered on: 1 July 2019

REPRESENTATION

Counsel for the applicant: Sarala Fitzgerald

Solicitors for the applicant: Maurice Blackburn Lawyers

Counsel for the respondents: Alex Manos

Solicitors for the respondents: Colin Biggers & Paisley Pty Ltd

ORDER

1. The application filed on 25 August 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1855 of 2017

EVAN BROUMOS

Applicant

And

HENRY SIMON AUTOMOTIVE PTY LTD

First Respondent

And

JERRY RIZZA

Second Respondent

And

JOE VALVO

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an adverse action claim.  In 1990, the applicant, Evan Broumos, was employed by the first respondent, Henry Simon Automotive Pty Ltd (“HSA”), at Melbourne City Toyota (“MCT”) as a motor mechanic’s apprentice. MCT is a car dealership. It had two locations, one in Elizabeth Street, Melbourne, and one in Sunshine.

2. Evan had various promotions.  In 2006, he became the Pre-Delivery Manager for MCT.  His role was to oversee the department that prepared vehicles for delivery to customers. In 2015, Evan was given an additional job as the Used Car Reconditioning Manager.  In that role, he oversaw the team which prepared used cars to be advertised for sale.  In both roles, Evan was required to do some administrative work and some manual work.  Evan had his own office, called the pre-delivery office, on level 3.

3. During most of his time at MCT, Evan reported to the second respondent, Joe Rizza, and Joe reported to the third respondent, Jerry Valvo. 

4. On 14 July 2016, Evan suffered a tear of the meniscus in his right knee while he was at work.  It was common ground that, because of the injury, Evan was not able to do any aspect of his pre-injury duties until 12 January 2017. Evan took time off work and received WorkCover payments.

5. In August 2016, MCT engaged Martyn Stanley, who had previously worked for a Toyota dealer in Queensland as an accessories fitter.  Martyn filled in for Evan as the pre-delivery manager while Evan was away.

6. On 4 November 2016, the WorkCover insurer asked Evan to choose an occupational rehabilitation consultant to advise on his return to work.  Evan chose the firm, Work Able Consulting, which appointed Matthew Pumpa (“Matt”) as Evan’s individual consultant.

7. Following consultation with Matt, Joe and Merryn Millikin, who was the Workplace Health Officer at MCT, Evan returned to work on 12 January 2017.  He worked three hours per day on two days per week, being a total of six hours per week, and later increased to eight hours per week.  It was common ground that Evan, at that time, could not ascend or descend stairs and could not put on work boots, which were necessary for him to access the workshop areas of MCT because of the slippery floors.  Therefore, Evan could not do any manual work.

8. Evan was given administrative duties to perform.  He considered that the particular administrative tasks he was given were menial.  He did not have his own desk, which was being used by Martyn.  Evan was required to use whichever desk happened to be available on the day.  He was not given an ergonomic assessment, although Matt had recommended one.

9. On 8 March 2017, Edward Stasinoski (“Ted”), who was an administrative assistant in the warranty office at MCT, had a heart attack and went on sick leave for an indefinite period.  Joe decided that Evan could fill in for Ted in the warranty office starting on 22 March 2017 doing administrative work.   Evan considered that it was not safe for him to work in the warranty office, due to the slippery floors.

10. On 22 March 2017, the staff at MTC received an email saying that Martyn Stanley had been given the job of General Pre Delivery / VDQI Manager for Melbourne City Toyota and Sunshine Pre Delivery departments.  Evan considered that Martyn had been given his job, or a large part of it. Evan formed the view that he would be required to be an administrative assistant in the warranty section on a long-term basis. Evan left work on 22 March 2017 and never returned to work for MCT.

11. With effect from 1 June 2017, MCT was acquired by Servco Australia Melbourne City Pty Ltd. Evan’s employment entitlements were transferred to Servco.  He signed an employment agreement with Servco on or about 15 May 2017. However, he remained on leave, much of which appears to have been unpaid.  Evan provided medical certificates to Servco for the period up to 3 January 2019, which indicated that he was unfit for work.   Servco terminated Evan’s employment on 9 January 2019 on the basis that he was unfit to perform the inherent requirements of his role. 

The scope of the dispute

1. Evan claimed that HSA took adverse action against him in breach of s.342 of the Fair Work Act 2009 (“the Act”), in that HSA injured him in his employment and altered his position to his prejudice.  Evan claimed that Joe and Jerry were liable as accessories. 

2. Section 342 of the Act relevantly provided that:

   Meaning of adverse action

   (1)The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item	Column 1 Adverse action is taken by ...	Column 2 if ...
1	an employer against an employee	the employer: … (b) injures the employee in his or her employment; or (c)  alters the position of the employee to the employee’s prejudice; or …

1. Evan claimed that HSA injured him in his employment and altered his position to his prejudice because he had taken personal leave, had made a WorkCover claim and had a physical disability.  Evan made no claims in this proceeding against Servco or MCT in respect of the termination of his employment.

2. Paragraph 341(1)(a) of the Act relevantly provided that:

   (1)  A person has a workplace right if the person:

   (a)  is entitled to the benefit of … a workplace law, workplace instrument or order made by an industrial body …

3. The respondents did not dispute that Evan had workplace rights to take personal leave and to make a WorkCover claim.

4. Subsection 340(1) of the Act relevantly provided that:

   A person must not take adverse action against another person:

   (a)  because the other person:

   (i)  …

   (ii)  has … exercised a workplace right …

   (iii)  … or

   (b)  to prevent the exercise of a workplace right by the other person.

5. Subsection 351(1) of the Act relevantly provided that:

   An employer must not take adverse action against a person who is an employee … of the employer because of the person's … physical … disability … .  

6. The respondents did not dispute that Evan’s knee injury was a physical disability.

7. Section 360 of the Act provided that:

   Multiple reasons for action

   For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

8. Subsection 361(1) of the Act provided that:

   Reason for action to be presumed unless proved otherwise

   If:

   (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

9. The respondents argued that they had not injured Evan in his employment or altered his position to his prejudice.  In the alternative, the respondents argued that they had not injured Evan in his employment or altered his position to his prejudice for a prohibited reason, namely, because he had exercised a workplace right or because he had a physical disability.

10. The respondents argued that they had done their best to give Evan suitable administrative work while he was unfit for his usual duties.  They argued that they did not give Evan’s role to Martyn.  They said that they gave Martyn a new role, which was above both Evan’s role and the equivalent role in Sunshine.  They said that it was necessary to create the new role because the Toyota Motor Corporation Australia (“TMCA”) had relaunched its Vehicle Delivery Quality Improvement program (“VDQI”), and they needed a person in a new position to establish and implement that program at the Elizabeth Street site and at the Sunshine site. The respondents said that successfully implementing the VDQI program would mean that MCT would get a large bonus. They argued that giving Evan the warranty role was only temporary, until he was able to return to his pre-injury duties, and would enable him to have a dedicated desk until he was able to return to his own office.

Barclay

1. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32, French CJ and Crennan J said at [62]:

   …  The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.

2. Also in Barclay, Gummow and Hayne JJ said at [104]:

   …  An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.

3. To similar effect, Heydon J said at [140]:

   … Section 360 provided that "a person takes action for a particular reason if the reasons for the action include that reason." The Explanatory Memorandum makes it clear that to satisfy s 360 the particular reason must be an "operative or immediate reason for the action" . Under s 361 of the Act, it is presumed that action was taken for a prohibited reason, unless the employer proves otherwise. Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.

Authorities on injury and alteration of position

1. In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63, the Full Court of the Federal Court said that:

   30.In Telstra the [Full Court of the Federal] Court explained the reach of the concept of prejudicial alteration at [17]-[18] as follows:

   17The question is whether, by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee’s prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.

   18Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c).

   (Bold emphasis added in Qantas.)

   31.Australasian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165 is an example of a prejudicial alteration which occurred even though the employees in question suffered no loss or infringement of a legal right. The employees were meat workers whose employment was terminated when their employer’s premises were destroyed by fire. The employer told them they would be re-employed when the operation resumed. However, the employer subsequently decided not to resume that operation and not to re-employ those employees. The employees had no legal right to re-employment. The statutory provision prohibiting prejudicial alteration applied to them and it was held that the disappointment of their expectation was an alteration of their position to their prejudice.

   32.The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.

2. In Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34; (1999) 165 ALR 67; (1999) 94 IR 244; [1999] FCA 899, the Federal Court said that:

   (4) Concepts of "injury in employment" and of "position"

   225The word "injury" includes the meanings "wrongful actions or treatment; violation or infringement of another's rights; suffering wilfully inflicted" and "hurt or loss caused to or sustained by a person or thing; harm, detriment; damage": The New Shorter Oxford English Dictionary, p 1731. The word "prejudice" is defined as "harm or injury to a person" p 2333. "Harm" is defined as "hurt, injury, damage, mischief": p 119l.

   226In s 298K(1) the word "injury" is used in relation to "an employee in his or her employment". The word "prejudice" is used in relation to an alteration of "the position of an employee" to that employee's prejudice.

   227The same words are used in s 170MU of the WR Act where it is provided:

   "(1)   An employer must not:

   (a)dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or

   (c)threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice;

   wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action."

   The concepts of injury in employment and prejudicial alteration of position have been considered in a number of cases arising under the Conciliation and Arbitration Act and the Industrial Relations Act. In Roberts v General Motors Holden Employees' Canteen Society Inc (1975) 25 FLR 415 at 419, Smithers, Woodward and Evatt JJ accepted that "in the case of injury in employment, a series of acts extending over a period, rather than a single act, may be involved".

   228In Linehan v North West Exports Pty Ltd (1981) 57 FLR 49 at 61-62 Ellicott J held that where an employee is a regular or permanent employee and is terminated so that he lost his status and the expectations and benefits of annual leave and sick leave payments which went with it, his position was altered to his prejudice.

   229The concept of "position" was considered in Childs v Metropolitan Transport Trust (1981) IAS Current Review 946. Smithers J there held that the test of prejudicial alteration to position had been added to cover a position where injury was not manifested to the employee. He said:

   "It is possible to read the word 'position' in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word 'position' should be read rather to refer to a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee's position within the meaning of s 5, and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term has gone."

   He added (at 948):

   "I cannot help thinking that 'injury' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank."

   230Evatt J adopted and applied these views in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290-292. In doing so he stated (at 290):

   "It is clear in my view that the words [or alter his position to his prejudice] were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment."

   The concept of injury in employment was examined further by Ellicott J in Squires v Flight Stewards Association of Australia [1982] 2 IR 155. At 164 he held that an employer in standing down an employee on full pay for a month injured the employee in his employment because the employee was singled out by the employer and treated differently to other employees for reasons not associated with the manner in which he was performing his work, particularly where the standing down was because of a request by the union. Ellicott J continued:

   "The words 'injure in his employment' are in the context of s 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. Singling him out to be stood down from his employment for a period in circumstances where his fellow employees won't work with him for that period is in my view clearly an injury to him in his employment."

   The decisions in Childs and Blair were considered in Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319 by North J in the course of considering a motion to dismiss an application as disclosing no cause of action where the alleged injury or prejudice arose from a requirement by the respondent for the applicant to participate in an investigative process. North J did not regard it as hopeless or untenable to contend that the requirement could amount to a relevant injury or prejudicial alteration. However, he considered the matter should be resolved at trial in the light of the available evidence.

   231The concept of "singling out" a member of a union for denial of a wage increase was held by Marshall J in Health Services Union of Australia v Tasmania (1996) 73 IR 140 at 145 to constitute an "injury" to the employee in "his or her employment" within s 334(1)(a)(i) of the Industrial Relations Act, applying Squires at 164. Furthermore, he held that an employer's reneging on an assurance to pay a wage increase during a period in which bans and limitations had been imposed, contrary to prior assurances, resulted in an alteration to the positions of the employees to their prejudice, applying Linehan at 62.

   232In relation to the concepts utilized in s 170MU Ryan J said in Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49 at 68; 157 ALR 531 at 548 that s 170MU(1) "precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example, the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees". This is a reference to the issue of "singling out".

   233The concepts were further considered in Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456 at 462 per North J. There certain employers prior to 23 September 1997 owned assets and business of a stevedoring operation at particular ports as well as employing labour for the operation. On that date they sold the assets and business to Patrick Stevedores ESD Pty Ltd under business purchase agreements. Each of the employers also entered into a labour supply agreement with ESD under which they agreed to provide labour and carry out certain services. The effect of the action of the employers and transferring their businesses and entering into the labour supply agreements was that ESD had the power to bring to an end to the only significant asset of the employers rendering each employer insolvent and, as a consequence, to allow the employers to claim the workforce was redundant. North J said (at 462):

   'The concepts of injury and prejudicial alteration referred to in s 298K(l)(b) and (c) are concepts of wide operation. They are capable of referring to the effect of a commercial transaction entered into by an employer which has, or may have, an unfavourable impact on employees: Kimpton v Minister for Education (Vic). In my view, there is a serious question to be tried that the employers injured the employees in their employment or altered the employees' position to their prejudice by entering into the BPAs and the LSAs or by appointing administrators."

   Compare Grayndler v Cunich (1939) 62 CLR 573 at 594-595 per Evatt J.

1. In Hammond v Department of Health & Anor (1983) 6 IR 371, the Industrial Commission of New South Wales said:

   a.  at page 371:

   The summons filed with the notice of motion calls upon the respondents to show cause why the following orders should not be made under s. 95:

   …

   3. That the respondents be directed to place Jessie Ruth Maroya in her previous position of health education officer, or to place her in a position not less advantageous than such position of health education officer.

   … and

   b. at page 375:

   Mrs Maroya's preference is for employment as a health education officer rather than as a social educator. She has deposed that deprivation of the opportunity of working as a health education officer means that she will lose contact with fellow health education officers and developments in the particular field. She also considers that promotional opportunities would be better for her as a health education officer than as a social educator, although her opinion in this regard would not seem to be of substance if she maintains a stance of being unwilling to move from Goulburn in her employment.

   …

   We are of the view that, when determining whether a prima facie case has been made out that an employer has injured a person in his employment, or altered that person's position to his prejudice, an objective view must be taken. We can understand and, indeed, sympathise with an employee when a change in position results, in the employee's view, in less job satisfaction than he was formerly experiencing. But if that were the only "injury" or "prejudice" which the employee suffers, it would be insufficient, in our view, to bring the employer within the purview of s. 95 of the Act.

   Approaching the present case objectively, it seems to us that the alteration in Mrs Maroya's position has meant that she continues to be employed in the health field, and by the same Department; that her salary position has not changed for the worse; and that, while there may be a potential salary disadvantage at a point several years in the future, there is an immediate prospect of her receiving an allowance for teaching handicapped persons which is not available in her former position. We also consider, having regard to the available evidence, that the position of social educator is one which is reasonably suited to a person of Mrs Maroya's qualifications and experience, subject to appropriate periods of on-the-job training, which, on the evidence, the employer is prepared to give. As for potentially diminished promotional prospects, we think that such matters are too nebulous to weigh in the balance in the applicant's favour, particularly when Mrs Maroya's refusal to move from the Goulburn area is taken into account.

The feelings of the victim of alleged adverse action

1. In Arnett-Somerville v Monash Health [2016] FCA 1451, Jessup J said at [89]:

   While the feelings of the victim of alleged adverse action might often be relevant to the question whether such action in fact occurred, on their own they would never, in my view, be sufficient.

Detailed claims about injury and alteration of position

1. In his written submissions filed on 12 March 2019, Evan explained the detail of his claims relating to being injured in his employment and having his position altered to his prejudice as follows:

   14. The Applicant complains that the Respondents did not allow him to do the administrative parts of his pre-injury role when he returned to work … . Similarly the Applicant complains that the Respondents did not make the adjustments necessary for him to do any of his pre-injury role … . He says that these failures were adverse action because they changed his job to his disadvantage and did not afford him his right under the WIRCA[1] to be given “suitable” work while recovering from injury.

   15.The Respondents’ documentation reveals that the Respondents were planning to permanently place the Applicant in the warranty office [to do] the warranty role, as a replacement for “Ted” who was elderly and had been unwell. Annexure MM-16 shows that on 8 March 2017 Mr Valvo emailed Ms Millikan and Mr Tranter stating: “At the moment he’s helping Scott with warranty submissions (Ted is away sick and doesn’t sound too good) So this could be another permanent option looking forward!”

   16. Annexure MM-18 shows that on 10 March 2017 Ms Millkan wrote to Mr Valvo and Mr Tranter, reminding them that she had duties to return the Applicant to his pre-injury role under the WIRCA and referring to a “decision by MCT to change Evan’s role”: “Following an injury in the workplace, under WorkCover legislation, it is my role and the role of the OR provider to return Evan to his pre-injury duties, having Evan return to his pre-injury role will allow us to increase his hours back to full time as this is his goal. Any decision by MCT to change Evan’s role is an Employment matter and not covered under the WorkCover return to work process”

   17. Annexure MM-21 shows that on 23 March 2017 Ms Millikan sent Mr Pumpa an email stating: “Evan needs to understand that this role is temporary until he manages to return to a suitable level of fitness to take up the Used Car Reconditioning role on a more permanent basis.”

   18. The above documentation shows that the plan was not to return the Applicant to the Pre Delivery Manager aspect of his role (which he had been promoted to in 2006), much of which was to become Mr Stanley’s new role. The plan seems to have allowed for the Applicant to keep the Used Car part of his role (which had been a responsibility added only in 2015) and to give him the warranty role more permanently. The Applicant says that this was adverse action because it changed his job to his disadvantage.

   19. The plan to give the Applicant’s Pre Delivery Manager role to Mr Stanley became a reality on 22 March 2017 when Mr Stanley was given a role that subsumed the Applicant’s Pre-Delivery Manager role. Mr Stanley’s role was not a new role, despite the slightly different title.

   20.The Respondents claim that Mr Stanley’s new role was not the Applicant’s role but a wholly new one. The Court should not accept this assertion. The Applicant has pressed the Respondents (and the new company that has taken over the Melbourne City Toyota business) for documentation supporting this assertion but very little has been forthcoming. It is notable that there is not a single document relating to recruitment for the “new” role; preparation of a business case by the area of the business seeking to create the new role and asserting the role was necessary or financially viable; or the budgeting for or creation of the new role. It strains credulity that a business of this kind would not generate these kinds of documents when creating a new and fairly senior role within the business. For example there is not a single email discussing the need for the new role or what its scope will be. The Applicant has asked for this information from the First Respondent by way of discovery and from the new company that bought the Melbourne City Toyota business from the First Respondent by way of subpoena and there was little produced. The Court can and should infer that the reason no documentation exists is because the role being given to Mr Stanley was not a new role. The role Mr Stanley was being given subsumed the Pre-Delivery Manager role that the Applicant had done pre-injury and that Mr Stanley had been covering for him. It was clearly not a role that was going to cost the business any more money.

   [1] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Materials relied upon by the applicant

1. The applicant relied upon:

   a)his amended points of claim filed on 12 April 2018 (CB5-19), except paragraphs 38(b)(i), (iii) and (iv);

   b)his reply filed on 23 May 2018;

   c)the affidavit sworn by him on 12 July 2018 (exhibit 1, CB 57-123), subject to the amendments listed in the orders made on 18 March 2019;

   d)the affidavit sworn by him on 17 September 2018 (exhibit 2, CB 125-156);

   e)the affidavit sworn by him on 5 October 2018 (exhibit 3, CB158-189);

   f)the affidavit sworn by Maria-Stella Broumos on 13 December 2018 (exhibit 20, CB 191-195), subject to the amendments listed in the orders made on 19 March 2019;

   g)the expert report dated 21 December 2018 by Dr Sam Asadi (exhibit 21, CB 197-213);

   h)the expert report dated 4 February 2019 by Dr George C Kosmidis (exhibit 22, CB 215-220);

   i)the affidavit affirmed by Declan Vincent Murphy on 15 March 2019, annexing an amended transcript of the audio recording of the meeting on 6 December 2016 (exhibit 13);

   j)the calculations of loss (exhibit 4, CB504-515);

   k)the telephone list for MCT (exhibit 5);

   l)the VDQI explanatory memorandum (exhibit 6, CB452-455);

   m)an MCT job card, also known as a pink slip (exhibit 7);

   n)the VDQI evaluation guide (exhibit 8); and

   o)the position description for Evan’s role as the pre-delivery supervisor (exhibit 9).

2. The applicant was cross-examined. However, his wife, Dr Asadi, Dr Kosmidis and Mr Murphy were not. Their evidence was unchallenged and I accept it.  The applicant’s evidence is discussed below.

Materials relied upon by the respondents

1. The respondents relied upon:

   a)their amended points of defence filed on 15 May 2019;

   b)their reply filed on 23 May 2018;

   c)the affidavit sworn by Merryn Millikin on 29 August 2018 (exhibit 24, CB 252-263), subject to the amendments listed in the orders made on 19 March 2019;

   d)

   the affidavit sworn by Jerry Rizza on 31 August 2018

   
   

   (exhibit 25, CB 348-370), subject to the amendments listed in the orders made on 20 March 2019;

   e)the affidavit sworn by Joe Valvo on 14 August 2018 (exhibit 26, CB 222-250);

   f)

   the affidavit affirmed by Rodney Tranter on 31 August 2018

   
   

   (exhibit 28, CB 372-410), subject to the amendments listed in the orders made on 21 March 2019;

   g)the USB containing the audio recording of the meeting on 6 December 2016 (exhibit 23);

   h)the Toyota pre-delivery service checklist (exhibit 10);

   i)the Toyota genuine accessories list (exhibit 11);

   j)the photograph of stairs on level 1 (exhibit 12);

   k)the three photographs of service reception (exhibit 14);

   l)the bundle of photographs of the lunch room (exhibit 15);

   m)a photograph of the warranty office (exhibit 16);

   n)a letter dated 27 April 2017 from Servco to Evan (exhibit 17);

   o)an undated letter from Servco to Evan (exhibit 18);

   p)a letter dated 9 January 2019 from Servco to Evan, being a notice of termination of employment with Servco (exhibit 19);

   q)the 2019 parts and service excellence program results (exhibit 27);

   r)the repair orders and labour sales statistics for January 2016 to May 2017 (exhibit 29); and

   s)the new vehicle deliveries statistics for January 2016 to May 2017 (exhibit 30).

2. Merryn, Jerry, Joe and Rod were all cross-examined.  Their evidence is discussed below.

The structure of the business

1. MCT was a car dealership.  It was owned by HSA, which was part of the Jefferson Group.  The head of the Jefferson Group was Brett Jefferson.

2. MCT had two sites, the Elizabeth Street site and the Sunshine site.  Rod Tranter was the general manager of MCT.  Evan was based at the Elizabeth Street site, but had occasionally worked at Sunshine. 

3. There was another pre-delivery manager at Sunshine.  His name was Damien Gubeljak.  Evan was the manager of pre-delivery at the Elizabeth Street site and Damien was the manager of pre-delivery at the Sunshine site. 

4. The Sunshine site had a much larger vehicle storage area than the Elizabeth Street site.  MCT stored most of its new vehicles at the Sunshine site. Most of the pre-delivery work to prepare vehicles for sale to customers was done at the Sunshine site.

Evan’s pre-injury role

1. The position description for Evan’s pre-injury role as the Pre-Delivery Manager (exhibit 9) was as follows:

   Direct Reports: Nil

   Purpose/ Main area of Responsibilities

   The main focus of the Pre-Delivery Manager role is to ensure that vehicles are inspected and prepared according to guest requirements and quality standards, ready for delivery.

   Key job functions & Accountabilities

   The Pre Delivery Manager carries out a range of duties related to the preparation of vehicles, including:

   -    Fit accessories and carry out vehicle inspections

   -    Re-conditioning used vehicles ready for sale

   -    Carry out new vehicle pre-delivery inspections

   -    Install genuine accessories

   -    Install auto electrical upgrades

   -    Install 4WD accessories

   -    Contribute to building a positive team spirit

   -   Demonstrating behaviours that align with The Toyota Way and company policies

   Essential Skills/Qualifications/Experience

   -    Strong mechanical knowledge

   -   Knowledge of the pre delivery process from start to finish across new and used vehicles

   -   Guest service focused

   -   The ability to work in a team

   -   Excellent time management and multi-tasking ability

   -   Strong communication skills

   -   High attention to detail

   -   Initiative

   Desirable Skills/Qualifications/Experience

   -    Automotive trade qualifications or similar

2. In performing that role, Evan:

   a)supervised employees;

   b)liaised with sub-contractors and other MCT departments;

   c)did some administrative tasks;

   d)did some manual tasks; and

   e)inspected and checked vehicles.

3. In addition, pre-injury, Evan was the Used Car Reconditioning Manager.  In that role, he:

   a)supervised technicians;

   b)did some administrative work; and

   c)did some manual work.

Procedure when a car was sold

1. When MCT sold a new car, if the correct model and colour was not at the Elizabeth Street site, it would be obtained from the Sunshine site, or ordered from TMCA. Vehicles ordered from TMCA would be delivered to the Sunshine site.  Relatively few vehicles were on hand at the Elizabeth Street site, because it had a limited vehicle storage area.  No cars were sold directly from the Sunshine site.

2. Before making a vehicle available for collection by the purchaser, the pre-delivery team would do a thorough check of the vehicle using a pre-delivery check list. The pre-delivery checklist had about 70 items on it, including checking various parts for leaks, checking various electrical systems and so on.  In addition, the pre-delivery team would add any accessories ordered by the customer, such as tow bars, weather shields or window tinting. 

3. Jerry said that 90% to 95% of pre-delivery work was done at Sunshine. He said that, generally, accessories were fitted at Sunshine, vehicles were then transported to Elizabeth Street, where the pre-delivery team there did a final check, fixed any discrepancies, perhaps added bonnet protectors and mats and released the car to the sales team for delivery to the purchaser.

4. New vehicles that had been stored at the Sunshine site were driven by truck to the Elizabeth Street site and positioned in the pre-delivery area on level 2.  Before his injury, Evan would watch the vehicles come off the truck, inspect them for any damage, check that they had keys and service books, have them cleaned and add number plates.  Evan would check the job card (exhibit 7), also known as the pink slip, that was inside the car to make sure that all the extras that the customer had ordered had been provided.

5. If there were no problems with the vehicle, Evan would email the sales representative and advise that the vehicle was ready for collection by the customer.  There were no problems in about 90% of cases.

6. If there were problems with a vehicle, sometimes Evan would fix them himself, sometimes he would engage other people from the Elizabeth Street site to fix them, sometimes he would engage an external contractor or someone from Sunshine to attend the Elizabeth Street site to fix them and sometimes he would drive the vehicle back to the Sunshine site for the problem to be rectified by the Sunshine staff, who had a broader range of tools. By way of example, Evan sometimes coded radios himself, and sometimes organised for heavy duty work such as the fitting of tow-bars to be undertaken at the Elizabeth Street site.

7. The administrative work involved in the pre-delivery role at the Elizabeth Street site was to check the pink slip, arrange for work such as window tinting to be done, raise job orders, process invoices from external contractors and take them to the administrative area, and email the sales representative. 

8. Evan agreed in cross-examination that the administrative jobs arising from problems that needed to be fixed were best performed by the person who had identified the problem with the vehicle (Tr. p.74, l.22).  As Evan was not able to go onto the workshop floor after his injury, it followed that Evan was not the best person to do that aspect of the pre-delivery administrative work.

9. The pre-delivery process for used cars was similar, except that the sales team checked cosmetic issues and Evan’s team attended to roadworthy certificate issues. At the Elizabeth Street site, the used car team was bigger than the new car team. 

10. Counsel for the respondents put to Evan in cross-examination that he only did very basic things in his pre-delivery role at the Elizabeth Street site, like providing mats that may have been overlooked at the Sunshine site.  Evan disputed that, and said that his pre-delivery team installed more significant items such as tow bars when required. 

11. Notwithstanding some issues with Evan’s credibility which are discussed below, I accept Evan’s evidence on this point.  The likelihood is that most pre-delivery work, whether simple or complex, was done at the Sunshine site, because that was where most cars were stored.  However, when an appropriate vehicle was in stock on the Elizabeth Street site, it would have been practical for Evan’s team to do all the pre-delivery work for that vehicle, except in cases where it had to be transported to Sunshine for more specialised work.

Vehicle Delivery Quality Improvement

1. The VDQI program only applied to new car sales.  In June 2015, TMCA sent a memorandum to all Toyota dealers regarding the re-launch of the VDQI program (CB453). The memorandum included the following process overview and statement of key responsibilities:

   Process Overview

Standards Development	TMCA and Toyota develop relevant standards and questions to be applied to the Dealership
Dealer Self-Evaluation	The Dealer performs a self-evaluation of core areas using Questions as listed in the Program Guide. Results are included in the next stage of process for comparison.
TMCA / Dealer Evaluation	TMCA where necessary performs a Dealer evaluation utilising standards developed.  The evaluation incorporates key areas of receipt, pre-delivery and new vehicle delivery.
Action Plan / Improvement	If required, an action plan is prepared by the Dealer and TMCA, to tackle areas requiring improvement.  Improvements are then implemented by the Dealer.
Follow up Improvements / Evaluation	TMCA performs a follow up evaluation on the areas that required improvement.  Final evaluation details are compiled in a report and submitted to TSO.

Key Responsibilities:

Dealer

1.Assign a VDQI representative within your Dealership to co-ordinate activities with the TMCA representative in your Region / State.

2.Review the VDQI evaluation guide located on SARIS.

3.Conduct a self-audit using the VDQI evaluation guide or the Toyota Check audit tool, see details in this ADSL.

TMCA

1.TMCA representative to conduct a Region review once the Dealer review is completed.

2.Action plan to be produced from results of the VDQI audit (if necessary).

1. The memorandum also indicated that achieving VDQI certification at the dealer’s main pre-delivery site would result in 200 points, out of a total of 1,800 available points (CB455), towards a service excellence award for the dealership. 

1. Rod gave oral evidence in chief on this issue (Tr. p.305, l.9-18).  He said that, previously, MCT had missed out on a service excellence award because it had not achieved VDQI certification. He said that VDQI was one part of service excellence. He indicated that, if appropriate service excellence was achieved, it could be worth up to $45,000 to the dealership.  He said the financial implications for the business could be around $1,000,000.  However, Rod did not explain the connection between VDQI certification and the $1,000,000. 

2. Counsel for the respondents put to Evan that achieving VDQI certification could result in a bonus of $1,000,000 to MCT.  However, Evan knew nothing about that.  The $1,000,000 bonus appears to have been based on a misapprehension.  There may have been a bonus of $45,000 for service excellence.  VDQI represented about one-ninth of the points available for a service excellence award.

3. The VDQI evaluation guide provided to the court (exhibit 8) indicates that it was the version dated February 2015.  It described the scope and aim of activities and how to proceed as follows:

   VDQI -  VEHICLE DELIVERY QUALITY IMPROVEMENT

   …

   2.  Scope and Aim of Activities

   The primary aim of VDQI activities is to eliminate the following two characterised problems.  Problems which can be eliminated by “Prevention of Deterioration and Damage” in each delivery process.  Problems which can be eliminated by “Thorough Inspections and Repairs” in each delivery process.

   3.  How to Proceed

   Set up VDQI Committee under the control of top management and create an action plan including targets.

   Motivate the managers of each process to aggressively be involved with their VDQI activities.

   Provide technicians and related staff with the manuals and training required to standardise their work procedures. 

4. Evan was asked about the VDQI evaluation guide in oral evidence in chief at great length.  He said that the VDQI program was in operation before his injury and he did a lot of it.  He was taken through almost all of the approximately 40 questions in the VDQI guide and asked if he attended to the matters raised in the VDQI guide in his role as pre-delivery manager.  The import of Evan’s evidence was that he had been in the habit of doing most of the tasks covered in the VDQI evaluation guide but not all of them, and not in the systematic way that would meet the demands of TMCA’s auditors.

5. For example, question AS-9 in the evaluation guide concerned hand tools.  The question was:

   Does each Pre-Delivery Technician have a set of hand tools that meet TMCA’s VDQI requirement?

6. The evaluation guide said that the responsibility in relation to this issue rested with the foreman and the pre-delivery manager.  It said that one of the objects of the item was:

   Compliance with TMCA’s VDQI Pre-Delivery Tool List

7. The evaluation guide said that the evaluation method was:

   Check availability of Pre-Delivery Technicians[’] hand tools  (at least one set per Pre-Delivery Technician)

   Compare with the TMCA VDQI Pre-Delivery Tool List

8. The evaluation guide described the purpose of the question as follows:

   The Pre-Delivery Technician who has the correct type and number of basic hand tools, stored in an easily accessible location will:

   ·Have the potential to maximise their efficiency and productivity.

   ·Minimise the risk of poor quality work.

   ·Maintain high morale by reducing the frustration of not having the correct tool and/or waiting for one to become available.

9. The evaluation guide, under the heading, How to Sustain, said:

   Periodically check that all Pre-Delivery Technicians[’] tools are available and properly maintained in good working condition. Any missing or damaged tools must be replaced immediately.

10. On this issue, Evan said in his evidence in chief that:

    Well, we didn’t have a lot of hand tools, as such, in pre-delivery.  I would bring in my own tools daily in my vehicle in a toolkit and they were made available to my technicians if they needed them.  We would borrow tools as well from the workshops.

11. Evan claimed that his tools were good quality and would have met the TMCA VDQI requirements.  However, after some prevarication, he eventually conceded that his technicians did not each have access to their own sets of tools and that the answer to question AS-9 was no.

12. Question AS-10 in the VDQI evaluation guide asked:

    When Pre-Delivery Technicians remove components from the vehicle, do they place those parts in dedicated containers to avoid damage?

13. Evan said that his team did not have dedicated containers.  He said that management did not make dedicated containers available. He said that he used cardboard boxes, which worked.  He said that he could have asked management for dedicated containers.  However, it was implicit in his evidence that he did not ask for, or receive, dedicated containers for components removed from vehicles.

14. Evan conceded, in relation to question AS-11, that he did not have a computerised control system that was accessible to all responsible staff to show the status of the vehicle within the pre-delivery process.  The VDQI evaluation guide explained that the purpose of the control system was to allow effective communication within the different parts of the dealership and to enable the progress of the vehicle from sale to delivery to be tracked.

15. Evan also conceded that he did not use the paperwork referred to in questions OP-1, OP-8 or OP-9 in the VDQI evaluation guide. 

16. There were various other respects in which Evan’s evidence was to the effect that, prior to his injury, he did not meet the requirements of the VDQI evaluation guide in his role as pre-delivery manager at the Elizabeth Street site.

17. It is clear that MCT, prior to Evan’s injury, had not met the VDQI requirements.  It was not suggested that it was Evan’s fault that MCT did not meet those requirements.  On the contrary, it was implicit in the respondents’ evidence that MCT had paid little attention to the VDQI requirements prior to Evan’s injury.  Indeed, it is possible that TMCA itself did not pay much attention to VDQI prior to Evan’s injury on 14 July 2016.

18. That is consistent with TMCA’s memorandum dated June 2015 regarding the relaunch of the VDQI program.  The fact that it was a relaunch suggests the VDQI program had fallen into disuse.  Naturally, it would have taken some time after June 2015 for all of the Toyota dealerships to implement, or re-implement, their VDQI programs.

19. It is also consistent with Joe’s evidence about MCT’s service excellence results for 2016 (exhibit 27, CB456).  That document shows that, for the first three quarters of 2016, there were no figures for VDQI for MCT.  For the fourth quarter of 2016, the figure for VDQI was zero.  For the 2016 year overall, the figure was zero. 

20. Joe said in cross-examination (Tr. p.290, l.1–20) that MCT did not have any mark for VDQI in 2015, because it was not a criterion for service excellence at that time and data in relation to it was not collected.  He said that MCT received a zero for VDQI in 2016 because it was off the back of VDQI not being measured at all in 2015.  He said that, for the 2017 year, it was necessary for MCT to be compliant by December, because that was when TMCA audited them.  He said that, for the 2017 year, MCT got a VDQI result of 100%.  That evidence was not undermined and I accept it.  It strikes me as plausible and it coincides with the documentary evidence.

Injury

1. As discussed above, Evan suffered a workplace injury on 14 July 2016.  It consisted of a tear in the meniscus of his right knee. He was certified by a doctor to be unfit for any work duties until 12 January 2017.  He received WorkCover benefits.  Evan was absent from work until 12 January 2017, when he returned for six hours a week.

2. It was common ground that, in late 2016 and early 2017, because of his injury:

   a)Evan could not climb stairs, which he would need to do to access his pre-injury desk on level 3;

   b)he could not put on work boots, which he would need to wear to walk across the workshop floors on levels 2 and 3, which were often slippery;

   c)he could not do the manual part of his pre-injury job; and

   d)he would be physically able to do the administrative parts of his pre-injury job.

3. In Joe’s affidavit sworn on 14 August 2018, he repeatedly referred to Evan’s alleged injury.  However, in cross-examination he conceded that he should not have used that term. He maintained that, at the time, he did believe that Evan had injured his knee. 

Dr Asadi’s report dated 21 December 2018

1. Dr Asadi’s unchallenged evidence, which I accept, was to the effect that:

   a)he is a consultant psychiatrist;

   b)he had been treating Evan since 19 March 2018, having taken over from another psychiatrist, Dr Chong, who had first seen Evan on 10 March 2016, which was about four months prior to his injury (CB209);

   c)Evan had an adjustment disorder with mixed anxiety and depressed mood, which was the same diagnosis Dr Chong gave Evan on 23 November 2017;

   d)Evan’s diagnosis was secondary to a work issue;

   e)he was unlikely to improve until his work issue was redressed;

   f)he was unfit for his pre-injury duties and for his alternative duties;

   g)a return to his pre-injury duties would probably worsen his psychiatric condition; and

   h)he would never be able to return to Toyota as he has lost his trust in the management, and became anxious when anything reminded him of Toyota.

2. Dr Asadi also said some things of which he had no personal knowledge and that were based on Evan’s report to him, such as that he was ridiculed by his managers in front of others and that his pre-injury job was given to someone else under a slightly different title.  These matters are highly contested, and I give Dr Asadi’s evidence about them no weight, save to the extent that they confirm that Evan has made consistent complaints about these issues for a long time.

Dr Kosmidis’s report dated 4 February 2019

1. Dr Kosmidis’s unchallenged evidence, which I accept, was to the effect that:

   a)he is a general practitioner;

   b)Evan attended Dr Kosmidis twice a month for counselling and medical certificates;

   c)Evan had an adjustment disorder with mixed anxiety and depressed mood;

   d)he often woke with nightmares, palpitations, tremor and sweats; and

   e)his psychological condition was unlikely to improve while his adjustment disorder claim continued to be rejected by his employer and his employer’s insurer.

2. Dr Kosmidis also said that, on 22 March 2017, when Evan was unjustly berated by his manager in front of other workers, and then learned that his pre-injury job was to be given to another person, he felt acutely unwell, overwhelmed, anxious, humiliated, rejected and sickened.

3. Dr Kosmidis had no personal knowledge of those matters and based his statements on Evan’s report to him.  These matters are highly contested, and I give Dr Kosmidis’s evidence about them no weight, save to the extent that they confirm that Evan has made consistent complaints about these issues for a long time.

Maria-Stella Broumos’s affidavit sworn on 13 December 2018

1. Maria’s unchallenged evidence, which I accept, was to the effect that:

   a)she is Evan’s wife;

   b)before his injury, Evan was a very involved family man and very social;

   c)he was very involved in his children’s sporting activities, would work on cars, host social events at home and participate in family outings; and

   d)since the injury, Evan has become withdrawn, put on a lot of weight, rarely attends his children’s sporting activities, cannot stand cars, argues a lot with his wife, and rarely hosts social events at home.

Workplace Injury Rehabilitation and Compensation Act 2013

1. Evan’s return to work was governed by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRCA”). Subsection 103(1) of the WIRCA provided that:

   Provide employment

   (1)An employer must, to the extent that it is reasonable to do so, provide to a worker until the expiration of the employment obligation period [which was defined to be 52 weeks from the date of injury] —

   (a)suitable employment, while the worker has a current work capacity; and

   (b)pre-injury employment, while the worker no longer has an incapacity for work.

   Penalty:    In the case of a natural person, 180 penalty units;

   In the case of a body corporate, 900 penalty units.

2. Section 104 of the WIRCA provided that:

   Plan return to work

   (1)An employer must, to the extent that it is reasonable to do so, plan the return to work of a worker from the date on which the employer knows or ought reasonably to have known of the worker's incapacity for work, whichever is the earlier date.

   Penalty:    In the case of a natural person, 120 penalty units;

   In the case of a body corporate, 600 penalty units.

   (2)An employer must, when planning the return to work of a worker, undertake the tasks specified in subsection (3) as often as is necessary to enable the worker to return to work in employment which is consistent with the worker's capacity for work.

   (3)Planning the return to work of a worker includes—

   (a)obtaining relevant information about the worker's capacity for work; and

   (b)considering reasonable workplace support, aids or modifications to assist in the worker's return to work; and

   (c)assessing and proposing options for suitable employment or pre-injury employment; and

   (d)engaging in consultation in accordance with section 105; and

   (e)providing the worker with clear, accurate and current details of the worker's return to work arrangements; and

   (f)monitoring the worker's progress.

   (4)For the purposes of this section, an employer knows or ought reasonably to have known of the worker's incapacity for work from the date of the commencement of the employment obligation period.

3. In Evan’s case, the employment obligation period was from 14 July 2016 until 14 July 2017. He had a current work capacity from 9 January 2017 until at least 22 March 2017. Therefore, MCT had to provide Evan with suitable work from 9 January 2017 until at least 22 March 2017, to the extent that it was reasonable to do so. MCT was not obliged under the WIRCA to give Evan any part of his pre-injury duties prior to 14 July 2017, because Evan still had an incapacity for work until that date. If Evan had recovered in time, MCT would have been obliged to keep Evan in his complete job as pre-delivery manager and used cars reconditioning manager until at least 14 July 2017.

Martyn Stanley

1. Jerry said at paragraph 9 of his affidavit sworn on 31 August 2018 that:

   Shortly after Evan's injury and unrelated to Evan's injury, Joe and Rodney Tranter (Rodney), previously employed at MCT in the role of General Manager, decided that we required a Technician/Fitter due to the significant increase in vehicles being sold in new and used car departments and the requirement to fit new accessories prior to delivery of vehicles. We were not coping with the increase in sales and needed extra help. The items which MCT required fitting included but were not limited to GPS, bull bars, towbars, reversing cameras, racking systems, winches etc. (CB 349)

2. On or about 30 August 2016, MCT engaged Martyn Stanley to work in the pre-delivery area at the Elizabeth Street site. Jerry said in oral evidence that he was employed as a technician and accessory fitter.   He had previously worked for a Toyota dealership in Queensland in a similar role.  Jerry also conceded in oral evidence that, prior to 22 March 2017, Martyn filled in for Evan in the role of pre-delivery manager and Martyn sat in Evan’s office in the pre-delivery area.

3. Moreover, an MCT telephone list which is undated but which Evan said without challenge that he printed off in January 2017 shows that, under the heading, pre-delivery department, Damien was listed as the contact person in Sunshine and Martyn was described as the PD Manager MCT and had the telephone extension number of the telephone in Evan’s office in pre-delivery.  Jerry said in cross-examination that he was unable to explain why Martyn was described as the PD Manager MCT in the telephone list.

4. Jerry maintained that, once Evan returned to his pre-delivery manager role, Martyn would report to Evan.  However, Jerry conceded in cross-examination that, when Evan returned to work, he did not introduce him to Martyn.  Jerry denied that that was because they did not need to meet as Evan would never return to his role as pre-delivery manager.

5. On the evidence as a whole, it is obvious that Martyn filled in for Evan in his role as pre-delivery manager while Evan was away and Martyn was not simply a technician who fitted accessories.  Jerry’s reluctance to admit that Martyn was, at least on a temporary basis, the pre-delivery manager at the Elizabeth Street site reflects poorly on Jerry’s credibility, as does the claim in his affidavit that Martyn’s engagement was unrelated to Evan being away from work. 

6. It is not surprising that someone would have been appointed to fill Evan’s role while he was away.  His job was useful and important.  If he was not there to do it, someone else had to. If MCT had been in the public sector, the person filling in for Evan would have been appointed as the acting pre-delivery manager, and it would have been clear to everyone that the substantive role remained Evan’s. 

7. However, in the present case, the respondents appear to have confused the issue by claiming that Martyn was just a technician fitting accessories, while giving him the title, in the telephone directory and the office, of the pre-delivery manager in the Elizabeth Street site. If they had been more clear and direct, and said that Martyn was filling in for Evan on a temporary basis while Evan was unfit for his usual duties, the subsequent problems which led to the institution of this case may not have occurred.

8. Taking into account all of the evidence, I do not consider that Jerry did not introduce Martyn to Evan because it was intended that Evan would never return to his pre-injury role. I consider that they were not introduced because everyone, except perhaps Evan, was busy, and there was a social awkwardness resulting from the respondents not making it clear that Martyn was filling in for Evan on a temporary basis while he was unfit for his usual duties.

The hoax telephone call

1. At paragraphs 25 and 26 of his affidavit sworn on 12 July 2018 (CB62-63), Evan said that:

   25. Around August 2016, I began to feel anxious about my job and whether it would be still there for me when I came back from my knee injury. These feelings of anxiety started on 10 August 2016, when I received a phone call from someone who claimed to be my manager Joe Valvo, and who told me that “I will sack you if you’re not back at work by the end of the week”. I immediately felt worried, and rang Merryn Millikan (Payroll Manager) and told her about the call. 

   26.A little later that same day, Joe called me and told me that it wasn’t him who’d called earlier, and that he would sack whoever had called me. He also told me that MCT had brought someone from Queensland to help out on my floor at work while I was injured. Joe didn’t tell me this person’s name, but I later came to learn that it was Martyn Stanley. This information made me feel more anxious, and I started worrying that MCT was going to replace me with this new person. 

2. Contrary to the impression given by that evidence, Evan conceded in cross-examination that he knew at the time of the call that the caller was not Joe because it was not his voice.  Consistently with that concession, although the caller claimed to be Joe, Evan said in cross-examination that he asked the caller who he was.

3. It was put to Evan in cross-examination that he had omitted from his affidavit the response from Merryn when he called her, and some of what Joe had said when he called Evan.  Merryn said in her affidavit sworn on 28 August 2018 that:

   a)she had reassured Evan that he would not be sacked;

   b)she would tell Joe about the call;

   c)Evan described the call to her as a hoax call; and

   d)upon request, Evan gave Merryn the mobile telephone number of the person who had called.

1. Merryn’s evidence on these issues was not challenged and I accept it.

2. It was also put to Evan in cross-examination that Joe had called him shortly after Evan called Merryn and Joe said that Evan was not going to lose his job because of his injury and that his job was there for him when he returned to work. 

3. Evan said in cross-examination that Joe and Merryn may have said things to the effect that he would not be sacked, but he did not recall them being said. 

4. Joe said in his affidavit sworn on 14 August 2018 that he had reassured Evan that his job was there for him when he returned.  That was not disputed. Joe also said in unchallenged evidence that he Googled the mobile telephone number he had been given by Merryn and discovered it was the number of Paul Kouros, who had previously done contract work for MCT and who was a friend of Evan who had done “backyard” work with him.  

5. The respondents did not suggest that Evan had fabricated the hoax call.  Evan did not suggest that the caller really was Joe.  On the evidence, I conclude that the caller was Paul.  His motivation is entirely unknown.  No one called him as a witness.

6. I also accept the evidence of Merryn and Joe that, immediately after the hoax call, they reassured Evan that his job was safe.  Evan accepted that in cross-examination.

7. It was common ground that Evan was anxious about his job from August 2016.  However, the respondents maintained that his anxiety was not caused by anything they said or did.

8. As stated above, if the respondents had been clear that Martyn was engaged on a temporary basis to fill in for Evan while he was away, Evan may not have been so anxious.  I accept that both Merryn and Joe told Evan that his job was safe, but given the respondents’ obfuscation about Martyn’s role, it is unsurprising that he remained anxious.

The telephone call on 27 October 2016

1. Evan said in his affidavit sworn on 12 July 2018 that:

   28.On 27 October 2016, I received a phone call from Nick Chrisohoidis, who is one of MCT’s sub-contractors. Nick told me that he had been told by Wade Shooks, one of MCT’s employees, that “Evan is in for a rude surprise when he returns, he’s not going to have a job”. I felt stressed and anxious that these rumours were circulating about me, whether they were true or not.

   29.That day, I called Merryn and told her that Wade was spreading rumours that I was going to be replaced. I said that I was feeling stressed and depressed about these rumours, and about the news that Joe had given me about the new person from Queensland. After the conversation ended, Joe called me back and told me not to worry about my job.

2. That evidence was not challenged and I accept it.  However, Evan omitted that Merryn also told Evan on that occasion that his job was safe. 

The layout of the Elizabeth Street and Sunshine sites

1. The Sunshine site was all on the ground floor.  As it had no stairs, Evan could have done administrative work there in the pre-delivery area.

2. Evan was able to access the Service Reception area on the ground floor (level 1) of the Elizabeth Street site without climbing stairs.  It did not have slippery floors, so Evan did not need to wear work boots to access that area.

3. The warranty office was on the first floor (level 2) of the Elizabeth Street site.  Evan could drive up a ramp to level 2, and park a few metres from the warranty office, and the facilities, which he could have accessed without climbing any stairs.  However, he considered that it was not safe to walk in that area because it was near a slippery workshop floor.  The Red Team office, for used cars, was also on level 2.  It could be accessed by ascending four stairs. However, it was also near the slippery workshop floor.

4. The pre-delivery workshop and pre-delivery office were on the top floor (level 3) of the Elizabeth Street site.  The pre-delivery office was Evan’s office prior to his injury, but was subsequently occupied by Martyn.  It was common ground that Evan could not access the pre-delivery office because of the slippery floors. 

The occupational rehabilitation assessment

1. Matt, the occupational therapist, visited MCT on 24 November 2016.  On that day, or at around that time, he spoke to Jerry and Merryn, who was the Workplace Health officer for the Jefferson Automotive Group Pty Ltd, of which HSA was a part.  Merryn’s role included processing and coordinating return to work programs for injured staff.  Matt then prepared a Workplace Assessment Report (CB89-90).  It concluded:

   Worksite Assessment – Description of Suitable Duties

   Are there suitable duties that the worker will be able to do at their pre-injury workplace?

   Yes. Melbourne City Toyota can offer Mr. Broumos the administrative aspect of his pre-injury position, working [at] an alternative desk.  Melbourne City Toyota is in the process of confirming which of the following options is available:

   ·Ground floor desk at Melbourne City Toyota – level entry.

   ·Office in the ‘Red Team’ – refer to photo 1.

   ·Desk in the ‘Used Cars’ department – refer to photo 2

   Once confirmed, a return to work program will be forwarded to Dr. Kosmidis for review in the week beginning the 12th of December, 2016.

   Are there suitable duties that the worker will be able to do at another workplace of the pre-injury employer?

   Yes.  Melbourne City Toyota reported that there will likely be an office space for Mr. Broumos at the Sunshine Dealership should the options at Melbourne City Toyota not be available or are not appropriate given his knee injury.  Mr. Broumos will complete the administrative aspect of his pre-injury role at the Sunshine dealership.

2. While that assessment contemplated Evan being given the administrative side of his pre-injury duties, for the reasons discussed below, that was not practicable, although other administrative duties were available to him.

The meeting on 6 December 2016

1. Evan, Maria, Jerry, Matt and Merryn attended a meeting at the Elizabeth Street site on 6 December 2016. The meeting was for the purpose of discussing Evan’s return to work.

2. Evan made a recording of the meeting on his mobile telephone. Evan did not ask the other participants at the meeting, perhaps with the exception of his wife, whether they consented to the recording. It appears that Jerry, Matt and Merryn were not aware that they were being recorded.  Evan conceded in cross-examination that he recorded the meeting partly because he was concerned at that time that he might lose his job.  He also conceded in cross-examination that recording the meeting covertly was deceptive. 

3. A transcript of the meeting was prepared on Evan’s behalf. Some corrections were made to that transcript on behalf of the respondents.  Eventually, an agreed transcript was prepared.  It was exhibited to the affidavit affirmed by Declan Murphy on 15 March 2019 (exhibit 13).  That affidavit was not challenged and I accept it, and the accuracy of the transcript.  

4. The respondents asked the court to listen to the recording (exhibit 23) to assess the tone of the meeting.  However, Evan conceded in cross-examination that the tone was friendly: Tr. p.90, l.3-4.  It is also apparent from the entirety of the transcript that Merryn and Jerry were warm and supportive towards Evan and were encouraging him to return to work.  In those circumstances, I consider it to be unnecessary for me to listen to the recording.

5. Evan also conceded in cross-examination that his affidavit sworn on 12 July 2018 somewhat misrepresented some of the discussion at the 6 December 2016 meeting.

6. In particular, Evan said at paragraph 34 of his affidavit sworn on 12 July 2018 that:

   Also at this meeting, Merryn said that she thought I should work in MCT’s Sunshine building once I returned to work, and that MCT could pay for a taxi to take me there and home each day until I could drive. I was taken aback and asked why this is an option. I asked this because I was concerned that if I was in Sunshine I wouldn’t be returning to my job. My wife Maria said that the Sunshine option was unrealistic and a waste of time and money, because it would involve MCT paying for two one hour taxi trips each day just so that I could work three or four hours. Maria pointed out that there were many options for desks for me to sit at in the Reception area at the Elizabeth Street building. Maria also said that if I was put in Sunshine, I would be too far away from my team and wouldn’t be able to oversee their work effectively. Maria said that if I am going to return to the administrative component of my pre-injury role and continue to liaise with staff, as stated in Matthew’s Workplace Assessment Report of 24 November 2016, then Sunshine was an impractical option. This was the last that I heard about the Sunshine option.  (Emphasis added.) (CB 64)

7. However, page 9 of the transcript annexed to the affidavit sworn by Mr Murphy on 15 March 2019 (“the transcript”) shows that the following conversation occurred:

   MerrynWell there's a couple of options, and you've got to remember that everything we're putting forward is in the interim until you're back on your feet. So Jerry and 1 had a discussion on Friday regarding if Sunshine works better for you in the interim, because there's no stairs, there's nothing there, there's a computer there, there’s enough work there as a stepping stone to get you back into some sort of work fitness.

   JerryBasically you'd be running PD over there

   Maria How do you expect Evan to get to Sunshine?

   MerrynHang on. We would - I have to talk to Rod, but we would agree to pay for cab fare for a limited time. …

8. Page 13 of the transcript shows that the following conversation occurred, with OT designating Matt:

   OTWhat's your preference with location?

   Evan I'd prefer here [that is, Elizabeth Street] to be honest.

   OT But you don't think at this stage you'd be able to climb those three, four stairs.

   Evan                   Well, I’d prefer not to.

9. It was common ground that MCT did not insist upon the Sunshine option.  From the excerpts of the transcript set out above, it is apparent that Evan was offered the option of working in Sunshine temporarily, but Merryn did not say that he should work there.  The initial report prepared by Matt following the meeting on 6 December 2016 included Sunshine as one of four options, with the other three being at Elizabeth Street.  The Sunshine option had the benefits that Evan would have had a dedicated desk, and would not have been required to ascend or descend stairs.  However, there is no evidence that Evan was pressured to select the Sunshine option, and Sunshine was not the option that was ultimately selected, even though it had advantages for Evan.  Evan conceded in cross-examination that his affidavit did not correctly summarise what happened at the meeting in relation to these issues.  This bears on his credibility.

10. At paragraph 35 of his affidavit sworn on 12 July 2018, Evan said:

    Also at that meeting, Merryn and Matthew repeatedly suggested that my physiotherapist Mark Backway could sign off on my Workcover Certificates of Capacity and my Return to Work Plan. I thought this was a strange suggestion, given that Dr Kosmidis was my GP and treating doctor and so should be the medical professional who signs off on these documents. Later that same day, Maria and I  met with my physiotherapist Mr Backway. Maria told him about Merryn and  Matthew’s suggestion that he could sign my Workcover Certificates of Capacity, and  my Return to Work Plan.  (Emphasis added) (CB 64)

11. However, page 31 of the transcript shows that the following conversation occurred:

    OT… That’s about all I’ve got for you today.  You go away and follow up a few things and then make sure we get the program all sorted out by the 12^th and see what the feedback is from Dr Kosmidis.

    Evan                   Sure

    OTBut you’re happy for me to contact Mark and then I might wait until after you guys have seen Dr Kosmidis on the 12^th sounds good.

    Evan                   Yeah, ok, sure.

    MariaWould it be more of a benefit for him to get his certificates from Mark, from here on in?

    OT Depends on whoever you're comfortable with.

    Evan It doesn't really matter. They're both professionals. They're both seeing the same thing but Mark sees a bit more though.

    MerrynUnless you're getting medications from your GP.

    EvanI've really stuck to mainly Panadol. I haven't done anything else.

    OTSometimes it saves you from sitting in the waiting room waiting for Dr Kosmidis and you are seeing Mark twice a week.

    Evan And Mark does see more of what the range is and stuff. I might chat to Mark.

    Merryn              He’ll know more on a week to week basis.

    MariaJust for consistency because at the minute Dr George [Kosmidis] has been providing him with the certificates.

    Merryn              Is Dr George the surgeon or - ?

    Maria                 No, he’s the GP.

    Evan                   So we’ll talk to Mark.

    OTHave a chat to Mark and then see what his thoughts are.

    Evan                   Sure.

    OTIf for whatever reason you need medication or you need - .

    Evan I can always make an appointment to see Dr George.

    OTExactly.  Completely up to you is the answer to your question, but Mark probably has a better understanding.

    Evan                   Of course. Makes sense.

    (Emphasis added)

12. From the transcript, it can be seen that Maria was the person who raised the possibility of certificates being obtained from Mark, the physiotherapist.  The issue concluded with Matt, the occupational therapist, saying it was completely up to Evan who he got his certificates from.  There was no discussion at the meeting about Evan’s return to work plan being signed off by Mark, the physiotherapist.  Evan’s affidavit is simply wrong about these issues.  In fact, Evan agreed in cross-examination that it was a good idea for Mark to sign off on his certificates, and agreed in cross-examination that his affidavit was wrong about this issue.  This also bears on Evan’s credibility.

13. In cross-examination, Evan, after some prevarication, agreed that the primary focus of the meeting on 6 December 2016 was the administrative side of his used cars role.  The discussion was based on Evan being able to drive up a ramp to level 1 of the Elizabeth Street site and walk up four stairs to the used cars department office.  From there, it was thought that Evan would be able to do the administrative parts of his used cars role and be close to the people doing the manual labour on the used cars and be able to receive jobs and give instructions.  It was expected that Evan would have been able to ascend and descend four stairs within a short time of the meeting on 6 December 2016.

14. Also after some prevarication, Evan agreed in cross-examination that the meeting on 6 December 2016 ended on the basis that Evan would be offered the administrative side of his used cars role if Toyota could offer it and if Evan could manage the four stairs, and, if not, other options would be looked at.  Evan’s prevarication on these issues bears on his credibility.

15. Evan also agreed in cross-examination that, at the meeting on 6 December 2016, there was no substantive discussion of him doing the administrative aspects of his pre-delivery role in Elizabeth Street, because it required frequent standing, squatting and walking.  Evan did not agree in cross-examination that the administrative side of his pre-delivery role could not have been easily separated from the physical side. 

16. However, Jerry said in effect in re-examination that, although Evan could do the paperwork associated with his pre-delivery and used car roles, in the sense of ticking off that a technician had completed a repair order, he needed to inspect the car to know whether the job had been done, and had been done properly, which would have required him to access the workshop floor, which he could not do, because it was slippery and because of the stairs.

17. Jerry said that (Tr.p.262, l.23):

    it’s hard to run a PD shop without having your eyes on it.  You’ve got to have your eyes and ears on it.  You need to be up there.  You need to be involved with it.  I mean, you can’t just make a decision on – just on a – on a card without looking at it.  You’ve got to make sure the car is done properly.

18. Jerry said the same applied to used cars.  He said that, if Evan had done the administrative side of pre-delivery and used cars from level 1, the technicians would have spent a lot of time going up and downstairs, which would have adversely affected their productivity.  Jerry said that Evan was not given the administrative side of his pre-delivery and used car jobs because we thought it could not be done properly without being on the appropriate floor (Tr.p.265, l.41).

19. I accept that it would have been difficult to separate the administrative and physical side of both the pre-delivery and used car roles, for the reasons explained by Jerry.  They strike me as plausible, and Evan’s view to the contrary strikes me as wishful thinking.

The 9 December 2016 certificate of capacity

1. On 9 December 2016, Evan’s general practitioner signed a certificate of capacity indicating that Evan had no capacity for work until 9 January 2017.  The certificate noted that Evan was unable to climb stairs and was unable to drive safely.

The 9 December 2016 initial report

1. Also on 9 December 2016, Matt prepared an initial report.  It is annexure EB-5 of the affidavit sworn by Evan on 12 July 2018 (CB96).

2. It indicated that Matt spoke to Mark, the physiotherapist, on 8 December 2016 who said that:

   a)Evan was able to return to work to do administrative duties; and

   b)he would be able to drive independently in two to three weeks.

3. The initial report indicated that Dr Kosmidis had advised Matt on 9 December 2016 that:

   a)Evan could not:

   i)drive;

   ii)climb stairs; or

   iii)walk on slippery floors;

   b)Dr Kosmidis anticipated that Evan would be able to climb stairs in one or two months; and

   c)Dr Kosmidis was supportive of Evan returning to work if a suitable work environment, being an environment without any stairs, could be offered.

4. The initial report noted that Evan’s pre-injury office was located on level 3 of the Elizabeth Street building and had numerous flights of stairs and no lift.

5. Under the heading, Solutions, the initial report stated:

   Work Able Consulting is in the process of confirming with Melbourne City Toyota which of the following environment options can be provided to Mr. Broumos:

   ·Ground floor desk at Melbourne City Toyota - level entry.

   ·Office in the 'Red Team’ - refer to photo 1.

   ·Desk in the 'Used Cars’ department - refer to photo 2.

   ·Ground floor desk at the Sunshine dealership - level entry.

   (CB 98)

6. As mentioned above, the ground floor desks at Elizabeth Street and at Sunshine had no stairs, and Evan would have been able to access them as at 9 December 2016.

7. The office in the Red Team was on the first floor of the Elizabeth Street site and had facilities immediately adjacent to it.  The Red Team did servicing and had the used car reconditioning workshop.  It had a large work area which people could only walk on if they were wearing work boots.  Evan was unable to put on his work boots.  However, it had car parks, which were accessible by driving a car up a ramp.  One of the car parks was adjacent to the Red Team office.  The office could be accessed without walking across the workshop floor. However, there were four steps to the office, which Evan was not able to ascend or descend.  As at 9 December 2016, he was not able to drive, but he could drive by 9 January 2017 when he returned to work.

8. The used cars department was also on the first floor.  Evan could only have worked in the used cars office if he could drive up the ramp and if he could climb four steps.  He could not do either of those things as at 9 December 2016.

1. Evan said in cross-examination that he did not think that he responded to that letter.

Servco’s notice of termination

1. On 9 January 2019, Servco wrote to Evan in the following terms:

   Dear Evan

   Notice of termination of employment

   I refer to my letter to you dated 14th December 2018 in which I advised you that I was considering terminating your employment with Servco Australia Melbourne City Pty Ltd (Servco Melbourne) on the basis that you are currently medically unfit to perform the inherent requirements of your position.

   I invited you to provide me with any medical evidence suggesting you may be fit to return to work in your substantive role at any time in the near future by no later than close of business on Wednesday, 19 December 2018. As at the date of writing, I have received no response from you, your legal representative or any of your treating medical practitioners.

   In the absence of any evidence indicating you are currently fit, or will be fit in the near future, to resume the full range of duties required of your substantive role, I regret to advise you that I have made the decision to terminate your employment with Servco Melbourne on the grounds you are unfit to perform the inherent requirements of your role.

   Based on your period of continuous service with Jefferson Automotive Group and Servco Melbourne, you are entitled to 5 (five) weeks' notice of termination. Servco Melbourne has elected to exercise its discretion under the Fair Work Act 2009 (Cth) to make a payment in lieu of you serving out the notice period. This means that your employment with Servco Melbourne will terminate effective immediately. However, as you have now been on unpaid leave for more than 12 months and, to the best of Servco Melbourne's knowledge, remain unfit to return to work indefinitely, no wages in lieu of notice are in fact payable by Servco Melbourne.

   All accrued annual and long service leave payments owing to you will be processed as part of Servco Melbourne's next pay cycle.

   On behalf of Servco Melbourne, I take this opportunity to wish you the best in your future endeavours.

2. As such, Evan’s employment with Servco was terminated on 9 January 2019.

3. Evan said in cross-examination that, although he was told on at least eight occasions after his injury that his role was available to him until 9 January 2019, he did not believe it and refused to meet with MCT people to discuss it.  Evan confirmed in cross-examination that, from about 10 August 2016, when he learned that Martyn had been engaged, he became worried about the security of his job and he interpreted subsequent events up to 22 March 2017 as being part of a plan to force him out of MCT.  He agreed in cross-examination that nothing could convince him that his role was still available to him until 9 January 2019.

The decision makers regarding the creation of the VDQI role

1. Rod said in oral examination-in-chief that he and Joe were the decision makers in respect of the decision to create the VDQI role.  Jerry said in oral examination-in-chief that he had nothing to do with the creation of the VDQI role, because he was overseas at the time, and that Rod and Joe decided to create the VDQI role.  However, in cross-examination, Jerry said that he was not overseas when the VDQI role was created, in March 2017, but was overseas when it was implemented, in July 2017.  Jerry also said that he had no knowledge prior to the email of 22 March 2017 being sent that the role would be created.

2. Although Jerry’s evidence as to timing was inconsistent, I accept that he was not a decision maker in relation to the creation of the VDQI role.  I accept Rod’s evidence that Rod and Joe were the decision makers in that regard.

Whether Martyn’s new VDQI role affected Evan

1. Evan’s principal issue, and the reason that he walked out of MCT on 22 March 2017, was that he believed Martyn had been permanently given his job as pre-delivery manager for the Elizabeth Street site.  That was a fundamental misapprehension.  Martyn was filling in for Evan while he was away and Martyn was then given a new role, which consisted of being the VDQI and general pre-delivery manager for both the Elizabeth Street and Sunshine sites. 

2. The TMCA had established, and re-launched, its VDQI system.  MCT needed that system to be established in such a way that its implementation could be documented and audited.  Martyn’s new role required him to establish the VDQI system in both the Elizabeth Street and Sunshine sites and then presumably implement it and oversee the ongoing compliance with it. 

3. It is true that Evan had previously carried out some aspects of the VDQI system in his role as pre-delivery manager.  However, the VDQI system had not been established and implemented in the Elizabeth Street and Sunshine sites in such a way that compliance with the system could be documented and audited so as to allow MCT to get a bonus from TMCA.  The respondents did not seek to blame Evan or Damien for the failure to establish and implement the VDQI system.  Rod mentioned in his oral evidence that work hadn’t been completed, and that’s why we were failing in that area (Tr. p.319 l.3). I take that to mean that MCT as a whole was responsible for the failure to establish, implement and oversee compliance with the VDQI system.

4. Evan appeared to have a light bulb moment in cross-examination when he realised that, if Rod’s email of 22 March 2017 meant that Martyn had actually taken Evan’s job as pre-delivery manager for Elizabeth Street, it would have meant that Martyn had also taken Damien’s job as pre-delivery manager for Sunshine.  It was not suggested that Damien lost his job as pre-delivery manager.  The fact that Damien kept his job as pre-delivery manager for Sunshine, and the fact that Blair Stiles was eventually appointed as the pre-delivery manager for Elizabeth Street, constitute strong evidence that giving the new VDQI job given to Martyn did not entail taking Evan’s pre-delivery manager job from him.

5. Evan argued that the creation of the VDQI role was obviously a construct because it occurred when the respondents were clearly frustrated with his slow recovery and it occurred without any business plan or job advertisement being prepared.  That is all true.  However, private enterprises such as MCT do not have to follow public sector processes or best practice.  They can make instantaneous decisions based on hunches or sentiment.  The bottom line is that the decision to create the VDQI role was effective in that MCT did receive its VDQI bonus at the end of 2017, and it never had before.  That shows that the VDQI role was genuine and useful.

6. Evan also argued that emails from Merryn and Joe referred to him having a permanent desk in the warranty office or somewhere other than his own pre-delivery office.  However, in context, these statements can be readily understood as referring to Evan having a dedicated desk, as opposed to being required to desk hop, while he was still recovering from his knee injury.  These statements do not establish that the MCT plan was to put Evan in the warranty office once he recovered from his knee injury.  The fact that Blair Stiles was eventually appointed to the role of pre-delivery manager at Elizabeth Street shows that Evan’s role was ongoing.    

7. Evan’s subsidiary argument was that Martyn had taken over part of his role as pre-delivery manager. Evan argued that the position descriptions of his pre-delivery manager role and the VDQI role had many points in common, which he said was proof that Martyn was taking over part of his role.  In fact, Joe conceded that 5% of the new VDQI role was work that Evan had previously done as pre-delivery manager, albeit in a way that was not sufficient to pass the TMCA audit and get the excellence in service delivery bonus.

8. However, the more telling evidence was Rod’s concession that, in most Toyota dealerships, the VDQI role was undertaken by the pre-delivery manager.  That is, across Toyota dealerships generally, the VDQI role was part and parcel of the role of the pre-delivery manager.

9. Evan had not established and implemented the VDQI system and overseen ongoing compliance with it in Elizabeth Street, just as Damien had not established and implemented the VDQI system and overseen ongoing compliance with it in Sunshine.  Those omissions were apparently with the approval, or at least acquiescence, of MCT management.  There was no evidence that MCT directed Evan and Damien to establish and implement the VDQI system at the Elizabeth Street and Sunshine sites respectively on a particular date, and they failed to do so.

10. When MCT decided to take the appropriate steps to establish and implement the VDQI system and require ongoing compliance with it, Evan could have expected that he and Damien, as pre-delivery managers, would be given those jobs in Elizabeth Street and Sunshine respectively, just as the pre-delivery managers in other Toyota dealerships were.

11. The question therefore is whether Evan was injured in his employment, or his position was altered to his prejudice, by someone else being appointed to do a part of his job, albeit a part that he had not previously been required to do in a systematic, demonstrable and auditable way. 

12. It seems to me that Evan was injured in his employment and his position was altered to his prejudice when Martyn was appointed as VDQI manager.  That is because a part of his role was taken away.  While there is no reason to suppose that Evan would have suffered any loss of pay, he would have suffered a loss of status, because a new manager was put above him to do a role that other people at his level in Toyota dealerships generally did themselves.  He also would have missed out on a new and presumably interesting aspect of his role, being the establishment, implementation and ongoing oversight of the VDQI system.   

13. In the terms of the authorities, Evan suffered an adverse affection of, or deterioration in, the advantages enjoyed by [him] before the conduct in question, his rank was diminished by placing another manager above him, and he was singled out vis a vis other pre-delivery managers at Toyota dealerships generally.  I appreciate that all the other Toyota dealerships in Australia were not owned and operated by MCT.  However, that is beside the point, where the position of pre-delivery manager is well understood and widespread in the industry. 

14. In determining whether Evan was injured in his employment and his position was altered to his prejudice, it is immaterial that Evan had not previously established, implemented or overseen compliance with the VDQI system in a thorough and demonstrable way.  That is because he had not previously been required to do those tasks in a formal way, but they would be part and parcel of his job, if and when MCT required him to do them.

15. The respondents did not call Martyn to give evidence.  Evan argued that if the court had any unanswered questions about what would have been the division of labour between Evan, if he had returned to his pre-injury role, and Martyn, in the VDQI role, then the court should draw a Jones v Dunkel[2] inference, because Martyn could have shed light on the details of his role.  However, I do not consider that it is necessary to resort to Jones v Dunkel in this case.  For the reasons given, it is clear that Martyn was given a part of Evan’s role.

    [2] (1959) 101 CLR 298.

16. It was very unfortunate that Rod’s email on 22 March 2017 was not sent until after the scheduled meeting on 22 March 2017 between Evan, Merryn and Matt.  If the meeting had occurred before the email was sent, the situation and intentions could have been clearly explained to Evan, and it may be that he would have been reasonably comfortable with the new arrangements.  As it was, he misinterpreted the email, by thinking that his whole job pre-delivery job had been given to Martyn, and then refused to engage with anyone from MCT who could have explained the new arrangements to him. 

The reasons for the creation of the VDQI role

1. Rod and Joe denied that they created the VDQI role for any of the prohibited reasons suggested by Evan, namely, because he had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.

2. While Martyn was filling in for Evan as pre-delivery manager at Elizabeth Street, it would have been a natural part of his role, as it was for pre-delivery managers in Toyota dealerships generally, to establish, implement and oversee compliance with the VDQI system.  There was no need for a new role to be created to do that at the Elizabeth Street site.

3. However, that did not deal with the need for the VDQI system to be established, implemented and overseen at the Sunshine site, where the vast bulk of MCT’s pre-delivery work was done. Rod’s evidence, which I accept, was to the effect that most of the new VDQI work would also be done at Sunshine.

4. Looking at the matter as a whole, and with respect to Damien, it seems to me that MCT was unconvinced that Damien could do the VDQI role in Sunshine, either because of his limitations or because of work volumes.  I consider that the new VDQI role was created to deal with the problem of VDQI in Sunshine and that the impact on Evan’s role was incidental.

5. It seems to me that Martyn was brought in to fill in for Evan while he was away.  Martyn was found to be a very capable operator.  MCT decided, for financial reasons that were unrelated to Evan and Martyn, to pursue the bonus for VDQI.  Martyn, as acting pre-delivery manager for Elizabeth Street, could naturally and uncontroversially have done the VDQI role at that site.  However, MCT needed someone to do the VDQI role at Sunshine.  Rod and Joe did not consider Damien to be a viable option. They then decided to appoint Martyn to the new VDQI role in both Elizabeth Street and Sunshine, while allowing Damien to continue in his pre-delivery role.  It seems to me that Evan’s worker’s compensation claim, sick leave and knee injury had nothing to do with Martyn being given a part of Evan’s pre-delivery role.

6. I appreciate that Martyn was not actually relocated to Sunshine until August 2017.  However, that was adequately explained, in that various tasks could be done in advance of Martyn physically relocating, and he was no doubt still needed at Elizabeth Street to fill in for Evan for some time after March 2017.

The decision makers for the assignment of duties to Evan

1. Jerry and Joe accepted that they were the decision makers in relation to the assignment of duties to Evan when he returned to work after his injury, although Joe also said that Merryn had an input.  Merryn denied that she was a decision maker in relation to the assignment of Evan’s duties.  I accept that. Joe and Jerry were Evan’s immediate managers, and it is most likely that they would have been responsible for deciding Evan’s duties, subject to human resources advice from Merryn.

Whether the assignment of duties affected Evan

1. Evan was clearly injured in his employment and had his position altered to his prejudice after he returned to work.  He did not do his own job as pre-delivery manager and used car reconditioning manager at Elizabeth Street, except for an administrative task from used car reconditioning on his first day back at work that he did not complete. 

The reasons for the assignment of duties to Evan

1. Jerry and Joe both denied that they had allocated particular duties to Evan because he had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.

2. I accept that evidence.  It was common ground that, after his injury, Evan could not do the manual part of his pre-injury work.  As discussed above, it was not practicable for Evan to do the administrative side of his pre-injury work because he was physically unable to inspect the vehicles in either pre-delivery or used cars, and vehicle inspections were an integral part of the administrative work.  An attempt on Evan’s first day back at work to give him the administrative side of his used car reconditioning role proved to be a failure, with Evan simply not doing that work.

3. The evidence shows, contrary to Evan’s claims, that he was not formally promised the administrative side of his pre-injury work.  Page 14 of the transcript of the meeting on 6 December 2016, which Evan relied on to prove the promise, showed that the following conversation occurred:

   OT And then does it worry you guys where Evan's based around the initial return?

   JerryNot at all. If that's all the paperwork, no it's all administration stuff so.

   OTAnd it would be doing pre-delivery?

   Jerry Pre-delivery stuff, like he was doing before.

   Evan I was doing the used cars by all means, but will do. I mean, if I’m on this end used cars and PD no problem. But from on that end they can't walk over to me and give me a [number] plate and say look at it.

   Jerry But the initial shop is where those three stairs are. The whole idea was maybe just sit there just doing the paperwork which takes Sergakis away from that, and then you just do the quote and hand out the jobs basically.

   OTOk.

4. Evan agreed in cross-examination that, when he said, they can't walk over to me and give me a [number] plate and say look at it, he was talking about pre-delivery work.  In other words, Evan himself noted an impediment to him doing the administrative side of his pre-delivery work. 

5. In any event, the meeting on 6 December 2016 was an initial discussion aimed at working out options.  The participants did not reach a concluded agreement.  A lot was left to be determined, based on further medical evidence and further investigation into how many stairs there were in various places.

6. The initial report dated 9 December 2017 proposed that Evan do:

   Administrative tasks associated with 'Pre-Delivery' and ‘Used Cars'.

7. However, as the initial report itself said, it was a proposal, not an agreement.

8. The return to work plan dated 12 December 2016 repeated the modified duties of:

   Administrative tasks associated with 'Pre-Delivery' and ‘Used Cars'.

9. However, the return to work plan was again a proposal.  It was never signed off by Evan’s doctors, and so it was not a firm agreement.  Evan in fact returned to work without a fixed return to work plan. 

10. In circumstances where Evan could not effectively do any of his own pre-injury work, he needed to be given other suitable duties, to the extent it was reasonable to do so.  Evan was given work assisting in service reception, where he was physically located, by answering telephone calls and so on.  That may have been menial work, but all managers did it when required.  It seems to me that the reasons Evan was required to do that work were simply that he was there, he was available, it needed to be done and there was little else he could realistically be given.

11. Evan was also given some warranty work while working in service reception on level 1, which I understand involved removing staples and gluing.  Again, this was menial work and Evan may have found it humiliating.  However, I consider that Evan was given that work because he was available, it needed to be done and there was little else he could realistically be given.   

12. Apart from claiming to this court that he could have done the administrative side of his pre-injury role, Evan did not identify any other suitable work he could have been given.  For the reasons expressed previously, the administrative aspect of his pre-injury job was not a realistic option.  Vehicle inspections were an integral part of the administrative side of Evan’s pre-injury work, and he could not do them.

13. I considered whether Evan could have been given the new VDQI role, although this was not pressed as a viable option.  However, it seems most unlikely that Evan could have done it while he was recovering from his knee injury, as a glance at the VDQI manual indicates that establishing, implementing and overseeing compliance with the VDQI system would have required Evan to access the workshop on level 3, which he could not do.

1. Evan claimed that MCT planned to put him in the warranty office as an assistant to Scott on a permanent basis.  Although Merryn and Joe referred in emails to the warranty office being a permanent option, as discussed elsewhere in these reasons, I consider that they meant permanent until Evan had recovered sufficiently to return to his own office in pre-delivery.  Locating Evan in the warranty office was a way to deal with his complaints about desk hopping, and also give him ready access to the warranty work, which he was capable of doing. There was not a decision to change Evan’s job on a permanent basis to the assistant in the warranty office.

2. Merryn’s email of 10 March 2017 about Evan’s role changing, and that being an employment matter, was sought to be explained by Joe as a change in the mix of Evan’s work from 50:50 between pre-delivery and used cars to 75:25 between pre-delivery and used cars, because of changes in sales volumes.  Rod did not agree that sales volumes had changed that much.  I prefer Rod’s evidence on this point and do not accept that the sales volumes had changed as much as Joe said. 

3. In view of that discrepancy in the respondents’ evidence, and given how close Merryn’s email of 10 March 2017 was to the email of 22 March 2017, I do not accept that it is credible that the change in Evan’s role that Merryn referred to was simply a natural evolution based on a change in sales volumes.  I consider that the change in Evan’s role that she referred to was the transfer of the VDQI management part of Evan’s role to Martyn.  However, for the reasons discussed, I do not accept that was done for a prohibited reason.

4. All in all, I am satisfied that Evan was given the only duties that he was physically capable of at the time, and that was the reason he was given them.  The duties were suitable, in the sense that Evan could do them without physical risk to himself, and they were reasonable in the sense that they were the only duties that it was practicable for him to be given.

5. Evan alleged in this proceeding that the tasks he was given after his return to work prevented him from maintaining his skills, made him lose confidence in his work abilities and made it difficult for him to return to his pre-injury position.  That seems unlikely to me, given how long Evan had been working for MCT.  However, even if it were true, there was no realistic alternative, and he was not assigned particular duties for a prohibited reason.

6. In a literal sense, Evan was given particular duties because of his knee injury, as it meant that he was physically incapable of other duties.   But he was not given the particular duties because of discrimination on account of his knee injury.  He was given the particular duties for the reasons previously explained.

The decision regarding the location where Evan worked

1. Jerry said that he, Merryn and Joe jointly decided the location where Evan worked when he returned to work after his injury.  However, I consider from the evidence that Merryn’s input was negligible.  I consider that Joe and Jerry decided where Evan would work.

Whether Evan was affected by where he worked

1. I accept that it would have been humiliating for Evan, who was a manager accustomed to having his own office, to be required to sit in an open plan area at someone else’s desk, and on occasion to sit on the edge of the desk if the owner of the desk was already sitting at it.

2. I would have been inclined to accept that humiliation of that type is an injury in employment and that it was an alteration of Evan’s position to his prejudice, as his position entailed its own office, of which he was deprived.

3. However, the respondents argued that humiliation was not in itself adverse action.  They relied on Arnett-Somerville v Monash Health [2016] FCA 1451, where Jessup J said at [89]:

   While the feelings of the victim of alleged adverse action might often be relevant to the question whether such action in fact occurred, on their own they would never, in my view, be sufficient.

4. On the basis that the respondents’ submission on Arnett-Somerville might not be correct, I will consider the reasons for the location where Evan worked.

The reasons for the location where Evan worked

1. Jerry and Joe denied that they located Evan in any particular place because he had made a worker’s compensation claim, had taken paid sick leave or had an injured knee. 

2. Evan was offered the option of working in Sunshine, but he refused to go there.  That was the reason he was not located there.

3. Evan was offered the option of working from the warranty office on level 2 of Elizabeth Street, but he refused.  That was the reason he was not located there. 

4. Evan could not access the Red Team office on level 2 of Elizabeth Street, because he could not ascend or descend the four steps to it.  That was the reason he was not located there.

5. Evan could not access his own office on level 3 of Elizabeth Street, because of the slippery floors, and because Martyn was occupying it.  It was reasonable for Martyn to occupy that office because he needed to be close to where the pre-delivery work was being done while he filled in for Evan. Those were the reasons Evan was not located in his own office.

6. The only other options were on level 1 of Elizabeth Street.  As discussed above, the lunch room was not an option because it was a lunch room and it did not have a computer in it.  The offices on level 1 were all occupied. 

7. That meant that the only available options were desks in service reception on level 1 at Elizabeth Street, which were sometimes unoccupied.

8. Evan did not point to any other places where he could have been located, apart from the lunch room, which was not a viable option.

9. I consider that Evan was located in the service reception area on level 1 of Elizabeth Street because it was the only available place that he could physically reach that he was at all willing to sit in.

The lack of an ergonomic assessment

1. Jerry and Joe both denied that they were the decision makers regarding the failure to provide an ergonomic assessment for Evan’s workstation. 

2. The respondents argued that a decision was made by an unspecified person to delay the ergonomic assessment until after Evan had a dedicated desk during his recovery phase.  They also said, and Evan agreed, that he was offered an ergonomic assessment of his chair, which he told the court was all he needed, but it did not occur.

3. From the emails set out above, it is clear that Evan asked Matt for an ergonomic assessment after he returned to work but it did not occur.

4. On the evidence, it seems to me that the ergonomic assessment did not occur because Matt did not organise it.

5. However, I fail to see how the lack of an ergonomic assessment injured Evan in his employment or altered his position to his prejudice. Evan did not point to any particular difficulties arising from the lack of an ergonomic assessment and I cannot think of any.  Consequently, I take this point no further.

Bullying

1. At paragraph 38 of his amended points of claim, which was further amended during the hearing, Evan alleged that he was bullied as follows:

   During both the Sick Leave Period and the Work Period Henry Simon the Respondents engaged in the following unreasonable behaviours that harmed Mr Broumos’ health (the Bullying):

   a.threatening Mr Broumos’ job security;

   Particulars

   i.In or about July or August 2016 Henry Simon created the impression that Mr Broumos was going to be terminated by undertaking recruitment for an employee to fill the Position without making it clear to other MCT employees that Mr Broumos still held the Position.

   ii.On 10 August 2016 Mr Valvo informed Mr Broumos that MCT had recruited an individual from Queensland to undertake the Position while Mr Broumos was off work. In response Mr Broumos told Mr Valvo that he was concerned that MCT was going to sack him.

   iii.During the Work Period the Respondents created the impression by allocating another employee all of the Administrative Pre-Injury Duties despite the fact that Mr Broumos was by then able to perform some or all of them.

   iv.In or about mid-March 2017 MCT informed all staff occupying pre-delivery manager positions, except Mr Broumos, that Martyn Stanley was about to be appointed to a new pre-delivery manager position.

   v.On 22 March 2017 Mr Tranter sent an all staff email announcing the appointment of Martyn Stanley to a new pre-delivery manager position that appeared to replace the Position.

   b.subjecting Mr Broumos to humiliation and rumours about the security of his job, and behaving aggressively towards Mr Broumos.

   Particulars

   i.      On 16 January 2017 Mr Rizza approached Mr Broumos while he was on a coffee break and said words to the effect of ‘this isn’t a fucking holiday camp, get back inside’.

   ii.     On 23 February 2017 Mr Broumos called in sick with bronchitis and Mr Valvo sarcastically replied with words to the effect of ‘wow, I must be working you too hard’.

   iii.     On 22 March 2017 when Mr Broumos told Mr Valvo that he was not working upstairs because it was inconsistent with his return to work plan Mr Valvo mockingly said words to the effect of ‘what’s the difference?’

   iv.     On 22 March 2017 Mr Rizza loudly berated Mr Broumos in front of several other employees with words to the effect of ‘what the hell are you doing down here’ and ‘I’ve told you to go upstairs, don’t you understand what upstairs means?’

2. In relation to a.i, the evidence was that there was no recruitment process.  The allegation does not accord with the facts.

3. In relation to a.ii, there was nothing untoward in MCT recruiting a person to fill in for Evan while he was away.  As Evan’s job was useful and important, someone had to do it, albeit in a temporary or acting capacity. Martyn was not recruited because Evan had made a worker’s compensation claim, had taken paid sick leave or had an injured knee, but because Evan was physically unable to do his job.

4. In relation to a.iii, as discussed above, Evan was not able to do the administrative side of his pre-injury role because he was not able to inspect the vehicles, which was an integral part of the administrative duties. The allegation does not accord with the facts.

5. In relation to a.iv, the respondents conceded in closing submissions that Evan was not told in advance of Martyn’s appointment to the VDQI role, and claimed that it was probably due to an oversight because Evan called in sick on 15 and 17 March 2017.  I accept that depriving people of information that is highly significant for them can constitute bullying.  However, as this was an isolated incident, I do not consider that it rises to the level of bullying. In any event, I do not consider that the failure to give the information to Evan was because he had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.  I infer that that he was not given that information due to an oversight.

6. In relation to a.v, the email did not appear to replace Evan’s position, as it was a new position affecting the pre-delivery work at both Elizabeth Street and Sunshine.  However, in fact, it did replace part of Evan’s position, as described above.  Notwithstanding that, it did not amount to bullying because it was a decision made for business reasons, and not with any intention to harm Evan.  Moreover, as discussed above, the decision to give part of Evan’s job to Martyn was not made because Evan had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.

7. In relation to b.i, I do not accept that Evan was on a coffee break.  I accept Joe’s evidence that Evan was frequently absent from his desk without permission.  As stated above, I accept that Jerry said, this isn’t a fucking holiday camp, get back inside.  Obviously, Jerry could have chosen his words better, and I accept that it would be humiliating to be spoken to in that way.  However, I do not consider that it constituted adverse action for a prohibited reason.  Jerry said those words because Evan was absent from his desk without permission, and he wanted Evan to get back to work.  I do not consider that Jerry said those words because Evan had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.

8. In relation to b.ii, I accept that Joe said, Wow, I must be working you too hard.  Joe did not deny saying that in his affidavit. It is consistent with his evidence that Evan was not working very hard. I accept that the remark may have felt humiliating.  However, I accept Joe’s evidence that Evan was not working very hard.  I consider that Joe said those words because Evan was not working very hard, and not for a prohibited reason such as that Evan had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.

9. In relation to b.iii, I accept that Joe said, What’s the difference? Joe did not deny saying that in his affidavit. It is consistent with his evidence that Evan was not working very hard. I accept that the remark may have felt humiliating. However, I do not accept that Joe said those words for a prohibited reason, such as because Evan had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.  I consider that Joe said those words because he was disappointed that Evan was not working harder during his recovery phase.

10. In relation to b.iv, I accept that Jerry said, What the hell are you doing down here? I’ve told you to go upstairs, don’t you understand what upstairs means?  Jerry did not deny this in his affidavit but he did give a detailed alternative version that was not consistent with Evan’s version.  Also, in cross-examination, Jerry vehemently denied saying those words.  As discussed above, there is reason to doubt both Jerry’s and Evan’s credibility.  On balance, however, I accept that Jerry said those words, or something very like them.  Evan has consistently said for a very long time that, prior to seeing the email on 22 March 2017, he had been berated by his manager. However, I do not consider that Jerry said those words for a prohibited reason, such as because Evan had made a worker’s compensation claim, had taken paid sick leave or had an injured knee.  I consider that Jerry said those words because he wanted Evan to work in the warranty office while he was in his recovery phase.

11. Evan argued that the various points he raised amounted to bullying and he was thereby injured in his employment and had his position altered to his prejudice.  However, for the reasons expressed, I do not consider that the conduct complained of, to the extent that I have found that it occurred, was for a prohibited reason. 

Conclusion

1. For the reasons discussed above, I am not persuaded that Evan was injured in his employment or had his position altered to his prejudice for a prohibited reason. It follows that HSA does not have any liability on those grounds and Jerry and Joe do not have any accessorial liability.  The application will be dismissed. 

I certify that the preceding three hundred and eighty-four (384) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date:         1 July 2019