Brzozek v Gerhardt Australia Pty Ltd
[2010] VCC 1225
•24 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-09-04406
| Zenon Brzozek | Plaintiff |
| v | |
| Gerhardt Australia Pty Ltd | Defendant |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9-11 & 16-18 August 2010 |
| DATE OF JUDGMENT: | 24 September 2010 |
| CASE MAY BE CITED AS: | Brzozek v Gerhardt Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1225 |
REASONS FOR JUDGMENT
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Catchwords: TORT - NEGLIGENCE – workplace harassment – psychological injury – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V. Morfuni SC | Slater & Gordon |
| with Mr G. Colquhoun | ||
| For the Defendant | Mr R Stanley QC | Thomsons Lawyers |
| with Mr A. Middleton | ||
| HER HONOUR: |
1 The plaintiff is 59 years old. He left school at the age of fifteen at the end of Year 9 and completed an apprenticeship as a fitter and turner. He then worked as a fitter and turner for various employers before commencing work in March 2002 with the defendant. Some months later, he was made a team leader. He experienced difficulties with some co-workers. The business was sold and in the months before new management took over he did not perform his team leader duties. In September 2003, the new management of the company appointed him as team leader. The plaintiff experienced further difficulties flowing from the behaviour of some co-workers which are detailed below. He resigned as team leader in late August 2004. He was diagnosed in mid-September 2004 with a depressive condition and returned to work briefly for a few days in late September 2004 and then again on 13 October 2004, when he was unable to continue working. He has not worked since then. His claim for compensation dated 21 September 2004 was accepted by the defendant, and he continues to receive weekly payments.
2 In these proceedings the plaintiff claims general damages[1] against the defendant alleging that during the course of his employment with the defendant he was “unduly harassed, verbally assaulted and ridiculed” by co- workers. He alleges that the defendant breached its duty of care to him in a number of ways:[2] failing to provide a safe system of work; failing to properly instruct or supervise him; allowing and/or permitting him to be unduly harassed, verbally assaulted and ridiculed by fellow workers; failing to heed his complaints; failing to allow him to resign; failing to take reasonable care for his safety in the circumstances; and failing to comply with the provisions of the Occupational Health and Safety Act 1985 and the Regulations made under that Act.
[1] Paragraph 4(a) of the Amended Statement of Claim dated 14 April 2010 states that no claim is made in respect of loss of earnings and loss of earning capacity.
[2] In closing submissions Mr Morfuni indicated that he did not pursue the sub-paragraph (b) of the particulars of negligence set out in the Amended Statement of Claim.
3 The plaintiff contends that the defendant conceded causation at the hearing and therefore the only issue to be determined is whether the plaintiff has established that the defendant should have foreseen that the conduct (comprising the verbal and physical abuse alleged as well as the response of Mr Cotter to complaints about it) may result in psychological injury to the plaintiff. The plaintiff says that the defendant should have foreseen that the failure to support the plaintiff would lead to his psychological condition. In this regard, it was submitted that the period before April 2004 was relevant because the plaintiff had been acting unofficially in the team leader role, and particularly in December 2003 had been given authority to make decisions in Mr Cotter’s absence. However, Mr Cotter failed to specifically instruct the workers about the plaintiff’s role and authority and failed to act on his complaints in this regard. In particular, by August 2004, given what Mr Cotter knew about the difficulties being experienced by the plaintiff in getting the workers to listen to him, it was reasonably foreseeable that the plaintiff would suffer psychiatric injury. The plaintiff says that in order to avoid the risk of foreseeable injury Mr Cotter should have removed the plaintiff from the role of team leader or should have not allowed him to continue in the role when he verbally sought to resign.
4 Having regard to the plaintiff’s evidence about his pain and suffering and to the medical evidence, it was submitted that a significant sum should be awarded by way of damages.
5 The defendant admits that it owed the plaintiff a duty of care in the circumstances. It does not deny that bullying and harassment can in some cases lead to psychiatric injury. It acknowledges that the plaintiff was diagnosed with a psychiatric condition in September 2004, that his condition arose during the course of his employment, and that his employment materially contributed to his psychiatric condition. It says that other factors, including his wife’s terminal illness and his own cardiac condition, are also relevant to his psychiatric condition. However, it denies that the alleged bullying or harassment occurred as claimed by the plaintiff. It also denies that there was any breach of the duty owed by the defendant, on the basis that it was not reasonably foreseeable to the defendant that the plaintiff was at a foreseeable risk of psychiatric injury as a result of the way he was being treated or was coping with his work functions. In the light of the contention that there was no negligence by the defendant, no submissions were made by the defendant on the question of contributory negligence. The defendant submitted that no damages should be awarded because the plaintiff has other problems (his heart condition, his wife’s illness) which would have affected his ability to work and enjoy life.
GENERAL AND SPECIFIC ALLEGATIONS
6 The plaintiff made general complaints about the failure of management to support him in his role of team leader in the face of his complaints about the behaviour of some workers, both in terms of their alleged refusal to accept his authority and in terms of their alleged disrespectful behaviour, which was said to include harassment and abuse.
7 In providing detail of that general complaint, he advanced four specific complaints or allegations of breach of the employer of its duty of care. I have briefly summarised below the evidence of the plaintiff and his co-workers Andrew Mullaney and Bradley Shaw relating to these specific allegations. I have dealt separately with the evidence of Mark Cotter.
October 2002: verbal abuse by workers on the shop floor, in particular Andrew, who would “chest” him; failure of Mr Smith to take any action on his complaint.
8 The plaintiff’s evidence can be briefly summarised.
9 When he started working for the defendant in March 2002, there were eight to ten other employees on the factory floor, as well as some staff in the office. In his previous employment, he had worked as a supervisor for a few months, and at the age of 30 he did a supervisor’s course. While working as a machinist, he had no trouble with his co-workers. Six to seven months later, he was asked by the manager, Harry Smith to become team leader, which involved looking after the apprentices (teaching them machining, safe practices and OH&S) and managing overtime (by working out a production schedule). This role would be in addition to the plaintiff continuing to perform his own machining work. The plaintiff agreed, and Mr Smith announced this appointment to workers at a meeting. One of the workers, Andrew Mullaney, was not happy with this appointment and the plaintiff mentioned this to Mr Smith. Mr Smith told the plaintiff not to worry about Andrew “he will self- destruct”,[3] as he had problems in the past with drugs. Some of the workers would then accuse him of being “up the boss’s bum”[4] and so on.
[3] Transcript [T] 20.
[4] Ibid.
10 Andrew Mullaney gave evidence that he has been a fitter and turner employed by the defendant for the past 13 years. He started as a hand trimmer and then obtained his trade qualification as a fitter and turner. He worked under Harry Smith as a machine operator but from time to time worked in the trimming department with Bradley Shaw. He denied telling the plaintiff in 2002 that he was “up the boss’s bum” or a “cocksucker”.[5] He denied ever “chesting” the plaintiff. He said he never saw any other employee do so either. He denied ever being involved in a physical incident with the plaintiff. He was not aware of people spending time in the office on the computers other than at lunchtime.
November – December 2003: physical abuse in the form of “chesting” by Andrew and Nicholas; verbal abuse by Andrew, Nicholas and Bradley; abuse by Mr Rigu.[6] refusal of Andrew and Nicholas to comply with his directions; verbal
[5] T256.
[6] In spite of my asking on a number of occasions, who Nicholas was, the question was never answered. There was minimal specific evidence concerning the actions of “Nicholas” and I therefore say nothing further about him.
11 The plaintiff said that in 2003 the business was sold to the defendant, and between that time and the introduction of new management, the plaintiff did not perform the duties of team leader. He said “basically I just let the position drift, I just really didn’t want the people being so awful towards me”.[7] The new manager, Mr Cotter, invited him to become team leader in April 2004 for a three month probationary period. No training was provided. The plaintiff was to attend all production meetings, prepare production schedules, look after the factory and the apprentices. The plaintiff accepted the position on the condition that Mr Cotter notify the workers of his position. Mr Cotter said he would put a notice on the board. The Plaintiff says he did not do so.[8] However, he announced at the end of the monthly staff barbeque that the plaintiff was team leader.
[7] T21.
[8] See Mr Cotter’s evidence below where he says he did in fact put a notice of appointment on the notice board.
12 The plaintiff’s ex-wife, Barbara June Brzozek, gave evidence that she was married to the plaintiff from 1974 to 1994 and had been in regular contact with him since then. She said that she knew about his job with the defendant and that he was very happy at being appointed a team leader. She said that when they were married he had excellent communication skills and had never taken anti-depressants. He formed a basketball club for teenagers which they ran together and which grew to comprise 20 teams.
13 The plaintiff said that during his first three months as team leader, a number of the workers, including Andrew and Bradley did not accept his authority as team leader. They would stand at their machines talking and not working, and would not comply with his directions. On three occasions one worker, either Andrew or Nicholas “chested” him. Nicholas and Andrew said they did not want him in the job. The plaintiff told Mr Cotter about these matters but he did not speak the workers and just told the plaintiff to “hang in there”. He did not tell the plaintiff why he did not take any action.
14 The plaintiff gave evidence in the following terms about a co-worker, Rigu. “I would go to say a grinding machine and ask a chap that was quite good, ‘Rigu, how’s the job going?’ and he’d say, ‘None of your business. I’ve been here many years. I don’t need your help, you go away from me’.[9] Later in his evidence[10] the plaintiff said that he complained to Mr Cotter that when he asked Rigu for a “simple lift”, he was told by Rigu that he did not have the time to do it. The plaintiff complained that Mr Cotter “wouldn’t discipline anyone that had been on – at the factory for quite a few years”.[11]
[9] T26.
[10] T60.
[11] T61.
15 In cross-examination, the plaintiff agreed that he had some experience of being a supervisor prior to working for the defendant and knew what he was going into when he took the job of team leader. He felt he had the knowledge and experience to do the job. He knew in particular of the problems he experienced as team leader in 2002 and 2003 before the sale of the business to the defendant. The plaintiff agreed that he had been told by Mr Cotter that his team leader duties did not include looking after the trimming department where Andrew and Bradley worked, but he said they would sometimes work on the floor, and misbehave, but that he was not allowed to discipline Andrew at all.
16 Andrew Mullaney said that Mr Cotter told the workers at a barbeque that the plaintiff had been appointed team leader. He did not recall seeing a notice about the appointment. He understood that the plaintiff was in charge of the machine shop area. He had no issue with the plaintiff being team leader and denied trying to turn other people against the plaintiff. He said his relationship with the plaintiff was “fine” and that he carried out the plaintiff’s directions because he was the boss. Andrew said there were disagreements about the way of doing things, but no abuse towards the plaintiff. He recalled having only one disagreement with the plaintiff, and that was when the plaintiff was smoking at his machine, and Andrew asked him not to. He felt the plaintiff behaved very well as team leader.
17 In terms of the plaintiff’s performance as a machinist, Andrew said that the plaintiff’s role was to do the rough turning on the first machine and then Andrew would machine away the waste and leave a cutting edge. He recalled one occasion when a piece was inadequately machined by the plaintiff and, as part of procedure, Andrew reported this to the production manager, Joe Castuera. Andrew said he did not recall the plaintiff ever raising the issue with him.
18 Bradley Shaw has worked as a hand trimmer for the defendant for about 17 years. He does precision work with a microscope needed to complete the bespoke objects made to order by the factory. He does not work on the factory floor but in a separate office. He said that prior to 2002, there was no foreman on the shop floor and workers would sometimes use the computers in the sales room during work hours. He agreed that some time in 2002 Mr Smith appointed the plaintiff as team leader. He did not see any confrontations between the plaintiff and other workers. He was never spoken to by the plaintiff about the length of smoking breaks. His view was that as he did not work on the factory floor, the plaintiff could not give him directions. The plaintiff sometimes tried to do so, but he told the plaintiff it was not his concern. He denied ever telling the plaintiff to “f… off”. He said he did not complain to Mr Smith about the plaintiff but did ask Joe Castuera to clarify whether the plaintiff was in charge of him. He agreed that he had sworn at Andrew, who worked with him in the trimming area until 2002, but denied ever swearing at the plaintiff.
19 When Mark Cotter came in as the manager, he appointed Joe Castuera as production manager, and the plaintiff as team leader. The plaintiff was to supervise the staff on the factory floor – the fitters and turners and apprentices, but not the trimming department. Bradley denied resenting the plaintiff’s position as team leader, which was announced by Mr Cotter at the staff barbeque. He did not see any written notice of the appointment. He accepted the plaintiff as leader of the factory staff. He said that he had been left to do his own thing even when the plaintiff was team leader. He insisted that the plaintiff had nothing to do with his area, and denied ever acting aggressively towards him. Bradley said that during this time he did not have much to do with the plaintiff except when he came into the trimming department to check on how jobs were going. That was not the plaintiff’s job, because he did not know anything about the trimming area. Bradley said that when the plaintiff came in to the trimming area and asked about things his reaction would be one of frustration, he said “I’d let him know that I know what I'm doing and if there is any changes Joe, the production manager, would usually let me know”.[12] He denied ever swearing at the plaintiff at work. If there was anything to know, Bradley would tell Joe Castuera, the production manager.
[12] T222.
20 Bradley said he got along with the plaintiff. They talked about football alot, and about their families. He recalled only one argument with the plaintiff when he found the plaintiff smoking in the toilet at work and told him off. He also reported the incident to Joe but did not know if Joe had spoken to the plaintiff about it. He only swore when he made a mistake with his own work. He did not recall an occasion when he was smoking outside with an apprentice and was alleged “from a distance” to swear at the plaintiff and give him a “filthy look”.[13]
[13] T227.
21 Bradley said that he saw the plaintiff daily and noticed he had gained a little weight but that he did not show signs of being under stress or unable to cope. He did not know why the plaintiff stopped coming to work. He thought the plaintiff had gone on holidays. He first learned of the plaintiff’s illness about a year after he left.
December 2003: failure of Mr Cotter to clearly demarcate roles of Joe Castuera, Jorge Romero and the plaintiff when he was away; verbal abuse from other workers because he tried to enforce the rules in relation to computer surfing, excessive smokos and time keeping
22 Bradley did not recall a period in December 2003 when Mr Cotter was away. He did not recall any incident where the apprentices told the plaintiff to go away, nor any verbal argument between the plaintiff and Joe. Bradley was located in an office and could not see or hear what was happening on the factory floor. He did see an argument between the plaintiff and Leon (one of the apprentices). He could not say when it occurred. The plaintiff asked Leon to do some work and Leon told him he had a full workload and the plaintiff would have to do it himself. Bradley said that Leon did not swear at the plaintiff on that occasion.
23 He did not see any argument between the plaintiff and Mr Nikolic. He never saw Sean (one of the apprentices) refuse to follow a direction from the plaintiff.
24 According to the plaintiff, when Mr Cotter went overseas in early December 2003, he left the plaintiff and Jorge Romero and Joe Castuera to run the business. He told them to work as a team. Usually Joe spent most of his time in the production office and Jorge was the sales clerk. Mr Cotter told the plaintiff that the workers would give him a hard time but he was to “hang in there”.[14] Mr Cotter told him that the shop floor was his responsibility.
[14] T28.
25 The plaintiff said that while Mr Cotter was away, the workers did not consult him about any decisions, but went to see Joe instead. The plaintiff said that he argued with Joe about not being consulted first. When he told Joe that some workers were complaining about other workers not working, Joe told him “no one is in charge”.[15] When he tried to give instructions to workers who were taking excessive smoking breaks, he was told to “f… off”. George and Joe did not consult him about an urgent job they took on even though it was the plaintiff’s role to delegate work on the shop floor.
[15] T29.
26 The plaintiff’s complaints about the one-week period when Mr Cotter was away were set out in a letter to Mr Cotter (Exhibit C) which the plaintiff says he gave to Mr Cotter upon his return from China. The letter mainly alleged that Joe was undermining the plaintiff by allowing the workers to speak to him directly about work rather than going to the plaintiff first. He felt that as a result of this behaviour he had “been given the cold shoulder in the factory”. He concluded:
I have copped it from staff and fellow workers in shop. I would appreciate some immediate support from yourself in getting my self esteem back in workshop. No one should be undermined to the extent that I have by Joe.
27 Mr Cotter’s response to this allegation is set out below.
February to August 2004: continuation of verbal abuse and refusal to comply with directions by Andrew and Bradley; failure of Mr Cotter to take action on the plaintiff’s complaints.
28 The plaintiff said that in 2004 there were further episodes of swearing at the plaintiff on the shop floor by Bradley, Andrew and Nicholas. The plaintiff informed Mr Cotter of this behaviour, but no steps were taken by Mr Cotter to address the issue.
29 He said that by April 2004 he had told Mr Cotter that people on the floor were giving him a very hard time. He told Mr Cotter he did not think the workers knew what a team leader was, but Mr Cotter disagreed. In 2004 the plaintiff said he resigned a few times verbally but was told by Mr Cotter to ‘hang in there”.[16] In cross-examination he agreed that he accepted the invitation on these occasions to stay on as team leader.
[16] T26.
30 By July 2004, he was feeling “totally stressed”.[17] He told Mr Cotter that the shop floor was not listening to him. Mr Cotter told him he would look around, but he took no action. In July and August the situation continued. Workers were refusing to help the plaintiff when he asked for assistance, saying they were sticking to their time limits. Mr Cotter said this response was “rubbish”.[18] By this time, the plaintiff’s work was suffering. He was making mistakes and working on Sunday to correct them. He was eating large amounts of ice cream at night. He stopped having physical contact with his wife.
[17] T41.
[18] T41-42.
31 In cross-examination, he agreed that around this time Mr Cotter raised his performance as machine operator and team leader. He agreed that Mr Cotter spoke to him about the verbal arguments he had been having with staff, but said he had an explanation for what occurred and that he told Mr Cotter he was being undermined by staff. He agreed that from early August onwards he was regularly discussing his problems with Mr Cotter at production meetings. He agreed that he had a disagreement with a Pedro Nikolic on 27 August 2004.
32 On 27 August 2004 he was crying at his machine and told Mr Cotter the situation was not workable, that he was not feeling well and that he could no longer work. He wrote a letter of resignation which he gave to Mr Cotter. He resigned because he was getting abused from the floor, not getting help from workers, no one was talking to him and he felt that was deliberate.
33 Mr Cotter kept inviting him to production meetings and treating him as a team leader.
34 On 13 September 2004, he went to see Dr Bowes who gave him some weeks off and gave him medication for depression and anxiety. After a few weeks off, he returned once again, but only stayed a few hours. He felt everyone was staring at him and he just had to get away. He agreed that on 13 October 2004 he told Mr Cotter he was off heart medication and feeling fine but wanted to have a holiday. He agreed that he took two days sick leave and then annual leave. He said he just needed to get away, and did not care if it was sick leave or annual leave. He did not work again after 13 October 2004.
35 The plaintiff insisted that he was the perfect team leader and that it was Mr Cotter’s fault that the other workers did not accept him. He agreed that since April 2004 he had disagreements with nearly everyone in the factory and that he complained to Mr Cotter about them all.
36 As noted above, Andrew and Bradley denied that they verbally abused the plaintiff at any time. Andrew denied refusing to comply with the plaintiff’s directions. Bradley said that the plaintiff’s role as team leader did not cover the trimming department in which he worked. Mr Cotter’s response to this allegation is set out below.
37 Andrew Mullaney’s evidence was that everyone in the workplace, including the plaintiff, swore at work, but “not in a derogatory way”.[19] On one occasion the plaintiff called out to Andrew that he was “an inconsiderate c…” but was smiling as he said it, so Andrew thought nothing of it. It was simply not true that the plaintiff only ever swore once at the factory when he said that “the shit will hit the fan”.[20]
[19] T257.
[20] T257-257.
38 Andrew recalled one occasion when a piece was inadequately machined by the plaintiff and Andrew reported, as part of procedure, to Joe, the production manager. Andrew did not recall raising the issue with the plaintiff, and did not know whether the plaintiff accused him of “dobbing him in”.[21]
[21] T253-254.
39 When the plaintiff was team leader under Mr Cotter, his work station was close to Andrew’s. The relationship between them was “fine”. Andrew carried out his directions because the plaintiff was his boss. There were disagreements about the way of doing things, but no abuse towards the plaintiff and no refusal to follow directions. He never saw the plaintiff argue with Joe. He did not recall the plaintiff complaining about other workers at monthly meetings. He felt that the plaintiff behaved “fairly well” as team leader.[22]
[22] T337.
40 He did hear Bradley tell the plaintiff it was a “filthy habit to smoke in the toilet”, as he was making coffee in the kitchen nearby.[23] He did not ever see the apprentice Sean argue with the plaintiff or refuse to follow a direction.
[23] Ibid.
41 He recalled only having one disagreement with the plaintiff. On one occasion, the plaintiff was smoking at his machine. Andrew asked him not to, and he put his cigarette out. They had no other disagreements and got along quite well.
Mark Cotter
42 Mark Cotter gave evidence by video-link from Shanghai. He left school at the age of 15 and worked as a press operator before being promoted to team leader and then manufacturing manager. He worked for an American company for 14 years as a supply chain director, then joined Haitch Australia as a general manager. He started working at the business in September 2003, while Mr Smith was still there and they overlapped for six months. He understood that under Mr Smith the plaintiff was doing some team leader duties but had not been officially appointed team leader.
43 Mr Cotter became managing director in early 2004 when Mr Smith left the company.
44 When Mr Cotter arrived, there were about 15 employees on the shop floor plus 5 or 6 office staff. There was no team leader. He saw the need for leadership. He understood that Mr Smith had spoken with the plaintiff about that position, and the plaintiff was proactive in telling Mr Cotter he was interested in the position. Mr Cotter considered others for the position, some who been there longer were not interested in the position; others, such as Andrew, were interested, but not as experienced or mature as the plaintiff. He chose the plaintiff to be team leader because he was older, had been in the industry for a number of years and because he put himself forward for the position. The plaintiff did not tell him of his problems with Andrew and Bradley.
45 The plaintiff worked on the first machine because his work was not as precise as the person operating the second machine. Mr Cotter counselled him verbally a couple of times in relation to errors he made.
46 In December 2003 before going to China he put arrangements in place for the management of the business in his absence. He spoke to the plaintiff, Joe Castuera and Jorge Romero and told them to meet daily to discuss the jobs to be done. Mr Cotter said that these people had authority to make decisions in his absence. He did not recall receiving a written list of complaints from the plaintiff prior to the meeting of 5 December 2003. He did not recall if he told the workers that he was leaving the three of them in charge. When he returned, he learned that there had been some tension and arguments between them over what should be done in the factory. He received a letter from the plaintiff outlining concerns as to what had occurred in his absence. Mr Cotter said that these complaints related to specific issues on the factory floor. He said that the plaintiff had the authority in his absence to direct workers to return to their machines if there was work to do. Mr Cotter said that the plaintiff and Joe Castuera had different roles. The plaintiff as team leader was running the shop floor, while Joe Castuera had an office based role doing computer drawings.
47 He met with the three of them on 15 December and on 16 December sent them an email summarising their discussions, although at the hearing he said he did not recall sending it. Mr Cotter said his email dealt with the specific issues dealt with at the meeting.
48 After this, in April 2004, he appointed the plaintiff as team leader on a probationary basis to be reviewed in July 2004, doing duties set out in Exhibit A. The duties did not include supervision of the trimming section. It was consistent with his practice in his previous company to appoint on a probationary basis to allow the company to assess the person and for the person to see if they wanted to keep doing the job, as some people discover that they do not like the position. During the probationary period, the plaintiff received a higher salary but not the full salary of a team leader.
49 The staff were notified of the plaintiff’s appointment at the monthly meeting. In addition, Mr Cotter insisted that a notice of the appointment was put up on the notice board in the canteen and in the production office. The plaintiff did not go to him with any specific complaint of verbal or physical abuse but gave him general comments about people not respecting him and apprentices not listening to him. Mr Cotter counselled him how to deal with people and told him it was the nature of the job and that he needed to be factual and ensure the work was done. He agreed that on one occasion the plaintiff told him he did not want to be team leader after a complaint that one job was turned incorrectly. Mr Cotter did not appoint someone else because he wanted the plaintiff to realise that this happens with leadership and to work through the issue. He did not appoint someone else instead to act as team leader because the plaintiff wanted the job, Mr Cotter saw him as having the best potential and wanted him to succeed. He said the plaintiff never complained to him about a loss of self-esteem but complained on many occasions about issues arising on the shop floor. Mr Cotter said he was very supportive of the plaintiff and spent more time mentoring and counselling the plaintiff than anyone else he had ever worked with.
50 He gave the plaintiff advice on how to deal with issues but said he could not tell the plaintiff how to deal on a daily basis with people on the shop floor as that was the plaintiff’s area.
51 Mr Cotter saw the plaintiff every day, in sales meetings, and as he worked in front of Mr Cotter’s office. By July 2004 he decided to extend the plaintiff’s probationary period because he was struggling to get the respect of the people he was working with and was also making some mistakes on his own machine. Mr Cotter saw potential in the plaintiff given his maturity and experience, and wanted to persevere and help him achieve that position. The plaintiff was not happy that the probation period was being extended, particularly as he was not getting the full team leader’s salary. He wanted to be a full team leader. Mr Cotter recalled getting some notes from the plaintiff and discussing with him the issues he raised such as lack of cohesion and support and said that he had responded to the concerns by introducing new roles and responsibilities. For example, he arranged for workers to be cross- trained so they could be kept busy, for jobs to be done in a certain order, and gave directions concerning smoking breaks and the use of office computers.
52 He said that between April and August 2004 the plaintiff did not complain to him that people were swearing aggressively at him or “chesting” him. If there had been such a complaint, he would have spoken to the people concerned. He agreed that the plaintiff complained of arguments with other workers and that workers were not following his instructions. He said that he would speak to workers and make sure that they did follow the plaintiff’s instructions. For example, he spoke to Bradley about this. He did not recall speaking to Andrew about any behaviour towards the plaintiff.
53 Mr Cotter agreed that by August 2004 the plaintiff had told him a couple of times of his intention to resign, but Mr Cotter understood these requests as indications of his frustration with staff not respecting him or following his directions. Mr Cotter denied that these requests indicated that other staff were being aggressive toward him or verbally abusing him, or that his health was suffering. Mr Cotter said that when the plaintiff finally put his resignation from the management team in writing on 27 August 2004, Mr Cotter told staff that he was no longer team leader.
54 In September 2004 the plaintiff said he was feeling unwell and went to the doctor, then returned to work and then had some further time off. Mr Cotter was concerned for him, but did not have any details about his condition. Mr Cotter said he was not showing signs of distress.
55 Up till the time the plaintiff told him that his problems related to his treatment at work, Mr Cotter said he had no reason to believe he was unduly stressed by his work or developing an emotional illness. Right at the end of his time at the company, Mr Cotter observed that the plaintiff stopped interacting with others and took his breaks alone.
56 Mr Cotter said that when he ran the defendant company he was fully aware of the general issue of workplace bullying and of the Guidance Note in that regard issued by Worksafe Victoria. He said he had not observed any such behaviour, or of any physical or verbal aggression or abuse toward the plaintiff at the defendant’s business while he was running it and would have acted immediately if he had seen it or been told that it had occurred. He agreed with the general proposition that it was inappropriate to swear to someone in authority, but said that in Australia swearing is part of everyday language.
57 Mr Cotter said that although the plaintiff struggled as team leader and resigned verbally once of twice from the position, he wanted the role, and Mr Cotter wanted him to succeed and so extended the probation period. However, the plaintiff could not cope with the responsibility, and so, toward the end, Mr Cotter allowed him to resign. He said it was common practice to extend a probationary period; sometimes the person succeeds in the role, while other times the person steps down.
Pain and suffering
58 The plaintiff said that before leaving work, his main hobbies were his wife and his work. Many years earlier, when his children were at school, he had established a basketball competition which involved up to 20 teams, and was active in running that competition and coaching until 2000. He would go out once or twice a week with his wife, including dancing. He had contact with his two children every few weeks. After 2004 he felt isolated and did not socialise. He saw his children less than before.
59 His ex-wife said that after he got the position of team leader she got quite a few calls from the plaintiff. He was stressed and feeling down and seemed to have lost self-esteem. He was taking medication but was emotional, negative and erratic. She had to keep reassuring him on the phone that he was a worthwhile person.
60 His second wife is terminally ill, and they have moved to New South Wales so that the plaintiff’s brother and sister in law can help care for her and for him. A palliative nurse visits his wife at home.
61 The plaintiff agreed that he has had a heart condition which was diagnosed in 2006 and which required stenting. He continues to take medication for his coronary artery disease. He said that if he were mentally fit to work he would do so even though his wife is dying. He agreed that he had been training and racing greyhounds sporadically in 2006 and 2007 but does not do it anymore because of his fluctuating mental state.
62 He said that he did not see his doctor until September 2004 because he kept working in the hope that things would work out. He said that he last saw the psychiatrist, Dr Theologis, at least two years ago. At present, he is taking Valium prescribed by a general practitioner in New South Wales, and when he returns will be prescribed a new anti-depressant.
Medical evidence
63 I heard evidence from the plaintiff’s treating general practitioner, Dr Bowes (who treated the plaintiff from 13 September 2004 until March this year) and treating psychologist, Carmen Steger (who treated him from late 2004 until early this year). Each of them took a history of harassment at work by other workers who resented his position. It is not necessary to canvass their evidence in great detail. I note that in June 2009 Dr Bowes reported that the plaintiff continued to suffer from severe anxiety and a milder depression “due to work harassment in 2004”,[24] and that he was on anxiolytic and antidepressant medication. Dr Bowes felt that the plaintiff was permanently and totally incapacitated for all work due to his psychological injuries. A further report on 1 March 2010 concluded that his incapacity for work was mainly due to his anxiety and depression and partly due to his coronary artery disease. The report also concluded that his mental state and associated coronary artery disease would permanently restrict his social, domestic, recreational and employment activities.
[24] See Exhibit J (report dated 2 June 2009).
64 In his viva voce evidence, Dr Bowes said that he made no independent inquiries of the plaintiff’s prior medical history and relied on what the plaintiff told him. He said the plaintiff has severe depression and a severe anxiety state and has no capacity to work due to his psychological state. He agreed that the plaintiff would have had a predisposition to cardiac disease due to his family history, heavy smoking, high blood pressure and cholesterol and felt that his heart condition must have predated his employment with the defendant. However, he felt that to the extent that severe anxiety can contribute to coronary artery disease, the plaintiff’s cardiac condition was partly brought on by the harassment he experienced at work. Dr Bowes felt that the plaintiff’s wife’s condition would aggravate the plaintiff’s anxiety and depression. Dr Bowes said that the plaintiff’s condition fluctuates but when last seen this year he was very depressed. As at March 2010, he was still taking Zoloft and some heart medication. Dr Bowes was not aware that the plaintiff had been taking medication prescribed by a psychiatrist, Dr Theologis, in 2005 and 2006.
65 Dr Bowes said that he did not know that the plaintiff was training and racing greyhounds for two years, but said he would have thought this would reduce his anxiety and be part of relaxation therapy. Dr Bowes felt that the plaintiff’s heart condition limited his physical capabilities slightly.
66 Ms Carmen Steger, psychologist, gave evidence that she diagnosed a major depressive disorder and noted he was being treated by a psychiatrist, Dr Theologis in 2005 and 2006. In 2006 she reported that he had made little progress psychologically in spite of psychotropic medication and psychological therapy. In 2010 she reported that his condition was significant but stable and that he required long-term access to psychological treatment “with psychiatric backup as required”.[25] At the hearing, she said she had a history from the plaintiff of no previous problems with employers, and of a previous experience as a leading hand with no problems. Her understanding was that until December 2003 he was functioning well in his employment. She said she understood that in December 2003 the plaintiff and two other workers were left in charge of the premises and were meant to operate team. The plaintiff told her he felt this did not happen and he felt ostracised. She said that she did not know that the plaintiff wanted to be appointed team leader in April 2004.
[25] See Exhibit H (page 2 of the report).
67 She said that the sentence at paragraph five of the letter: “I feel very sick inside about what has transpired”, was significant, in that it demonstrated a recurring theme for the five years of therapy with her, namely that he was traumatised about feeling disrespected in the workplace. He told her he had tried to resign three times.
68 She said that the plaintiff suffered a number of symptoms as a result of the incidents at work: disrupted sleep, anxiety, low motivation, poor concentration, poor memory, weight gain and being socially withdrawn. She was aware of his activities training and racing greyhounds but said they were more like pets and reflected his fluctuating state: when his mood was elevated he would obtain a pup, when he could not cope he would give the dog away. She felt it was good for him but that he could not sustain the activity over time. She felt that there was unlikely to be any change in his condition in the future. She felt that he needed ongoing treatment and was aware that he ceased treatment with the psychiatrist, Dr Theologis, some time in 2006 when he had cardiac problems. She agreed that his heart problem and his wife’s condition were also having a detrimental effect on him.
69 Ms Steger was asked why the plaintiff’s condition did not improve once he left the workplace. She said this was because he had been unable to disengage from that period. She said that the passage of time has made no difference in terms of how he responds; as soon as he has “triggers relating to that part of his life. It's almost as if it's just happening over and over again”.[26] She said she had tried during the course of therapy to get him to move forward but had not succeeded.
[26] T177.
70 He reported problems to her over a two year period. She agreed that his perceptions were that his life “was made hell by factory staff”[27] and that he needed more help from his boss.
[27] T178.
71 Dr Albert Kaplan, psychiatrist, examined the plaintiff for medico-legal purposes at the request of his solicitors and provided reports dated 15 June 2009 and 12 April 2010. Dr Kaplan diagnosed Major Depressive Disorder associated with Anxiety which arose during the course of his employment with the defendant and which made him unfit for any work. Given the absence of any significant improvement over the past five years, Dr Kaplan felt that his condition was likely to persist indefinitely. In his second report, Dr Kaplan noted that the plaintiff was taking Valium, Zoloft and Aspirin. He felt that the plaintiff’s condition was unchanged. At the hearing, Dr Kaplan agreed that the plaintiff had some other problems in addition to his depression, such as problems with his hips, and chest pain.
72 Dr Nathan Serry, psychiatrist, examined the plaintiff for medico-legal purposes at the request of his solicitors and provided a report dated 25 February 2010. He noted that Dr Theologis, the plaintiff’s treating psychiatrist, had diagnosed anxiety and depression and mentioned obsessional premorbid personality traits. The plaintiff gave a history of being “prematurely appointed to a position of team leader”[28] which resulted in considerable conflict with staff members who would not listen to him. He gave a history after the company changed hands of being “recurrently abused, threatened, treated rudely and resented”.[29] He told Dr Serry that he was undermined and marginalized by staff and management was incompetent. Dr Serry concluded that he developed and continues to experience symptoms of major depression with anxious features including features of traumatisation. He felt the plaintiff would be unable to work long-term and suffered marked restriction of his domestic, social and recreational activities. He noted that the wife’s breast cancer has contributed to his distress. He recommended that the plaintiff required regular psychiatric care and urgent review of his antidepressant and anxiolytic medication.
[28] See Exhibit M (page 2 of the report).
[29] Ibid.
73 At the hearing, Dr Serry said he understood that the conduct complained of occurred to the plaintiff after he was appointed team leader. He said that Dr Theologis had opined in May 2006 that the plaintiff’s breakdown occurred in September 2004 in the context of several months of feeling he was being abused and bullied in the workplace. However Dr Serry received a history which he felt indicated a gradual build-up of symptoms culminating in the breakdown. He did not receive a history of the plaintiff training greyhounds and felt this was not entirely consistent with the social withdrawal described by the plaintiff. He felt that the medications which had been prescribed for the plaintiff did not constitute optimal psychiatric treatment. He felt that with proper medication and treatment there was a possibility of remission. He agreed that the plaintiff’s heart condition and wife’s illness would be an ongoing source of stress which can contribute to depression. He said that he would not expect the plaintiff to improve once he left work because he had internalised the stress experienced there and continued to relive the experiences causing him distress.
FINDINGS AND REASONS
74 I accept that the plaintiff is currently suffering from a psychiatric illness and that he is in effect between medication regimes. I consider that in giving his evidence he was attempting to answer questions as best he could but that he was affected by his psychiatric condition. I also consider that his memory of past events, particularly specific events said to have occurred between 2002 and 2004 is not only poor but is coloured by his distress about how he feels he was treated.
75 The plaintiff’s evidence was difficult to follow and not very specific. His evidence displayed a gap between his perception of events and reality. On a number of specific matters, his evidence changed dramatically within the space of a few sentences, or was quite vague. For example, at Transcript 30, the plaintiff was asked: “Did you inform Mr Cotter about that reaction when he got back?” He replied: “---I didn’t - look, the way I remember it, I don’t know if I brought it up, but yes, I did say - I think I said I was getting abused, the words I think I used were I was getting abused when I mentioned about the excessive smoko - that’s the way I put it, abused”.
76 Another example was at Transcript 62, where the plaintiff was asked: “When you say you continually spoke to Mark Cotter, at the times that you spoke to Mark Cotter, did you tell him anything about how you were feeling, other than the fact that you were having difficulties with your fellow employees?” The plaintiff replied: “---The way I remember it, I told him on numerous occasions that this just is not a workable - I'm not feeling well, this is not a workable situation, what is happening here, nobody knows what's happening and I'm feeling distressed, and I kept on getting told, hang in there, hang in there, things will get better, don’t quit now”.
77 A third example was at Transcript 43, where the plaintiff was asked: “In what way could you not cope?” He responded: “---I felt that what the - I felt it was abuse from the floor itself, plus the lack of help I was getting from the workforce itself. I was being - the best way I could put it: I felt I was being - everyone was - it was like I was coming to work, nobody was talking to me and I was isolated. And a deliberate attempt was made by the work floor to say, ‘Let's not talk to the guy at all’".
78 The evidence of Andrew Mullaney and Bradley Shaw was clear and direct. Insofar as each of them gave evidence about the specific incidents upon which the plaintiff relied, I found their denials convincing. In particular, I found the evidence of Mr Mullaney and Mr Cotter to the effect that everyone, including the plaintiff, swore at work, but “not in a derogatory sense”[30] more convincing than the plaintiff’s assertion that he personally never swore at work in all the years he was there other than on one occasion when he said “the shit will hit the fan”.[31] Mr Mullaney gave a specific example of an occasion when the plaintiff swore at him which directly contradicts the plaintiff’s evidence in this regard. I accept the evidence of Andrew Mullaney and Bradley Shaw that the relationship between them and the plaintiff was not as the plaintiff described it. I consider that the complaint made about Rigu was trivial. That conduct in my view, if it occurred, could not constitute an incident of harassment or bullying or undermining, and the failure of Mr Cotter to discipline Rigu in these circumstances could not constitute a breach of any duty of care owed to the plaintiff.
[30] T257.
[31] T36.
79 Most importantly, I found Mr Cotter a most impressive witness. His evidence was balanced and I accept it. It is not necessary to repeat the summary of his evidence outlined above.
80 I am not satisfied on the evidence before me that the particular incidents of verbal and/or physical abuse occurred either as alleged by the plaintiff or at all.
81 Even if the impugned conduct is limited to allegations of a failure to support him in his role as team leader in the face of uncooperative behaviour from the other workers, I consider that the plaintiff’s claim cannot succeed. He was appointed, albeit on a probationary basis, to a position of authority which he wanted and which he (and others) felt he was qualified and suited for. As it turned out, he did not manage well in that position. Mr Cotter kept encouraging him to go on and indeed at his review found him keen to continue. The issues he complained about, that is, his lack of authority and the failure of some workers to follow his directions are ordinary issues which one would expect that a person trying to exert his authority in the workplace would experience.
82 I consider that the events prior to April 2004, when the plaintiff was appointed team leader, are of limited relevance in the light of the plaintiff’s main complaint that he was not given respect and support as team leader after April 2004. But in any event, it is clear that by that time, the plaintiff knew what was required of him as team leader. He had had previous experience as a team leader under Mr Smith in 2002; he had full instructions from Mr Cotter including a statement of his work duties; he was selected for his age, experience and because he put himself forward for the job. He was delighted at getting the job, according to his ex-wife. In these circumstances, it was reasonable for the defendant to appoint him as team leader on a probationary basis to be reviewed in three months. It was also reasonable, in the light of the plaintiff’s wish to be confirmed in the position, to extend the probationary period notwithstanding the difficulties which the plaintiff had experienced.
83 I note Mr Cotter’s evidence, which I accept wherever it conflicts with that of the plaintiff, about the lengths he went to in mentoring and assisting the plaintiff to help him succeed as team leader. I note the concession by the plaintiff that he wanted to be team leader, that he accepted the extension of the probationary period because he wanted to be confirmed in the position, and that he agreed to stay on in the position on a number of occasions after verbally resigning prior to August 2004. On this evidence, I am not satisfied that there was any negligence by the defendant which was a cause of his injury.
84 On my view of the facts, therefore, the plaintiff’s claim cannot succeed.
85 For the sake of completeness, I turn to the other main issue that was put before me. Mr Stanley submitted, relying on Koehler v Serabos (2006) 222 CLR at 444 (“Koehler”), that a reasonable person in the position of the plaintiff’s employer could not have foreseen that the plaintiff was exposed to the risk of psychiatric injury because there was no external sign of any psychological problem at work. In support of this contention he noted that the plaintiff first sought medical attention on 13 September 2004, that his claim form stated that the date of injury was 13 September 2004 and that he had first become aware of his condition in the “last few weeks” before that date.[32] He emphasised the evidence of Mr Cotter and Bradley Shaw to the effect that the plaintiff showed no signs of psychological distress at work, the evidence of Mr Cotter that the plaintiff did not tell him that he was suffering symptoms of a recognised psychiatric condition, the evidence of the plaintiff that in August and September 2004 he hid his distress, and the evidence that the plaintiff’s weight gain was not noticed by all the defendant’s witnesses.
[32] See Exhibit 1.
86 The High Court in Koehler determined that in the absence of external signs of distress, a reasonable person in the position of the employer could not have foreseen that the appellant was exposed to the risk of psychiatric injury merely from the complaint about her workload. The defendant’s submission about the relevance of Koehler in this case might have been correct had the plaintiff been claiming that his psychiatric condition was caused by his duties at work. However, that is not the case. The plaintiff is claiming that his psychiatric reaction was caused by the harassment and/or bullying to which he was subjected, as well as the failure on the part of the defendant to deal with his complaints about the conduct of his workmates. There is a significant difference. A recognisable psychiatric illness is not a remote outcome for a victim of harassment or workplace bullying. It is not “far-fetched or fanciful” in terms of the test laid down in Wyong Shire Council v Shirt (1980)146 CLR at 147. If Andrew, Bradley and others had carried out acts that did amount to bullying of the plaintiff, if that bullying was a cause of recognisable psychiatric illness, then such an outcome would be reasonably foreseeable.
87 On the other hand, absent harassment or workplace bullying, it may be that a recognisable psychiatric illness is a remote outcome for a probationary team leader who is the victim of uncooperative conduct from his workmates, in circumstances where he wants to maintain the role but has difficulty asserting his authority. It is of course, not necessary for me to decide this question having regard to my findings in this case.
Conclusion
88 For the above reasons, there must be judgment for the defendant. I reserve the question of costs.
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