Ciampa v Masters Home Improvements
[2015] VMC 3
•17 FEBRUARY 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No. E12079805
| JOESEPH CIAMPA | Plaintiff |
| v | |
| MASTERS HOME IMPROVEMENTS | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 28, 29 & 30 JANUARY 2015 |
DATE OF DECISION: | 17 FEBRUARY 2015 |
CASE MAY BE CITED AS: | CIAMPA v MASTERS HOME IMPROVEMENTS |
REASONS FOR DECISION
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Catchwords: Psychiatric injury alleged to have arisen out of or in course of employment as a result of being; “overworked, bullied and harassed by management” – causation - employer conducted investigations and suspended worker as a consequence of two incidents on 10 September 2013 and 9 January 2014 – “management action” - s 82 (2A) relied on – management action taken on reasonable grounds and in a reasonable manner. Claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Malpas | Nowicki Carbone |
| For the Defendant | Mr Dunstan | Minter Ellison |
HIS HONOUR:
1 Mr Ciampa is aged 52 years and commenced employment with the defendant in September 2011 as a Customer Services Associate and was promoted to Manager of the Garden department on a full time basis in August 2013. He ceased work on 10 January 2014 as a result of being suspended on full pay following disciplinary investigations being undertaken by the defendant. He lodged a workcover claim on 23 January 2014 which was rejected by the defendant on 24 February 2014, by reliance on s 82 (2A) of the Act.
2 In short, Mr Ciampa alleges that he developed an adjustment disorder with mixed anxiety and depression as a consequence of the stress he was placed under “due to being overworked by the employer and being bullied and harassed by management”. The defendant admits injury but contends that his mental injury was caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner following incidents between Mr Ciampa and co-workers on 10 September 2013 and 9 January 2014. Mr Ciampa has not worked since 10 January 2014, has been in receipt of salary continuance payments and his services were terminated by the defendant on 23 January 2015.
3 During his evidence, Mr Ciampa told the court that he had suffered from psychiatric issues five or six years ago which required psychiatric treatment and prescription medication. During examination in chief, he played down the nature and extent of that treatment and the cause of past psychiatric issues. In cross examination, he divulged that he sought treatment following an admission to his employer at the time, Essendon Toyota, where he was employed as a Sales Manager, that he had stolen $90,000 from them to feed a gambling addiction that he had experienced “on and off” over 20 years. He agreed that he had received sickness benefits at the time after losing his job but could not recall lodging an application for the disability support pension as a consequence of his psychiatric illness. Documents tendered by the defendant reveal that he did make an application for a disability pension in mid 2009 as a consequence of suffering from depression which was supported by Dr Chmielewski from Guardian Medical Centre, where he attended for treatment from at least 2003 until late 2013. Furthermore, records obtained from Mercy Mental Health also disclose that Dr Hill, Consultant Psychiatrist and Ms Kite, Psychiatric Nurse wrote to his treating doctor on 17 August 2009 recommending a management plan as a consequence of a diagnosis of a major depressive episode in partial remission. The records indicate that his condition at that time was caused by what he alleged to be increased workplace pressure, including bullying, his perceived unreal expectations of his employer and his own fraudulent activities. Mr Ciampa disputed that he was diagnosed as having a major depressive disorder at that time but agreed that he has been prescribed Efexor medication since then. Documents tendered also revealed that in late 2012 Mr Ciampa instructed Legal Aid lawyers to consider making an application under s 160 (2) of the Infringements Act 2006 to discharge or reduce outstanding traffic infringements totalling $8,624. Mr Ciampa disputed that he relied on his psychiatric condition in his application and said he relied on the grounds of financial hardship.
4 Mr Ciampa gave evidence that when he became manager of the garden department in 2013 he was contracted to work 40 hours per week, Sunday to Thursday, but “did way more” because of the volume of work as the garden department was the biggest part of the store and accounted for 40% of its turnover. He said that by September 2013, he was run down and felt exhausted because in the previous eight weeks he was required to manage not only his department consisting of 11 staff but also two other departments and he was preparing for the Spring launch. He confirmed that he was involved in a “regrettable” incident with a co-worker, Ms Formosa on 10 September 2013. He said that 3 or 4 of his team members called in sick which left he and one other to run the gardening department so he requested assistance which was not forthcoming. He told the court that at approximately midday he served an elderly gentleman in his department and directed that he attend the front counter for assistance in loading the item into his vehicle. He said that he was paged to attend the counter to assist the customer and when he did so was told by Ms Formosa that he had to assist the customer as there was no one else available to do so. He said that after he did so he questioned her as to the reason why a co-worker, Dean, could not have performed the task and she responded by saying; “fuck off and get the fuck out of here you idiot”. He said that Ms Formosa then walked from her counter area and he pointed his finger at her and said; “you do not run the store”. Mr Ciampa gave evidence that later in the day he approached Ms Formosa and asked her what that was all about and she told him that; “I’ve been offered 4 promotions and rejected them all”. A statement he made at the request of his employer was tendered in evidence. The relevant extracts being; “Marlene told me in no uncertain terms that I was to help the customer take the items to the car; Marlene proceeded to thrust her arms in the air and say very loudly; the customer said he was bemused by the attitude of Marlene towards me; she waved me away and made a rude comment to which I must say took me by surprise...she started to swear at me”.
5 Mr Ciampa told the court that he told Matt Wilson, Store Operations Manager, or Mark Artuso, Sales and Operations Manager about the incident and proceeded to finish his shift. He said that on the following day he was told by Mark Artuso and Raymond Benbow, Store Manager, that formal complaints had been made about his behaviour on the previous day. Mr Ciampa said he was “shocked and horrified” and did not know what he had done wrong. He told the court that his employer suspended him for 4-5 days and he stayed at home and was “devastated, cut up and it destroyed me”. He told the court that when he returned to work he had an amicable meeting with Mr Benbow and Mary Paras, Human Resources Specialist and told them he did not do anything wrong and said that he did not swear or intimidate anyone. He told the court that he was given a final warning and he was “devastated” but disputed he was given a warning that if a similar incident occurred he was likely to be terminated.
6 During cross examination, CCTV footage of the incident was shown to the court. Immediately prior to it being viewed, Mr Ciampa denied that he yelled or ranted or “got into Ms Formosa’s face” during the incident but agreed he did point his finger at her. When it was put to him that witnesses will say he did and that he swore, he told the court they were all liars because they worked together.
7 The CCTV footage depicts Mr Ciampa approaching Ms Formosa at the front counter in an aggressive manner, standing over her and pointing his finger at her which resulted in Ms Page standing between them apparently trying to de-fuse the situation.
8 Mr Ciampa agreed that during the subsequent meeting with Mr Benbow and Mr Wilson he was told his behaviour was unacceptable and was given a formal warning and said he was “embarrassed” by what happened, but not by his actions as he did not swear, but Ms Formosa did. He said that he did not shout at her or intimidate her by his actions but reacted to her swearing at him. Mr Ciampa told the court that although he received a formal warning, which he did not accept, he was also told “not to worry about it and get on with business”.
9 Ms Formosa was not called to give evidence but a statement made by her to the defendant as part of their investigation into the incident and dated 10 September 2013, was tendered without objection. The statement reads;
“This is to certify that on this day. Tuesday 10/9/13. I was at my service desk serving a customer that had purchased a lawnmower that was on a flat bed. The customer asked if he can have it put in the car as he was elderly. I then called BBQ over to the front desk. Joe asked what the problem was. I asked him if he could please help this man take his item to the car. Joe then questioned why he was called and said why is it young Dean could not help the man. I told him Dean was ¾ of the way to Trade as Mike was running very late for his break and he got upset in front of the customer and said I’m on my own and was shaking his head. Customer apologised for putting Joe out. When Joe walked back in he yelled at me from the front door loud why it is I asked him to help. I said I was on my own too and had no males to help. I then walked out of the service desk and he came to the ACO where I was standing with Trudy. He pointed his finger at me yelling at me in front of the customers and other staff member he told me I thought I was a manager and that why I asked him. I told him he was unprofessional in acting that way and stop yelling in front of the customers. I told him to stop as he is already in trouble. He came back at me and the whole time was in my face up close Trudy tried to separate him from me and told him to leave about 3 times”.
10 A statement from Linda Moren was also tendered without objection and she was not called to give evidence. Her statement reads;
“On Tuesday 10/9/13 at around 12 pm as I started work I was stopped in my tracks because I seen Joe from gardening go to Marline and just started yelling at her standing over the top of her I was very scared for her plus to see that trudy has to stand in the middle of them and tell joe to go away more than once. I found he to be very rude and wrong. And I also feel scared of joe. There was no need for It”.
11 Trudy Page gave evidence and a statement made by her dated 10 September 2013 was also tendered without objection. Her statement reads;
“This is my statement that on Tuesday 10/9/13 about 12 o’clock I was standing at the ACO as they were a bit short staffed as people were on break or just going because they were running late. When Marlene came over to me a bit upset. I asked if she was alright she said she would be she just needed to walk away, then Joe came over and started yelling at her about something that happened. He just kept yelling that she thinks she runs the show at that she should do what he tells her to, to which Marlene said that is very unprofessional Joe and that is not the 1st time you have done this in front of customers and staff. Joe kept coming at her yelling and pointing his finger at her ranting and raving to the point where he was in her face at that point I stepped in between them and told Joe about three to four times to go back to garden and walk away”.
12 In evidence, Ms Page told the court that she recalled Mr Ciampa also yelling at Ms Formosa and saying; “your not the Manager of the store, you have no right to do this”. She said that she did not hear Ms Formosa swear at Mr Ciampa and she was only 1-2 metres away during the confrontation. She said that she got between them because she was concerned Mr Ciampa was going to strike her because of the look in his eyes. Ms Page also told the court that Mr Ciampa apologised to her 3-4 days later and said; “I’m sorry for what happened and it wont happen again”. In cross examination, she agreed that she did not hear all of the conversation between Ms Formosa and Mr Ciampa before Ms Formosa approached her but that when she did come to her Ms Formosa was shaking.
13 Mr Benbow, Store Manager gave evidence that following the incident on 10 September he was advised by the human resources department to suspend Mr Ciampa and to conduct an investigation and obtain statements from co-workers. He told the court that a formal counselling session with Mr Ciampa occurred on 23 September between he, Mr Ciampa and Mr Artuso, Operations Manager. A document relating to those discussions was tendered. It recorded that Mr Ciampa understood that he was not acting in line with the company expectations for somebody at a department manager level, that he has apologised to Ms Formosa and that they were happy with the result. It also recorded that Mr Ciampa was counselled about approaching line managers or senior leadership should issues occur in the future and that he should show composure in testing situations. Importantly, it also recorded that if there was a repeat of this type of behaviour potential consequences would include termination of employment. The document also noted that training would be provided to assist Mr Ciampa manage his department including prioritisation. Mr Benbow confirmed that Mr Ciampa refused to sign the formal document but he did concede he was “embarrassed” by the incident and should have taken a different course of action in the circumstances. During cross examination, Mr Benbow agreed that Mr Ciampa received a very good performance appraisal in February 2013 but he could get very passionate about issues particularly relating to business decisions that had been made, including staffing levels and agreed that on the day in question he was under pressure as most of his staff in the gardening department had called in sick. He conceded that the training courses mentioned in the counselling document were not provided to Mr Ciampa.
14 Mr Ciampa gave evidence that following his suspension and the counselling session he did return to work managing the gardening department. He told the court that after the formal counselling session with Mr Benbow and Mr Artuso, he did take advantage of an offer made to him by the company to engage in formal counselling regarding his behaviour with a female counsellor on two occasions, although he described her as more of a “listener than counsellor”. Mr Ciampa gave evidence that he continued to be extremely busy, regularly worked through lunch and attended on his days off and continued to manage his 11 team members. He also said that he was required to open the store at 6 a.m. two to three days a week or earlier if tradesmen were attending. He said it was not unusual for him to still be at work at 5.30 p.m. or 7 p.m. on occasions. He said that as a result of work pressures and stress he did attend Dr Chmielewski in November 2013 but the doctor was “not interested” in being involved in workcover matters. The medical records tendered do not reveal any history of work stress being complained of at that time.
15 Mr Ciampa gave evidence that in October 2013, Ms Dagastine commenced employment as the Store Manager. He said that she conducted a review of all departments which included a “walk through” of each and she told him that standards had to be improved. When questioned in cross examination as to whether he had an issue about the review, he said that as a consequence of it, “they doubled my workload”. Ms Dagastine told the court that when she was appointed as Store Manager she conducted a review of all departments and met with Mr Ciampa and told him that his department was not meeting the standards expected relating to merchandising, the displaying of stock and she was concerned about his ability to lead his team in respect to the accountability of his staff. She agreed that at times his work responsibilities could be stressful. Ms Dagastine said that in her discussion with Mr Ciampa in November she told him that she ranked his performance as 3-4 out of 10 and he agreed that was an appropriate assessment. She also agreed that during that period Mr Ciampa and other department managers did complain about receiving a lack of support from management regarding staffing issues and their workload.
16 Mr Ciampa gave evidence that he was involved in another incident with a co-worker on 9 January 2014. He told the court that in the lead up to this incident he had been requesting assistance in his department and in particular for additional staff between 7 a.m. when the store opened and 9 a.m. when his department opened as the store was experiencing a recurring problem where customers would steal items from the store by exiting through the gardening department without paying. He said that during those times his available staff were occupied in setting up the department and were not able to monitor customer behaviour. He gave evidence that his requests for assistance were not successful. He told the court that at approximately 9 a.m. on 9 January he went to the front desk to ask Ms Phan, Service Supervisor, for assistance which she refused. He said he responded by saying; “this is bullshit”, to which she replied; “I don’t have to take this fucking shit”. Mr Ciampa said that he returned to his department and told his staff they would not be receiving any assistance and then returned to the front counter and asked Ms Phan if “Jen” could help but Ms Phan told him that she may be able to assist later when Mr Jokhoo, Department Manager of Décor intervened and told him to “let it go”. Mr Ciampa told the court he told Mr Jokhoo to “please stay out of it” on more than one occasion.
17 Mr Ciampa said that he later apologised to Ms Phan and reported the incident to Michael Brown, his Line Manager. He said that he attended the store on 10 January, which was his rostered day off and was called to a meeting with Mr Brown and Ms Dagastine and was told complaints had been made about his behaviour on 9 January and was told he was suspended pending an investigation into the incident. Mr Ciampa said he was “devastated” as he was “portrayed as someone I’m not” and that it was an “absolute joke”. He told the court that he could not understand why this was happening as he did not do anything wrong.
18 During cross examination, CCTV footage of the incident was shown to the court. It depicts Mr Ciampa approaching the front counter and having what appears to be a heated discussion with Ms Phan. He is then seen to approach Mr Jokhoo on two occasions before having another animated discussion with Ms Phan before leaving the area.
19 Mr Ciampa gave evidence that as he walked away from Ms Phan, he commented, “I am going to lose my fucking job”. He denied telling Ms Phan later when he apologised to her to “just pinch my nose if I do that again”. He also denied that he was angry or that he raised his voice and denied telling Mr Jokhoo to “stay in your box”. When it was put to Mr Ciampa that Ms Phan and Mr Jokhoo would give this evidence and therefore they must be lying, he said “absolutely”.
20 Mr Ciampa agreed that it was appropriate for his employer to investigate the complaints that had been made about his behaviour. Ms Phan gave evidence that when Mr Ciampa approached her at her service desk he was angry and she told him to calm down. She said that Mr Ciampa responded by saying, “Don’t fucking tell me to calm down” and that he also said that he was “going to lose his job anyway”. She said that he also told Mr Jokhoo “not to fucking tell him to calm down”. Ms Phan denied swearing at Mr Ciampa and said that she felt scared as Mr Ciampa was angry and “his lips were purple”. She said that later in the day Mr Ciampa apologised to her and said; “if ever I do that again, just pinch my nose”. Mr Jokhoo gave evidence that at the time of the incident he was at the paint counter and observed Mr Ciampa walk past quickly in what appeared to be an angry mood. He observed Mr Ciampa pointing his finger and heard him shouting and he asked him to calm down to which Mr Ciampa responded by saying; “stay in your box”. He told the court that he did not hear either Mr Ciampa or Ms Phan swear and was approximately 2-3 metres away from both of them at the time. He told the court that approximately 10 minutes later Mr Ciampa returned and apologised to him for raising his voice. Mr Jokhoo gave evidence that he believed Ms Phan looked scared, uncomfortable and intimidated and that is why he intervened.
21 Mr Ciampa gave evidence that he subsequently attended a meeting with Mr Brown and Ms Dagastine and he was accompanied by his union representative, Karadji Cummings. He said that he questioned whether they were following the right procedures in the investigation and was told they had the right to question and obtain statements from employees. He said that they alleged he told Mr Jokhoo “to go back in your fucking box and fuck yourself”. He told the court that they subsequently withdrew that allegation. He said that he attended a further meeting with Ms Dagastine and Ms Paras from Human Resources and told them that he was not comfortable with them investigating the matter because he was of the opinion that Ms Dagastine had been bullying, harassing and micro managing him during the period prior to the incident and had put him under extreme pressure as he was overworked and overwhelmed by his work. He said that he was of the opinion that they were not there to help him but to force him out and that they were “over cooking something minor”. He also said that he had previously complained to Ms Paras about Ms Dagastine on two occasions in December 2013 but she did nothing about it. In cross examination, he agreed that a further meeting was arranged to take place on 21 January to discuss the matter further. When it was put to him that he never complained to his doctor of being under work stress or pressure prior to January 2014 he said that he did make complaints to Dr Chmielewski in November 2013. Mr Ciampa told the court that he lodged a workcover claim on 23 January 2014 for stress, anxiety, depression and PTSD as a result of being overworked by the employer and being bullied and harassed by management from September 2013 to about 10 January 2014.
22 Ms Dagastine told the court that after she was informed of the incident she approached Mr Ciampa and informed him that she would need to investigate the complaint and later in the day rang him to inform him that he was suspended pending the outcome of the investigation which he said he understood. She told the court that after statements were obtained she arranged to have a meeting with Mr Ciampa “off site” at the Hoppers Crossing distribution centre on 14 January, to discuss the incident and information obtained from fellow employees about what had occurred. She told the court that those in attendance were, herself, Mr Brown, Mr Ciampa and his union representative. She said that Mr Ciampa put his version of events and disputed some of the allegations made against him. At the conclusion of the meeting she said she told Mr Ciampa that the company would consider all of the information obtained and options open, which included termination of his services, and that they would convene a further meeting in 4-5 days to inform him of their decision. She told the court that prior to the further meeting occurring, Mr Ciampa lodged a workcover certificate of incapacity on 20 January and then a workcover claim form on 23 January. She said that the further meeting did not occur and that as at the date Mr Ciampa lodged his claim a final decision regarding the appropriate action to take had not been decided. Ms Dagastine gave evidence that she left the employment of Masters in May 2014 and therefore was unaware that Mr Ciampa’s employment had been terminated on 23 January this year.
23 In cross examination, Ms Dagastine agreed that in her opinion, Mr Ciampa did not meet the expectations of a department manager in that he continued to exhibit poor standards relating to ticketing, merchandising and displaying of products but that they wanted to “help him through this”. She agreed that he had continued to complain about lack of staffing in the November and December periods and was unaware of any complaints that he allegedly had made about her.
24 Ms Paras told the court that following the incident on 9 January she attended a meeting with Mr Ciampa, Ms Dagastine and his union representative on 16 January, and that Mr Ciampa was upset, alleged that he and Ms Dagastine were “taking sides” and “not listening to him”. She said that a further meeting was scheduled to take place on 21 January but did not occur as Mr Ciampa lodged a workcover certificate of incapacity on 20 January. She said throughout 2014, further attempts were made to resolve the outstanding issue including writing to him on 26 November requesting that he attend a meeting or to have a telephone meeting which he declined. She told the court that she sent a “show cause” letter to him on 12 January informing him that the defendant continued to have concerns regarding his failure to conduct himself in a professional manner and that his “performance and behaviour is not consistent with the standards expected of someone in your role…I am of the preliminary view that the circumstances warrant termination of your employment…Before any final decision is made in this regard, you are invited to provide me with any additional information or comments in relation to these matters and the proposed disciplinary action…”. Ms Paras confirmed that as she heard no further from Mr Ciampa she wrote to him on 23 January 2015 informing him that his conduct on 10 September 2013 and 9 January 2014 was in breach of company policy, procedure and its Code of Conduct and not consistent with the standards expected of someone in his role and on this basis his services were terminated as of that date.
25 In cross examination, Ms Paras agreed that it was likely that Mr Ciampa’s employment would have been terminated in January 2014 because of his conduct and that at the meeting on 16 January it was indicated to him that it was likely that he would be terminated . She also agreed that Mr Ciampa had raised ongoing staffing issues in late 2013 including during a meeting on 30 December 2013 when he told her and Ms Dagastine that his workload was “overwhelming”. Ms Paras told the court that Mr Ciampa “whinged constantly” but that he was provided with support and at a meeting on 30 December 2013, he was positive about the future and told them to “give me a couple of more weeks”.
Medical Evidence
26 Medical records and reports of Dr Sheriff, General Practitioner were tendered. The records indicate that Mr Ciampa first attended his clinic on 20 January 2014 and presented with a history that his employment had been suspended and gave a past history of stress/anxiety/family discord. On 24 January, Dr Sheriff recorded that Mr Ciampa had been on Efexor for 6 years for anxiety in relation to past work issues and had previously seen a psychologist. In his report dated 7 May 2014, Dr Sheriff noted that he was provided with a history by Mr Ciampa that his workload continually increased without much support staff including working through lunch breaks and on rostered days off. Dr Sheriff noted the explanations given by Mr Ciampa for the incidents on 10 September 2013 and 9 January 2014 and expressed the opinion that the incidents worsened his depressive symptoms. He reported that he referred Mr Ciampa to Mr Karamanos, Psychologist and Dr Kaplan, Psychiatrist. In his report dated 9 December 2014, he diagnosed Mr Ciampa as suffering from major depression with greatly reduced employment prospects.
27 Mr Karamanos reported on 13 May 2014 that he first saw Mr Ciampa on 5 February 2014. He obtained a history of work pressure, high expectation of management and short staffing of his department. He also obtained a history from Mr Ciampa that staff members were making false accusations about him to management that were not properly investigated. Interestingly, he also obtained a history that he had never lost a job as a result of work behaviour or performance issues and denied a past history of anxiety and depression. Mr Karamanos diagnosed Mr Ciampa as suffering from an adjustment disorder with mixed anxiety and depressed mood caused by the work incidents.
28 Dr Kaplan reported that he first saw Mr Ciampa on 26 August 2014. He obtained a history that he was under considerable pressure in his management role due to under staffing. In relation to the incident on 10 September 2013, he was told by Mr Ciampa that the staff member (Ms Formosa) “exploded and began abusing him and swearing at him”. He was also told by Mr Ciampa that the “three women had colluded and had falsely claimed that he had been abusive” and that the matter was never fully resolved. Dr Kaplan also obtained a history from Mr Ciampa of the 9 January 2014 incident that he became upset when assistance was refused and also became angry when a manager tried to intervene. He said that at a subsequent meeting he was distressed by allegations that he had been abusive, the HR Manager (Ms Paras) was hostile and refused to undertake an independent investigation.
29 Dr Kaplan obtained a history from Mr Ciampa that he had been prescribed Efexor 6 years before when his doctor thought he appeared depressed. Mr Ciampa told Dr Kaplan that after he ceased employment as a car salesman a workmate made an accusation which was subsequently disproved that he had committed a fraudulent act. Mr Ciampa also told Dr Kaplan that he had no previous history of psychiatric illness or treatment. Dr Kaplan also diagnosed him as suffering from an adjustment disorder with mixed anxiety and depressed mood as a result of work stresses.
30 Dr Tagkalidis, Consultant Psychiatrist, assessed Mr Ciampa on behalf of his lawyers on 11 December 2014. He also obtained a history of work pressure and short staffing and the incident on 10 September 2013 whereby he accused Ms Formosa of telling him “to go and fuck off” and that she used all these expletives which left him dumbfounded and shocked. He told Dr Tagkalidis that he was dumbfounded about being suspended and later found out Ms Formosa had schemed with others to undermine him. Mr Ciampa gave a history of the incident on 9 January 2014 and denied being aggressive. When Dr Tagkalidis questioned Mr Ciampa about the allegations made in the Agent’s rejection notice he responded by denying them and alleging that the statements came from “people trying to cover their mistakes in other sections”.
31 Mr Ciampa also told Dr Tagkalidis that he was treated for anxiety 7 years before as a result of allegations made against him of fraud. He said he left the workplace because he could not work with a manager whom he found to be manipulative. He also told Dr Tagkalidis that he had no prior problems with gambling. Dr Tagkalidis also diagnosed Mr Ciampa as suffering from an adjustment disorder with mixed anxiety and depressed mood. He noted that whilst the veracity of Mr Ciampa’s version was important with respect to causation, it did not alter the fact that he is suffering a psychiatric condition.
32 The defendant tendered medical reports from Dr Prytula, Psychiatrist, who assessed Mr Ciampa on 10 February 2014 and 6 October 2014. During the first assessment, Mr Ciampa gave him a history that he had been “targeted by management, undermined by management, threatened by management and they had asked for unrealistic amounts of work from him”. He also said that he had been “abused by staff and made to be the scapegoat and did not know how it happened”. Mr Ciampa also provided a work history that there had not been any prior history of claims or difficulties in the workplace or significant past medical or psychiatric history. Dr Prytula also diagnosed that Mr Ciampa suffered from an adjustment disorder with mixed anxiety and depressed mood. Prior to his second assessment, Dr Prytula was provided with additional information relating to past psychiatric problems and treatment and opined that his current condition was a continuation of his pre-existing condition.
Conclusion
33 I did not find Mr Ciampa to be a credible witness. The version of events given by him in relation to the incidents on 10 September 2013 and 9 January 2014 is not accepted by me as being entirely truthful. Where in conflict, I accept and prefer the evidence given by Ms Page, Ms Phan and Mr Jokhoo. I also accept the evidence given by Mr Benbow, Ms Dagastine and Ms Paras as to what actually occurred in those incidents as revealed by their investigations. The CCTV footage of both incidents clearly revealed that Mr Ciampa was the aggressor and his actions on both occasions intimidated those involved. He told the court that he was “embarrassed” by his behaviour on 10 September and agreed that it was appropriate for his employer to investigate the complaints made against him by his work colleagues.
34 Furthermore, I found that Mr Ciampa attempted to minimise the nature and extent of his past psychiatric history and treatment until he was confronted with documented medical evidence to the contrary. That evidence revealed that he suffered from a significant psychiatric condition in 2009 which necessitated extensive and ongoing treatment including the use of anti depressant medication. It also led to an application for a disability support pension and an application for “special circumstances” being made pursuant to s 160 (2) of the Infringements Act.
35 In addition, the medical reports reveal that Mr Ciampa provided a false or incomplete history to Mr Karamanos, Dr Kaplan, Dr Tagkalidis and Dr Prytula. Whilst this does not alter the accepted diagnosis that he is suffering from an adjustment disorder with mixed anxiety and depressed mood, it does cast a further shadow over the veracity of the evidence he gave to the court.
36 I do accept the evidence given by Mr Ciampa that he was under stress in his role as department manager due to staffing issues. I accept that he was frustrated by the lack of support given to him when he complained of being short staffed and became angry when his requests for assistance were not met by his employer. I accept that he reported his frustrations to management as confirmed by the evidence given by Ms Dagastine and Ms Paras. I also accept his evidence that he was under pressure as a consequence of the review being conducted by Ms Dagastine.
37 However, the real issue to determine considering that the defendant accepts that he sustained a “mental injury”, is whether it was caused wholly or predominantly by “management action” as set out in s 82 (2A) of the Act. There is no dispute that the management action taken by the defendant following the incidents on 10 September 2013 and 9 January 2014 constitutes “management action” as defined in s 82 (10). It is a question of fact, for which the defendant has the evidentiary onus of establishing that the management action was taken on reasonable grounds and in a reasonable manner. If so established, Mr Ciampa has the onus of demonstrating that his mental injury did not arise wholly or predominantly from that management action.
38 In my decision of Krygsman-Yeates v State of Victoria [1], I set out what I considered to be the principles to apply when considering the application of s 82 (2A). The analysis required is:
[1] 4 November 2011.
(a) whether the conduct of the employer complained of constitutes management action as contemplated by s82(10);
(b) if so, whether the management action was taken on reasonable grounds;
(c) if so, whether the management action was taken in a reasonable manner;
(d) where s82(2A)(c) is relied on; whether the worker held the belief that management action would be taken and if so, whether it would be taken on reasonable grounds and in a reasonable manner;
(e) whether the mental injury was caused wholly or predominantly by that management action which was taken on reasonable grounds and in a reasonable manner;
(f) when considering the “reasonableness” of that action, it is to be considered objectively having regards to all of the circumstances leading to it being taken and the manner in which it is taken in a global context taking into account:
(i) that the management action and the manner in which it is taken should not be irrational, absurd or ridiculous but moderate and fair; and,
(ii) the judgement is whether the action taken was done “reasonably” not whether it could have been done more reasonably or in a different way more acceptable to the court; and,
(iii) the action and the manner in which it is taken may be reasonable even if particular steps involved are not; and,
(iv) the action and the manner in which it is taken should be assessed at the time it is taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.
39 Although finding that Mr Ciampa did suffer from work pressure in his role as department manager, it is of significance that he made no recorded complaint of this pressure causing an aggravation, exacerbation or deterioration in his pre-existing condition to his treating doctor in late 2013 or early 2014 prior to being suspended. The first attendance at any medical practitioner concerning his condition and work issues did not occur until 20 January 2014 after the disciplinary process occurred following the 9 January 2014 incident and his complaint focussed on the fact that his employment had been suspended, not that he had been “overworked by the employer and bullied and harassed by management”. I conclude that even though he may have been subject to work stresses and pressures due to the issue of staffing and his department being reviewed by Ms Dagastine, it did not cause a deterioration in his pre-existing condition necessitating an attendance with his doctor or an increase in his medication. This is consistent with the evidence given by Ms Paras that at her meeting with Mr Ciampa on 30 December 2013, Mr Ciampa was positive about the future and requested that his employer give him a couple of more weeks to demonstrate an improvement in the management of his department.
40 I find that the management action was taken on reasonable grounds and conducted in a reasonable manner. In my opinion, the defendant undertook the appropriate action when investigating the circumstances of each incident. It interviewed and took statements from all relevant participants and witnesses and met with Mr Ciampa to obtain his version of events and gave him the opportunity to respond to the allegations made against him. It was appropriate for him to be suspended on each occasion pending the outcome of those investigations having regards to the nature of the allegations made against him. Following the first incident, he was counselled, given a formal warning and told that any further indiscretion of a similar nature could result in his services being terminated. He was also offered and accepted the services of a professional counsellor in an attempt to assist him in dealing with “testing situations” in the future. He was also put on notice that a possible outcome following the second incident was that his services would be terminated. This management process caused his mental injury and resulted in his incapacity for work from 10 January 2014.
41 I find that the management action undertaken was moderate and fair given the circumstances of what occurred and on that basis I find that the management action was taken on reasonable grounds and in a reasonable manner. I find that his mental condition wholly or predominantly arose from the management action taken by his employer following the two incidents.
42 Accordingly, the defendant’s reliance on s 82 (2A) is successful and Mr Ciampa is not entitled to compensation in relation to his mental injury.
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