Dawson v Department of Justice
[2013] VCC 2000
•19 December 2013
| IN THE COUNTY COURT OF VICTORIA AT Warrnambool CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
Serious Injury
Case No. CI-11-05380
| SUSAN JEAN DAWSON | Plaintiff |
| v | |
| DEPARTMENT OF JUSTICE | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 29 November, 3-12 December 2012 4-18 February, 11-12 and 15 April 2013 | |
DATE OF JUDGMENT: | 19 December 2013 | |
CASE MAY BE CITED AS: | Dawson v Department of Justice | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2000 | |
REASONS FOR JUDGMENT
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Subject: TORT
Catchwords: Negligence – duty of care – psychiatric injury – bullying – scope of duty of care- reasonable foreseeability – employee complaints – conduct by another employee – damages
Legislation Cited: Accident Compensation Act 1985; Occupational Health and Safety Act 2004
Cases Cited: Czatyrko v Edith Cowan University (2005) 214 ALR 349; Brown v Maurice Blackburn Cashman [2012] VCC 64; Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; Caldow v State of Victoria [2012] VCC 1331; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Taylor v Haileybury [2013] VSC 58; Bau v State of Victoria [2006] VCC 1779
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HER HONOUR:
Introduction
1 This proceeding was brought by the plaintiff against her former employer alleging that during the course of her employment as a Senior Corrections Officer (“SCCO’) at Warrnambool (“the location”) between August 2002 and August 2007, she was repeatedly bullied by another SCCO, later manager of the defendant, Phillip Pettingill (“the bullying”).
2 The plaintiff alleged the bullying took place in two distinct periods of employment – the first from September 2002 until November 2003 (“the first period”) and the second when she resumed work with the defendant in September 2005, until finally ceasing work in October 2006 (“the second period”).
3 The plaintiff’s claim in relation to an earlier period of employment from June 2000 was abandoned, as was her claim in negligence relating to bullying by the defendant’s regional manager, Mr Randla.
4 In the Statement of Claim, it was alleged by the plaintiff that the defendant, as employer, was under a duty to take reasonable care for her safety and that the injury suffered by her was a consequence of a breach of the aforementioned duty and/or negligence, the particulars of which were as follows:
(a)permitting her to be repeatedly bullied by Mr Pettingill;
(b)failing to provide her with any or adequate supervision;
(c)failing to provide her with any or adequate assistance;
(d)failing to heed complaints made by her about bullying by Mr Pettingill to the defendant via Mr Randla, Mr Bethune, Mr Hall, Ms McAlister and Ms Jan Suard;
(e)failing to carry out any or any adequate risk assessment in the tasks required of the plaintiff given she was working in the same office as Mr Pettingill;
(f)failing to provide the plaintiff with any or any adequate:
(i) support;
(ii) counselling;
(g)ignoring her requests for assistance in respect of bullying by Mr Pettingill;
(h)exposing the plaintiff to aggressive behaviour by Mr Pettingill in the circumstances;
(i)failing to take heed of past incidents of bullying of other staff by Mr Pettingill prior to and during that involving the plaintiff;
(j)failing to recognise the risks created by the bullying to the mental welfare of the plaintiff;
(k)requiring the plaintiff to return to work in 2006 with Mr Pettingill;
(l)failing to ensure Mr Pettingill was adequately supervised;
(m)permitting or allowing Mr Pettingill to engage in bullying of the plaintiff;
(n)failing to promptly investigate the bullying by Mr Pettingill when the plaintiff had made a number of complaints and had required time off work through injury caused by the bullying; and
(o)failing to move Mr Pettingill from the office during the relevant period.
5 A breach by the defendant of s21 of the Occupational Health and Safety Act 2004 in not providing a safe workplace for the plaintiff was ultimately not relied upon. In any event, the Statute specifically precludes reliance on this provision as conferring a right of action.[1]
[1]Occupational Health and Safety Act 2004, s34
6 After many days of hearing and numerous allegations of bullying and harassment made by the plaintiff against Mr Pettingill, the plaintiff relied on the following general allegations of bullying in both periods of employment and a number of specific incidents:
(1) Yelling and abusing her;
(2) Repeatedly singling her out and/or subjecting her to unreasonable and unfair treatment (24 incidents);
(3) Subjecting her to humiliating and demeaning treatment;
(4) Repeatedly reviewing, criticising and correcting her work;
(5) Repeatedly reprimanding her over trifling matters;
(6) Repeatedly stating she was not liked by colleagues and or management;
(7) Repeatedly asking her in the presence of co workers how long she intended working or remaining at the location;
(8) Placing her on Stage I of an under performance plan (“UPP”) without informing her and without just reason and cause (denial of natural justice);
(9) Removing her from an interviewing panel without just reason or cause;
(10) Attacking her for putting him down to Magistrate Stone;
(11) Flicking files at her;
(12) Negligence by management (five allegations).
7 Some allegations fell within more than one of these categories.
8 It was alleged that the bullying caused the plaintiff injury and loss and damage, the injury being a Chronic Adjustment Disorder with Depressed Mood, and Anxiety, Depression and a Major Depressive Disorder (“the psychiatric condition”).
9 By its Defence dated 23 April 2011, the defendant admitted it owed a duty to the plaintiff as employer to take reasonable care for her safety. The defendant denied it was negligent or that it had breached its duty to the plaintiff. Whilst contributory negligence was initially pleaded, that allegation was withdrawn at the hearing.[2]
[2]Transcript (“T”) 1906
10 It was submitted by counsel for the defendant that what happened in this case was that the plaintiff was a difficult employee who resisted reasonable management actions.[3] Further, the defence case was that a number of the incidents on which the plaintiff relied had not occurred.
[3]T1690
11 It was also submitted that the cause of the plaintiff’s stress was in issue and any bullying was denied.[4] It was conceded the plaintiff’s stress arose from the workplace but not from bullying.[5]
[4]T1864
[5]T1895
The scope and duty of care of the Defendant
12 As the employer, the duty owed by the defendant to the plaintiff was set out in the joint judgment of the High Court in Czatyrko v Edith Cowan University:[6]
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”
[6](2005) 214 ALR 349 at paragraph 12
13 “Bullying” is described in the Department of Justice ‘Bullying and Occupational Violence Handout’ (“the Handout”) as:
“Repeated and unreasonable behaviour directed toward an Employee, or group of Employees, which creates a risk to health and safety.”
14 “Unreasonable behaviour” is defined in the Handout as:
“Behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten someone else.”
15 The Handout also set out that occasional differences of opinion, conflicts and problems in working relations do not constitute bullying.
16 It was submitted on the defendant’s behalf that the actions of Mr Pettingill were “reasonable management actions” which were defined in the Handout as follows:
“Reasonable management actions including (but not limited to) reasonably – setting performance standards and deadlines, allocating work, rostering and allocating working hours, transferring an employee, deciding not to select an employee for promotion, informing an employee about unsatisfactory work performance, informing an employee about inappropriate behaviour, implementing organisational changes, implementing and conducting performance management processes, conducting misconduct processes and implementing disciplinary outcomes and providing constructive feedback do not constitute bullying.”
17 As Judge Carmody noted in the matter of Brown v Maurice Blackburn Cashman,[7] whilst a similar WorkSafe definition of workplace bullying did not have any legislative force, it was a reasonable working definition of workplace bullying, and he would analyse the allegations in that case on that basis.
[7][2012] VCC 647 at paragraph 9
18 The seminal decision concerning an employer’s breach of duty resulting in psychiatric injury caused by work duties is that of the High Court in Koehler v Cerebos (Aust) Ltd:[8]
“The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. … .”
[8](2005) 222 CLR 44 at paragraph 21
19 The High Court said:
“The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.” [9]
[9]Supra
20 In answer to my question, counsel for the defendant stated the defendant did not rely on the principles in Koehler[10] in arguing the plaintiff’s psychiatric injury was not reasonably foreseeable.
[10]Koehler v Cerebos (Aust) Ltd (supra)
21 Whilst the defendant maintained no bullying or harassment had occurred, it was conceded that it would be “difficult to argue”, where there was an existing bullying policy and bullying was made out, it was not reasonably foreseeable that the plaintiff would suffer injury as she alleged.[11]
[11]T62
22 I accept that this case falls outside the principles set out in Koehler if the plaintiff establishes that she was the subject of deliberate bullying. It was within the knowledge of Mr Pettingill and his managers that if such bullying occurred, it was reasonably foreseeable that the plaintiff would suffer psychiatric injury.
23 This case is dissimilar to those where the worker suffered psychiatric injury performing everyday tasks. Recent examples include Caldow v State of Victoria,[12] which involved a teacher undertaking timetabling duties; Hardy v Mikropul Australia Pty Ltd,[13] where psychiatric injury arose from the plaintiff worker’s consumption of alcohol on work trips, and Taylor,[14] where a teacher suffered injury as a result of involvement in students’ weekend sport.
[12][2012] VCC 1331
[13][2010] VSC 42
[14]Taylor v Haileybury [2013] VSC 58
24 The issues for determination are therefore:
(i) Did Mr Pettingill (as a representative of the defendant) breach his duty to the plaintiff to take reasonable care for her safety?
(ii) If there was a breach, was such breach a cause of the plaintiff’s psychiatric injury?
(iii) Did mangers, Mr Bethune and or Mr Randla, breach their duty of care to the plaintiff by failing to respond to her complaints of bullying about which they had, or should have had knowledge?
(iv) if a breach is established, was that breach of duty a cause of the plaintiff’s psychiatric injury?
Factual background
25 By way of background, the uncontested facts are as follows.
26 The plaintiff is presently aged sixty-one, having been born in September 1952.
27 The plaintiff commenced work with the defendant in 1984 and was promoted to SCCO in 1997. She was the SCCO at the Warrnambool office (“the location”) until the appointment of Mr Pettingill as manager on 2 December 2002. He had commenced work at the location two months earlier to take action in relation to an internal review, the Insana Report.
28 In the first period, the plaintiff was absent from the location on sick leave from 16 December 2002 to 17 January 2003, and from 28 January to 21 February 2003. She also had the odd day off. From 19 May to 15 July 2003, the plaintiff took long service leave. She also had a week of sick leave in early November 2003.
29 After the plaintiff spoke to Mr Bethune in July 2003, Mr Pettingill arranged for Ms Shackwell to attend the location to speak with staff about issues between the plaintiff and Mr Pettingill.
30 In August 2003, Ms Poursanidis, Staff Development Manager, met with the plaintiff to discuss a plan of improvement. The following month, Ms Poursanidis was advised by the plaintiff that she felt belittled and bullied.
31 There was a meeting held at the location on 19 November 2003, attended by Mr Pettingill, Mr Randla and Ms Poursanidis. The plaintiff ceased work later in November 2003, having lodged a grievance against Mr Pettingill.
32 The plaintiff’s Claim for Compensation dated 15 January 2004 set out she had suffered stress, anxiety, psychological depression from ongoing verbal abuse and harassment from Phillip Pettingill since December 2002, lack of managerial support and unrealistic expectations.[15] The claim was accepted.
[15]Defendant’s Court Book (“DCB”) 27
33 The plaintiff worked at Juvenile Justice from April to August 2005.
34 A grievance hearing was held in June 2005.
35 The plaintiff returned to her job at the location in September 2005, at which time Ms Shepherd was the manager. Mr Pettingill resumed the manager’s role in March 2006.
36 The plaintiff ceased work in October 2006 and resigned from the defendant in August the following year.
37 The plaintiff has received counselling from Mr Kingsley from 2002 to date. During this time, Dr Kay has been her general practitioner.
38 The consensus of medical opinion is that the plaintiff suffers from an Adjustment Disorder with Depressed Mood.
Credit
39 It is necessary at the outset to set out my findings as to credit as they ultimately underline the version of various events which I accept or reject.
The Plaintiff
40 Overall, I found the plaintiff to be a truthful witness who gave evidence over seven days quite cogently, although frequently crying and distressed.
41 The plaintiff was totally focussed on the issues involved in her claim and displayed a strong sense of injustice at the manner in which she had been treated by Mr Pettingill.
42 The matters in this case have clearly dominated the plaintiff’s life for years. Whilst she is preoccupied with them and at times has implicated Mr Pettingill in her distress when he in fact has had no involvement or his conduct was a matter of her perception, as Mr Kingsley described, I did not feel that she was paranoid about Mr Pettingill and that whilst at times oversensitive, she retained some objectivity.
43 Obviously, I have excluded such matters when considering the allegations of negligence but am mindful of this background when looking at the issues generally. Examples in this regard include a perception on the plaintiff’s part that Mr Pettingill was going to yell at her, taking personally emails directed to all staff, attributing a sinister motive to offers of the manager’s job in late 2002 and again in March 2006, and Mr Pettingill stopping the plaintiff going to Ararat. Not surprisingly, allegations of this nature were not ultimately relied upon by the plaintiff’s counsel.
44 I accept at times the plaintiff’s description of events were somewhat exaggerated but I do accept her evidence as to a number of significant events and as to the general nature of Mr Pettingill’s treatment of her in both periods of employment.
45 The plaintiff’s failure to describe her complaints in detail in her grievance letter, setting out her complaint in one sentence that she had been “bullied, intimidated and harassed” does not affect her credibility in a significant way as counsel for the defendant submitted.[16] I have found a number of significant events central to my ultimate finding that events did occur both on the plaintiff’s evidence and that of Mr Pettingill. Further, the plaintiff contemporaneously reported various complaints to her treaters and medico-legal examiners.
[16]T1763
Mr Pettingill
46 Mr Pettingill was a confident witness who gave forceful answers in relation to many issues, often citing Department policy and referring to his management skills and expertise in various areas. I found him to be assured and self opinionated. His comments about his knowledge of bullying that it was a “working style”, he had studied bullying and it was “part of [his] learnings”[17] was an example in this regard.
[17]T1189
47 Mr Pettingill was confident in his own ability to come in and fix things up at the location and he was not reluctant to express his views on a number of occasions as to his success in this regard, with the result that he had taken the location to the top of the rankings of Corrections in Victoria.
48 I detected a willingness on Mr Pettingill’s part to boost his position, referring to his training, experience and expertise whenever given the opportunity.
49 At times, Mr Pettingill was less than candid. Two examples suffice for the present. He initially described limited contact with the plaintiff in his early days at the location but later conceded he went into her office three to four times a day when he first arrived. He denied he personalised things but then conceded he went to the location to “sort out” the plaintiff’s attitude to the organisation in particular.
50 Whilst admitting he was often frustrated with the plaintiff, Mr Pettingill did not concede such frustration was manifested in any way. He simply described in such situations, he would not be chatty or jovial.
51 As will become apparent in these reasons, there are a number of occasions where the plaintiff is supported by fellow workers in her account of dealings with Mr Pettingill, whose version of events at times is implausible
Overview of findings
52 An analysis of the evidence in this case needs to be quite detailed and extensive given the nature of allegations made by the plaintiff against Mr Pettingill and management, and the numerous matters in the workplace relating thereto.
53 Such analysis requires not only a consideration of various circumstances and the facts thereof, but numerous conversations and correspondence relating thereto. At times, as the plaintiff described, it was not just what was said by Mr Pettingill but how it was said that was alleged to be part of his bullying behaviour.
54 Further, some examination is required of events predating the alleged bullying as to the plaintiff’s state of mind and the suggestion by the defendant that she was argumentative and has always been a difficult problem for management.[18]
[18]T1706
55 Because of the complex factual issues, it is necessary at times to look at out of Court accounts given by the plaintiff, such as histories give to her by doctors. This inevitably lengthens these reasons.
Co-workers – Plaintiff’s witnesses
56 Bridie West, nee Quinn, home duties, was employed as a CCO by the defendant in 2002 and 2003. She worked three days a week at the office and on other days, she worked at Portland and Hamilton.[19]
[19]T753
57 Jacinta Welch is presently employed as a Drug and Alcohol support worker with the Uniting Church. She worked with the defendant from September 2003 until December 2004. [20]
[20]T790
58 Rodney Gaut is presently employed as a case manager at Disability Services. He was first employed by Community Corrections in 1997 and worked for twelve years, generally in the office as a CCO.
Co-workers – Defendant’s witnesses
59 Richard Randla is presently General Manager, West Metro Region, Community Correctional Services. He commenced work with the defendant in 1987. Between 2002 and 2005, he was managing the South-West Region in a half strategic and policy and half operational role.
60 Bill Bethune is currently the Acting Director of Community Corrections and also Regional Manager of Barwon South West Community Corrections. He commenced work with Corrections in 1981. After 2002, he was the location manager at Geelong and remained there until around 2007. He had earlier worked as the plaintiff’s manager in the 1990s in the same office.
61 Desi Poursanidis is currently the case manager of Corrections Victoria and has been employed by the defendant since 1991. In 2003, she was the Staff Development Manager – South West. It was her role at that time to ensure there was a complete management system and all staff had a performance plan on that basis.
62 Leanne Shepherd is the Justice Service Coordinator at Swan Hill. She first met the plaintiff in October 2002 when she was a TAFE student doing a placement at the office. She then stayed on as a volunteer until April 2003, and later that year, secured an ongoing position as a CCO. In about August 2005, she went into the Acting Operations Manager’s role in the absence of Mr Pettingill for a six-month secondment. She had that role until 28 February 2006 and then reverted back to a Corrections Officer until she left in July 2006.
63 Renae Perry, nee Gleeson, is presently a Coordinator of Justice Services. She started work as a CCO at the location on 1 February 2004. The plaintiff supervised some of Ms Perry’s work after she came back to the office in September 2005.
64 Luke Tucker, SCCO, started at the location as a CCO in June 2005, reporting to Mr Pettingill. Most of the time he worked at the location.
65 Anthony Banfield, self employed, was a CCO at the location between July 2002 and 2003. When he arrived, the plaintiff was in charge.
66 Jim Showler, retired, worked at the location from late 2004 to 2007, starting as a CCO.
67 Casey Lee Sheehan, SCCO, started with the Department in administration on 29 September 2003. In February 2004, she moved into community work until returning to full-time administration in March 2006, where she stayed for about five months.
68 I have included in my reasons the tendered hand-drawn diagram[21] of the plan of the office at Lava Street in the first period, with my annotations in line with the witnesses’ evidence where their offices were situated.
[21]Appendix 1 to these Reasons
Observations of lay witnesses
69 Clearly, there were “sides” at the location during the two periods of employment, with some workers supporting the plaintiff and others supporting Mr Pettingill.
70 As I will explain later, the extreme position taken by those in Mr Pettingill’s “camp” was difficult to reconcile with his admission that such tension existed to the point where he raised his voice on occasion. I conclude, particularly given the evidence of Ms West in relation to the first period and Mr Gaut in relation to both periods, that the witnesses in Mr Pettingill’s camp were not prepared to make any concessions, presumably out of loyalty to him. I would have found their evidence more convincing had they been prepared to acknowledge some tension at the location between Mr Pettingill and the plaintiff.
BACKGROUND
71 The plaintiff started with Community Corrections in Warrnambool (“the location”) in 1984. Her work as a CCO involved supervising people on community-based orders and parole, and visiting community work sites. In 1997, she was promoted to SCCO.
72 Prior to Mr Pettingill’s arrival at the location in September 2002, the plaintiff had raised issues of understaffing and other work-related issues with management in her role as the senior officer.[22]
[22]T67
73 Allegations of bullying were made by the plaintiff against the manager at that time, Mr Murphy, but no formal action eventuated.[23]
[23]T257
74 In the present case, the plaintiff alleged that she was bullied by the Regional manager, Mr Randla, when he yelled at her about understaffing issues raised by a co worker, Mr Selestina, and also about her involvement on behalf of a co worker to whom inappropriate comments were made by another manager at a staff dinner (“the dinner”).
75 Both allegations against Mr Randla were withdrawn at the hearing, together with other allegations of bullying on his part during the plaintiff’s return to work program in February 2005.
76 Mr Randla denied he yelled at the plaintiff in relation to the Selestina issue.[24] His evidence in this regard was corroborated by Mr Bethune.[25] Mr Randla also denied yelling at the plaintiff about the staff dinner issue.[26]
[24]T1430
[25]T1505
[26]T1434
77 The plaintiff agreed that in 2001, mentoring was arranged for her to assist her in getting on with management.
78 In various work performance reviews, the plaintiff’s work was at times commended[27] and at other times she was criticised for not complying with deadlines.[28]
[27]T1519 – 2002, review by Mr Bethune
[28]T330 - 1999 assessment
79 Mr Randla explained that in 2002, John Insana, Operations Manager at Sunshine, was asked to review the location because of a number of serious issues that had arisen. He was to report on the workings of the location, carrying out an audit of the office files (“the Report”).
80 The draft report, published in August 2002, identified a list of cases that were either mismanaged or not managed appropriately. Insana found that case management practices and offender management were very sloppy, and there was very serious information missing about the status of offenders.[29]
[29]T1438
81 A copy of the Report has not been located.
82 Mr Randla was reluctant to say there was a particular understaffing problem at the location.[30] Insana advised him that there had to be more changes than just sorting and fixing the files. More resources needed to be put in.
[30]T1440
83 Mr Bethune described the Report involved the commencement of an action plan to identify things that could be done to remedy the situation.[31]
[31]T1508
84 The plaintiff confirmed the Report noted several problems with some files not having documentation in them and that the paperwork in others had not been signed off appropriately.[32]
[32]T181
85 In the present proceedings, the Report is not relevant to the main issue of buying by Mr Pettingill and negligence by management in relation thereto, but forms the background framework of the defendant’s case that Mr Pettingill’s conduct involved reasonable actions managing a difficult employee who had problems with her files and had a different management style to his.
86 Counsel for the plaintiff ultimately alleged in Allegation 12(a) that management was negligent by its failure to adequately and properly identify to the plaintiff the reasons for posting her to the location.
87 Counsel for the defendant argued that this allegation was not agitated in the plaintiff’s vive voce evidence at trial nor was it pleaded in the Statement of Claim. The allegations of negligence related to failure by management to act on the plaintiff’s complaints of bullying against Mr Pettingill and to take appropriate steps on her return to work in the second period.
88 It is clear from both the evidence of Mr Randla and Mr Bethune that Mr Pettingill was given general instructions as to his brief at the location. He was given no specific direction as to how his role would fit in with the plaintiff’s position as senior officer.
Mr Randla
89 Mr Randla consulted with Mr Pettingill, who said he would be willing to come to the location for a few weeks, perhaps a month or two, depending on what needed to be done, and work on improving work practices and cleaning up the outstanding files.[33]
[33]T1439
90 Mr Randla denied that Mr Pettingill was sent to the location particularly in regard to the plaintiff’s performance. It had nothing to do with her.[34] The primary preoccupation was how quickly they could fix and really sort out the problems.
[34]T1444
91 In cross-examination, Mr Randla agreed absolutely from the start it was going to be difficult with Mr Pettingill. The plaintiff was then the officer in charge.[35]
[35]T1485
92 Mr Randla explained that in that early stage, Mr Pettingill was only to address and work on the files. He did not recall giving particularly detailed instructions to Mr Pettingill of having to report to the plaintiff. That was Mr Bethune’s responsibility.[36]
[36]T1487
93 The key element and extent of Mr Pettingill’s brief was to address the issues identified in the Report and focus on the files that were identified as mismanaged and to help bring the status of those files to an accountable level.[37]
[37]T1488
94 Mr Pettingill had no management function. Fixing the files was his primary task, and Mr Randla expected that Mr Bethune would present a report to him after Mr Pettingill had completed that task.
95 The key brief was a job independent of the other CCOs, the plaintiff and everyone else. When asked about Mr Pettingill going into the plaintiff’s office three or four times a day, identifying faults and picking out files that did not have notes on them, that was not exactly what Mr Randla had envisaged in Mr Pettingill’s brief.[38]
[38]T1489
96 Mr Randla thought initially, probably he was hoping everything was going to work. His impression was that for the plaintiff –
“… it was a status issue, and when Mr Pettingill was appointed to that position it was like there was a road of no return. That is how he felt most of the time, interacting with them, that something was broken, that the plaintiff had status, she had a position and everything, and how she lost that. That was his impression, so it was very difficult for them all, for the plaintiff, for Mr Pettingill, for him, for the Director to manage that situation.”[39]
[39]T1485
97 Mr Pettingill was the only person who later applied for the advertised position of manager. Mr Randla remembered asking the plaintiff to apply for the role.[40]
[40]T1446
Mr Bethune
98 Mr Bethune was consulted by Mr Randla about Mr Pettingill being released from Geelong as a senior to go to the location by Mr Randla and he would have spoken to Mr Pettingill.[41] Mr Pettingill’s role was to address issues arising out of the Report and make an action plan.
[41]T1509
99 Mr Bethune had no involvement in Mr Pettingill later being appointed manager. He refuted it was never a possibility that the plaintiff would be appointed location manager at that early stage.
100 Mr Bethune ceased his role of location manager in December 2002.[42]
[42]T1512
Mr Pettingill
101 “Possibly” there was a special audit done on Warrnambool by John Insana in September 2002.[43] Mr Pettingill was not told specifically what had happened, but he knew the audit did not go well. His role thereafter was to develop some action plans to identify the issues.
[43]T972
102 Mr Pettingill thought the location was reporting being under great pressure before he started there.[44]
[44]T1260
103 When he arrived at the location, Mr Pettingill systematically went through the various areas of the business. There was a lot more that needed to be done than was shown in the Report. He developed the action plans and went about fixing up some of the problems.[45] He noted that nearly all of the files had errors identified in the Report.[46]
[45]T973
[46]T974
104 Initially, Mr Pettingill did not have a lot to do with the plaintiff. They were both seniors. In the first month, he had to look after Hamilton. Mr Pettingill spent a fair bit of time at nights going through the location files.[47]
[47]T976
105 In cross-examination, Mr Pettingill would not concede there was a problem of understaffing.[48] He thought the location was no different to anywhere else and that the staff was not managing properly.[49]
[48]T1194
[49]T1195
106 The plaintiff had previously complained to Mr Pettingill about staffing levels. He knew a lot about the location before he arrived, and he knew about the complaints which he was sent to help and address.[50]
[50]T1196
107 Mr Pettingill agreed he made attempts to change the situation, noting that he and the plaintiff would sort it out. When asked to explain in cross-examination what would be sorted out, he replied “Sue’s attitude towards the organisation in particular”. He knew about her attitude and that she was unhappy with staffing levels from his Geelong experience. He was not briefed about her attitude, nor could he remember discussing it with senior management.[51]
[51]T1220
108 Mr Pettingill explained that the plaintiff’s attitude to the Department or the quality of her work was not discussed because “we don’t personalise things” – it was not about the plaintiff, it was about the office and about where things were as a result of the audits and what he saw. He was always “hopeful …” had always said he liked the plaintiff and wanted to make it work.[52]
[52]T1221
109 Mr Pettingill agreed he made attempts to change the situation.[53] It was his view, when he came to the location in the state it was in, that there was a lot of unhappiness and a high degree of turnover of staff beforehand. He perceived the location was not organised. It was the staff’s perception they had too much work and that “was the sad situation that we needed to change – particularly the earlier people who I say might have taken sides were caught up in all of this”.[54]
[53]T1222
[54]T1223-4
110 In cross-examination, Mr Pettingill denied he meant they were taking sides in this case as it was not then on foot. He meant the plaintiff clearly had a way of how she liked to run things, and at times she could have convinced other people at the location in late 2002 that her way was right.[55]
[55]T1225
111 Mr Pettingill denied he came to the location with a view that he was actually in an adversarial situation. It was absolutely not correct that he knew there was going to be conflict with the plaintiff when he arrived. He agreed that from day 1 he was there to form an action plan.[56]
[56]T1229
112 Mr Randla did not tell him what the job specifically involved; just that it was a senior’s job. Mr Randla did not discuss what needed to be done. Mr Pettingill knew what had to be done.[57]
[57]T1269
113 Mr Pettingill denied he arrived as a sort of auditor. He did not recall saying he was on a mission, but he came as a response to Mr Randla. He did not know whether it was discussed that the plaintiff had been having trouble for quite some time, and complained about the workplace. The location had had a bad audit, so he was asked to come and help.[58]
[58]T1270
114 Mr Pettingill conceded the outcome of the audit was discussed with Mr Randla, but he did not believe the plaintiff’s concerns about staffing were discussed. Honestly, it was just said “would you go down to Warrnambool?”, and it was not anything other than to be a senior, and it was to stay for a short period.[59] He was not told “go down, we’re going to make it a manager’s job”. He was going down to help out. He later agreed it was fine if his posting was described as a “mission”.[60]
[59]T1271
[60]T1271
115 If Mr Pettingill spoke to anyone else before coming to the location it would have been Mr Bethune; however, he could not recall the substance of the conversation. He was not given many instructions at all, just “come down”, and “look, quite frankly, it’s pretty straightforward, go and help out, be a senior”. He could not recall being given any direct instructions.[61]
[61]T1273
116 When asked to give a clear account of the nature of his brief, Mr Pettingill said that he and Mr Randla discussed it. Mr Randla asked him to come down and help out. There was nothing else, apart from the Report having identified some issues. Mr Pettingill guessed the plaintiff identified some issues. He knew she was not happy. Nobody gave him anything specific. He knew the job, so he came down to do it.[62]
[62]T1274
117 The total of Mr Pettingill’s brief was “go and develop some action plans”. He could not recall whether the plaintiff’s name was mentioned at the time he was briefed. He would imagine it would have been. He assumed her name came up in discussions with Mr Randla, and when asked why he had not mentioned that before, he said he was reluctant to say, because “we don’t personalise things when we talk – we don’t talk about people in a negative way”.[63]
[63]T1276
118 In a memo to Mr Randla on 17 November 2003,[64] Mr Pettingill advised that on going to the location, he expected opposition to many of the procedures he needed to implement. He could not recall discussing that issue with Mr Bethune, but he knew that to be the case at that time.[65]
[64]DCB 161
[65]T1277
119 Mr Pettingill could not remember if Mr Randla told him he had had a number of discussions with the plaintiff before he came down to the location. He could not recall discussing the plaintiff with Mr Randla, but then said the plaintiff’s name would have been mentioned, but he did not remember in what context.[66]
[66]T1278
120 Mr Pettingill would not say the plaintiff was regarded by management in Melbourne as a pest, and whilst he had written he expected opposition from her, he would say that did not happen.[67] His recollection was that was not true but when shown his email to Mr Randla in November 2003, he agreed it would be right if he had then written that.[68]
[67]T1279
[68]T1280
121 Mr Pettingill could recall having a brief phone conversation with the plaintiff before he came to the location and he was hopeful everything would go well. He agreed he had written something different to Mr Randla.
122 Mr Pettingill then denied he knew it was going to be a difficult time coming to the location – he knew there were difficulties in the past but they would not happen with him.[69]
[69]T1284
123 Mr Pettingill did not recall in early days saying it was going to be hard when he goes through things with the plaintiff – it was not about fault all the time, he had an action plan. He did not say to her that they had been friends in the past and inevitably what he was doing was likely to put her under fire as the office manager.[70] He then said he did involve the plaintiff in helping him.[71] He talked to her about a plan.[72]
[70]T1285
[71]T1286
[72]T1288
124 Mr Pettingill denied from day 1 going around stabbing the plaintiff in the back without her knowing it.[73] He believed he would have said privately to her that they were both equals and it was not going to be easy for him.[74] He then agreed that basically what happened was that he was running around behind her back looking at her files when she had been there for nearly twenty years. He thought that was fair.[75]
[73]T1289
[74]T1290
[75]T1291
125 This private conversation was not put to the plaintiff and she made no mention of it in her evidence.
126 Looking back, Mr Pettingill really could not see how he would have done things differently. He agreed he did not stress positives which was a normal practise.[76]
[76]T1293
The Plaintiff
127 The plaintiff did not receive any notice to the effect that Mr Pettingill was coming to the location in any capacity other than an equal SCCO with her.[77]
[77]T722
128 The very first day Mr Pettingill arrived, he started issuing orders to her and she struggled to accept that situation.[78] She did not understand he was there to fix up problems with files.[79]
[78]T723
[79]T181
OVERVIEW
129 Whilst Mr Bethune and Mr Randla could have taken more trouble to brief Mr Pettingill on his role and discuss this with the plaintiff, who on their evidence was his superior,[80] in my view, these matters do not constitute negligence on the part of management but are relevant in setting the background to what occurred on Mr Pettingill’s arrival at the location.
[80]T1447 – Mr Randla; T1511 – Mr Bethune
130 The relevant issue is Mr Pettingill’s behaviour towards the plaintiff from September 2002 throughout the two periods of employment. Allegations of bullying have been made by the plaintiff against him in general terms as to his conduct in the work environment and also in relation to a number of specific incidents – described as Allegation 2 – Repeatedly singling out the plaintiff and/ or subjecting her to unreasonable and unfair treatment.
131 The plaintiff also alleged negligence by management in its failure to address her complaints and manage Mr Pettingill’s behaviour – Allegation 12.
132 I will attempt to deal with these allegations somewhat chronologically and not necessarily in the order set out by counsel for the plaintiff. As will be seen, there is considerable overlap between the general categories and the specific allegations of bullying.
133 At times, limited transcript references were relied on by the plaintiff’s counsel in support of the numerous allegations, and allegations not raised on the plaintiff’s behalf were addressed by counsel for the defendant in his response to the general nature of plaintiff’s allegations.
ALLEGATION 1 – Bullying and yelling by Mr Pettingill
This was denied.
ALLEGATION 4 – Repeatedly reviewing, criticising and correcting the Plaintiff’s work
This was denied. At all times, Mr Pettingill was acting in a managerial capacity.
ALLEGATION 5 – Repeatedly reprimanding the Plaintiff over trifling matters
This was denied. Mr Pettingill at all times acted in a reasonable managerial capacity. The matters were not trifling and related to the plaintiff’s underperformance.
The early months – September to 2 December 2003 when Mr Pettingill is appointed manager
The Plaintiff
134 The plaintiff’s problem with Mr Pettingill bullying started immediately, the first day he was based at the office.[81] He brought a file to her, saying it had not been well cared for and asking how she could let it happen. She explained it was an old file when there was a staff shortage. He complained documentation was not on the files and told her – “these things on these files are not going to happen again now that I am here”.[82]
[81]T72
[82]T73
135 The plaintiff told Mr Pettingill of the outcome of a previous good review and he said he knew she would rely on history just to show that she was a good worker.[83]
[83]T76
136 In the first week, Mr Pettingill came into the plaintiff’s office three to four times a day. He complained that she had not performed appropriately during the management plan, in that she had failed to ensure staff had signed off on the plan. She thought, however, the implementation of the management plan for offenders was the priority, not staff completing worksheets. Mr Pettingill told her he was disgusted with her for allowing that sort of thing to occur.
137 In evidence-in-chief, the plaintiff agreed there was room for improvement in the paperwork and procedures.[84] There were things that needed to improve at the location and some of the paperwork may have been slack. She agreed there were times when the files were not in the right place and there were notations missing. There was never any complaint about her supervising offenders or her role with magistrates. At times, she was particularly successful at community work projects.[85]
[84]T89
[85]T144
138 At that early stage, the plaintiff was concerned that she and Mr Pettingill were not working together well in the office and she was worried about the way he was coming to her. He was starting to make her feel quite nervous. It was not what he said, it was the vicious way he talked to her and the tone he would use. He would raise his voice and speak down to her.[86]
[86]T77
139 In this early period, the plaintiff alleges she complained to Mr Bethune of bullying by Mr Pettingill. I will address that issue later when considering the liability of management.
140 The plaintiff considered Mr Pettingill came in as a SCCO like herself. She felt he was trying to put her down, three to four times a day identifying things – very very petty issues that she could not fix. He brought these to her aggressively and was quite harsh and vicious in the way he spoke.[87]
[87]T79
141 The plaintiff regarded Mr Pettingill on his arrival as an equal peer. From the very first day he issued orders to her which she struggled to accept. [88]
[88]T723
142 The plaintiff gave a number of examples of behaviour by Mr Pettingill which she described as “ridiculous, nit picking and stupid” – ordering her to speak to Ms Quinn and Mr Gaut about their work clothing and to speak to Ms Franzoni about problems with her memory.
143 The plaintiff told Mr Pettingill she considered his requests ridiculous. He then yelled and raised his voice, ordering her to speak to Ms Quinn.[89] He also yelled and raised his voice at the plaintiff when discussing Ms Franzoni, and he yelled at her when discussing Mr Gaut. The plaintiff thought Mr Pettingill asked her to talk to these staff members because he wanted to separate her from them.[90]
[89]T81
[90]T83
Mr Pettingill
144 Mr Pettingill initially did not have a lot of involvement with the plaintiff before he was appointed manager. They were both seniors and did their own work. It was not until he became manager in December that he started to talk to her about the issues specifically.[91]
[91]T976
145 In evidence-in-chief, when the plaintiff’s evidence that he complained to her three to four times a day of issues with files was put to him, Mr Pettingill said he did not see anything wrong with that. He would not say he complained to her. He denied saying he was disgusted that the plaintiff let matters occur or that he was vicious towards her.[92]
[92]T987
146 In cross-examination, Mr Pettingill agreed he was at Hamilton one day a week for the first month.[93]
[93]T1168
147 Mr Pettingill denied he ever told the plaintiff that management did not like her. She made comments to him about being liked, and things of that nature. Early on, she told him a couple of times he was the worst manager in the world. Later on, but not very often, she made the same comment.[94]
[94]T1145
148 Mr Pettingill denied he would have told the plaintiff she was to speak to Ms Quin about her dress – he would have done it himself and it would not fuss him if the plaintiff did not want to. He would not discuss Ms Franzoni’s memory with the plaintiff. He did not yell at the plaintiff about this issue and never yelled at her at any time.[95]
[95]T981
149 Mr Pettingill denied he told the plaintiff she was not a good worker.[96]
[96]T982
150 Mr Pettingill admitted using the expression “war stories” but he said it in a polite way when other staff would complain that the plaintiff went on at meetings.[97]
[97]T983
151 Before he was manager, Mr Pettingill did not discuss a lot with the plaintiff. He was doing action plans. He was keen just to be there and to help people out as best he could. He did not recall even having adverse discussions with her until after he became the manager.[98]
[98]T983
152 In the first couple of weeks, Mr Pettingill did not lean over the plaintiff’s desk and yell at her. He had never yelled at her.[99] He also denied following her around the office. His office was at the very end so he could not see her anyway. He had no purpose following anyone.[100]
[99]T984
[100]T984
153 In cross-examination, Mr Pettingill denied that most of the time he was going into the plaintiff’s office to talk about fault. He thought it was quite amicable on most occasions.[101]
[101]T1261
154 Mr Pettingill agreed in the first week he identified many file and offender management issues. He did not speak to the plaintiff about the majority of these issues.[102] He could have gone into her office three to four times a day about staff and processes.[103]
[102]T1262
[103]T263
Co workers
155 Mr Gaut described the plaintiff’s relationship with Mr Pettingill before he was manager as quite tense.[104]
[104]T797
156 In cross-examination, Mrs West confirmed she was at the location for about eight to twelve months while the plaintiff was the senior without a manager. The office was then incredibly understaffed.[105]
[105]T761
157 Mrs West thought when Mr Pettingill arrived at the location, his relationship with the plaintiff was civil initially and quite separate. The relationship was strained. They did not do a lot of work together in the initial stages.[106] Things were okay for a very short term and quite quickly went downhill from there.[107]
[106]T754
[107]T762
158 Mr Banfield worked at the location before Mr Pettingill’s appointment as manager. He did not specifically comment on the relationship between the plaintiff and Mr Pettingill during this time. He commented generally that he never really saw yelling as such and nothing to warrant his attention.[108]
[108]T1635
159 Ms Shepherd made little reference to the early period during which time she was on a student placement for five weeks from October 2002 and then worked a day a week in the office until a fixed term contract in April 2003.[109]
[109]T1578
After Mr Pettingill was appointed manager on 2 December 2002.
The Plaintiff
160 On his first day as manager, Mr Pettingill again spoke to the plaintiff about Mr Gaut, demanding she speak to him about his dress. She again said she could not. There was then a huge difference in Mr Pettingill’s response – “I am your manager now you will do it,” leaning over her desk a couple of feet away. He also kept coming at her and telling her she was unable to do a good job.[110]
[110]T90
161 Mr Pettingill continued to nitpick about the plaintiff’s work. He followed her around the office all the time – it was not coincidental.[111]
[111]T92
162 The plaintiff went on sick leave from 16 December 2002 and returned on 17 January 2003. She then took further sick/stress leave from 28 January 2003 to 21 February 2003 as she was very unwell. She could not stop crying and she was physically sick and she was advised by her doctor to have further stress leave.[112]
[112]T100
163 The plaintiff was really struggling to cope with what Mr Pettingill was doing to her – “the yelling and being really horrible and bullying and making extremely vicious comments to [her] all the time”. [113]
[113]T148
The Plaintiff
164 In the first period, the plaintiff alleges Mr Pettingill repeatedly yelled at her when discussing her management of files. She also alleges similar behaviour on his part when directing her to deal with Mr Gaut and Ms Quin’s dress, Ms Franzoni’s memory and telling her to direct Lisa Crisp to accompany sex offenders to Port Fairy.[114]
[114]T87
165 The plaintiff alleged Mr Pettingill spoke to her in a similar angry way, yelling at her that she tell Mr Gaut to drive to Melbourne on the day of a court hearing, abusing her about her arrival time in the office in the morning and also about her late return from a meeting in Geelong.
166 In the last week before she submitted her grievance, Mr Pettingill became even more harassing. He never spoke to her in any kind of nice way at all. There would be no hello, it would be demeaning and loud, not yelling but raising his voice.[115]
[115]T738
167 The plaintiff conceded that no allegation was made in the grievance application of yelling and screaming.[116]
[116]T199
Mr Pettingill
168 Mr Pettingill denied being sarcastic, vicious and angry right at the start three to four times a week.[117] He confirmed he had very little conversation with the plaintiff – just general conversation.
“I have never – you know our code of conduct with treating people with respect is important.”
[117]T1150
169 Mr Pettingill denied telling the plaintiff regularly early on that management did not like her.[118]
[118]T1151
170 Mr Pettingill denied raising his voice when Mr Gaut’s dress was again discussed after he became manager.[119]
[119]T 981
171 Mr Pettingill denied nitpicking and leaning over her desk. “I guess it is in the eye of the beholder.” Their working relationship was fine from what he saw until the plaintiff went off in December 2003.
172 On the old office plan, Mr Pettingill could not see the plaintiff from his office.[120]
[120]T1157
173 Mr Pettingill denied the plaintiff was a top performer in her field and professional in her work. He did not know she had a great reputation with solicitors.[121]
[121]T1162
174 In cross-examination, Mr Pettingill denied he ever yelled at the plaintiff. He could have raised his voice at her. He denied ever having spoken to her in a vicious tone.[122] He was frustrated with her on several occasions.[123]
[122]T1161
[123]T1162
175 Mr Pettingill maintained that if Ms Crisp had told him she did not want to go to Port Fairy, she would not have driven the offenders. Clearly, if Anthony Banfield ended up driving the offenders then he had not made Ms Crisp do something she did not want to do.[124]
[124]T982
176 There were a considerable amount of reasons for the plaintiff crying at work, in that she would be upset because of the detail and content of the conversation.[125] He did not deny others had seen the plaintiff crying. He confirmed three or four times he saw her cry – not because he was yelling at her but because she did not like the content of the discussion.[126]
[125]T1162
[126]T1163
ALLEGATION 2 – Repeatedly singling out the plaintiff and or subjecting her to unreasonable and unfair treatment
2(a) Plaintiff arriving at 7.30am
This was a workplace minor issue. The defendant contended it was a management issue. Mr Pettingill’s actions were sanctioned by the Regional Manager, Mr Randla. The issue needed to be analysed in conjunction with evidence relating to poor management outcomes at the location.
The plaintiff
177 In January 2003, Mr Pettingill told her that she was not to come in early anymore. He did not see her log on at 7.30am. He told her she was not to log on at that time and that she was not to be there at all. She explained the flexi policy to him and told him that she was an “early person” who liked to walk every day at 6.30am and she would prefer an early start and early finish.[127]
[127]T93
178 A few days later, Mr Pettingill was so angry, shouting in her face not to be there or come into the building before 8.30am. She told him she had not logged in and that if she could not come in she would otherwise be sitting in her car. He told her she was not allowed to do that and she had to go home.
179 Other people were allowed in the office at 7.30am.[128] There was no rule about starting early. Mr Pettingill did not explain why he did not want the plaintiff in the office early.[129]
[128]T94
[129]T95
180 At that time, Mr Pettingill was shouting at the plaintiff so badly that she knew she would not be able to go into work again.
181 The plaintiff came into work early on a later occasion when she was dropped off by a mechanic (“the mechanic incident”). Mr Pettingill told her she would not do what she was told, shaking his fists in her face.[130]
[130]T95
182 In cross-examination, the plaintiff said she never wanted to work from 7.30am to 4.00pm. She never knocked off work at 4.00pm. She disagreed that this was the only matter of dissatisfaction she brought up with Mr Pettingill.[131] She confirmed he was aggressive and shouting at her during these conversations.[132]
[131]T350
[132]T352
183 In further cross-examination, the plaintiff confirmed Mr Pettingill objected to her sitting and reading paper before she had logged on, telling her he did not want her in the office.[133]
[133]T565
Mr Pettingill
184 The plaintiff came in early regularly and he would have thought it was even before 7.30am. She would have breakfast, read the paper and talk to staff for some time.
185 Mr Pettingill knew the plaintiff’s starting time was going to be “a hard conversation” to have with her and he would think that was one of the first occasions where he knew “we were going to have something that she was not happy about”.[134] Therefore, he spoke to Mr Randla, who agreed the plaintiff should come into work later.[135]
[134]T985
[135]T985
186 Mr Pettingill then added that the plaintiff was building up hours too quickly so “we decided to have a hard and fast policy and I think that was an 8.30 start” – he guessed black and white.[136]
[136]T986
187 Mr Pettingill denied that a couple of days later he shouted at the plaintiff that she was not to come in early but he did recall, after the initial discussion, she paid very little attention to his comments and continued to come in early. He explained this occurred against a backdrop that when he started at the office, the plaintiff would say she was working very long hours and she was stressed. He explained to her there was no need for that now as there were two seniors.[137]
[137]T986
188 Mr Pettingill denied the mechanic incident occurred in the manner described by the plaintiff. He certainly did not raise his voice or shake his fists or yell. It would have been totally reasonable for the plaintiff to say she had been dropped off at the office by the mechanic.[138]
[138]T987
189 In cross-examination, Mr Pettingill explained the problem was accumulating TIL hours. It was not a problem if the plaintiff was getting to work early if she was not clocking on.[139]
[139]T1231
190 The plaintiff always came in early so her finishing time would be 4.00pm but she would work through to 5.00pm and build up TIL time and she would then want that time off. He tried to make it work but it did not, so he spoke to Mr Randla, which was the correct course of action.[140]
[140]T1233
191 This discussion with the plaintiff was not in isolation. It raised its head again in January and Mr Pettingill went to Mr Randla because the plaintiff did not want to change.[141] There was no issue about coming early; it was building up the TIL which was what had also happened previously as well before Christmas and he suspected it was happening for a long period before he was there.
[141]T1315
192 Whilst Mr Pettingill said he hated the word “abused,” if the policy was being abused, it was decided to come up with a time and 8.30am was it.[142]
[142]T1318
193 Mr Pettingill did not think the plaintiff always had TIL days she did not use. It was common for people to use them and they generally did.
194 The starting time issue did not apply to other staff. It applied to the plaintiff specifically. The plaintiff was the only one “we had to say” to come in at 8.30am. By the end of the week there had been excessive hours built up.[143]
[143]T1320
195 In later cross-examination, when shown the plaintiff’s time sheets in the weeks following September 2002 which indicated on the overwhelming majority of occasions, she started work at 8.00am, Mr Pettingill acknowledged he was incorrect saying she was always coming in early and logging on at 7.30am.[144] He agreed with the records that from September 2002 to January 2003 when she stopped work, or to December 2002, on only three mornings the plaintiff logged on at 7.30am. On all other mornings, she logged on at 8.00am or later. Mr Pettingill then confirmed the issue was the plaintiff was accumulating TIL.[145]
[144]T1332
[145]T1338
Mr Randla
196 Mr Randla had a very very vague recollection about speaking with Mr Pettingill about the plaintiff’s starting times. Most likely it happened, but he did not clearly recall.[146]
[146]T1448
197 Mr Randla explained the defendant’s flexible hours’ arrangement, but there were problems with the flexibility of that arrangement being abused, not only at the location. He had emailed the region reminding the staff they should give consideration to the operational requirements of the office when accessing the TIL.
198 Mr Randla was not a hundred per cent sure, but his understanding was the plaintiff wanted to start very early in the morning, whether to build up TIL and have a day off or whether to finish early. He noted it was very inconvenient for business in a small office for a senior member to leave at 3.00pm and take excessive time off, and very undesirable for the location.[147]
[147]T1450
199 In cross-examination, Mr Randla confirmed he had a very vague recollection of the starting time issue. It was not a good work practice for those staff with responsibility finishing up early or taking time off. The agreed times were possibly being abused, and he did not want someone starting at 7.00am so they could knock off at 2.00pm or 3.00pm.
200 Mr Randla was unaware until the plaintiff’s timesheets were produced that 90 per cent of the time she clocked on at 8.00am.
201 There were management issues in the time worked, in that staff could not be by themselves on a location from an OH&S point of view. He did not recall saying it was a hard and fast rule for the plaintiff and no one else.
March 2003
The plaintiff
202 On her return to work from leave in March 2003, if anything, Mr Pettingill was worse. If she challenged him or tried to negotiate, he would begin to scream at her. “Listen to me I am your manager, do what I say.”[148]
ALLEGATION 2(b) – Mr Pettingill forbidding doctors’ appointments during work hours
This was a workplace minor issue.
[148]T101
The plaintiff
203 An example of Mr Pettingill’s unreasonable behaviour was when he aggressively told her that she had to tell staff that doctors’ appointments were to be out of business hours, saying he was the manager now and she had to do what she was told.[149] He said there were no buts to it at all.[150]
[149]T96
[150]T107
Mr Pettingill
204 In evidence-in-chief, Mr Pettingill explained staff were coming and going a fair bit. There was a culture at the location. “Probably forever. It was something we were aware of and trying to stop.”[151]
[151]T989
205 Mr Pettingill recalled discussing staff medical appointment with the plaintiff. Her comments to him were “a bit of a jolt” to him and he could recall thinking “Oh that’s a dumb idea” that appointments had to be outside work hours so he agreed the staff member could attend. He explained he was just making a point that you do not come and go if you please. He was trying to change the culture.[152]
[152]T990
ALLEGATION 2(c) – Plaintiff’s desk cleared of personal effects by Mr Pettingill whilst she was on sick leave and (d) she should think about the future at that time
(c) This was a trivial management issue. The desk had to be cleared out for use by other people.
(d) Mr Pettingill admitted making the comment about the plaintiff’s future (see allegation 2(i)) but denied saying to her he did not think she was coming back.
The plaintiff
206 On return from leave, the plaintiff’s things had been removed from her desk and put in a box. When she asked Mr Pettingill what was going on, he told her he did not think she was coming back. Her workplace had become too personal and he said she should think about her future.[153]
[153]T102
Mr Pettingill
207 Mr Pettingill explained some of the desks were being replaced and new workstations installed. He would call it a clean desk policy. He denied he told the plaintiff “we did not think you were coming back”.[154] He could not recall emptying her desk but it was possible.[155]
ALLEGATION 2(e) – Plaintiff instructed by Mr Pettingill that she should advise him if she is going to lunch
This was a reasonable management request to ensure that the office was attended by sufficient staff
[154]T993
[155]T1343
The plaintiff
208 About a week after the desk incident, Mr Pettingill called the plaintiff to his office after she returned from lunch. He stood up, shut the door and yelled at her and his face became horribly grey. He was “angry, absolutely furious and it was vicious”.[156]
[156]T103
209 Mr Pettingill was angry saying “how dare you go to lunch without telling me – I am your manager”. The plaintiff told him she had signed out as usual but he told her she will come and ask him to go to lunch everyday. She then started to cry and got upset and returned to her office. He was screaming – “You will tell me. I am your manager.”[157]
[157]T104
210 There was no reason for Mr Pettingill’s comments. The plaintiff had done the same thing for lunch every day she had been at the location.[158] He did not tell her of any operational reason.[159]
[158]T579
[159]T745
211 In the twenty years she was in charge at the location, the plaintiff did not “chip” someone for not telling her they were going for lunch.[160]
[160]T744
Mr Pettingill
212 Mr Pettingill denied this incident occurred. He asked the plaintiff to please tell him when she was going out. He would like to know when she was coming or going but it was not something that he got particularly upset about.[161]
[161]T992
213 In cross-examination, Mr Pettingill explained he could not let the issue go as there were operational reasons so you could not leave the office.[162] He denied this was an example of his level of frustration with the plaintiff. Conversations like this about lunch were work conversations and that was his role.[163]
[162]T1296
[163]T1324
214 Mr Pettingill was not constantly frustrated with the plaintiff; it would depend on the events at the time. Once an event had occurred, he would move on. In the scheme of things, he was not often frustrated with her. With mostly policy issues there was frustration and there was a lot of frustration about the plaintiff’s work.[164]
[164]T1235-6
215 Having said to the plaintiff a couple of times “that’s not right” in response to a comment of hers, Mr Pettingill would get to a certain stage where he just had to disengage. He might have raised his voice but certainly he did not yell. He assumed he raised his voice at times frustrated more to the point than becoming angry – his emotion was not anger.[165]
[165]T1237
Mr Randla
216 Mr Randla explained the officer in charge should know of the whereabouts of his staff.[166]
ALLEGATOIN 2(f) – Plaintiff reprimanded by Mr Pettingill for attending suicidal client without appointment
This was a management issue. Mr Pettingill agreed it was necessary to talk to staff about the length of time they spent with offenders.
[166]T1494 and T1497
The Plaintiff
217 A suicidal upset female client arrived at the location without an appointment. The plaintiff saw the distressed woman in her office for 40 to 45 minutes, during which time the plaintiff phoned Psych services.[167]
[167]T104
218 During that time, Mr Pettingill was walking constantly up and down the passage looking at the plaintiff. As soon as the client left, Mr Pettingill started screaming at the plaintiff in her office, shaking his fists. He was yelling at her and walking closer to her.[168] He said he had told her she was not to see a client if there was no appointment. He would not listen to her explanation and followed her out of her office shouting – “if you don’t do what I say, how are other staff going to do what I say?”[169]
[168]T106
[169]T107
Mr Pettingill
219 Mr Pettingill explained the average time worldwide to spend with offenders is 23 minutes – it is best practice. Speaking to clients for an hour was unsustainable. Some of the older staff found it hard to adjust “but we did spend a fair bit of time telling them not to do that”.[170]
[170]T994
220 Mr Pettingill denied walking outside the plaintiff’s office or raising his fists to her at any time. He never yelled or screamed at her. “The only true part of it if anything, is we might have had a discussion about seeing an offender for a lengthier period of time.”[171]
ALLEGATION 2(g) – Plaintiff instructed by Mr Pettingill to ask Mr Gaut to drive to and from the County Court in Melbourne on the same day
This was a management issue. Mr Pettingill agreed he asked the plaintiff to tell Mr Gaut to drive down and back in one day.
[171]T995
The Plaintiff
221 At the end of April 2003, Mr Pettingill told her that she had to tell Mr Gaut to drive to court in Melbourne on the morning of a hearing.[172]
[172]T108
222 The plaintiff said she could not tell Mr Gaut this – it was an OHS issue. Mr Pettingill immediately became and angry and starting shouting horribly at her and also told her it was a ‘can do’ workplace.[173]
[173]T109
223 In cross-examination, the plaintiff said she began to raise her voice in this conversation.[174]
[174]T585
Mr Pettingill
224 Mr Pettingill recalled that conversation but could not recall telling the plaintiff she had to advise Mr Gaut to this effect. He might have used the expression “can do” workplace, but it was not something he would say under those circumstances.
225 It was just a day-to-day issue – not something you would get angry about. Going down to Melbourne the night before was just not an economical way of running the business because of the build up of TIL.[175]
[175]T998
Mr Gaut
226 There was no evidence from Mr Gaut in relation to this issue.
ALLEGATION 2(h) – Mr Pettingill reprimanding the Plaintiff for returning to the location at 5.45pm
Mr Pettingill agreed that an episode/incident occurred. He denied inappropriate conduct.
The Plaintiff
227 The plaintiff attended a meeting in Geelong, having travelled there in a work car. When she returned to the location at 5.45 pm, Mr Pettingill was in the garage. He was viciously angry – screaming at her that she was selfish and he needed the car.[176]
[176]T110
228 The plaintiff told him she could not get back earlier. He told her he had rung Geelong and he knew the meeting finished at 3.00pm. She explained she had stayed and had a cup of tea. This nitpicking by Mr Pettingill continued all the time.[177]
[177]T111
229 In cross-examination, the plaintiff confirmed that Mr Pettingill had not mentioned to her earlier that day that he needed the car and, in any event, there is more than one work car.[178]
[178]T587
Mr Pettingill
230 Mr Pettingill could not recall why he needed the car but it must have been important. He had asked the plaintiff to leave the meeting early. There was definitely no yelling or screaming when the plaintiff returned to the location. He could recall he was upset because it must have been something important – “that meant not being as jovial and cordial as [he] normally was and the plaintiff was probably feeling guilty about what she had done not coming back at the right time”.[179]
[179]T1000
231 In cross-examination, Mr Pettingill could recall being upset. The person with whom he is upset would not always know he was upset. So if he is upset he “is internalising”. He assumed it was clear he was upset because the plaintiff was apologising all the time – “[he] supposed [he] was not smiling, not chatty”.[180]
ALLEGATION 2(q) – Attacking the Plaintiff within days of her returning to work from leave, leading to exchange of emails from 7 to 17 November 2003
Emails were part of an appropriate and reasonable management process.
[180]T1341
ALLEGATION 2(i) – Emails re Daniel Oakley and others
This was a management issue. Mr Pettingill identified serious errors and omissions on the plaintiff’s files (cf email 7 November 2003 and cf Defendant’s Response to Allegation 2(q) hereof).
232 The plaintiff was sent two emails by Mr Pettingill to address issues in her files – the first on 7 November 2003 and a follow-up on 12 November 2003 when she was asked to forward written request by 4.00pm on 13 November 2003.
233 Mr Pettingill agreed the plaintiff had returned from sick leave four days earlier.
The Plaintiff
234 In his 12 November 2003 email, Mr Pettingill mentioned that a client, Daniel Oakley, had not been assessed, yet an order was given by the magistrate. The plaintiff explained the client was already on an order and the magistrate asked her if he was suitable for the order to be extended.[181] The plaintiff thought this criticism by Mr Pettingill was entirely unreasonable.[182]
[181]T114
[182]T115
235 The plaintiff replied by email at 5.21pm on 13 November 2003, explaining her computer breakdown and having to help with other workers’ clients. She thought this was a fairly detailed reply but Mr Pettingill said it was not good enough and that he was going to reply by email and she would not like it because “it was going to absolutely punch her between the eyes” and she should then think about her work. He said she should think about whether she would stay or leave.[183]
[183]T116
236 The plaintiff tried to address each one of the complaints and she did so comprehensively. She thought she had given a fairly detailed reply and Mr Pettingill, without explanation, said her reply was not good enough.[184]
[184]T116
237 The plaintiff then lodged a grievance in which she referred to his comment that his email would punch her between the eyes and she would not like what she saw. She described she “clearly felt bullied, intimidated and harassed”. She noted she felt intimidated and bullied by Mr Pettingill when he first relocated to Warrnambool and the outcome of this was she took sick leave.[185]
[185]DCB 174
238 The straw that broke the camel’s back was the “punch [her] between the eyes comment”.[186] The plaintiff thought this treatment was unfair and lodged a grievance. It was not just what Mr Pettingill had said, it was the way he said it.[187]
[186]T144
[187]T117
239 Mr Pettingill emailed the plaintiff on Friday 14 November 2003 at 9.50am replying to her 12 November 2003 email. The plaintiff read his email on Monday 17 November 2003. She rang HR on 17 November 2003 about lodging a grievance, which she lodged on the Monday.[188]
[188]T291
240 The plaintiff told Mr Pettingill on the Monday that she had lodged the grievance. She took Mr Gaut to a meeting with him that day because HR suggested she not speak to Mr Pettingill by herself.[189]
[189]T292
241 The plaintiff agreed that in that document she did not go into a great deal about early instances of yelling and harassing.[190]
[190]T199
242 The plaintiff agreed she submitted two general grievances – the first on 19 November 2003 and the second on 21 January 2004 because she was upset and thought the UPP was retaliatory action to her first grievance.[191]
[191]T201
243 At the time of the grievance, the plaintiff had not been put on an UPP; there had been no clear discussion with her at all in that regard. She first saw the UPP document after the she lodged her first grievance.[192]
[192]T195
244 The plaintiff thought Mr Pettingill’s email to Mr Randla was written on 17 November 2003 and backdated to the 14th before she had lodged the grievance.[193]
[193]T202
Mr Pettingill
245 Most of the plaintiff’s ten or eleven files had serious problems. The arrangement for her to go her own way did not work.[194] He sent her an email on her return from holidays[195] and asked if she could fix up the issues and report to him.
[194]T1008
[195]T1362, Mr Pettingill agreed the plaintiff had returned from sick leave
246 Mr Pettingill explained in some detail the problems with various files in his email of 7 November 2003. There was a lack of file notes as to the offender’s current situation and files were not in the drawer or on the hanger.[196] In his second email on 12 November 2003, he mentioned the lack of case notes and an assessment document on the Oakley file.[197]
[196]T1013
[197]T1017
247 Following the plaintiff’s response on 13 November 2003, Mr Pettingill still had issues about the file management and the plaintiff’s organisational skills, so the following day he prepared an email which he sent at 9.51am asking her to see him. [198]
[198]T1021
248 The matters raised were very, very serious and damning evidence of lack of file management. He knew the plaintiff would be upset by the email and went to her office and said he was about to send it and for her not to worry too much about it as they would discuss it on Monday. The plaintiff said she could get a job elsewhere and he suggested maybe she should think about that and they would also discuss that issue on Monday. [199]
[199]T1023
249 In his response email, Mr Pettingill noted that he did not believe the plaintiff’s excuse that she had an excessive workload. He thought there were poor organisational skills which could lead to double handling. He asked her to consider the contents of his email and then meet with him on Monday morning. He advised he preferred she did not discuss the matter with staff at the office.[200]
[200]DCB157
250 Mr Pettingill noted he had always made a point not to give people bad news on a Friday where he can so they do not mull over it on the weekend.[201]
[201]T1025
251 Mr Pettingill was not prepared to talk to the plaintiff when she came to his office with Mr Gaut on the Monday as he felt this was escalating the issue.[202]
[202]T1028
252 In cross-examination, Mr Pettingill confirmed some of the issues detailed in the emails were serious. He denied the plaintiff addressed each of the issues in her response.[203] His concern was the ongoing failure to have file notes and a range of things. Some issues were not a “hangable offence” but they were procedures that need to be followed.[204]
[837]T899
1075 Dr Kay very much doubted that the plaintiff would be able to increase her hours in her current job if the matter is resolved. He thought she has a chronic disorder of inability to cope with the stresses of bullying in the workplace over a long period of time, and he considered her several attempts to recover with assistance from Mr Kingsley and himself had not been fully successful.[838]
[838]T899
1076 Dr Kay noted the plaintiff had tried to work at MIND and then WRAD, and that was certainly a “come-down” from the previous level of her professional work, noting that she dealt with challenging clients in her Corrections jobs quite well.[839]
[839]T899
1077 Aropax is presently being prescribed and widely used as an SSRI-type of anti-depressant. It is also indicated for a panic disorder, although that is not a prime issue for the plaintiff. She did wean herself off it at one stage, but then it was recommended she go back on it. When the dosage was increased to 40 milligrams there were unacceptable side-effects, hence the dosage was reduced to 20 milligrams. [840]
[840]T900
1078 Dr Kay’s recollection was the original plan was for Ms Skilbeck from CRS to be involved in the plaintiff’s return to work. It was concluded that the plaintiff’s work environment precipitated distressing symptoms. So, because the plaintiff was then still very keen to go back to work, “we were all grateful” that someone came up with the Juvenile Justice job.[841]
[841]T901
1079 Dr Kay was surprised about the plaintiff’s decision to go back to her original job, as it was his understanding the alleged bully was still in the workplace and involved in Community Corrections. However, if it was a fait accompli, always his position was to be supportive, and he would be there whether or not the plaintiff went to work.
1080 Dr Kay did not think it was his place to say “that was outrageous.” If the plaintiff was willing to give it a try, he only had admiration and was going to be supportive of that.[842]
[842]T903
1081 Dr Kay described the lead up to the plaintiff going off work later in 2006 was “same old same old”. He noted Mr Pettingill was still making strange statements in January 2006. In Dr Kay’s view, “the workplace harassment, untenable behaviour, would cause a recurrence of the plaintiff’s distress, her anxiety symptoms, her panic attacks and she found it impossible to continue to work there. It was detrimental to her psychological health.”[843]
[843]T904
1082 Dr Kay was never contacted, either directly or through a rehabilitation service, to ask for his input into the plaintiff’s return to work.
1083 In cross-examination, Dr Kay confirmed that the plaintiff’s compensation claim for anxiety, stress and ongoing work-related matters was retrospectively lodged in January 2004.[844]
[844]T904
1084 Dr Kay agreed he had never really been given any history of the problems doing work as a SCCO and that the plaintiff had led him to believe that she was highly competent and able to do her job for fourteen years or so as the senior person. Her problems emanated specifically from behaviour by an individual in the workplace, noting there were initially some issues with Mr Murphy. Dr Kay agreed the plaintiff’s problems related to issues real or perceived dealing with her managers.[845]
[845]T906
1085 Dr Kay confirmed he was grateful of the offer of the Juvenile Justice job.[846] It was a temporary job, but there was a possibility of longer term employment, doing that sort of work at a different workplace. He thought the plaintiff seemed to be able to manage the previous psychological trauma and the anxiety once she was out of the workplace, and managed to make her best fist of a new position.[847]
[846]T906
[847]T907
1086 Dr Kay agreed there was a considerable amelioration of the plaintiff’s symptoms and mental condition between April and September 2005 when she was at Juvenile Justice. The work placement was successful and there was an agreement in June to increase her hours to full-time. He thought it seemed a great tragedy that the plaintiff actually had to go back to the old job where it all happened all over again as she was happy and enjoying Juvenile Justice.[848]
[848]T908
1087 On 22 August 2005, the plaintiff told Dr Kay that she was going back to her old job and the old manager would not be there. She requested an alternative duties certificate. He would have had misgivings about her return there. It was not as simple as the plaintiff saying “I’m going back to my old job because Philip isn’t there,” it was part of a return to work plan, and the plaintiff was keen to resume that job if the possibility of “the toxic environment” was improved, hence he was appropriately supportive.[849]
[849]T911
1088 As of August 2005, Dr Kay thought the plaintiff was demonstrating resilience and wishing to return to the work she was doing, and hopefully not in the same environment, because Mr Pettingill was not going to be there. He gave her a full medical clearance from 5 September 2005 to return to her old job.[850]
[850]T912
1089 There was some confusion about entries in Dr Kay’s clinical notes in the period Ms Shepherd was the plaintiff’s manager.
1090 On 7 October 2005, Dr Kay noted a good working relationship and then on 20 January 2006, it was noted the manager chastised the plaintiff for the way in which she dealt with a client. “Back at the workplace. Phil is still making strange statements and Murray advising to document and notify seniors.” On 17 February 2006, the notes set out “Further unusual conversation with Phil.”[851] On 17 March 2006, the plaintiff “was still seeing Kingsley because Phil’s behaviour seemed ISQ.”
[851]T915
1091 Dr Kay was aware there was a return to work manager, Mr Hall, who was supposed to be in touch with him with certificates, but he did not hear from him, and he had no approaches from the defendant. Dr Kay did not go to the workplace himself, nor did he speak to Mr Pettingill.[852]
[852]T917
1092 Dr Kay agreed he had never referred the plaintiff to a psychiatrist, noting that management of depression and anxiety is well recognised as being largely in the domain of general practice. He did refer the plaintiff formally to Mr Kingsley on 15 December 2003.
1093 Dr Kay assumed there was nothing significant in the plaintiff’s grief reaction to the death of her son about which he did not have any recollection offhand.[853]
[853]T919
1094 Dr Kay could recall that staff shortages was part of one of the several issues that contributed to the plaintiff’s workplace stress, and that issue existed in 2000. [854] He did not know anything about a review or audits, nor did he know that the plaintiff had been invited to apply for the regional manager job. He did not make a note of any complaint about Mr Randla.
[854]T922
1095 Dr Kay only had a vague recollection of under-performance allegations, but no specific incident. He did not know about the meeting on 19 November 2003. If he had not written things down, he would not try and remember them.[855]
[855]T926
1096 Dr Kay confirmed he gave the plaintiff ordinary medical certificates from 19 November 2002 to 2 January 2004, including certificates for a skin and arm condition thought to be potentially carpal tunnel. He agreed he retrospectively provided WorkCover certificates backdated with the first attendance of 18 November 2002.[856]
[856]T931
1097 At the end of 2003, the plaintiff told Dr Kay him she had lodged a grievance and that she was subject of a workplace underperformance report. He understood there was a psychologist, Robyn Shackwell, involved around that time.
1098 Dr Kay first prescribed Aropax on 16 January 2004 in a 20mg dosage – a routine, regular dosage taken by ninety per cent of his patients.[857]
[857]T938
1099 Dr Kay confirmed the plaintiff said she was keen to increase to full-time work in June 2005. There had been the grievance hearing at that time, and a good outcome. She continued to have great support in her current workplace.[858]
[858]T939
1100 Dr Kay knew the plaintiff had been involved in Rotary from 2003, but he did not know of her involvement in the Wimmera Hearing. He thought she was a regular bike rider, but did not know when she stopped participating in the Great Victorian Bike Ride. He did not know about her harness racing interest. He could not remember the plaintiff talking about retiring at 54/11. He would have supported her finding alternative work.[859]
[859]T944
1101 By January 2008, the plaintiff told Dr Kay she was going to be working full time. By May that year, the plaintiff was only casual and not getting lots of work and there was an offer to do part time work at Juvenile Justice and then in September, further work at Richmond Fellowship.[860]
[860]T947
1102 In April 2010, the plaintiff was working full-time, five days a week, at WRAD. She was then planning a Tasmanian trip.[861]
[861]T948
1103 Dr Kay recalled the plaintiff managed working three days a week and when she extended that two extra days she found full-time work too stressful, even as a receptionist.[862]
[862]T949
1104 Dr Kay agreed that litigation was a considerable stressor in the plaintiff’s life for over three years. Once that stressor was removed, he was always quite optimistic of considerable improvement and hoped that would be the case, but it depended on the “degree of scarring”.[863]
[863]T950
1105 Dr Kay thought the plaintiff going to New Zealand was a terrific example of her trying to get on with her life instead of shrivelling up in a corner. He disagreed that once litigation was over, on balance, there would be considerable improvement and the plaintiff would not require Aropax.[864]
[864]T951
1106 In re‑examination, Dr Kay confirmed that the plaintiff would try and get on with her life, after the finalisation of her case and possibly seek some form of part-time employment, but he did not resile from his comment that chronic stress had been part of the deterioration from which he did not believe she would be ever fully recovered. There has never been any doubt in his mind as to the cause of the plaintiff’s stresses, being workplace bullying, the source of which was Mr Pettingill.[865]
[865]T952
Medico-legal evidence
1107 The plaintiff was examined for medico-legal purposes by psychiatrists, Dr Seward and Dr Epstein. There was no medical evidence relied upon by the defendant.
Dr Seward
1108 When Dr Louise Seward first examined the plaintiff on 2 March 2004, the plaintiff was off work. The plaintiff reported that she had not improved at all and continued to be quite depressed, housebound and anxious.
1109 The plaintiff gave a history of staff cuts and problems with a manager Mr Murphy whom she thought bullied her. The plaintiff acknowledged that when the location was reviewed, there was criticism of her work performance.
1110 The plaintiff told Dr Seward about the dinner and that soon after, Mr Pettingill was appointed to the location. When he arrived, he was dictating to everybody and he was determined he would be the plaintiff’s boss, although they were co seniors.
1111 The plaintiff described occasions when Mr Pettingill got very angry with her and she started crying. He did not respect her alliance with other staff and criticised her handling of paperwork and told her she was staff orientated. The plaintiff noticed her mood deteriorate and she was anxious and fearful about going to work.
1112 Mr Pettingill was then appointed manager and he became even more controlling, challenging the plaintiff’s actions.
1113 The plaintiff started to see a psychologist in 2002 which she found helpful but still she did not want to leave work even though she found it difficult. Mr Pettingill criticised her and wanted everything done his way. The plaintiff became depressed and anxious and developed insomnia and poor appetite.
1114 Things built up over the years to the point where the plaintiff felt she had to register a grievance about Mr Pettingill in November 2003. When she advised him of this course, he then put in a criticism of her performance. The plaintiff had to leave work that month. She was put on Aropax 40 milligrams a day and received counselling.
1115 In November 2003, the plaintiff received emails from Mr Pettingill querying the standard of her work. He did not accept her explanation and told her to contemplate her future.
1116 Following this exchange, the Regional Manager, Richard Randla, was involved and the plaintiff was subjected to further harassment from him and the training officer, Desi Poursanidis. The plaintiff continued to work for the next ten days but was then unable to continue.
1117 Dr Seward noted the plaintiff gave her story in great detail and it was very hard to pin her down to major issues. She was obviously distressed by the experience and intermittently wept through the interview. Her affect was depressed and her thought stream was slow.
1118 Content was focussed on numerous issues that had occurred at work and the plaintiff described a number of people harassing her and stated she had written evidence of unpleasant emails she had received from Mr Murphy. The plaintiff described chronic depressive symptoms but had not been suicidal. Insight was present and she had agreed to take antidepressant medication and was seeing a counsellor.
1119 Dr Seward then diagnosed an adjustment disorder with depressed and anxious mood, noting the plaintiff was not well stabilised and it was only three months since she had left work. She told Dr Seward she was barely managing with day to day household activities and had lost interest. She was not walking as normal and had not been bike riding. Her husband was frustrated with her mood.
1120 Dr Seward concluded the plaintiff had developed an adjustment disorder with depressed and anxious mood in response to a series of work stresses, the first being high workload which was dealt with to some extent by an increase in staff levels. The plaintiff readily acknowledged she got behind with her paperwork but there were no other problems with her performance. She did not seek to be manager because she preferred client and staff based activities.
1121 Dr Seward noted the plaintiff’s perception of Mr Pettingill was that he picked on her for anything she did and spoke to her in a derogatory manner and as a result, the plaintiff became extremely anxious about going to work. Dr Seward noted the plaintiff was a woman of high standards who took pride in her work and found that situation extremely difficult.
1122 In addition to excessive workload, Dr Seward thought the other major stressor was harassment from superiors which did not fit within a justified managerial style. She then thought the plaintiff was incapable of performing her previous occupation.
1123 On re examination in August 2007, Dr Seward noted that after sixteen months off work with the defendant, the plaintiff returned to work initially in Juvenile Justice for nine months which went very well. The plaintiff was then returned to the defendant as she had coped with that earlier return. In the first six months when Mr Pettingill was moved aside, the plaintiff did not have to deal directly with him.
1124 In the first three months back at work, the plaintiff felt isolated and people were fearful of communicating with her. She mentioned the flowers incident.
1125 The plaintiff stated that initially, Ms Shepherd was a good buffer zone between her, Mr Pettingill and other staff. However, Mr Pettingill resumed being the plaintiff’s manager and within two weeks, things deteriorated and he was back to his old behaviour, being polite and pleasant one day and the next day yelling and screaming at her to come into his office. He would follow her around the office watching what she was doing. He reprimanded her for spending workplace time on personal matters.
1126 The plaintiff would frequently break down in tears when Mr Pettingill started speaking to her and she found it hard to think rationally. As her mood was deteriorating, she ultimately decided to take a period of leave, ending up taking a combination of sick, recreation and long service leave from the end of October 2006.
1127 The plaintiff reported a couple of incidents in that month which tipped the balance for her and then she decided to take leave. These behaviours precipitating her leave were the same that precipitated her original application for WorkCover due to harassment and bullying by Mr Pettingill.
1128 The plaintiff was puzzled and bewildered that Mr Pettingill would continue in the workplace after causing so much interpersonal conflict and difficulties. She knew a number of staff members had to leave because of him.
1129 The plaintiff’s mood had not been good since she left work in October 2006. Recently the frequency of counselling increased to weekly and she was advised she should restart antidepressant medication.
1130 On psychiatric examination, the plaintiff was less anxious and did not give as much detail as on the initial examination. Her affect was depressed and tearful, thought stream was normal and content was focussed on the difficulties, particularly with Mr Pettingill. The plaintiff reported a recurrence of depressive symptoms shortly after she began working with him, which increased over six months. She then reported those chronic depressive symptoms had persisted and she had become passively suicidal. Insight was present and the plaintiff was now more accepting of resuming antidepressant medication.
1131 Dr Seward thought the condition was well stabilised with the original injury in 2004. She noted the plaintiff had been unable to work in any capacity since October 2006 and was now anxious, socially withdrawn and worried about any job with responsibility.
1132 Dr Seward thought the plaintiff continued to suffer from an adjustment disorder with depressed and anxious mood, in response to re experiencing workplace bullying after she returned to work after the initial incident in 2004. Her condition had relapsed and was now of moderate intensity.
1133 Dr Seward noted that the plaintiff initially had a successful return to work until she went back in the same department with the same manager and within a couple of weeks, the difficulties occurred with harassment and bullying and she was unable to cope and ultimately had to stop work again, taking combined leave.
1134 On this later examination, the plaintiff’s depression was worse with re experiencing the harassment and failure to return to work. Dr Seward noted the plaintiff presented as particularly committed and wanting to work and was frustrated she failed to cope with the return to work. She reported her mood was worse than when she previously stopped work as she had now lost all hope of holding a responsible position and she did not feel fit to work at present in any capacity.
1135 When the plaintiff was fit to return to work, the plaintiff did not feel she would be able to cope with a high level of responsibility and would need to work part time and in a clerical or receptionist position without a lot of responsibility. The plaintiff could not envisage attempting a return to pre injury duties again largely because of her recent failed attempt to return to work. Given her level of depression, Dr Seward thought the plaintiff was not fit to work in any capacity.
Dr Epstein
1136 Dr Michael Epstein first saw the plaintiff on 30 August 2007. She then told him from June 2000 she had been subjected to harassment and bullying perpetrated by management. She gave a history of her claim, time off work until 1 October 2006 and retirement officially on 22 August 2007.
1137 The plaintiff told Dr Epstein she saw a solicitor about problems with Mr Murphy in 2000 and 2001.
1138 The plaintiff reported she had had difficulty working with a new CCO Mr Pettingill appointed in September 2002 who from the beginning acted as her superior, with the plaintiff unable to question or negotiate any of his requests and she felt constantly accountable to him. She was disappointed when he was appointed her manager in December 2002.
1139 At that time, the plaintiff thought she suffered from possible left carpal tunnel syndrome and saw Dr Kay who diagnosed her as suffering from anxiety. She was given time off work which eventually totalled three months and was prescribed Aropax with some benefit, but she did not then make a Work Cover claim.
1140 On her return to work in February 2003, the plaintiff’s problems with Mr Pettingill continued. In May 2003, she went on a total of eight weeks’ leave during which time she got increasingly miserable and upset and was referred to psychologist, Murray Kingsley.
1141 When the plaintiff resumed duties in July 2003, she had a meeting with Mr Pettingill who had been through her files during her absence. She was very upset by his suggestion that she was unable to coach and mentor.
1142 The plaintiff had a further week off in mid October 2003 because of her distress, resuming work on 29 October. At that stage, Mr Pettingill had gone through her files again and requested she address some of the issues and he had expressed his disappointment she had let things fall down.
1143 The plaintiff’s response by email to Mr Pettingill on 13 November 2003 was not accepted by him and the following day she was allegedly threatened by him to contemplate her future with the defendant. The plaintiff returned to work on 16 November 2003 and went with the union representative to meet with Mr Pettingill.
1144 The plaintiff proposed to invoke the grievance procedure. Mr Pettingill would not see her with the union representative. The plaintiff subsequently had a meeting with the training manager and a regional manager who did not accept her grievance and advised that her manager’s behaviour was incorrect.
1145 The plaintiff told Dr Epstein of the meeting on 19 November with Mr Pettingill and the training officer where she was told that she needed training to update her knowledge and to adapt to the swift changes that were happening in Melbourne. The plaintiff then alleged she was verbally abused by Mr Pettingill and the training officer sat quietly and did not intervene and the plaintiff became distressed and tearful.
1146 The plaintiff attended work the following Monday but left feeling unwell at 8.45. She went to work the next day and Mr Pettingill was angry to see her and requested she go home. A few days later he allegedly made very derogatory comments to her.
1147 The plaintiff saw her doctor on 25 November 2003 and was placed on sick leave until the end of February 2004. She recommenced on Aropax and continued to see Mr Kingsley. The plaintiff lodged a WorkCover claim that was successful.
1148 There were a number of return to work meetings before the plaintiff ultimately returned to work in Juvenile Justice and then returned to work with Adult Offenders in September 2005 when Ms Shepherd was the acting manager and things went well for six months.
1149 In March 2006, Mr Pettingill returned to his position and things deteriorated fairly quickly, with continuing conflict which the plaintiff found increasingly upsetting. She continued to feel bullied and harassed and was no longer allowed out of the office. She thought Mr Pettingill was jealous because she was well respected by colleagues.
1150 In late June 2006, the plaintiff had five weeks off on rec leave. She was abused by Mr Pettingill when she called in to drop in a WorkCover certificate. When the plaintiff returned to work in July 2006, he was again abusive and made it clear he did not want her to be there.
1151 The plaintiff had a meeting with Department of Human Resources who investigated her complaint and was initially told she would get the results but in January 2007 she was told the result would not be forthcoming. In the meantime, the plaintiff was struggling to cope and on 1 October 2006, she saw Dr Kay who put her off work on sick leave. The plaintiff officially retired on 22 August 2007.
1152 On initial examination by Dr Epstein, the plaintiff’s affect was restricted and she appeared depressed and mildly anxious. There was no evidence of thought disorder or delusions or hallucinations.
1153 Dr Epstein thought the plaintiff had developed a chronic adjustment disorder with depressed mood and anxiety as a consequence of workplace harassment ongoing from 2000 till ceasing work. During that time, she was apparently subjected to harassment by the manager at Ballarat and subsequently Mr Pettingill.
1154 The plaintiff had experienced the death of her third son in November 1995 and had counselling and she felt she was able to cope with that and get on with her life, although Dr Epstein noted that clearly would always be a source of sadness.
1155 Dr Epstein thought the plaintiff’s current work capacity was nil and unlikely to improve in the near future and she was struggling to do housework. She lacked self confidence and self esteem. He did not think the plaintiff was fit for her previous work or any other suitable employment and would not benefit from any rehabilitation because of her psychiatric state.
1156 On re-examination in September 2010, the plaintiff advised her symptoms had not improved. In early to mid 2008 she began doing relieving work at the Richmond Fellowship, assisting people with mental illness. She found office politics exhausting and she was working between five to eight hour shifts once or twice a week.
1157 The plaintiff left that job when she obtained a further position at WRAD in January 2009 relieving for one of the two receptionists and in October 2009 she was asked to work two days a week and had done some additional relieving work.
1158 The plaintiff then continued to see Mr Kingsley and took 20 milligrams of Aropax a day.
1159 Dr Epstein thought that since the last examination, the plaintiff’s symptoms had improved to a limited extent. There were similar findings on mental state examination and Dr Epstein concluded the plaintiff continued to have symptoms of a stress breakdown manifested by a chronic adjustment disorder with depressed mood and anxiety with panic attacks, as a consequence of workplace harassment during her job as a SCCO with the defendant from 2000 until she ceased work.
1160 Dr Epstein thought the plaintiff was unlikely to be able to work full time. She certainly could not do a job involving more pressure and responsibility and she was unfit for her previous job.
1161 There was a further examination in April 2012. Since he had last seen the plaintiff, there had been no real change in the situation. She had continued to work at WRAD usually two days a week and occasionally three, but when she did she became excessively fatigued.
1162 On mental state examination, the plaintiff had an anxious manner. Her affect was restricted and she appeared depressed and anxious. There was no formal thought disorder or evidence of delusions. The content of her thinking was about her ongoing symptoms and the effect they had had on her life.
1163 Dr Epstein’s opinion remained unchanged over the three times he had seen the plaintiff, noting she had developed a stress breakdown in the context of work and that her current work capacity remained very limited. From a diagnostic view, he thought she had a chronic adjustment disorder with mixed and anxious and depressed mood and panic attacks, arising from the workplace injury. Her quality of life had diminished markedly, affecting her work capacity, relationships and recreational enjoyment.
1164 Dr Epstein considered the plaintiff was permanently unfit to return to her pre injury employment in any capacity. She did not have a capacity for suitable employment but was able to work part time in a much less demanding job and had continued to be able to do so. He thought her prognosis for improvement was poor and she required ongoing psychological treatment.
QUANTUM
1165 The plaintiff did not suffer any psychiatric problems prior to issues at work from late 2002. Whilst she experienced the normal grieving process on the death of her teenage son, she did not require any psychiatric treatment.
1166 The medical evidence is unanimous, from the plaintiff’s treaters and medico legal examiners, that she is suffering from an Adjustment Disorder (“the psychiatric condition”) as a result of workplace bullying whilst employed by the defendant.
1167 I am satisfied that the impact of the plaintiff’s psychiatric condition has been and will continue to be moderate, based on psychiatric opinion and her level of activity since the onset of the condition in 2002.
1168 The plaintiff has undergone counselling now for in excess of eleven years and continues to require a moderate dosage of anti depressant medication and will so in the future as Dr Kay and Dr Epstein suggested.
1169 The plaintiff’s psychiatric condition is not such however that Dr Kay has seen it necessary for her to undergo specialist psychiatric treatment, preferring to treat the plaintiff himself.
1170 Save for her attendance at work on a part time basis, the plaintiff is socially isolated and is no longer able to participate in a wide range of community activities she previously enjoyed in particular – Life Gift, Rotary, Wimmera Hearing.
1171 The plaintiff’s social and recreational life is also limited by her lack of confidence and low self esteem. She no longer enjoys camping at the beach and her stay there is now much shorter than in the past. Her social life is also significantly reduced, preferring to stay at home and not mixing with other people.
1172 Whilst submitted by counsel for the defendant the plaintiff’s role of secretary of the WHRC indicated an ability to continue in community activities, I accept that the WHRS role was not at all onerous. Further, the plaintiff’s involvement in the dispute about the use of the neighbouring block of land was not significant.
1173 The plaintiff’s evidence of her various difficulties was corroborated by her husband.
1174 In my view, the plaintiff’s psychiatric condition is long term and there is no indication it will resolve upon finalisation of litigation.
1175 Dr Epstein thought the plaintiff’s prognosis for improvement was poor and she required ongoing psychological treatment.
1176 Mr Kingsley took a more pessimistic view of the plaintiff’s prognosis in his viva voce evidence than that expressed in his reports. He concluded that even on resolution of her case, there was still the issue of the chronicity of her symptoms. He did not want to be hysterical, but he feared she would be prone to self harm on resolution of her case.
1177 Once the litigation had concluded, Dr Kay was always quite optimistic of considerable improvement and hoped that would be the case, but it depended on the “degree of scarring”.[866]
[866]T950
1178 Dr Seward’s view in this regard is now somewhat outdated.
1179 Counsel for the defendant, whilst not putting a figure on pain and suffering, submitted that the $200,000 suggested by counsel for the plaintiff was far too much for pain and suffering damages.[867]
[867]T1881
1180 It was submitted if that figure was not appropriate for a person who had the ability, putting aside the earnings, and the mental capacity and psychological strength to undertake working in a drug and alcohol centre, even as a receptionist, and to have done over the years community work and things of that nature.
1181 Whilst there is some merit in this submission when considering the plaintiff’s present work capacity, her ability to participate in the wide range of community activities she previously enjoyed has been significantly compromised by her psychiatric condition.
1182 Taking into account all the evidence, in my view an appropriate award of damages for pain and suffering and loss of enjoyment of life in this case is $125,000.
Pecuniary loss
1183 The plaintiff continues to work part time, five days a fortnight in reception at WRAD. Her claim for loss of earnings is on a partial basis.
1184 Ms Birmingham confirmed the difficulties the plaintiff has at work with loss of confidence in her own ability and the change in the plaintiff’s working capacity since they worked together before the plaintiff’s injury.
1185 Dr Epstein as of 2012 thought the plaintiff’s work capacity remained very limited and she was struggling to cope working more than 2 days a week.
1186 Dr Kay thought the plaintiff had a capacity to do part time work. However she found it stressful and put on a brave face.
1187 Mr Kingsley thought the plaintiff would be unable to work full time or work in any position of responsibility.
1188 Up to 1 February 2013, it was agreed between the parties that the past loss of earnings was $110,425 and that the weekly loss was $525.[868] From that date until 19 December 2013, there is further past loss of $24,150, making a total past loss of $134,575.
[868]T1879. There was no claim for past loss of $42,000 for 2003-2007 as detailed in the Particulars of Special Damage
1189 It was submitted on the defendant’s behalf that the plaintiff retired at fifty-five, thus there is no future loss of income. Alternatively, she would not have worked past 60 and that is her current age. Thus, on that basis, there is also no loss.
1190 In my view however, the plaintiff resigned prematurely from the defendant’s employ and had she not suffered injury, the likelihood is that she would have worked until sixty-three as she stated in re examination thus receiving the maximum benefits to which she was entitled.[869]
[869]T1990
1191 Whilst the plaintiff discussed with Mr Kingsley in 2004, that she and her husband were considering retirement and going on a caravan holiday, such a plan was based on the plaintiff’s ill health at the time and her belief that she was not fit to return to work. Had she not been ill, the plaintiff was not considering early retirement. She is still a member of the workforce at sixty-one.
1192 Given it is less than two years until the plaintiff reaches sixty-three (September 2015) I have chosen not to use the suggested multiplier of 226.3 and instead rely on the agreed weekly wage of $525 with some discount.
1193 On that basis, the plaintiff’s future loss is $54,600 rounded down to $50,000. Taking a similar approach to superannuation entitlements agreed at $47 per week, two years is $4,888, rounded down to $4,000.
1194 Accordingly, there will be judgment for the plaintiff in the sum of:
Pain and suffering – $125,000.00
Past economic loss – $134,575.00
Future economic loss – $54,000.00
__________
Total: $313,575.00
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APPENDIX 1
(Tendered hand-drawn diagram of the plan of the office at Lava Street in the first period)
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