Edgar v Norton Rose Fulbright Australia Services Pty Ltd

[2022] FedCFamC2G 449

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

Edgar v Norton Rose Fulbright Australia Services Pty Ltd [2022] FedCFamC2G 449

File number:

SYG 1937 of 2018

Judgment of:

JUDGE CAMERON

Date of judgment:

9 June 2022

Catchwords:

INDUSTRIAL LAW – Complaint or inquiry in relation to employment – nature of a “complaint” under s.341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – whether complaints of contraventions of the Work Health and Safety Act 2011 (NSW) or of the anti-bullying provision of the Fair Work Act 2009 (Cth) can ground a “complaint” under s.341(1)(c)(ii) of the Fair Work Act – complaint must seek an industrial outcome and not be mere querulousness – complaint must be made to a person or body with power or authority to address it, even if not finally.

INDUSTRIAL LAW – Adverse action – decision to take adverse action – whether more than one person may be a decision-maker – whether one person affects a second person’s decision-making to such an extent that they are also a decision-maker.

INDUSTRIAL LAW – Adverse action – dismissal – assessment of compensation – Court can have regard to employer’s entitlement to terminate a contract of employment in the manner most beneficial to it.

WORDS AND PHRASES – “Complaint”.  

Legislation:

Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 360, 361, 545, 789FC, 789FD, 789FF, 793

Work Health and Safety Act 2011 (NSW) s 19

Cases cited:

Alam v National Australia Bank Ltd (2021) 310 IR 7

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46

PIA Mortgage Services Pty Ltd and Another v King (2020) 274 FCR 225

Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421

Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285

Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at 475

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 189

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111

Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482

BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97

Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122

Klein v Metropolitan Fire and Emergency Board (2015) 208 FCR 178

Lamont v University of Queensland (No 2) [2020] FCA 720

Qantas Airways Ltd and Another v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463

Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Gibbs v Palmerston Town Council [1987] FCA 732

Construction, Forestry, Mining and Energy Union v Clermont Coal (2015) 253 IR 166

Ibarra Campoverde v Regional Health Care Group Pty Ltd [2017] FCCA 1502

James Cook University v Ridd (2020) 278 FCR 566

Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334

Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217

Bostik (Australia) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20

Dafallah v Fair Work Commission (2014) 225 FCR 559

Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448

Division:

Fair Work Division

Number of paragraphs:

811

Date of hearing:

21-25, 28-30 September 2020  
1-2 October 2020
30 November 2020
1-3, 17-18 December 2020

Place:

Sydney

Counsel for the Applicant:

Ms K. Edwards and Mr S. McIntosh

Solicitor for the Applicant:

Harmers Workplace

Counsel for the Respondents:

Mr M. R. Elliott SC, Mr J. Darams and Mr C. Street

Solicitor for the Respondents:

Lander & Rogers

ORDERS

SYG 1937 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SUET YING (ALICE) EDGAR

Applicant

AND:

NORTON ROSE FULBRIGHT AUSTRALIA SERVICES PTY LTD

First Respondent

ALEX BOXSELL

Second Respondent

LEX MELZER

Third Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	9 JUNE 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:  The form of the order is subject to the entry in the Court’s records.

Note:  The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION	[1]
PLEADINGS	[3]
Statement of Claim	[3]
Adverse action – because of exercise of workplace right	[4]
Adverse action – because of applicant’s sex	[7]
Accessories	[11]
Loss and Damage	[14]
Defence	[17]
Adverse Action	[18]
Sex discrimination	[24]
LEGISLATION	[25]
APPLICANT’S EVIDENCE	[26]
Alice Edgar	[26]
Digital marketing manager position - 5 December 2016	[26]
Duties and responsibilities	[28]
Work successes and goals	[32]
Marketing team	[35]
Mr Boxsell’s conduct	[36]
March 2017  – “Do your female magic thing”	[37]
Mid-2017 – “Once you have children, you will not have time for that”	[39]
September, October 2017 – “aren’t wives supposed to stay in the kitchen”	[40]
2017 – seating plan	[41]
31 March 2017 – “If you're so busy then you shouldn’t have time to go and have lunch”	[42]
1 November 2017 – “You are not fit to be a manager”	[45]
29 June 2017 - “disrespectful and unprofessional”	[46]
28 July 2017 – walking out of meeting – “emotional”	[48]
11 August 2017 – Complaint to Mr Melzer	[51]
2017 – health issues	[53]
2017 – Speaking with colleagues	[55]
Mr Pratap	[55]
Ms Catalina Panoiu	[58]
14 February 2018 – mid-year performance review	[59]
14 February 2018 – discussions with Mr Hall	[73]
16 February 2018 – meeting with Ms O’Reilly	[74]
17 February 2021 – health and medical advice	[75]
19 February 2018 – follow up meeting and complaint to Mr Boxsell	[76]
20 February 2018 – meeting with and complaint to Ms Wetherall	[82]
21 February 2018 – conversations with Ms Wetherall	[86]
22 February 2018 – meeting with Ms Wetherall	[89]
27 February 2018 – meeting with Ms Williams and third panic attack	[91]
28 February 2018 – follow up meeting	[95]
Discussion regarding Mr Boxsell	[96]
Key deliverables	[98]
After the meeting	[100]
On or about 1 March 2018 – complaint to Ms Wetherall	[105]
5 March 2018	[111]
Complaint to Ms Wetherall and Ms Williams	[111]
Meeting with Mr Melzer	[112]
6 March 2018 – Ms Edgar’s suspension	[117]
Disparaging comments made about Ms Edgar whilst on suspension	[124]
13 March 2018 – formal complaint and investigation	[125]
Outcome of investigation – show-cause meeting	[128]
9 May 2018 – Ms Edgar’s termination	[136]
Disparaging comments	[140]
Health	[142]
Personal impacts	[143]
Professional impact	[144]
Employment after termination	[145]
Decision not to pursue further employment options	[145]
Consultancy business	[147]
Damages and loss	[152]
David Edgar	[154]
Initial impression of workplace culture in the marketing team	[157]
Praise for work	[158]
Negative workplace culture and raising concerns in the marketing team	[159]
Impact on Ms Edgar’s health	[165]
14 February 2018 – Ms Edgar’s Mid-year Review	[166]
19 February 2018 – Ms Edgar’s follow up meeting after Mid-year Review	[168]
Subsequent impact on Ms Edgar’s health	[170]
Ms Edgar’s meetings with Ms Wetherall, Human Resources Manager	[171]
28 February 2018 – Ms Edgar’s meeting with Ms O’Reilly	[173]
5 March 2018 – foreshadowing formal complaint	[175]
Further impact on health	[178]
Disparaging comments	[180]
13 March 2018 – Ms Edgar’s formal complaint	[181]
21 March 2018 – Ms Edgar’s interview with Mr Cross regarding formal complaint	[182]
5 April 2018 – outcome of investigation advised	[183]
Ongoing health repercussions, damage to reputation and self-esteem	[184]
Impact on confidence and building her business	[186]
Ailsa Veiszadeh	[190]
Ms Edgar’s working style	[191]
Ms Edgar disclosed difficulties in her team	[195]
Ms Edgar no longer working at Norton Rose	[196]
Caroline Kidd	[199]
Relationship with Ms Edgar	[200]
Ms Edgar’s working relationship with Mr Boxsell	[201]
Chris Mendoza	[203]
Ms Edgar’s relationship with Mr Boxsell	[205]
Ms Edgar’s response to the mid-year performance review.	[207]
Cara Dickman	[209]
Dr Clayton Smith	[210]
Peter Driscoll	[245]
Chris Katehos	[246]
Report dated 23 September 2020	[247]
Report dated 19 November 2020	[252]
Introduction	[252]
Summary of calculation	[253]
Underlying facts and assumptions	[254]
Period of Loss	[255]
Assumptions as to earnings had Ms Edgar remained at NRFA Services	[257]
Assumptions as to past and future earnings	[259]
Past economic loss calculations and assumptions	[260]
Future economic loss calculations and assumptions	[262]
Superannuation	[267]
Taxation	[269]
RESPONDENTS’ EVIDENCE	[270]
Alex Boxsell	[270]
Digital Marketing Manager Position	[272]
Duties and responsibilities	[274]
Work successes and goals	[277]
Marketing team	[278]
Mr Boxsell’s conduct	[281]
“Do your female magic thing”	[282]
“Once you have children, you will not have time for that”	[284]
“Aren’t wives supposed to stay in the kitchen?”	[285]
Seating plan	[287]
Lunch breaks	[288]
“You negatively impact the team dynamic.  You are not fit to be a manager”	[290]
4am email correspondence on 29 June 2017	[291]
“I just want someone who says yes sir”	[297]
Discussion about typographical errors – 28 July 2017	[299]
Alleged conversation in mid-August 2017	[304]
Refusing to dismiss her concerns	[305]
Sick leave	[306]
Evidence of good relationship	[308]
Ms Edgar’s performance	[309]
14 February 2018 – Mid-year Review	[313]
19 February 2018 – follow up meeting	[325]
After the Mid-year Review	[331]
Lex Melzer	[337]
11 August 2017 – discussion with Ms Edgar	[342]
10 November 2017 – Ms Edgar’s disparaging comments to Ms Panoiu about Mr Boxsell	[349]
5 March 2018 – meeting with Ms Edgar	[360]
6 March 2018	[364]
Ms Edgar’s suspension	[364]
Alleged disparaging comments about Ms Edgar	[365]
Ms Edgar’s inaccurate statements about work	[368]
Ms Edgar’s inaccurate statements about work culture	[369]
Kathryn O’Reilly	[370]
Ms Edgar’s performance in her role	[373]
14 February 2018 – mid-year performance review	[374]
16 February 2018 – meeting with Ms Edwards	[392]
19 February 2018 – follow up meeting	[393]
20 February 2018 – discussion with Ms Edgar	[397]
22 February 2018 – meeting with Mr Boxsell, Ms Wetherall and Ms Williams	[398]
27 February 2018 – preparation for 28 February 2018 meeting with Ms Edgar	[399]
28 February 2018 – meeting with Ms Edgar	[401]
1 March 2018 – meeting with Ms Edgar	[404]
5 March 2018 – discussions with Ms Edgar	[406]
Recruitment of replacement	[408]
Bronwen Williams	[409]
20 February 2018	[410]
27 February 2018	[411]
9:00am telephone call with Ms Edgar	[411]
Between 11:00am and 2:00pm – conversation with Ms Edgar	[414]
Between 2:03pm and 2:29pm – emails with Ms Edgar	[415]
3:30pm – meeting with Ms Edgar	[416]
28 February 2018	[419]
10:15am – meeting with Ms Edgar	[419]
11:00am – meeting with Mr Boxsell	[420]
3:00pm – meeting with Ms Edgar and Ms O’Reilly	[421]
5:20pm – discussion with Ms Edgar	[424]
1 March 2018 – emails with Ms Edgar	[427]
2 March 2018 – meeting with Ms Wetherall and Mr Cross	[430]
5 March 2018 – formal complaint foreshadowed	[432]
6 March 2018 – Ms Edgar’s suspension	[437]
5 April 2018 – outcome of investigation advised	[440]
9 May 2018 – Ms Edgar’s termination	[445]
Kathleen Wetherall	[446]
20 February 2018 – meeting with Ms Edgar	[447]
21 February 2018 – meetings with Ms Edgar	[456]
22 February 2020 – meeting with Ms Edgar	[460]
1 March 2018 – meeting with Ms Edgar	[463]
2 March 2018 – meeting with Ms Williams and Mr Cross	[467]
5 March 2018 – formal complaint foreshadowed	[468]
6 March 2018 – Ms Edgar’s suspension	[471]
Complaint investigation process	[475]
Outcome of investigation advised	[478]
Future earnings	[479]
Lauren O’Rourke	[480]
6 and 13 March 2018 – Ms Edgar’s formal complaint	[481]
26 March 2018 – outcome of investigation	[485]
Steps following the investigation	[490]
5 April 2018 – show-cause meeting	[495]
9 April 2018 – response to show-cause letter	[499]
9 May 2018 – Ms Edgar’s termination	[504]
James Morris	[509]
Sean Pratap	[512]
E-Commerce	[515]
Ms Edgar’s recruitment	[516]
First performance review	[519]
Email of 28 July 2017	[522]
Marketing Automation Project	[523]
Parker Project	[526]
Telephone conversations with Ms Edgar	[529]
Performance review	[531]
John (“Nick”) Abrahams	[534]
Parker the privacy chatbot	[535]
Adam Hall	[540]
Discussions about Ms Edgar’s mid-year review	[542]
Lunch with Ms Edgar while suspended	[544]
Discussions regarding Jason Nguyen playing video games	[546]
Other matters	[547]
Wayne Spanner	[548]
Emma Keith	[551]
Shamim Razavi	[554]
David Cross	[556]
Initial involvement in matters involving Ms Edgar	[557]
Conducting the investigation	[561]
Dr Kipling Walker	[575]
John Temple-Cole	[581]
Report 29 October 2020	[582]
Comments on Mr Katehos’s report of 23 September 2020	[583]
Earnings if Ms Edgar had remained at NRFA Services / But For Earnings	[583]
Actual Earnings/Edgar Digital	[584]
Discount Rate	[587]
Discount date	[588]
Loss of superannuation benefits	[589]
Interest on past losses	[590]
Additional income tax	[591]
Mr Temple-Cole’s calculations	[592]
Approach	[592]
Assumptions	[593]
Calculations	[595]
CONSIDERATION	[604]
Applicant’s case	[604]
Conduct in 2017 and on 14 February 2018	[605]
Complaints on 11 August 2017 and in 2018	[609]
Credibility of witnesses	[617]
Applicant’s witnesses	[618]
Ms Edgar	[618]
Instant messenger exchange with Ms Panoiu – 10 November 2017	[619]
Mid-year Review – 14 February 2018	[623]
Follow-up meeting – 19 February 2018	[625]
Meeting with Ms Wetherall – 20 February 2018	[626]
Meetings with Ms Wetherall – 21 February 2018	[629]
Meeting with Ms Wetherall – 22 February 2018	[635]
Conversations with Ms Williams – 27 February 2018	[641]
Meeting with Ms O’Reilly and Ms Williams – 28 February 2018	[650]
Email from Ms Williams – 1 March 2018	[655]
Meeting with Ms Wetherall – 1 March 2018	[657]
Meeting with Mr Melzer – 5 March 2018	[661]
Meeting with Ms Wetherall and Ms Williams – 6 March 2018	[669]
Meeting with Mr Cross – 21 March 2018	[672]
Other matters	[676]
Respondents’ witnesses	[678]
Mr Boxsell	[678]
Mr Pratap	[681]
Mr Melzer	[683]
Ms O’Reilly	[691]
Ms Williams	[695]
Ms Wetherall	[697]
Ms O’Rourke	[699]
Mr Cross	[705]
Mr Hall	[719]
ADVERSE ACTION BECAUSE OF APPLICANT’S SEX?	[724]
ADVERSE ACTION BECAUSE OF EXERCISE OF WORKPLACE RIGHT?	[728]
Discussion	[734]
Was there a “complaint”?	[734]
Was Ms Edgar “able” to make the complaints?	[738]
NRFA Services’ written procedures	[743]
Safe Work Term	[746]
Work Health and Safety Act	[748]
The anti-bullying provisions of the FW Act	[755]
Was adverse action taken against Ms Edgar in 2018?	[761]
Threat of disciplinary action	[763]
Mr Melzer’s disparaging comments	[764]
Suspension	[767]
Dismissal	[777]
Statutory presumption – s.361 of the FW Act	[777]
Who made the decision to dismiss?	[780]
Reasons for dismissal	[785]
COMPENSATION	[792]
Psychiatric injury and impairment	[795]
Injury	[795]
Impairment	[801]
Loss and Damage	[803]
Unlawful dismissal	[807]
CONCLUSION	[811]

INTRODUCTION

1. The applicant, Ms Edgar, alleged that her former employer, the first respondent (“NRFA Services”), contravened ss.340 and 351 of the Fair Work Act 2009 (Cth) (“FW Act”). She also alleged that the second respondent, Mr Boxsell, and the third respondent, Mr Melzer, were employees of NRFA Services and accessories to its contraventions.[1]  Mr Boxsell was NRFA Services’ head of digital content and campaigns and Mr Melzer was NRFA Services’ chief marketing officer.

   [1] Third amended statement of claim (“SoC”) at [49]–[50]

2. NRFA Services provides secretarial and administrative services to Norton Rose Fulbright Australia, solicitors (“NRF Australia”).[2]

   PLEADINGS

   [2] Applicant’s court book (“ACB”) at 2763

   Statement of Claim

3. Ms Edgar alleged that her employment with NRFA Services as digital marketing manager commenced on 5 December 2016, that she was suspended on 6 March 2018 and that NRFA Services terminated her employment on 9 May 2018.[3]

   [3] SoC at [10]–[11]

   Adverse action – because of exercise of workplace right

4. Ms Edgar alleged that pursuant to s.341(1)(c)(ii) of the FW Act she had a workplace right to make complaints or inquiries regarding her employment with NRFA Services and that she had exercised this right by making the following five complaints or inquiries:[4]

   [4] SoC at [18]–[19]

   (a)first, on 11 August 2017, when Ms Edgar told Mr Melzer in his office that, “Mr Boxsell calls me disrespectful when I raise suggestions regarding improved processes” (“First Complaint”);[5]

   [5] SoC at [12]

   (b)second, on 19 February 2018, when Ms Edgar told Mr Boxsell in the presence of the senior marketing manager, Ms O’Reilly, that “your behaviour towards me during the mid-year review made me feel humiliated” (“Second Complaint”);[6]

   [6] SoC at [13]

   (c)third, on 20 February 2018, when Ms Edgar made a verbal complaint to the human resources manager, Ms Wetherall, that Mr Boxsell’s behaviour:[7]

   [7] SoC at [14]

   (i)“… towards [her] during the mid-year review made [her] feel humiliated”; and

   (ii)had been “overbearing and aggressive”; and

   that she had consequently been experiencing symptoms of “stress, anxiety, loss of sleep and heart palpitations” and had sought medical guidance and assistance (“Third Complaint”).  On 1 March 2018 Ms Edgar repeated the Third Complaint verbally and in an email, telling Ms Wetherall that her mental health had been impacted by Mr Boxsell’s behaviour in that:[8]

   (iii)the idea of working with him made her heart race and she was worried about seeing or confronting him;

   (iv)she felt unsafe in his presence; and

   (v)the environment he had created was one where she was unable to raise legitimate concerns.

   Based on Mr Boxsell’s behaviour at her Mid-year Review on 14 February 2018, she made a written request on 5 March 2018 that Ms Wetherall and the human resources adviser, Ms Williams, start a formal grievance procedure;[9]

   (d)fourth, on 13 March 2018, when Ms Edgar made a written complaint about Mr Boxsell and Mr Melzer (“Fourth Complaint”);[10] and

   (e)fifth, when between 10 October and 17 November 2017, Ms Edgar made a complaint to her colleague, Ms Catalina Panoiu, by “Lync” message, email and text message, about Mr Boxsell’s alleged bullying, intimidating and discriminatory practices (“Complaints to Ms Panoiu”).[11]

   [8] SoC at [15]

   [9] SoC at [16]

   [10] SoC at [17]

   [11] SoC at [12A]–[12B]

1. Ms Edgar alleged that, because she had made one or more of the alleged complaints or inquiries, NRFA Services took adverse action against her contrary to s.340 of the FW Act by:[12]

   [12] SoC at [21],[24],[27],[30],[33]

   (a)dismissing her:[13]

   (b)altering her position to her prejudice when Mr Melzer disparaged her in front of colleagues by telling Mr Hall, the director of client programs, and other senior managers that she: 

   (i)“was suspended because she made disparaging remarks”; and

   (ii)“was suspended because she was inattentive and performing poorly at work”;[14]

   which damaged her reputation as a competent employee and exposed her to “a reduction in the security of her current and future employment opportunities”;[15]

   (c)altering her position to her prejudice by suspending her from her employment on 6 March 2018 which exposed her to “a reduction in the security of her current and future employment opportunities”;[16] and

   (d)threatening her with disciplinary action when Mr Melzer told her on 5 March 2018 “I will go straight to HR and they will issue you with a final warning if you don’t apologise for your remarks about Mr Boxsell” which exposed her to “a reduction in the security of her current and future employment opportunities”.[17]

   [13] SoC at [20]

   [14] SoC at [22]

   [15] SoC at [23]

   [16] SoC at [25]–[26]

   [17] SoC at [28]–[29]

2. Ms Edgar abandoned an additional particular of adverse action to the effect that she had been injured in her employment or her position had been altered to her prejudice by being required to meet face-to-face with Mr Boxsell and that this had exposed her to an “an exacerbation of her disability”.[18]

   [18] SoC at [31]-[32]

   Adverse action – because of applicant’s sex

3. Ms Edgar alleged that her contract of employment with NRFA Services had contained the following express terms:[19]

   (a)Clause 4.1:  that as a professional, the Applicant was expected to contribute to the success of the First Respondent in areas set out in the job description.

   (b)Clause 13.1:  that the First Respondent would value the Applicant’s contributions and have an appropriate opportunity to discuss and access performance outcomes and professional development.

   (c)Clause 13.3:  that the First Respondent would provide the Applicant with detailed guidance and support in preparing the performance plan.

   (d)Clause 14.1:  that the First Respondent would provide the Applicant with a comprehensive framework for her to develop professional, technical and specialist skills.

   (e)Clause 14.2:  that the First Respondent would provide the Applicant with formal as well as informal learning opportunities including mentoring and on-the-job coaching.

   [19] SoC at [6]–[7]

4. Ms Edgar also alleged that her contract contained terms implied in fact and by law, that NRFA Services would: 

   … take reasonable care of the Applicant’s health and safety and provide for her, as far as practicable, a working environment which was safe…[20] (“Safe Work Term”)

   and

   … perform obligations and exercise rights and discretions under the Contract, including in relation to ensuring the safety and wellbeing of the applicant during the term of the Contract:

   (a)       in good faith;

   (b)      reasonably;

   (c)       with proper regard to the interests of the Applicant;

   (d)      in a matter that was not capricious, arbitrary or unreasonable; and

   (e)       fairly and impartially[21]. (“Good Faith Term”)

   [20] SoC at [8]

   [21] SoC at [9]

5. Ms Edgar alleged that Mr Boxsell had conducted himself as follows:[22]   

   [22] SoC at [44]

Date	Conduct
March 2017	Said to Ms Edgar: “Do your female magic thing”.[23]
31 March 2017	Told Ms Edgar: “If you’re so busy then you shouldn’t have time to go and have lunch”.[24]
29 June 2017	Called Ms Edgar “disrespectful”.[25]
24 [sic] July 2017	Walked out of a meeting with Ms Edgar at which she was discussing work.[26]
28 July 2017	Called Ms Edgar “emotional”.[27]
September or October 2017	Said to Ms Edgar in connection with her upcoming wedding: “Aren’t wives supposed to stay in the kitchen?”[28]
October 2017	Told Ms Edgar: “Ideally, I want someone who will just say ‘Yes, Sir!’ and do what I tell them to”.[29]
1 November 2017	Told Mr Edgar when she had been wearing headphones “I said good morning to you and you didn’t respond.  You negatively impact the team’s dynamic and you’re not fit to be a manager”.[30]
14 February 2018	Said to Ms Edgar: “You are not fit to be a manager”.[31]

[23] SoC at [44d]

[24] SoC at [44h]

[25] SoC at [44b]

[26] SoC at [44i]

[27] SoC at [44a]

[28] SoC at [44c]

[29] SoC at [44g]

[30] SoC at [44e]

[31] SoC at [44f]

1. Ms Edgar alleged that that conduct constituted adverse action contrary to s.351 of the FW Act[32] because it: 

   [32] SoC at [47]

   (a)altered her position to her prejudice in that it disregarded or was inconsistent with her contractual rights: 

   (i)under cls.4.1, 13.1 and the Good Faith Term, because calling her “emotional” on 28 July 2017 and walking out of a meeting on 24 July 2017 “stereotyped” her as being “incapable of making rational decisions or being able to fully participate in discussions about her role and responsibilities”;[33]

   (ii)under cls.4.1 and 13.1 and the Good Faith Term, because calling her “disrespectful” on 29 June 2017, telling her she was “not fit to be a manager” on 14 February 2018 and telling her “if you're so busy then you shouldn’t have time to go and have lunch” on 31 March 2017 prevented her from expressing her opinion without being “stereotyped” as “disobedient”;[34]

   (iii)because Mr Boxsell’s statements in October 2017 and on 1 November 2017 and his act of walking out of a meeting on 24 July 2017 was “unreasonable, unfair and capricious” conduct that breached the Good Faith and Safe Work terms;[35]

   (iv)because Mr Boxsell’s statement “aren’t wives supposed to stay in the kitchen” implied that she should not be a permanent full-time employee because of her sex and was contrary to the Safe Work Term in that it amounted to an unreasonable failure to create a workplace environment free from sexual discrimination;[36] and

   (v)because Mr Boxsell’s statement “do your female magic thing”  “stereotyped” Ms Edgar as gaining a work benefit because of her sex and was contrary to the Safe Work Term in that it amounted to an unreasonable failure to create a workplace environment free from sexual discrimination;[37]

   (b)“was an adverse deterioration in the advantages enjoyed by the Applicant of security of outgoing employment” in that she “could not continue to perform her role competently while being treated…in such a manner…”;[38]

   (c)“berated”, “humiliated” and was “hostile” to her;[39] and

   (d)was taken because of her sex.[40]

   [33] SoC at [45(a)(i)]

   [34] SoC at [45(a)(ii)]

   [35] SoC at [45(a)(iii)]

   [36] SoC at [45(a)(iv)]

   [37] SoC at [45(a)(v)]

   [38] SoC at [45(b)]

   [39] SoC at [45(c)]

   [40] SoC at [47]

   Accessories

2. Ms Edgar implicitly alleged that NRFA Services was vicariously liable for Mr Boxsell’s alleged contraventions of s.351 of the FW Act.[41]

   [41] SoC at [48]

3. Ms Edgar also alleged that Mr Boxsell was liable as an accessory to NRFA Services’ alleged contraventions which arose out of conduct allegedly engaged in by him.[42]

   [42] SoC at [49]

4. Ms Edgar alleged that Mr Melzer was an accessory to NRFA Services’ alleged contravention which arose out of the disparaging comments allegedly made by him.[43]

   [43] SoC at [50]

   Loss and Damage

5. Ms Edgar alleged that because of Mr Boxsell’s conduct she:

   (a)       Experienced stress, anxiety, loss of sleep and heart palpitations;

   (b)      Was not able to raise legitimate concerns about her role and responsibilities;

   (c)       Had a loss of confidence in being able to carry out her role and responsibilities;

   (d)      Felt isolated in the workplace;

   (e)       Felt humiliated and intimidated; and

   (f)       Was incapable of seeking support and guidance from her supervisors.[44]

   [44] SoC at [46]

6. Ms Edgar alleged that she had suffered loss of income, pain, stress, anxiety, humiliation, dislocation to life and reputational damage, and had also incurred medical expenses.[45]

   [45] SoC at [51]

7. She sought declarations of contravention of ss.340 and 351 of the FW Act, compensation, general damages and the imposition of pecuniary penalties.[46]

   [46] SoC at [52]–[58]

   Defence

8. The respondents admitted that Ms Edgar had commenced employment with NRFA Services as digital marketing manager on 5 December 2016, that her employment had been suspended from 6 March 2018 and terminated on 9 May 2018.[47]

   [47] Further amended defence (“Defence”) at [6],[10]–[11]

   Adverse Action

9. In relation to Ms Edgar’s alleged workplace complaints or inquiries: 

   (a)First Complaint:  NRFA Services and Mr Melzer admitted that Mr Melzer had had a discussion with Ms Edgar on 11 August 2018 when she stated that she felt “her views and expertise were [not] respected” by Mr Boxsell, but otherwise denied her allegations;[48]

   (b)Second Complaint:  NRFA Services and Mr Boxsell admitted that he, Ms O’Reilly and Ms Edgar had met on 19 February 2018 as a follow up to her Mid-year Review but otherwise denied her allegations;[49]

   (c)Third Complaint:  NRFA Services admitted that on 20 February 2018 Ms Edgar and Ms Wetherall had had a discussion concerning her Mid-year Review but otherwise did not admit the allegations;[50]

   (d)Fourth Complaint:  the respondents admitted that Ms Edgar asked Ms Wetherall and Ms Williams to commence a formal grievance procedure against Mr Boxsell concerning his conduct at her Mid-year Review and that Ms Edgar made a complaint against Mr Boxsell and Mr Melzer on 13 March 2018.[51]  NRFA Services also admitted that Ms Edgar had met with Ms Wetherall on 1 March 2018 to discuss Ms Edgar’s health issues and the comment in her email to Ms Williams the same day that she “did not feel safe”.  Otherwise the respondents did not admit the allegations;[52] and

   (e)Complaints to Ms Panoiu:  the respondents admitted that Ms Edgar had communicated with Ms Panoiu on 10 October 2017 and 10 November 2017 by text message and Lync message respectively but denied that the communications were complaints regarding bullying, intimidating or discriminatory conduct by Mr Boxsell towards her or complaints regarding his management practices.[53]

   [48] Defence at [12]

   [49] Defence at [13]

   [50] Defence at [14]

   [51] Defence at [16]–[17]

   [52] Defence at [15]

   [53] Defence at [12A]–[12B]

10. The respondents admitted that Ms Edgar had had a workplace right to make complaints and inquiries under s.341(1)(c)(ii) of the FW Act[54] and that she had exercised a workplace right by making the alleged Fourth Complaint.  The respondents variously denied or did not admit that the other complaints amounted to the exercise by Ms Edgar of a workplace right to make a complaint or inquiry in relation to her employment.

    [54] Defence at [18]

11. NRFA Services admitted that it had taken adverse action against Ms Edgar by terminating her employment, but alleged that it had not done so for an unlawful reason[55] and denied contravening s.340 of the FW Act.[56]

    [55] Defence at [20(a),(d)]

    [56] Defence at [21]

12. NRFA Services alleged that it dismissed Ms Edgar because, between it and her, there had been an irreparable breakdown in the trust and confidence that was necessary for the employment relationship to continue.  NRFA Services alleged that on 5 April 2018 Ms Edgar was issued with a show-cause letter and that, when responding to that letter on 9 April 2018, she had simply repeated the allegations she had made on 13 March 2018 which an investigation had found to be unsubstantiated.  The investigation had also found that her comments to others about Mr Boxsell had been disparaging and negative.  NRFA Services alleged that it  formed the opinion that Mr Edgar’s view had not changed and so any future exchanges she had with Mr Boxsell would probably not be “appropriate, professional, collegiate and in alignment” with NRF Australia’s values and culture.[57]

    [57] Defence at [20(b)(i)]

13. NRFA Services also alleged that it was impractical to establish a different reporting structure for Ms Edgar as she had proposed.  It alleged that her position had to be managed locally and so her suggested Toronto-based reporting line was not convenient.[58]

    [58] Defence at [20(b)(ii)]

14. NRFA Services denied taking adverse action against Ms Edgar by: 

    (a)making disparaging comments about her while she was suspended;[59]

    (b)suspending her from employment. NRFA Services alleged that she was suspended with pay for the purpose of completing the formal complaint against Mr Boxsell and Mr Melzer and so it was not unlawful or a contravention of s.340 of the FW Act;[60] or

    (c)threatening Ms Edgar with disciplinary action.  NRFA Services admitted that Mr Melzer met with her on 5 March 2018 to discuss written communications disparaging of Mr Boxsell and of which he had been made aware.  Mr Melzer asked if she wanted an investigation but told her that evidence of inappropriate behaviour might result in a warning.  Ms Edgar asked for the investigation.[61] The respondents denied that the security of Ms Edgar’s present and future employment opportunities had been compromised or that NRFA Services had contravened s.340 of the FW Act.[62] 

    [59] Defence at [22]–[24]

    [60] Defence at [25]–[27]

    [61] Defence at [28]

    [62] Defence at [29]–[30]

    Sex discrimination

15. NRFA Services and Mr Boxsell did not admit that the words “aren’t wives supposed to stay in the kitchen?” had been said and denied that Mr Boxsell had engaged in the other conduct that Ms Edgar alleged amounted to sex discrimination contrary to s.351 of the FW Act or that the conduct alleged contravened that section. Mr Melzer did not admit the allegations.[63]

    [63] Defence [44]–[45]

    LEGISLATION

16. At all material times, the FW Act relevantly provided:

    340  Protection

    (1)A person must not take adverse action against another person:

    (a)     because the other person:

    (i)has a workplace right; or

    (ii)has, or has not, exercised a workplace right; …

    …

    341  Meaning of workplace right

    Meaning of workplace right

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

    …

    (c)     is able to make a complaint or inquiry:

    …

    (ii)if the person is an employee-in relation to his or her employment.

    …

    342  Meaning of adverse action

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

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

…

351  Discrimination

(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

…

793  Liability of bodies corporate

Conduct of a body corporate

(1)Any conduct engaged in on behalf of a body corporate:

(a)     by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

…

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)     that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)     that the person had that state of mind.

Meaning of state of mind

(3)The state of mind of a person includes:

(a)     the knowledge, intention, opinion, belief or purpose of the person; and

(b)     the person’s reasons for the intention, opinion, belief or purpose.

…

APPLICANT’S EVIDENCE

Alice Edgar

Digital marketing manager position - 5 December 2016

1. Ms Edgar deposed that she commenced work with NRFA Services as digital marketing manager on 5 December 2016 at a starting salary of $130,000.[64]  During the application process she had been interviewed by Mr Boxsell, Mr Melzer and Sean Pratap who was based in Toronto.[65]

   [64] Affidavit of Alice Edgar, affirmed 5 June 2020 (“Ms Edgar 1”) at [9]–[10]

   [65] Ms Edgar 1 at [8]

2. Ms Edgar deposed that during the course of her employment NRFA Services had had the following policies and procedures: 

   (a)complaint policy and procedure, policy number HR7.4;

   (b)harassment and bullying procedure, policy number HR7.2; and

   (c)EEO and harassment & bullying complaint resolution policy and procedure.[66]

   [66] Ms Edgar 1 at [23]

   Duties and responsibilities

3. Ms Edgar deposed that she had had experience working on global projects involving multiple stakeholders at a previous place of employment.[67]

   [67] Affidavit of Alice Edgar, affirmed 18 September 2020 (“Ms Edgar 3”) at [11]

4. Ms Edgar’s evidence was that as digital marketing manager she managed the Marketing Automation Project (“MAP”) the goal of which was to automate certain marketing tasks in order to target potential clients more effectively.[68]  Ms Edgar’s evidence was that Mr Boxsell, Mr Melzer and NRF Australia’s managing partner, Wayne Spanner, were also involved in the automation system’s decision-making team.[69]  She deposed that her role on the MAP involved corresponding and working closely with Mr Pratap on a weekly basis.[70]  She was the only person in the digital marketing team to have weekly telephone calls with Mr Pratap and Mr Boxsell, who only spoke to Mr Pratap occasionally, often asked her to pass on information to him.[71]  Ms Edgar deposed that during some of these calls, Mr Pratap had asked her why she failed to “speak up” in meetings involving Mr Melzer and Mr Boxsell but she did not tell him that this was because Mr Boxsell had been dismissive of her ideas and she worried he would dismiss her in front of her colleagues.[72]  Her evidence was that she had never been made aware that Mr Pratap thought that she had not managed the MAP successfully.[73]

   [68] Ms Edgar 1 at [12(a)]

   [69] Ms Edgar 1 at [13]

   [70] Ms Edgar 1 at [12(b)]

   [71] Ms Edgar 3 at [7]

   [72] Ms Edgar 3 at [12]

   [73] Ms Edgar 3 at [14(b)]

5. Ms Edgar deposed that she also managed business development campaigns, social media accounts and websites for Australia and South-East Asia.[74]  She deposed that she trained partners and staff on LinkedIn and made digital marketing campaigns more effective.[75]

   [74] Ms Edgar 1 at [12(c)]

   [75] Ms Edgar 1 at [16]

6. Ms Edgar’s evidence was that she initially reported to Mr Boxsell who reported to Mr Melzer, but in January 2018 her direct report changed to Ms O’Reilly, senior marketing manager, who reported to Mr Boxsell.  She deposed that she had never told Mr Pratap, or anyone else, that she could not work with Ms O’Reilly.[76]  She deposed that her projects directly involved Mr Melzer.[77]

   [76] Ms Edgar 3 at [18]–[19]

   [77] Ms Edgar 1 at [20]–[22]

   Work successes and goals

7. Ms Edgar deposed that her successes at work included:

   (a)creating a “digital culture” by teaching partners how to use digital marketing effectively;[78]

   [78] Ms Edgar 1 at [28]

   (b)helping NRFA Services to win major clients, obtain more followers and increase social media click-through growth through one-on-one training that she conducted with partners across Australia and Indonesia;[79]

   [79] Ms Edgar 1 at [29]

   (c)improving marketing strategy through the implementation of quantitative tools.  She deposed that her analysis caused NRFA Services to adopt a data-driven decision-making approach, the introduction of which saw the return-on-investment metrics rise significantly;[80]

   [80] Ms Edgar 1 at [30(a)]

   (d)based on LinkedIn information[81] a cost reduction in business and client leads;[82]

   [81] Ms Edgar 3 at [10(b)]

   [82] Ms Edgar 1 at [30(a)(i)]

   (e)attracting revenue by redesigning e-commerce webpages for the re-launch of an online product.[83]  She deposed that she had suggested a sales list to measure return on investment and that from that she had been able to ascertain the amount of revenue generated and its source.[84]  Ms Edgar deposed that although it could be difficult to measure the success of campaigns based on fees earned, she had been told that her digital campaigns had been impressive and significantly contributed to new client leads;[85]

   (f)effectively promoting campaigns and articles caused the Governance Institute of Australia to approach NRFA Services about the “syndication of articles”;[86]  

   (g)shifting the national social media strategy to a more effective platform;[87]

   (h)at Mr Pratap’s request, sharing strategies and plans at monthly meetings with overseas Norton Rose Fulbright digital teams so that they too could implement them;[88]

   (i)being complemented by London marketing manager in a global digital team meeting;[89]

   (j)assisting four partners win a new client after training them on LinkedIn.  She deposed that they thanked her via email, sometimes copying in Mr Boxsell and Mr Melzer;[90]

   (k)launching the legal profession’s first Australian legal chatbot, “Parker”, which had been designed to inform users about privacy law and data breach laws.[91]  She deposed that there had initially been some miscommunications about the scope of her roles and responsibilities with this project, with Mr Pratap not making her responsibilities clear to her,[92] but she nonetheless worked closely with other colleagues to ensure the project had been successful;[93]

   (l)running 15 end-to-end digital campaigns and introducing paid social media and cross-promotions in 2017;[94] 

   (m)being chosen by Mr Melzer in June 2017 to help the Indonesian office build a project, transform their digital space and recover a campaign.  She deposed that this campaign led to new online followers, high quality leads, a rise in engagement and its success led to a partner from the Singapore office requesting that she be involved in future digital marketing campaigns. He emailed Mr Boxsell and Mr Melzer saying Ms Edgar had “achieved great results”;[95] and

   (n)being told by Mr Pratap in early 2017 that she had a “bright future”,[96] and receiving positive written and verbal feedback from numerous partners and colleagues, including Mr Melzer.[97]

   [83] Ms Edgar 1 at [30(a)(ii)]

   [84] Ms Edgar 3 at [10(a)]

   [85] Ms Edgar 3 at [9]

   [86] Ms Edgar 1 at [30(a)(iii)]

   [87] Ms Edgar 1 at [30(a)(iv)]

   [88] Ms Edgar 1 at [31]

   [89] Ms Edgar 1 at [33]–[34]

   [90] Ms Edgar 1 at [36(a)]

   [91] Ms Edgar 1 at [36(b)]

   [92] Ms Edgar 3 at [16(a)]

   [93] Ms Edgar 3 at [15]–[16]

   [94] Ms Edgar 1 at [36(d)]

   [95] Ms Edgar 1 at [37]–[38]

   [96] Ms Edgar 1 at [32]

   [97] Ms Edgar 1 at [43]

1. Ms Edgar deposed that when her probation ended in May or June 2017, she was given an extremely positive review by Mr Boxsell who told her to “keep up the good work”.  Ms Edgar’s evidence was that when the Human Resources department asked her to complete a self-appraisal form three weeks later, Mr Boxsell told her that it was a formality and graded her as “satisfactory” as she had “not been here for a year”.[98] 

   [98] Ms Edgar 1 at [39]–[41]

2. Ms Edgar deposed that her salary was increased to $132,000 (inclusive of superannuation) in July 2017 and Mr Melzer told her: 

   … you are being given a bonus of $1000 for your exceptional work.  You are one out of three in the marketing team who will receive a bonus for $1,000 so please keep this confidential.[99]

   [99] Ms Edgar 1 at [42]

   Marketing team

3. Ms Edgar deposed that her observations of the marketing team’s culture had not been “overly positive” and that other employees had experienced problems with Mr Boxsell. For instance: 

   (a)in around September or October 2017 Ms Edgar saw a business development executive, Ms Shiraz Gheyara, crying.  Ms Gheyara said: 

   [Mr Melzer] is trying to push me out along with [Ms Panoiu].  [Mr Melzer] was yelling at me in a meeting room on level 17,[100]

   (b)in around November 2017, Ms Edgar asked Mr Boxsell where Ms Gheyara had gone and he replied:

   that’s what happens when you cause trouble.[101]

   [100] Ms Edgar 1 at [24(f)]

   [101] Ms Edgar 1 at [24(g)]

   Mr Boxsell’s conduct

4. Ms Edgar deposed that between December 2016 and October 2017 Mr Boxsell made several remarks that she found “disturbing and offensive”.[102]

   [102] Ms Edgar 1 at [44]

   March 2017 – “Do your female magic thing”

5. Ms Edgar deposed that in a December 2016 meeting with Mr Boxsell and her, Mr Melzer mentioned the poor relationship that marketing had with the IT team, following which she made friends with IT team members and initiated a running group with them.[103] Mr Boxsell seemed appreciative of her having organised lunchtime runs with an IT colleague and he joined them.[104]

   [103] Ms Edgar 1 at [44(a)]

   [104] Ms Edgar 1 at [25]

6. Ms Edgar deposed that in or about March 2017 Mr Boxsell asked for her assistance resolving a computer issue, saying “do your female magic thing”.  Her evidence was that she understood him to have asked her to seek IT’s help because she had a good rapport with the IT team.  She deposed that she felt this comment to be  “inappropriate and sexist” because it implied that, as the team was mainly male, any differential treatment they gave her was based on her sex rather than on the effort she had made to build rapport with them.[105]

   [105] Ms Edgar 1 at [44(a)]

   Mid-2017 – “Once you have children, you will not have time for that”

7. Ms Edgar deposed that in mid-2017, after she had announced her engagement, she told Mr Boxsell that she and a colleague were starting evening pottery classes.  She deposed that Mr Boxsell replied: 

   Once you have children, you won’t have time for that.[106] 

   [106] Ms Edgar 1 at [44(b)]

   September, October 2017 – “aren’t wives supposed to stay in the kitchen”

8. Ms Edgar’s evidence was that around September to October 2017 Mr Boxsell suggested that after her wedding she might not return to work and said “aren’t wives supposed to stay in the kitchen?”.  Ms Edgar deposed that she felt shocked and uncomfortable about how Mr Boxsell viewed her.[107]

   [107] Ms Edgar 1 at [44(c)]

   2017 – seating plan

9. Ms Edgar’s evidence was that out of the twelve person marketing team, following each of the three re-locations that occurred during her employment with NRFA Services, she was positioned next to, or diagonally opposite, Mr Boxsell.  She deposed that after the third re-location, she felt constantly under his observation, a feeling which increased when he began commenting on her lunch breaks.[108]  Ms Edgar deposed that throughout her employment at NRFA Services she had not heard Mr Boxsell comment on other employees’ lunch breaks.[109]

   [108] Ms Edgar 1 at [45]–[46]

   [109] Ms Edgar 1 at [46],[50]

   31 March 2017 – “If you're so busy then you shouldn’t have time to go and have lunch”

10. Ms Edgar’s evidence was that on or around 31 March 2017, Mr Boxsell asked her for an update on certain work tasks after she returned from a colleague’s birthday lunch.  She deposed that she provided him with an update whereupon he stated: “If you're so busy then you shouldn’t have time to go and have lunch” and walked away.[110]

    [110] Ms Edgar 1 at [46]

11. Ms Edgar also deposed that on or about 6 July 2017 Mr Boxsell asked to speak with her and when she asked if the conversation could wait for ten minutes so she could complete an important task, he said “no”.  She deposed that after the conversation she asked him why the conversation couldn’t wait because it wasn’t urgent.  She deposed he said 

    If you are so busy, then how come you took your lunch break?[111]

    Ms Edgar’s evidence was that Mr Boxsell’s statement made her feel that he lacked confidence in her ability to prioritise her work commitments.[112]

    [111] Ms Edgar 1 at [47]–[48]

    [112] Ms Edgar 1 at [49]

12. Ms Edgar deposed that by mid-2017, marketing lunches or her running sessions with Mr Mendoza of the IT department were the only times she took a lunch break as she otherwise felt uncomfortable taking breaks.[113]  Ms Edgar’s evidence was that in mid to late 2017, colleagues such as Mr Morris, Ms Kidd and Ms Orenchuk commented on her lack of lunch breaks.[114]

    [113] Ms Edgar 1 at [50]

    [114] Ms Edgar 1 at [51]

    1 November 2017 – “You are not fit to be a manager”

13. Ms Edgar’s evidence was that on or around 1 November 2017 she arrived at the office wearing headphones because she listened to music during her trip to work.  She deposed when she arrived at her desk Mr Boxsell asked her to a meeting room where they had the following exchange: 

    Mr Boxsell:I said good morning to you, and you didn’t respond.  You negatively impact the team’s dynamic.

    Ms Edgar:How do I ruin the team dynamic by not hearing what you say? I wasn’t ignoring you on purpose I had my headphones in.

    Mr Boxsell:You are not fit to be a manager.[115]

    Ms Edgar deposed that in or about October to December 2017 Mr Boxsell’s conduct toward her made her cry, impacted her mood and she no longer wanted to go to work.[116]

    [115] Ms Edgar 1 at [52]

    [116] Ms Edgar 1 at [53]–[54]

    29 June 2017 - “disrespectful and unprofessional”

14. Ms Edgar deposed that she “questioned her capability and judgment” as a result of Mr Boxsell’s conduct toward her when she tried to express her opinion.  She deposed, by way of example, to having felt anxious about a particular discussion because her opinion on the topic differed from the team’s practices and she had been unable to sleep until she had communicated her concerns so, at 4:08am on 29 June 2017 she sent Mr Boxsell an email.  She deposed that upon entering the office building later that morning she had felt intense anxiety because Mr Boxsell’s response had been to ask to speak privately with her.  She deposed they had the following conversation: 

    Mr Boxsell:Your email this morning … you need to watch your tone.

    Ms Edgar:What do you mean?  What tone do I have in the email?

    Mr Boxsell:It’s disrespectful and unprofessional.

    Ms Edgar:I don’t understand … how is it disrespectful and unprofessional? Is that really your only take from my 4am email on how to improve a process?  You're not concerned about my wellbeing?

    Mr Boxsell:Just watch your tone.

    Ms Edgar deposed that she felt “trapped and experienced severe self-doubt” because Mr Boxsell had neither discussed the process with her nor explained how her approach had been disrespectful or unprofessional.[117]

    [117] Ms Edgar 1 at [55]

15. Ms Edgar deposed that she and Mr Boxsell had the following conversation in around September or October 2017, when she was assisting with the recruitment of a team assistant:

    Mr Boxsell:Ideally, I want someone who will just say ‘Yes, Sir!’ and do what I tell them to.

    Ms Edgar:Are you serious?  Do you really want someone who just says ‘yes sir’?

    Mr Boxsell:Yes, why wouldn’t you? You want someone who will just say yes to everything, so you don’t have to, you know…[118]

    Ms Edgar said that she did not recall referring to her assistant, Ms Dickman, as her “minion” but had used that word before[119]  as an “endearing” term arising from a Christmas party where the marketing team dressed up as “minions” from the film “Despicable Me”.[120]

    [118] Ms Edgar at 1 at [56]

    [119] Transcript Day 3, 23 September 2020 (“TD3”) at  201

    [120] Transcript Day 5, 25 September 2020 (“TD5”) at 353–354

    28 July 2017 – walking out of meeting – “emotional”

16. Ms Edgar deposed that on or around 28 July 2017, a Melbourne partner asked for the correction of an error in an announcement graphic created by a team member, Mr Nguyen.[121]   Ms Edgar deposed that she sought to improve the internal digital messaging procedure by undertaking an analysis of related typographical errors to find risk areas and then by recommending the implementation of safeguards, such as printing off the messages to be reviewed for a final check by the content executive, Mr Nguyen and herself.[122]

    [121] Ms Edgar 1 at [65]

    [122] Ms Edgar 1 at [66]

17. Ms Edgar deposed that Mr Boxsell organised a team meeting that day to review social media processes and asked her to discuss her recommendations alone, first.[123]  Ms Edgar deposed that she attempted to show Mr Boxsell her suggestions and analysis but he repeatedly spoke over her and the five to ten minute meeting concluded with the following exchange: 

    [123] Ms Edgar 1 at [67]

    Ms Edgar:I ran an analysis this morning on the historical errors to date and there’s a few points I want to cover with you - have you read my email this morning?

    Mr Boxsell:Not yet

    Ms Edgar:That’s fine, I've printed a copy and we can just run through it quickly if you don’t mind?

    Mr Boxsell:I did a quick scan of the document.  What are you trying to say here?

    Ms Edgar:What do you mean?  I thought it will be a good idea to analyse the situation and provide suggestions accordingly?

    Mr Boxsell:(talking over [Ms Edgar]) Stop being disrespectful.

    Ms Edgar:Please stop talking over me …

    Mr Boxsell:(talking over [Ms Edgar]) Now you're being emotional.

    Ms Edgar:I am just trying to improve our process to reduce future errors.

    Mr Boxsell:(talking over [Ms Edgar] and standing up abruptly) You just keep pointing fingers, you are so unprofessional.

    Ms Edgar:I'm focusing on process improvement.[124]

    Ms Edgar deposed that Mr Boxsell left the room.  Her evidence was that his comments made her feel “belittled” as if her method and point of view were irrelevant and by calling her “emotional” she felt that her ideas were undervalued because she was female.[125]

    [124] Ms Edgar 1 at [68]

    [125] Ms Edgar 1 at [69]–[70]

18. Ms Edgar deposed that she summarised their conversation in an email to Mr Boxsell at 3 o’clock that afternoon and that when Ms Boxsell responded fifteen minutes later stating that her summary was inaccurate, she felt “upset”, “trapped” and had difficulty breathing.[126]  She deposed that she felt like she was going to cry so she went to Ms Gheyara’s office.[127]

    [126] Ms Edgar 1 at [71]

    [127] Ms Edgar 1 at [72]

    11 August 2017 – Complaint to Mr Melzer

19. Ms Edgar’s evidence was that on or about 11 August 2017 she had a discussion with Mr Melzer about Mr Boxsell’s dismissive conduct towards her and his negative responses to her project ideas.  She deposed that this was to seek support about navigating these interactions and they had the following exchange: 

    Ms Edgar:When I express my ideas to [Mr Boxsell], he has called me unprofessional and disrespectful and that this made me feel uncomfortable.  I would really like this resolved.

    Mr Melzer:Sort it out yourself, that’s what I have done in my experience.

    Ms Edgar:Thank you for your time.

    Ms Edgar deposed that Mr Melzer’s reaction made her feel “disappointed, helpless, isolated and unsupported” and “trapped” and the lack of managerial support made her feel that she would be unable to perform optimally.  She deposed that she told Mr Edgar about this meeting straight afterwards via WhatsApp.  She deposed that after this meeting, Mr Melzer appeared to avoid her and he never followed up the complaint or checked in on her at future one-on-one meetings.

20. Ms Edgar deposed that she was concerned about her job security because in mid-August 2017 Mr Boxsell asked her whether she was “not happy in this team”.  Her evidence was that she replied “what makes you think that?” to which he did not respond.  She deposed that she was unsure whether Mr Melzer had told Mr Boxsell about her complaint and that she felt “uneasy” and worried that his behaviour toward her would escalate if she mentioned she was upset with it.[128]

    [128] Ms Edgar 1 at [73]–[76]

    2017 – health issues

21. Ms Edgar deposed that in around May 2017, she had a panic attack when she realised that she had forgotten to complete a work task. She experienced heart palpitations and difficulty breathing.[129]   

    [129] Ms Edgar 1 at [58]

22. Ms Edgar deposed that in June 2017 she was having difficulty sleeping because she was upset when she thought of work.  Her evidence was that, in order to try to get to sleep and to manage the work-related pressure and stress, she increased the frequency of her running and also began drinking alcohol.[130] She deposed that she also had problems sleeping and would wake at 3:00am or 4:00am anxious about emailing Mr Boxsell and would resume work at that time.  These symptoms increased around October 2017 and comments or negative feedback from Mr Boxsell caused her to feel “stressed and anxious”.  She deposed that multiple nights in a row she was unable to sleep, felt anxious, experienced self-doubt and entertained thoughts of self-harm.[131] 

    2017 – Speaking with colleagues

    [130] Ms Edgar 1 at [60]

    [131] Ms Edgar 1 at [60]–[64]

    Mr Pratap

23. Ms Edgar deposed that in early 2017, when trying to discuss what she thought were practical and effective ideas, Mr Boxsell told her a number of times not to get emotional about her work.  She felt he was dismissive of her ideas and deposed that by failing to listen to her he could not approve projects which, in turn, impacted on the progress of the MAP and on tasks that Mr Pratap had set her.  She deposed that he was more likely to listen and engage if she said “Mr Pratap thinks it is a good idea too”.[132]

    [132] Ms Edgar 1 at [77]

24. Ms Edgar’s evidence was that she told Mr Pratap at a meeting in August 2017 that the team had been unable to progress the MAP in accordance with his directions because Mr Boxsell did not permit it. She deposed that several times throughout that conversation Mr Pratap said “ok, that’s Sydney office”.[133] Her evidence was that in August 2017 she and Mr Pratap also had the following exchange: 

    Ms Edgar:This process is upsetting me because Mr Boxsell is not prepared to talk about it.

    Mr Pratap:I've sensed that it’s micromanaging and you need more autonomy.  I don’t understand why [Mr Boxsell] is reacting that way.  You need to sort it out thought, I cannot get involved.

    Ms Edgar:I have tried, I even spoke to [Mr Melzer] about it.  Then just the other day [Mr Boxsell] walked out of the meeting room when I was trying to provide constructive suggestions and it made me very upset.[134]

    [133] Ms Edgar 1 at [78]

    [134] Ms Edgar 1 at [79]

25. Ms Edgar’s evidence was that she summarised this conversation in a text message to her husband soon after this conversation.[135]

    [135] Ms Edgar 3 at [20], [AE-81]

    Ms Catalina Panoiu

26. Ms Edgar deposed that in early October 2017 Ms Panoiu saw her crying in the lobby and she told Ms Panoiu about some problems she had had with Mr Boxsell.  Ms Edgar deposed that she also confided in Ms Panoiu on three further occasions: 

    (a)in an email later that day explaining in more detail why she was upset, and in which she described Mr Boxsell as “unprofessional”;[136]

    (b)on 10 October 2017 (the next day) in a text message concerning Mr Boxsell telling her to take a sick day because she had a fever and then calling her about non-urgent work tasks on her day off which made her feel that he did not trust that she was unwell. In that text message she described his actions as “highly insulting and unnecessary” and “unbelievable” in the context of her being “the hardest working member of the team”;[137] and

    (c)on 10 November 2017 via the NRFA Services internal messaging system, when she raised further concerns about Mr Boxsell with Ms Panoiu, who provided her view on the matter.  Ms Edgar deposed that she stopped confiding in Ms Panoiu after this conversation.[138] During cross-examination, Ms Edgar agreed that her comments in this conversation regarding Mr Boxsell had been disparaging.[139]

    [136] Ms Edgar 1 at [80], [AE-10]

    [137] Ms Edgar 1 at [83], [AE-11]

    [138] Ms Edgar 1 at [80]–[84]

    [139] TD3 at 200, 202

    14 February 2018 – mid-year performance review

27. NRF Australia and HDY merged on 1 December 2017.[140]

    [140] Ms Edgar 1 at [86]

28. Ms Edgar deposed that in mid-November she was notified that she would report to Ms O’Reilly once she returned from her honeymoon.  She deposed she started reporting to Ms O’Reilly on 22 January 2018 and was relieved that she no longer had to report to Mr Boxsell.[141]

    [141] Ms Edgar 1 at [87]–[88]

29. Ms Edgar’s evidence was that on 6 February 2018, when notified of the date her mid-year performance review (“Mid-year Review”), she had asked Mr Boxsell about his expectations of it and how she could prepare and was told that it was an “informal chat”.  She deposed that she asked Mr Boxsell, Ms O’Reilly and two colleagues about how she could prepare for it and that:

    (a)on 12 and 13 February 2018 Mr Boxsell re-iterated that it was an “informal chat”;

    (b)on 13 February 2018 Ms O’Reilly said that “it’s my first Norton Rose one as well so check with [Mr Boxsell]”; and

    (c)on 13 February 2018 Ms Kidd said that she had “had the option of not having a mid-year review with [Mr Boxsell]”. [142]   

    Ms Edgar deposed that she nevertheless did some preliminary preparations such as outlining her achievements “in case”.[143]

    [142] Ms Edgar 1 at [89]–[94]

    [143] Ms Edgar 1 at [94]; TD3 at 208

30. Ms Edgar deposed that her Mid-year Review with Mr Boxsell and Ms O’Reilly on 14 February 2018 ran for 2 hours and 45 minutes.[144]  Mr Boxsell began the meeting with a formal agenda and asked her to outline her view of her performance.[145] Ms Edgar deposed that when she understood the process was not informal she stated: 

    I don’t understand what’s going on.  I asked you a few times before this meeting about how I can prepare for it and you consistently told me that this was just an informal chat.

    [144] Ms Edgar 1 at [95]

    [145] Ms Edgar 1 at [96]

31. Ms Edgar’s evidence was that she spoke of her achievements for fifteen minutes, including several of those referred to above at [32] and, thereafter, Mr Boxsell gave her “detailed and critical feedback” supported by specific examples which had often been outside her control.  Mr Boxsell: 

    (a)referred to the team’s typographical mistakes;

    (b)told her she was “unfit to be a manager” for failing to include a recommendation in a report that had been delegated to another employee; and

    (c)told her that her email correspondence was unsatisfactory.[146]

    [146] Ms Edgar 1 at [98]–[99]

32. Ms Edgar’s evidence was that when she tried to respond or explain her point of view, Mr Boxsell held up his palm.  She deposed that he also talked over her when she was attempting to respond[147]  and when she told him she thought it was unfair that she could not respond, his volume and pace increased.  She deposed that Ms O’Reilly accused her of having “the memory of a goldfish” which she contended was the twisting against her of a joke she had made about liking to make notes in order to not forget things.[148]  She agreed that during the Mid-year Review she had joked: 

    Sometimes I've got a memory like a goldfish,

    but that had been in relation to something else.[149]

    [147] Ms Edgar 1 at [96]–[98]

    [148] Ms Edgar 1 at [100]–[101]

    [149] TD3 at 209

1. In cross-examination Ms Edgar agreed that after she had discussed her highlights, Mr Boxsell and Ms O’Reilly had asked her about areas of improvement she had identified, including her communication skills. She agreed that they asked her this because they were interested in, and looking to, her future with NRFA Services.  She also agreed that Mr Boxsell had asked her what she would like to do less of, so she could focus on her areas for growth.[150] 

   [150] TD3 at 210

2. Ms Edgar agreed that at the Mid-year Review Mr Boxsell had provided her with feedback on behalf of Mr Pratap about areas in which she was doing well and those areas in which she required improvement.[151]  She also agreed that Mr Boxsell had told her that the areas in which she needed improvement concerned things that were expected of her as a manager and that in some areas she was not performing to a manager’s standard.[152]  Ms Edgar said that during the Mid-Year Review she said that a lot of the criticism she received felt like an “attack”, as opposed to a specific ideas or examples for improvement.  She said that she did not know what to do with comments such as “you're unfit to be a manager”.[153]  She said that she understood that Mr Boxsell had told her about these improvement areas in order to allow her to identify and work on them.[154]

   [151] TD3 at 211–212

   [152] TD3 at 212

   [153] TD3 at 213

   [154] TD3 at 213–214

3. Ms Edgar said that she had not been told that she could raise questions or that she could:

   … take notes, or just listen and absorb and come back to them later.[155]

   [155] TD3 at 214

4. Ms Edgar said that Mr Boxsell had said: 

   Sometimes I'm not sure which Alice is coming to work - the happy one or the person who’s often absent from her desk.

   but had not asked her if “everything was ok” or whether she wanted to discuss anything in relation to that comment. [156]

   [156] TD3 at 214

5. Ms Edgar said that she began to cry when Mr Boxsell asked whether she was happy in the team.  She said that she told him that although she enjoyed her position, sometimes she felt “shut down”.[157] She said was that although she was crying, Mr Boxsell and Ms O’Reilly neither allowed her a break nor acknowledged her tears and she felt “completely humiliated”.[158]

   [157] TD3 at 215

   [158] Ms Edgar 1 at [102]

6. Ms Edgar said that Mr Boxsell and Ms O’Reilly had not discussed at the Mid-year Review any processes by which she could manage the identified skill gaps, such as a plan that Ms O’Reilly might be able to create to help her.[159]

   [159] TD3 at  215–216

7. Ms Edgar deposed that at 5:45pm she asked whether they had “anything else to say” and Mr Boxsell said that they could discuss her goals at another meeting the next day.[160]  She deposed she left and cried in the bathroom and, on her way home, had to stop for five minutes after experiencing a second panic attack.[161]  She deposed that before the review she had had no reason to believe there were problems with her performance[162] as although Mr Boxsell had, in 2017, called her disrespectful and unprofessional, she had also received a lot of positive feedback during that year.[163] 

   [160] Ms Edgar 1 at [102]

   [161] Ms Edgar 1 at [103]

   [162] Ms Edgar 1 at [105]

   [163] TD3 at 217–218

8. Ms Edgar deposed that that evening, after her Mid-year Review, she experienced an onset of anxiety and continuous heart palpitations.[164]  She also deposed that she was unable to sleep, which continued into the following week.[165]

   [164] Ms Edgar 1 at [108]

   [165] Ms Edgar 1 at [108]–[109]

   14 February 2018 – discussions with Mr Hall

9. Ms Edgar’s evidence was that on 14 February 2018[166] Mr Hall, the director of client programs, asked her how she was going and commented that she looked tired.  She deposed that because he had experience and she trusted him and needed advice, they had had a discussion about the work issues she had been experiencing, the Mid-year Review and feedback, and how she had been upset by the meetings with the Human Resources department[167] and her managers.  She deposed that Mr Hall said that she was probably being “performance managed”.[168]  She deposed that Mr Hall had called Mr Boxsell a “seagull” because he took credit for other people’s work.[169]

   [166] Ms Edgar 3 at [38]

   [167] which had not yet occurred, see below at [82]ff

   [168] Ms Edgar 1 at [126]

   [169] Ms Edgar 3 at [40]

   16 February 2018 – meeting with Ms O’Reilly

10. Ms Edgar deposed that at what she described as a “regular weekly catch up” on 16 February 2018, Ms O'Reilly had said:

    I've been in your shoes before.[170]

    17 February 2021 – health and medical advice

    [170] Ms Edgar 1 at [107]

11. Ms Edgar’s evidence was that she booked and attended a medical appointment on 17 February 2018 because she was overwhelmed, scared and could not perform everyday activities.  She deposed that the doctor diagnosed her panic attacks, heart palpitations and insomnia as a mental disorder.  Ms Edgar’s evidence was that the doctor referred her to a psychologist, prescribed her diazepam for the panic attacks and provided her with a medical certificate for leave between 19 and 21 February 2018.  Ms Edgar deposed that she did not use the medical certificate because, in light of her Mid-year Review, she was concerned that if she took time off work she would miss deadlines.[171]

    [171] Ms Edgar 1 at [111]–[112]

    19 February 2018 – follow up meeting and complaint to Mr Boxsell

12. Ms Edgar’s evidence was that a “follow up” mid-year performance review meeting involving herself, Mr Boxsell and Ms O’Reilly took place on 19 February 2018 to discuss her performance in 2017 and goals for 2018.[172]  She deposed that after the Mid-year Review she had been unwilling to attend this further meeting and had voiced her hesitation to Mr Hall.[173]In cross-examination Ms Edgar said that, in response to an email Mr Boxsell and Ms O’Reilly had sent her on 15 February 2018 about the follow-up meeting, she had replied:

    Sure, it sounds good; I was going to suggest a follow-up too …

    because she wanted to move forward and because the last meeting had “ended badly”.  She said she had been “willing” to participate in a further meeting but that did not mean she was not also “reluctant” to.[174]

    [172] Ms Edgar 1 at [116],[118]

    [173] Ms Edgar 1 at [117]

    [174] TD3 at 222–223, Transcript Day 4, 24 September 2020 (“TD4”) at 227

13. Her evidence was that she nevertheless attended the further meeting during which she and Mr Boxsell had the following conversation: 

    Ms Edgar:Your behaviour towards me during the mid-year review made me feel humiliated.

    Mr Boxsell:(Raised his eyebrows, smirked) and said, Do you have a medical certificate?

    Ms Edgar:Yes, I have seen a doctor who has diagnosed my medical condition, he says that I am suffering from stress and anxiety.  The heart palpitations make it very difficult to sleep.

    Mr Boxsell:We'll have to go to human resources about that. We already asked you whether you had any concerns and you said no.

    Ms Edgar:I did not say no, I said I want to focus on my goals.[175]

    [175] Ms Edgar 1 at [118]

14. Ms Edgar’s evidence was that she felt, by his reaction, that Mr Boxsell did not believe her and it made her feel “uncomfortable” and “ashamed”.  She deposed that his demeanour was dispassionate and without empathy, as it had been when she cried during her Mid-year Review.[176]

    [176] Ms Edgar 1 at [119]

15. In cross-examination Ms Edgar agreed that Mr Boxsell had: 

    (a)told her “he was sorry to hear she had been unwell”;

    (b)asked whether she had a medical certificate but had “smirked” and “raised his eyebrows” so she found it difficult to believe that he was concerned about her health;

    (c)told her that she should follow her doctor’s advice; and

    (d)told her that if she needed to take leave she should not worry about it.[177]

    She said that Ms O’Reilly had not said that she was sorry that Ms Edgar was unwell and had not encouraged her to take leave.[178]

    [177] TD4 at 233–234

    [178] TD4 at 234

16. Ms Edgar said that she did not have notes of the follow-up meeting because they had been contained in a work book which she threw out upon her termination.  She said that she had some specific recollections of this meeting but did not recall every word of the conversation.[179]  She conceded that she did not remember whether Mr Boxsell told her in that meeting that her health was the “top priority”.[180]

    [179] TD4 at 239

    [180] TD4 at 240

17. Ms Edgar deposed that, later that day, she emailed Mr Boxsell and Ms O’Reilly about her goals and reiterated her complaint about Mr Boxsell’s behaviour.  Her evidence was that Mr Boxsell later responded, denying that his actions had been inappropriate and stating he would discuss her health with the Human Resources department.[181]

    [181] Ms Edgar 1 at [120]–[121]

    20 February 2018 – meeting with and complaint to Ms Wetherall

18. Ms Edgar deposed that on 20 February 2018 she had the following conversation with Ms Wetherall, who was the human resources manager: 

    Ms Edgar:The mid-year review lasted for 2 hours and 45 minutes and Mr Boxsell’s behaviour towards me during the mid-year review made me feel humiliated. The Follow up mid-year review meeting made me feel cornered and trapped. Based on [Mr Boxsell’s] response email to me on 19 February, I feel that I am in a working environment where it is impossible for me to raise legitimate concerns. [Mr Boxsell] is distorting statements and stories, removing context and consequently manipulating the message, he has done this many times before. For example, he claimed to have suggested to stop the meeting when I was in tears but that never happened. Moreover, [Mr Boxsell]’s behaviour was overbearing and aggressive, he displayed no empathy for my predicament and smirked when I told him about my health condition. That image will forever stay in my mind. I just don’t think it’s the right time to confront him now and I do not think I should attend another review meeting because of my health. I am concerned about my health and wellbeing as I am suffering from stress and anxiety, as diagnosed by my doctor. I'm having strong heart palpitations and insomnia because of these meetings with [Mr Boxsell].

    Ms Wetherall:    Well does this mean you are unfit for work?

    Ms Edgar:No, I just don’t feel safe working with [Mr Boxsell], the health issues have not affected my performance.

    Ms Wetherall:    I need to check a few things with [Mr Boxsell] and I will get back to you, but you should just talk to him about it.

    Ms Edgar:I do not feel comfortable and I do not think that would be good for my health.

    Ms Wetherall:    You could talk to [Ms O’Reilly] instead because she is your direct manager…you can take some time if you want.

    Ms Edgar:[Mr Boxsell] has been bullying me, I can provide examples.

    Ms Wetherall:    No, I don’t want to hear examples.[182]

    [182] Ms Edgar 1 at [122]

19. Ms Edgar agreed that during this meeting she had in fact told Ms Wetherall that Mr Boxsell had called her “disrespectful” and had walked out of a meeting but she had not considered these to be examples of bullying.[183] She deposed that she was crying when explaining the Mid-year Review to Ms Wetherall and, afterwards, felt “numb” and “helpless” because she was unsure what the next steps were or what Ms Wetherall would do with the information.[184]  In cross-examination Ms Edgar agreed that she had written to Ms Wetherall the next day thanking her for her time and telling her that it had been “helpful”,[185] but said that this was just something she normally included in emails after meeting someone.[186]

    [183] TD2 at 97

    [184] Ms Edgar 1 at [123]

    [185] TD2 at 97-98

    [186] TD5 at 355

20. She deposed that in this meeting she had not shown Ms Wetherall a copy of a 2017 email she had sent to Mr Boxsell but had been “clutching onto her belongings”, “nervous”, “uncomfortable” and “in tears” during the conversation.[187]  Ms Edgar deposed that she had not told Ms Wetherall that she had been called into work when ill on 10 October 2017 but, rather, that Mr Boxsell had called her to “check in” about a non-urgent task less than a couple of hours after she had told him she was ill, which made her feel that he did not believe her when she said she was.[188]

    [187] Ms Edgar 3 at [59]–[61]

    [188] Ms Edgar 3 at [65],[67],[70(a)]

21. Ms Edgar’s evidence was that later that day she asked Ms Wetherall if she could go home and whether Ms Wetherall could let her supervisors know where she had gone.  She deposed that Ms Wetherall said she would but that was the extent of their conversation.[189] However, in cross-examination Ms Edgar agreed that Ms Wetherall had suggested that the Human Resources department facilitate a conversation between her and Mr Boxsell, but she had not indicated that she was receptive to such a HR meeting. Ms Edgar agreed that Ms Wetherall told her that it was important for managers to be able to give positive and negative feedback.[190]

    [189] Ms Edgar 3 at [62]

    [190] TD2 at 104

    21 February 2018 – conversations with Ms Wetherall

22. Ms Edgar deposed that the next day she emailed Ms Wetherall in relation to Mr Boxsell’s email of 19 February 2018 and gave examples of his behaviour and the impact it had had on her work.  Ms Edgar deposed that Ms Wetherall then asked her if she had time to discuss some of the matters.[191]  In cross-examination Ms Edgar agreed that they discussed her capacity to work and that she told Ms Wetherall she had come in because it was busy.  She agreed that Ms Wetherall told her that it would not be an issue if her doctor said that she should be at home and also asked her to meet Mr Boxsell.[192] 

    [191] Ms Edgar 1 at [124]–[125]

    [192] TD2 at 103, 104

23. Ms Edgar said that the day before, Ms Wetherall had said that the Human Resources department would facilitate the discussion with Mr Boxsell but at other times had simply told her to meet with Mr Boxsell.  She conceded that it was “possible” that during this 21 February 2018 conversation Ms Wetherall had suggested that Ms Williams, the human resources and national graduate adviser, be present at a meeting between her and Mr Boxsell.[193] 

    [193] TD2 at 105

24. Ms Edgar said that she told Ms Wetherall that she was not comfortable having a meeting with Mr Boxsell,

    … but maybe at a time of my choosing

    by which she meant that she did not want to be surprised by such a meeting at the last minute.  She said that she told Ms Wetherall that she had been “uncomfortable” and wanted to be notified.[194]  She also agreed that Ms Wetherall had said to her that her version of what had happened at the Mid-year Review differed from what her managers (presumably Ms O’Reilly and Mr Boxsell) had described and that she ought to talk it out together with the people involved and the Human Resources department.[195]She reported something similar to her husband in a WhatsApp message she sent him that day.[196]

    [194] TD2 at 105

    [195] TD2 at 105

    [196] TD2 at 106–107

    22 February 2018 – meeting with Ms Wetherall

25. Ms Edgar’s evidence was that she had met with Ms Wetherall on 22 February 2018.[197] She deposed that in this meeting she understood Ms Wetherall to be pushing her to meet with Mr Boxsell despite the fact that she told her she did not feel comfortable doing so.  She deposed that by “pushed” she meant that Ms Wetherall failed to accept her reasons for not wanting to meet with Mr Boxsell and kept making such a meeting the conversation’s main focus.[198]  Ms Edgar said that in their 22 February 2018 conversation Ms Wetherall told her that being telephoned while away sick was not of concern at a manager level and that it should not prevent her taking leave.[199] She deposed that she had not agreed with that statement[200].  She also deposed that her statement about not being “in a good place mentally” related to Mr Boxsell attending a possible meeting and that she had agreed to a facilitated discussion with Ms O’Reilly, but not with Mr Boxsell.[201] 

    [197] Ms Edgar 3 at [68]

    [198] Ms Edgar 3 at [69]

    [199] TD2 at 119

    [200] Ms Edgar 3 at [70(a)]

    [201] Ms Edgar 3 at [70(b)], [71]

26. Ms Edgar conceded that the Human Resources department had repeatedly suggested a facilitated meeting and that it would be incorrect to suggest that they had asked her to meet Mr Boxsell on her own.[202]

    [202] TD2 at 121

    27 February 2018 – meeting with Ms Williams and third panic attack

27. Ms Edgar deposed that on 27 February 2018 she had the following discussion with Ms Williams:[203]  

    Ms Williams:       You will need to meet with both [Mr Boxsell] and [Ms O’Reilly].

    Ms Edgar:I already said to [Ms Wetherall] that I don’t feel safe meeting with [Mr Boxsell] about this.  My heart pounds hard and heavy at the thought of having to confront the person who was primarily responsible for my humiliation, [Mr Boxsell].  I feel unsafe around Mr Boxsell because he has created an environment where I cannot raise concerns.[204]

    [203] Ms Edgar 1 at [122]

    [204] Ms Edgar 1 at [127]

28. In cross-examination Ms Edgar said that on 27 February 2018 Ms Williams telephoned her about a human resources meeting but did not find out that Mr Boxsell would be present until a follow-up email from Ms Williams. She told Ms Williams she was not comfortable meeting with him.  She said that she understood the meeting would be facilitated by the Human Resources department but, because Ms O’Reilly was her direct manager, thought they were: 

    … moving forward with everything else.[205]  

    Ms Edgar said that Ms Williams told her that this meeting would cover “performance concerns” and a “list of deliverables” and that she asked Ms Williams over the internal message system if she was being performance managed to which Ms Williams replied that the meeting was to prevent things from getting to that stage.[206] Ms Edgar agreed that during this conversation she asked Ms Williams whether they were addressing her concerns and that Ms Williams told her that that was why she would be attending the meeting.  She said that Ms Williams encouraged her to raise her concerns at the facilitated meeting, rather than specifically with Mr Boxsell or Ms O’Reilly.[207]

    [205] Transcript Day 2, 22 September 2020 (“TD2”) at 125

    [206] TD2 at 126

    [207] TD2 at 129

29. Ms Edgar deposed that she felt unable to seek support or guidance from the Human Resources department because they continually asked her to meet with Mr Boxsell, despite concerns she had raised about her health.[208]  She nevertheless agreed in cross-examination that she was not being forced to meet with Mr Boxsell[209] and that later that day, Ms Williams told her that she would speak to Mr Boxsell.[210]

    [208] Ms Edgar 1 at [128]

    [209] TD2 at 142

    [210] TD2 at 143

30. Ms Edgar deposed that after Ms Williams asked her to meet with Mr Boxsell she experienced a third panic attack during which her vision blurred and, had she not focused on breathing, she would have fainted.  She deposed that the next day, 28 February 2018, she notified Ms Williams by email that being in the same room as Mr Boxsell made her feel unsafe and outlined his conduct toward her.[211]She said in her email that:

    As discussed, I do not feel comfortable sitting in a meeting with Alex on this at this stage. I feel Alex frequently uses his skills as a communications expert to distort statements and stories, removing context, consequently manipulating the message. This type of behaviour makes me feel unsafe.[212]

    Ms Edgar deposed that Ms Williams subsequently told her that she would speak to Mr Boxsell about his behaviour and that the meeting would take place with only her, Ms Edgar and Ms O’Reilly present.[213]

    28 February 2018 – follow up meeting

    [211] Ms Edgar 1 at [129]–[130]

    [212] ACB at 277; Ms Edgar 1 at [AE-16]

    [213] Ms Edgar 1 at [131]

31. Ms Edgar deposed that later on 28 February 2018, she attended a “second, follow up, mid-year performance review” with Ms O’Reilly and Ms Williams because the Mid-year Review had not covered her goals.[214]

    [214] Ms Edgar 1 at [132]

    Discussion regarding Mr Boxsell

32. In cross-examination Ms Edgar agreed that Ms Williams told her during this meeting that she had discussed with Mr Boxsell the issues she had raised and that Mr Boxsell had responded that:[215]

    (a)he had not realised that she had taken a comment in a particular way;[216]

    (b)he understood that he had given Ms Edgar the opportunity to stop and so each of them had a different recollection of what transpired at the Mid-year Review;

    (c)it had not been his intention that the Mid-year Review take as long as it had; and

    (d)neither he nor Ms O’Reilly wanted her to feel humiliated.[217] 

    [215] TD2 at 150

    [216] TD2  at 150–151

    [217] TD2 at 151

1. The effect of s.360 of the FW Act is that if adverse action is taken for a number of reasons, any one that is a substantial or operative factor in the reasons motivating the action is taken to be a reason for the action: Barclay’s case at 535 [103], [104]; 577 [140].

   Who made the decision to dismiss?

2. A preliminary issue arises out of Ms Edgar’s argument that, in addition to Ms O’Rourke and Mr Spanner, Messrs Boxsell, Meltzer and Cross also participated in the making of the decision to dismiss Ms Edgar.  In substance, Ms Edgar’s argument was that Messrs Boxsell, Melzer and Cross were part of the decision-making process rather than simply part of the investigation process.  She argued that all of Mr Cross’s: 

   … decisions as to the conduct of the investigation, the credibility of witnesses, and the recommendations he delivered were part and parcel of the decision making chain that resulted in Ms Edgar’s termination.  So to [sic], were the decisions made by Mr Boxsell and Mr Melzer as to what information to provide Mr Cross.

   Messrs Boxsell, Melzer and Cross’s involvement in the ultimate decision to terminate Ms Edgar was critical.  Each applied their own reasoning process:

   a.Mr Boxsell’s was to provide Mr Cross with a series of denials concerning the conduct alleged against him by Ms Edgar.  This was done in order to deflect the focus of Mr Cross’s enquiry away towards Ms Edgar.  He did so for reasons that included Ms Edgar’s complaints about him.

   b.The same can be said of Mr Melzer.

   c.Mr Cross chose to accept the evidence of Mr Boxsell and Mr Melzer. …  He had an interest in upholding the denials of Ms Edgar’s allegations – in doing so he protected senior staff, and (initially) minimised the risk that Norton Rose would be obliged to remedy (including monetarily) Ms Edgar for Mr Boxsell’s and Mr Melzer’s wrongful conduct.  It can be readily inferred that Mr Cross’s reasons for doing so included the fact that Ms Edgar had made a formal complaint, and that he wished to shut such a complaint down before the firm was exposed to a significant risk.[1524]

   [1524] AWS at [324]–[325]

3. Ms Edgar submitted that Ms O’Rourke simply relied upon Mr Cross (and necessarily, Mr Boxsell and Mr Melzer) to form the view that she should be dismissed as a consequence of her complaints, and Mr Spanner in turn relied upon Ms O’Rourke.[1525]

   [1525] AWS at [329]

4. Although Mr Spanner presumably considered the merits of Ms O’Rourke’s recommendation that Ms Edgar be dismissed before authorising her to take that step, the evidence indicates that, of the two of them, the substantive decision-maker was Ms O’Rourke and that whatever views she had reached concerning Ms Edgar were accepted, and in substance adopted, by Mr Spanner.  Consequently, Mr Spanner’s role need not be considered further.

5. The question whether adverse action was the product of the reasoning process of more than one person is a factual one, depending on the circumstances of the particular case.  Cases in which there has been found to have been more than one decision-maker, such as Gibbs v Palmerston Town Council [1987] FCA 732 and Construction, Forestry, Mining and Energy Union v Clermont Coal (2015) 253 IR 166, have involved the ultimate decision-maker relying on the advice of others on issues material on the appropriateness of taking adverse action against the affected employee. The group of decision-makers may also be expanded to include those who make tendentious statements of fact or fact-finding which affect in a substantial or operative way the decision to take adverse action. However, simple reliance on another person’s advice or statements as to matters of fact is insufficient to prove that an individual’s decision is so affected by the motivations of that other person that the latter becomes sufficiently material to the decision-making process that they should be characterised as a decision-maker. In Gibbs v Palmerston Town Council Gray J said:

   Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor.  At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person.  The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority. (at [75])

6. The present issue is whether Messrs Boxsell, Melzer and Cross were, in effect, part of the decision-making process rather than simply part of the investigation process:  see Ibarra Campoverde v Regional Health Care Group Pty Ltd [2017] FCCA 1502 at [71]-[76] and the authorities cited there. There is no persuasive evidence that they were. Even if Mr Cross’s report recounted evidence in a way that misrepresented the facts or expressed conclusions that lacked good faith because they were motivated by animus arising out of Ms Edgar’s complaints, there was no evidence that Ms O’Rourke was aware that the report was affected by such shortcomings. Further, the evidence did not support a conclusion that Ms O’Rourke doubted the accuracy of the investigation report and so her decision-making would not have been tainted by what Ms Edgar alleges were the improper purposes of Messrs Boxsell, Melzer and Cross: Gibbs v Palmerston Town Council at [114]. Moreover, as will be considered more fully shortly, it is apparent that Ms O’Rourke exercised independent judgment when deciding what was to be done in relation to Ms Edgar and based her decision and recommendation to Mr Spanner on objective evidence of Ms Edgar’s attitude to her more senior colleagues in the Marketing department and of conduct engaged in by her distinct in character from the making of complaints.

   Reasons for dismissal

7. First, it is to be noted that the conclusions Mr Cross reached in relation to Ms Edgar’s complaints were relevant to her dismissal only to the extent that upon receipt of the investigation report, Ms O’Rourke drew the rational conclusions that Ms Edgar did not want to work with Mr Boxsell or Mr Melzer and that it was unclear how they could work together in the future.  So much was apparent from Ms Edgar’s allegations alone.  It is important to note in this regard that after advising Ms Edgar that Mr Cross had found that her allegations against Mr Boxsell had not been substantiated and that her complaints against Mr Melzer had not been made out either, the show-cause letter of 5 April 2020 referred to “Negative/Disparaging Communications”, saying:

   On the basis of the documents supplied to the Investigator in the course of his enquiries by you and others, the Investigator found there is a practice of you communicating negative information about Alex to other members of staff and seeking the concurrence and sympathy of those staff members.  This is unacceptable, unprofessional and non-collegiate behaviour and is inconsistent with the firm’s culture and values.

   The Investigator found an unwillingness by you to concede anything positive about Alex at all, including the overseas and local trips arranged for you to attend the Perth and Jakarta offices.  The investigator also noted that “there was a desire to characterise Alex’s actions in a negative light whatever the circumstances”.  This was further highlighted in a lync message you supplied in the course of the investigation where a colleague has drawn the same conclusion, noting that “you appear to be on some mission to discredit [Alex].”  Writing about colleagues or managers in a disparaging manner to employees not involved in the issues at hand does not align with the firm’s culture and values.[1526] 

   [1526] Ms Edgar 1 at [AE-29]

   The letter relevantly continued:

   In light of the Investigator’s findings, the following issues affect your ongoing employment:

   •The working relationship between you and Lex and Alex has been strained as a consequence of the [unsustained] complaint you made against them.

   •Having regard to the size and structure of the Marketing Team it is not possible for the Firm to agree to your request to change your reporting lines away from Lex and Alex.  Trust and confidence has broken down as a result of the negative/disparaging comments made to others regarding Alex.

   •You have said on a number of occasions that you do not feel safe at work and working with Alex and Lex.  Whilst we don’t accept from an objective perspective that your work environment is unsafe, you have continued to inform us that you feel unsafe.

   The breakdown in trust and confidence, our inability to restructure the Marketing Team, such that you do not report to Alex and/or Lex, your continued assertions that you feel unsafe working with Alex and Lex and the non-availability of any suitable alternative role for you within the Firm, cause us to reach the preliminary view your ongoing employment with the Firm is untenable and your employment should end.[1527] 

   The letter went on to invite Ms Edgar to show cause why her employment should not be brought to an end.  Importantly, despite Ms O’Rourke’s concerns regarding how Ms Edgar could work with Mr Boxsell and Mr Melzer, her evidence, which I accept, was that she had been open to Ms Edgar showing that it would be feasible for her to return to the marketing team.[1528]

   [1527] Ms Edgar 1 at [AE-29]

   [1528] Ms O’Rourke at [45]

8. In her response,[1529] Ms Edgar demonstrated that she did not accept Mr Cross’s findings on her complaints.  She also submitted:

   My employment with the Firm should not be terminated because Alex and Lex’s bullying behaviour has caused a strained working relationship.

   and

   The trust and confidence between myself and Alex and Lex has only broken down because I raised this complaint. …[1530]

   Ms Edgar also suggested that she could report to Mr Pratap and argued that she had not made disparaging comments about Mr Boxsell but had only recounted the facts and her feelings about them. 

   [1529] ACB at 1644

   [1530] ACB at 1645

9. Ms O’Rourke’s evidence was that it was Ms Edgar’s failure to address satisfactorily the issues raised in the show-cause letter that led her to conclude that her employment had to be terminated.  That was a conclusion independent of any supposed tendentiousness in the evidence that Mr Boxsell and Mr Melzer had given to Mr Cross or in the findings expressed by Mr Cross in his investigation report.  I appreciate that Ms Edgar argued that following her receipt of Mr Cross’s report Ms O’Rourke had more meetings than she deposed to or said she could recall and had agreed that in the absence of a recollection it was possible that she had had conversations with others in the Human Resources department as well as with Mr Boxsell and Mr Melzer,[1531] but the occurrence of the supposed meetings was no more than speculation and must be dismissed for that reason. The evidence does not support a conclusion that Ms O’Rourke’s decision to terminate Ms Edgar’s employment was based on or influenced by considerations other than those to which she deposed and which were summarised earlier in these reasons at [501]. It should also be recorded that Ms O’Rourke deposed that her reasons for dismissing Ms Edgar did not include the latter’s complaints about the workplace or her stress, anxiety, loss of sleep and heart palpitations, if she suffered those conditions, which Ms O’Rourke deposed had not been demonstrated by medical evidence.[1532]

   [1531] AWS at [83]

   [1532] Ms O’Rourke at [79]–[80]

10. Ms Edgar made it perfectly clear to the respondents that she did not want to work with Mr Boxsell and Mr Melzer, notwithstanding that the reasons she advanced for that had not been substantiated on investigation.  That, together with her attitude to her earlier communications disparaging of Mr Boxsell, demonstrated a significant lack of trust and confidence in them, who were more senior employees in her business unit and individuals with whom she would be required to interact from time to time by reason of the size and structure of the unit.  Because Ms Edgar was employed to work in the structure designed by NRFA Services, an Australian operation,  it is not to the point that a reporting line to Mr Pratap in Canada, who in any event had global rather than regional or parochial responsibilities, might conceivably have been possible.

11. Ms O’Rourke’s letter of 9 May 2018 dismissing Ms Edgar[1533] observed that the latter’s response to the show-cause letter had not put NRFA Services’ mind at rest.  It said in that regard:

    [1533] RCB at 2125

    1.The working relationship between you and Lex and Alex has been strained as a consequence of the [unsustained] complaint you made against them.

    You have not indicated in your show cause response how you would envisage continuing to work with team members that you have made unsustained complaints about.  In your submission you have raised the same assertions against Alex and Lex that were raised in your formal complaint.  These allegations have already been investigated and were not sustained.

    Your restatement of your prior assertions against Alex and Lex lead me to conclude that the strained relationship between you and Alex and Lez is not likely to ever be repaired to a sufficient extent to permit you to return to your duties.

    It went on to explain that in NRFA Services’ view it was inappropriate that Ms Edgar report to Mr Pratap when her role involved support to Mr Melzer in his delivery of the “NRFA Marketing and Business Development” strategy and how NRFA Services:

    … cannot envisage how you could properly perform your duties in the absence of a reporting line to Alex and Lex.

    The letter observed that Ms Edgar had stood by the comments she had made to Ms Panoiu in circumstances where the show-cause letter had stated that that conduct had been unacceptable, unprofessional and non-collegiate and that this led Ms O’Rourke to conclude that:

    … you:

    •do not accept that your conduct in this respect was unacceptable; and

    •have no contrition about your conduct that was found to be unacceptable, unprofessional and non-collegiate and inconsistent with the Firm’s culture and values.

    The letter stated that those matters indicated that Ms Edgar was not likely to ensure that her future interactions with and communications about Mr Boxsell would be appropriate, professional, collegiate and in alignment with the firm’s culture and values at all times.  After addressing Ms Edgar’s claim of not feeling safe at work the letter advised her that her employment was terminated.

12. In submitting that Ms O’Rourke’s decision was motivated by a prohibited reason, Ms Edgar referred to the heading on the first page of the dismissal letter: [1534]

    1.The working relationship between you and Lex and Alex has been strained as a consequence of the [unsustained] complaint you made against them.

    She submitted that that was clear evidence that the decision to terminate was made because of the complaint.  That is not correct.  Properly understood, the concern was not that complaints had been made in the past but that Ms Edgar would not move on once she had failed to substantiate them and had indicated by her response to the show-cause letter that a harmonious working relationship between her and Messrs Boxsell and Melzer was not in prospect.

    [1534] TD15 at 20, 39

13. Having regard to all the circumstances, I accept Ms O’Rourke’s evidence that her reasons for deciding to dismiss Ms Edgar were based on Ms Edgar’s attitude in April 2018 to her senior colleagues, Mr Boxsell and Mr Melzer. I do not accept the argument that a substantial and operative reason for her dismissal was because she had made complaints against them and find that the s.361 presumption has been rebutted.

    COMPENSATION

14. In the event that I am incorrect in concluding that the respondents did not contravene the FW Act as Ms Edgar alleges, mention should be made of her claim for damages.

15. Ms Edgar alleged that she had suffered the following loss and damage as a result of the conduct she alleged against the respondents:

    (d)loss of past income;

    (e)loss of future income;

    (f)pain, suffering, stress, anxiety, humiliation, dislocation to life;

    (g)reputational damage; and

    (h)past and future medical expenses.

16. For the purposes of this discussion I will assume that all of Ms Edgar’s pleaded allegations against the respondents were made out. 

    Psychiatric injury and impairment

    Injury

17. Ms Edgar submitted that she suffered from adjustment disorder with mixed anxiety and depressed mood which was caused by bullying and harassing conduct and which had been exacerbated by her dismissal.[1535] 

    [1535] AWS at [337]–[338]

18. On the stated assumption that the allegations against the respondents have been proved as a matter of fact, the evidence would support a conclusion, because her symptoms were greater than expected, that from about July 2017 and into the period following the termination of her employment, Ms Edgar suffered from adjustment disorder with depressed and anxious mood.  There being no evidence of a pre-existing condition, identified non-work related stressors or a frank psychotic disorder, it can be accepted for present purposes, and assuming proof of the other allegations against the respondents, that Ms Edgar’s condition arose out of her employment.  As Dr Smith recorded:

    Ms Edgar’s perception is that the [sic] she was bullied and harassed by her employer and unfairly terminated, leading to the development of anxiety and depressive symptoms which present clinically as an adjustment disorder.[1536]

    and as Dr Walker similarly recorded, the cause of Ms Edgar’s symptoms was feeling bullied and being dismissed.[1537]

    [1536] Dr Smith 2 at [CS-5] 9

    [1537] Dr Walker 1 at [KW-2] 8

19. The American Psychiatric Association’s DSM-5 and the World Health Organisation’s ICD-11 criteria for adjustment disorder, portions of which were annexed to Dr Walker’s first report, describe it as a condition which resolves within 6 months of the causative stressor ending.  Dr Smith stated in his first report that since termination Ms Edgar had “suffered from persistent anxiety and depressive symptoms consistent with a DSM-V diagnosis of Chronic Adjustment Disorder with Depressed and Anxious Mood” but did not explain in express terms what significance the inclusion of the word “chronic” in his diagnosis had.  Dr Walker said in cross-examination that he could not find any reference in DSM-5 to “chronic adjustment disorder”.[1538]In light of what Dr Smith said in his second report, and that the notes of Ms Edgar’s treating psychologist indicated that she had persistent symptoms until at least August 2020, the implication is simply that Ms Edgar’s condition was of long duration and, most relevantly, of a duration beyond the six month period following her dismissal. 

    [1538] TD13 at 1049

20. That raises the issue whether the last in time stressor was, in fact, Ms Edgar’s dismissal or something else.  Dr Walker records Ms Edgar having said to him in their interview on 21 July 2020 that:

    … she felt bullied by Mr Boxsell while working for Norton Rose from December 2016 until May 2018.  I neglected to ask, but assume she feels the termination of employment was unjust.  Therefore, the cause of her symptoms and possible adjustment disorder are feeling bullied, and the termination of her employment.[1539]

    However, in his third report, dated 22 September 2020, Dr Smith said:

    Ms Edgar may take up to six months to recover her health, consistent with the natural history of adjustment disorders.  This six month timeframe begins from the termination of the stressor which in this case is ongoing until such time as proceedings have concluded and a judgement has been handed down.  Furthermore, an unfavourable judgement may extend the recovery period.[1540] 

    [1539] Dr Walker 1 [KW-2] 18

    [1540] Dr Smith 3 at [CS10] 5

1. Dr Walker agreed in cross-examination that if this litigation were a stressor then Ms Edgar could, at the time of the trial, “still meet diagnostic criteria” but went on to note that although she had been certified unfit for three days in May 2018 when her employment was terminated, she had not been certified unfit subsequently, which suggested to him that the stressor was the termination of her employment in May 2018.[1541]  Although Dr Walker was aware of Ms Edgar’s treating psychologist’s notes recording his 6 consultations with Ms Edgar in the period 1 May 2020 to 5 August 2020, all of which stated a diagnosis of adjustment disorder with mixed anxiety and depressed mood, it appears that he considered them only in the context of Ms Edgar’s claims of psychiatric impairment, rather than as evidence of possible, persistent symptoms of adjustment disorder.

   [1541] TD13 at 1050

2. In the circumstances and making the factual assumptions referred to earlier, were it necessary I would find that, at least under DSM-5, Ms Edgar was still suffering adjustment disorder in August 2020 which indicates that the litigation was a material stressor.  On that basis, I would also find that it ought to be expected that Ms Edgar’s condition would resolve 6 months after judgment which, for present purposes, is assumed to be in her favour.

   Impairment

3. Dr Smith described the adjustment disorder’s impact on Ms Edgar as lack of confidence, fear of social media, anxiety, avoidance of communication with clients, lack of motivation and need for reassurance.[1542]  Dr Walker referred to the Psychiatric Impairment Rating Scale (“PIRS”) used to assess permanent impairment of workers’ compensation and motor accident injury claimants in New South Wales and concluded that Ms Edgar fell into that document’s lowest categories and that, by reference to the following areas of function, she was not psychiatrically impaired:

   [1542] Dr Smith 1 at [CS-1] 10

   1.  Activities of daily living

   A. Self Care and Personal Hygiene
   B. Social and Recreational Activities
   C. Travel

   2.  Social functioning (relationships)
   3.  Concentration

   4.  Adaptation[1543] 

   I acknowledge that Dr Walker did not complete what was described as a “rating form” which would have disclosed his reasons for his assessment[1544] but I place little weight on that fact given that he stated in his second report that he had used the PIRS to arrive at his conclusion.

   [1543] Dr Walker at [KW-9] 275

   [1544] TD13 at 1063

4. When it comes to assessing impairment, I prefer Dr Walker’s approach, which is based on a recognised tool used to assess, for medico-legal purposes, impairment caused by psychiatric injury or illness.  It brings a useful element of objectivity to the issue.  Notwithstanding that Ms Edgar suffered adjustment disorder, I find that it did not cause her psychiatric impairment.

   Loss and damage

5. Even assuming proof of the matters referred to earlier, as Ms Edgar did not suffer psychiatric impairment, no compensation based on her adjustment disorder lies for the reduction in her earnings following her dismissal.

6. In relation to compensation in the nature of general damages, the authorities make it clear that compensation of that sort can be awarded under s.545(1) of the FW Act: James Cook University v Ridd (2020) 278 FCR 566 at 599 [155]–[157] and the cases cited there. The issue under the FW Act is what, if anything, is the loss suffered by Ms Edgar for which compensation should be ordered. In assessing monetary compensation under the FW Act, the Court may be guided, by way of analogy, by the general principles governing the assessment of damages in tort: Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334. The question to be addressed so far as injury to feelings and humiliation is concerned is a factual one - what was the effect on the complainant of the conduct complained of: Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217 per French J at 281?

7. The effects that the assumed conduct is reported to have had on Ms Edgar have been recounted more than one in these reasons and it is not necessary to repeat them here.  Given Dr Smith’s report I accept that Ms Edgar did suffer distress and upset as a result of what she perceived to be happening to her.  Assuming that that distress and upset was caused by the conduct that is assumed for present purposes to have occurred, I would order by way of compensation that $90,000 be paid to Ms Edgar by NRFA Services. 

8. On the same basis I would award Ms Edgar her past medical expenses, subject to proper proof and quantification, and future medical expenses for the next six months, also subject to proper proof and quantification.

   Unlawful dismissal

9. Assuming that a substantial or operative reason for Ms Edgar’s dismissal was that she had made one or more of the complaints she particularised, then that dismissal contravened s.340(1) of the FW Act and she would be entitled to be considered for compensation under s.545(1) of that Act. The respondents pointed to the fact that Ms Edgar’s employment contract provided that she could be dismissed without cause on 8 weeks’ notice and that she had been paid 8 weeks’ pay in lieu of notice together with accrued salary and entitlements. They argued that she had been dismissed in accordance with that provision and so was entitled to no additional compensation for the assumed contravention of s.340(1).[1545]

   [1545] RWS at [141]

10. An employer is entitled to terminate an employment contract in the manner most beneficial to it and that is a matter that can be taken into account when determining what compensation is appropriate under s.545(1), where compensation is limited to the loss caused by the contravention: Bostik (Australia) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20 at 32-33; Dafallah v Fair Work Commission (2014) 225 FCR 559 at 597 [161]; PIA Mortgage Services at 238 [50]; Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448 at [34]. Although the assumptions upon which this discussion is occurring require the Court to disregard what I have found to have been NRFA Services’ reason for dismissing Ms Edgar and assume that she was dismissed because she had made complaints, the fact nevertheless is that by April 2018 Ms Edgar did not want to work with Mr Boxsell or Mr Melzer and it was not made clear in this proceeding what steps could have been taken by NRFA Services and what steps would have been taken by Ms Edgar to normalise those relationships were she to have remained at NRFA Services. Absent the re-establishment of effective working relationships is it likely that NRFA Services would still have dismissed Ms Edgar in accordance with the terms of her contract or she would have resigned to pursue other opportunities. In the latter regard, although I note that Ms Edgar denied it in her affidavit in reply of 18 September 2020,[1546] Mr Hall recalled a conversation with her at lunch in March 2018 during her suspension:

    During the lunch, Ms Edgar mentioned that she had a couple of immediate business opportunities both with small law firms and individuals.  I also recall her saying words to the effect of:  ‘I am definitely not coming back and that suits me.  Some big stuff is going to go down but I can't talk to you about it.’ …[1547]

    [1546] Ms Edgar 3 at [41]

    [1547] Mr Hall at [22]

11. For the reasons given earlier, I prefer Mr Hall’s recollection. I also note Ms Edgar’s own evidence cited earlier at [147] that in late March or April 2018 she had met with a partner at Brown Wright Stein who suggested that she start her own business and that they could be her first client.

12. In the circumstances, if Ms Edgar had not left NRFA Services when she did, I find that she would have done so not long after, whether through resignation or dismissal.  I estimate that she would not have worked there for more than two further months and I would, if required to, award her as compensation for loss of earnings the difference between what she in fact earned through her own exertions in the two months after 9 May 2018 and what she would have earned had she remained with NRFA Services during that period.

    CONCLUSION

13. The application will be dismissed.

I certify that the preceding eight hundred and eleven (811) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       9 June 2022