Freemantle v State of Victoria
[2020] VMC 9
•1 MAY 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. J13157931
| GREGORY STUART FREEMANTLE | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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MAGISTRATE: | M HOARE |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 18 – 20 FEBRUARY 2020 |
DATE OF DECISION: | 1 MAY 2020 |
CASE MAY BE CITED AS: | FREEMANTLE V STATE OF VICTORIA |
MEDIUM NEUTRAL CITATION: | [2020] VMC009 |
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CATCHWORDS – Workplace Injury Rehabilitation and Compensation Act 2013 ss.39(1), 40(1), 40(7) – Workers Compensation – Rejection of Claim – Mental Injury – Investigation following Accusation of Sexual Assault against Secondary School Teacher - Whether Management Action on Reasonable Grounds and in a Reasonable Manner – Meaning of Reasonable – Expectations by the Worker as to Management Action
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Ms S. Bailey | Arvia Lawyers |
| For the Defendant | Mr J. Batten | Thompson Geer |
HER HONOUR:
Introduction and Overview
For over 30 years, Mr Freemantle has been employed by the Department of Education and Training (‘the Department’) as a secondary school teacher. He has been a full-time physical education teacher since 1982 at St. Helena Secondary College (‘the School’).
On 27 November 2017, Mr Freemantle was notified by the School of an accusation that he had sexually assaulted a student on 24 November 2017 during a physical education lesson at the School (‘the accusation’). For the purposes of the hearing, the student was identified only as ‘AN’ and remained anonymous.
At all times, Mr Freemantle maintained the accusation was false. Police investigated and ultimately made the decision to take no further action, having determined no offence occurred.
The School, in response to the reported accusation, enacted the Department’s Critical Actions for Schools template with prescribed steps including notifying police and the Department and ensuring the child’s safety. The Department commenced a formal investigation and suspended Mr Freemantle from duty pending the investigation. The Department, following investigation, determined there were no grounds for action against Mr Freemantle and his suspension from duty was discontinued.
Mr Freemantle claims he suffered psychological injury arising out of or in the course of his employment with the Department by reason of the accusation and the stressors that flowed directly from the accusation. He seeks weekly payments of compensation and medical and like expenses. Two claims for compensation were lodged as follows:
a.A claim lodged on 16 May 2018 for psychological injury sustained on 29 March 2018 as follows: ‘The failure of my employer to support me with my return to work has inflicted this injury. Had proper support and assistant [sic] been provided, I would not have sustained this injury. My injury occurred as a result of their lack of support and not due to the managerial action taken to suspend me from duties’ (‘the first claim’).
b.A claim lodged on 28 August 2018 for psychological injury sustained on 27 November 2017 as follows: ‘Being falsely accused by student of sexually assaulting her, being arrested, stress associated with police dealings, rumours at school about my conduct, lack of support from school, general stressors associated with normal teaching duties returning to a school environment and being subject to further false allegations, stress with delays in which I was subject to with investigation [sic]’ (‘the second claim’).
Both claims were rejected on the ground that Mr Freemantle’s mental injury was of the type which does not create an entitlement to compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) as it was caused wholly or predominantly by the employer’s management action taken on reasonable grounds and in a reasonable manner or by any expectations of the worker that management action would or would not be taken.
The hearing proceeded over three days. Mr Freemantle gave oral evidence. He also called a former teacher from the School, Ms Nicole Burrows. The defendant called the School’s principal, Ms Karen Terry, and an associate principal of the School, Ms Jennifer Heathcote. No medical witnesses were called and various reports were tendered by the plaintiff. Parties provided written submissions as to agreed facts and the law after the evidence concluded.
The plaintiff filed an amended statement of claim dated 18 February 2018, which in essence pleaded psychological injury by reason of:
a.the accusation itself; and/or in the alternative,
b.the accusation and/or consequential stressors; and/or the defendant’s unreasonable management action.
The defendant filed an amended notice of defence dated 18 February 2018 admitting that the plaintiff suffered mental injury and maintaining its denial of the claim on the basis the mental injury was caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner.
Agreed Facts and Matters Not in Issue
10.Further factual matters of significance that were not in dispute were as follows:
a.The accusation was that on Friday 24 November 2017 during a physical education class on the School oval, Mr Freemantle had placed his hand on the student AN’s shoulder and ran his hand down her back until it rested on her buttock for some ten seconds (‘the alleged conduct’). The School was informed of the accusation by AN’s mother on Monday 27 November 2018.
b.On 22 December 2017, Mr Freemantle was telephoned by a detective senior constable with Victoria Police and advised that CCTV footage of the oval where the alleged conduct took place had been viewed and that ‘off the record’ no charges would be laid, although formal ‘sign off’ was still required by a superior officer.
c.On 22 February 2018, Mr Freemantle first attended his GP, Dr Robert Murdoch, for psychological treatment. He was subsequently referred to a psychologist Mr Graham Little on 16 May 2018 whom he first consulted on 6 June 2018.
d.On 3 March 2018, Victoria Police formally advised Mr Freemantle in writing of its decision not to prosecute on the basis of no offence having occurred.
e.On 17 March 2018, the Department wrote to Mr Freemantle advising there were no grounds for action against him and accordingly his suspension was discontinued. He was also informed in that letter that the student AN still held the belief that the alleged conduct had occurred. He was instructed in the letter to contact the School to arrange his return to work.
f.On 23 March 2018, Mr Freemantle telephoned Ms Heathcote and said he was anxious but that he would come into School at the end of term for a hand-over. A return to work meeting was arranged for 29 March 2018, being the last day of term.
g.On 29 March 2018, a meeting took place between Mr Freemantle and Ms Heathcote with Mr Freemantle accompanied by a colleague in the role of a support person, Ms Burrows.
h.Mr Freemantle informed Ms Heathcote in the term break that he would not be able to return to work in term two. He has not resumed his pre-injury duties or any form of employment since that time.
Evidence for the Plaintiff
Mr Freemantle’s Evidence
Personal History
11.Mr Freemantle, who is married with three adult daughters, said he has always been generally well, having fully recovered from a stroke suffered in 2009.
The Accusation and Events Immediately Following
12.Mr Freemantle described in detail the circumstances of the alleged conduct on 24 November 2017. Three Year Nine physical education classes of about 70 students (including AN) were time-tabled together for round robin ball games. Two teachers in addition to Mr Freemantle were supervising. The alleged conduct had apparently occurred when Mr Freemantle and AN came to a meeting point in the task of laying witches hats along two perpendicular lines. Mr Fremantle said he recalled a brief verbal interaction with AN but that there was no physical contact. In the course of Mr Freemantle’s evidence, the Court viewed two extracts of CCTV footage from school cameras of the interaction on oval. The first, viewed during in evidence in chief, showed that interaction between Mr Freemantle from a camera that appeared to be a very considerable distance across the oval. The second, viewed in cross-examination, was from another camera in which the vision of the interaction was obscured by a pole.
13.In evidence, Mr Freemantle described being called to the principal’s office on 27 November 2017, being informed by police of the accusation and arrested. His initial reaction, he said, was that he was bemused, but happy to accompany police to the station for interview because he had nothing to hide. After being fingerprinted, police advised him there would be an investigation and that he may be charged at some point. Mr Fremantle said that after 30 years of teaching this was ‘a first’ for him. He started to appreciate the gravity of his situation at the police station and the implications of the accusation.
14.In cross-examination, an audio-visual recording of the police interview of 27 November 2017 was viewed by the Court. Mr Fremantle‘s demeanour in the police interview was calm and measured. He denied the accusation and said it represented a slur on him.
15.That evening Mr Freemantle told his wife and daughters of the accusation which was a distressing experience. Mr Freemantle spoke with the school principal that evening. She mentioned she had emailed him that afternoon and confirmed with him that in accordance with departmental policy he should not attend school the following day pending a formal notice of suspension. Mr Freemantle said it was upsetting to wake the next day and realise he would not be going to work and the reason for that. He said he struggled from then on and that everything stemmed from that point.
16.Mr Freemantle received a letter from the principal dated 28 November 2017 which stated: ‘I have formed the view that this allegation may have substance. Accordingly I will be writing to the Regional Director to advise that there may be grounds for action against you under the Education and Training Reform Act 2006 and to recommend the commencement of an inquiry pursuant to … the Act’. The letter advised that disciplinary action may result in dismissal and referred to the Department’s ‘Guidelines for Managing Complaints, Unsatisfactory Performance and Serious Misconduct in Relation to Teachers’. He was advised of the availability of counselling through the Department’s Employee Assistance Program.
17.The Department sent to Mr Freemantle a formal notice of suspension with pay dated 7 December 2017 under the Education and Training Reform Act 2006. The letter advised: ‘suspension from duty is a temporary measure taken without prejudice to the substance of the allegations under investigation. This means that your suspension is not taken into account when reaching an outcome, nor will it be used as evidence against you. It is also non punitive, meaning that the suspension is not considered to be a consequence and is used as a precautionary measure. …’
18.The letter invited Mr Freemantle to submit any matters relevant to the decision to suspend him and that a formal decision would follow. He was advised not to attend [the School] without permission and not to approach staff or students. He was advised of the availability of the Employee Assistance Program.
19.In evidence, Mr Freemantle said the content of the letters of 28 November 2017 and of 7 December 2017 did not cause him particular stress as he viewed the correspondence as confirming the process of which he was aware as a long-standing employee of the Department.
20.Mr Freemantle said that the day after learning of the accusation he felt out of his depth and needed help. He contacted his union and was referred to a criminal lawyer whom he consulted in the weeks following. He said he was devastated by the criminal lawyer’s advice that if the student’s accusation was corroborated, he could do jail time.
21.Regarding his state of mind in the period between 27 November 2017 and hearing from police on 22 December 2017, Mr Freemantle said he sat at home for three weeks avoiding people. He said ordinarily he went running four times a week, but lacked energy or inclination to do so. He said he had zoned out of life and had continuously ruminated on what the criminal lawyer had said about the prospect of imprisonment. His sleep was affected. Mr Freemantle said at that stage he felt no need to seek medical assistance as he has always been a person who placed great store on his mental attitude and the power of positive thinking. He said he was feeling increasing anxiety about how the situation might play out although he done nothing wrong. He still believed the situation would be resolved by the start of the new school year.
22.Mr Freemantle described relief at hearing from police on 22 December 2017 and being told informally no action would be taken. Mr Freemantle said he was told police had obtained CCTV footage of the interaction on the oval between himself and the student that cleared him. He said the police officer told him that the school had also been similarly informed. Mr Freemantle said he felt a load off his mind after the call especially coming as it did three days before Christmas and at the start of the summer holiday period.
23.He said he did not hear anything further from Ms Terry or from the Department again either after that call or prior to the end of the school year.
Further Investigation into Alleged Conduct and Outcome
24.Mr Freemantle said he had told police in interview on 27 November 2017 that there may be CCTV cameras overlooking the oval.
25.By 23 January 2018, after Mr Freemantle had heard nothing further from the Department or from the School, he emailed Ms Carmel White of the Department seeking an update. In the email, he referred to the phone call from police on 22 December 2017 and to the police having viewed CCTV as ‘validating what I had told them from the outset.’ Ms White replied by email and apologised, stating that police had not provided an indication of timelines.
26.Mr Freemantle said he then heard nothing further from the School, the Department or police until March.
27.In relation to his state of mind at this point, Mr Freemantle said he was feeling ongoing anxiety, triggered by things such as going to the letterbox or the phone ringing. He described a sense of floating along with no control of his destiny as he had still not heard anything from the school. He said he tried to cope by trying to keep a balanced approach to life and learning to compartmentalise his emotions.
28.In evidence, he said he decided to seek support from his longstanding GP Dr Murdoch on 22 February 2018. He had thoughts of returning to work but had come to feel that it would be a challenge.
29.After Victoria Police confirmed (by letter dated 3 March 2018) no action would be taken regarding the accusation, Mr Freemantle received the Department’s letter of 17 March 2018 that advised there were no grounds for action and of the end of his suspension. He was to contact the School regarding his return to work. The letter also advised Mr Freemantle of the following:
“You need to be aware the student who made the complaint against you remains firmly of the perception that the conduct she alleged did occur and she is likely to experience some degree of disquiet upon your resumption. You will need to be cognisant of this and I recommend that you ensure that all your interactions with her are unambiguous so that they cannot be misperceived“.
The letter concluded with a reminder of the availability of the Employee Assistance Program counselling.
30.In evidence, Mr Freemantle said his main reaction to the letter of 17 March 2018 was feeling that there was no acknowledgement he had done nothing wrong nor that he had been the victim not the offender.
31.In cross-examination, Mr Freemantle agreed that as a senior teacher of over thirty years’ experience he was aware of the Department’s procedures that followed an accusation of the kind made by AN. He conceded that was the case irrespective of the veracity of an allegation. He said the Department’s process was flawed because the School had exculpatory evidence being the CCTV footage that ought to have been considered sooner and would have sorted the whole thing out. He agreed that notifying police was a mandated part of the Department’s procedure following an accusation of the kind faced by Mr Freemantle. Mr Freemantle conceded it was not the role of the principal nor of the school leadership team to provide him with support. He agreed could have accessed counselling via the Employee Assistance Program, although he had not done so because, as an old-fashioned male, he didn’t feel it would benefit him.
32.He said he did not contact the School regarding return to work until 23 March 2018 because the letter of 17 March 2018 caused him to examine his feelings about whether he wanted to return to work. He also wanted union advice and his union representative was on leave.
Meeting on 29 March 2019
33.In evidence, Mr Freemantle said he attended the meeting on 29 March 2018 with Ms Heathcote with a support person, Ms Burrows. He said he went into the meeting wanting clarity on his own situation and the practicalities of returning to work. His impression was that the focus of the whole meeting was on the welfare of the student AN who remained at the school. Mr Freemantle said he wanted to know about the practicalities of his return and the possibility of contact with the student given her continued perception that the alleged conduct had occurred. He expressed anxiety about the rumours in the School and the wider local community. As an example, he told Ms Heathcote of his distress that his elderly mother had been questioned by her friends about the alleged conduct.
34.In cross-examination, he agreed he questioned Ms Heathcote about whether she realised he was innocent and that the CCTV cleared him. He agreed he wanted to know why the student had received so much support and what support would be offered to him as the innocent party. He said he felt there was support for the student, but that the school had given no thought to him. He agreed he was ‘hell-bent’ on knowing what the consequences would be for the student AN, but said denied he meant of a punitive nature, but treatment for continuing to believe something false. He wanted to know what would stop the student AN or indeed other students making other such allegations against him or other members of staff in the future. Ms Heathcote made it clear to him there would be no consequences for the student.
35.Mr Freemantle told Ms Heathcote that he would contact her during the holidays and let her know how he felt about a return to work in term two. He agreed he remained at school on 29 March 2018 for the full day, although he felt upset after the meeting.
36.In cross-examination Mr Freemantle agreed that Ms Heathcote had asked him whether he had union support or hard accessed support via Employee Assistance Program and he told her he hadn’t and that he felt supported by his family.
37.Mr Freemantle said, in evidence, in the days following the meeting of 29 March 2018, his symptoms got worse. He felt devastated that the meeting on 29 March 2019 about his return to work had not been successful . He held grave concerns about his ability to work at that or any other school and felt upset and disappointed.
Lodgement of claim forms
38.Mr Freemantle gave evidence in relation to his lodgement of the first and second claims for compensation. He agreed the first claim, which was lodged on union advice, with a stated date of injury of 29 March 2018, in addition to the basis for the claim set out previously, also stated: ‘I attended a meeting to discuss my return to work. The principal did not provide any support and only discussed the well-being of the child’. In cross-examination, he agreed he told Dr Murdoch he was devastated by the rejection of his first claim for compensation. He agreed the second claim was lodged based on subsequent legal advice.
Current circumstances
39.Mr Freemantle said his symptoms have over time improved or levelled out, but he remains anxious. He did not feel he could return to work at the School or any other school. His sleep remains affected by constantly ruminating on the accusation and its consequences including the criminal lawyer’s advice that he could have faced imprisonment. Mr Freemantle said he held fears of being the subject of another similar allegation when there may not be CCTV footage to clear him.
40.Mr Freemantle said he continues to feel nervous and upset by triggers such as the phone ringing and letters in the mailbox. He avoids the vicinity of the school, and the local shopping centre. He worries about people thinking of him as a sex offender. He feels his pride in his long career in teaching has been taken from him and that he now feels differently about his career. He feels uncertainty about his future because of what happened. He said he no longer had trust in either the School or the Department. Mr Freemantle denied, in cross-examination, that he had been considering early retirement prior to the accusation. He recognised that the finish of his career was looming given his age, but he said he still had career goals and wanted to work on for some years. He had wished to resume his teaching role at the School, aspiring to end his career with his name on the school honour boards. He also wanted to keep working for financial reasons prior to retirement.
41.Mr Freemantle continues to be treated by Dr Murdoch who provides monthly certificates that he is unfit for any work. Mr Fremantle, who remains an employee of the Department, said he was on full pay until his suspension was lifted. He was on for sick pay until that was exhausted in September 2018. He then went on long service leave and then half long service leave until that was also exhausted.
Ms Burrows’ Evidence
42.Ms Nicole Burrow, a teacher at the School between 2008 and 2018, is a current employee of the Department.
43.Ms Burrows agreed she attended the meeting on 29 March 2018 at the request of Mr Fremantle as a colleague because she had also been at the school for a long time. She recalled Ms Heathcote had enquired of Mr Freemantle as to how was feeling and he had expressed relief that it was behind him. She said there was a discussion about the student’s accusation after Mr Freemantle had asked Ms Heathcote what she knew of the incident.
44.Ms Burrows’ evidence was that Ms Heathcote had used language that sounded like she believed the student AN’s story and that AN had been hysterical when reporting the alleged conduct. She said Mr Freemantle referred to the CCTV footage having cleared him.
45.Ms Burrows said she recalled Mr Fremantle enquiring about what was being done by the School regarding practicalities of timetabling of classes and yard-duty given the student was still at the School. Ms Burrows said no real answers were provided other than to say, conversations would have to be had and procedures would have to be followed.
46.Ms Burrows recalled Ms Heathcote reminding Mr Freemantle that he needed to keep in mind that the student AN had, before formally reporting the alleged conduct to the school, had informed friends and other students and lots of families were aware of the events that had led to Mr Fremantle’s absence from school. Ms Heathcote talked about the welfare of the student and that she was having counselling. Mr Freemantle asked where the support was for him and expressed upset that he had not been contacted by anyone from the School throughout the whole process. Ms Heathcote referred to the Employee Assistance Program and had pointed to a poster on the wall.
Evidence for the Defendant
Ms Terry’s Evidence
47.Ms Karen Terry, an employee of the Department for over two decades, had been principal of the School since 2011. Ms Terry said after the accusation was reported to her on 27 November 2017, she enacted and followed the steps of the Department’s Critical Actions for Schools template that involved notifying police, the Department, the regional office and ensuring the safety of the child.
48.Ms Terry said after Mr Fremantle was called to her office, she introduced him to police who arrested him. She emailed him that afternoon to let him know he should not attend school pending formal suspension from duty and reminding him of the Employee Assistance Program counselling. She also spoke with him that evening. She sent Mr Freemantle the letter of 28 November 2018 that was in accordance with the Critical Actions for Schools template. The letter formally advised him of his potential suspension, referred to the Guidelines for Managing Complaints, Unsatisfactory Performance and Serious Misconduct in relation to Teachers, reminded him of the importance of confidentiality and again providing Employee Assistance Program details.
49.Ms Terry did not recall any further contact with Mr Fremantle after 27 November 2017. From the commencement of the first term of 2018, she was acting principal at another school although she remained formally the School’s principal until the end of January 2018. During that time, she said she had telephone discussions with Andrew Marcus, an investigations officer with the Department.
50.In cross-examination, she agreed police enquired about CCTV footage within a few days of the arrest. She delegated the task of identifying CCTV footage to the Associate Principal, Ms Heathcote. She thought the task would involve using people from the IT department (that at the time had four staff) and that it was a task that would take 2 to 3 hours of uninterrupted time. She said it was not a straightforward process either to extract relevant sections of CCTV footage nor to send it to police electronically due to the size of the file. Ms Terry said the footage was downloaded onto a USB stick for police who collected it. Ms Terry gave evidence that, as principal, she kept a contemporaneous electronic record of daily events in the school. Having consulted her notes, she said the first CCTV film (in which vision was obscured by a pole) was provided to police on 12 December 2017 and the second film was located by Ms Heathcote on 14 December 2017 and provided to police on 15 December 2017. The CCTV footage was at a later stage provided to the Department when it was requested.
51.Ms Terry, in cross-examination, agreed the student AN had continued to believe that the alleged conduct had taken place. In relation to putting in place timetables for lessons and yard-duty to manage Mr Freemantle’s return, she agreed that she would expect that to happen before the teacher had returned to work. In re-examination, she said that time-tabling would not be done until the teacher’s return to work date had been confirmed.
52.Ms Terry said she had no impression there were rumours around Mr Fremantle’s absence from the school.
Ms Heathcote’s Evidence
53.Ms Jennifer Heathcote, an employee of the Department since 1998 and an associate principal at the School the time of the accusation, remains in that role.
54.Ms Heathcote said she was the School’s designated child safety officer and on that basis was present during the initial interview of AN by police. She was then delegated the task of locating the CCTV footage. She said that due to the highly confidential nature of the matter, she did this herself on her own computer. She initially identified the footage in which the vision was obscured by a pole. After then recalling that the facilities manager had mentioned a new CCTV camera that also covered the oval, she obtained footage from that camera.
55.Ms Heathcote, who referred to contemporaneous notes which she consulted, gave evidence that the first footage (with the pole) was provided to police on 12 December 2017 and that the second footage was located on 14 December 2017 and provided to police on 15 December 2017.
56.Ms Heathcote said she had participated in a meeting at the School on 19 December 2017, in her capacity as child safety officer, in which police played the CCTV footage for the student AN. She said at the end of that meeting police indicated the matter was unlikely to proceed as it was a matter of the student’s word against Mr Freemantle’s, but no final decision would be made at that stage. Ms Heathcote said the CCTV footage was provided to the Department on 3 March 2018 in response to its request received on 21 February 2018.
57.She said Mr Freemantle telephoned her on 23 March 2018 to arrange coming into the school at the end of term and told her he felt anxious.
58.In relation to the meeting on 29 March 2017, Ms Heathcote recalled being surprised that Mr Fremantle attended with a support person Ms Burrows. She said he was very distressed at times. She said he seemed particularly upset about the circumstances of his mother learning of the accusation from friends in the wider community. Regarding the apparent lack of confidentiality over the accusation, Ms Heathcote agreed it was frustrating, but the school had no control over the student speaking about the matter to friends and others on the weekend before the School was notified on the Monday of the accusation. She said once the school was notified, confidentiality was emphasised to anyone having any involvement. She said that when Mr Freemantle referred to having been exonerated by the CCTV footage, Ms Heathcote reminded Mr Freemantle of the Department’s letter of 17 March 2018 advising him to be aware that the student AN still held the belief that the alleged conduct occurred. Ms Heathcote said she formed the impression Mr Freemantle did not understand what that meant. Mr Freemantle became agitated about the student and wanted to know what the consequences of the incident would be for her. Ms Heathcote said she made it clear there would be no consequences for the student given she held the genuine belief that the alleged conduct had occurred.
59.Ms Heathcote said Mr Freemantle was not ready to discuss a date for his return to work in term two and would contact her in the holidays. She said Mr Freemantle was asked what he wished the staff to be told about his absence as the staff were generally unaware of why Mr Fremantle was on leave, but he didn’t respond.
60.In cross examination, Ms Heathcote said she could not recall Mr Freemantle asking about time-tabling and yard duty to minimise possible interaction but agreed he may have done so. She agreed no steps had been put in place by the School prior to the meeting on 29 March 2018. She said this was because Mr Freemantle had not committed to a date for return to work. She thought the meeting reached an impasse.
61.In cross-examination, she denied she said she could not believe nothing had occurred in terms of the alleged conduct and she would not have used the word hysterical about the student’s demeanour in the initial interview with police. She said she was conscious of being extremely careful about what words she used.
Medical evidence
62.All medical reports were tendered by the plaintiff with consent of the defendant as follows:
Dr Robert Murdoch provided several reports dated 25 July 2018, 22 October 2018, 14 June 2019 and 31 January 2020. Dr Murdoch has been Mr Freemantle’s treating GP for over 32 years. He was first consulted by him on 22 February 2018 as to these events. Dr Murdoch obtained a history that he was distressed by events in November 2017. Mr Fremantle reported being accused of inappropriate touching of a female student and having been suspended from work pending investigation. Mr Fremantle told him police had later informed him that CCTV completely exonerated him from any wrong-doing. Mr Fremantle described a lack of support from the Department and Ms Terry, saying he felt as if he had been ‘hung out to dry’. He described his awareness of rumours in the community. At review on 17 April 2018, Dr Murdoch diagnosed reactive depression. On 2 May 2018 Mr Freemantle said his character and years of service had been impugned by these events and the failure by his employer to rectify the situation. In his report of 26 July 2018, Dr Murdoch stated that he prescribed an anti-depressant medication (Lexapro 20 mgs/daily) and referred Mr Freemantle to a psychologist, Mr Graham Little. Mr Freemantle’s mental health remained in a fragile state as a result of his employer’s failures. Dr Murdoch continues to treat Mr Freemantle monthly with anti-depressant medication and psychological counselling. Dr Murdoch continues to certify Mr Fremantle as unfit for either pre-injury or any suitable employment. In his last report of 31 January 2020, in response to correspondence from the plaintiff’s solicitors, Dr Murdoch opined as to the multiple factors flowing from the allegation that he considered significant in the development and maintaining of Mr Freemantle’s condition
Mr Graham Little, psychologist, provided reports dated 28 July 2018 and 20 June 2019. Mr Little has seen Mr Freemantle six times since 26 July 2018. Mr Little diagnosed an adjustment disorder with mixed anxiety and depressed mood. Mr Freemantle reported that following the events of 27 November 2017 his life had become sheer hell and that he felt like a common criminal. Mr Fremantle referred to the Department’s letter of 17 March 2018 as having ‘insensitively reported’ the student’s ongoing belief in the truth of the accusation and offering no apology or expression of regret. Mr Freemantle told Mr Little that his mental health, his career and reputation had been totally demolished without any support, encouragement, assistance or apparent concern from his employer and that he felt he had been victimised and treated unreasonably and unfairly by his work superiors. He described continuing anxiety and distress as a result of the allegations of November 2017 and the traumatic events that followed including his perception of the unfair and unreasonable treatment he received from his work at the School and the Department. In Mr Little’s opinion, Mr Freemantle has no capacity for his pre-injury employment or indeed any employment.
Dr Gregory White, psychiatrist, provided a report dated 22 June 2018 at the request of the defendant. Dr White obtained a history of symptoms that had been present since the incident in late November 2017 when Mr Freemantle was arrested in the principal’s office. Mr Freemantle said he felt massive relief after hearing informally from police on 22 December 2017 that there would be no prosecution. Mr Freemantle described being massively disappointed by the lack of support or care by the school leadership, as well as devastated by the meeting on 29 March 2018. Mr Fremantle described being told of the support for the student, while he was given no support. Dr White diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood that was reportedly precipitated by the false accusation, and reportedly exacerbated by perceived lack of support by the employer. Dr White opined that Mr Fremantle is unfit for pre-injury duties from a psychiatric perspective and requires ongoing psychological counselling.
Dr Hillol Das, psychiatrist, provided a report dated 7 August 2019 at the request of the defendant. Dr Das obtained a history of the accusation, the arrest and receiving criminal advice as to the seriousness of the situation. Mr Freemantle reported that the end of 2017 was the worst time he ever went through in his working life. Mr Freemantle described relief following the police phone call on 22 December 2018 and distress at the lack of contact from the principal or the employer either after that phone call or subsequently. Mr Freemantle told Dr Das that, had he returned to work in the new school year of 2018, things would perhaps have normalised and rumours would not have gained momentum. Mr Freemantle felt he would have coped better had he resumed work, but he could not do so before the Department’s investigation concluded following the end of the police investigation in March 2018. Mr Freemantle felt helplessness and worry. In Dr Das’ view, Mr Freemantle appeared profoundly aggrieved that his welfare concerns were never considered by the school or by the Department but also by external bodies, so that he is now having to go through the court process. Mr Freemantle said the accusation leading to his suspension and arrest was quite shameful and embarrassing and he was thereafter in a state of persistent anxiety having dreaded the possibility of imprisonment. He was aggrieved by the lack of practical support in helping him reintegrate in a return to work, by there being no apology from his accuser and that his accuser was still at the school. Dr Das diagnosed a major depression of moderate severity with no psychotic symptoms and opined that he had no capacity for either his pre-injury or suitable employment.
Dr David Weissman, psychiatrist, provided two reports dated 29 March 2019 and 19 November 2019 at the request of the plaintiff’s solicitors. Dr Weissman obtained a history of the accusation and Mr Freemantle’s realisation of the gravity of the situation after the police interview. He reported then sitting at home for three weeks feeling like a criminal. Mr Freemantle described ruminating on the allegation and on at the lack of support of the principal and the School. Mr Freemantle said there was no way he would go back because of the way he had been treated and the student still being at the School. He said he would not take the risk of teaching at another school because of the worry of such an event occurring again. In his report of 29 March 2019 under the heading ‘Thought Content’ Dr Weissman stated that Mr Freemantle’s thinking revealed recurrent intrusive thoughts, memories and recollections of the allegation on 27 November and the flow on effect from the allegation especially the manner in which the school employer/principal /hierarchy managed the matter. In his report of 19 November 2019, Dr Weismann reported that Mr Freemantle thinks about the allegation every day. He recorded that he feels anxious, angry and bitterly disappointed at the school and the principal. Dr Weismann diagnosed a chronic adjustment disorder with anxious mood, depressive symptoms and traumatisation features of moderate intensity or severity. He considers he is totally incapacitated for his pre-injury employment as a teacher at the School or any other school.
Legislation
63.Entitlement to compensation under the Act is established by s.39 (1) of the Act which provides that where there is caused to a worker an injury arising out of or in the course of employment, the worker is entitled to compensation in accordance with the Act.
64.In the case of mental injury, entitlement to compensation is defeated by s.40(1) of the WIRC Act if such injury is caused wholly or predominantly by any one of the of the following:
(a) management action taken on reasonable grounds in a reasonable manner by or on behalf of the worker’s employer;
(b) a decision of the workers’ employer, on reasonable grounds, to take, or not to take, any management action;
(c) any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.
Analysis
Whether Mr Freemantle suffered an injury which arose out of or in the course of his employment with the defendant
65.In order to succeed in his claim for compensation, Mr Freemantle must establish, on the balance of probabilities, that he has sustained an injury which arose out of or in the course of his employment with the Department. The onus of establishing this entitlement is with the worker.
66.The defendant, in its Notice of Amended Defence, admitted that Mr Freemantle sustained a mental injury.
67.I am satisfied, on the whole of the evidence, that Mr Freemantle sustained a mental injury in the nature of a chronic adjustment disorder with anxiety and depressed mood. That diagnosis was the unanimous opinion of Dr Murdoch, Mr Freemantle’s GP for over 30 years, Mr Little, his treating psychologist, as well as the medico-legal psychiatrists, Dr Weissman and Dr White, with Dr Das opining that Mr Freemantle suffers from major depression of moderate severity.
68.The issue then arises as to whether Mr Freemantle’s mental injury arises out of or in the course of his employment.
69.The question of causation, the plaintiff submitted, was the main matter in issue before the court (other than capacity which is a secondary question). Mr Freemantle claimed he suffered psychological injury by reason of the accusation itself, or by reason of the accusation and/or stressors that flowed from it and/or from management action that was unreasonable. Stressors flowing directly from the accusation, as alleged by the plaintiff in his Amended Statement of Claim, were: his arrest on school grounds; the police investigation in respect of which criminal law advice was then obtained; and, the reputational implications within the school community.
70.The defendant agreed there was a series of events which occurred in a short period of time following the reporting of accusation. The defendant, however, submitted: ‘Causation is not in issue. It appears clear on the evidence that the plaintiff’s symptoms commenced within 24 hours of being informed by the principal of the school and Vic Pol that allegations made by student AN … necessitated action. No other independent cause of injury was raised by either party in the trial’.
71.In my view, whilst a central issue at hearing was causation, the analysis required was an evaluation of the contributing causes of Mr Freemantle’s mental injury. The evidence was that multiple connected events took place on, and within 24 hours of, 27 November 2017 as follows:
a.Mr Freemantle was called to the principal’s office where he was informed of the accusation and arrested by police;
b.He was accompanied to the police station where he was interviewed and finger-printed and advised that the investigations may result in charges being laid;
c.He informed his family of the accusation that evening and that he would likely be suspended from duty pending the investigation;
d.He was advised by the principal that night he should not return to the School given his likely formal suspension;
e.He awoke the following morning to the realisation that he would not be going to work that day due to the accusation and his suspension;
f.He received correspondence from Ms Terry dated 28 November 2017 referring to his arrest and advising him she had formed the view that the allegation may have substance and she would accordingly recommend the Department commence an inquiry, that disciplinary action may result in dismissal and confirming the Department would make contact regarding his suspension from duty.
72.Mr Freemantle’s evidence was that that he suffered the initial onset of symptoms of a mental injury within a day of 27 November 2017. He told the court that he struggled from that point on and everything stemmed from that point on. I accept his evidence in relation to the onset of his symptoms. Mr Fremantle impressed me as an honest witness whose credit I accepted. In giving evidence (and similarly also in his police interview viewed on video), Mr Freemantle appeared to be a stoic person who has always endeavoured to present positively.
73.When Mr Freemantle first saw his GP for medical treatment (on 22 February 2018) following the events of November 2017, the history given to Dr Murdoch was of distress following his arrest in November for inappropriate touching, of being off work pending an investigation, of some relief when police advised that the CCTV showed no cause for concern and of a lack of support or contact from the Department or the principal and feeling let down by this, and, as he told Dr Murdoch, hung out to dry.
74.I am satisfied, weighting the whole of the evidence, that Mr Freemantle suffered a mental injury arising out of or in the course of his employment. I therefore find the plaintiff has discharged the onus of establishing injury arising out of or in the course of employment.
75.The question then arises as whether Mr Freemantle’s mental injury is of a type for which there is, under the Act, no entitlement to compensation.
Whether Mr Freemantle’s mental injury was caused wholly or predominantly by the management action referred to in any of, or a combination of subsections (a), (b) or (c) of s40(1) of the WIRC Act
76.It was accepted that the defendant carries the legal and evidentiary onus of proof in showing that circumstances fell within s.40(1). The defendant relies upon each of the management action provisions of s40(1) – other than (d) which is not relevant in the circumstances of this case.
77.In determining whether the defendant has discharged the onus of proof in relation to the management action defence, it is a matter of considering the elements of the defence.
78.Section 40(1) is very similar to its predecessor, s.82(2A) of the Accident Compensation Act 1985. In its submissions, the defendant referred to the analysis and principles established in Krygsman-Yeates v State of Victoria (4 November 2011). There, his Honour Magistrate Garnett, after reviewing the authorities, set out the elements in a defence to a mental injury claim based on management action at paragraph [35] as follows:
i.Whether the employer’s conduct complained of constitutes management action as defined;
ii.If so, whether the management action was taken on reasonable grounds;
iii.If so, whether the management action was taken in a reasonable manner;
iv.Where expectations of the worker are relied upon, whether the worker held the belief that management action be taken, and if so, whether it would be on reasonable grounds and in a reasonable manner;
v.Whether the mental injury was caused wholly or predominantly by any of, or a combination of subsections (a), (b) or (c) of s40(1);
vi.When considering the reasonableness of the management action, it is to be considered objectively having regards to all of the circumstances leading to it being taken and the manner in which it is taken.
Management Action
79.The definition of management action in s 40(7) is not exhaustive in nature and includes, but is not limited to, any one or more of a range of fourteen actions. In my view, the following sub-sections are relevant to the defendant’s conduct: (b) counselling of the worker; (c) suspension or stand-down of the worker’s employment; (m) an investigation by the worker’s employer of any alleged misconduct of the worker; (n) communication in connection with an action in any of the above paragraphs.
80.There was no real dispute between the parties that the defendant’s conduct in the period from the School being notified of the accusation on 27 November 2018 up until and including the meeting on 29 March 2018 was management action within the meaning of s40(7) of the Act.
81.The series of actions of the defendant that I find constituted ‘management action’ were:
a.The investigation of the alleged conduct including: notifying police; gathering, reviewing and and providing to police relevant evidence (the CCTV footage); and the outcome;
b.The suspension of Mr Freemantle’s employment pending the investigation’s outcome;
c.Communication in connection with the investigation and suspension including the letters of 28 November 2017, 7 November 2017 and 17 March 2018 and in the meeting of 29 March 2018;
d.Making available and communicating the availability of counselling through the investigation and suspension period via the Employee Assistance Program.
Whether the management action was taken on reasonable grounds
82.That the investigation and suspension from duty were taken on reasonable grounds was never really in dispute. It is irrelevant that police determined ultimately no offence had been committed and that the Department also concluded there were no grounds for action. The defendant submitted that once the accusation was reported, Ms Terry and Ms Heathcote were mandated to initiate a process that included notifying police and that led to the investigation and Mr Freemantle’s suspension from duty. So much was conceded by Mr Freemantle in cross-examination. The process enacted was in accordance with the Department’s Critical Actions for Schools template which prescribed the required steps to be taken in response to allegations of sexual assault.
83.I find that the defendant’s investigation of the alleged conduct and Mr Freemantle’s suspension from duty was management action taken on reasonable grounds.
Whether the management action taken in a reasonable manner
84.Whilst Mr Freemantle accepted the management action was taken on reasonable grounds, he did take issue with the manner in which the defendant’s conduct was taken, which he said was unreasonable. Mr Freemantle complained of the following:
a.The School’s delay in providing CCTV footage to police at a critical stage in the investigation.
b.Delay by the Department in bringing the investigation to a conclusion in circumstances where there was CCTV footage that demonstrated no inappropriate touching;
c.A failure or delay in communication as to the investigation’s progress and outcome;
d.A lack of expected support; and
e.The manner in which the investigation and suspension was finalised the conduct of the meeting on 29 March 2018 following the letter of 17 March 2018.
85.The well-established principles in relation to ‘reasonableness’ of management action were considered in detail in Krygsman-Yeates at paragraphs [30] to [35] and remain relevant to considering the operation of s40(1) of the present Act. The required analysis is set out at sub-paragraph [35(f)] as follows:
When considering the “unreasonableness” of that action, it is to be considered objectively having regard to all of the circumstances leading to it being taken and the manner in which it is taken in a global context taking into account:
(i)That the management action and the manner in which is taken should not be irrational, absurd or ridiculous but moderate and fair; and
(ii)The judgement is whether the action taken was done “reasonably“ not whether it could have been done more reasonably or in a different way more acceptable to the court; and
(iii)The action and the manner in which it is taken maybe reasonable even if particular steps involved are not; and
(iv)The action and the manner in which is taken should be assessed at the time it is taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.
86.On the evidence, I am satisfied there was delay by the School of about two weeks in providing the CCTV footage to the police which no doubt held up the police investigation in the critical early weeks. Ms Terry and Ms Heathcote both told the court that the two extracts of CCTV footage were provided to police on 12 and 15 December 2017 respectively. I accept there were various technical impediments that meant the task not straight-forward. Ms Terry had said it was a task requiring IT technicians that would take 2 to 3 hours and at the time there were four staff members in the School’s IT Department. Ms Heathcote’s evidence, however, was that she did the task herself without asking for IT assistance which she said was to maintain confidentiality. On balance, I find that whilst the delay in relation to the gathering and providing CCTV footage was not optimal, it was not unreasonable in the circumstances.
87.The more significant complaint relating to the CCTV footage was Mr Freemantle’s assertion that the defendant’s management action continued in an unreasonable manner after it was established there was CCTV footage of the interaction that, according to Mr Freemantle, showed no inappropriate touching and cleared him of any wrong-doing. On the evidence, the timeline regarding that was as follows:
a.Mr Freemantle told police in interview on 27 November 2017 there may be CCTV cameras overlooking the oval.
b.Ms Terry said police enquired about possible CCTV footage within a few days of the arrest.
c.On 22 December 2017, police telephoned Ms Terry (as well as Mr Freemantle) on 22 December 2018 advising the CCTV footage didn’t showing anything of concern.
d.In January 2018, Ms Terry had at least one telephone discussion with an investigations officer of the Department in January regarding the investigation’s progress.
e.When Mr Freemantle emailed Ms White of the Department on 23 January 2018 seeking an update as to the investigation, he referred to the CCTV footage as having validated what he had told police in the first place.
f.The Department, in the conduct of its own investigation into the alleged conduct, did not request a copy of the footage from the School until a month later on 21 February 2018.
88.The Defendant submitted that the Department’s investigation and his suspension from duty could not conclude at any time prior to police completing their investigation. Mr Freemantle conceded as much in cross-examination. There was no evidence led as to why police did not formally confirm the investigation’s end earlier than its letter to Mr Freemantle of 3 March 2018. It is a matter of speculation only, but delay may have arisen due to officers being on leave over the Christmas holiday period or the conclusion may have been delayed due to reasons related to AN’s persisting belief in the truth of the accusation even after she had viewed CCTV footage with police. In any event, I am satisfied that the existence of CCTV footage was not of itself a basis for finalising the investigation. I accept Ms Heathcote’s evidence that after police played the CCTV footage for the student in the meeting on 19 December 2017, the police officer told Ms Heathcote it was the student’s word against Mr Freemantle’s, but it was a matter for his superior officer. Having viewed the CCTV footage during the hearing, it was my impression that the CCTV footage was of such a distance across the oval that it was hard to say it was entirely conclusive. On balance, and taking an objective view in all the circumstances in accordance with His Honour Judge GD Lewis’ statement in Finn v Victoria [6 October 2000], I am not persuaded that the investigation continued unreasonably until March 2018.
89.Mr Freemantle complained that there was a failure or delay in communication in the course of the investigation that was unreasonable. Mr Freemantle said at a number of points in his evidence and in the history to Dr Murdoch and others that he heard nothing over the period from the principal or the Department for the three weeks in December and between 22 December 2017 and his email of 23 January 2018 and then subsequently. It is likely, in my view, that the timing of the school year ending at the same time as the police phone call on 22 December 2017 combined to create a sense that there was a gap in communication during this period and also given the new school year was due to commence in late January 2018. I accept that the Department’s investigation did not, and could not, progress pending further information from police. Nevertheless, given the gravity of the accusation and the impending commencement of a new school year, there is no doubt greater communication would have been of assistance to Mr Freemantle. However, whilst I consider additional communication at this time would have been more acceptable and was something of a blemish in the overall process, that is not the test of reasonableness as set out in Krygsman-Yeates v State of Victoria relying on the authorities of the Full Federal Court in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 and the NSW Court of Appeal in Department of Education and Training v Sinclair [2005] NSWCA 465. I find that the communication in relation to the investigation was undertaken reasonably in all the circumstances.
90.The further complaint was as to a perceived lack of support throughout the investigation from the principal and the Department. Whilst providing support as such is not management action within the meaning of s40(7), counselling, as I have noted, is within the definition at s40(7(b). I find that Mr Freemantle was reminded repeatedly of the availability of counselling and support via the Employee Assistance Program which on his own evidence he had elected not to access. Mr Freemantle also agreed in cross-examination that it was not the role of Ms Terry or of the School’s leadership team to provide him with support. I find the defendant’s conduct in relation to counselling was undertaken in a reasonable manner in all the circumstances.
91.Mr Freemantle complained about the manner in which the investigation and suspension were finalised in terms of the the conduct of the meeting on 29 March 2018, particularly preceded as it was by the letter of 17 March 2018. I find that there is substance to his submission that the investigation process was concluded in an unreasonable manner based on the following:
a.The manner in which the Department informed Mr Freemantle in its letter of 17 March 2018 that the student still believed in the truth of the accusation and the implications of that circumstance. In the same correspondence advising him that the Department had found there were no grounds for action against him and inviting his return to work, he was informed for the first time of the student’s ongoing belief in the truth of the accusation. The information, as I noted previously, was provided in the following manner: ‘You need to be aware the student … remains firmly of the perception that the conduct she alleged did occur and she is likely to experience some degree of disquiet upon your resumption. You will need to be cognisant of this and I recommend that you ensure that all your interactions with her are unambiguous so they cannot be misperceived’.
b.When Ms Heathcote was arranging the meeting at the end of term one following his receipt of that letter, Mr Freemantle expressed feeling anxious regarding his return to work. Ms Heathcote also said she was surprised he brought a support person to the meeting.
c.In relation to the manner in which the meeting on 29 March 2018 was conducted, I accept Mr Freemantle’s evidence that much of the focus of the meeting was on the welfare of, and support for, the student AN. Ms Burrows, who was not an active participant in the meeting, told the court that Ms Heathcote used language that sounded like she believed the student’s story. Whilst I make no criticism of Ms Heathcote who I accept expressed sympathy for Mr Freemantle’s distress, I find it likely on balance, weighing the whole of her evidence, that she approached the meeting with the subjective impressions gained in performing her role of designated child safety officer throughout the investigation. I note that she had participated in both interviews of AN with police including being told by police on 19 December 2019 that it was the student’s word against Mr Freemantle’s. The School held entirely appropriately utmost concern for the student’s welfare, as a minor. Nevertheless, the purpose of that meeting was to make Mr Freemantle feel supported in returning to work particularly as he had expressed to Ms Heathcote in the phone call of 23 January 2018 that he was feeling anxious and, on her evidence, was distressed from the outset of the meting.
d.Mr Freemantle’s further complaint as to the manner in which the meeting on 29 March 2018 was conducted was that Ms Heathcote failed to provide any clarity on practical ways the School would assist him to integrate back at school and to minimise the potential for interactions between himself and the student AN. Whilst I accept the evidence of Ms Heathcote that details could not be nailed down with particularity, the absence of any information or practical guide gave the impression that no real consideration had been given to how he would re-integrate into the School particularly given the content of the letter of 17 March 2018.
e.The manner in which the information regarding the student was delivered in the Department’s letter of 17 March 2018 had the effect, in my view, of placing the onus on Mr Freemantle as part of the outcome of the investigation: “to be aware”; of “the need to be cognisant”; and “to ensure .. interactions with [the student] were unambiguous so that they cannot be misperceived”. As I have said, the Department had paramount obligations regarding the student’s welfare and, given the student’s persistent belief, it would be important Mr Freemantle to aware of her position. However, in my opinion, delivering such important and sensitive message for the first time in the terms that it did, had the effect, of clouding the Department’s stated finding of no grounds for action and also potentially called into question how viable Mr Freemantle’s return to work at the School might prove to be in practical terms.
92.Considered objectively and having regard to all of the circumstance leading to the investigation’s outcome in a global context, I find that, in combination the content of the letter of 17 March 2018 together with the manner in which the meeting on 29 March 2018 was conducted , the investigation’s conclusion and communication of its conclusion were undertaken in an unreasonable manner. Effectively, the emphasis on the student’s welfare and the absence of practical guidance or information for Mr Freemantle in returning to work meant he was left not knowing how he could or would discharge the onus placed upon him by the Department and fell short of the test of reasonableness. His Honour Chief Justice Spigelman stated in Department of Education and Training v Sinclair, a course of conduct may still be reasonable even if particular steps are not. However, in my view, the significance of the manner of providing the advice in the letter of 17 March 2018 and the conduct of meeting on 29 March 2018 means they could not be considered mere steps
Management Action - Wholly or Predominantly Test
93.As my finding in respect to management action is that it was taken on reasonable grounds but taken in a manner that was unreasonable, it is not necessary for me to consider the causation element of wholly or predominantly with respect to the defence based on s.40(1)(a) and (b).
94.The defendant’s reliance on it defence based on s.40(1)(a) and (b) is therefore unsuccessful.
Expectations by the worker
95.The defendant, in its Notice of Amended Defence, relies also upon s.40(1)(c), which is with respect to ‘any expectation by the worker’ that management action would be taken or not being taken or any decision made to take or not to take any management action.
96.In other words, if the defendant succeeded in discharging the onus of proof that Mr Freemantle had expectations of the management action and, further, that his mental injury was caused wholly or predominantly by those expectations, his entitlement to compensation would be defeated.
97.I am satisfied that Mr Freemantle subjectively held certain expectations in relation to the management action based on his own evidence and on the histories recorded by the medical practitioners. These expectations which were unmet were as follows:
a.An expectation, as he told Ms Heathcote at the meeting on 29 March 2018, that the investigation would exonerate him or acknowledge him as the innocent party or as the victim. Dr Murdoch stated in his report of 25 July 2018 that Mr Freemantle had reported to him that the CCTV had completely exonerated him from any wrong-doing and that the lack of support from the Principal and the Department had left him feeling he had been ‘hung out to dry’.
b.An expectation of some consequence or form of repercussion being applied to the student by the School, as he also said to Ms Heathcote. Dr Das described Mr Freemantle’s sense of grievance regarding the lack of apology by the accuser. In cross-examination, he agreed he went into the meeting relation on 29 March 2018 ‘hell bent’ on knowing what consequences there would be for the student.
c.An expectation of greater support from the School and the Department. This appeared in both claim forms and was a consistent complaint in the histories recorded by Dr Murdoch, Mr Little, Dr White, Dr Weissman and Dr Das.
Expectations by the Worker - Wholly or Predominantly Test
98.As the evidence has established, Mr Freemantle’s mental injury arose out of a multiplicity of connected events or stressors following the notification of the accusation on 27 November 2017 and culminating in the meeting of 29 March 2018.
99.The evidence is not therefore that Mr Freemantle’s expectations of management action were the whole cause of his mental injury. For his expectations to be considered the predominant cause of his mental injury, that cause must exceed the other or all other causes combined in power or influence according to the test of His Honour Justice Bell in Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [79]. His Honour also said in Pulling at [80] that the evaluation is not carried out any technical or formal way but by applying common sense to the facts of the particular case. Having considered the whole of the evidence and carrying out the appropriate evaluation in accordance with Pulling, I find that these expectations held by Mr Freemantle were a causative part of his mental injury. However, these expectations were not the predominant cause exceeding all others combined in power in or influence. In the opinion of Dr Murdoch, consistent with other medical opinions, Mr Fremantle was deeply aggrieved and devastated by the allegation itself and shocked and distressed by the related consequences including the criminal investigation and the premature ending of a long and distinguished career at the school.
Having found these expectations were not the predominant cause of Mr Freemantle’s mental injury, I am not therefore required to consider the elements of the defence based on s.40(1)(c) further in particular whether his expectations were of management action on reasonable grounds taken reasonably. However, had I found in the defendant’s favour as to these expectations being a predominant cause of Mr Freemantle’s mental injury, I am of the opinion that it may not be necessary to a successful defence to show that the expectations were of reasonable action reasonably taken. In Krygsman-Yeates, in relation to the s.82(2A)(c) of the former Act, his Honour Magistrate Garnett held that that ‘any expectation by the worker’ related to the worker holding the belief that management action would be taken and, if so, it would be taken on reasonable grounds and in a reasonable manner’ at paragraph [35]. That statement adopted the authority of the Court of Appeal in Department of Education v Unsworth [2010] VSCA 77 where the ‘expectation’ limb of s.82(2A)(c) was considered in detail at paragraphs [42 – 58]. However, in Unsworth, the Court of Appeal was concerned with s82(2A)(c) as it was prior to the amendments of 5 April 2010 by operation of Act No. 9 of 2010. The provision before 5 April 2010 read:
(c) An expectation of the taking of such action or making such a decision.
101. In amending s.82(2A)(c) essentially to the present form of s40(1)(c), Parliament’s intention is indicated in the Explanatory Memorandum to Act No. 9 of 2010 at p.15: “This includes an expectation that was reasonably or unreasonably founded. This also includes whether the ‘expected’ management action/decision was taken/made or not intended to be taken/made.” On that basis, a defence in reliance upon s.40(1)(c) could arguably succeed – subject to the ‘wholly or predominantly’ causation test – even where the ‘expected’ management action was on unreasonable grounds or unreasonably taken.
Conclusion
Accordingly, I find:
A.Mr Freemantle suffered a mental injury in the nature of a chronic adjustment disorder with mixed anxiety and depressed mood arising out of or in the course of his employment with a nominated date of injury of 27 November 2017;
B.The employer’s conduct constituted ‘management action’ as defined;
C.The management action was taken on reasonable grounds; but the management action was not taken in a reasonable manner;
D.That to the extent s.40(1)(c) is relied upon, Mr Freemantle subjectively held expectations as to the taking of management action, however his mental injury was not caused wholly or predominantly by those expectations;
E.The defendant’s reliance on the defence of management action referred to in any of, or a combination of subsections (a), (b) or (c) of s40(1) of the Act) is therefore unsuccessful.
F.I find that Mr Freemantle remains incapacitated for employment because of his mental injury and is entitled to weekly payments and reasonable medical and like expenses in accordance with the Act.
G.Parties are invited to file minutes proposed consent orders and/or to make submissions in relation to final orders.