French v Jolson Corp Pty Ltd

[2020] VMC 11

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

J10431035

NATALIE FRENCH	Plaintiff
V
JOLSON CORP PTY LTD	Defendant

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MAGISTRATE:	B. WRIGHT
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5-6, 10-12, 16-18 MARCH 2020
DATE OF DECISION:	27 MAY 2020
CASE MAY BE CITED AS:	FRENCH V JOLSON CORP PTY LTD
MEDIUM NEUTRAL CITATION	[2020] VMC011

REASONS FOR DECISION

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CATCHWORDS - Workers Compensation – Rejection of Claim – Psychological Injury – Alleged Bullying and Harassment – Whether Employment a Significant Contributing Factor to the Recurrence, Aggravation, Acceleration or Deterioration of Pre-Existing Injury or Disease – Whether Injury Caused Wholly or Predominantly by Management Action Taken in a Reasonable Manner by Employer – Whether No Current Work Capacity Likely to Continue Indefinitely – Workplace Injury Rehabilitation and Compensation Act 2013 ss.40(1) &(3c), 163(1)

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms C Willshire	Arnold Thomas Becker
For the Defendant	Mr C Miles	Russell Kennedy

HIS HONOUR:

1         Ms French alleges a psychological injury sustained throughout the course of her employment with Jolson Corp Pty Ltd, (“Jolson”), an architectural company.

2         She seeks weekly payments and reasonable medical like expenses pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act") from 21 March 2017 to date and continuing on a "no current work capacity" basis. Her counsel maintained that her "no current work capacity" was and is likely to continue indefinitely at and after the prima facie 130 week period which ended on about 5 September 2019.

3         She ceased work on 20 March 2017 and received sick leave entitlements for a period. She then lodged a worker's compensation claim form dated 8 May 2017 (“the claim form”) alleging the injury occurred from "long standing history of intimidating, aggressive, overbearing and belittling behaviour from the director of the company, Stephen Jolson".

4         In a notice dated 13 June 2017 (“the Notice”) the authorised agent, Allianz, accepted her claim for an earlier period of incapacity from 7 to 20 March 2017, but then rejected her claim after the later date on the grounds "your claimed injury has not materially contributed to an incapacity for work" and "your claimed injury was caused by a mental injury of a type which does not create an entitlement to compensation under the Act".

5         The grounds for the continuing rejection were based firstly on an opinion from a Dr Entwisle, psychiatrist, that she had an "adjustment disorder with anxious and depressed mood of mild severity (being the aggravation of a pre-existing condition) and that she was fit for full-time pre-injury duties and hours at her current workplace or at an alternative workplace".

6 The alleged bases for the s.40(1) "management action" defence were "On 20 March 2017 whilst at work you were caught stealing computer files from your employer. As a result, you had a meeting with Stephen Jolson, managing director, to discuss your actions and possible consequences of your actions. You ceased work following this event and have not returned to work since".

7         It went on to allege her injury “was caused wholly or predominately by the advice from your employer in respect of your actions and possible consequences thereof to steal company computer files, was taken on reasonable grounds and in a reasonable manner by your employer and/or communication in connection with such action and/or an expectation that such action would be taken".  The Notice also referred to a "circumstances investigation report" dated 2 June 2017.

8         For reasons I need not go into she was later paid further weekly payments until 6 June 2017.  The statement of claim in this proceeding substantially reflects the contents of the claim form and the Notice. 

9 The defence in this proceeding has been amended twice. In its final form it denies any work related injury. It also withdrew any defence based on Accident Compensation Conciliation Service proceedings and resulting certification and raises the 130 week issue. It continues with the other two bases for rejection in the Notice. More importantly, it also deletes any defence as to misconduct pursuant to s.185 of the Act, which was presumably based on the alleged theft of computer files.

10       In her opening counsel for Ms French's referred to a number of incidents involving Mr Jolson as going to the allegations raised in the claim form, which I will discuss later.  After my query, she maintained that her client continues to have "no work capacity likely to continue indefinitely”.

11       In his opening, counsel for Jolson maintained Ms French had or has no work related injury but rather longstanding anxiety and personal issues.  He expanded upon the particulars of the "management action" defence and referred to her being counselled by Mr Jolson on 7 March 2017 which led to her being off work until 20 March 2017 (though doing some work at home).

12 On her return to work they had a further meeting in which he attempted to further counsel her. Ms French wanted a redundancy payment. She left the office and began downloading computer material, including his and his wife's personal files. When he confronted her about this, she shredded those documents and then left the workplace and has not returned to work since. He based the s.40(1) defence on the two attempts at counselling and her alleged expectation of consequences of the theft of computer files. He raised other aspects relating to her alleged incapacity including a "Kerridge-type" defence (see, Kerridge v Monsfelt [2009] VCC 154).

13       I was given a large court book with medical reports, clinical notes, emails and SMS texts.  The only witnesses called to give oral evidence were Ms French, her husband, and two directors of Jolson, Mr Stephen Jolson and Mr Matthew Wright. The hearing proceeded over eight full and part sitting days in which Ms French spent four part or whole days in the witness box.

14       In examination-in-chief Ms French gave evidence that she was 42 years old and had been born in Newfoundland, Canada.  She left home at about 16 years old and eventually travelled to Australia, completing a Human Resources diploma at Chisholm. She had experience as a practice and finance manager, medical receptionist and then went to Jolson commencing employment there in April 2009.  She had been divorced, re-married in October 2010 and now has a two and a half year old child, born in September 2017.  She denied any previous mental health treatment, save for at the time of her divorce, when she took a single tablet of Lexapro (an anti-depressant) and had some psychological counselling at the time.

15       She was frank in admitting an excess alcohol intake and body issues (believing herself to be obese) from about 2013 onwards when she began seeing a Dr Dionne Shnider, psychologist.  When she started at Jolson, she said she was emotionally robust and confident.  She started there in April 2009 as an office/practice manager.  She said she had no formal job description.  Her duties involved managing financials and payroll, performing human resource functions including performance reviews, IT administration, marketing and looking after Mr Jolson's wife's finances.  His wife is a cardiologist.

16       Mr Jolson and his family lived upstairs above Jolson’s open plan office.  At times, his residence would be used for work meetings. If there was any loud conversation in the office everybody would be able to hear the conversation.

17       She said she was expected to look after a number of Mr Jolson’s and his wife's personal affairs.  For example, she had to take his groceries home, clean up for his mother, take his kids to music class and his wife to Cabrini for work.  She even had to clean his pantry of weevils one time.  She complained about Mr Jolson’s "controlling behaviour" to Dr Schnider as far back as May 2015 referring to “constant bullying” by her boss.  He criticised her Canadian accent and said out loud in the office that she had to "learn to speak English".

18       She complained about his controlling behaviour from 2015 onwards, being picked on Mr Jolson for little things. Mr Jolson insisted on strict lunch hours and not eating "smelly or noisy food". He also complained of her use of a speaker phone.  His controlling behaviour was compounded by the fact she had to enforce his "rules" upon staff.  He criticised her taking "excessive” sick leave in front of other staff.

19       At times there was a party atmosphere in the office.  At the end of the financial year party in 2015 (“the EOFY incident”), Mr Jolson was angry when she wanted to leave early to go home to see her dogs.  Mr Jolson made an early speech and she left.  Another senior employee told her to "fuck off" when she left prior to 10 o'clock.  Later, Mr Jolson would not speak to her. He also told her off for not "working the table" with staff and only wanting to go home early to her dogs.

20       She told him he often did not say "good morning" to her and next day he screamed out "good morning" to her in front of the staff in the office.

21       Another aspect of his controlling behaviour was that he had a silk rug which he would not allow anyone to walk across.  One day she followed him when he walked across the rug.  Again, he criticised her loudly in front of the office for walking on the rug (“the rug incident”). She told him he was inconsistent .

22       She complained she had to enforce his prescriptive rules, for example everyone having a roster to clean the kitchen and no "rock music" to be played aloud.  He would not back her up when she enforced his rules and people complained. 

23       The Christmas 2015 office party was very traumatic for her.  The party started in the office and then moved on to a restaurant and afterparty.  Usually
Mr Jolson would make a speech and open the champagne at the start of the Christmas party.  This time he was working and everyone was ready to start the party.  He told her it was okay to open the champagne which she did.  After she did so he then yelled at her for opening the champagne.  She became emotional and was crying at her desk. Someone in the office consoled her (“the Christmas incident”).

24       As part of her role she had to conduct human resource performance reviews in 2015.  She said that Mr Matt Wright, another employee, believed that she was malicious towards him by including his profit share in his hourly rate.  This meant that his hourly rate greatly increased and in fact was higher than Mr Jolson’s rate.  Initially, Mr Jolson had agreed with her on this. Mr Wright raised the issue with Mr Jolson who told her to apologise to Mr Wright.  She believed that she was right in her decision and that Jolson’s accountant agreed with her.  She said Mr Jolson later yelled at her over his car phone and said to her "How dare you not back me up".

25       She said things got worse in 2016.  Mr Jolson was constantly "shushing" her usual loud voice and using his hand to shush her down as well (“the shushing incidents”).  He would do this before she had a chance to say something and would often come out of meetings to do it to her.  She said that he would storm off and slam doors if she told him to stop “shushing” her.  He “shushed” her about 20 to 30 plus times in 2016, including about six to seven times in a week in August 2016 when she was emotional after returning from a holiday in Fiji. This conduct affected her and she was "constantly crying" at her desk. 

26       In the office Mr Jolson sat behind her with a partition between them at about seated head height.  In order to get her attention, he would flick things at her or in her direction.  She would often have earphones on.  He would flick staples, pens, erasers and paperclips at her to get her attention.  She would ask him why he was flicking things at her.

27       After her return from Fiji in August 2016 he put a mirror on the top of her monitor.  He also put a Dymo label on the mirror stating "because your music is too loud".  It was there for the rest of her employment.  She felt intimidated by this mirror.  She "may have” made a comment to him that this was “over the top".

28       She said an example of his attitude towards employees was her employment agreement had a grievance procedure clause in which any unresolved dispute with a director would have to go to a mediator "paid for by the employee".

29       She spoke about her performance review by Mr Jolson at the end of December 2014. She went through her year’s performance with Mr Jolson.  Each made comments about her work performance.  He wrote her role was "enforcement of rules" and she should set the "right example to staff".  The first part referred to the fact that she had to enforce his rules as to no loud music, not walking on his silk rug and staff not using the fine cutlery which was for clients only.  She also had to chase staff for timesheets which was difficult at times.  When she asked him about "the right example" comment, he simply said she should "set the right example".  Despite this, he gave her a high rating in that performance review and she received a salary increase.

30       At the end of 2015 he undertook her performance review again and wrote comments "needs to be more approachable, personable and compassionate".  Despite her request he refused to give examples and merely said there was a general sentiment by senior staff for her to be less defensive.  Again, he refused to give examples.  When she asked for KPIs and feedback she said he told her this was too difficult.  She was flabbergasted by his unfairness.  He said she should be “more objective”. 

31       In that performance review she referred to an incident involving a worker Chloe Cochrane as to which she said the incident could have been handled better if it had been done collectively.  She said that staff did not believe that they could trust her as she said that she had been investigating Chloe's emails.  Senior staff did not support her in her carrying out Mr Jolson's instructions to enforce general office rules.

32       The incident involving Chloe Cochrane occurred in 2014.  Chloe was an employee. Ms French was concerned about what she was working on.  When Mr Jolson returned from a holiday in Bali, they checked Chloe's emails one night and found out that she had been doing private work during work hours, using Jolson’s facilities and resources.  Chloe was confronted and resigned (“the Chloe incident”).  Another worker, Emma Selzer, had been helping Chloe in that private work but was given a first and final warning.  Ms Seltzer later came up in other issues involving Ms French and Mr Jolson which I will discuss later.

33       Ms French found out about Chloe's private work as she had access to everybody's emails.  As stated, after that incident people did not trust her especially when Mr Jolson told staff she was the "rule enforcer".

34       She had been consulting Dr Shnider prior to 2015.  On 27 May 2015 she complained to her about her “boss bullying her constantly”.  He had put her down in front of other staff.  On 10 June 2015 she told her she hates her boss Stephen. He was self-centred. She stated she had also been seeing Dr Shnider about other stressors at that time including problems with her kitchen renovations, food issues, her husband being in Costa Rica and trying then to have a baby.

35       On 19 August 2015 after Mr Jolson had been away for two weeks, she complained to her of high work stress, referring to Mr Wright.  On 9 September 2015 she complained of anxiety about work and Stephen and falling out with Matt. 

36       She had been trying to get Mr Jolson to bring in a mediator concerning Mr Wright and her. Mr Jolson refused stating that "how dare you suggest my office is run with conflict". He said he was entitled to discuss the matter with another employee without a mediator. She felt ganged up on by Mr Jolson and had increasing anxiety about people hating her in the workplace.  This was because Mr Jolson was getting her to enforce office rules.

37       On 10 November 2015 she informed Dr Shnider of complaints she was not being "approachable or sensitive".  She was referring to when she and Mr Jolson met with Mr Wright. Mr Jolson taped the meeting but refused to give her a copy.  Mr Jolson did not like criticism.  She was sensitive as she had a miscarriage that weekend.  He blew up in front of staff when she wanted a mediator.  Mr Jolson was hostile and aggressive to her. On 1 December 2015 she complained to Dr. Shnider he yelled at her in a meeting.

38       On 22 December 2015 she complained of "not coping at all - feeling overwhelmed."  She said Dr Shnider strongly suggested she take time off work and make a workers' compensation claim for extended leave.  Ms French said workers' compensation was the last thing she wanted then as she did not want the repercussions.  She was trying to cope with other issues at home, for example the kitchen renovation issue.

39       On 31 October 2016 she complained to Dr Shnider that Mr Jolson was shushing her three to four times per week, complaining that her voice was too loud and singling her out.  Nobody was engaging with her in the workplace.  Mr Jolson was micromanaging her. 

40       Dr Shnider told her that she had PTSD and suggested she go to a GP for Xanax.  She advised her a medical certificate was "very critical".  Despite that advice from Dr Shnider Ms French kept working.  She said she considered leaving but lacked confidence in applying for other jobs.  Her work address was convenient to her house and she was able to see her dogs during the day.

41       On 19 February 2017 she was discussing with Dr. Shnider the issue of Mr Jolson's offer of a profit share.  At this stage she was six weeks pregnant, off alcohol and attending Weight Watchers. On 14 February 2017 she complained of constant ruminating and nightmares about entering the workplace. 

42       On 9 March 2017 she complained to Dr Shnider that Mr Jolson had told her staff had threatened to leave because of her. Ms French had wanted pregnancy leave.  She had no support in the office and people in the office supported Ms Selzer. 

43       At the end of 2016 she had been trying to get the financials and invoices out before Christmas, but Mr Jolson heard her say to someone in the office that he had not signed off yet on those documents.  He told her she "Infuriated him" in front of the office.  She had to work some days after Christmas into early 2017.

44       On 3 March 2017 she had an interaction with Emma Selzer who had been involved in the Chloe incident.  She and Mr Jolson had previously told Ms Selzer not to shift her desk but asked another worker sitting beside her to move her desk away from Ms Selzer.  This was because of some proposed work on a blind in the office.  She came in later to find that Ms Selzer had relocated her desk despite specific instructions not to do so.  Ms Selzer said she was "feeling lonely" sitting by herself. 

45       Ms French was frustrated. There was some conversation between them and Ms Selzer became emotional.  Ms French said she apologised to Ms Selzer.  She then saw Mr Jolson and had a discussion in his upstairs residence.  She was emotional at the time telling him that staff had "no respect for me".  Mr Jolson told her not to worry about it and the incident would be like "water running off a duck's back".  He suggested maybe she should send Ms Selzer a bunch of flowers as an apology.

46       That same afternoon she sent Ms Selzer an email stating "I wanted to apologise again about the tone of my voice and if you felt embarrassed in front of your colleagues".  She received an email from Ms Selzer in reply appreciating and thanking her for the apology and saying, "I do not have any negative feelings towards you".  Ms Selzer said that Mr Jolson had explained to her that Ms French “felt really bad” and he could see that as well.  Perhaps understandably, Ms French thought that was the end of the matter.

47       At work on 7 March 2017 she emailed Mr Jolson she wanted to see him about her profit share/bonus issue.  They went to his residence and he said that he would pay the bonus but wanted to discuss something else.

48       He told her that he had received a resignation from Ms Selzer over the weekend. Ms Selzer had accused Ms French of being aggressive and unapproachable.  He told Ms French that he had conducted a discreet investigation over the weekend "with other employees".  Mr Jolson stated, "Everyone was in agreement that she was aggressive and had humiliated Ms Selzer."  Ms French was shocked by this as she thought that she had sorted out the issue on the Friday with Ms Selzer and told Mr Jolson of that. 

49       Mr Jolson said that she was aggressive, got staff offside and needed to change her behaviour.  She was shocked. She told Mr Jolson he had backed her up on the Friday in dealing with Ms Selzer.  Mr Jolson asked "What do you have to say for yourself?"  She told him that she thought that Ms Selzer was setting up a constructive dismissal situation.  Ms French was emotional and crying.  He said that if she did not change her behaviour she would not be staying at Jolson.  When she asked for a support person to be present, he asked whether she was "going legal". 

50       She was embarrassed by the fact that he had investigated her behind her back.  He told her that she needed human resource training or needed to be taught about being approachable.  He told her of examples of incidents raised by Ms Selzer in his email to him.  She was crying, went downstairs and left about 4 pm. 

51       She got a medical certificate from her psychologist for two weeks and sent it to him.  He had sent her an email saying he did “not want to lose two staff members" (that is referring to Ms French and Ms Selzer).  He said that he was "sorry she was stressed by our conversation today".  While off work later that week she dealt with a number of issues involving an urgent shipment and the payroll.  He sent her an email asking whether she was okay. 

52       She wasn't able to go to work on 14 March because of a migraine and again she got a reassuring reply.  She was seeing Dr Shnider and a Dr Stiglitz, general practitioner, at that time.  As stated above, she saw Dr Shnider on 9 March.

53       She returned to work on 20 March and they had a further meeting upstairs.  She told Mr Jolson she wanted to talk about Ms Selzer and "a way forward".  She refused his request to record the conversation as she felt uncomfortable with that.  They spoke about Ms Selzer and again he said he wanted her to do a HR course as to which she disagreed.  Over the next one and a half hours he was very hostile, aggressive and yelled at her there was "no future for you".

54       She was upset and went downstairs to leave. He followed her saying "If you leave now, I will be disappointed".  She said she would continue if he lowered his tone of voice.  They went back upstairs and there was a similar conversation.  He said that if she did not show appropriate empathy and remorse to Ms Selzer there was no future for her at Jolson.  She told him that she had already apologised to Ms Selzer.  The conversation continued around and around in circles and Mr Jolson said "Why don't you resign".  She replied that she needed the money.  He then accused her of being only concerned about money.  She was upset when he said he couldn't tell her how to be a nice person because "that comes from within".  Again, he tried to get her to resign and she refused. She told him he could make her redundant.  She told him that she was "messed up about the workplace" but felt too intimidated to give him examples of his bullying.  She had agreed for the second meeting that day to be recorded. 

55       She disagreed that she was unapproachable and asked for KPIs or measurable outcomes for her performance to be judged.  He again refused her request for a mediator.  They went downstairs and he criticised her for leaving unannounced early on 3 March and thus not showing respect for him.

56       He told her the filing was not up to date, so she scanned a large pile of documents and then went to shred them.  She was "terrified” of him.  She wanted to take her personal documents off the computer server.  She put a portable hard drive into her computer and copied the admin restricted folder which had Mr Jolson's and her documents in it, dragging them into the hard drive. 

57       She had multiple documents in the folder, including photos, personal emails and budgets.  She had a number of similar hard drives copies of the admin restricted folder at home which she would change over from time to time.  She said she had no deliberate intention to take Mr Jolson's documents.  He then came to her desk, asked whether she was doing a large download and said to continue the chat upstairs. He said he had got a call from National IT, their computer server administrator.  She thought that he must have set her up in having National IT watch over her. 

58       She invited him to come down and look at what she was doing. She told him she wanted her personal documents.  He accused her loudly in front of the office of stealing his private information.  When she told him she had other similar hard drives at home, he asked her to bring them to the office. He said she had no permission to take them from the office.  She replied that she did this every day. He said he had an issue of staff stealing from him, apparently referring to the "Chloe" incident.

59       He asked her to delete the download which she did on the spot.  He stood over her as she shredded documents and said he was severing her computer access as he did not trust her.  He sent her an email at 5.30 pm that afternoon asking her to leave her keys on her desk and bring to work the backup drives she had at home.

60       She left work and next day went to see Dr Shnider telling her what had happened the previous day. She gave her a medical certificate. Dr Stiglitz gave her a prescription for Zoloft.  On 28 March Mr Jolson sent her a letter complaining of her "unauthorised absence".  She had already sent a medical certificate to him.

61       On 11 April Mr Jolson’s wife sent her an email seeking her assistance as to billing for her cardiology work.  Ms French prepared a four page detailed email as to the billing process and sent it to Mr Jolson's wife for which she thanked Ms French.

62       She saw her lawyers and lodged the claim form as I have set out.  She received the Notice which accepted her claim for a limited period.  She said that she was "absolutely flabbergasted" by the accusation of stealing in the Notice.

63       She was referred to a psychiatrist Dr Sam Margis for what she said was advice on medication during her pregnancy.  She never saw him again.  He said that he was not an expert in workers' compensation. She wanted to see a female doctor anyway.  She said that she was "beside herself" about the theft allegation.

64       She continued to see Dr Stiglitz who got a copy of the medical report from Dr Entwisle that I have referred to.  Dr Stiglitz told Ms French that she was fit to go back to work because of Dr Entwisle's opinion.  Ms French disagreed as she was a "wreck and bed bound".  Ms French believed that Dr Stiglitz had a “conflict of interest” as Dr Stiglitz knew Mr Jolson and his wife privately.  She did not believe that Dr Stiglitz was being very supportive of her.  She saw her again on 27 June 2017 for the last time when Dr Stiglitz said she believed the therapeutic relationship had broken down and said she was happy for Ms French to take her notes to a new general practitioner. She had been seeing a new psychologist, Ms Tara Schyer, who suggested she see a general practitioner, Dr Alison Richards, who continued her treatment.  Dr Shnider had moved to the USA.

65       Ms French's symptoms increased in 2018 especially when she saw the investigator circumstances report referred to in the Notice alleging criminal conduct on her part.  Her anxiety and depression increased and she was having outdoor panic attacks, for example in crowds.  She did not discuss her return to work with Dr Richards as she was "terrified of people" and incapable of working.  She continued to see Dr Richards until she and her husband shifted to Torquay on 19 January 2020. 

66       She had continued to have no other stressors. Her baby sleeps well and is not a problem.  She felt that she was being followed.  She withdrew from seeing people and had migraines which she never had before.  She unsuccessfully tried taking Seroquel.  Ms Schyer encouraged her to not attend a psychiatric clinic.  In late 2018 she told her GP she was not capable of returning to work.  She had initially intended to take three months off work after the birth of her baby and then return to work as her career was important to her.

67       In January 2019 she had a panic attack in Thailand and was diagnosed with "atrial contractions".  She moved to Torquay as she was surveilled on four occasions including at an Ikea store and at a Sheltie dog club barbecue in Somerville.  She was also concerned that Mr Jolson was stalking her.  On about 25 October 2017 she was at her car outside a Lincraft store when she saw Mr Jolson in a car looking at her as she loaded her car. He then drove off.

68       She did not receive any payslip from him in the first month off work.  Mr Jolson said that there were "anomalies" in payroll.  After she made a Fair Work complaint, she got her payslip.  She was told that there would be a deduction of 45 hours annual leave after he had arranged for an audit.  He said she owed him $20,000.  She was shocked he had now accused her of fraud. 

69       She believed that he had discriminated against her in that she was expected to take annual leave over Christmas but still went to work to perform tasks such as payroll.  When she queried the deduction, she was told by him they would talk about it when she returned to work and for her to look after herself.  When she lodged a further complaint at Fair Work, he agreed to pay the money in full to her at a Conciliation.

70       She had made only one attempt at return to work for about two and a half months since ceasing work at Jolson.  This period of employment ended on 28 June 2019 during which period she worked about two days per week doing some bookkeeping work for an architect she knew.  She had panic attacks there, lost confidence, felt on "eggshells" and had flashbacks about her negative experiences at Jolson.  She wasn't able to continue in that employment and says she has been unable to look for any other return to work since. She is unable to concentrate, terrified of making mistakes and has a fear of being chastised.  Importantly, she said in evidence "I will not look for work until I recover from this".  She had recently flown back to see her family in Canada but had problems travelling on the very long flight. 

71       She currently regularly takes Zoloft, Panadeine Forte and Propanol for her heart as well as Xanax and Valium as needed. She takes Melatonin and Temazepam for sleep.

72       She currently sees her new GP in Torquay and Ms Schyer fortnightly.  She had recently (in February 2020) seen a psychiatrist twice to consider reviewing her medication.

73       She was then cross-examined at length.  She said that she did not mislead Dr Entwisle and Dr Jager in denying any past psychiatric history.  She agreed she told Dr Stiglitz she was depressed and lacking enjoyment in December 2013 but was flippant in talking about jumping off a bridge.  She had two recent Skype conversations with Dr Shnider (now in the USA) last year.

74       It was put that there were no notes in Dr Shnider's records as to her treatment of Ms French between 2013 and 2015.  Ms French said that she had got the notes in that form from Dr Shnider herself, but those notes were not included for that period.  She said Dr Shnider was concerned about insurance issues and then said Dr Shnider believed that she had given Ms French all her notes.  In that 2013 to 2015 period Dr Shnider had treated Ms French for alcohol and body weight issues. 

75       Since her child was born, she only drank half to one bottle of wine per week, whereas she used to have one to one and a half bottles per day in 2014.  She denied misleading the doctors in this case over her current drinking.  She denied trying to mislead Dr Entwisle by not telling him she was pregnant at the time of his examination of her.

76       She strongly denied taking Xanax at work and said she was prescribed it once to overcome her fear of flying about 10 years ago. She said her miscarriage in 2015 was caused by Mr Jolson screaming at her.  She had a 20 year history of hormonal migraines for which she took over the counter codeine, such as Panadeine Forte.

77       She agreed there were other stressors in her life from 2014 onwards, including legal issues involving a television show and her kitchen renovations. The kitchen legal dispute lasted about a year.  She did not dispute that it may have in fact lasted over 17 months to April 2016.  There had been ongoing issues over several years with her husband who wanted to have a baby, but she had been against that idea.

78       She had been seeing Dr Shnider for a number of stressors up to 2015 apart from those issues including such issues as her conflict with her parents until March 2017.  She agreed all those issues did affect her psychologically in some way.

79       She agreed that at times she was assertive in the office, used strong language regularly and that Mr Jolson gave her leeway in the way she did her job.  In October 2015 she told him she told him she appreciated that he did not micromanage her.  She denied ever having a job description at Jolson and certainly did not delete any such document from Jolson’s computer system.

80       She never told Mr Jolson that it was not part of her job to do such private tasks  as dropping his kids off at school as she felt intimidated by him.  Despite the issues between Mr Jolson and her she said she did not want to leave Jolson "as it was too good to leave and too bad to stay."  She had wanted to keep working there after March 2017. 

81       She denied not raising any grievance with Mr Jolson prior to her claim form and emphasised her complaint of his "shushing behaviour".  She also complained in January 2017 to him when he told the office she "Infuriated" him which humiliated and embarrassed her.

82       She was then shown photos taken at the Christmas 2015 party which appeared to show her happy.  She said that she had been crying at the table and the photos were not a true indication as to how she felt on that day.  She did not stay until midnight but went home about 10 to 10.30pm.  She agreed that such parties were seen by Mr Jolson as a teambuilding exercise which involved much consumption of alcohol.  Mr Jolson saw them as an attempt to strengthen culture with colleagues.

83       As to the Emma Selzer seating issue, she agreed Ms Selzer was upset in the initial discussion with her.  She agreed that as the HR person she and Mr Jolson needed to address the issue.  She agreed Ms Selzer's resignation letter stated that this was not the first time Ms Selzer said she had difficulty working with her.  She had no fear of getting into trouble with Mr Jolson as he initially told her that Ms Selzer's concerns would be like "water off a duck's back".

84       She agreed she got an email from Mr Matt Wright saying there had been a complaint about the way she spoke to Ms Selzer.  She agreed she replied that she was "sick of this bullshit” and would speak to Mr Jolson – “he can fire me if he wants".  She said that she did not anticipate Mr Jolson would fire her.  She was frustrated that some office staff were sensitive.  She agreed in the meeting with Mr Jolson that day he reinforced "she had to be less aggressive and abusive".  She said that she did feel empathetic towards Ms Selzer.

85       She agreed she wore earphones at work, but it was not difficult to speak to her when needed.  She denied that placing the mirror on her monitor was a joke and did not object to it.  She denied that Mr Jolson only flicked rolled up Post-it notes to the end of her desk to attract her attention at times. 

86       She agreed that she had a loud voice in the office and that she, Mr Jolson and others in the office swore a lot.  She was merely fitting in with the office atmosphere by swearing.  She said any staff complaints about her were not raised by Mr Jolson in his performance reviews of her.  She agreed she told him she was not liked by some other staff.

87       She disagreed with the assertion put to her that Mr Jolson never raised her voice at her but only on two occasions spoke to her in a stern manner.  She disagreed that the first time that he spoke in a stern manner to her was in the rug incident.  She also disagreed that he only spoke to her in a stern manner about opening the champagne in the Christmas incident.  She repeated that he told her to open the champagne and then yelled at her for doing it.  She also rejected the assertion that he had apologised to her later in front of staff.  She said he only did it privately but did not apologise. She said that Mr Jolson tried to encourage communication, but he had no skills in this regard as he was not a business manager. 

88       She said that after the Emma Selzer resignation letter he suggested that she buy (using her own money) flowers or chocolates for her to make the apology public.  She said he did not want to spend his own money or take it out of petty cash.  She agreed that she was frustrated in talking to Ms Selzer about sitting in the wrong place but did not raise her voice at her.  She agreed that her conduct towards Emma Selzer on that occasion was belittling and thus unnecessary. 

89       She said that Mr Jolson was neither calm nor non-aggressive in talking to her about the Emma Selzer episode upstairs. He was in fact hostile.  She agreed that Mr Jolson said he wanted to keep them both and wanted an amicable outcome between them.  After that meeting she went home but did some work on a delivery and payroll.  She agreed that he appeared to be sympathetic towards her in his emails after that meeting.  He told her to "rest and get better". 

90       When she returned to work on 20 March 2017, she had a further meeting with Mr Jolson in the morning.  She agreed that the discussion between them went “round and round”. He was trying to focus on her showing sympathy towards Ms Selzer and other staff.  She resisted his suggestion to do a HR course.  Mr Jolson asked for her to show "adequate remorse before returning to work".  She disagreed that she was seeking a redundancy. She told him she was not going to resign.  However, she agreed she wanted to know her future role at the start of that meeting. She was not offered a support person at that meeting as she had called the meeting. She agreed that both of them recorded the meeting on their own mobile phones.

91       After the meeting she disagreed that she had downloaded the admin restricted files. She had merely copied the files to do filing and get her personal documents from the files.  She had not tried to download his personal files, but they were in the file that she actually downloaded.  The reason that she had put her personal files on the admin folder was that it was a private folder and did not think that other staff had access to it.  She agreed with the assertion that Mr Jolson told her to delete the download which she did straight away.  She agreed that her computer access was revoked that night.

92       She disagreed that she was not intending to continue working there when she left on 20 March 2017.  She did not take all of her possessions on that day but only her handbag.  She said that she left her back bolster seat and personal fan behind in the office.

93       She disagreed that Mr Jolson spoke in a calm and reasonable manner in the 20 March meeting.  She used her sick leave and then lodged a workers' compensation claim.  She had not timed the application to go down the workers' compensation path but wanted to receive her sick leave entitlements.  

94       She had been discussing workers' compensation with Dr Shnider for about a year prior to lodging the claim form.  She agreed that she told Dr Stiglitz on 20 June 2017 that she was "going via the legal pathway" as she felt she was not fit to work.

95       She agreed that Dr Stiglitz had suggested that stress and pregnancy aggravated each other and that she wanted a four week medical certificate for workers' compensation.  She said that she disagreed with Dr Stiglitz that she was fit for work. Her Zoloft increased and at this stage she was seeing Ms Shyer. She agreed for Dr Stiglitz to contact Ms Shyer.

96       She agreed that Dr Stiglitz had thought that it would be good to return to work as staying off work was slowing her recovery.  She agreed that Dr Stiglitz suggested alternative work as well.  After seeing Dr Stiglitz, she told her new GP, Dr Richards, that she was not able to return to work at that stage.  She still did not know when she would be fit to return to work.  She did not change GPs because of the advice to return to work, but because of what she saw as a conflict of interest.  Dr Stiglitz was taking Mr Jolson's side.

97       She accepted Ms Schyer's advice to see Dr Richards as her new GP.  She had previously proposed taking three months off because of pregnancy and had discussed that with Dr Shnider. She was going to take two to five weeks before the birth off as well. She agreed that she told Dr Shnider on 9 March 2017 that she needed to stay at work until the end of June for Commonwealth maternity entitlements.

98       She disagreed that she was fit for work similar to that at Jolson as at June 2017. She disagreed that in going down the workers' compensation route she became obsessed with her case.  She said that the whole episode had ruined her life, but she was not obsessed.  She agreed that she had read some legal decisions because she wanted information about workers compensation.  She read all sorts of cases involving workers' compensation and Fair Work matters.  She found it difficult to understand the cases.  She may have read about a case involving management action as a defence.

99       She agreed that in October 2017 she received some money from an income protection policy backdated to May 2017 and was paid two years' payments at about $3,000 per month.  She had also been paid workers compensation payments to 6 June 2017.  She had tried to return to work in the part-time job at or about the time that the payment ceased under the income protection policy. 

100     She agreed that when she ceased that part-time job, she may have not been coping with aspects of the court case and preferred administration work as her skills were in that area.  She agreed that she told Ms Schyer in July 2019 she resigned from the job because of stress of this case.  The stress involved preparation for the case.  She resigned from the part-time job as she was not able to cope with the allegations against her by Mr Jolson.  She agreed she told Ms Schyer that she was unable to move on until her case was resolved and that it dominated her thinking and recovery.  She agreed that she told Ms Schyer in January 2019 that she wanted her case finished so that she could be back at work by the end of June which she agreed was about the time that the income protection policy expired.  She said that she always intended to return to work.

101     She saw a vocational assessor, Recovre, in January 2020, at the request of Allianz or their lawyers. She had seen their report and agreed they suggested various jobs to her.  She agreed she had previous experience in various aspects of business, finance and office management and had previously functioned at a high level in human resources, IT, marketing and payroll.  She agreed that one of their suggested jobs was a meter reader reporting on meters for utilities such as gas and water.  She agreed that she had the physical capacity to do that job but perhaps could not walk for hours.  She said that she would be unable to work as a meter reader as she would be terrified if people confronted her and yelled at her.  Despite Dr Lewis' suggestion that she could cope intellectually with that job but thought maybe the job was beneath her, she said she had not discussed it with him. She would do that job if she could cope. 

102     She agreed that other jobs such as payroll clerk, admin assistant and a practice manager were within her skills.  She had described herself as a fulltime housekeeper to Dr Lewis.  She agreed that her child was in day care two days per week and she had not looked for work since her income protection policy ceased.  Her husband works from home and they had relocated to Torquay.  Torquay was a few kilometres from Geelong.  She and her husband had travelled to and from Torquay for a number of years. She agreed that she rents out her Brighton house and now rents the house in Torquay. 

103     She agreed she tries to avoid crowds and has decreased social activity.  She is socially withdrawn and tries to avoid public places.  She agreed that she told doctors she would avoid leaving the house, for example going to large supermarkets.  She feels overwhelmed in supermarkets.

104     A Surveillance DVD was then shown of her activities on 17 November 2019 going into a shop and a supermarket.  She was then shown in a park with some children and parents and speaking to groups of people.  She walked around with another woman and her child and then left to go home.  In cross-examination Ms French agreed that the vehicle shown was her vehicle and it showed her at a supermarket in Elwood and shopping there before returning home.  The event in the park was a social event involving her Sheltie dog club.  It was a social event of less than 100 people and involved a picnic and drinks.  She agreed that she took part in the social activities drinking, speaking to friends and also having her daughter with her.  She rejected the assertions that she was happy on that day and had stayed there for about five hours.  She said the DVD did not show her crying when sitting on a bench with a friend Laura.  She said that she knew that she was being surveilled that day. 

105     She also believed that she was under surveillance at an Ikea store which was a week prior to the video.  She agreed that she goes out from time to time to go shopping and also socially.  She also takes her daughter for a walk in the pusher.  She tries to minimise her time in crowds. She had been overseas to Canada last year for a month and had also been to Thailand for 10 days.  The flight to Canada was a long flight. She had a panic attack in Los Angeles and saw a GP prior to coming back to Australia.

106     She was then shown a second DVD of her activities.  The first part showed her on 26 December 2018 in a supermarket and on 9 January 2019 pushing a pram in an empty street along shops.  She said the supermarket was a FoodWorks supermarket in Elwood and that she thought it showed her walking along Glen Huntly Road browsing in windows. 

107     She had had a previous problem involving a fear of flying and was referred for a desensitising course over several days.  It helped her with flights.  Despite being given a prescription she said that she had never taken Seroquel.  Despite the fact there may had been no recent prescription recorded in the doctor's notes she still takes Zoloft. 

108     She was then briefly re-examined by her counsel.  She was asked matters that had previously been raised in examination-in-chief such as the surveillance and the missing notes of Dr Shnider which did not take matters any further. 

109     She said that she spent 33 minutes with Dr Entwisle who was very quick and cut her off when she tried to explain her history to him.  She said she was 20 weeks pregnant at the time she saw him but did not tell him she was pregnant.  She said that she had charged her mobile phone on the computer at Jolson. She had never backed it up on a work computer.  She believed it was illegal for Mr Jolson to get the texts off her mobile phone onto the computer.  She did not use her mobile phone for work purposes.  The hard drives that she had at home were destroyed as part of an agreement with Jolson.  That completed her evidence.

110     The next witness called was her husband Tim Wood, who is a software engineer.  He said that they had been married for just over nine years and he worked as a consultant at home.  They shifted to Torquay in about January this year for a few reasons.  She was getting worse in that she was not sleeping.  He said that she felt that she was being surveilled, but he was not sure about that.  Their house in Melbourne was near to Mr Jolson's brother and she felt uncomfortable living near him.

111     In cross-examination he believed that on one occasion she was in a park in Elsternwick with some dogs when some people told her that somebody was looking at her.  She also believed that she had been surveilled at an Ikea store and took a photo of the person. 

112     The next witness to give evidence was Mr Stephen Jolson, her employer.  He had known Ms French for eight years since beginning to employ her.  She was employed at various tasks such as office manager, HR, IT, accounts and did some work for his wife's cardiology practice.  He regarded her as a personal assistant. 

113     Over the years they had a good working relationship. She had never spoken to him about work stress but spoke about other stressors.  A major stressor was that her husband was desperate to have children and she was opposed to it because of her family upbringing.  She loudly stated that to the office and clients.  There were also other stressors involving some TV program.  She did mention to him that she had an absolute fear of flying and did a course in order to help her with that.  There was also a lengthy problem with some kitchen renovations between 2014 and 2016. 

114     He did not remember any issue of correcting her grammar and she did not raise any grievance about that with him.  He did not remember criticising her about eating at her desk, but said that she did eat lunch at her desk after the lunch break.  He had told her she should eat lunch during the normal lunch break. This was not a major issue.  He said that he had never yelled at Ms French.

115     Ms French was not aware of her actions such as having her phone on speaker at full blast which was distracting to everyone in the office. Their office had an open-plan so that everybody could see each other.  She sat in a separate cubicle in front of him and he needed to stand up in order to see her.  All staff were very close to each other and could hear each other talking. 

116     He did not remember any issue involving saying “good morning” to her and he would greet all staff on arrival.  Maybe he would not greet Ms French in the morning if she looked like she was in a bad mood.  He believed her office demeanour was good in that she was the life of the party.  She was loud, verbose, crass and often was unprofessional in her language.  She would joke about others and have no consideration for anyone around her. 

117     He was asked about her allegations as to the EOFY incident.  He said this was an office party which was an opportunity for others to mix with colleagues.  Ms French was in a quiet mood that day and was not interacting with the other staff at all.  This was contrary to her role as a HR person in that she should communicate with staff.  At one stage she stood up and walked out.  He was told that one of his senior staff, Andrew Prodromo, with whom she had a joking relationship, had told her to "Fuck off, and go home" on the night.

118     He encouraged Mr Prodromo to be remorseful and talk to Ms French.  Ms French came in and shut down not wanting to engage with him.  He told her that she and Andrew should speak and that Andrew would apologise.  She never raised any issue or problem about that incident later to him.

119     As to the rug incident, he had a small silk and wool rug in a meeting area.  If anybody walked on the rug it showed footmarks.  One of the junior members of staff had to sweep it prior to any clients coming into that area.  He advised staff not to walk across the rug and raised this in a morning meeting.  One day Ms French walked across the rug and he told her not to do that.  She said to him in a snappy tone "well you do it" in a stern manner.  He said to her that he would appreciate if she did not answer him back.  He did not yell at her but used an “appropriate stern voice”.  She did not raise any grievance later about that incident.

120     In 2014 and 2015 there was a process for performance reviews.  As she was the HR person, they would do her performance review together. In her review she would refuse to have any other staff present when her performance was being reviewed.  In the 2014 review she got a generous salary increase.  He made one suggestion that she should “lead by example”.  A few weeks later she raised that comment with him and said he had not given her an example. 

121     All senior staff reviewed him in 2015 but there was no record of that in the system now.  He believed it was positive and that she must have kept the review.

122     In her 2015 (November 2014) review she was positive, stated that she loved the job and appreciated that he did not micromanage her. He did say there was room for improvement. They spoke about the staff saying that she was unapproachable and aggressive at times.  She needed to “lead by example”.  He suggested she do a course to better manage staff, but she said that she had done courses.  He had to deliver the message to her that she was aggressive and not approachable. The 2016 (November 2015) review process was different and he did it by himself.  He suggested to her about having a lunch with staff and being more approachable with staff over that lunch.

123     As for her allegations about the earphones, he suggested that she should not wear earphones.  She played loud music through the earphones while working, which was a constant problem.  This made her inaccessible to staff.  She would laugh at him if he asked her to remove them. 

124     In November 2015 there was an incident involving his co-director Matt Wright.  He had been with Jolson for about 10 years.  Matt Wright received a large bonus that year, but she had included that bonus into his hourly rate, thus greatly increasing his hourly rate.  Mr Jolson did not believe the bonus should be reflected in the hourly rate. He spoke to an accountant, Brent, by phone.  He believed that it was discretionary to include the bonus, but the bonus should not be reflected in the hourly rate for the following year. 

125     He and Ms French went into Matt Wright's review and Matt said that Ms French did not have his best interests at heart.  Ms French was “very distressed because she had been wrong”.  Later she and Matt Wright spoke about it and Matt Wright walked out.  Ms French threatened to have "a conflict resolution program". Matt Wright could not understand why she was saying this.  She went off on sick leave next day and he saw emails between her and Matt Wright.  Mr Jolson later told her that instead of a conflict resolution program they should have an informal discussion.  She wanted a mediation, but he thought that should be the final step. 

126     She came in late next day and they were about to convene the meeting.  She told him that she had a miscarriage the week before and was not coping with the loss of the baby.  He told Matt Wright that they should back off from the meeting.  The crux of that meeting was that Matt Wright believed that she did not have his best interests at heart.  Ms French said that Matt Wright was malicious.  He believed he spoke to her then separately in a “clear supportive manner”.  Mr Jolson wanted to resolve the dispute.  She did not say anything to him later about that incident either.  However, he did later see an email on her computer that she told her parents that she was "happy with Matt Wright".  This email was in the backup on their computer. 

127     As to the allegation that he "shushed" Ms French, he said he did not believe that he did this.  On many occasions he had asked her to keep her voice down and not be crass.  On the odd occasions he did tell her to “shush” she would resent that.  He said his tone was “calm and non-derogatory”.  Her tone of voice was such that she spoke loudly and in front of the whole office in an unprofessional manner.

128     After she returned from Fiji, he placed a mirror on her computer monitor.  A sales rep had sent them a sample of a mirror which was about five to eight centimetres square.  It was a convex mirror and did not show any image in it.  He said to her that they should put the mirror onto her monitor because her music was too loud.  This was "in jest".  He later typed a Dymo label "because your music is too loud".  He said that this was a joke and she thought that this was hilarious.  The idea was that he would wave at her if her music was too loud.  She left it on her screen over the balance of her period of employment.  He said that she could have removed it at any time and he had no rule that it be there.  He did not insist on it remaining there for the balance of her period of employment.

129     As to her allegations that he threw things, he said that he sat behind her with a screen in between them.  She had a large desk and would wear her earphones.  He said that at times he would throw small crunched-up Post-it notes to the end of her desk to attract her attention.  He denied throwing them at her or throwing any other object such as a stapler.  The yellow Post-it notes were simply scrunched up into a ball which he would flick onto her desk to get attention.

130     As to her example of having to remove weevils from the pantry, he did not request it as he was away.  His nine year old son had told her that there were "bugs on the ceiling".  She saw that they were weevils and offered to clean it for his son.  She said to his son that "I love this shit". She only drove his children to school once or twice.  She loved this task as it gave her an opportunity to drive his wife's car.

131     He did not believe that sick leave was ever an issue with her.  In 2014 he  had wanted to see her sick leave credits as she was having many days off work.  She emailed a schedule and said that she took annual leave if necessary.  She put a smiley face on the email in a light-hearted manner.  They never looked at this issue again until after she left his employment.

132     Prior to the Emma Selzer issue in 2017 he thought that her attitude had lifted.  He suggested that she have a profit share at the end of 2016.  She wanted to think about it over Christmas 2016.  He believed that over the Christmas break she worked over about two weeks, but he did not ask her to do that. He and she had a meeting in his residence after Christmas and she told him that she preferred a lump sum payment bonus rather than a profit share. 

133     He was then asked about the Christmas incident.  At their Christmas parties it was his role to open the champagne, make a speech and bring all the parties together.  That year they had a deadline for a big job.  Ms French got the glasses out while he was working.  He heard the champagne pop, stood up and stated to her that he was really disappointed "you have taken this away from me".  He had wanted to finish his work before opening the champagne.  He said his voice was “stern and did not raise his voice” as he was speaking in front of the office.  When he said this, she burst into tears.  She seemed to have an adverse reaction to anything he would say to her by way of criticism.  He avoided making critical comments to her like everybody else.  She was upset while he was making a speech in which he complimented her.  Everyone then went off to lunch and he apologised to her “if he had made her upset”.  Later at the party, she did not cry and took part in festivities.  He believed that she had a really good time at the restaurant and appeared to have jovial interaction with the staff.  Later when they returned back to his residence Ms French was drunk and left after midnight. 

134     He said that the 2016 Christmas party was amazing.  Ms French was jovial and everyone complimented her on this.  At the end of that night he and she were actually “dancing and kissing” at the afterparty. 

135     He was then asked about the Chloe incident in 2014.  He was overseas and Ms French sent him an email suggesting that Chloe may have been dishonest.  They did an investigation on his return and monitored the computers of Ms Selzer and Chloe Cochrane.  Chloe was doing some private work in Jolson time and contracted Ms Selzer to do some work with her using Jolson resources.  As a result of that episode Chloe resigned.  As they believed that Ms Selzer was remorseful, he gave her a second chance but with a first and final warning.  He said Ms Selzer was a model employee after that. 

136     In the years 2015 and 2016 Ms French was very difficult to approach by staff.  She always appeared "overwhelmed and tired".  He believed that she intimidated staff.  He told her that she should "lead by example".  Ms French would often refer to the female staff as "bitches".  This came up in his discussion with her in 2017 in which she said that she felt ostracised from the rest of the staff.

137     He then spoke about the Emma Selzer issue which arose on 3 March 2017.  He was in a meeting. When he came out of the meeting both Ms Selzer and Ms French had sent him emails wanting a private discussion.  He first spoke to Ms French and they went upstairs.  She immediately burst into tears and said that she could not do this anymore saying, "fuck these bitches".  She said that how could Emma "just change seats".  She said that the staff all hated her.  He suggested that she go and buy a bunch of flowers or chocolates to give to Emma to show the staff that she was remorseful.  Ms French said to him that "this is the girl who defrauded you" referring to Ms Selzer's involvement in the Chloe incident.  Ms French said that she would buy some flowers for Ms Selzer. 

138     He later spoke to Ms Selzer who was trembling with fear and obviously scared.  She told him that Ms French had verbally abused her which she believed was unprofessional.  At the end of the day he believed that Ms French sent Ms Selzer an email with an apology.  On the Sunday night he got another email from Ms Selzer saying that she was resigning because of Ms French.  He rang Ms Selzer who was "beside herself". She said that she did not want to come back to work.  However, he wanted to see her on the Monday. 

139     On the Monday he spoke to Ms Selzer who "cried the whole time” saying she was “scared" of Ms French.  He said that he would discuss the matter with Ms French.  Before doing so, he first spoke next day to two other people in the office who had witnessed the incident and asked for them to write statements.  He said that he was being very careful.  Both Ms Selzer and the two witnesses agreed that Ms Selzer had been humiliated by Ms French.  He then had a meeting with Ms French at about 2.30pm on 7 March. 

140     She had sent him an email to discuss his offer of a profit share.  He took her upstairs and had a meeting with her.  At the start he said that they should postpone the profit share meeting to the end of the week.  He said that something important had come up that he needed to speak to her about.  He said that he "very carefully” brought up the Emma Selzer issue.  He said "because of you another staff member has resigned".  Ms French punched the table, got a tissue and said that she would not stand for this.  She said that "this is bullshit, I can’t stay here".  He emphasised that he wanted to keep both Ms French and Ms Selzer on staff.  She said that her emotions could not cope with this and that she had her health to think of.  He told her that both Ms Selzer and Ms French were important to him.  He said that he was "very calm". Although she was his HR person, he was doing her task in dealing with this issue.  He again suggested she look at doing courses such as human resource or communications course to bridge the gap.  She replied to him "fuck this, that is a waste of time, I will not do a course". 

141     He said to her "You need to learn to separate personal issues from coming to work".  He again raised the issue of her "unprofessional manner".  He told her that she had been leaving sensitive financial documents on her desk in view of staff. He was very sensitive about this.  He also told her she needed to be approachable and remove her earphones.  He emphasised that he was on "an even keel and calm".  However, she was being very defensive and loud.  The meeting then subsided to a lower tone of voice and she seemed to understand what he was saying to her. He emphasised that she was important to him with the meeting ending about 3 pm.

142     He later found out that she had left early when he came down from his residence.  She had put things in her bag and left about 4 pm.  He later sent her a text saying that they had had a "positive meeting".  There was no response.  He later got an emailed medical certificate referring to "stress".  He knew that she had been suffering stress before but did not believe that this was from work.  She had talked to him about other stressors in her life but not work.  Those stressors included a legal issue at VCAT concerning the kitchen renovations and the trip to Fiji in which she had suffered food poisoning.  She had also told him in 2015 that she and her husband were thinking of divorce as he wanted a baby, but she did not want to have one.

143     Importantly, he said that he was advised to make no contact with her about the stress while she was on sick leave.  He tried to get her not to do any work such as the furniture delivery and working on the payroll.  He hoped that she would recover from this "stress".  She sent him an email wanting to discuss matters before going back to work. 

144     He wanted HR support because she raised the issue of "stress leave".  As she was the only human resource person at Jolson, he rang Fair Work Australia to ask about stress leave. They put him onto a HR advisor known as "Employsure".  He had a meeting with them to speak about HR issues as she was not at work.  This would have been about two or three days after the meeting.  They mostly gave him advice upon which he acted. 

145     He encouraged her to come to work on 20 March to discuss things.  She came in at 9.15 on that day and went straight to her desk.  He said that she was loud and roughly slamming drawers.  After he finished a meeting, he asked her to meet him at 9.35am upstairs.  Employsure had advised him to tape the discussion with her permission.  She did not know that he was recording the meeting as they were going upstairs.  He asked her how she was. She said that she was fragile.  He asked her whether she would like someone present and/or tape the meeting.  She was uncomfortable with the idea of the meeting being recorded and he turned it off.  She said that he needed to define her role moving forward.  This took him back.  Someone had resigned and he believed that they needed to talk about that.  She told him that he needed to be specific and whether was she doing a good job.  Mr Jolson said he felt “confronted”.  She only wanted to talk about herself and not about being remorseful towards Emma Selzer.  She asked him whether he wanted to make her redundant because she said she was prepared to walk away and arrange a temp to take over.  He told her he did not want her to walk away. He wanted her to do her job more professionally.  They discussed that issue. She told him that she was making her feel uncomfortable and she got up and walked away.

146     That first meeting on that day was quiet. However, she used words such as “berate” and “aggressive” which he later believed were “trigger words”.  He said that he was "scared shitless" of her.  She was sensitive to adverse comments.  He followed her down and said that he wanted to discuss the matter further.  She told him that he needed to lower his tone.  He said that he would lower his tone which he believed was because he was nervous.  He emphasised that at all times he wanted her to show remorse and some empathy towards Ms Selzer. 

147     They both went back upstairs and he recorded the second meeting with her permission. He later found out that she had recorded it as well.  The second meeting was longer and both were calmer.  He told her she needed to understand that her "mood affected her behaviour".  She told him that she was not taking that on board.  They talked about doing courses again. He told her that it was not acceptable for her to treat staff like that.  She refused to do a course despite the fact that he thought she needed to better communicate with people.  He said that she could not accept that she was unapproachable and her mood affected staff.  He said that if she believed she was approachable then he did not believe that they could work together.  She replied to him that she agreed and did not believe she could do those things.  He said to her that that saddened him.  She asked him what he wanted her to do. He said that he wanted her to show empathy towards Ms Selzer.  She mocked her referring to her as "Poor Emma".  They were going around and around in circles and there was no point in continuing.  She asked him whether he was going to terminate her employment as she was not resigning.  He said he did not believe that this was the point of the discussion.  She replied that this was "purely financial and she needed the money".  He told her that he needed advice and he would get back to her.

148     She then said that she would go down, pack some things and leave until he got back to her.  He said to her that that was not acceptable.  She said she wanted him to make her redundant. He replied that she was important to him, but she needed to be approachable.  He told her that he would support her through her difficulties but she “closed down”.  He then raised the issue that she should not leave financial documents on the desk or leave the financials cabinet key under her stapler on the desk.  She replied that she needed some SMART guidance.  He had never heard of this before and did not know what she meant.  (SMART refers to the specific, measurable, achievable, realistic and timely indicators.)  She then went back downstairs and wanted to leave.  He needed to get advice.  He thought that this problem would pass over and he wanted her to stay. 

149     They both went back to work and he noticed that she was shredding many documents.  He said that he was "too scared to ask her what she was doing".  At 3.25 pm he got a phone call from National IT and was told that somebody was doing a large download on Ms French’s computer.  He had highly confidential documents in the file that she was downloading.  This was about 36 GB.  It contained matters relating to the history of the office including financial documents, staff records, etc.  He believed that she had her own personal info in a separate folder and there was nothing personal to her on the folder that she was downloading.  He said that he "very carefully walked over" to her and asked her whether she was copying an admin restricted file.  She replied that she was copying her file.  He said that they should continue upstairs. Meanwhile he took a photo of the hard drive that was put into her computer. 

150     They went upstairs and were both very calm.  He asked her to explain and she said that she was copying her "own files".  She said that she believed she was going to lose her job. She agreed to show him what she was downloading.  They went back downstairs and opened the file which showed that it was an "admin restricted" file.  He asked to explain why she was copying his wife's documents.  She replied that they were on her spreadsheets.  He asked her to delete the download and she said she had a number of other similar backup drives at home.  She deleted the folders as instructed and they both again returned upstairs.  He told her that she had contravened her contract and she replied that he did not trust her.  She accused him of setting up National IT to get her. This was not true.  He told her that her conduct was very serious and that she had breached his trust.  She kept on accusing him of setting her up.  He told her to delete the files and return the backups to him.  He did not comment about her concern about losing her job as he wanted to investigate. He repeated that she had broken his trust.

151     He believed that she had been caught stealing company property. She sat at her desk and continued working. Before the end of the day he emailed her to leave the cabinet key as well as to return her backup drives.  There was no response.  At about 6 pm she left the keys on his desk and left the office. She also left a glass box on her desk. Otherwise, she took every item belonging to her in her desk.  There were two keys in the cabinet drawer and he took photos of them.  He did not believe at that stage that she intended to return to work. 

152     Later, he was under considerable stress as he did not have the computer password for the payroll.  There was no response.  He later got a stress leave medical certificate but not the password.  He arranged for her remote access password to be stopped and found later that files had been deleted.  He arranged for a backup of the computer to establish the file as at 2 March. The master password was changed as well. 

153     He was asked about the allegation that she had Xanax in her wallet.  He said that she had told him in the past that she had Xanax in her wallet from about 2011 onwards.  He said that he did not know Dr Stiglitz.  One of her children was in a kindergarten class with one of his children well before her employment.

154     He denied stalking her at the Lincraft store.  They had taken their son to a speech pathologist and his wife told him that she had seen Ms French pushing a pram.  He was leaving the car park in his car after picking up his child. He saw her putting a baby into her car.  He could not believe that he had seen her with a baby. He has not seen her any other time.

155     Mr Jolson was being cross-examined at length.  He said that in 2015 the office manager did the HR work for Jolson.  It is different now as there is comprehensive and separate HR management at Jolson.

156     As for the grievance policy in Ms French's contract of employment, he said that his lawyers wrote the grievance policy. He did not know about the mediation provision before the case.

157     In 2014 and 2015 he gave Ms French a pay rise as he was happy with her performance then.  As for his comment in the performance review that she should "lead by example" he said that she did not query that in the performance review but did so later.  He encouraged her that it was not a focal point and he had no specific concerns.  He said it was simply a broad point and he did not think he needed to give examples.  In 2015 he felt that she needed some specific direction as to her use of earphones and the language she used in the office.  She would yell out the expression "lick my cock" in the office.  He told her that she should not use this language in the office.

158     Her 2016 performance review did not take place as it was too stressful for him to do it by himself.  She would not allow anybody else with him when he conducted her performance review by himself.  He found her to be very stressful in that regard.  He said he did not enjoy communicating with her, for example dealing with such issues as the cabinet key being left on the desk.  She was very defensive when he would raise those matters. There were no written reviews of all senior staff after 2015.  He did enjoy doing HR, though he had no formal training. He had never heard of SMART before she raised it in the 20 March meeting.

159     He agreed that in June 2017 he prepared a 15 page document which was a record of his recollections.  This was in relation to her lodging the claim form.  It was a compilation of contemporaneous records from his diary.  He did not consider at the end of 2016 that work was causing her any anxiety.  In that summary he referred to her having heart palpitations requiring admission to the Alfred Hospital in the end of 2016.  He said that he suggested it might be worth investigating that aspect if she was being treated for anxiety caused by her workplace at that point of time.  He said that he was trying to get Allianz or his solicitors to check other reasons for her stress.  He did not believe that Allianz and his solicitors were being detailed enough in their defence of her claim and he made a complaint in that regard. 

160     He was then asked about the rug incident.  He agreed that he asked people to preferably not walk on the rug as it showed scuff marks.  He said that a junior staff member "Ken" had to sweep the rug to remove any foot scuff marks in preparation for any client meeting.  He said that he did not believe that he was micro-managing that issue.  Ken simply knew to do it.  Despite that he did not think that walking on the rug "was the end of the world".  It was no big deal when she walked on it. He did not raise his voice at the time but simply spoke to her in a "stern" way.

161     Her complaints about the mirror were not justified as this was done in jest and they both laughed at the time.  She could have removed it at any time. He did not want it left in place.  He was asked about her wearing earphones and trying to attract her attention.  He said that he flicked rolled up Post-it notes to  the end of her desk occasionally, about five or six times in eight years.  He would mainly walk over to her and not throw things.

162     In relation to the champagne incident, he said that he did not initially see her crying but saw her crying later.  He consoled her and apologised as she "meant a lot to him". He said that they both hugged and moved on.  He said that within an hour she was continuing to laugh at the restaurant.  He believed that she moved on quickly after that issue. He believed that she may have been tearful and upset at the time.

163     He was asked about the incident when Andrew Prodromo told her to "fuck off".  He said he became aware of it the next day and told Mr Prodromo to apologise for that unconscionable behaviour.  He did check later with both to see that he had apologised.  He encouraged them to talk to each other.  She had never brought that up later with him as a grievance.  He was asked whether he had ever used the words "you infuriate me" to her.  He said he did not remember but may have done so. It would have been unusual for him to make such a comment.

164     He said that staff knew that lunch would generally be between 1 and 2 pm.  He requested that if there was a client meeting in the afternoon that the staff should not cook curries because this would leave a smell in the office.  The staff should instead go to a park or cook upstairs.  He said that Ms French  never did any work or other activities for him between 1 pm and 2 pm.  He emphasised that this never occurred.  He was then asked about her taking his wife to the Alfred Hospital between 1 and 2 pm.  He then appeared to contradict himself and say that she would offer to drive his wife because she would have an opportunity to drive her car.  He said that he never asked her to do this and she would do it herself.  He said that she enjoyed doing things apart from her normal work duties and she would go home to see her dogs over the lunch break.  After her return, she would cook chicken after lunch.  He told her not to go to see her dogs at lunch time and then later cook lunch in the office.

165     He said that Ms Selzer got a first and final warning after the Chloe incident. Prior to 3 March he had offered Ms French a profit share, but she preferred a bonus.  He was told that she had abused Ms Selzer in front of the office about the desk incident and he received emails from both of them.  He was not aware at the time that Ms Selzer had received an apology email from Ms French and Ms Selzer replied to her accordingly.  He only saw this at the end of the day.  In the meeting Ms French told him that "Everyone hates me".  He suggested she maybe give Ms Selzer flowers and chocolates by way of apology.  He noted later that Ms Selzer had acknowledged her apology.  He was still not happy with Ms French's apology and received an email resignation from Ms Selzer over the weekend.  He then took it up with Ms  Selzer who was crying over the phone and saying she was "fearful" of Ms French.  He said that he was concerned about Ms Selzer’s safety and emotion.  He encouraged her to tell him how she felt when she returned on the Monday.

268     Counsel for Jolson submitted that I should disregard Dr Shnider's reports as she had clearly taken on an advocate role.  Dr Shnider completely disregarded the reason for Ms French's initial attendances and treatment and now blamed everything on the employer.  Ms Schyer took over her treatment in June 2017 and did not see Ms French at the relevant time.  He also submitted that she had taken on an advocate role as well and accepted the work history given by Ms French in total.  In any event, she had taken an incorrect history that Ms French was psychologically robust prior to 2015 which contradicts the medical material in this case. Ms Schyer had taken a history from Ms French that she initially went to Dr Shnider in 2013 to cope with workplace stress which was clearly wrong.  Similarly, Dr Lewis had accepted Ms French’s history at face value. 

269     Insofar as the 130 week issue was concerned, she had the capacity to perform work such as a meter reader. He submitted she was too proud to do such work. The DVD surveillance film was important and showed her with crowds over an extended period of time and going to supermarkets.  He submitted overall that Ms French had full work capacity from at least June 2017 and that she had been paid workers compensation benefits for one reason or another prior to that date.  He submitted that overall I should not make any award in her favour for any weekly payments or medical and like expenses.  That completes my summary of his relatively lengthy submissions.

270     Before I move on to my findings, it is important to set out the relevant legal principles in this case.  These were briefly referred to by counsel for
Ms French.  Counsel for Jolson did not contradict any submission made by Ms French's counsel as to the legal principles involved in this case. 

271     Counsel for Ms French referred to the well-known decision in St Mary's School v Askwith [2011] VSCA 90 at [12]and [41]. Those principles were adopted by Justice Cavanough in Clarke v. National Mutual [2013] VSC 36 at [56] as follows:-

'For a mental injury to arise out of or in the course of any employment, it may be necessary that there be "real", as distinct from "imagined", events or circumstances at work which contribute to the worker's injury.  However, as was held by the New South Wales Court of Appeal in State Transit authority of New South Wales v. Chelmer, the "eggshell psyche" principle may apply.  Hence a misperception by the worker of the relevant events or circumstances will not necessarily disqualify him or her.  In St Mary's School v Askwith, a decision of the Victorian Court of Appeal, these principles, which were common ground between the parties, were accepted as being correct and as being applicable to the facts of that case.  They were again accepted by the New South Wales Court of Appeal in Commissioner of Police v Dalziel.  As Basten JA said in State Transit Authority of New South Wales v Chelmer, in contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor.'

272     Ms French's credit is very much in issue as referred to in Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76] as follows:-

'As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important.  This was such a case.  In order for the applicant to succeed in his application, he needed to persuade the judge that his evidence about the extent of his injury was credible and reliable.  He also needed to establish the reliability of the histories he gave to the medical witnesses, whose opinions were premised on the accuracy of the applicant's account.'     

273Of course, a Court needs to be careful in considering the histories set out in medical reports (see, Woolworths v Warfe [2013] VSCA 22 at [112] and Philippiadis v TAC [2016] VSCA 1 at [105])

274 It is clear that Ms French has the burden of proof in satisfying me that she has sustained a work-related injury and resultant incapacity. However, the defendant carries the burden of proof in relation to the management action defence in s.40(1) of the Act (see Pulling v. Shire of Yarra Ranges [2018] VSC 248 at [78]).

275     As stated at the start of this decision the hearing of this case proceeded over eight sitting days.  Unfortunately, there was no written transcript of the evidence which obviously made it difficult for both Counsel and me in the running of the case. Some issues raised by Ms French in her examination in chief were not put to Mr Jolson. Also, some matters raised by Mr Jolson in his evidence in chief were not put to Ms French in cross examination. However, none of these omissions were significant in the overall context of issues for me to decide in this case.

276     As the case proceeded, it was obvious that there was marked mutual antipathy between Ms French and Mr Jolson.  Both clearly saw themselves as the victim in this case. As I have pointed out, it is not for me to determine where the truth lies insofar as any alleged ill-treatment of Ms French is concerned once I am satisfied she perceived, and was affected by, stressors actually arising from the situation in the workplace particularly those relating to her dealings with Mr Jolson.

277 Firstly, I must consider any medical diagnosis of injury. All of the four psychiatrists involved in this case (now including Dr Jager), believe that she has some sort of mixed anxiety or depressive disorder or chronic adjustment disorder with anxiety and depression. She had a history of anxiety and depressive symptomology going far back to at least 2013, if not before that date. It is also apparent on the basis of all the medical and psychological material in this case that there has been a worsening of her anxiety and depressive symptoms at least since about 2015. Having regard to her pre-existing history of anxiety and depressive symptoms at least, it is necessary for her to prove that her employment was a significant contributing factor to the "recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease" (see s.40(3)(c) of the Act).

278     In her claim form she states that she was injured by "longstanding history of intimidating, aggressive, overbearing and belittling behaviour from the director of the company, Stephen Jolson".  She states that she first noticed the injury on 27 May 2015 and ceased work on 7 March 2017. 

279     Over the period of 2015 to 2017 she makes a number of complaints about
Mr Jolson's dealings towards her in her capacity as the HR person at Jolson.  She makes a number of specific complaints about issues such as the end of financial year party in 2015, the Christmas party in 2015, the constant shushing, his unfair criticism and lack of support in her dealing with staff, putting a mirror on her monitor, throwing things at her to attract her attention, the rug incident as well as the Emma Selzer incident leading to the two meetings on 7 March and 20 March 2017.

280     As  have pointed out, it is not for me to determine whether or not there was such bullying, aggressive and harassing behaviour by Mr Jolson on an objective basis. I must ignore any motivation or intention on his part. It is for me to determine whether she had a subjective reaction to events and circumstances actually occurring at her workplace provided that the reaction "has a real connection (with those events) as distinct from an event that she simply imagined was connected with the employment".

281     I do not propose to make findings in relation to all the incidents complained of by Ms French over her employment with Jolson. Many did not involve the alleged “intimidating, aggressive, overbearing and belittling behaviour from Mr. Jolson” set out in the claim form and the statement of claim e.g. involving Mr Prodromo and Mr Wright personally. Further, the alleged behaviour of Mr Jolson and who was right or wrong in a number of instances are more appropriate for another forum beyond these proceedings. 

282     As I have stated, I believe that Ms French has obvious antipathy towards
Mr Jolson.  To a certain extent, I believe that she did exaggerate some of the incidents she described. Also, I believe over time she has developed some resentment at having done some things for the Jolson family that she happily did at the time. Those factors do not mean that she does not have a valid claim in this instance. Overall, I believe that she did have a genuine perception of, and was affected by, stressors actually arising from events and circumstances involving Mr Jolson’s behaviour towards her at work over the period from 2015 to 2017. That perception and resultant affect still continues.

283     In this case it is important to note that she was being treated by both
Dr Shnider and Dr Stiglitz over the relevant period from 2015 until and after the cessation of her working for Jolson on 20 March 2017.

284     Despite the submissions by counsel for Jolson, I accept that she was genuine in making complaints to Dr Shnider and Dr Stiglitz as to Mr Jolson's behaviour towards her, at least from May 2015 onwards.  Dr Stiglitz first takes a history of work stress and “nasty boss” shutting her up on 31 October 2016.  She had already seen Dr Stiglitz intermittently for various matters as far back as 2012. 

285     Dr Shnider had treated her for anxiety and depressive symptoms from about 2013 for factors unrelated to her employment.  Unfortunately, her notes are missing, for whatever reason, from 2013 up until 2015.

286     Her first complaint about her "boss bullying her constantly" is recorded on 27 May 2015.  Counsel for Jolson makes much of the fact that there is no history as to what Dr Shnider was treating her for between 2013 and 2015.  However, there are notes of three separate attendances on 8 April, 29 April and 13 May 2015 prior to that first complaint of work.  On those three consultations, she complained to Dr Shnider of anxiety associated with her kitchen cabinets, leading to stress causing food issues.  Those consultations are consistent with her presentation in 2013 as to the types of issues and her reactions thereto.

287     Certainly, after 27 May 2015 there were a number of instances in which she complained to Dr Shnider of work issues affecting her psyche.  The overall impression is that the work issues were now dominating her stress, though she still also had issues with non-work stressors.  She made consistent and relatively frequent complaints to Dr Shnider about work issues as I have set out in Ms French’s examination-in-chief.  She was being treated by Dr Stiglitz over that period of time. She was prescribed Kalma for anxiety by Dr Stiglitz as far back as October or November 2016. I find that her complaints to those practitioners were real and genuinely felt by her about work and Mr Jolson in particular.

288     In his evidence Mr Jolson was perhaps understandably defensive in relating his history of dealings with Ms French.  However, he did corroborate a number of aspects of her evidence which assisted Ms French for the purposes of this workers compensation case. He did make a number of concessions in the case as to the nature of the events and circumstance and their effect upon Ms French.  He agreed that he spoke to her in an "appropriate stern voice" when she walked across the rug although it was “no big deal” to him.  He agreed that on many occasions he asked her to keep her voice down and on the odd occasion did tell her to "shush".  He said that she resented this although his tone was "calm and non-derogatory".

289     He agreed that he threw things (Post-it notes) in her general direction although this was merely to attract her attention.  He agreed that he placed the mirror up on her monitor although he said this was as a joke, not seeming to appreciate that such workplace jokes may become less of a “joke” over time.  He also agreed that she burst into tears at the 2015 Christmas party after he criticised her in a “stern” voice about opening the champagne for which he later apologised.  In that context he said she had an adverse reaction to anything he would say by way of criticism and he would avoid making those comments to her. All this evidence by him bears out that there were a number of real events in the workplace which caused her stress at times prior to the two meetings on 7 March and 20 March 2017.

290     Further, he agreed he told her she should “lead by example” but would not give her any examples when she requested this. She was “overwhelmed and tired” during 2016-2017. He agreed she was “very distressed” in the meeting over the Matt Wright profit share issue. Although Mr Jolson saw these as minor short term issues, I accept that Ms French reasonably saw them as examples of continuing stressors in the workplace. Knowing that he has described her to others  as a perpetrator, narcissist and psychopath has not helped her psychological state.

291     Mr Wright corroborated a number of aspects of her evidence as well. He agreed Ms French was visibly upset by Mr Jolson’s comment after the champagne incident and felt she was bullied by Mr Jolson after the rug incident.

292     I do not accept Mr Jolson's theory and belief “when the penny dropped” that all of this was carefully premediated by Ms French because of her pregnancy and that she was merely setting him up for some form of payment by way of constructive dismissal or redundancy.  I do not accept his statement that there was no doubt she had “duped” and “set him up” as far back as 2015 or even 2017. There were many and varied complaints by her to her practitioners about her work stressors over that time and other corroborating factors as I have set out. I do not accept her conduct towards him was part of a “grand plan” for some financial benefit or her claim was “a set-up”, to use his own words. Despite his statement he was fearful of Ms French making a claim against him and his wife, Ms French took the time on 12 April 2017 to send a detailed lengthy email to Mr Jolson’s wife telling her how to complete her cardiology practice billing. This does not seem to have been the conduct of someone wanting to bring a claim against him or his wife.

293     I had a number of other concerns as to Mr Jolson’s evidence.  Around the time of the meetings he said he was “confronted” by her, was “freaking out’ and “shit-scared” and “scared shitless” by her. I find all of that hard to believe. At the 7 March meeting he said he initially asked her whether she “minded” him asking about something important and then “very carefully” brought up the Emma Selzer issue saying “because of you another staff member has resigned” which seems to be a somewhat confrontational accusation at the start of a meeting. After the heated 7 March meeting when he got the “stress” certificate I believe he was disingenuous saying he did not think the stress was due to work but rather about her non-work issues. He had in fact received a text from her the day before saying she had a migraine “having been incredibly emotional since our meeting on Tuesday”.

294     In his submission counsel for Jolson pointed out how caring Mr Jolson was in his emails to Ms French between the meetings. However, Mr Jolson said he had sought the advice of Employsure in that time. He later appreciated their “good guidance” of not being “antagonistic and scare the bear” referring to her as the “perpetrator”. He admitted he was trying to be “supportive” so that she could come back and then be confronted with the theft of files and fraud allegations, despite the fact he had already accused her in the office area of theft of the files. He also admitted referring to her later as “narcissistic and a sociopath”.

295     I believe that she sustained a worsening of her pre-existing anxiety and depression prior to 7 March 2017 and in the period up to 20 March 2017 as a result of her subjective reaction to events and circumstances actually occurring in the workplace involving Mr Jolson’s behaviour towards her. I find that there was both an exacerbation of symptoms, and an aggravation, of her pre-existing anxiety and depression arising out of and in the course of her employment in those periods.  In making those findings as to “exacerbation” and “aggravation” I refer to the well-known dicta of Kitto J and Windeyer J respectively in Federal Broom v Semlitch (1964) 110 CLR 626 at 634,637.

296     As I have stated there are four psychiatrists involved in these proceedings. I prefer the opinion of Dr Lewis as to causation and continuing work-related injury in this case. He has examined her three times, taken lengthy histories (despite what I regard to be minor faults) and offers what I believe to be a soundly based and logical opinion. Dr. Margis only saw her once for limited treating purposes.

297     Dr Entwisle took a very brief history, had very limited background material and only saw her once in May 2017 for 33 minutes according to Ms French. That evidence was not challenged. He offered what I believe to be very simplistic answers to the questions asked of him.

298     Dr Jager in his first report took a very limited history and then stated that her employment was “no longer a materially contributing factor to her current psychiatric condition”. In his second report he finally accepted she had a mixed anxiety/depressive disorder, but believed that type of (work) stress to which she was allegedly exposed would “have ceased to have a significant effect on her within three to six months following her separation from the workplace”. The basis for that opinion was a single research paper published 25 years ago using a longitudinal study of 115 participants. Even then I believe he still supports her continuing claim by saying “the ruminations she has about the workplace are likely to continue into the medium term and she is unfit therefore to return to pre-injury duties.” I find it difficult to see the difference between ruminations and perceptions having regard to my findings of fact in this case and based on the authorities to which I have referred. Dr Lewis also refers to her continuing to be “ruminative” regarding her negative workplace experiences in supporting her continuing claim.

299 That then raises the issue of s.40(1) of the Act in relation to the management action occurring on or about 7 and 20 March 2017. Counsel for Jolson highlighted the "counselling" by Mr Jolson on 7 March and 20 March was management action taken on reasonable grounds in relation to Ms French's dealings with Ms Selzer. Counsel for Ms French does not dispute that there were reasonable grounds for such management action to be taken in the nature of counselling in the circumstances. The issue then becomes whether or not Ms French's injury was caused wholly or predominantly by such management action and whether the management action was undertaken in a reasonable manner.

300     I have already found that Ms French did suffer a work-related injury being the exacerbation of symptoms, and aggravation of her pre-existing condition of anxiety and depression.  Thus, I find that such injury could not wholly be due to the management action.  Having regard to the fact that the injury existed prior to 7 March 2017 it is difficult to see how it was predominantly caused by the management action as well.  As was pointed out in Pulling (supra) at [29] "to be the predominant cause, that cause must exceed the other or all other causes combined in power and influence".

301     Certainly, I accept that Ms French's symptoms of anxiety and depression did increase significantly after the two meetings on 7 March to 20 March 2017.  However, for the reasons I have set out I do not accept that any such management action was a predominant cause of injury as it existed on or after 20 March 2017.  Prior to the two meetings she was already suffering from work-related injury of anxiety and depression to a significant degree for which she was being treated.  What really happened after 20 March 2017 was that whereas she was able to work prior to then (subject to some periods off on sick leave) her incapacity for work after 20 March now resulted from or was materially contributed to by that injury.  The fact that she had a work-related incapacity for work after the meetings on 3 March and 20 March did not increase the injury but rather now led to her continuing incapacity for work. Of course, an increase in symptoms can be an injury in itself and I must be mindful of the difficulty in distinguishing injury, symptoms and consequences especially in mental injury cases such as this case (see, TAC v Katanas (2017) 262 CLR 550 at [29]).

302     Further, I do not accept that the management action undertaken by Mr Jolson in this matter was undertaken in a reasonable manner.  I have already referred to his conduct in and about the time of those two meetings in my findings.

303     Rather than “counsel” Ms French in those two meetings, I believe that his conduct amounted to strongly berating her, involving lengthy haranguing and argumentative conduct even on his own evidence.  I do not believe he took sufficient account of the fact in the meeting on 7 March that Ms French had already apologised to Ms Selzer for her conduct on 3 March and in fact had received an apparent genuine and lengthy acceptance of her apology that night from Ms Selzer. He said he was trying to get her to be “empathetic” and  “remorseful” towards Ms Selzer, whatever that may mean in a “counselling” situation.

304     Further, after Ms French walked out of the 20 March meeting, he called her back to continue what I believe to be a heated argument. That went far beyond “counselling”.  He was really haranguing her and aggressively trying to talk her into undertaking a HR course or approachability-type course. Both of them agreed that they kept on going over the same points again and again in the 20 March meetings without any resolution. He wanted her to do a HR or other course, be more “professional and communicative” and show more empathy towards staff amongst other things. She firmly disagreed with his views about her behaviour and course suggestions. She raised the issue of SMART indicators in that meeting as to which he had no understanding. He agreed he was “agitated” and told her he would lower his tone when she complained about that. It was, or should have been, obvious to him that any “counselling” was not going anywhere after a very short time. He said it was “frustrating” going “around and around”. He should have taken up the issue of further management action with Employsure, his new HR advisor, if he had wanted to take those matters further.

305 Counsel for Jolson also submitted that the submission pursuant to s.40(1) of the Act also applied on the basis that there was an expectation of management action as a result of her "stealing" Mr Jolson's and his wife's personal files. The first thing to note is that any “misconduct” defence was withdrawn from the defence in these proceedings some time ago. I presume the allegation of “misconduct” was initially put into the defence because of the allegation of stealing files in the Notice issued by Allianz. Even on his evidence she did not actually steal any of Mr Jolson’s or his wife’s files. At best there was an incomplete download. I accept Ms French's evidence that she was downloading the information in order to get her personal records rather than his personal files. She stopped downloading and deleted the download when she was asked to do so. She did not in fact steal anything. I believe it was understandable why the “misconduct” defence was withdrawn in this case.

306     I do not accept that Ms French had any “expectation” that she would be dealt with for stealing files because in fact she was not stealing them and had no belief that she was doing so.  There is no evidence that she did in fact have any expectation of being “dealt with” for downloading those files at all. In any event she volunteered to him at the time that she already had a number of hard drives at home containing similar information. She offered to, and did in fact, either return or delete those hard drives shortly afterwards as agreed. Without her telling him, he would not have known of that fact. Contrary to the allegation in the Notice there was no evidence that Mr Jolson discussed the “possible consequences of your actions” with her after the file download incident save for telling she had “broken his trust”. In any event, as I have found she had already sustained her work related injury prior to the time of any possible “expectation” (State of Victoria v Blythman [1999] VSC 498).

307     As for Mr Jolson's allegations that she also deleted a large number of files and passwords, I have a problem with that. In cross-examination, apart from the fact that it was put to her that she deleted her job description it was never put to her that she in fact deleted any other material on the hard drive. I do not criticise his counsel for that. It was not referred to in his opening. If in fact there was any other deletion of material, then I believe it was not intended. Mr Jolson alleged that she was stealing those files in order to claim against him and his wife because she knew of their personal records. I have already referred to that aspect earlier in this decision.

308     Finally, I note that in the Notice Allianz admitted the work related injury and incapacity claim for the limited period after 7 March but denied liability for the period after 20 March. I accept that it is always open for an initial admission of liability to be reopened. I have noted the fact that Allianz referred to a circumstances investigation report in the Notice. I was not offered any explanation for the initial acceptance of liability and later change of attitude. However, this omission is not a significant reason for my decision.

309 Overall, I am not satisfied the management action defence pursuant to s.40(1) of the Act has been made out. I now turn to the issue of incapacity.

310 I accept that Ms French has had an incapacity for work within the meaning of the Act since ceasing work on 20 March 2017 onwards. Even Dr Jager now accepts that she only has the capacity to work half-time and is likely to continue in the immediate term being unfit to return to pre-injury duties because of her “ruminations”.

311     In relation to Dr Entwisle, I have already referred to his report. He accepted she had an aggravation of her pre-existing condition and now had an adjustment disorder with anxious and depressed mood of mild severity. Her only work history as to causation was Mr Jolson’s alleged mistreatment of her which he did not question. Despite those findings he believed she “would be deemed to have a capacity for full-time pre-injury duties at that workplace”, and presumably working with Mr Jolson, eight weeks after she ceased work with him. I do not accept that opinion, or being able to work at an alternative workplace, in the circumstances. Two weeks later she first saw Ms Schyer. On 20 June 2017 her DASS score was 42 “extremely severe” for depression, anxiety and stress.  

312     As I have stated Dr Lewis has seen her on three occasions and given a detailed report properly based with background material though with some minor errors as to history. He states she is unable to undertake pre-injury or all alternative employment at this point of time on a consistent or reliable basis. The role of meter reader was theoretically more appropriate but would be regarded by her as being beneath her.

313 I have already found that Ms French still suffers from work-related chronic adjustment disorder of anxiety and depression as at the date of this decision. Employment was and is still a significant contributing factor to the injury being an exacerbation and aggravation of her pre-existing anxiety and depression. I have taken into account the factors set out in cl.25 of Schedule 1 of the Act. Factors (a) to (c) have been considered in some detail in this decision. Factors (e) to (g) were not addressed and do not appear relevant to this case. As to factor (d) although she had pre-existing anxiety and depressive symptoms these were relatively mild and being properly treated prior to the period 2015 and after that to March 2017. If the events and circumstances as set out involving Mr Jolson not taken place, then I believe she would have continued at a similar level of symptomology, consequential treatment and continuing to work as before.

314 Insofar as incapacity for work is concerned, I must consider the situation of her incapacity for work up to early to mid-September 2017 being the approximate relevant 130 week date pursuant to s.163(1) of the Act. Counsel for Jolson made much of the fact that on 20 June 2017 Dr Stiglitz recommended that she return to work after having seen Dr. Entwisle’s report. I have already referred to his opinion in some detail and do not accept his opinion she was then fit to return to the same pre-injury employment at the current or alternative workplace. About that time she started regular psychological treatment with Ms Schyer who did not appear to believe she had any capacity for work then.

315     Shortly after she stopped seeing Dr Stiglitz, she began to be treated by Dr Richards who also believed she should not then return to work. I do not agree with the submission that by not accepting Dr Stiglitz’s suggestion of a return to work that Ms French was deliberately avoiding work then, whether for purposes of her case or otherwise. She did work at a light duties job in May 2019 for a reasonable period of time. Perhaps if this had not been at an architectural firm, she may have worked there longer.

316     However, I do not find she had at September 2019, or now has, “no current work capacity likely to continue indefinitely”. As at September 2019, she had at least a “current work capacity”. Despite being in the witness box over four days, she had good recollection and concentration, was generally calm and able to fully address questions asked of her and raise other issues involving Mr Jolson as to which she was not asked.

317     She is a person who has worked in various white-collar occupations over the years.  As set out in the Recovre report she has considerable administrative and clerical, communication and computer skills. Her stated reason in evidence as to why she could not be a meter reader was walking for hours and people may yell at her. There appears no reason why she could not do some form of light manual work now such as sales. I believe she would be fit and capable of doing some form of minor clerical work on a part-time basis initially because of the lengthy time off work and full time relatively shortly thereafter. I do not accept the opinions of Dr Richards or Ms Schyer in this regard. As far back as January 2019 she agreed she told Ms. Schyer she wanted her case finalised to get back to work by May/June. She also agreed in cross-examination that this case dominates her thinking and recovery and is unable to “move on” until it is resolved.

318     In any event, even if she does have “no current work capacity” I do not accept that this is likely to continue indefinitely for the same reasons as set out in the preceding paragraph. Dr Lewis limits his opinion that she is not able to work “at this point of time on a consistent or reliable basis“. If she does not have a current work capacity already, I believe that within a short period after finalisation of this case she will be able to perform a large range of white-collar jobs including clerical, sales and even meter reading type duties.  She is a tertiary educated relatively young woman with many and varied skills as set out in the Recovre report and has a good employment history.

319     She is entitled to an Order for reasonable medical and like expenses, amounts reserved. In addition, she is entitled to weekly payments for the balance of the appropriate 130 week period. 

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