Gambian v Spotless Services Australia Limited (ACN 005 309 320)
[2020] VCC 1407
•9 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-01232
| AUDREY HAZEL GAMBIAN | Plaintiff |
| v | |
| SPOTLESS SERVICES AUSTRALIA LIMITED (ACN 005 309 320) | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 15, 17, 20, 21, 22, 23, 24, 27, 28, 29, 30 and 31 July, and 3, 4, 5, 7, 10, 11 and 13 August 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 9 September 2020 | |
CASE MAY BE CITED AS: | Gambian v Spotless Services Australia Limited (ACN 005 309 320) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1407 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Workplace bullying and harassment – whether the defendant failed to provide a safe system of work – whether there was contributory negligence on behalf of the plaintiff – damages
Legislation Cited: Occupational Health and Safety Act 2004 (as amended), s21, s23; Occupational Health and Safety Regulations 2017
Cases Cited:Swan v Monash Law Book Co-Operative [2013] VSC 326; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Brown v Maurice Blackburn Cashman [2013] VSCA 122; Czatyrko v Edith Cowan University [2005] HCA 14; Hegarty v Queensland Ambulance Service [2007] QCA 366; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
Judgment: Claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr G Clark | Shine Lawyers |
| For the Defendant | Ms R Annesley QC with Mr B McKenzie | Russell Kennedy |
HIS HONOUR:
1 From January 2005 until May 2013, Audrey Gambian (“the plaintiff”), was employed by Spotless Services Australia Limited (“the defendant”) as a chef manager.
2 The defendant is a company which provides catering services for numerous clients in Victoria including Caterpillar of Australia Pty Ltd (“Caterpillar”) in Tullamarine. At that site, Caterpillar operates a factory in which there are two canteens, for the use of its employees.
3 The defendant had entered into an agreement with Caterpillar to provide catering services at the smaller of the two canteens in the factory (“the canteen”). The other canteen is not relevant to this proceeding.
4 From at least 1995, the plaintiff had worked as a canteen manager for various employers. Over the years, I accept that she managed factory canteens competently and that she generally enjoyed her work. There was one incident which occurred in 1995, when the plaintiff was employed as canteen manager at the Nestlé factory in Melbourne, which I accept caused her considerable stress. This was a catering contract which did not involve the defendant. I will refer to that incident later in these Reasons.
5 For some time prior to January 2005 the plaintiff was employed as chef manager at a canteen at a factory operated by Cryovac Australia Pty Ltd. In January 2005, the defendant took over the contract for the Cryovac canteen and employed the plaintiff to continue there as chef manager. In November 2010, the plaintiff was transferred by the defendant to manage the canteen at Caterpillar.
6 The plaintiff reported to the defendant’s operations manager, Diane Scott (“Scott”) who worked at the defendant’s head office away from the Caterpillar site.
7 When she commenced her employment with the defendant in 2005, the plaintiff was aged forty-five. At the time she commenced at Caterpillar in 2010, she was aged fifty. She last worked in May 2013 when she was aged fifty-three. She is now aged sixty.
8 The plaintiff ran the canteen with an assistant who was described as a permanent casual employee. From time to time, when there was a large function to arrange, one or two additional casual assistants were engaged to help out. For the vast portion of the year, the canteen was run by two persons – the plaintiff as manager and one assistant.
9 When the plaintiff took over as chef manager at the canteen in 2010, her assistant was Wendy Tucker (“Tucker”) who had worked in that capacity for some years with another manager. The plaintiff and Tucker worked well for approximately nineteen months before, in June 2012, the defendant transferred Tucker to the NAB canteen in the city. For a few months, the role of assistant at the canteen was filled by various casual employees until, in September 2012, a new assistant, Michelle Bowen (“Bowen”) was appointed.
10 The plaintiff and Bowen worked well together initially. The plaintiff requested Scott to appoint Bowen on a permanent basis.
11 From about early December 2012, the plaintiff’s relationship with Bowen deteriorated. From around that time until the time she ceased to work for the defendant in May 2013, I accept that the plaintiff did not enjoy working with Bowen. There were a number of incidents between she and Bowen which led to various reports to Scott by both the plaintiff and Bowen concerning the alleged behaviour of the other.
The Plaintiff’s claim
12 In paragraph 13 of the Fifth Amended Statement of Claim (“the SOC”), it is alleged that:
“Between November 2012 and 13 May 2013, the plaintiff in the course of her employment at the premises was subject to bullying, harassment, inappropriate and improper complaint, and inappropriate and dysfunctional management by the defendant (‘the conduct’).”
13 Particulars of this allegation were set thereunder; they consist of particulars of bullying by Bowen and by Scott.
14 In paragraph 14 of the SOC, it is alleged that:
“By reason of the conduct the plaintiff suffered serious injury (‘the injuries’).”
15 In paragraph 15 of the SOC, it is alleged that:
“The injuries were occasioned to the plaintiff by reason of the negligence of the defendant its servants or agents.”
16 Lengthy particulars of negligence of the defendant are set out. The thrust of the particulars is that the defendant:
· Failed to instruct Bowen to comply with and obey the plaintiff’s instructions;
· Failed to provide Bowen with adequate supervision and directions;
· Failed to heed the plaintiff’s distress and complaints made by the plaintiff concerning Bowen;
· Failed to discipline Bowen in relation to her conduct towards the plaintiff;
· Failing to take heed of its own Professional Behaviour Policies and Procedures;
· Failed to undertake an independent investigation of the plaintiff’s complaints between 9 January and 13 May 2013;
· Failed to take heed of Bowen and others “ganging up” on the plaintiff after receiving a petition from customers calling for the plaintiff to be replaced as chef manager of the canteen;
· Provided a letter dated 13 May 2013 to the plaintiff threatening termination of her employment;
· Failed to take heed of the plaintiff’s previous work performance;
· Failed to undertake an independent investigation into the petition;
· Failed to provide the plaintiff with adequate support and counselling;
· Failed to transfer Bowen to another worksite.
17 The plaintiff claims that, as a result of bullying and harassment towards her on the part of Bowen and Scott, and the inadequate manner in which the defendant handled the relationship problems between she and Bowen, she suffered significant mental-health problems. Principally, these consisted of depression and anxiety. She alleges that, as a consequence of these injuries, she has been unable to work since May 2013 and is unlikely to be able to return to work at any time in the future.
18 She claims damages in respect of pain and suffering and economic loss suffered as a consequence of her mental illness.
Bullying and harassment
19 The words ‘bullying’ and ‘harassment’ are not defined by statute.
20 Since 2003 and possibly before, WorkSafe Victoria has published various Guidelines relating to bullying. Guidelines were published in 2003, June 2009 and October 2012. These Guidelines have, in my opinion, no legal status.
21 In the 2009 Guideline[1] entitled “Preventing and responding to bullying at work”, it is stated that:
“‘Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. … .”
[1]Exhibit HH, Joint Court Book (“CB”) 988 at CB 992
22 That guide goes on to state that a broad range of behaviours can be bullying, and these behaviours can be direct or indirect. Examples of direct forms of bullying include verbal abuse, putting someone down, spreading rumours or innuendo about someone, Interfering with someone’s personal belongings or work equipment.
23 In the October 2012 Guideline,[2] entitled “Workplace bullying – prevention and response”, it is stated that:
“Workplace bullying is characterised by persistent negative behaviour directed at an employee that creates a risk to health and safety.”
[2]Exhibit HH, CB 972 at CB 975
24 The defendant had a number of written policies including Professional Behaviour and Procedures,[3] which contained its own definition of bullying.
[3]Exhibit 3, CB 594 at CB 595
25 I prefer to adopt the definition accepted by both Dixon J in Swan v Monash Law Book Co-Operative,[4] and by Forrest J in Johnson v Box Hill Institute of TAFE.[5]
[4][2013] VSC 326 (“Swan”) at paragraphs [150]-[152]
[5][2014] VSC 626 at paragraph [211]
26 That is:
“Workplace bullying is repeated, unreasonable behaviour directed toward an employee or group of employees, that creates a risk to health and safety. Within this definition ‘unreasonable’ means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten; ‘behaviour’ includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining, or threatening; ‘risk to health and safety’ includes risk to the mental or physical health of the employee.”
27 The Court of Appeal, in Brown v Maurice Blackburn Cashman,[6] adopted a similar approach:
[6][2013] VSCA 122 at paragraph [15]
(a) Was there unreasonable behaviour directed towards the appellant, ie behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine, or threaten the appellant; and
(b) If there was, did it occur repeatedly?
28 I consider that there would be many instances in employment sites throughout Victoria where co-workers are, on occasions, rude, tactless, and inconsiderate to each other. Most such instances would not constitute bullying or harassment. What is required is for there to be a degree of repetitiveness and unreasonableness in such behaviour. Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances, would see as victimising, humiliating, undermining or threatening.
Was the Plaintiff subjected to bullying and/or harassment?
29 The incidents of alleged bullying/harassment are set out in a document provided by the plaintiff to the Court entitled “Bullying Document” dated 12 August 2020. The allegations concern behaviour on the part of Bowen and also Scott.
30 In summary, insofar as they relate to Bowen, the allegations consist of:
(a)denigrating the plaintiff in front of customers;[7]
(b)denigrating the plaintiff in front of co-workers;[8]
(c)taking over the management functions which were reasonably the plaintiff’s functions;
(d)refusing to take proper instructions from the plaintiff and/or breaching the defendant’s policies;
(e)not attending to tasks allocated to her by the plaintiff or which were Bowen’s responsibility;
(f)attacking the plaintiff to the defendant’s management and, in particular, accusing the plaintiff of being a liar;
(g)attacking the plaintiff verbally and/or “baiting” her with statements which may or may not have been true, but which were intended by Bowen to unsettle and disturb the plaintiff;
(h)displaying a general demeanour towards the plaintiff, which was disrespectful, rude, dismissive and intimidatory.
[7]“Customers” being employees of Caterpillar who were customers at the canteen
[8]I infer that “co-workers” were casual employees who assisted in the canteen from time to time
31 Insofar as they relate to Scott, sub-joined to paragraph 13 of the SOC are:
“(xviii) Providing the plaintiff with a letter dated 10 May 2013 which did not comply with the direction of her superior, Potter, to seek and include information from [Caterpillar] and further, threatened termination of employment;
(xix) Failing to advise the plaintiff in advance of the 13 May 2013 meeting, its nature and regardless conducting that meeting.”
32 I shall deal firstly with the allegations of bullying made against Bowen.
33 Senior Counsel for the plaintiff opened the plaintiff’s case on the basis that between September 2012 and Christmas 2012, the plaintiff had been subjected to behaviour by Bowen which was problematic and constituted bullying. On the evidence of the plaintiff and Bowen, I consider that problems between them only commenced in December 2012.
34 Scott’s evidence was that around Christmas 2012, the defendant was happy with the performance of the plaintiff as chef manager at the canteen. Further, she advised the plaintiff that Caterpillar was happy with the performance of the canteen.
35 Until then, I formed the view that the plaintiff and Bowen had competently operated the canteen together.
December 2012
36 The plaintiff experienced chest pain and was off work on 6 and 7 December. She was concerned that the pain might reflect some cardiac problem. Bowen performed the plaintiff’s duties on those two days. On the plaintiff’s return, Bowen told her that Scott had been very pleased with her performance and shocked that she had not had to call her for anything. The latter comment was perhaps a veiled suggestion that either Bowen or Scott considered that the plaintiff called Scott excessively. That this was the subject of a complaint by the plaintiff is surprising. At worst it points to some conceit on Bowen’s part, that she had done well in the absence of the plaintiff.
37 The plaintiff’s evidence was that, on her return to work, Bowen appeared somewhat annoyed because she had looked after the canteen and appeared to consider that she was not given any thanks or any adequate compliments for doing so. The plaintiff formed the view that Bowen was not happy to see her back at work.
38 I accept that, from that time, the relationship between the two women was poor. Both women gave evidence that the other was rude, abrupt and demeaning.
39 On 20 December 2012, Bowen had collected a special type of dish at Scott’s request and brought it to the canteen. Bowen told the plaintiff that Scott had said to her “Good on you Michelle, I will make you a manager one of these days”. She also told the plaintiff that Scott now knows that she (Bowen) can run the place. Again, at worst, I consider this merely an example of Bowen boasting or colloquially “big noting” in relation to a petty matter.
40 Throughout the period that they worked together, Bowen’s qualifications were not such as would enable her to take over as permanent chef manager. At the very least, additional training would be required. It was unclear on the evidence before me just what such additional training would have consisted of. The manager’s duties extended beyond preparation and service of food. It involved a good deal of paperwork and monetary tasks. Nevertheless, I accept that Bowen was considered by the defendant to be capable of performing the chef manager’s role for short periods whilst the plaintiff was off work. She did so in early December 2012 and over the two-week Christmas break from 22 December 2012 whilst the plaintiff was on annual leave.
41 The evidence of Bowen was that at no time did she covet the plaintiff’s job as chef manager. The evidence of Scott was that at no time did the defendant ever consider replacing the plaintiff with Bowen.
42 Nevertheless, I find that the plaintiff formed the view, rationally or otherwise, that this was Bowen’s intent. I formed the view that, as a consequence of this, the plaintiff came to view Bowen as a competitor for the manager’s position.
43 It may have been the case that Bowen, whilst having no intention of assuming the role of chef manager, was keen to see the plaintiff replaced because they did not get on well.However, I do not consider that there is evidence to find that this was so.
44 The Christmas function at the canteen was held on 21 December 2012. Much of the previous day was spent preparing the meal and the canteen for the function. It appears that up to 150 people were expected to attend. This was, it appears, the major function at the canteen in any given year. Various Caterpillar customers attended, along with a number of Caterpillar management personnel. I accept that it was an important function for the plaintiff involving a good deal of work for her and Bowen.
45 Much of the preparation was done on the day before – 20 December. On that day, the plaintiff and Bowen were assisted by two casuals – Patricia Carlton (who also worked on the following day) and Wendy Hughes. In addition, on 21 December, an additional chef was brought in to assist.
46 In notes made by the plaintiff on or about 9 January 2013, she set out a history of her problems with Bowen.[9]
[9]CB 848-850
47 The plaintiff’s note relating to the Christmas function reads:
“Christmas function 21st December During the lead up to the Christmas function Michelle became very bossy taking over whenever she could e.g. made the other chef redo the Pavlovas because she did not like it but did not think to consult with me first.
Wanted the hired dishes to be washed first as she did not like sending dirty dishes back.”
(sic)
48 Notes prepared by Bowen at around the same time read as follows:
“Thursday 20th December
Audrey was stressed so she apologized for her behaviour in advance she yelled all day at Pat Wendy and I and kept saying we don’t listen but kept repeating herself.
She got really annoyed with us and started throwing dishes near the dishwasher and then threw a pot at the sink her behaviour was so over the top that Pat told her she need to calm down.
Friday 21st December
Diane [Scott] come in for the xmas party and was talking about changing the setup of things, Audrey got annoyed so then she was telling us Diane just comes in, and thinks she can take over and then started telling us not to stand around, do something and look busy because Diane was watching then after the party had finished and Diane left she was telling us to hurry up and clean up and we should have been cleaning up while the party was on (which we were). The tone and the manner she spoke was so rude and abrupt it was disgusting.”[10]
(sic)
[10]CB 854
49 Scott did not attend at the canteen on 20 December 2012 but did attend for a time on 21 December 2012, prior to the Christmas lunch. Neither the plaintiff nor Bowen made any complaint to her about the conduct of the other on that day or the previous day.
50 On the day of the function itself, the plaintiff gave evidence that she had reprimanded Bowen over leaving peeled eggs on the sink which she considered was unhygienic. The plaintiff considered that they should have been placed in the refrigerator straight away. She said Bowen had replied “Yeah, yeah, whatever” and had walked away.
51 During the function on 21 December 2012, both the plaintiff and Bowen, on occasions, mixed and talked with various Caterpillar customers in attendance, as one might expect them to do. The plaintiff complained that at one point when she was talking to a customer in a wheelchair, Bowen had approached her and urged her to return to her work, telling the plaintiff that she (Bowen) would attend to the customers. The plaintiff then went and attended to a stocktake. Bowen’s evidence was that she had no recollection of such an event when she gave evidence. There was no other witness to it.
52 Both the plaintiff and Bowen gave evidence of a disagreement between the them as to whether items hired from Harry the Hirer for the Christmas function should be washed before being returned. The parties were unable to agree in Court as to whether it was crockery or glassware that had been hired for the function. In any event, the plaintiff considered that the dishes should not be washed, as it was time consuming and not required. Bowen, although not agreeing that any crockery had been hired, maintained that glasses had been hired and should be washed before return.
53 When spoken to by HR personnel in mid-January 2013, both Carlton and Hughes advised that they were happy to work at the canteen and found the plaintiff fine to work with.
54 Neither Carlton nor Hughes could recall any behaviour on the part of the plaintiff or Bowen which was memorable for any reason.
55 The plaintiff further complained that the canteen had been left in a mess after the function when it was the job of Bowen and the casuals to clean up before departing. At the end of the function, as Bowen left to go home, she was observed by the plaintiff to be taking some leftover salads with her. Removing food of any description from the canteen by staff was contrary to the policies of the defendant. The plaintiff’s evidence was that the salads, if not consumed at the function, would have to be thrown out. They could not be kept until the canteen next re-opened. Nevertheless, the defendant’s rule was that no food was to be taken home or removed from the premises and the plaintiff instructed Bowen not to remove them. Bowen complied but thought the plaintiff was being unreasonable.
56 On the evidence before me, I am not satisfied that any of the events alleged by the plaintiff or Bowen to have occurred on 20 or 21 December 2012 were of any significance. If they did occur, they were likely to have been relatively minor exchanges.
57 I reject the evidence of Bowen that, on 20 December 2012, the plaintiff spent much of the day yelling and screaming at her, Carlton and Hughes. Had that occurred, I consider it most unlikely that Carlton and Hughes would have had no recollection of it or stated that the plaintiff was fine to work with when asked about such matters.
The events of January/February 2013
58 Following the day of the Christmas function, the plaintiff took annual leave. She returned to work on 7 January 2013. The canteen had been open during that post-Christmas period, but on a limited basis. Fewer Caterpillar employees were working. There was a reduced choice of food served at the canteen. Bowen worked over the Christmas break on her own.
59 Both the plaintiff and Bowen had different recollections of the events that occurred on 7 and 9 January 2013.
60 The plaintiff gave evidence that on her return to work at the canteen early on 7 January 2013, she noted that some meat used at the Christmas function had not been cleared away and disposed of. She took this up with Bowen, who denied that meat had been left out.
61 That morning, Bowen advised that she had suffered from a spider bite the previous day and needed to see a doctor. The plaintiff was annoyed that Bowen had bothered to come into work if that was the case. Bowen made arrangements to see a doctor. A replacement casual was engaged – Janet Crawley. The plaintiff’s evidence was that, upon Crawley’s arrival, Bowen proceeded to give her instructions as to what she should do. The plaintiff took offence at this, considering that this was her role.
62 Further, the plaintiff alleges that Bowen told Crawley not to let the plaintiff push her around, or words to that effect. Bowen denied making such a comment. Crawley, when contacted about this allegation within the following week, recalled that Bowen had said not to let the plaintiff push her around, but was not sure if Bowen was being sarcastic or serious as the plaintiff was being friendly to her at the time.
63 In her evidence, Crawley had no recollection of the plaintiff at all or what Bowen might have said. Notwithstanding, I am satisfied that, within about a week of 7 January 2013, a staffing co-ordinator at the defendant, Ms Smajic, spoke to Crawley by telephone, and that Crawley said that Bowen had told her not to let the plaintiff push her around.[11]
[11]Exhibit C at CB 838
64 I consider it is likely that Bowen did make the comment to Crawley in circumstances when, at the time, the plaintiff was acting in a friendly manner and not attempting to push Crawley around. I accept that it was not interpreted by Crawley as a serious comment. If it was meant seriously, then it was inappropriate for Bowen to have made such a comment about her manager to a casual employee.
65 Towards the end of the day on 7 January, Bowen had not called the plaintiff to advise whether she would be attending work on the following day. The plaintiff called her. Bowen’s evidence was that the plaintiff’s tone was rude and abrupt. She advised the plaintiff that she would not be at work the following day and that she had already notified Scott of this. Scott, at that time, was on annual leave and not due to return to work for approximately another week. I find it unlikely that Bowen had notified Scott about when she was returning to work. In any event, the obvious and appropriate person to notify was the plaintiff, the canteen manager – not Scott.
66 Bowen returned to work on 9 January 2013. Soon after her arrival, a customer asked her for a plastic spoon. Bowen’s evidence was that she checked the relevant area and found that a number of items had not been refilled from the previous day. Just what items had not been refilled was not clear. At one point they were referred to by the plaintiff as “the sauces”.[12] Bowen’s notes refer to “nothing being filled in the tea area”.[13] In any event, I accept that the plaintiff reacted badly to Bowen’s suggestion that some task had not been completed the previous day in Bowen’s absence. The plaintiff maintained she had asked the replacement assistant to do such filling and that all such tasks had been attended to. When Bowen advised her that it had not been attended to, the plaintiff’s response was to ask whether Bowen was accusing her of lying.
[12]CB 849
[13]CB 814
67 The canteen is a relatively small area. If the matter was of any real importance, it would have been a very simple thing for both women to inspect the containers together and establish whether or not they were filled or unfilled. Instead, an argument broke out.
68 The plaintiff’s version is that she said to Bowen:
“You were here for two days and I telling you it was, to which she replied well you were not here for two weeks what would you know so I said who is the manager here you or me. Her voice was quite raised so to avoid another incident I called Ana [Bilanovic] at once asking her to meet me that afternoon, if I was the one yelling I would have continued and not called Ana.”[14] (sic)
[14]CB 849, 506
69 Bowen’s description of the incident was very different.[15] She also called Bilanovic to complain about the plaintiff.
[15]CB 815
70 Even accepting the plaintiff’s account as accurate, this was a petty, silly exchange of words between the two. It does not reflect well on either of them but, in my view, reflects particularly poorly on the plaintiff who, as manager, appears to have turned a petty exchange about an unimportant matter into an event which she considered was worthy of report to Bilanovic, the acting operations manager.
71 I consider it likely that the plaintiff took offence at Bowen’s suggestion that some task had not been completed on the previous day when she was absent.
72 On 11 January 2013, Bilanovic visited the plaintiff and Bowen at the canteen to discuss their problem. She made minutes of the discussion.[16] It was obvious that both had a number of complaints about the other. She requested each to provide details of their issues in writing, which they did.[17]
[16]CB 820
[17]The plaintiff at CB 839-841; Bowen at CB 812-816
73 Bowen made a number of complaints concerning the plaintiff throwing pots (including one containing boiling water) and dishes into the sink in the canteen kitchen. One such event was alleged to have occurred on 20 December 2012 when Carlton and Crawley were present. Their inability to recall such an event when spoken to later causes me to doubt whether the event occurred at all. I note that on occasions both the plaintiff and Bowen accused each other of noisily banging pots and dishes. It was not suggested that any dishes were broken. If such events occurred, I consider that they were not as significant as the plaintiff and Bowen made out. In any event, even if the plaintiff did throw pots or plates, in my view this would have little bearing on the allegations the plaintiff now makes against Bowen and the defendant.
74 On about 15 January 2013, a Caterpillar supervisor requested the plaintiff to delay opening the canteen door until just before 9.00am. This was presumably to discourage employees from leaving their workstations for the breakfast break any earlier than permitted. Employees were unhappy that they had to wait outside the door until 9.00am when they could enter. Some of those employees queried Bowen about why they could not enter earlier. Bowen was alleged by the plaintiff to have said to them that she had told the plaintiff to open the door but that the plaintiff had said they were not permitted to do so until 9am. The plaintiff considered that it was not Bowen’s place to question the Caterpillar supervisor and reported this to Bilanovic. The plaintiff alleges that this was an example of Bowen undermining her in front of Caterpillar customers. I consider that this is misinterpreting the gravity of Bowen’s statement. In any event, as manager she could simply have told the customers that she was merely following an express direction from a Caterpillar supervisor and that they should take it up with him.
75 I note that, in the plaintiff’s chronology of events from 5 December 2012 through to September 2013,[18] this incident concerning the canteen opening time was not mentioned at all. This leads me to conclude that, at the time, the plaintiff did not attach significance to it.
[18]CB 516; Exhibit H
76 By 23 January 2013, Scott had returned from leave. Bilanovic reported the respective complaints made to her by the plaintiff and Bowen. A meeting was arranged that day at the canteen – present were Scott, Bilanovic, the plaintiff and Bowen.
77 In part, those minutes demonstrate the mutual exchange of petty complaints which the plaintiff and Bowen made against each other.
78 Scott noted the plaintiff stated that she felt “threatened” and that this problem had occurred during the Christmas break. Given that the two had no contact during that break immediately following 22 December 2012, I infer that this was a reference to the events around the Christmas function and those occurring on the plaintiff’s return to work after the Christmas break. Scott, who had recorded the minutes, gave evidence that the word “threatened” was a reference by the plaintiff complaining that she felt threatened about the prospect of losing her job. The plaintiff denied this, stating that she had said that she had felt physically threatened by Bowen. I do not accept this. Having looked at the various accounts given by the plaintiff of the events that had occurred up to 23 January 2013, I do not accept that any words or actions she alleged in relation to Bowen could possibly have been interpreted by the plaintiff as a threat of physical harm. I accept that the only threat perceived by the plaintiff was the threat that her job of chef manager might be at risk.
79 Scott advised the plaintiff and Bowen that, in her view, their respective strengths complemented each other. She had asked them: “What do you need to work together?” Both responded with the word “respect”. There was no suggestion on that date that they could not work with each other.
80 I note that those minutes disclose that Scott told the plaintiff and Bowen that Caterpillar (at least as at that date) was happy with both of them and with how the canteen was running.
81 At that meeting, Bowen was requested to complete the defendant’s online “Professional Behaviours” training program. It appeared that the plaintiff had previously completed that program, but that Bowen had not. I accept that Scott suggested to the plaintiff that she might assist Bowen with the program whereupon Bowen replied that she did not need the plaintiff’s assistance.
82 Prior to the meeting of 23 January 2013, the plaintiff had prepared a note or memorandum which she intended to give to Scott at the meeting. She detailed various complaints of Bowen’s behaviour. These included the need to direct Bowen to check “Use by” dates of confectionary. The previous day, some chewing gum and a Wagon Wheel biscuit had been returned with an expired Use-by date. In addition, there were complaints about sundry matters which, if accepted, would probably indicate that Bowen was inattentive or careless at times.
83 On the following morning, 24 January 2013, Bowen arrived at the canteen at about 6.30am, planning to complete the training program before commencing her work. I accept her evidence that, when she attempted to access the computer in the canteen office, she discovered that she needed the computer password. She asked the plaintiff for the password. The plaintiff responded by apparently declining the request and reminding Bowen that at the meeting on the previous day Bowen had stated that she did not need the plaintiff’s assistance to do the program.
84 This was in my view, a childish response by the plaintiff. It must have been obvious to her that having the password to enable access to the computer was a quite different preliminary step to actually using the computer to do the online course once she had access.
85 The plaintiff’s recollection of the conversation was that Bowen had said to her “You are in enough trouble, come and show me how to do it”.
86 In any event, the plaintiff was upset about the conversation that had ensued. She called Scott. The plaintiff was crying and threatening to walk out. She said she could not work “like this”.
87 Scott’s note of her conversation is that she told the plaintiff:
· to bite her tongue
· to use a different management style
· not to walk out on her job as that would be an abandonment
· not to jeopardise her job whilst “we” [the defendant] investigate.
88 Scott called Bowen straight after this. Bowen told her that the plaintiff was lying.
89 The plaintiff’s contemporaneous note concerning this conversation is:
“I said to Dianne this has gone to[o] far I can’t work under this situation, I need to go home. Dianne’s response was ‘Don’t do anything silly I will be out with Daryl [Waller] (Dianne’s boss) to speak to you’.”[19]
[19]CB 517
90 Later that day, Scott called Bowen and offered her a position at a different canteen – at City West Water – whilst the investigation was completed. Bowen later rejected that move, advising Scott that the transfer arrangements would not suit and that it was not fair that she should have to move when she is the one who was being wrongly treated. Bowen elected to stay at home without pay until the matter resolved.
91 Scott also made enquiries with the plaintiff regarding whether she might be interested in transferring to another site. The plaintiff expressed no interest in doing so.
92 On 29 January 2013, Scott and Daryl Waller met with the plaintiff alone. Waller was the state manager of the defendant for Victoria and Tasmania. He was senior to Scott.
93 At that meeting, Waller asked the plaintiff whether she could work with Bowen. The plaintiff replied “Yes”.
94 The plaintiff reported that Bowen had disregarded her instructions with regard to the wearing of chainmesh gloves when cutting with knives.
95 When asked what needs to happen for her to work with Bowen, she replied:
· That Bowen could not “broadcast”. By this I infer that what she meant is that Bowen should not talk about the dispute with others.
· Bowen was not to undermine her.
96 On the following day, 30 January 2013, Waller and Scott met with Bowen alone. Bowen raised complaints against the plaintiff concerning the plaintiff yelling at her in front of customers and speaking to her in a rude and abrupt manner.
97 Bowen nevertheless stated that she would be happy to return if it could be amicable.
98 Following that meeting, a “mediation” was arranged for 4 February 2013. It was attended by Waller, Scott, Bowen and the plaintiff. By its completion, both Bowen and the plaintiff had agreed to resume working together at the canteen on the following day, 5 February 2013. It was agreed that Bowen would not undermine the plaintiff and that the plaintiff would communicate with Bowen professionally.
99 In mid-February, Bowen went on previously arranged annual leave for three weeks. The plaintiff’s evidence was that, on her return, Bowen had said to her:
“Are you still here? I was told that you won’t be here when I get back.”
100 The plaintiff’s evidence was that Bowen had told her that she had been told that by Scott. Bowen denied making that statement to the plaintiff and denied that Scott had said to her that that would be the case. Scott gave evidence that she had not made such a statement to Bowen.
101 There were other sundry allegations made by the plaintiff in relation to Bowen. An example was that Bowen was rude to her and insulted her in front of customers. Further, she alleged that Bowen was over-friendly to customers.[20]
[20]CB 844
102 The true extent of these complaints is difficult to assess. There was no witness called who had observed any such exchanges between the two women indicative of a deteriorating relationship. There was no evidence from customers (employees of Caterpillar) concerning their behaviour towards each other.
103 I am conscious of course that it is the plaintiff who carries the onus of proving, on the balance of probabilities, the facts on which her case is based.
104 I have reached the conclusion that, following her return to work in early December 2012, and on learning that Bowen had run the canteen efficiently in her absence, the plaintiff formed the view that her job as chef manager might not be secure or as secure as she would like. From that time, I accept that the plaintiff formed the view that Bowen was aiming to undermine her as manager with the possible intent of claiming that position for herself. I do not accept that there were genuine grounds for the plaintiff’s concern with regard to her job security.
105 This was not the only time that the plaintiff had had concerns about a perceived “power struggle” with a co-worker. In 1995 she was employed as chef manager at a canteen at the Nestle factory in Melbourne, which did not involve the defendant. She lodged a WorkCover claim[21] in respect of mental stress resulting from disagreements with the co-worker who she claimed was acting as if she, rather than the plaintiff, was manager. At a consultation with a psychiatrist, Dr Paoletti, in March 1995 in relation to her claim, the plaintiff described to him a number of what I would describe as relatively trivial disputes between her and the co-worker.[22]
[21]T176-7
[22]Exhibit EE – Report of Dr Paoletti at CB 380-1
106 I formed the view that both the plaintiff and Bowen, when speaking with Scott and Bilanovic, exaggerated their complaints concerning the conduct of the other. I consider that the subject matter of most of their complaints was relatively petty and would not normally be expected to lead to an ongoing dispute of significance between work colleagues.
107 My comments concerning many of the complaints relating to petty matters does not indicate that I am approaching the matter by dealing with each complaint individually. It is the whole of the evidence that needs to be examined in order to determine whether the plaintiff has been the subject of bullying/harassment rather than each individual incident alleged.
108 Many of the plaintiff’s complaints regarding Bowen were essentially that she did not follow the plaintiff’s instructions. Of those specified in the evidence, I do not consider that such incidents could amount to “bullying” as defined.
109 On careful consideration of the whole of the evidence, I am not persuaded that any of Bowen’s conduct directed at or concerning the plaintiff during the nominated period constituted:
· bullying;
· harassment; or
· inappropriate or improper complaint.
110 The fourth matter pleaded as “the conduct” in paragraph 13 of the SOC was “inappropriate and dysfunctional management”. Bowen had nothing to do with management. I shall deal with this aspect below when addressing the plaintiff’s allegations against Scott and of the negligence of the defendant.
Allegations of bullying by Scott
111 The issues relating to the 10 May 2013 letter and 13 May 2013 meeting need to be given some context.
112 On 5 February 2013, the day following the mediation, the plaintiff and Bowen resumed working together at the canteen. I accept the evidence of Scott that, from that time, no further complaints were received from either the plaintiff or Bowen concerning each other.
113 On 25 February 2013, Bowen took annual leave, returning three weeks later, on 15 March 2013. On 25 March 2013, the plaintiff took annual leave, returning three weeks later, on 15 April 2013. They worked together for about 7 weeks (not including periods when one or the other was on leave. During that time, they appeared to work together satisfactorily or, at least, without making further complaints to Scott or anyone else at the defendant.
The petition
114 Notwithstanding, on 9 April 2013, Scott received an email from Elise Patmore (the HR representative at Caterpillar with whom Scott liaised about canteen matters) advising that:
“… I have had great feedback on Michelle [Bowen] and Helen [replacement chef] whilst Audrey is on leave. Customers have expressed that the Quality of food has significantly improved.”
115 On 21 April 2013, Scott received a phone call from a Phil Hanckel, who was an employee of Caterpillar. He told Scott that the food at the canteen was great whilst the plaintiff was away, and that the relief chef in her place had been doing a better job.
116 On 23 April 2013, Scott spoke with the plaintiff at the canteen and advised her that a complaint about the food had been received. The plaintiff was not advised further as to the nature of the complaint, nor its author.
117 On 7 May 2013, Scott received a telephone call from Bowen, who advised her that she had received a petition from Hanckel. The following day, Scott attended at Caterpillar and met Bowen at the security guard offices near the front entrance of the Caterpillar site. Scott arranged to meet Bowen there. she considered it would be best to meet there so that the plaintiff would not learn of the petition document.
118 The petition is exhibit 16 and appears at pages 488-501 of the court book. The document commences with the words:
“This is a petition to replace the Alliance [Spotless] chef Audrey so we can have a better standard of food.”
119 It follows with 16 signatures. At pages 489-501 of the court book there are 13 pages which invite participants to provide their comments or responses to the question:
“Are you happy with the cooking in the canteen? Y or N. Please leave comments.”
120 It is not necessary here to set out each of the comments that were provided by those who had completed and signed the petition. It is enough to say that the comments all indicated that the participants were not happy with the food provided in the canteen and provided comments which were all critical of that food. In some instances the complaint was that there was not much variety; that the cooking was not good except when Audrey was away; that the servings were not big enough; that the food was dry and overcooked; too many curry dishes; always better when someone else was cooking; and that the food was plain and overcooked.
121 Only one participant had written words critical of the plaintiff herself as opposed to her cooking. The words “Rude service. Audrey” appear on one entry. Although this appears to be a comment made by Mr Hanckel, in his evidence in court, Hanckel denied that he had written those words.
122 One unsigned entry appears to be critical of the meals but also perhaps was an attempt at humour. It reads “All meals should be Halal and beef and lamb only. No chicken, birds, reptiles, vermon (sic).”
123 The evidence was that there were some 60 to 70 customers who used the canteen regularly. The 16 signatories to the petition therefore made up approximately 25 per cent of that number.
124 The plaintiff submitted that I should find that Bowen was directly involved in the preparation and production of the petition.
125 Bowen was cross-examined about this at trial. She vigorously denied that she had had anything to do with the preparation of the petition. Her evidence was that Hanckel had brought to her a plain yellow envelope and requested that she provide it to the defendant’s management. Bowen insisted that she had no knowledge that it was a petition or that it was in any way related to, or was critical of, the plaintiff or food prepared at the canteen.
126 I reject her evidence that she did not know of the contents of the envelope. I prefer the evidence of Scott, whose evidence was that Bowen had telephoned her and advised her that she had been provided with a petition regarding the canteen food. Scott’s evidence was that it was with that knowledge that she arranged to meet Bowen and collect the envelope at the front security gate, well away from the canteen area. She said this was to ensure that the petition did not come to the plaintiff’s attention at that time. I therefore accept that Bowen knew of the petition and the thrust of it before she gave it to Scott. I reject her evidence that she did not.
127 However, it is another thing to suggest that Bowen was the architect or one of the architects of the petition. It might well have been the case that Bowen learned of the petition and the contents of it from Hanckel or from some other employee of Caterpillar. It may be that Bowen was delighted to learn of it and its contents; however, I am not satisfied on the balance of probabilities that the plaintiff has established that Bowen played any role in the creation of it, or circulation of it amongst Caterpillar customers.
128 In his evidence, Hanckel professed to have no recollection of the petition and denied that he had prepared or circulated it. I do not accept that evidence as truthful.
The 10 May letter
129 On 10 May 2013, Scott prepared a letter to the plaintiff. The letter is exhibit Y and appears at pages 1141-1142 of the court book (“the letter”).
130 The letter had been written after Scott had sought and received some advice from Matthew Potter of the defendant’s human resources department. He was senior to Scott.
131 Scott’s letter to the plaintiff included, in summary, the following matters:
· It referred to recent customer feedback received relating to her attitude, behaviour, and standard of food – including taste, quality, appearance and variety, through the month of April 2013 to date.
· It advised the plaintiff that, subject to her response to the allegations, she may be subject to disciplinary action arising from “this incident” and “such action may include termination of employment”.
· That the complaints of customers were in contrast to the defendant’s guiding principles, being - “our mission is to be the best in the business, our food is fresh, and our staff are friendly, and our customers are satisfied”.
· She was advised that she was required to attend a meeting two days later, on 15 May 2013, at the head office.
· The purpose of the meeting was for her to provide a response to the allegations, and, if the allegations were proven or admitted, to provide reasons why she had behaved in that manner, and why she should not be subject to disciplinary action, including why her employment may not be terminated.
· That she could be represented or have a witness present at the meeting - any person of her choosing.
· She was reminded of her contractual obligations to maintain company and employment matters confidential and that she was not to approach any employee nor any client representative in relation to the matter. It was stated that failure to follow this direction may result in disciplinary action.
· She was invited to contact Scott should she wish to discuss the matter prior to the meeting.
132 The letter was dated 10 May 2013 and was handed to the plaintiff by Scott on 13 May when she attended at the canteen to meet with the plaintiff.
133 Scott’s evidence was that she gave the plaintiff the letter and went through it with her at the canteen that afternoon. The plaintiff denied that she read the letter before she got home that evening when she discussed it with her husband and son. I am unable to reach any firm view on this. I think it likely that the plaintiff would have been surprised to learn that her employment was at risk. I think it unlikely that she would have taken it all in and that she only took in the disciplinary aspects of the letter when she read it later at home.
134 I have no doubt that she was very upset when she read the letter. It would have been the last thing she would have expected. No chef would enjoy reading that there had been complaints about the standard of their cooking, or that disciplinary proceedings and/or loss of employment were contemplated.
135 The plaintiff’s son, Adrian, gave evidence that he had read the letter after his mother arrived home. He was, at the time, residing with his parents. His evidence was, at times, vague and inconsistent. He recalled that, at some time, possibly in April 2013, his mother received a letter regarding some issues that were happening at work and, from that time, she had not gone back to work. At that time, he thought she was very fragile, in the sense that she had ups and downs and that small things would trigger emotions. She would go from happy to sad to crying to angry for the smallest thing.[23]
[23]T1165, L10-30
136 Adrian Gambian recalled that his mother went to a doctor and then went on to a hospital. He appeared to be referring to the date on which his mother received the letter in question. He said that he took his mother to the doctor.[24]
[24]T1177, L18
137 On 13 May 2013, at 5.47pm, Adrian Gambian sent an email to Scott regarding his mother, stating:
“… Unfortunately Mum has been suffering chest pains for the past few hours and has been taken into hospital on our doctor[’]s advice for observation and tests for the next few days. … .”[25]
[25]CB 883; T1186-7
138 Adrian Gambian was asked which hospital his mother went to on 13 May 2013. He was unable to recall. He said he was pretty sure that it was Sunshine Hospital because that is closest to the family. He agreed that it was a dramatic occurrence, his mother going to hospital. He said that he could not recall whether he took her or not. When asked who took her to hospital, he said he could not recall. He could not recall the name of the doctor who said that she needed to go to hospital for observation and tests. He could not recall taking her to the doctor.
139 It was pointed out to Adrian Gambian that the notes of the Medical One Clinic on 13 May 2013 indicate that the plaintiff attended there at 4.20pm and was seen by Dr Roziel. It was pointed out to him that there was no reference in the clinical note to his mother going, or being advised to go, to hospital. He said that he was aware that his mother had collapsed at home on the morning of 14 May 2013. He was asked whether she went to hospital on that occasion and agreed that she had. When it was suggested that she may have stayed home, he said that when his family referred to a hospital or doctor:
“… we mean doctor, when we say hospital we don’t necessarily mean hospital, we mean doctor. So whether she’s gone to a hospital and been admitted, or whether she’s seen a doctor in the hospital and then been discharged or whether she’s gone to a clinic, we just refer to it as hospital as opposed to each individual item.”[26]
[26]T1188, L18-24
140 This was somewhat inconsistent with his clear evidence that he thought she had been taken to the Sunshine Hospital because that was closest to where the family resided. The clinical records of Medical One Clinic (Dr Roziel) make no mention of any referral to hospital on 13 May 2013. The records contain an entry which includes the words “had stress at work then holidays, felt better”.[27]
[27]CB 1144
141 The plaintiff’s husband, Gordon Gambian, recalled that on 13 May 2013, his wife had arrived home with a letter and asked him to read it, which he did. There was discussion about whether she wanted either him or their son to accompany her to the meeting which was scheduled two days later. She was against this. She said that if he or anyone else comes from the family it will go against her. Mr Gambian rang a lawyer to see if they could get someone to go and sit with her at the meeting. They were unable to afford this at the time. When asked why the plaintiff did not attend that meeting, Mr Gambian said this was because they could not afford a lawyer to go. Further, according to Mr Gambian, the plaintiff said that if she and Bowen were there together, it would be Audrey’s word against that of Scott and Bowen.[28] This is surprising in that there was nothing in the letter or in the conversation between Scott and the plaintiff earlier in the day to indicate the complaints received or the proposed meeting had anything to do with her earlier problems or complaints concerning Bowen.
[28]T1096, L15
142 Mr Gambian gave no evidence concerning the plaintiff going to a doctor or to the hospital in the afternoon or evening of 13 May 2013.
143 Mr Gambian gave evidence that on the following morning, 14 May 2013, the plaintiff had got up, intending to go to work. He said that she had collapsed in the shower and that he had taken her to the Medical One Clinic. It was put to Mr Gambian that he simply had no memory of what had happened on 13 and 14 May 2013. His reply was “I don’t know, maybe, I don’t know”.
144 In her evidence, the plaintiff stated that she attended on Dr Roziel on 13 May 2013 and that, on that occasion she was shaking, distressed and crying.[29] Later in her evidence, she said she was unsure whether she attended on 13 May or the following day.
[29]T342-3; T720, L3
145 Perusal of Dr Roziel’s clinical notes confirm the plaintiff attended on 13 May 2013 but contain no note of distress. Dr Roziel’s notes indicate that:
· There was a query concerning gastroesophageal reflux. [I note she was prescribed Somac medication on that date];
· Two months ago, the plaintiff experienced CCP [central chest pain];
· No ischaemic heart disease;
· No further tests done;
· She had stress at work then took holidays and felt better.[30]
[30]Exhibit AA
146 There was no mention of any referral to hospital.
147 Three days later, on 16 May 2013, the plaintiff attended again on Dr Roziel who, in summary recorded:
· that she had had a stress TTE [trans thoracic echocardiogram] at the Western Hospital and no abnormality had been detected;
· she had had right shoulder aches for the last three weeks;
· there had been no recent injury;
· there was repetitive lifting at work;
· she had been referred for right shoulder ultra-sound and x-ray.[31]
[31]Exhibit AA
148 On 22 May 2013, the plaintiff attended on Dr Roziel. The doctor’s notes mention only the plaintiff’s right shoulder. She was given a referral to an orthopaedic surgeon, Mr Brett Jackson. She gave evidence that she could not recall attending upon him.[32]
[32]T721
149 The plaintiff attended at that clinic on only one further occasion, on 31 July 2013, complaining of lower abdominal pain, for which she had attended the Western Hospital but had left before seeing a doctor.
150 I am not satisfied that, on 13 May, the plaintiff was advised by any doctor to attend a hospital, or that she did attend a hospital on that date. To the extent that Adrian Gambian’s email to Scott at 5.47pm advises that she did, the email is incorrect, and he must have known this was so.
151 The plaintiff did not attend the meeting on 15 May 2013. In her evidence, she said she was not able to do so. She initially did not disclose the nature of that inability.[33] Later in her evidence, she stated that she did not attend the meeting because:
[33]T451, L25
· She was not allowed to take a witness with her;
· Bowen had not been chastised;
· Bowen had not been “pulled up on stuff”;
· It (the meeting) was “top heavy with management”.
152 The letter of 13 May 2013 was patently clear that she was able to be represented or bring any person of her choosing to the meeting. If there was any doubt in her mind as to the meaning of those words, the letter contained a clear invitation to her to contact Scott should she wish to discuss the matter before the hearing. I do not accept the evidence of the plaintiff that Scott had told her she could not bring anyone to the meeting.
153 Further, the letter referring to the meeting had, on its face, no connection with Bowen, but related to the quality of food served at the canteen.
154 I do not accept the plaintiff’s explanation as to why she did not attend the meeting. If she was, for any reason, unfit to attend on 15 May 2013, she could have produced a doctor’s certificate to that effect and requested the postponement of it to a date when she was fit to attend.
155 I note that by early July 2013, she was fit to fly to England and partake in a tour of Europe.
156 Prior to that date, I do not consider that the defendant had received any information that would have put it on notice that the plaintiff was a person who should be regarded as susceptible to psychiatric illness or who was vulnerable to such injury.
The duty of care owed by the Defendant
157 At all material times, the defendant owed to the plaintiff, as its employee, a duty of care. The High Court, in Czatyrko v Edith Cowan University, described the duty in the following manner:
“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[34]
[citations omitted.]
[34][2005] HCA 14 at paragraph [12]
158 In Swan v Monash Law Book Co-Operative,[35] a case involving allegations of workplace bullying, the parties were in agreement that at all material times the employer was under a duty to the plaintiff to take reasonable care for her safety by providing a safe place of work and a proper and safe system with efficient supervision.[36] There, Dixon J acknowledged that this statement did not address the issue as to what was the content of the employer’s duty of care in the context of a claim for work-related psychiatric injury. He stated that the admitted duty was so broad as to be “devoid of meaningful content”.[37]
[35]Supra
[36]Swan (ibid) at paragraph [154]
[37]Swan (ibid) at paragraph [154]
159 His Honour said:
“Psychiatric injury in the workplace can be suffered in at least two distinct scenarios, bullying and employee behaviour circumstances, and also overwork or workload circumstances. … .” [38]
[38]ibid
160 Here, as in Swan, the plaintiff’s claim is based on alleged bullying and associated behaviour, described in the Statement of Claim as “the conduct”.
161 In Hegarty v Queensland Ambulance Service,[39] the Queensland Court of Appeal said, with reference to the High Court decision of Koehler v Cerebos (Australia) Ltd:[40]
“… a stable appreciation of the content of the employer’s duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that ‘the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.’ Further, ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.”[41]
[39][2007] QCA 366 (“Hegarty”)
[40](2005) 222 CLR 444 (“Koehler”) especially at paragraphs [19]-[25]
[41]See Hegarty at paragraph [47]
162 Simply put, the defendant owed the plaintiff a non-delegable duty of care to take reasonable care to avoid exposing her to risks of injury, including psychiatric injury. That duty was to take all reasonable steps to protect the plaintiff from foreseeable risk of such injury.
163 Courts have recognised that a risk of psychiatric injury may not always be as apparent or foreseeable to an employer as a risk of physical injury.[42] There are, of course, some instances where an employer is plainly on notice that an employee is vulnerable or susceptible to psychiatric injury by reason of the employer’s knowledge of the employee’s past history of psychiatric illness; or where it comes to the employer’s notice that the employee is displaying symptoms of what the employer knows, or ought to know, are symptoms of psychiatric illness. Sometimes the employer will know of these because the employee has advised it of what a doctor has diagnosed. Sometimes the employer will be in possession of a medical report advising of the diagnosis. Sometimes an employee may have made a previous claim which put the employer on notice that the employee was vulnerable or susceptible to mental illness.
[42]Hegarty at paragraphs [41]-[43]; Taylor v Haileybury [2013] VSC 58 at paragraph [116]
164 In Taylor, Beach J (as he then was) agreed with a number of observations made by Keane JA in Hegarty:
“(a)First, in a negligent infliction of psychiatric injury case, the risk of injury may be less apparent than in cases of physical injury.
(b)Secondly, whether a risk is perceptible at all may in the end depend upon the vagaries and ambiguities of human expression and comprehension.
(c)Thirdly, whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.
(d)Fourthly, the private and personal nature of psychological illness, and the consequential difficulties which attended the discharge of an employer’s duty in this respect, must be acknowledged as important considerations.
(e)Fifthly, the dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty that might be asserted by a plaintiff.
(f)Sixthly, issues of some complexities arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating an employee’s problems.”[43]
[43]Taylor (ibid) at paragraph [116]
165 Those observations were also cited with approval by Dixon J in Wearne v State of Victoria.[44]
[44][2017] VSC 25 at paragraph [218]
166 As was said in Koehler:[45]
“The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.
It might be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. … .
The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable.
… that invites attention to the nature and extent of the work being done by the particular employee and signs being given by the employee concerned.”[46]
[45]Supra
[46](Ibid) at paragraphs [33]-[35]
167 The duty is not one to guarantee the safety of the employee whilst in the course of such employment.
Was the Defendant on notice of any vulnerability or susceptibility on the part of the Plaintiff?
168 I have come to the conclusion that the defendant was not under any notice that the plaintiff was vulnerable or susceptible to mental illness as a consequence of any aspect of her employment.
169 It is not difficult to imagine that, from time to time, employees that work in close proximity might not get on well. Personality clashes are not uncommon in a workplace.
170 Here, I accept that Scott, Waller and Bilanovic were aware that the plaintiff and Bowen were not getting on well from as early as 7January 2013; that they had made complaints about the conduct of the other, and that their differences had continued through until 4 February 2013 – some three to four weeks.
171 In response to those complaints, Bilanovic had:
· attended promptly at the canteen to meet with them and had requested they put their complaints in writing, which they did;
· arranged a further meeting with Scott when she arrived back from leave.
172 Scott met with both the plaintiff and Bowen, enlisted the assistance of Waller, and held a series of meetings, some with both the plaintiff and Bowen present; others each separately, in an attempt to resolve their issues. The two women were asked on a number of occasions whether they could work together. Both responded that they could, subject to certain conditions. By 4 February 2013, a further joint meeting (described by Scott as a mediation) had concluded with the plaintiff and Bowen agreeing to return to work together on the following day, subject only to terms that the plaintiff would address Bowen professionally and that Bowen would not attempt to undermine the plaintiff.
173 From that date, the plaintiff and Bowen worked satisfactorily together, as far as the defendant was aware, until 13 May 2013 save for a total of about six weeks when one or other of them were on scheduled annual leave. No further complaints were made to the defendant by either the plaintiff or Bowen about the other.
174 I take into account:
· Both the plaintiff and Bowen were experienced employees in industrial canteen environments;
· The defendant, in my opinion, was entitled to consider that the various matters that were the subject of complaints made by two mature-aged women about each other were relatively trivial and that they had only recently arisen (from early January 2013);
· The defendant had no reason to suspect that issues of personal safety were involved;
· There were reasonable grounds for the defendant to consider that the dispute was a minor one and one that was likely to be resolved promptly.
· There was no suggestion to the defendant that the plaintiff’s ability to continue working for the defendant, or in any other capacity, was endangered, or that she required any medical treatment or counselling by reason of the matters she complained of concerning Bowen.
175 There might have been other ways in which the defendant could have handled the disputes. For example the defendant might have promptly dismissed Bowen from her employment, although that might well have raised issues concerning unfair dismissal, provision of warnings or cautions and the like. It did explore the prospect of one or other of the plaintiff and Bowen moving to another site operated by the defendant, but neither wanted such a transfer. However, the test is not whether the defendant, with the wisdom of litigious hindsight, could, or even should, have taken some other course. I must consider whether the response of the defendant, as at the relevant time, was reasonable. I consider that its response was reasonable in all the circumstances. To the contrary, I consider that if the defendant had terminated the employment of either of them, or forcibly transferred one or the other from the Caterpillar site to another site, such conduct would have been unreasonable.
176 I should make reference to a submission made by the plaintiff concerning what notice the defendant had concerning the plaintiff’s earlier condition or her vulnerability or susceptibility to mental illness problems.
177 The plaintiff submitted that an email from Bowen to Bilanovic dated 19 January 2013[47] put the defendant on notice from that date that the plaintiff had previously suffered from stress. The email contained the following words from Bowen:
“Audrey [the plaintiff] is stressed and has taken her stress out on me and her behaviour has been unwarranted towards me.
As Diane [Scott] knows Audrey spent time in hospital in December because of stress, … .”
[47]Exhibit 10, CB 853
178 For two reasons, I do not consider that the email advances the plaintiff’s submission.
179 Firstly, there was no evidence concerning the plaintiff’s admission to hospital in December 2012 save that from the plaintiff herself. There was, in my opinion, no evidence of bullying or negligence prior to her taking the two days off. The plaintiff’s evidence was that she had experienced some chest pain which she worried might have a cardiac origin. Such symptoms may well have been stressful for the plaintiff. Her father had died of a heart problem at a relatively young age. I consider that her perceived problems with Bowen only commenced after her return to work in December 2012, when she perceived Bowen as a competitor for her position.
180 Secondly, I find that the defendant (and in particular, Scott, Bilanovic and Waller) had no knowledge up until the time that she ceased working after 13 May 2013 that the plaintiff was in any way vulnerable or susceptible to psychiatric injury. I note also Scott’s evidence that she knew nothing of any prior stress suffered by the plaintiff in early December 2012.[48] Even if she did have knowledge that the plaintiff’s time off at that time was, in any way, stress related, in my view, she would have had no reason to suspect, in December 2012 or January 2013, that it was linked to her employment or any issues with Bowen.
[48]T1520
181 There was no evidence from any doctor or hospital concerning any admission of the plaintiff to hospital at that time.
182 The plaintiff also submitted that the letter of 13 May 2013 was somehow connected with the issues concerning Bowen which had occurred prior to 4 February 2013. I do not agree.
183 In my view, the defendant was entitled to believe that the dispute between the plaintiff and Bowen had been adequately resolved by 4 February 2013. It is my view that the 13 May 2013 letter and meeting between Scott and the plaintiff related solely to the complaints received by Scott from Caterpillar directly and by receipt of the petition. In my view, the receipt of such complaints was significant and could not be ignored by the defendant.
184 I formed the view that the letter, with its reference to possible disciplinary action and termination of employment, was somewhat heavy-handed. However, I am not persuaded that the letter had anything to do with the issues between the plaintiff and Bowen. It should be viewed as a quite separate matter.
185 I am not persuaded that the provision of the letter and its contents amount to negligence on the part of the defendant. The allegations regarding food were properly put to the plaintiff. It was inevitable that the complaints would be brought to her attention. It might well be argued that a softer, differently worded letter might have been sent. Obviously there had to be some level of investigation. However, the letter, on one interpretation, amounts to a request that she “show cause” why she should not be subject to disciplinary action and why her employment may not be terminated – stronger wording than might have been expected, especially when no investigation of the quality of food served had been conducted.
186 It may well have been that the proposed meeting on 15 May 2013 was to be the first step in a proposed investigation – but it was worded in a manner which was somewhat aggressive in tone.
187 Nonetheless, I do not consider that the letter could be held to be an instance of bullying or harassment. It was, in my view, a stand-alone publication and could not be interpreted as repetitive behaviour and was not connected with the plaintiff’s earlier complaints concerning Bowen.
188 Neither do I consider that the letter or the proposal of the 15 May 2013 meeting was negligence on the part of the defendant or, at least none particularised in paragraph 15 of the SOC.
Conclusion on liability
189 For the reasons expressed above, the plaintiff’s claim will be dismissed.
190 I should add that plaintiff’s claim was run on the basis that there were two quite separate claims. Firstly, a claim based on “the conduct”, as defined in paragraph 13 of the SOC – being, principally, bullying by Bowen and also, bullying by Scott. Secondly, a claim in negligence against the defendant as particularised in paragraph 15 of the SOC.
191 It was not always clear whether the plaintiff claimed damages in respect of “the conduct” as a stand-alone cause of action, unrelated to the claim in negligence. If so, it was my view that this would involve an allegation of strict liability in respect of such conduct. I was not provided with any authority confirming such liability in oral or written submissions.
192 Further, I note that on a plain reading of the SOC, the plaintiff pleads one cause of action, in negligence, and against only the defendant. It is pleaded:
(a) that the plaintiff was subject to “the conduct” (paragraph 13);
(b) by reason of “the conduct”, the plaintiff suffered injury (paragraph 14);
(c) the injuries were caused by the negligence of the defendant (paragraph 15).
193 In any event, in view of my finding that the plaintiff was not subjected to bullying, harassment, inappropriate and improper complaint, or inappropriate and dysfunctional management by the defendant, it is unnecessary to formally decide:
· whether the plaintiff did plead one or two independent causes of action;
· whether the law provides an independent cause of action for damages against an employer or co-worker in respect of workplace bullying on the basis of absolute or strict liability, regardless of reasonable foreseeability of psychiatric injury.
194 In view of my findings in relation to liability, it is unnecessary for me to consider issues of contributory negligence or damages.
195 I shall hear the parties in relation to costs and any other consequential orders sought at a time convenient for counsel. If the parties can reach agreement as to such orders, they should file minutes of consent orders with my associate.
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