Griffin and K & S Freighters Pty Limited (Compensation)
[2023] AATA 535
•31 March 2023
Griffin and K & S Freighters Pty Limited (Compensation) [2023] AATA 535 (31 March 2023)
Division:GENERAL DIVISION
File Number(s): 2021/0924
Re:Kym Griffin
APPLICANT
AndK & S Freighters Pty Limited
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth and Member Dr L Stephan
Date:31 March 2023
Place:Adelaide
The decision under review is affirmed.
.............................[Sngd]................
Senior Member B J Illingworth and Member Dr L Stephan
Catchwords
Workers Compensation – Sexual Harassment – Harassment – Allegations – Reasonable Administrative Action in a Reasonable Manner – Stress – Disease – Illness – Psychological Ailment – Aggravation of Psychological Ailment
Legislation
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975Cases
Comcare v Mooi [1996] FCA 1597
Drenth v Comcare [2012] FCAFC 86REASONS FOR DECISION
Senior Member B J Illingworth and Member Dr L Stephan
31 March 2023
INTRODUCTION
On 19 January 2021, K&S Freighters Pty Ltd (“the Respondent”) determined they were not liable to pay Mr Kym Grant Griffin (“the Applicant”) compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of ‘stress’ reported to have been sustained as a result of a disagreement with a co-worker, and receiving a letter allegedly containing false allegations.[1] The Applicant requested reconsideration of the determination.[2] On 9 February 2021, the Respondent reconsidered the claim, and affirmed the determination made on 19 January 2021, under s 62 of the Act.[3]
[1] Exhibit A, HB1 p 278–291.
[2] Exhibit A, HB1 p 292–294.
[3] Exhibit A, HB1 p 295–300.
This is an application to the Administrative Appeals Tribunal (“the Tribunal”) for review of the determination made on 9 February 2021, which affirmed the decision, made on 19 January 2021, that the Respondent was not liable to pay the Applicant compensation under the Act.[4]
[4] Exhibit A, HB1 p 275–288.
The Applicant was represented by his sister, Ms Jodie De Jong (“the Applicant’s Representative”) and the Respondent was represented by Counsel Ms Ann McMahon (“Counsel”) appearing on instruction of Mr Jack Marshall of McInnes Wilson Lawyers. The Tribunal received into evidence the documents listed in the exhibit list, held on the Tribunal file.
ISSUES
The issues to be considered by the Tribunal are correctly identified in the Respondent’s ‘Outline of Argument’, dated 6 October 2021,[5] as follows:
·Whether the Applicant has sustained a psychological ailment, or an aggravation of a psychological ailment, as defined in s 4(1) of the Act?
oIs any psychological condition suffered by the Applicant a condition which is outside the boundaries of normal mental functioning and behaviours so as to satisfy Comcare v Mooi’s test?
·If so, whether that psychological ailment, or aggravation thereof, was contributed to, to a significant degree, by the Applicant’s employment with the Respondent so as to be considered a ‘disease’ for the purposes of s 5B of the Act?
·If so, whether the Applicant’s ailment, or aggravation thereof, was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment?
·Should the reviewable decision, dated 9 February 2021, be affirmed or otherwise under s 43(1) of the Administrative Appeals Tribunal Act 1975?
[5] Exhibit A, HB3 p 303–304.
The Applicant responded by providing an ‘Outline of Argument’, dated 13 October 2021,[6] which included the submission that:
“[The Applicant] did not have a “voice” throughout this process…”[7]
[6] Exhibit A, HB4 p 305.
[7] Ibid.
In opening submissions, the Applicant submitted the processes undertaken by the Respondent were flawed and the administrative action was not undertaken in a reasonable manner.
However, there was no evidence before the Tribunal in Exhibit A that identified the period it was said, that the Applicant was claiming to be incapacitated for employment, or the medical expenses said to have been incurred, as a result of such incapacity. Hence, at the start of the hearing the Tribunal raised this for the Applicant’s consideration. The Applicant’s treating General Medical Practitioner, Dr Ellen Liu (“Dr Liu”), provided medical certificates which opined that the Applicant was incapacitated for employment due to stress from 17 November 2020 to 7 January 2021.[8] Dr Liu also referred the Applicant to a psychologist, no appointment followed this referral. The Applicant first saw a psychologist in 2022 for the purpose of this application.
[8] Exhibit A, HB1 p 79; Exhibit A, HB1 p 83–84; Exhibit A, HB1 p 108–109.
The Tribunal notes the Applicant’s employment was originally suspended with full pay by the Respondent, commencing 30 September 2020, and he was terminated from his employment on, and from, 14 December 2020.[9] The medical certificates certifying the Applicant unfit for work included the period of suspension on full pay.[10] Further, immediately after termination of the Applicant’s employment, the Applicant was seeking employment as a truck driver, after which in April 2021 he obtained employment in a quarry.
[9] Exhibit A, HB1 p 105–106.
[10] Exhibit A, HB1 p 79; Exhibit A, HB1 p 83–84; Exhibit A, HB1 p 108–109.
The Respondent submitted the Applicant did not suffer an ‘injury’, and if the Tribunal was against the Respondent in that regard, such ‘injury’ was the consequence of reasonable administrative action performed by the Respondent in a reasonable manner in respect of the Applicant’s employment.
LEGISLATION
Section 14(1) of the Act relevantly provides:
“…Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
The meaning of ‘injury’ is defined in s 5A(1) of the Act, which provides:
“Injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employees employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
Pursuant to s 5A(2) of the Act, reasonable administrative action is taken to include:
(a) “a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”
The meaning of ‘disease’ is defined in s 5B(1) of the Act, which provides:
“disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment…”
The meaning of ailment is defined in s 4(1) of the Act, which provides:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
BACKGROUND
The Respondent, in the Statement of Facts, Issues and Contentions (“SoFICs”) provided a history of the matter.[11] The Applicant also provided an undated SoFICs.[12] Both the Applicant and the Respondent provided written closing submissions.[13] We will summarise the chronology of relevant events for this application.
[11] Exhibit A, HB7 p 361–369 (Dated 21 December 2021).
[12] Exhibit A, HB8 p 370–391 (Dated 2 January 2022).
[13] Dated– Respondent: 18 August 2022; Applicant: 22 August 2022.
The Applicant was initially employed as a labour hire truck driver, through Tech Force, delivering chicken feed for a client of the Respondent, namely Ingham’s Enterprises Pty Ltd (“Ingham’s”).[14] After six months, in or about May 2019, the Applicant commenced employment with the Respondent as a full-time employee, driving night shift.[15]
[14] Exhibit A, HB5 p 306 [6].
[15] Ibid.
The Applicant worked exclusively on the Ingham’s contract at Murray Bridge.[16] He was supervised by Mr Phillip Denver (“Applicant’s Supervisor”), the Respondent’s Site Manager at Ingham’s, Murray Bridge.[17] His duties involved collecting chicken feed from the Ingham’s Feed Mill and distributing it to various farms in and around the area.
[16] Ibid.
[17] Exhibit A, HB5 p 306 [7].
On 30 September 2020, Mr Robin Campbell, the Manager of Ingham’s Feed Mill, Murray Bridge, advised Mr Richard Old, Contract Logistics Manager for the Respondent who was responsible for the management of customer accounts, that an Ingham’s staff member, Ms MS (“the Complainant”), had reported she had been sexually harassed by the Applicant.[18] The Complainant was a labour hire worker, through Work Pac, working for Ingham’s. Mr Campbell further advised Mr Old that because of the allegations, Ingham’s did not want the Applicant attending the Ingham’s worksites.[19]
[18] Exhibit A, HB5 p 310–312.
[19] Exhibit A, HB5 p 306 [8].
On 1 October 2020, Ingham’s management advised Mr Old they were undertaking an investigation into the allegations made by the Complainant. That same day, Mr Old spoke to the Applicant and sent him a letter advising,[20] amongst other things that:
[20] Exhibit A, HB1 p 41–42; Exhibit A, HB5 p 313–314.
·The complaint regarding the Applicant’s conduct, in general terms, was an allegation that the Applicant sexually harassed an employee of Ingham’s (the Complainant);
·The allegations were serious, and the Respondent considered it appropriate to commence an investigation into the complaint;
·Mr Old would conduct the investigation in consultation with the Human Resources Department. The Complainant would be interviewed first, and the Applicant and other relevant persons interviews would follow;
·The Applicant was entitled to have a support person at the interview if he wished;
·The investigation was strictly confidential;
·Victimisation or retaliation against any participant in the investigation would not be tolerated;
·Given the serious nature of the allegations it was appropriate to immediately suspend the Applicant from his employment and the Applicant would continue to be paid ordinary hours wages;
·The Applicant would remain employed throughout the investigation period, and would be required to cooperate in the investigation, but would not otherwise be required to carry out day-to-day duties or attend the worksite;
·Once findings were made, appropriate outcomes would be determined;
·The Employee Assistance Program was available to the Applicant and contact details were provided.
On 7 October 2020, the Respondent received an email, from Mr Uwe Ebert, Human Resources Business Partner at Ingham's,[21] who advised that:
·He had conducted an investigation into the sexual harassment claim;
·Evidence had been taken from the Complainant and a number of staff who were witnesses to, or heard interactions between, the Complainant and the Applicant;
·The Complainant made it very clear to the Applicant that she was not interested in a relationship outside of work;
·A major concern for Ingham’s was an incident in which the Applicant entered an area that was clearly marked as an unauthorised area where entry by drivers is prohibited, and at the time the Complainant was alone in that area;
·Ingham’s regarded this breach as significant, and accordingly will not allow the Applicant to enter any of Ingham’s sites in the future.
[21] Exhibit A, HB1 p 44; Exhibit A, HB5 p 315.
On 9 October 2020, Mr Old advised Mr Ebert, by email, the Applicant had been stood down during the investigation process, and stated the Applicant was entitled to know the allegations made against him to afford the Applicant natural justice; and requested the details of the allegations be provided.[22]
[22] Exhibit A, HB1 p 43; Exhibit A, HB5 p 316.
On 12 October 2020, Mr Ebert provided, by email to Mr Old, details of the allegations by the Complainant.[23] He also advised the Complainant was not returning to Ingham’s and had chosen to move interstate.
[23] Exhibit A, HB1 p 45–46.
On 14 October 2020, Mr Old wrote a letter to the Applicant detailing the general allegations made against him by the Complainant.[24] That letter was incorrectly dated 1 October 2022. Under heading ‘Summary of Allegations’, he said:
[24] Exhibit A, HB1 p 47–48.
(1)On a number of occasions, you showed jewellery to [the Complainant] whilst passing through the intake area;
(a) On one occasion while [the Complainant] was in the control room you asked [the Complainant] to come downstairs. You attempted to give [the Complainant] a necklace;
(b) On or around 25 September 2020, you showed her image of a text message that stated ‘no matter how much jewellery you buy her, she is not going to date you. She talks and acts like that with everyone’;
(2)You would repeatedly gesture a hand sign to [the Complainant] which was interpreted to mean ‘I love you’;
(3)You were heard discussing the colour of [the Complainant’s] underwear with others in the control room;
(4)You asked [the Complainant] multiple times to go away for weekend trips;
(5)You would follow [the Complainant] around the site with no reason to do so;
(6)On or around 8 August 2020, [the Complainant] was working in the intake hut and you entered hut. Signage clearly states no entry. You were advised to leave the area and refused but remained sitting on desk above [the Complainant] who was seated. You questioned [the Complainant] as to why she would not go away on weekend trips with you. During this exchange you mentioned speed dating questions, wearing of handcuffs and having intercourse on first dates. It is also alleged that you referred to being ‘cockblocked’. Entering this prohibited area is a breach of site rules;
(7)In response to [the Complainant] requesting you cease the inappropriate and unwelcome behaviour, your response was to show her the photograph and tell her you were being bullied by [your] co-workers, stating it was her fault [you were] being made to look like a fool and that you loved her;
(8)On 25 September 2020, you:
(a) Attempted to kiss [the Complainant];
(b) Following the attempted kiss, [the Complainant] confronted you and requested you cease the behaviour. At this point you responded by showing image (1b) and said that it was [the Complainant’s] fault you were being bullied by your co-workers, stating it was her fault you were being made to look like a fool and that you were in love with her;
(c) Attempted to embrace and physically pressed [the Complainant] up against a wall;
(9)Actions have been occurring for a number of months and escalating, including not remedying behaviour when requested to do so.
Further, Mr Old confirmed no findings had been made in respect of the allegations but invited the Applicant to attend an interview with he and Ms Erin Compitiello, National Employee Relations Manager of the Respondent, on 16 October 2020. Mr Old confirmed the Applicant may bring a support person to the interview.
On 16 October 2020, that interview occurred, and the Applicant’s support person was the Applicant’s Representative in this application. Handwritten minutes of the interview were provided to the Tribunal.[25] The Applicant acknowledged some of his alleged behaviour occurred as described, but did not concede at the interview any of the behaviour to be inappropriate with regards to the Complainant. Following the interview, Mr Old tried to obtain from Ingham’s, information regarding matters raised by the Applicant during the interview, including the production of CCTV footage.
[25] Exhibit A, HB5 p 321–325.
On 23 October 2020, Mr Old sent an email to Ingham’s and requested a copy of the CCTV footage depicting the Applicant entering the restricted area and requested the opportunity to speak to Mr Shane Borman (“the Complainant’s Supervisor”) who was the Complainant’s supervisor, and a witness.[26] That same day, Mr Old spoke with the Complainant’s Work Pac Area Manager, and thereafter sent an email to Ms Compitiello advising her about that conversation.[27]
[26] Exhibit A, HB1 p 45–46; Exhibit A, HB5 p 317.
[27] Exhibit A, HB1 p 49.
On 28 October 2020, Mr Ebert advised Mr Old, by email, the CCTV footage had been recorded over, and Mr Old was not given permission to interview Ingham’s employees, and in particular the Complainant’s Supervisor, but advised the Complainant’s Supervisor’s record of interview supported the Complainant in regard to her interactions with the Applicant.[28]
[28] Exhibit A, HB1 p 50.
Having regard to the interview with the Applicant, and his acknowledgement that he engaged in behaviour which the Respondent said could be categorised as sexual harassment, and the fact he breached Ingham’s worksite rules by entering the prohibited area, an ‘Opportunity to Show Cause (Potential Termination of Employment)’ letter (“Show Cause Letter”), dated 9 November 2020, was sent to the Applicant inviting him to show cause why his employment should not be terminated.[29] This letter was sent on behalf of Mr Old, who was on annual leave at the time.[30] The Applicant was given until 18 November 2020 to provide a response.
[29] Exhibit A, HB1 p 51–52.
[30] Note: Mr Old was on Annual Leave 9-22 November 2020.
On 17 November 2020, the Applicant lodged with the Respondent an ‘Incident Report’.[31] The incident description reads:
“Worker claims he is stressed due to ongoing investigation related to alleged misconduct at the Ingham’s feed mill.”
[31] Exhibit A, HB1 p 53–54.
On 19 November 2020, the Applicant filed an ‘Application for an order to stop bullying’ with the Fair Work Commission.[32] The Applicant’s Representative assisted the Applicant with this claim. The name of the person against whom the bullying was alleged was the Complainant’s Supervisor. The alleged bullying behaviour was “[a]buse of authoritative powers to fabricate allegations which has resulted in being banned from Ingham’s sites. Spreading malicious rumours.”[33] Examples given were “fabrication of sexual harassment claims. Fabrication of breaching site rules.”[34] The Applicant alleged the Respondent relied on Ingham’s word to justify his pending dismissal.[35] He said the Complainant’s Supervisor should be trained in bullying behaviour, the evidence was all hearsay, and he required video evidence be produced to determine if that evidence was true or false.[36]
[32] Exhibit A, HB1 p 57–64.
[33] Exhibit A, HB1 p 60.
[34] Exhibit A, HB1 p 61.
[35] Exhibit A, HB1 p 62.
[36] Exhibit A, HB1 p 63; Applicant’s written closing submissions undated.
On 20 November 2020, the Applicant lodged a Workers Compensation Claim.[37] He described his ‘injury’ as ‘stress’, which occurred at Ingham’s Feed Mill. The event leading to his ‘injury’ was a disagreement with a co-worker. The event causing his ‘injury’ was receiving the letter with allegedly false allegations. The Applicant provided a medical certificate from Dr Liu.[38] This medical certificate referred to an examination dated 17 November 2020. The examination stated the Applicant had suffered from ‘stress’ at work since 30 September 2020 and had worsened since 13 November 2020. The clinical diagnosis was ‘stress’, and the Applicant was unfit to work for the period 17 November 2020 to 20 November 2020.[39] The last medical certificate provided by the Applicant certified him medically unfit for work for the period 18 December 2020 to 7 January 2021.[40]
[37] Exhibit A, HB1 p 65–77.
[38] Exhibit A, HB1 p 90–91.
[39] Exhibit A, HB1 p 55–56.
[40] Exhibit A, HB1 p 108–109.
On 14 December 2020, the Applicant received a ‘Termination of Employment’ letter from the Respondent.[41] He was advised that, on the balance of probabilities, he engaged in behaviour that can be categorised as sexual harassment, he breached Ingham’s worksite rules by entering the prohibited area, and after considering his response to the Show Cause Letter, it was determined that termination of his employment was appropriate in the circumstances.[42] The termination was effective immediately, however, the Applicant would be paid in lieu of notice in accordance with the National Employment Standards. Further, the Applicant’s Workers Compensation Claim was under investigation.[43]
[41] Exhibit A, HB1 p 105–106.
[42] Exhibit A, HB1 p 51–52.
[43] Exhibit A, HB1 p 65–77.
On 27 November 2020, Quark and Associates (“Quark”) was engaged by the Respondent to investigate the claim for compensation, which investigation was undertaken by Mr Paul Hocking. Quark provided a report dated 18 January 2021.[44] In the course of the investigation, Mr Hocking interviewed the Applicant, the Applicant’s Supervisor, the Complainant and the Complainant’s Supervisor.[45] He additionally received other material in relation to the matter. The records of interview of each were contained within the report. Under heading ‘Conclusion’,[46] Mr Hocking detailed his findings in relation to the application as follows:
“[The Applicant] has totally denied that during the course of his employment with [the Respondent] and working at Ingham’s Feed Mill at Murray Bridge he entered or remained in any restricted areas. He did admit to having a friendship with [the Complainant] but totally denied sexually harassing her in any way.
From information provided by other witnesses it appears on the balance of probability that [the Applicant] did enter a restricted area, namely the Intake Hut at Ingham’s Feed Mill and that he was fully aware that this was a restricted area. It is also apparent that the behaviour of [the Applicant] towards [the Complainant] was inappropriate and in breach of the Code of Conduct.
Therefore, the disciplinary action taken by [the Respondent] in not allowing [the Applicant] to enter the Ingham’s Feed Mill were reasonable administrative actions. It also appears that due to the seriousness of [the Applicant]’s behaviour and entering a restricted area, the termination of his employment was reasonable.
It is felt [the Applicant] has provided false and/or misleading information at interview in an attempt to cover his inappropriate behaviour and failure to follow Ingham’s Policies and Procedures by entering a restricted area.”
[44] Exhibit A, HB1 p 113–277.
[45] Exhibit A, HB1 p 117 [2.4].
[46] Exhibit A, HB1 p 148.
The Tribunal has not had regard to the conclusions of Mr Hocking, which include the reasonableness of the administrative action undertaken by the Respondent. It is for the Tribunal to come to its own decision having regard to the evidence before it. Mr Hocking was not called to give evidence.
Applicant’s Oral Evidence
The Applicant provided two statements, dated 28 March 2022 and 1 April 2022.[47] He gave oral evidence. In response to the Tribunal the Applicant agreed the facts contained in his statements were true and correct.
[47] Exhibit A, HB10 p 409–413.
When the Applicant obtained full-time employment with the Respondent, he moved to Murray Bridge to be closer to his workplace.
He said one morning, prior to leaving for work, he received a telephone call from the Applicant’s Supervisor who told him he was to be stood down because of allegations of harassment. They discussed the allegations and met the following day. The Applicant received a document which he read. He denied any wrongdoing and said the allegations were untrue. His supervisor told him they would get the matter resolved and return the Applicant to work.
Within the next day or so he received a telephone call from Mr Old. They discussed the allegations. The Applicant again denied any wrongdoing. Mr Old said he would obtain the details of the allegations.
It took two weeks for the allegations to be produced. With some of the allegations, the Applicant ‘could see where this [was] going’. In respect of others, he was dumbfounded. Mr Old arranged an interview in which they were joined by Ms Compitiello. That interview was for nearly two hours, and they went through the allegations in detail. The Applicant’s Representative was his support person in this interview.
The Applicant said weeks went by. He was left at home. He thought he would have a result in a couple of days, but it dragged on. He could not understand the delay. Three to four weeks went by, and he developed anxiety and had sleepless nights. He was worried about his position because he was very happy in his job. During this period, he received phone calls early in the morning, including from Mr Old, enquiring about his medical appointments, and also from people from the Respondent’s Port Adelaide office. The Applicant was also seeing Dr Liu. He explained to her what was happening at work and how he was feeling. She prescribed medication which did not assist. Dr Liu said this was a work-cover matter. The Applicant submitted a Workers Compensation Claim,[48] and continued to see Dr Liu.
[48] Exhibit A, HB1 p 65–77.
The Applicant said he received a telephone call early one morning from a person from Port Adelaide. He had difficulty understanding him because he had an accent. That person said he was going to have to ‘sack’ the Applicant. The Applicant said he was upset and started crying. He went back to Dr Liu who prescribed another medication which did not work. The Applicant then received the Show Cause Letter.[49] He replied to the letter, but he was ‘sacked’. He then had expenses that were beyond his means, he was standing in line for social security and felt that his life had been ripped out from underneath him.
[49] Exhibit A, HB1 p 51–52.
The whole process took about two months. He thought it would take two days. He said he may have been advised that Ingham’s was to undertake an investigation. He was referred to correspondence from Mr Old which he interpreted as Mr Old saying, ‘I’ve got your back’, but he now knows he did not have his back. That was the letter dated 1 October 2020.[50]
[50] Exhibit A, HB1 p 41–42; Exhibit A, HB5 p 313–314.
In response to the Tribunal, the Applicant was critical of Mr Old. The Applicant said he queried with him about the existence of CCTV footage. The Applicant then said he understood that inquiry was made about the CCTV footage but was unsuccessful. He accepted the letter dated 1 October 2021 was a document that advised him of the process that would take place as a result of the allegations.[51] The Applicant accepted this letter was written very shortly after the allegations were made. The Tribunal observes and notes there is nothing contained within the letter that could be interpreted as Mr Old saying, ‘I've got your back’. The Applicant’s interpretation of the letter does not reflect its contents and is baseless.
[51] Ibid.
Following his termination of employment, the Applicant started applying for jobs but all available jobs involved delivery of goods to Ingham’s and so he could not undertake that work. He applied for a road train job and got to the point of having the medical examination, but he heard nothing further. He speculated the employer may have found out what medication he was taking at the time.
The Applicant said at, or about this time, he ceased seeing Dr Liu because she was not assisting him, and he started consulting another doctor. The Applicant found employment working in a quarry. It was physical part-time work helping other workers with repairing or replacing broken equipment and assisting with splitting black granite.
The Applicant was referred by Dr Liu to a psychologist, but that psychologist was not accepting new patients. He was given a telephone psychology service to contact. He rang and left a message but did not receive a return telephone call. Hence, the first time the Applicant saw a mental health practitioner, was a psychologist, Dr Natalie Bruyns (“Dr Bruyns”) on 14 January 2022.[52] He had four consultations with Dr Bruyns who provided a report dated 30 March 2022.[53] The Applicant said he continues to consult with Dr Bruyns who is helping him with a number of issues, including interaction with women.
[52] Exhibit A, HB13 p 511–513.
[53] Exhibit A, HB12 p 414–415.
In cross examination, the Applicant agreed he was stood down on 30 September 2020 and that he received the letter dated 1 October 2020 from Mr Old, advising him of the allegations of harassment.[54] This letter contained an explanation of how the investigation would proceed, the investigation process and outcome, including the fact the Applicant may have a support person, the confidentiality of the investigation, the Applicant’s work arrangements, and the Employee Assistance Program. The Applicant agreed this letter set out the process that would follow from the allegations of harassment, and he understood the process that would take place.
[54] Exhibit A, HB1 p 41–42.
The Applicant said he was not aware of an Employee Assistance Program. Counsel referred the Applicant to the second page of the letter dated 1 October 2020 and the heading ‘Employee Assistance Program’.[55] The Applicant conceded the letter referred to such assistance. The Tribunal notes the Applicant is not skilled at reading and may not have immediately appreciated all of the contents of that letter. The Applicant did not avail himself of that Employee Assistance Program.
[55] Exhibit A, HB1 p 42.
The Applicant said he had received, read and understood all of the Tribunal documents presented in the within proceedings. He was referred to an email communication from Mr Ebert on behalf of Ingham’s, dated 7 October 2020.[56] He said he was aware of the matters contained within that communication which detailed the inquiries made by Ingham’s and the outcome. The email referred to the Complainant having made it very clear, by constantly rejecting advances and invitations by the Applicant, that she was not interested in any form of relationship with him beyond work. Invitations of weekend trips and possible dates were all rejected, and the email referred to this conduct having occurred over a number of months. The Applicant conceded this interaction with the Complainant occurred over an eight-week period, immediately prior to the date of the letter he received dated 1 October 2020.[57]
[56] Exhibit A, HB1 p 44; Exhibit A, HB5 p 315.
[57] Exhibit A, HB1 p 41–42.
The Applicant explained the nature of their communication. He said the Complainant had been employed at Ingham’s for about five months. During that time, she became part of ‘a group’. She engaged with the Applicant by Facebook, he invited her to go with him to pick up a boat but after initially indicating she may join him, she later declined. Other invitations to join him were declined. The Applicant then said these incidents only occurred over a period of about three weeks.
The Applicant was told of the allegation that he entered the restricted area, which he said at the time he did not understand, but now he does.
The Applicant was referred to an email from Mr Old to Mr Ebert, which included a reference to the immediate suspension of the Applicant from employment duties, pending the Respondent’s investigation, and requesting from Ingham’s details of the allegations to ensure the Applicant was afforded natural justice. The Applicant said he understood this email was in accordance with the procedures previously outlined in the letter dated 1 October 2022,[58] and Mr Old ‘definitely did his best’.
[58] Ibid.
Counsel referred the Applicant to the email from Mr Ebert to Mr Old, dated 12 October 2020, advising that the Complainant was not returning to work, and had moved interstate.[59] It also provided the Complainant’s written details of the allegations, which were provided in paragraphs one to nine of that email.[60] Further, in the letter, dated 14 October 2020 (incorrectly dated 1 October 2020),[61] Mr Old provided under heading, ‘Summary of Allegations’ the details of the alleged sexual harassment. The Applicant agreed he received that letter and details of the allegations, and subsequently attended an interview on 16 October 2020.[62] Mr Old and Ms Compitiello were present, together with the Applicant’s Representative, who attended as his support person. The interview lasted approximately two hours. At that interview the Applicant was provided with written details of the Employee Assistance Program which he said he probably read at the time, but he did not pursue such assistance.
[59] Exhibit A, HB5 p 317.
[60] Ibid.
[61] Exhibit A, HB1 p 47–48.
[62] Exhibit A, HB5 p 321–325.
The Applicant agreed that during the interview he was given the opportunity to respond to each allegation made by the Complainant and put his position in relation to each. He accepted he had ample opportunity to put his position.
The Applicant said to the Tribunal he had read each statement provided by Mr Old and Ms Compitiello, which included details of the 16 October 2020 interview. The Applicant agreed the statements were correct.
The Applicant said he did not know Mr Old contacted Ingham’s requesting further information, including CCTV footage depicting the Applicant’s presence in the restricted area, and a copy of the interview of the Complainant’s Supervisor.[63] The Applicant was then referred to Mr Old’s contact on 23 October 2020 with Mr Trian Misso, Work Pac Area Manager responsible for the Complainant and her contract placement at Ingham’s.[64] The Applicant said he was aware of that contact. The Applicant was referred to the email dated 28 October 2020 from Mr Ebert to Mr Old advising the CCTV footage had been recorded over, and Ingham’s would not make their employee, the Complainant’s Supervisor, available for interview.[65] The Applicant said he was aware of those enquiries being made, and their outcomes.
[63] Exhibit A, HB1 p 45–46.
[64] Exhibit A, HB1 p 49.
[65] Exhibit A, HB1 p 50.
The Applicant was referred to the Show Cause Letter, dated 9 November 2020.[66] He said he had the opportunity to read, understand and respond to the letter. He agreed he had ample time to respond and did so on 16 November 2020.[67]
[66] Exhibit A, HB1 p 51–52.
[67] Exhibit A, HB2 p 301–302.
The Applicant agreed, on 14 December 2020, his employment was terminated because the Respondent had accepted, on the balance of probabilities, the allegations made by the Complainant.[68] The Respondent also accepted the Applicant had entered a restricted area at Ingham’s, as alleged.
[68] Exhibit A, HB1 p 105–106.
The Applicant said he had a mental breakdown as a consequence of the allegations of harassment, the investigation, the conclusion reached by the Respondent, and the termination of his employment. He rhetorically asked the Tribunal, “how could they come to that conclusion given all the information I gave them?” The Applicant was also critical of the time it took the Respondent to deal with the allegations.
The Applicant agreed Mr Old did the best he could but that he ‘kept coming up against brick walls’. In response to the proposition by Counsel that he was given ample time to respond to the allegations made against him, the Applicant said that he (Mr Old) should have made further investigations.
The Applicant was referred to his interview, on 16 October 2020, and the concessions he made with regards the allegations of harassment, including:
·His invitation to the Complainant to go with him on a weekend trip to pick up his boat;
·The jewellery, namely a necklace, that he gave to the Complainant;
·The text messages he sent her;
·Showing the Complainant the text message he received which stated ‘no matter how much jewellery you buy her, she is not going to date you. She talks and acts like that with everyone’;
·The hand signals he repeatedly made to the Complainant indicating ‘I love you’; and
·He said to the Complainant it felt like they were speed dating.
The Applicant denied the allegations he asked her out to dinner, touched her, or made comments about her underwear. He agreed she was 21 years of age, and he was about 46 years of age.
The Applicant agreed there were restricted areas within Ingham’s that were prohibited to the Respondent’s drivers. He agreed the Respondent’s role was to take grain out of Ingham’s, not to deliver grain to Ingham’s. The Applicant agreed he had nothing to do with the intake of grain into Ingham’s to be made into feed, and none of the Respondent’s drivers were to be in the Intake Area at any time. The Applicant was permitted to be in the area of the control room, and the office window from which he would receive paperwork to do his deliveries. He was also permitted in the area of the loungeroom and toilet.[69] The Complainant’s role required her to be in the office and Intake Area.[70] The Applicant admitted he was on the stairs in the Intake Area, and he had no reason to be there.
[69] Exhibit C.
[70] Ibid.
The incident on the stairwell in the Intake Area of Ingham’s was raised by the Respondent, and the Applicant was referred to four photographs.[71] The photographs depict different areas of Ingham’s.[72] The first photograph depicts the restricted area in which it is alleged that on 26 September 2020 the Applicant pinned the Complainant to the wall and tried to kiss her.[73] The second photograph is the area immediately above, where the Complainant’s Supervisor was standing, and from which he was alleged to have observed the Applicant and the Complainant below.[74] The Applicant agreed he had no reason to be in that area and was not permitted access to that area as a driver. Insofar as the Complainant alleged, it was there she asked the Applicant not to engage with her in the manner he had been doing, the Applicant denied that allegation. He said on that occasion the Complainant asked him why he was not speaking to her anymore. The Applicant said to the Complainant it was because he was told she had said the Applicant had offered her jewellery in exchange for sex. He immediately deleted her telephone number and contact details and asked her to do the same, including Facebook details. When he explained this to the Complainant, she started crying.
[71] Exhibit A, HB1 p 273–274.
[72] Exhibit A, HB1 276–277; Exhibit C.
[73] Exhibit A, HB1 p 277.
[74] Exhibit A, HB1 p 277.
The Applicant said he did nothing that could have caused the Complainant to be frightened by his behaviour or that could be described as ‘creepy’ or ‘unwelcomed’, as suggested by the Complainant. The Applicant’s position was that there was nothing about his conduct towards the Complainant that was inappropriate.
He said he was subsequently spoken to by the Complainant’s Supervisor who asked why she was crying. The Applicant said he explained what he said to the Complainant and why he was not speaking to her. The Complainant’s Supervisor said to him ‘[the Complainant] brought this on herself’. The Applicant said to the Complainant’s Supervisor to leave the matter and not take it any further.
The Applicant said the following Monday he saw and spoke to the Complainant, who was alone in the control room. There was no issue. The following Tuesday evening she gave him the ‘cold shoulder’ when the Complainant’s Supervisor was also present in the control room. He suspected something was wrong, and on the Wednesday evening he was stood down.
The Applicant did not accept, given the allegations made by the Complainant which were supported by other employees of Ingham’s, it was appropriate he be stood down by the Respondent while the matter was investigated. He did not perceive he had done anything wrong.
The Applicant did not accept the Complainant left her job and moved interstate because of his conduct.[75] He said she had been talking for five months about moving to Queensland. The Applicant accused Ingham’s, and in particular the Complainant’s Supervisor, of forcing the Complainant to write the allegations.
[75] Exhibit A, HB5 p 317.
The Applicant accepted, after he was stood down and informed of the allegations of sexual harassment, he was given the opportunity to respond to the Show Cause Letter and explain his position to the Respondent, he was permitted to have a support person present in any proceedings in this matter and was offered and given the opportunity to utilise the Employee Assistance Program.[76]
[76] Exhibit A, HB1 p 51–52.
The Applicant accepted the Respondent, and Ingham’s, came to a conclusion about the allegations of sexual harassment having regard to the available evidence, and the fact that the Applicant was in the restricted area. The Applicant then changed his evidence. He now said that he was invited into this area by the Complainant, that he said to her he thought he was not permitted into the area and that the Complainant was there putting a Band-Aid on his thumb. He said he thought the restriction was to avoid contamination of the product. This change in explanation by the Applicant lacked credibility. The Tribunal notes the Applicant appeared to change his explanation after he admitted he was knowingly in the restricted area of Ingham’s.
The Applicant was referred to the ‘Incident Report’ he completed on 17 November 2020.[77] He there referred to the date of the incident having occurred, on 30 September 2020, and that he suffered ‘stress’ due to the ongoing investigation in relation to his alleged misconduct at Ingham’s, which was to some degree, ongoing when he completed the ‘Incident Report’.[78] He also accepted 17 November 2020 was the first date he saw Dr Liu, who provided a medical certificate of the same date.[79] The Applicant said his condition worsened following his receipt of the Show Cause Letter,[80] and was further aggravated by the Workers Compensation process. He related his condition to the allegations, the process, and the outcome.
[77] Exhibit A, HB1 p 53–54.
[78] Ibid.
[79] Exhibit A, HB1 p 55–56; Exhibit A, HB1 p 90–91.
[80] Exhibit A, HB1 p 51–52.
The Applicant made an ‘Application for an order to stop bullying’ to the Fair Work Commission dated 10 November 2020,[81] in which he alleged bullying by the Complainant’s Supervisor and fabrication of sexual harassment allegations resulting in him being banned from the Ingham’s site, spreading of malicious rumours and breaching site rules.[82] He confirmed this claim was subsequently withdrawn.
[81] Exhibit A, HB1 p 57–64.
[82] Exhibit A, HB1 p 60.
On 20 November 2020, the Applicant submitted a Workers Compensation Claim in which he allegedly suffered ‘stress’ at work on 30 September 2020.[83] The Applicant first sought treatment on 17 November 2020 from Dr Liu.[84] The Applicant there said the ‘injury’ occurred at Ingham’s Feed Mill following a disagreement with a co-worker. He referred to receiving a letter with the alleged false allegations and said the Complainant’s Supervisor was responsible.
[83] Exhibit A, HB1 p 65–77.
[84] Exhibit A, HB1 p 90–91.
The Applicant said he was confused about what was happening. He initially said he was ‘sacked’ by the person handling his Workers Compensation Claim. He said the person he spoke to had an accent, was yelling at him and told him he was ‘sacked’. The Applicant alleged the conduct of his Workers Compensation Claims Manager was a contributor to, and the cause of his mental breakdown. Yet, he accepted that the Workers Compensation Claims Manager was not responsible for ‘sacking’ him. The Applicant also accepted he had asked to be advised of the outcome about his employment in writing, and consistent with that request, by letter, dated 14 December 2020, he was advised that his employment was terminated.[85] The suggestion the Workers Compensation Claims Manager yelled at him and ‘sacked’ him could not be sustained on the evidence. His evidence alleging misconduct on the part of the Workers Compensation Claims Manager lacked credibility and reliability.
[85] Exhibit A, HB1 p 105–106.
The Applicant agreed he thereafter contacted the Complainant on Facebook and asked if the allegations were correct. She said they were true.
The Applicant agreed for the purpose of an Independent Medical Examination he had recently seen psychiatrist Associate Professor George Mendelson (“A/Professor Mendelson”) in relation to the Workers Compensation Claim,[86] in which he said he had no prior psychiatric problems, and he did not have any prior Workers Compensation Claim. However, the Applicant conceded that was not correct. Counsel referred to treatment in 2006, 2007, 2008, 2013, and 2014, including the prescription of medication. The Applicant could not remember seeing a medical practitioner on those occasions. Counsel referred to suggestions by the Applicant during those examinations of mental fogginess, feeling emotionally numb, that in the motor vehicle accident he sustained a severe whiplash injury, and other personal issues, including past depression in 2004.[87] The Applicant said he recalled the motor vehicle accident but not the other conditions. He accepted what he told A/Professor Mendelson in regard to his medical history was not correct.
[86] Exhibit A, HB1 p 65–77.
[87] Exhibit A, HB13 p 427.
On his Employment Application Form with the Respondent, the Applicant agreed he said he had no previous Workers Compensation Claims, this was not correct.[88] He said he thought Workers Compensation was when a person is not at work, whereas he always attended work. He also conceded he had a lower back injury from 2012 to 2016, and then said he did not understand the question in the form. He said he always went to work, including performing light duties. He now understands he was, nonetheless, on Workers Compensation. He also said he struggled with reading, and someone read the documents to him, which he signed. The Applicant conceded the documents referred to were in his handwriting. The Tribunal does not accept the Applicant’s evidence. The medical history provided to A/Professor Mendelson was not accurate, and the Applicant misled the Respondent about his medical history in his Employment Application Form.[89] His evidence before the Tribunal on this topic, again, lacked credibility and reliability.
[88] Exhibit A, HB1 p 12–15; Exhibit A, HB1 p 16–40.
[89] Ibid.
The Applicant was referred to an incident when he was employed as a security guard, in which he was assaulted and suffered facial injuries. The offenders were charged. He remembered that occasion. He said he was assaulted by a gang. He could not recall if he made a Workers Compensation Claim as a result of that incident.
The Applicant agreed the first time he saw a psychologist in relation to this application was on 14 January 2022,[90] for the purpose of preparing for this hearing. He said the consultation was as a consequence of a mental health plan prepared by Dr Liu,[91] which was prepared after the Applicant, together with the Applicants Representative, consulted Dr Yong Woo Jeong, (a medical practitioner at the same medical practice as Dr Liu) on 25 June 2021.[92] He told Dr Jeong he had consulted a lawyer and needed a mental health care plan so he could see a psychologist. The Applicant agreed he consulted the psychologist, Ms Bruyns, in the presence of the Applicant’s Representative.
[90] Exhibit A, HB13 p 511–513.
[91] Exhibit A, HB13 p 505–510; Exhibit A, HB21 p 1815–1820; Note: Dr Liu’s comment “originally done by another Dr in September 2021”.
[92] Exhibit A, HB20 p 1805–1806.
The Applicant agreed he had been working full time since April 2021. He was unable to obtain work prior to that because driving jobs involved Ingham’s and he was the subject to a ban on all of Ingham’s worksites. It was not the case that he was unable to work. He was unable to obtain employment as a truck driver that did not involve Ingham’s.
During the luncheon adjournment, the Applicant was provided with copies of his two statements dated 28 March 2022,[93] and 1 April 2022,[94] to read. He confirmed the contents were true and correct. He was also provided with copies of the Mr Old’s statement, dated 20 December 2021,[95] and Ms Compitiello’s statement, dated 20 December 2021,[96] to read. Both statements contained attachments. The Applicant agreed the statements were correct. In reference to Mr Old, he said it detailed exactly what happened, that he tried to back the Applicant up but everywhere he turned ‘he hit a brick wall’. He agreed it accurately detailed the steps and investigation he undertook. Nonetheless, the Applicant was critical of Mr Old.
[93] Exhibit A, HB10 p 409–410.
[94] Exhibit A, HB11 p 411–413.
[95] Exhibit A, HB5 p 306, 331.
[96] Exhibit A, HB5 p 332–360.
The handwritten notes of the interview referred to Mr Jason McGrath.[97] The Applicant said he was the night supervisor for the drivers. He was critical of Mr Old for not speaking to him. Mr McGrath was the one who sent the text message telling the Applicant, “no matter how much jewellery you buy her, she is not going to date you. She talks and acts like that with everyone”. The Applicant said, that is when it was all blown out of proportion. He also said if Mr McGrath had been contacted it would have proved everything the Applicant had said was correct. It would prove the Complainant’s flirtation with the Applicant, and that he asked her to stop as ‘he was there for most of it’.
[97] Exhibit A, HB5 p 321–325.
Counsel asked if the Applicant asked Mr McGrath to provide a statement. The Applicant said he had not because he was not going to bother him after two years. The Applicant then said that within the last two years he had asked Mr McGrath to provide a statement, but he said he would rather stay out of it.
In respect of Ms Compitiello, and the interview on 16 October 2021, the Applicant was critical of her demeanour and reaction to the Applicant’s suggestion he would be back at work in the next two to three days, but otherwise agreed the factual content of her statement was correct. This he said was in contrast to Mr Old, who he said was supportive. The Applicant then agreed he had no quarrel with Mr Old at all.
The Applicant agreed with Counsel that it was Ingham’s who made the decision he was not to return to any of their premises and that decision had nothing to do with the Respondent.
In re-examination, the Applicant was asked to explain the large gap between medical appointments. He said the doctors and the anti-depressant medication were not helping him and made him worse, so he ‘just dealt with it and moved on’. During this period, he said he felt irrelevant, dead and put on the shelf.
Evidence of Mr Richard Old
Mr Richard Old is a Contract Logistic Manager employed by the Respondent, and has held that, or a similar position, for a number of years including at the time of the Applicant’s employment with the Respondent. He provided a statement (with attachments),[98] and gave oral evidence by video. He said the contents of the statement were true and correct.
[98] Exhibit A, HB5 p 306–309.
In cross-examination, Mr Old agreed on 30 September 2020 he received a telephone call from Mr Campbell, Local Manager of Ingham’s Feed Mill. He subsequently received an email from Mr Campbell.[99] The information then received was generic and did not contain specific detail about the allegations of harassment. In particular, the email did not refer to the Applicant being in the prohibited area. When he spoke to the Applicant no specific allegations had been provided.
[99] Exhibit A, HB5 p 310–312.
Mr Old agreed there was an issue between Mr Campbell, and the National Manager, Mr Richard Sevil. He believed Mr Sevil was wanting to do ‘damage limitation’ in relation to this matter and Mr Old’s impression was that he did not want a claim of sexual harassment at the Murray Bridge worksite. Mr Campbell said there had been a sexual harassment incident, but Mr Sevil said it was harassment not sexual harassment.
Mr Old was referred to an email he received from Mr Ebert, dated 7 October 2020,[100] which was attached to his statement dated 20 December 2021. He confirmed that was the email received from Ingham’s, and at that time the Respondent had not commenced its investigation. They were awaiting further information from Ingham’s.
[100] Exhibit A, HB1 p 44; Exhibit A, HB5 p 315.
Mr Old confirmed he then sent an email, dated 9 October 2020 to Mr Ebert,[101] which was again attached to his statement, advising of the Applicant’s suspension and requesting details of the harassment claim to provide the Applicant with natural justice and give him the opportunity to respond. He said, on 12 October 2020, he received details of the allegations which were then communicated to the Applicant on 14 October 2020.[102] The summary as contained in the email communication from Mr Ebert was the extent of the information received. No statement from the Complainant was received by the Respondent.
[101] Exhibit A, HB1 p 43; Exhibit A, HB5 p 316.
[102] Exhibit A, HB1 p 45–46.
On 16 October 2020, there was an interview between the Applicant, Mr Old and Ms Compitiello. Mr Old said the Applicant agreed a large number of the allegations occurred, but he took them in a different context. Mr Old was referred to the handwritten notes of the interview.[103] The notes were in Mr Old’s handwriting. He agreed the Applicant mentioned Mr McGrath. It was Mr Old’s recollection that Mr McGrath was not then an employee of the Respondent, and they could not get hold of him. At one point of time, Mr McGrath was an employee in a night shift role. He probably was present on occasions when some of the incidents complained of were alleged to have occurred, but he did not believe he was available at the time for an interview.
[103] Exhibit A, HB5 p 321–325.
Mr Old agreed during that interview the Applicant asked he obtain CCTV footage of the 26 September 2020 between 12:00AM and 1:00AM when it was alleged the Applicant was in the restricted area, and as a consequence he sent an email to Mr Ebert on 23 October 2020 making that request.[104] On 28 October 2020, Mr Ebert sent Mr Old an email at 9:59AM advising that CCTV footage was not available, and that Ingham’s would not offer the opportunity for the Respondent to interview its employees.[105] A few minutes later, Mr Old emailed Ms Compitiello advising her of that outcome, and asked the question ‘so where does that leave us’.[106] Mr Old confirmed thereafter the Applicant was not permitted to attend any of Ingham’s worksites.
[104] Exhibit A, HB1 p 49; Exhibit A, HB5 p 317.
[105] Exhibit A, HB1 p 50.
[106] Exhibit B.
Mr Old said the process they entered into at that time was to give the Applicant the best possible outcome, and to have as much information as possible because it would otherwise have been unfair to the Applicant for the Respondent to make assumptions. The Respondent required Ingham’s participation in the investigation, which included waiting for them to respond to queries.
In cross-examination, the Applicant’s Representative suggested between the interview on 16 October 2020 and 16 November 2020 there was no communication with the Applicant. She suggested the Show Cause Letter, dated 9 November 2020,[107] was never received by the Applicant and it was a subsequent Show Cause Letter, dated 16 November 2020, that was hand delivered to the Applicant. The Respondent was given the opportunity to view the 16 November 2020 letter which was produced for the first time at the hearing.
[107] Exhibit A, HB1 p 51–52.
The Tribunal raised concern about the genuine status of the 16 November 2020 letter which was significantly different to the Show Cause Letter of 9 November 2020 before the Tribunal.[108] There was no evidence from the Applicant about the 16 November 2020 letter and the Tribunal refused to accept the letter produced from the bar table without any explanation about it from the Applicant. The Tribunal allowed the Applicant an adjournment to consider his position. Thereafter, the Applicant’s Representative advised the document produced was a scanned document provided to her by the Applicant, and the original document was in another folder that she could subsequently produce. The Tribunal repeated its concern about the genuine status of the document. No original document was subsequently produced by the Applicant.
[108] Exhibit A, HB1 p 51–52.
Mr Old said the letter, dated 9 November 2020, was sent on his behalf by Mr Jack Hughes to the Applicant because Mr Old was on annual leave between 9–20 November 2020. He recalled receiving a response from the Applicant, dated 16 November 2020. The Applicant denied any misconduct and offered to undertake a sexual harassment seminar. He denied being in the restricted area. Mr Old received no document or statement from the Complainant.
For the purpose of the investigation, the Respondent interviewed the Applicant, the Complainant’s employer in an attempt to determine her whereabouts, attempted to interview people within Ingham’s without success–including the Complainant’s Supervisor, and Mr Old recollected that they interviewed other drivers. There was no other person identified to Mr Old other than Mr McGrath, who could assist in the investigation. He said insofar as the Applicant talked about ‘grabbing [the Complainant’s] hand, that physical interaction was a big tipping point for us’ and the decision was made predominantly on his interview. The Show Cause Letter was sent, and after the response was received, a final decision was made to terminate the Applicant’s employment.[109]
[109] Exhibit A, HB1 p 51–52.
The Tribunal invited Mr Old to respond to the allegation that, for a period up to three weeks following the interview on 16 October 2020, there was an absence of communication by the Respondent with the Applicant. Mr Old explained he limited his communication with the Applicant because he was in charge of the investigation, but he believed the Applicant’s Supervisor kept in regular, albeit not daily contact, with the Applicant. He believed it was on a weekly basis.
In re-examination, Mr Old confirmed, between the dates of letters and emails, the investigation continued. He said he had no reason to doubt much of the matters reported to him by Ingham’s. The Applicant, in his own statement, acknowledged numerous events occurred but he presented a different interpretation which the Respondent regarded as incorrect.
Evidence of Ms Erin Compitiello
Ms Erin Compitiello is the National Employee Relations Manager of the Respondent. She provided a statement, dated 20 December 2021 (with attachments), [110] and provided oral evidence by video. She confirmed the contents of her statement were true and correct.
[110] Exhibit A, HB6 p 332–360.
She had no involvement with the Applicant until she was advised by Mr Old, on 30 September 2020, of the sexual harassment complaint. Thereafter she, together with Mr Old, were involved in dealing with the complaint of sexual harassment, and related matters. She said Mr Old had asked Ingham’s to be involved in their investigation, but that was refused. Thereafter on 1 October 2020, the Applicant was sent a letter advising him how the matter would be dealt with by the Respondent. Her evidence as to the events that unfolded, including various communications sent and received, were consistent with and corroborated the evidence of Mr Old.
Ms Compitiello attended the interview with Mr Old, the Applicant, and the Applicant’s Representative (as a support person), on 16 October 2020. She appeared by Microsoft Teams (visual computer link) because her workplace was in Melbourne. Mr Old took handwritten notes of that interview. She did not take any notes because she was facilitating and leading the discussion.
Ms Compitiello said, in evidence, the purpose of the interview was to give the Applicant the opportunity to respond to the allegations. He was given a summary of the allegations prior to the interview, and given ample opportunity to respond during the interview. The interview lasted about two hours. In her statement she said the Applicant “acknowledged some of those events took place, his perception, or his view, was perhaps that they had different meaning.” She said in evidence; “where I or others… may have categorised those events as inappropriate or perhaps leading itself to sexual harassment, his view that it was not.” He did not think his behaviour was inappropriate, or he had done anything wrong.
The Applicant denied being in the restricted area. Ms Compitiello confirmed attempts were made to obtain the CCTV footage from Ingham’s, but it had been taped over. She also confirmed Ingham’s denied the Respondent access to Ingham’s employees, and the Applicant was not permitted to enter Ingham’s worksites.
Ms Compitiello was referred to an email to the Applicant’s Representative, in which she said she accepted Ingham’s process. She was asked to explain what she meant. She said the matter was more complicated than a standard investigation of the Respondent’s staff because it involved Ingham’s. She was conveying the Respondent had received information from Ingham’s which was satisfactory information from which the Respondent could conduct its own investigation. She also confirmed the Respondent could not request Ingham’s reverse the worksite ban placed on the Applicant. It was Ingham’s worksites, and they had the right to determine who attended their worksite. She understood the Ingham’s decision was final, and the Respondent had no right to require they do otherwise.
The show cause process was a further opportunity for the Applicant to provide any further information he considered relevant. He provided a response. It was after that response a decision was made to terminate his employment, and in so doing all information was taken into account.
The decision to terminate was originally intended to occur in November 2020. A meeting scheduled for 19 November 2020 did not proceed. The Respondent was advised the Applicant was unwell and could not attend. Then, on 17 November 2020, the Applicant made a ‘Application for an order to stop bullying’ to the Fair Work Commission in respect of the Complainant’s Supervisor.[111] Ms Compitiello was involved in that process. In that process the Commissioner raised whether the Respondent intended to finalise the termination given the nature of the anti-bullying allegations. The Respondent explained the intention was to do so but would usually do it face to face. The Respondent had been unable to do so because the Applicant was unwell. The Commissioner mediated with the parties, including the Applicant’s Representative, and it was agreed the Respondent would do so in writing. This resulted in the ‘Termination of Employment’ letter, dated 14 December 2020.[112]
[111] Exhibit A, HB1 p 57–64.
[112] Exhibit A, HB1 p 105–106.
The Applicant also lodged an ‘Incident Report’ on 17 November 2020,[113] but Ms Compitiello was not involved in that process. It was dealt with by a different department that dealt with Workers Compensation Claims.
[113] Exhibit A, HB1 p 53–54.
Following termination of the Applicant’s employment, she had no further dealing with him.
Ms Compitiello was referred to an email, dated 28 October 2020, from Mr Ebert to Mr Old, which confirmed the CCTV footage had been recorded over.[114] The Respondent was not given the opportunity to interview the Complainant’s Supervisor. The email also said Ingham’s record of interview supported the Complainant’s allegations, and they maintained their position with regard to the Applicant attending their worksites. She was then referred to an email she received from Mr Old advising of that email and saying, ‘So-where does that leave us…’.[115] She recalled the email exchange and understood Mr Old to be asking what the Respondent’s next steps were given the Respondent was not authorised access to interview any of Ingham’s employees.
[114] Exhibit A, HB1 p 50.
[115] Exhibit B.
Ms Compitiello was also referred to the Applicant’s evidence that, at the interview on 16 October 2020, when the Applicant asked when he would return to work, she rolled her eyes and said words to the affect; “we will see about that”. She denied that allegation and stated part of her role was to conduct these types of investigations which are often complex. She understands the importance of presenting in a way that is neutral and fair.
Ms Compitiello and Mr Old considered the findings of Ingham’s when reaching their decision. She did not have the findings before her, but her recollection was that the key finding was; the Applicant was in a prohibited area and should not have been there. There were a number of other findings in relation to the sexual harassment complaint. The Respondent accepted the findings of Ingham’s.
Ms Compitiello said in the interview with the Applicant, on 16 October 2020, each of the allegations were put to him and discussed. She could not now recall in sequence and in detail the conversation, but the most compelling incident she recalled was the occasion when it was alleged that the Complainant was approached by the Applicant in an area outside a toilet where he tried to kiss her. The Applicant’s response was “that he was not trying to kiss her but was trying to hug her. His view was that it was not sexual in nature but he was trying to comfort her and that was inconsistent with what he previously told Mr Old and I, where he raised with us that he was aware that people had a perception that there might be an inappropriate relationship or feelings towards [the Complainant] so he actively tried to avoid her but also on this day where he noticed she was emotional, decided to meet her in a hallway where no one else was, and physically touch her”.[116] Ms Compitiello said this was the most compelling part of the complaint relating to sexual harassment.
[116] Cross–examination.
Ms Compitiello said the Applicant’s responses were inconsistent during the interview on 16 October 2020 and at one stage he said he never touched her which was contrary to the explanation that he was trying to hug her.
Ms Compitiello recalled other allegations related to the Applicant giving the Complainant a necklace, and hand gestures meaning ‘I love you’, which he conceded. He said when giving those hand gestures it did not mean anything sexual. He denied allegations relating to any conversation about wearing handcuffs and having sexual relations on first dates. She could not recall other allegations and responses, but accepted he did deny other allegations and those denials were part of the material taken into account, together with all of the other explanations given by the Applicant when forming the decision to terminate his employment.
In response to the Applicant’s Representative, Ms Compitiello could not recall the reason why the Applicant and the Complainant were in the area where the kissing allegation occurred. The Applicant’s Representative then summarised the Applicant’s position as generally described in his evidence. Ms Compitiello said that summary did, to some extent, refresh her memory about the Applicant’s position but said “in terms of the investigation my concern was not how it happened, it was why it happened and that it shouldn’t have happened. Our view was that there was no reason for [the Applicant] to physically touch this other person and that was a concern for us”.
Ms Compitiello agreed the Applicant denied he was in the prohibited area and there was discussion about CCTV footage, but she did not know at the time of the interview that it had been erased. The email, dated 28 October 2020, was the first occasion she learnt that the CCTV footage no longer existed.[117] She was satisfied from the evidence from Ingham’s of the event. The fact there was no CCTV footage was not discussed with other employees because the investigation was confidential and limited to those who were directly involved in the investigation.
[117] Exhibit A, HB1 p 50.
Ms Compitiello recalled seeing a picture of the necklace the Applicant gave the Complainant, and that the Applicant also gave an explanation that the necklace had a purpose which she could not now recall. It was nonetheless a necklace. The Applicant did say he had given similar necklaces to men.
The Applicant’s contract of employment was to exclusively work with Ingham’s at Murray Bridge. There was some consideration of redeployment which would have been in Adelaide, and although she could not recall in detail that consideration, she believed that there was nothing available for the Applicant.
Ms Compitiello explained she works in Victoria and was not a party to providing the Show Cause Letter,[118] or other correspondence to the Applicant. She explained on occasions the Respondent’s practice is to provide such communication when there is to be a face-to-face meeting and that the words ‘hand delivered’ will be endorsed on that letter. The person’s address will also be included in that document should, for any reason, the face-to-face meeting does not occur.
[118] Exhibit A, HB1 p 51–52.
In re-examination, Ms Compitiello confirmed Mr Old took notes of the interview dated 16 October 2020.
MEDICAL EVIDENCE
Ms Natalie Bruyns–Clinical Psychologist
The Applicant first consulted Ms Natalie Bruyns on 14 January 2022,[119] and he saw her on four occasions before Ms Bruyns provided her report, dated 30 March 2022.[120] In addition, the Tribunal received copies of two consultation notes (not four) dated 14 January 2022 and 22 February 2022.[121]
[119] Exhibit A, HB13 p 511–513.
[120] Exhibit A, HB12 p 414–415.
[121] Exhibit A, HB13 p 511–518.
At the time of the initial consultations, Ms Bruyns was a Provisional Psychologist. She qualified as a Clinical Psychologist on 2 February 2022.
The report, of one and a half pages, provided answers to five questions summarised as:
1. Why did [the Applicant] seek your help?–he was referred by Dr Jeong for psychological therapy to treat symptoms of anxiety and depression following the termination of his employment.
2. What are the main concerns he has?–He reported been terminated from employment due to alleged sexual harassment. He described feeling distraught and frustrated with regards to the incident. It was observed he had a flat affect when describing the impact the incident caused in his life. He had difficulty coping with significant life changes following the incident such as financial loss, housing issues and unemployment. After multiple job rejections he found a job working in a quarry. That position is physically demanding, and which left him with ongoing pain and aches in arms and knees. He reported depressed mood, tiredness, hopelessness, loss of enjoyment and motivation for activities he previously enjoyed, social withdrawal, loss of confidence, poor self-image, nightmares, a degree of hypervigilance, and mild-to-moderate suicidal ideation.
3. In your opinion, what is your judgement regarding [the Applicant]’s mental health?–The Applicant’s history, response to clinical interviews and presentation met the diagnostic criteria for Adjustment Disorder with Depressed Mood. He also displayed signs and symptoms consistent with Post Traumatic Stress Disorder (“PTSD”). He has experienced significant losses, feels less confident and uncertain. He feels on edge, irritable, hypervigilant for potential threats, emotionally distressed by reminders of the incident, avoidance, and social and emotional withdrawal. Enjoyment of life is reduced. He feels he has no reasonable future prospects of employment and life has lost meaning.
4. How are [the Applicant]’s concerns going to be resolved?–He has had four psychological therapy sessions. He will need ongoing treatment. It is expected recovery will be slow dependent largely on the Applicant’s ability to succeed in his employment and come to terms with his losses.
5. At present, what are your recommendations to help [the Applicant] cope with his concerns?–He would benefit from ten to sixteen sessions of Narrative and Imaginal Exposure Therapy, Acceptance and Commitment Therapy, Relaxation Training, Cognitive Restructuring and Supportive Expressive Therapy.
Associate Professor George Mendelson–Consultant Psychiatrist and Specialist Pain Medicine Physician
Associate Professor George Mendelson (“A/Professor Mendelson”) provided a report dated 19 May 2022,[122] and gave oral evidence by video. He is currently an Adjunct Clinical Associate Professor at the Department of Psychiatry, Monash University (from 1994 to date). He is also an Honorary Research Fellow at Caulfield Pain Management and Research Centre, Caulfield General Medical Centre (from 2002 to date). He has practised as a Consultant Psychiatrist since 1976.
[122] Exhibit A, HB13 p 417–438.
A/Professor Mendelson examined the Applicant on 13 May 2022 by a telehealth consultation using zoom software. He said the Applicant was alone at the time of the examination. Prior to the examination, he received letters from the Respondent’s solicitor, dated 29 April 2022 and 5 May 2022, the latter being a detailed history of the matter, consistent with the evidence before the Tribunal, together with a large bundle of documents (seventy-five pages) relating to the Applicant’s claim and including his statement, report of Ms Bruyns and the Applicant’s medical notes and records.
A/Professor Mendelson conducted a ‘Mental Status Examination’ and took a detailed history from the Applicant. In the examination, the Applicant provided a history of his employment and its termination. In giving that history, the Applicant referred to the interview on 16 October 2020 and then said he ‘didn’t hear from them’ for several weeks, and that ‘they left me at home still stood down’. In December 2020, the Applicant said, ‘they were going to terminate my employment’.[123]
[123] Exhibit A, HB13 p 419–420.
The Applicant also reported to A/Professor Mendelson that he tried to obtain other employment as a truck driver, but all of the companies he approached dealt with Ingham’s and he could therefore not find local work as a truck driver. This was depressing. He finally obtained work as a machine operator in a quarry from April 2021.
A/Professor Mendelson detailed the Applicant’s current symptoms as reported to him. The Applicant reported ‘problems with nerves’ and referred to ‘depression’ and ‘self-pity’, however A/Professor Mendelson said the Applicant did not describe any specific emotional symptoms or manifestations of mood disturbance.[124]
[124] Exhibit A, HB13 p 424–425.
In terms of his treatment, the Applicant reported, after he was stood down, he was prescribed medication by Dr Liu. He took the medication for about nine months. He reported four months ago he started to see a psychologist. He was not taking any medication at the time of the examination with A/Professor Mendelson.
In his report, A/Professor Mendelson provided a helpful and thorough summary of the material before him, and in particular the Applicant’s medical history. That included an entry by Dr Peter Frost, dated 12 January 2008, which read:
“Failing memory, like in a fog, lacking interest and motivation, ‘emotionally numb’ - says started with MVA four months ago - sustained severe whiplash - no direct head trauma. Multiple other stressors- lost job, dog died. Personal property stolen. Past depression - four years ago. No focal neurological symptoms. Probably depression. CT to exclude subdural first.”[125]
[125] Exhibit A, HB13 p 427.
A/Professor Mendelson noted the medical notes record a prior history of mental health issues, which was inconsistent with the Applicant’s statement to both Dr Liu and A/Professor Mendelson.
A/Professor Mendelson reported the first Work Capacity Certificate issued by Dr Liu stated the Applicant’s diagnosis was ‘stress’ and he was medically unfit to undertake suitable duties.[126] Further certificates recorded the Applicant’s diagnosis was ‘as previous’.[127] A/Professor Mendelson reported there is no such diagnosis as ‘stress’ in medicine and psychiatry.
[126] Exhibit A, HB1 p 55–56.
[127] Exhibit A, HB1 p 78–79; Exhibit A, HB1 p 83–84.
A/Professor Mendelson reported:
“[the Applicant] said that he had not experienced any psychological or emotional problems in the past, and had not had any treatment for any such difficulties. Given that in January 2008 he gave Dr Frost a history of having had depression four years earlier, [the Applicant] failed to provide me with an accurate past psychiatric history. There is no indication in the documents that I received, however, that in September 2020 he had any diagnosable mental disorder”.[128]
[128] Exhibit A, HB13 p 431.
A/Professor Mendelson opined the Applicant was not mentally ill and he did not have any diagnosable psychiatric disorder. In his opinion, the Applicant did not develop any diagnosable mental disorder as a consequence of any work-related stressor. He further opined in the first consultation with Dr Liu, on 17 November 2020,[129] having been suspended on 30 September 2020,[130] the Applicant:
“…described manifestations of anxiousness, and in my opinion these were due to an understandable emotional reaction to the allegations that have been made against him, having been suspended, and his concern about the security of his employment with [the Respondent].
One of the manifestations of anxiousness at that time was insomnia and he was prescribed a minimal dose of amitriptyline to take at night: that dose was subsequently increased to 20 mg at night. Later during November he was referred to a psychologist…
The entry dated 11 December 2020… recorded that [the Applicant] was “feeling better in general” but was continuing to feel anxious and “stressed”. His employment with [the Respondent] was terminated by letter dated 14 December 2020, and his emotional symptoms persisted.”[131]
[129] Exhibit A, HB1 p 90–91.
[130] Exhibit A, HB16 p.
[131] Exhibit A, HB13 p 431–432.
A/Professor Mendelson also reported the Applicant told him he had difficulty obtaining work, and his symptoms continued. He opined this appeared to be due to a sense of grievance and resentment, false accusations of sexual harassment and involvement in litigation.
Further, insofar as A/Professor Mendelson opined, the Applicant had not developed any diagnosable mental disorder as a result of his employment with the Respondent, he said:
“Whilst he describes having developed emotional symptoms… as the result of having been initially suspended from work, and later his employment having been terminated, in my opinion these symptoms are due to an understandable psychological reaction and they do not constitute a diagnosable mental disorder such as an “Adjustment Disorder”.
It is also my opinion there is no basis whatsoever for the diagnosis of [PTSD] in relation to [the Applicant].”[132]
The Tribunal notes that symptoms of PTSD were diagnosed by Ms Bruyns.
[132] Exhibit A, HB13 p 432.
A/Professor Mendelson referred to the ‘International Classification of Diseases’. In reference to PTSD, it says: “This arises as a delayed and/or protracted response to a stressful event or situation…of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone”.[133] He reported the Applicant had not experienced the type of traumatic stressor capable of causing PTSD and did not describe symptoms that must be present to meet the diagnostic criteria. He reported, “in my opinion [the Applicant] is not mentally ill and does not have any diagnosable psychiatric disorder, it follows that there is no indication that he requires treatment for any such illness or disorder under the care of a consultant psychiatrist or clinical psychologist”.[134]
[133] Ibid.
[134] Exhibit A, HB13 p 434.
Further, A/Professor Mendelson referred to the telephone contact the Applicant maintained with a psychologist for emotional support, he said this was not inappropriate but there was no indication of the Applicant taking the anti-depressant or tranquilizer medication.
Oral evidence
A/Professor Mendelson confirmed the opinions expressed in his report based on the Applicant’s history, and current symptoms. He said in his report he referred to only one set of notes of Ms Bruyns, namely that dated 14 January 2022.[135] There was another set of notes dated 22 February 2022 which he also considered. He noted the latter notes referred to the Applicant being ‘calm, appropriate affect, engaged well, talkative’. A/Professor Mendelson’s observations noted on that occasion did not alter his opinion.
[135] Exhibit A, HB13 p 511–513.
The Respondent submitted support for that submission is found in the detailed report of A/Professor Mendelson and his evidence, who was the only psychiatrist to examine the Applicant. He considered the report and medical notes of Ms Bruyns, the notes and medical certificates of Dr Liu, and gave detailed explanation as to why he disagreed with the diagnosis of both parties.
The Respondent submitted the report of Ms Bruyns was untested as she did not give evidence, and the opinions expressed were not supported by the existing evidence before the Tribunal. The Respondent was also critical of the consultation process and possible contamination of that process because the Applicant’s Representative was present for the consultation and provided information to Ms Bruyns.
Dr Liu was not called to give evidence, and her opinion, evidenced by the medical certificates, could not be tested. A/Professor Mendelson was critical of the certificates and the diagnosis of ‘stress’, which he stated was not a known medical condition.
It was the opinion of A/Professor Mendelson the Applicant did not suffer a mental illness, and had no diagnosable mental disorder as a consequence of his employment. He said the emotional symptoms expressed by the Applicant were an understandable reaction to the allegations of sexual harassment, and subsequent investigations, but did not constitute a diagnosable mental disorder such as Adjustment Disorder with Depressed Mood. He further opined the Applicant did not suffer from PTSD.
The Respondent summarised the basis upon which A/Professor Mendelson formed his opinion, including the observation at the first consultation with Dr Liu where the Applicant described anxiousness, which was an understandable reaction to the allegations, and on 11 December 2020 he was ‘feeling better in general’ but continued to feel anxious and stressed.[158]
[158] Exhibit A, HB16 p 598.
The Respondent also referred to the report of Ms Bruyns, dated 30 March 2022, and the symptoms she listed in paragraph two of that report.[159] Those symptoms were not recorded in her notes but many of them were symptoms referable to the comments made by the Applicant’s Representative rather than the Applicant. Further, the list of symptoms appear to be identical to those recorded in the notes of Dr Liu, and both Ms Bruyns report and Dr Liu’s notes were too similar in their wording to be a coincidence, and it would be extremely unusual to express symptoms in an identical way given the passage of time between the consultation with Dr Liu and Ms Bruyns.
[159] Exhibit A, HB12 p 414–415.
The Respondent referred to the cross-examination of A/Professor Mendelson in which was put to him the Applicant suffered from the condition, Anhedonia, but A/Professor Mendelson explained this symptom alone is not sufficient for a diagnosis of PTSD, and was only one of several symptoms, all of which must be present for a diagnosis. The Applicant had not consulted a psychiatrist, and did not require treatment because he had not suffered a diagnosable psychiatric illness. The Applicant was not taking medication when seen by A/Professor Mendelson and he was not incapacitated for work at any time.
The Respondent submitted, having regard to the evidence, the Tribunal ought not be satisfied the Applicant suffered from a ‘disease’ in accordance with s 5B(1) of the Act, and hence, did not suffer an ‘injury’ in accordance with s 5A(1) of the Act. If the Tribunal accepted that submission the Tribunal did not need to consider the question of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
The Respondent referred to the administrative action undertaken by the Respondent, and the consideration of the non-exhaustive list contained in s 5A(2) of the Act, detailing what might be considered administrative action.
The Respondent admits the investigation into the allegations of serious misconduct, the consequent suspension of the Applicant’s employment, and the disciplinary action resulting in the Applicant’s termination of employment, satisfy the criteria of reasonable administrative action. The Tribunal agrees with that submission.
The Respondent detailed the events from 30 September 2020 which we will not repeat. It was noted the Applicant acknowledged some of the alleged events of which the Complainant alleged occurred, in that he:
(a) Gave the Complainant jewellery;
(b) Had attempted to reach down to her hands when the Applicant was in the area outside the canteen and looked upset, he grabbed her hands, and she threw her hands up and stepped back;
(c) On two occasions invited the Complainant to go with the Applicant to Cape Jervis to collect his boat, but she declined;
(d) Made a hand gesture to the Complainant that meant ‘I love you’;
(e) Showed her an image of a text message that said ‘no matter how much jewellery you buy her, she is not going to date you. She talks and acts like that with everyone’;
(f) Invited the Complainant motorbike riding;
(g) Was friends on Facebook with the Complainant, and had sent text messages to her;
(h) Did not enter the intake hut but may have been on the stairs;
(i) Commented that it “felt like we are speed dating” based on ‘quickfire’ questions.
The Respondent submitted the Applicant did not acknowledge his behaviour was inappropriate. The Applicant’s perceptions of his interactions with the Complainant were different. The Complainant described being very uncomfortable and scared.
The Respondent referred to Drenth v Comcare and the ‘administrative action taken in a reasonable manner’ being determined by an objective test and a question of fact.[160] The Tribunal agrees with that submission.
[160] Drenth v Comcare [2012] FCAFC 86 [26].
The Respondent referred in paragraphs twenty-one to twenty-three of the closing submissions, to the administrative action and the reasonableness of that action taken by the Respondent. The Respondent submitted the actions of Mr Old and Ms Compitiello was performed reasonably.
It was submitted the Applicant was paid ordinary hours from 30 October 2020 until his termination on 14 December 2020.[161] He did not suffer an incapacity for work. He endeavoured to obtain employment in Murray Bridge as a truck driver but could not do so because available work involved Ingham’s, and he was banned from their worksites. He did not provide a medical certificate that certified him incapacitated for work post 7 January 2021, and he commenced employment in a quarry in April 2021 following a medical examination arranged by his prospective employer.
[161] Exhibit A, HB1 p 105–106.
Insofar as the Respondent, in closing submissions, referred to the Quark investigation and the interview of the Applicant’s Supervisor, it was submitted he was not called to give evidence and the investigation was conducted following the lodging of the Workers Compensation Claim,[162] and was not part of the administrative action that it is said gave rise to the compensable ‘injury’.
[162] Exhibit A, HB1 p 65–77.
Contentions
The Applicant’s Representative submitted the Applicant ‘did not have a “voice” throughout this process’,[163] and the Respondent failed to produce evidence of sexual harassment, the Applicant was in a restricted area, or any other allegations of ‘serious misconduct’ occurred.
[163] Exhibit A, HB4 p 305.
This submission is misconceived. The Applicant’s Representative fails to separate the sexual harassment complaint and investigation by Ingham’s with the issue before the Tribunal, namely the Workers Compensation Claim,[164] and whether the Respondent is liable to pay compensation in respect of an ‘injury’ in accordance with s 14(1) of the Act.
[164] Exhibit A, HB1 p 65–77.
This hearing does not require the Respondent to produce evidence of the sexual harassment, that the Applicant was in a restricted area, or that there was any other ‘serious misconduct’. Those were matters for the consideration of Ingham’s through its investigatory process. The question for the Tribunal is what the Respondent did as a consequence of being advised of the allegations of sexual harassment, the investigation by the Respondent and its outcome. That is the administrative action undertaken by the Respondent that falls for the consideration of the Tribunal for the purpose of s 14 of the Act, and whether the Applicant suffered a compensable ‘injury’ within the meaning of the Act.
It is not clear what the Applicant means by the submission he did not have a “voice” throughout the process.[165] His right to be heard related to the administrative action undertaken by the Respondent. His evidence was that:
·He received a telephone call, from the Applicant’s Supervisor, one morning (on or about 30 September 2020) advising him that he would be stood down with pay because of the allegations of sexual harassment. He denied any wrongdoing. The following day he received a telephone call from Mr Old, and he again, denied any wrongdoing;
·He received a letter, dated 1 October 2020, from Mr Old advising him of the allegations of sexual harassment and an explanation of how the matter would proceed, and Mr Old advised him of the ‘Employee Assistance Program’;
·He had a two-hour interview with Mr Old, and Ms Compitiello, on 16 October 2020, in which he had every opportunity to engage and respond to each of the allegations of sexual harassment that was put to him for comment. The Applicant’s Representative was at that interview. He agreed he had the opportunity to, and responded to, the Show Cause Letter.
·Mr Old did the best he could but that he ‘kept coming up against brick walls’, albeit he then said that Mr Old should have made further investigations and referred to interviewing Mr McGrath, who the Applicant said would have exonerated him from any wrong-doing.
[165] Exhibit A, HB4 p 305.
Mr Old said, and the Tribunal accepts, he was unable to interview Mr McGrath because Mr McGrath was, at the time, not an employee of the Respondent, and they could not get hold of him.
The Applicant gave conflicting evidence that he did not ask Mr McGrath to give evidence because he did not want to bother him after two years, but then said he asked Mr McGrath within the last two years to provide a statement, but Mr McGrath did not want to get involved.
The Applicant acknowledged he received a Show Cause Letter and had the opportunity to respond to it, which he did.[166]
[166] Exhibit A, HB1 p 51–52.
The Applicant’s issue before the Tribunal was not that he did not have a ‘voice’, but that he could not believe the Respondent accepted the findings by Ingham’s, and after speaking with him, the Respondent reached an adverse finding against him which resulted in the termination of his employment.
The evidence before the Tribunal demonstrated the Applicant was given appropriate opportunity to be heard, and regard was had to his explanation in the interview with Mr Old and Ms Compitiello, and no decision was made until after the Respondent received and considered the Applicant’s response to the Show Cause Letter.[167]
[167] Exhibit A, HB1 p 51–52.
Mr Old also said others were interviewed but the main interview relied on by the Respondent in coming to a decision, was the Applicant’s interview dated 16 October 2020. The Respondent also relied on the response to the Show Cause Letter, dated 9 November 2020, in reaching their decision.[168]
[168] Exhibit A, HB1 p 51–52.
Following the interview on 16 October 2020, and in response to matters raised by the Applicant, the Respondent tried to obtain the CCTV footage from Ingham’s, without success.
The Applicant’s Representative was critical of the Respondent for not interviewing the Complainant, but then referred to the Respondent’s interview of the Complainant four days after the termination of the Applicant’s employment. The Tribunal infers this was a criticism of the Respondent’s administrative process. Again, this submission demonstrates a failure to understand the investigation by Ingham’s, and the investigation and consideration of the Workers Compensation Claim, are two very separate matters.
The undisputed evidence was Ingham’s refused permission for the Respondent to be involved, or play a role in, the Ingham’s internal investigation, and refused to make the Complainant, the Complainant’s Supervisor or any of Ingham’s employees available to the Respondent to be interviewed. That was a matter outside of the Respondent’s control, and no criticism is properly made of the Respondent for not interviewing Ingham’s employees, including the Complainant, prior to the decision to terminate the Applicant’s employment.
The Applicant’s Workers Compensation Claim was made on 20 November 2020,[169] after the Ingham’s investigation was concluded. This was three days after the Applicant filed (on 17 November 2020) an ‘Incident Report’ claiming ‘stress’, due to the ongoing investigation related to the alleged sexual harassment at the Ingham’s Feed Mill;[170] and the day after the Applicant filed (on 19 November 2020) an ‘Application for an order to stop bullying’ to the Fair Work Commission, addressed to Ingham’s employee, the Complainant’s Supervisor, alleging he fabricated evidence of sexual harassment.[171]
[169] Exhibit A, HB1 p 65–77.
[170] Exhibit A, HB1 p 53–54.
[171] Exhibit A, HB1 p 57–64.
By virtue of the Workers Compensation Claim,[172] the Respondent commenced an investigation, which was a separate process, and unrelated to the sexual harassment investigation by Ingham’s. The Respondent instructed Quark to conduct the investigation into the Applicant’s Workers Compensation Claim, and it was the Quarks investigation that resulted in the Complainant, the Complainant’s Supervisor, and others being interviewed. Hence, there is no foundation for the Applicant’s criticism of the interview of the Complainant following the filing of the Workers Compensation Claim. The Respondent was refused permission to interview the Complainant in relation to the allegations of sexual harassment and misconduct at Ingham’s premises. It was the filing of the Workers Compensation Claim that enlivened the Respondent’s separate investigation, including the interview of the Complainant. The timing of the interview was not unreasonable administrative action in circumstances where Ingham’s had previously refused permission for the Respondent to interview its employees.[173]
[172] Exhibit A, HB1 p 65–77.
[173] Exhibit A, HB1 p 65–77.
The Applicant’s Representative also referred to the Quark interview of the Applicant’s Supervisor, who stated no issue was raised by him with regards to the Applicant about any alleged sexual harassment, and that if there was an issue he would expect to be advised. Further, he held the Applicant in high regard. Again, those comments do not impact upon, or relate to, the administrative action undertaken by the Respondent following the sexual harassment allegations and investigation. The Applicant’s Supervisor first heard about the allegation at, or about the time, he contacted the Applicant, on 30 September 2020, and it is what the Respondent did thereafter that is relevant.
However, before consideration is given to the administrative action of the Respondent as a consequence of being informed by Ingham’s of the allegations of sexual harassment and entering a restricted area, it is first necessary to consider whether the Applicant suffered an ‘injury’ within the meaning of the Act from his employment with the Respondent, and if he was incapacitated for work as a result of that ‘injury’.
Whether the Applicant suffered an ‘Injury’
Dr Ellen Liu–General Practitioner
The Applicant first consulted Dr Liu on 17 November 2020 in relation to an alleged ‘injury’ which he said occurred on 30 September 2020.[174] 17 November 2020 was the same day the Applicant launched the ‘Incident Report’ to which I refer above.[175] Dr Liu’s clinical diagnosis was ‘stress’, and she certified the Applicant unfit to undertake suitable duties for the period 17 November 2020 to 20 November 2020.[176]
[174] Exhibit A, HB1 p 90–91; Exhibit A, HB16 p 603.
[175] Exhibit A, HB1 p 53–54.
[176] Exhibit A, HB1 p 90–91.
On 20 November 2020, Dr Liu again, examined the Applicant, and reported a clinical diagnosis ‘as previous’ and certified the Applicant unfit to undertake suitable duties for the period 21 November 2020 to 27 November 2020.[177]
[177] Exhibit A, HB1 p 92–93; Exhibit A, HB16 p 601–602.
On 27 November 2020, Dr Liu again, examined the Applicant, and provided a similar medical certificate certifying the Applicant unfit to undertake suitable duties for the period 28 November 2020 to 11 December 2020.[178]
[178] Exhibit A, HB1 p 95; Exhibit A, HB16 p 600–601.
On 11 December 2020, Dr Liu again, examined the Applicant, and provided a similar medical certificate certifying him unfit to undertake suitable duties for the period 11 December 2020 to 18 December 2020.[179]
[179] Exhibit A, HB16 p 598.
On 18 December 2020, Dr Liu again, examined the Applicant, and provided a similar medical certificate certifying him unfit to undertake suitable duties for the period 19 December 2020 to 7 January 2021.[180]
[180] Exhibit A, HB16 p 597–598.
No further medical certificates were provided certifying the Applicant unfit for work, and Dr Liu did not provide a report or give evidence, but the Tribunal received medical notes from the medical clinic.
The Applicant said he stopped seeing Dr Liu because she was not helping him and the medication he was given provided no assistance.
A/Professor Mendelson raised concern about the medical certificates and diagnosis of Dr Liu, and in particular that ‘stress’ is not a medical diagnosis. A/Professor Mendelson said Dr Liu’s medical notes described manifestations of anxiousness which he opined was an emotional reaction to the allegations made, the suspension imposed, and the concerns about the security of the Applicant’s employment with the Respondent. However, the entry in the clinical notes, dated 11 December 2020, recorded the Applicant as ‘feeling better in general’.[181]
[181] Exhibit A, HB16 p 598.
The Applicant said following the termination of his employment, on 14 December 2020,[182] he tried to obtain work as a truck driver, including driving a road train, for which position he undertook a medical examination but heard nothing further. He applied for truck driver positions in the Murray Bridge area, but they all involved working with Ingham’s in respect of whom he had a worksite ban. He finally obtained employment in April 2021 working in a quarry.
[182] Exhibit A, HB1 p 105–106.
Hence, the Applicant’s pursuit of employment as a truck driver following the termination of his employment with the Respondent appears inconsistent with him being certified unfit for work from the date of his termination of employment (when his income ceased), to 7 January 2021, being the last date to which Dr Liu certified the Applicant unfit for work. At the very least, it would appear the Applicant was not incapacitated for work, post the last medical certificate.
Ms Natalie Bruyns–Clinical Psychologist
Ms Bruyns became qualified as a clinical psychologist on 2 February 2022. She provided a brief report that was a response to a series of questions asked of her by the Applicant. She did not give evidence. The Tribunal indicated it was prepared to issue a subpoena to Ms Bruyns if requested by the Applicant. The Applicant made a forensic decision not to issue a subpoena but rely solely on Ms Bruyns report and notes.
The Applicant consulted Ms Bruyns on 14 January 2022,[183] and thereafter for a total of four occasions before she provided a report, dated 30 March 2022,[184] for the purpose of this application. This was the first treatment by a mental health practitioner undertaken by the Applicant, despite a previous referral in early 2021.
[183] Exhibit A, HB13 p 511–513.
[184] Exhibit A, HB12 p 414–415.
Ms Bruyns reported the Applicant was referred for ‘Psychological Therapy’ in relation to treating symptoms of ‘anxiety’ and ‘depression’ following the termination of his employment. The Applicant reported being terminated from employment due to alleged sexual harassment. Nonetheless, the Applicant’s symptoms reported by Ms Bruyns appeared to be as a consequence of the termination of his employment including financial loss, housing issues, unemployment, self-esteem and ability to create relationships with others. The Applicant reported multiple job rejections before he found his current employment. The report is not directed specifically to his psychological condition at, or about the time, of the Workers Compensation Claim,[185] including an ‘injury’ resulting in incapacity for work.
[185] Exhibit A, HB1 p 65–77.
Ms Bruyns reported the Applicant met the criteria of Adjustment Disorder with Depressed Mood and reported signs and symptoms consistent with PTSD, but did not identify those signs and symptoms upon which she relied, to express that opinion.
However, a number of issues about the report and diagnosis were raised by A/Professor Mendelson to which we will refer.
A/Professor Mendelson opined there was no basis for a diagnosis of PTSD. He referred to the ‘International Clarification of Diseases’ and the “…delayed and/or protracted response to a stressful event or situation… of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone”.[186] There was no evidence the Applicant suffered such symptoms, and there were no such symptoms identified by Ms Bruyns. At best, the Applicant referred to the symptoms of Anhedonia, but A/Professor Mendelson explained, a range of symptoms needed to be taken into account in reaching a diagnosis of PTSD, and those symptoms were not suffered by the Applicant. Further, the Tribunal notes there is no evidence of an event of an exceptionally threatening or catastrophic nature which was likely to cause pervasive distress in almost anyone.
[186] Exhibit A, HB13 p 432.
A/Professor Mendelson observed there was a similarity in symptoms contained in the notes of Dr Liu, that were not referred to in the notes of Ms Bruyns but were contained in Ms Bruyns report. A/Professor Mendelson said he would expect to see references to the symptoms contained within Ms Bruyns clinical notes. This raises the question of what, if any, symptoms the Applicant reported to Ms Bruyns, and whether she relied on the notes of Dr Liu to identify any symptomology, rather than eliciting those symptoms from the Applicant.
A/Professor Mendelson also referred to the Applicant’s Representative being present during the consultation and providing a personal history to Ms Bruyns, which he said was not best practice, and not a practice he would use, other than in rare circumstances. He explained it gave rise to possible contamination.
Associate Professor George Mendelson–Consultant Psychiatrist
A/Professor Mendelson is a very experienced psychiatrist with over forty years in practice as a consultant psychiatrist, and from 1994 has been an Adjunct Clinical Associate Professor at Monash University. In addition to the telehealth consultation with the Applicant, he had before him and considered seventy-five pages of material, including the report of Ms Bruyns, together with her notes, and the medical notes of Dr Liu. He conducted a ‘Mental Status Examination’ and took a detailed history from the Applicant. The Applicant was alone for the purpose of the consultation.
In his report, A/Professor Mendelson reported “[The Applicant] did not acknowledge having had any accidents, injuries or operations, or illness apart from those common in childhood…in reply to my questions he told me that he had not experienced any psychological or emotional problems in the past and had not had any treatment for such difficulties.”
Having regard to the history of work-related incidents referred to by the Applicant in cross-examination, including being assaulted when working as a security guard, and the complaint of suffering from ‘failing memory like a fog’, and other mental health issues reported by Dr Frost in January 2008, we are not satisfied the Applicant’s failure to refer to those various conditions was due to mere oversite and we find that he was not frank and honest in reporting his medical history.
A/Professor Mendelson accepted the allegations of sexual harassment and its consequences for the Applicant, including the suspension and loss of employment, and the subsequent Workers Compensation Claim and consequential proceedings, and accepted they would have given rise to an understandable emotional reaction from the Applicant and would be upsetting and distressing to him, as it would with any person. But, having regard to the material before him, and the extensive examination and history taken from the Applicant, A/Professor Mendelson opined those reactions do not constitute any diagnosable mental disorder, such as Adjustment Disorder with Depressed Mood. Further, there was no basis whatsoever for the diagnosis of PTSD, as referred to by Ms Bruyns.
In regard to Dr Liu’s consultation with the Applicant, on 17 November 2020,[187] following the Applicant’s suspension from work, on 30 September 2020, A/Professor Mendelson said the manifestation of anxiousness, at that time, was insomnia, for which the Applicant was prescribed medication and was referred to a psychologist. A/Professor Mendelson also referred to Dr Liu’s entry in her notes, dated 11 December 2020, in which the Applicant described ‘feeling better in general’.[188] A/Professor Mendelson opined the Applicant did not develop any diagnosable mental disorder as a result of his employment with the Respondent, including at the time of the consultation with Dr Liu. The diagnosis of ‘stress’ is not a medical diagnosis but is a symptom only, and the mere presence of a symptom does not mean a person suffers a diagnosable mental disorder.
[187] Exhibit A, HB1 p 90–91.
[188] Exhibit A, HB16 p 598.
Having considered the medical evidence, the Tribunal prefers the evidence of A/Professor Mendelson to the evidence of Dr Liu and Ms Bruyns. A/Professor Mendelson noted the Applicant had no cognitive impairment, no word finding difficulties and no indication that he had any difficulties with memory or concentration. The Applicant was not mentally ill, and did not have any diagnosable psychiatric disorder, including at the time of the consultation with Dr Liu, or at all. A/Professor Mendelson gave thorough consideration to the available evidence. He accepted the Applicant had some reaction to the allegations of sexual harassment, and the events that followed, but the Applicant’s condition was not outside the boundaries of normal mental function and behaviour as discussed in Comcare v Mooi, and further the Applicant was at no time incapacitated for employment.
The fact the Applicant was not incapacitated for work is consistent with the Applicant making numerous job applications as a truck driver following termination of his employment, including driving a road train, and the absence of any medical certificate after that dated 18 December 2020.
The Tribunal agrees with the Respondent’s submission, namely, if the Tribunal is not satisfied the Applicant suffered from a ‘disease’ pursuant to s5B(1) of the Act, and therefore did not suffer an ‘injury’ in accordance with s 5A(1) of the Act, the Tribunal is not required to consider the administrative action of the Respondent in respect of the Applicant’s termination of employment, and whether it was performed in a reasonable manner.
CONCLUSION
The Tribunal is not satisfied the Applicant suffered from a ‘disease’ pursuant to s 5B(1) of the Act, and accordingly the Tribunal is not satisfied the Applicant suffered any ‘injury’ pursuant to s 5A(1) of the Act. Further, the Tribunal is not satisfied the Applicant, at any time, was incapacitated for employment with the Respondent.
DECISION
The decision under review is affirmed.
241. I certify that the preceding two-hundred and forty (240) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth and Member Dr L Stephan
..........[Sgnd]......................................................
Associate
Date of Decision: 31 March 2023 Date of Hearing: 14 & 15 June & 7 July 2022 Applicant’s Representative: Jodie De Jong Solicitor for the Respondent: Jack Marshall (McInnes Wilson Lawyers)
Counsel for the Respondent: Ms Ann Mahon (McInnes Wilson Lawyers)
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