Hatherall v TOGA Group

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hatherall v TOGA Group [2024] NSWPIC 707
APPLICANT:	Jodie Hatherall
RESPONDENT:	TOGA Group
MEMBER:	Jacqueline Snell
DATE OF DECISION:	17 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); the applicant claims weekly benefits and medical or related treatment expenses payable under the 1987 Act resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) with respect to performance appraisal, discipline and/or dismissal; the respondent does not dispute the applicant has no current work capacity resulting from the injury; the respondent does not dispute the applicant requires reasonably necessary medical or related treatment for her injury; Held – the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal, discipline and/or dismissal; the applicant has entitlement to weekly compensation and medical or related treatment expenses payable under the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal, discipline and or dismissal. 2. The parties agree any entitlement the applicant has to weekly compensation is to be paid at the maximum weekly compensation amount payable under s 34 of the Workers Compensation Act 1987. The parties agree the applicant has had no current capacity for work since 6 November 2023 resulting from the injury. The applicant has entitlement to weekly compensation payable under the Workers Compensation Act 1987 Act as a result of the injury. 3. The parties agree the applicant requires medical or related treatment for the injury. The applicant has entitlement to medical or related treatment expenses payable under s 60 of the Workers Compensation Act 1987 for the injury.

STATEMENT OF REASONS

BACKGROUND

Jodie Hatherall (Ms Hatherall) commenced employment with TOGA Group (TOGA) in September 2017 and at the time she sustained injury the subject of these proceedings, Ms Hatherall was employed in the role of Group General Manager for Risk and Compliance. Ms Hatherall’s employment with TOGA was terminated on 17 November 2023. Ms Hatherall is currently 35 years of age.
In these proceedings, Ms Hatherall alleges she sustained primary psychological injury arising out of or in the course of her employment with TOGA. She alleges a deemed date of injury of 6 November 2023. The circumstances of injury are described in the following terms:
“The applicant whilst in the course of her employment was bullied and harassed, sexually harassed and unreasonably terminated thereby causing aggravating, accelerating and precipitating injury described above.”
Ms Hatherall claims weekly compensation payable under the Workers Compensation Act 1987 (1987 Act). Ms Hatherall also claims medical or related treatment expenses payable under the 1987 Act.
TOGA Group has declined Ms Hatherall’s claim for compensation payable under the 1987 Act.

ISSUES FOR DETERMINATION

TOGA does not dispute Ms Hatherall sustained psychological injury in the course of her employment, with employment being the main contributing factor to injury.
TOGA does not dispute Ms Hatherall has had no current capacity for work as a result of her injury since 6 November 2023. The parties agree any entitlement Ms Hatherall may have to weekly compensation payable under the 1987 Act will be capped by the maximum weekly compensation amount payable under s 34 of the 1987 Act.
TOGA does not dispute Ms Hatherall requires medical or related treatment for her injury.

The parties agree the issue in dispute is whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of TOGA with respect to discipline, performance appraisal and/or dismissal.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings came before me for preliminary conference on 7 August 2024 and with Ms Hatherall’s claim unresolved, Ms Hatherall’s claim came before me for conciliation conference/arbitration hearing on 19 November 2024. Mr Beran of counsel appeared for Ms Hatherall and Mr Malouf of counsel appeared for TOGA. Ms Hatherall was present.
Following discussion with counsel I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 12 November 2024 and attached documents lodged by TOGA;
(d)    Application to Admit Late Documents and attached documents handed up to me by TOGA on 19 November 2023 and lodged with the Commission on 20 November 2024.
(e)    Application to Admit Late Documents and attached documents handed up to me by Ms Hatherall on 19 November 2023 and lodged with the Commission on 20 November 2024.
Mr Malouf also sought to admit into evidence digital copy invoice dated 10 August 2023 remitted by “The NeuroCircle Pty Ltd” which described itself as being in the business of “business coaching” with a Sydney address, with the amount of $300 payable for two hours of coaching to be paid by direct bank transfer to a National Australia Bank (NAB) bank account held in Ms Hatherall’s name or alternatively by Paypal transfer to the email address of jc hatherall. Mr Beran objected to the admission into evidence of the invoice referred.
Procedural Direction PIC provides guidance regarding the admission of late documents and provides that in determining an application to admit late documents I am to take a number of matters into consideration including:
(a)    the interests of justice;
(b)    the requirement of the workers compensation and the Commission rules;
(c)    the submissions of the parties, including the adequacy of the TOGA’s reasons for the delay in providing the late evidence sought to be admitted, and
(d)    any prejudice that would result from the granting or refusing leave to admit late evidence.
In considering whether or not late documents are to be admitted, the starting point is s 45 of the Personal Injury Act 2021 and r 66 and r 67 of the Personal Injury Rules 2021, and the requirement parties respectively lodge with the Application to Resolve a Dispute and Reply all documents on which they rely, with limitation of the filing and service of late documents. It is noted the Commission operates in a front-loaded system and the onus of establishing that it is in the interests of just to admit these statements referred is on the TOGA.[1]
[1] Nelson Bay Pest Services v Morrison [2007] NSWWCCPD 135.
In circumstances where (a) this invoice was only provided to Ms Hatherall’s legal team on the afternoon of 18 November 2024, being the day before the arbitration hearing, (b) the only explanation given for the delay in seeking to have the invoice admitted into evidence despite it having been referred to by Annabel Weiss in her statement dated 26 March 2024 and relied on by TOGA in disputing Ms Hatherall’s claim was oversight, and Ms Hatherall had no opportunity to respond to the invoice now sought to be admitted into evidence, I did not allow the admission of the late evidence sought to be admitted by TOGA as I did not consider it was in the interest of justice to do so.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statement of Ms Hatherall

Ms Hatherall relied on her statement dated 28 March 2024. Ms Hatherall said she has not previously been diagnosed with psychological injury.
Ms Hatherall said she arrived in Australia from the United Kingdom in July 2017 and commenced her employment with TOGA in September 2017. Ms Hatherall said while her initial role was that of Head of Safety, she had received “numerous promotions” with her most recent role having been that of Group General Manager for Risk and Compliance. Ms Hatherall explained she had been in this role for about 12 months “before they moved for dismissal in November 2023”. Ms Hatherall said that during her employment with TOGA “I have not been counselled prior for any performance issues or any breaches in company policies and/or procedures.” Ms Hatherall stated “I have not had any secondary employment.”
Ms Hatherall said while she had initially been supervised by Adrian Urquhart, Chief Financial Officer (CFO), Mr Urquhart left in or around May 2023 and she was subsequently supervised by his replacement, Alex Collinson.
Ms Hatherall said Mr Collinson made a number of personal, negative and inappropriate comments about her, with his personal comments becoming progressively worse between May and July 2023. Ms Hatherall said he particularly commented on her age and her being too young for her role. She said he made comment about her being unmarried and childless. She said Mr Collinson’s comments made her feel belittled, sexualised and targeted.
Ms Hatherall said Mr Collinson repeatedly asked her to go the pub to have drinks with him after work, but she would decline. Ms Hatherall said Mr Collinson’s repeated requests made her feel vulnerable. She said “I started to become anxious because of my continued rejections to him. I was worried he would start to target me and treat me poorly because of it. I began to feel very uncomfortable and anxious when I had to work in this environment.”
Ms Hatherall said she took leave from the end of September to the beginning of November 2023 because of her anxiety and stress. Ms Hatherall said that while she was on leave she received a performance bonus “for over performance.”
When Ms Hatherall returned to work on Monday, 6 November 2024. She said she attended the usual group meeting, which was chaired by Mr Collinson. Ms Hatherall said that following this meeting, she was called into a private meeting with Ms Young and Mr Collison. Ms Hatherall said, “this was surprising as I was not made aware that I was to have a formal meeting of sorts.”
Ms Hatherall relevantly explained:
“Alex told me to sit down and said that he was really disappointed that we need to have this conversation. He then said to me ‘it would be better for you if you resign now’ and handed me a settlement deed as a supposed voluntary resignation. I was completely shocked and taken aback. I felt sick to my stomach and felt very anxious as this was completely out of the blue. I asked why and asked what is going on.
Alex said that I was in breach of my employment contract. I asked where this had come from. Alex did not answer my question, and he continued to talk over me.
Alex said I should just sign the deed, and he would then say nice things about me. He said, ‘you can have five minutes to look over this, but you cannot leave the room.’ I was extremely upset and felt as though all of my concerns in the past about Alex came true.
Alex told me if I don’t sign it he would stand me down without pay. He left the room and kept walking back and forth the doorway which was making me anxious.
I then turned to Jodie from HR and asked what was going on and asked her where this had come from. Jodie said that Alex had gone to an external employment lawyer to get a settlement deed prepared and that she had not been aware where it all came from and that even the company lawyer didn’t know about it.
Jodie told me there had been no investigation done as there were no complaints, and she was very uncomfortable with this. She said that Alex is also her manager, and she was just under his instructions when I asked how he could get away with this. I felt broken.
Jodie told me that Alex had already cut off my email access, my calendar and all of my online server access. Jodie said she was told that once I sign the deed that she had to escort me off the premises and I was to leave everything behind including my office key. This made me feel shocked distraught and fearful as my future had been destroyed.
I looked at the deed and it seemed like I would be signing my rights away. I understood that there would be no notice given and everything would be effective immediately, so I said to Jodie I could not sign this now. I was very upset; it was just too much to take in and I still hadn’t been given any formal reason.
Jodie said I could have 24 hours, but as I still could not leave the room because I wasn’t able to talk to any of my team or anyone else about it, I would have to take it home. Jode said that Alex had told her once I sign the deed, I was to be escorted off site, but she said if I needed extra time, I would need to reply to them from my private email the very next day.
When Jodie walked me out of the building I had to walk past my team which was awful and made me feel humiliated, it was so uncomfortable, and I was not allowed to stop and speak to anyone.
The next day I responded by the due time and stated that I would not be signing the deed as it was a forced resignation, and I would be signing this under coercion. I explained that I didn’t know what I had done and the reasons they had given me at this point were vague and I did not agree that I was in breach of anything.
I got a medical certificate online, I had to use an online provider as I was too upset to go out. I received a medical certificate which I sent to HR. I said as a result of the prior day, I was not in a good place, I was emotionally distressed and anxious, I had been targeted and I noted that there were already issues of bullying and harassment that everyone including HR were aware of.
Over the weekend, things really took its toll on me, and I couldn’t eat or sleep. I went to see a GP and was referred to a psychologist.
I continue to see my psychologist, James Minson.
…
I have not worked since 6 November 2023.”

Worker’s injury claim form

25. Ms Hatherall’s signed claim form is dated 1 March 2024. Ms Hatherall described her psychological injury in terms of “reactive major depressive disorder, anxiety disorder and panic disorder.” Ms Hatherall said that at the time she was injured she was “attending a meeting at head office.” In response to questioning as to “what happened and how were you injured” Ms Hatherall wrote:

“Following numerous negative (bullying, intimidating, and harassing) interactions with my new line manager, I returned from annual leave on 6^th November 2023 and was called into a meeting at 9.30am. The line manager threatened that I must resign or be stood down without pay. I asked why and was told that I was in gross breach of my employment contract and informed that my access to work emails and servers, work laptop, and the office building, had been cut off. I was provided with a settlement deed which signed away my entitlements such as the right to a paid notice period, despite there being no prior discussion of any issues with my conduct or performance before this meeting. I was told that after signing the document I would be escorted out of the office and not be able to talk to anyone.”

26. In response to specific questions, Ms Hatherall said while she sustained injury on 6 November 2023, she first noticed her injury on 8 November 2023.

Factual investigation report

27. AB Investigations prepared a report dated 2 April 2024. The attachments include a number of documents referred below and Ms Hatherall’s leave history which confirms she took a mixture of study leave and annual leave during the months of September and October 2023, returning to work the week commencing 6 November 2023. Relevant to Ms Young’s statements, the investigator noted Ms Young ceased working with TOGA on 28 March 2024. The investigator identified another potential witness, being the Managing Director, who is described as “not a witness to the meeting but participated in the decision making to offer the claimant a deed and later move to dismissal.” There is no statement from the Managing Director in evidence.

Employment agreement

Under cover of letter dated 28 January 2022, Ms Hatherall was provided with copy of the employment agreement relevant to Ms Hatherall’s role as General Manager, Risk and Compliance. The employment agreement was signed on 31 January 2022.
Relevant to Ms Hatherall’s time at work with TOGA, the agreement required Ms Hatherall to apply her full time and attention to the performance of her duties during her work hours and to act in the interests of TOGA during her employment.
The standards expected of Ms Hatherall are set out in Schedule 2 of the agreement, which relevantly provided Ms Hatherall must not at any time:
“…engage, be involved or interested in any business or employment other than for the company except in respect of portfolio investments, family trusts and companies, and charitable and cultural activities without the prior written permission of the company”.
The agreement required Ms Hatherall to comply with the policies and procedures of TOGA.
The agreement provided for TOGA to conduct intermittent ongoing monitoring of communications made using its equipment, including personal communications.
The agreement relevantly provided for termination without notice if Ms Hatherall were to engage in conduct “justifying summary dismissal.”

Position description

The position description signed by Ms Hatherall on 31 January 2022 relevant to her role as General Manager, Risk and Compliance confirmed she was required to report to the CFO.

Remuneration correspondence

Under cover of letter dated 29 September 2023 from Mr Collinson in his capacity as CFO with TOGA, Ms Hatherall was thanked for her “efforts and contributions this year” and advised that following the annual performance and review process her salary package was being increased from $296,475 to $307,000, effective 1 October 2023. Ms Hatherall was also advised she had been awarded with a performance bonus of $75,000 for the financial year ending 30 June 2023, which would be paid within her October salary. The letter’s penultimate paragraph read:
“We sincerely appreciate your contribution and efforts this year and thank you for your continued commitment to the ongoing success of this business.”

Speaking notes

The speaking notes Mr Collinson reportedly followed during his meeting with Ms Hatherall and Ms Young on 6 November 2023 refer to a “TWO STEP OFFER”. The notes read:
“Jodie – this is a meeting I am sorry we must have and one that we are extremely disappointed in having to have.
The purpose of this meeting is to inform you of some serious concerns that we have with your conduct. Give your long tenure at TOGA, we wanted to have a frank discussion with you before commencing any more formal processes.
Our concerns center around your involvement in other businesses, specifically Brainstates Inc. Ltd, Nomadville Ltd and The NeuroCircle.
We’re aware that you have been promoting yourself publicly in multiple forums as the co-founder of at least one of these businesses.
We also have concerns that you have been blocking out large chunks of your workdays, during which you’ve been unavailable to attend TOGA meetings and your duties for TOGA.
Our great concern is that you’ve been spending a lot of time on these businesses, your doctoral studies and other non-TOGA related tasks during ordinary work hours, and you would also know that being engaged in other business activities without prior permission is prohibited for all TOGA employees. Jodie, you are a senior executive, held to an even higher standard given the level of trust that is required to hold those roles and the example you are expected to show.
It goes without saying that both Allan and I are extremely disappointed to have become aware of the above maters. In the 6 years that you have worked at TOGA we have provided so much financial and non-financial support to you and your continued education. We’ve:
a)Paid for your Harvard Tuition of nearly $75,000 over three years,
b)Given you study leave over and above leave provided to other team members.
c)Given you flexibility so you had the ability to further your studies.
I can’t express how deeply let down we feel given all that has been done to support you during your time with TOGA. Integrity and trust are really important here. We’ve gone out of our way to support you. We wish you would have discussed your other interests with us in an open and transparent manner so we could have seen what was best for all parties.
Jodie, we have two choices: we can stand you down now and proceed to commence a formal investigation into your conduct. If our concerns are substantiated, then your conduct would amount to a serious misconduct, which would result in the termination of your employment without notice.
You will be given a full opportunity to respond to our concerns as part of the investigation process.
However, Jodie our preference is to allow you to resign effective immediately and to leave gracefully without tarnishing your reputation.
This will allow you tell your colleagues that you have decided to pursue your other business interests and none of this discussion will be disclosed to anyone in the office. We have a Deed which we will require you to sign. The Deed makes it clear that this is to be kept strictly confidential. We are happy to give you as much time now to read this and sign, or if you prefer to take it home you can, to be returned by 5pm tomorrow.
Jodie, you can imagine how disappointed Allan and I are in what has transpired given the commitment that we have had to supporting your career development and ongoing education. Notwithstanding this we wish you success in your future endeavours and would like to put this behind us all, keep this confidential and allow you to move on with your career.
AT THIS POINT JODIE MAY WELL SIMPLY AGREE TO SIMPLY RESIGN. IF SHE ASKS WHETHER SHE HAS ANY ENTITLEMENTS THE RESPONSE IS THAT SHE HAS NO LEAVE ENTITLEMENTS OUTSTANDING GIVEN THE TIME SHE HAS TAKEN OFF.
IF JODIE AGREES THEN JODIE IS TO BE GIVEN THE DEED TO REVIEW ON HER OWN IN THE OFFICE AND SIGN OR TAKE HOME.
IF JODIE RESPONDS BY ARGUING/BEING ADVERSARIAL/SUGGESTS SHE WILL FIGHT THIS THEN THE FOLLOWING RESPONSE IS SUGGESTED:
Jodie, it’s obvious that you have acted in a very poor way, and I would ask you to consider if this is how you wish to leave TOGA and your colleagues. Do you really want the risk of a public finding of misconduct? We genuinely think allowing you to resign is in your best interests.
If it makes it easier for you, we will pay you one month’s salary. The alternative is to stand you down immediately and complete our investigation. Jodie, your response to these clear facts is very disappointing. And once again not in your interests.
IF JODIE THEN AGREES THEN JODIE IS TO BE GIVEN THE DEED TO REVIEW ON HER OWN IN THE OFFICE AND SIGN, OR TO TAKE HOME.
IF JODIE DOES NOT AGREE THEN, AS WE WOULD NOT OFFER ANYTHING MORE THAN ONE MONTH, JODIE IS TO BE STOOD DOWN IMMEDIATELY.”

Settlement Deed

The unsigned settlement deed between TOGA and Ms Hatherall relevantly provides for Ms Hatherall’s employment to cease on 6 November 2023, with cessation being characterised as a resignation with remuneration up to and including 6 November 2023.

Stand down letter

Under cover of letter dated 8 November 2023, TOGA referred to the meeting occurring between Ms Hatherall, Mr Collinson and Ms Young on 6 November 2023 during which Ms Hatherall was advised TOGA had reason to believe Ms Hatherall had “engaged in serious and willful misconduct”. Ms Hatherall was notified she was formally suspended from her employment with pay, pending a confidential investigation into the alleged conduct and that she would be contacted shortly with direction to participate in a confidential investigation.
Ms Hatherall was encouraged to contact Employee Assistance Program (EAP).

Termination of employment letter

Under cover of letter dated 13 November 2023, TOGA again referred to the meeting occurring on 6 November 2023 and expanded on the serious and wilful misconduct TOGA believed Ms Hatherall had engaged in. TOGA said this serious and wilful misconduct included “serious and persistent breaches of your employment agreement dated 28 January 2022”.
TOGA relevantly set out Ms Hatherall’s obligations under her contract and TOGA’s entitlement to terminate her employment without notice if she engaged in conduct justifying summary dismissal. TOGA also added “as a senior management employee of the Company you owe the Company fiduciary duties not to promote your personal interests above the interests of the Company.”
TOGA relevantly detailed four allegations against Ms Hatherall and cautioned “if substantiated, each of the allegations constitute deliberate, and potentially dishonest behaviour that is entirely inconsistent with the continuation of your employment.”
TOGA provided particulars of the allegations consequent on a fact finding investigation, which included a review of Ms Hatherall’s laptop data, computer system access and workplace activities between essentially May and September 2023 with conclusion:
“The matters set out above indicate that you have, for an extended period of time:
(a)been grossly neglecting your duties as General Manager, Risk and Compliance;
(b)engaged in dishonest conduct with respect to your availability for work; and
(c)prioritised your personal interests over your duties and responsibilities to the Company during working hours.”
TOGA requested Ms Hatherall respond to the allegations in writing and/or attending a meeting with Ms Young. Ms Hatherall was directed to respond in writing by midday on 15 November 2023 or by attending a meeting scheduled for 3pm on 15 November 2023. Ms Hatherall was invited to bring a support person with her to any meeting. Ms Hatherall was directed to notify Ms Young by 5pm that day as to the manner in which she proposed to respond to the allegations.
Ms Hatherall was again encouraged to contact EAP.

Ms Hatherall’s response to allegations made by TOGA

Ms Hatherall provided written response to the allegations made against her by TOGA.
Ms Hatherall denied she spent substantial amounts of time on personal activities, such as her university studies and her personal care, with explanation self-blocked diary entries specify “to do lists” and are not representative of “actual work completed.”
Ms Hatherall relevantly accepted she had a number of business interests, but she denied “performing substantial amounts of work” for those businesses.
Ms Hatherall accepted she did not disclose to TOGA she was a director of Brainstates but said neither her business Nomadville or her business Brainstates represented a conflict of interest to TOGA and were not ‘restricted activities’ which for which she was required to obtain the prior written permission of TOGA.
Ms Hatherall relevantly accepted she blocked out her work diary with reference to her working with Brainstates.
Ms Hatherall relevantly accepted she blocked out her work diary with reference to working on her PhD with Pepperdine University and attending zoom meetings with Barbara Rodriquez who was a doctoral student at Pepperdine University.
Ms Hatherall relevantly accepted she blocked out her work diary with reference to working with Nomadville.
Ms Hatherall denied she had not been present at the office without valid reason on many occasions in circumstances where her hybrid working pattern was consistent. Ms Hatherall also denied any need for her attend active constructive sites in circumstances where this particular work duty had been allocated to others.
Ms Hatherall accepted she failed to deliver a report following a two-day site visit to Adina Pentridge in a timely manner.
Ms Hatherall accepted she had blocked Mr Collinson from viewing her LinkedIn profile “which contains reference to your position or involvement with Brainstates Inc” and said:
“Alex Collinson was blocked on 4^th October 2023 due to his persistent visits to my page between August 2023 and October 2023. On 4^th August 2023 and again on
28^th September, my discomfort about this behaviour, particularly during my leave periods, was discussed with TOGA employees, complete with sharing of screenshots of the visits and I chose to block him as I viewed the behaviour as harassing and inappropriate. The allegation that this was done to conceal information about my out of hours interests in a dishonest manner is grossly accusatory.”
In response to conclusion by TOGA the matters raised indicated that for an extended period of time Ms Hathaway had (a) grossly neglected her duties as General Manager, Risk and Compliance; (b) engaged in dishonest conduct with respect to your availability for work, and (c) prioritised her personal interests over her duties and responsibilities TOGA, Ms Hatherall said, “Heavily disputed as per my responses above”.

Outcome of investigation into allegations of serious misconduct

Under cover of letter dated 17 November 2023 TOGA referred to the letter dated 13 November 2023 previously sent to Ms Hatherall and confirmed TOGA had investigated the identified allegations of serious misconduct in which she had engaged. TOGA reiterated the four allegations made against Ms Hatherall and confirmed that while TOGA had considered her response to the allegations, TOGA had formed the view each of the allegations had been made out and provided a summary of reasoning.
In essence, TOGA explained information obtained during the course of their investigation demonstrated that over time there was a lack of work-related email communications sent by Ms Hatherall, there was a lack of attendance in the office without any flexible work arrangement being approved by her manager, there was on-site non-attendance, and there was a failure to deliver work in a timely manner. Ms Hatherall was relevantly advised:
“The Company is satisfied that you have neglected to carry out the duties required of you as a senior management employee, given the compounding evidence of a serious lack of emails, attendance in the office and on-site, repeated and systematic calendar entries related to your businesses and personal appointments, your reported general unavailability and overall failure to deliver on work produce either at all or in a timely manner.
The Company is satisfied that you have been unable to provide a sufficient explanation justifying each of the above allegations or point to any meaningful work performed by you that would explain the serious deficiencies listed above.”
TOGA reminded Ms Hatherall the standards expected of her were expressly set out in Schedule 2 of her Employment Agreement. TOGA advised Ms Hatherall she had breached a number of the obligations required her (which were particularized), which TOGA considered constituted a serious and persistent breach of the provisions of her Employment Agreement “and dishonest behaviour that is entirely inconsistent with the continuation of your employment.” Ms Hatherall was advised TOGA “has determined to terminate your employment for serious misconduct, effective immediately.” Ms Hatherall was advised “as your employment has been terminated summarily, you will not be required to work out your notice period and you are not entitled to any payment in lieu of notice.”

Statement of Michael Gowing

Mr Gowing prepared a statement dated 6 August 2024. Mr Gowing is employed by TOGA as the General Manager for Financial Planning, Analysis and Strategy. Mr Gowing said he worked closely with Ms Hatherall. Mr Gowing described Ms Hatherall as a “very smart person” and while he described her work content as always being “wonderful”, he accepted she could “ruffle feathers from time to time” and there was complaint about her “stakeholder engagement style.”
Mr Gowing said he was approached by Mr Collinson who told him that he had attempted to discuss stakeholder engagement style and approach with Ms Hatherall. Mr Collison sought his assistance in discussing this with Ms Hatherall, which he did. Mr Gowing said with Ms Hatherall’s behaviour not changing Mr Collinson again sought his assistance. Mr Gowing reported Mr Collinson had been complimentary about Ms Hatherall in that he described her “as someone that if she could get the how right, she would just go from strength to strength.”
Mr Gowing said he understood from his discussions with Mr Collinson that Mr Collinson was trying both formally and informally to assist Ms Hatherall in the way she approached others, as Mr Collinson felt that it was her engagement style that was “holding her back.”
Mr Gowing recalled that “very early on” Ms Hatherall told him she did not “get along with” Mr Collinson. Mr Gowing said it seemed to be an interpersonal issue, which to him “did not sound like anything serious.”
Mr Gowing also recalled that in mid-2023 Ms Hatherall had come to him upset about discussions she had had with Mr Collinson, which Mr Gowing raised with Mr Collinson. Mr Gowing subsequently explained to Ms Hatherall that “she got the wrong end of the stick” and that Mr Collinson “was actually trying to help her and not hold her back or do anything else.” While Mr Gowing conceded he could not recall the substance of the issue Ms Hatherall had raised with him, he said “…I do remember in my mind I was thinking there was a massive miscommunication between them.”
Mr Gowing described Ms Hatherall’s demeanour in the workplace as “always happy and bubbly.” He said he never saw Mr Collinson behave or speak inappropriately to, or about, Ms Hatherall. He said “in fact, it was the exact opposite” in that Mr Collinson was looking for ways and for people to help him help her. Mr Gowing said he never heard any comments made about Ms Hatherall’s gender, appearance, marital status and the like.
Mr Gowing said he had briefly seen Ms Hatherall on 6 November 2023, on her return from holidays, during which she told him in response to his enquiry about her holiday that “it was great.”

Statements of Alex Collinson

Mr Collinson prepared two statements. His initial statement is dated 27 March 2024, and his subsequent statement is dated 7 August 2024. Mr Collinson is employed by TOGA as CFO. Mr Collinson confirmed Ms Hatherall reported directly to him. Mr Collinson confirmed that prior to the meeting on 6 November 2023 he was not aware of Ms Hatherall having been counselled for “work performance issues or breaches in company policies or procedures.” Mr Collinson also said Ms Hatherall had not previously complained about any issues to him and was not aware that she had complained about any issues to anyone else. Mr Collinson said that consequent on his discussions with TOGA’s General Counsel and TOGA’s Talent and Culture Business Partner, while there were no formal complaints relevant to Ms Hatherall, there were colleagues who found Ms Hatherall “a little bit difficult to connect or engage with.” Mr Collinson said he had no recollection of making any comments about Ms Hatherall’s age, gender or her appearance.
Mr Collinson said of his relationship with Ms Hatherall that it was “professional.” He said relevantly said:
“I would not describe our working relationship as being close… I would not say we got on well, but there were no huge conflicts either.”
Mr Collinson said during a meet and greet with Ms Hatherall in around January or February 2023 prior to him commencing with TOGA, Ms Hatherall “had a three or four page slide presentation about what she wanted in her role.”
Mr Collinson referred to a meeting he had attempted to organise with Ms Hatherall at 6.00pm on 29 August 2023, which Ms Hatherall did not accept the online invitation for and reportedly was not in office that particular day. Mr Collinson said:
“The purpose of this meeting would have been to talk in an informal setting about the Claimant’s career, where she was going and any challenges she was having, where she wanted to take her career, etc. It was intended as a coaching/mentoring type of meeting.”
Mr Collinson accepted that with no response by Ms Hatherall to the invitation, there was no attempt to chase her up to accept the invite and there was no attempt to reschedule the meeting.
Mr Collinson said in late August he provided the Managing Director with a paper which included a note of each person “in my area” including Ms Hatherall:
“Jodie Hatherall (Risk and Compliance) – high intellect. Adds a huge amount of value. I need to get Jodie to engage more across the business and not “do risk” to a few people which is how it is perceived. Adds a great deal of insight, thought and capability to the business. Invaluable to future insurance relationship (and cost). The one I probably have to spend a little more time with as a young leader – I’m thinking of finding a senior female mentor for Jodie.”
Relevant to the bonus Ms Hatherall received during late 2023, Ms Collinson said such bonus “was based largely off notes given to me by my predecessor as I had only been there for a short tenure before the performance tenure… this was discussed and agreed with the Managing Director.”
Mr Collinson said at the time Ms Hatherall went on extended leave in 2023 “everything was fine, there was no intention or plans for what happened on 6 November to happen.” However, while Mr Collinson said he did not harbor concerns about Ms Hatherall’s performance, “there were questions.” Mr Collinson identified these questions in terms of there being Ms Hatherall’s failure to date to implement a risk management framework for TOGA, her failure to complete risk assessment of the new hotel “Pentridge” in Melbourne, and her lack of attendance in the office. Mr Collinson also noted Ms Hatherall had failed to accept an invitation to allow Mr Collinson’s executive assistant access to her diary so as enable Mr Collinson’s executive assistant to assist with the management of her diary.
Mr Collinson said he had connected with many of TOGA’s employees on LinkedIn and towards the end of September 2023 he became aware of information on Ms Hatherall’s LinkedIn profile which described her as a founder and/or director of a business named “Brain States”, which took him by surprise as he was unaware of this business interest of Ms Hatherall. Mr Collinson said that during his debate about what to do regarding this information, when he attempted to revisit Ms Hatherall’s LinkedIn profile again in early October 2023, he discovered he had been blocked from the page. Mr Collison subsequently sought legal advice from TOGA’s external employment lawyer and requested his executive assistant access Ms Hatherall’s calendar/diary, which revealed blocked out periods that did not appear to be related to Ms Hatherall’s work duties. Mr Collinson said further research identified Ms Hatherall was a director of at least two companies.
Mr Collinson said he then spoke with the Managing Director regarding his concerns about Ms Hatherall. With realization Ms Hatherall had commenced blocking out “at last 2.5 days a week” in her diary at about the time Mr Collinson joined the business, a decision was made to meet with Ms Hatherall on 6 November 2023 and a script for the meeting was agreed on by Mr Collinson, the Managing Director and Ms Young.
Mr Collinson said following the weekly “work in progress” meeting on 6 November 2023 in which Ms Hatherall participated, Mr Collinson met with Ms Hatherall and Ms Young in a meeting room with frosted glass. Mr Collinson explained:
“We had the script which I consulted but basically, we explained that we had some concerns and had uncovered some things which we had looked into, and we could go to a formal investigation, but we wanted to give her the chance to walk away. It was not a long conversation. I would estimate it took around 15 minutes. There was some pushback from the claimant as she suggested her diary was not a reflection of what she does. I responded and said it was our perspective that we had looked at this and felt there was substance to what we had found and we do not throw accusations around without grounds. We said that we were giving her the choice so here is the Separation Deed and asked her to have a think about it. We let her know it was her choice which path to take, that she could sign this or she could let us know that she would prefer a formal investigation. She originally indicated that she would sign the Separation Deed.
We followed the script as these sorts of conversations are hard, and I was anxious myself going into the meeting. This was not something that I was looking forward to. The script included two scenarios which we predicted could potentially happen. During the meeting, the claimant said that she was minded to sign the Separation Deed, so we didn’t go into the other option. The claimant changed her mind later that morning.”
Mr Collinson said he could not recall if Ms Hatherall was told not to leave the meeting room. He said he was in the meeting room for about 15 minutes and then left and did not return. Mr Collinson confirmed his last contact with Ms Hatherall was on 6 November 2024, and that it was Ms Young who continued to interact with Ms Hatherall after he stepped out of the meeting room.
Mr Collinson confirmed Ms Hatherall was stood down with pay on 6 November 2023 and provided until close of business on 7 November 2023 to advise whether she was to resign or request formal investigation, with Ms Hatherall choosing the latter option and Ms Young handling the subsequent investigation.
Mr Collinson explained:
“The reason why we did not ask her to bring in a support person to the first meeting on 6 November 2023 was because we were giving her the choice to walk away without anyone else knowing what was going on. We wanted to give her that opportunity to walk away and protect her reputation.”
In his statement dated 7 August 2024 Mr Collinson confirmed he had provided his earlier statement. On this occasion Mr Collinson denied making inappropriate and negative comments about Ms Hatherall when he met with her. Mr Collinson denied making comment to Ms Hatherall about her youth and being the only “senior female” and he denied “looking at her body” when allegedly making such comments. Mr Collinson said it was Ms Hatherall who raised at her annual performance review on 3 August 2023 a perceived lack of “senior female leaders” with Mr Collinson disagreeing. Mr Collinson said there was nothing inappropriate occurring during Ms Hatherall’s performance review. Mr Collinson denied questioning Ms Hatherall’s qualifications and commenting on her age, her gender and her lack of technical ability. Mr Collinson denied repeatedly requesting Ms Hatherall meet up with him at the pub, although he accepted he had offered Ms Hatherall the opportunity to meet in an informal setting to discuss work-related issues.

Statements of Jodie Young

Ms Young prepared two statements. Her initial statement was prepared on 21 March 2024 but is unsigned. Her subsequent statement, which is signed, is dated 7 August 2024. Ms Collinson was previously employed by TOGA as People and Culture Business Partner.

In her initial unsigned statement Ms Young said Ms Hatherall had not made her aware of any comments she felt were inappropriate, although she did recall Ms Hatherall alluded to her in or about August 2023 Mr Collinson had referred to Ms Hatherall being young to be in a general manager role and being female in a “very male dominated business”. Ms Young also recalled Ms Hatherall mentioning to her Mr Collinson had invited Ms Hatherall “to go the pub for a drink and talk about work stuff”. Ms Young noted “generally all the commentary from her about Alex was negative or sarcastic, but nothing came across as a genuine concern and never a complaint.”
Ms Young said she had had a conversation with Mr Collinson’s predecessor, Mr Urquhart, about the amount of study leave taken by Ms Hatherall, which Ms Young said “we needed to tighten up”. Ms Hatherall said of Ms Hatherall “TOGA had been very supportive about her education and ambitions which were outside of work and not related to our business or her role at TOGA.” Ms Young said Ms Hatherall had spoken with her about not staying with TOGA in the longer term as “she would be setting up a business as at some point that was the space she aimed to move into.”
While Ms Young said she was not aware of any “prior issues” between Ms Hatherall and Mr Collinson, she said Mr Collinson approached her towards the end of September 2023 with his concerns regarding Ms Hatherall being a director of another company, which he had identified on her LinkedIn profile. Mr Collinson subsequently spoke with both external lawyers and James Simpson, the inhouse employment lawyer, regarding his concerns. Ms Young agreed Ms Hatherall being director of another company of which TOGA was not aware was concerning and following a request from Mr Collinson, following investigation, Ms Young unearthed two more business interests of Ms Hatherall.
Ms Young was aware of Mr Collinson’s investigations into Ms Hatherall’s work diary/calendar and email output. Ms Young was also aware the Managing Director knew of Mr Collinson’s concerns and investigation, and similarly harboured concern.
Ms Young said she knew about the meeting proposed for 6 November 2023 about a week before it occurred and said, “a script was prepared by the employment lawyer, Allan and Alex, which covered the approach we were going to take at the meeting.” Ms Young described the meeting occurring on 6 November 2023 and confirmed Mr Collinson read the script “word for word” during which time Ms Hatherall was silent. Ms Young said Ms Hatherall then asserted she spent little time on her businesses during the blocked out times in her diary/calendar. When Mr Collinson gave Ms Hatherall the settlement deed for review, Ms Hatherall indicated she would like to time to read it over. Ms Young said when Ms Collinson left the room, in light of her good relationship with Ms Hatherall, she told Ms Hatherall that “it was difficult for me” and “I was sorry this was happening.” While Ms Young said she too stepped out of the room to give Ms Hatherall “some time”, she returned shortly after as Mr Firth had gone into the room to speak with Ms Hatherall, which concerned her. Ms Young described Ms Hatherall subsequently cleaning her laptop with the assistance of IT. Ms Young also described Ms Hatherall then gathering her things from her desk and walking with Mr Firth towards her where she was stationed at the entrance of the car park. Ms Young said she checked in with Ms Hatherall’s wellbeing at that point with Ms Hatherall indicating “she was fine.”
Ms Young explained why Ms Hatherall was not invited to bring a support person with her to the meeting on 6 November 2023:
“The claimant was not asked to bring a support person on 6 November 2023 because we wanted to give her the opportunity to resign and because of that we felt that the conduct was alarming and we did not want to share that information if it was not necessary and I would assume if there was a support person present, this would have been a colleague and we did not want to damage her reputation. We were mindful around confidentiality and not involving other team members. On a side note, the claimant is a very smart, very confident person. This was not a considered factor, but we did want to factor in that if she chose to resign, she would have wanted to keep this confidential.”
Ms Young said she communicated with Ms Hatherall later that same day and again the following day. Ms Young said Ms Hatherall advised the Managing Director she was not prepared to sign the settlement deed. Not long that, Ms Hatherall confirmed with Ms Young that in light of her not signing the settlement deed, Ms Hatherall “could only see three options moving forward, the first being a mutually agreed severance package, the second was for the business to offer her a redundancy and lastly that TOGA initiate a full investigation.” Ms Young said, “we went with her third option” and on 8 November 2023 Ms Young emailed Ms Hatherall a stand down letter. Ms Hatherall responded the same evening with a medical certificate in which she was certified totally incapacitated for work until 10 November 2023.
Ms Young said during the investigation process she interviewed her two direct reports, Alex Firth and Paul Coniglio, both of whom were supportive of Ms Hatherall. Ms Young said she also interviewed Ms Hatherall’s peers and other senior stakeholders, with the feedback she received from other stakeholders “was that the claimant was not available, not present and work she committed to doing was not done.” Ms Young said she completed 8-10 interviews in total. Ms Young said Ms Hatherall was sent “an allegations letter on 13 November 2023” with a request for response in writing, by meeting or a combination of both.
Ms Young said Ms Hatherall replied the same day with a further medical certificate, which certified her totally incapacitated for work between 13 and 15 November 2023, and advice she would respond “when she was well enough to do so”. Ms Young said Ms Hatherall asked for particular information pertinent to the allegations, to which Ms Young responded the following day, with note that if Ms Hatherall was unable to respond to the allegations within the required time frame she would request Ms Hatherall’s authority to speak with her general practitioner “on any further reasonable adjustments that can be made to enable us to promptly conclude this process”.
Ms Young referred to Ms Hatherall responding to the allegations on 15 November 2023, which Ms Young said she shared with Mr Collinson and Mr Simpson, and which Ms Young said they all considered that same day. Ms Young said:
“Her feedback was heavily considered however we all formed the opinion, and we all felt strongly that the responses to the allegations did not omit the circumstances, and we strongly felt that her actions were not appropriate, there was misconduct, she breached her contract, and it was evident that she had done the wrong thing.”
Ms Young confirmed Ms Hatherall was sent “a findings and final outcome letter” on 21 November 2023 in which she was advised TOGA was of the view the allegations were substantiated and addressed her termination. Ms Young said, “after the findings and outcome letter, that was kind of it.”
Ms Young confirmed “all steps were taken in accordance with TOGA’s policies and procedures,” “the claimant’s investigation was conducted in a fair and reasonable manner,” and “there was no reason for me to be concerned about the actions taken by TOGA towards the claimant.”
In her signed statement dated 7 August 2024 Ms Young confirmed she had previously provided a statement on 21 March 2024 and was now requested to provide additional information. On this occasion Ms Young said of Ms Hatherall:
“At times she did make comments to me about Alex. She found him abrupt and over confident, she was frustrated that he refused to discuss her salary, as she felt she should have been paid a higher salary, and she was annoyed that he wanted details about her work and asked a lot of questions. I felt like this was perhaps the first time the claimant had a leader who was direct in questioning what she was working on and why, what her team were working on, the timeframes on deliverables, what the priorities were for her team now and in the future, and where she was working from.
…
I do recall the claimant telling me Alex had mentioned she was young to be in a general manger position. He pointed out she was a female working in a very male dominated business. I sensed the claimant took this personally, however I believe Alex was driven by wanting to improve communication between the claimant and certain stakeholders, who were in fact male, given their current communication styles seemed to be clashing. When she spoke to me about this, it did not seem like anything said was inappropriate.”
Ms Young said she and Ms Hatherall had on several occasions had brief conversations about Mr Collinson’s leadership style with Ms Young being “open in sharing with the claimant that she found Alex to be very direct, opinionated and unempathetic, however not inappropriate.” Ms Young denied she told Ms Hatherall she had “issues with Alex.”
Relevant to the meeting occurring on 6 November 2023, Ms Young said Mr Collison had read from a script and spoke to the fact Ms Hatherall was “the founder and director of several other business” that she had not disclosed to TOGA, and which meant she was in breach of her employment contract. Ms Young confirmed the deed provided to Ms Young had been prepared by “our employment lawyer” which is standard practice.
Ms Young denied Mr Collinson said to Ms Hatherall “it would be better for you to resign now”, that if she signed the deed “he would say nice things about her”, that if she did not sign the deed she would be stood down with no pay, that she could only have five minutes to look at the deed, or that she could not leave the room. Ms Young did not recall Ms Hatherall asking a lot of questions of Mr Collinson and said, “I certainly do not recall Alex not answering the claimant’s questions or speaking over the top of her.” Ms Young denied having told Ms Hatherall there had been no investigation or complaints made about her. Ms Young said she did not recall advising Ms Hatherall Mr Collinson “had already cut off her email, calendar and online access.”
Ms Young confirmed Mr Collinson left the meeting and went to another room where she joined him for a short while before he went back to his office, and she returned to the room to be with Ms Hatherall.

Statement of Alex Firth

Mr Firth prepared a statement dated 26 March 2024. Mr Firth is employed by TOGA as the Group Work Health Safety and Environment Manager and reported to Ms Hatherall. Mr Firth explained he and Ms Hatherall “interacted multiple times on a daily basis, this would include face to face, emails, Teams, messages or phone calls.” Mr Firth said of Ms Hatherall:
“There were no attendance issues that I noticed, and none that I was aware of with anyone else. Both of us worked a standard 9.00am to 5.00pm working hours arrangement but we also did a lot of work outside of business hours. Work was carried out both in the office and remotely and no issues were ever raised about this. I never had an issue getting hold of the claimant, sometimes, as with anyone, they would be busy and would not answer a phone call on occasion, but they always called back or followed up soon after. If I ever had an issue or needed feedback or assistance with work, then she was always happy to help you or if she couldn’t make time immediately due to other work commitments then she would find a time that was suitable or utilise our team to assist.”
Mr Firth knew of Ms Hatherall’s period of extended leave in late 2023, and said:
“She and I communicated back and forth whilst she was on leave as she wanted to keep on top of work issues and I was keeping her up to date on how some of our new employees were tracking, she wanted to know how they were going and if there was anything they needed. I was also keeping her updated of any current incidents, issues, and plans for when she returned as there was a lot of new actions that we were planning to work on, especially in the facilities management system and construction safety spaces.”
Mr Firth described Ms Hatherall as great to work with and went on to say, “she is very experienced and one of the best people I have ever worked with in my career.”
Mr Firth knew of Ms Hatherall’s weekly meetings and her catch-up meetings from time to time with Mr Collinson. Mr Firth said on several occasions Ms Hatherall would come back from her meetings with Mr Collinson “frustrated and upset.” Mr Firth said Ms Hatherall had said to him “there were times she felt like she had been put down, dismissed and discriminated against.” Mr Firth said Ms Hatherall had raised concerns with him Mr Collinson “wouldn’t listen to her and seemed to just cut her off and ignore her.” Mr Firth said he worked very closely with Ms Hatherall and on occasion when they had worked on a task together which she would present at a meeting he would “see her come back deflated where she would instantly say, ‘Nope, didn’t even want to look at it’”. Mr Firth described “a definite reluctance to interact or engage with her from her direct manager.”
While Mr Firth said Ms Hatherall was also annoyed by Mr Collinson’s comments to her that other managers “felt she was difficult,” Mr Firth recognised that a couple of the managers “certainly made doing her job hard” and one had complained about her not communicating. Mr Firth accepted he had not heard any adverse comments being made to Ms Hatherall by Mr Collinson or other managers, but said:
“On one occasion, she told me about a meeting she had attended which included Alex Collinson and a few other male senior managers. During the meeting they made comments about the way she looked and about her figure. They used some hand gestures to outline the curves of her female silhouette or body shape as well as making a noise that was demoralising. This was done in front of a group of male managers at the end of the meeting, and I would estimate this was in or around June or July 2023 potentially, before she went on leave last year.”
Mr Firth referred to Ms Hatherall’s LinkedIn profile and said he was “across the contents” of her page. He said of Ms Hatherall’s page:
“There was nothing which raised any concerns with me, including her other business interests. I know that our previous CFO never had any issues with this either as the Claimant was very open in terms of her education, her PhD, and what she wanted to achieve. She was open about her business ventures and what she was a part of overseas, so it was never a secret or an issue. She did not try to keep anything secretive or away from TOGA. In fact, she enjoyed talking to people about it and was happy to engage in conversations about them.”
Mr Firth said Ms Hatherall mentioned to him Mr Collinson was visiting her LinkedIn page “quite a lot,” which he said, “she did not like, and it gave her the feeling like she was being spied on and it made her very uncomfortable as to why he was doing this.” Ms Hatherall ultimately blocked Ms Collinson’s access to her page because of her unease.
Mr Firth confirmed Ms Hatherall made him aware that she “felt bullied and targeted by other staff members prior to November 2023.”
Mr Firth recalled on 6 November 2023 after Ms Hatherall’s meeting with Mr Collinson, when he spoke with her in the meeting room, Ms Hatherall appeared “very upset and very shocked”. He said of Ms Hatherall’s subsequent escorting from the building:
“It was very upsetting see someone who had worked tirelessly for the company for 6 years treated this way and I could only imagine how badly that would have affected Jodie on top of everything else she had been experiencing from her manager over the past year.”

Statement of Ms Weiss

As noted, Ms Weiss provided a statement dated 27 March 2024. Ms Weiss is employed by TOGA as Group General Counsel. Ms Weiss said she and Ms Hatherall “were friendly.” Ms Weiss accepted from comment made to her by Ms Hatherall at a time prior to the meeting occurring on 6 November 2023 there was “personality clash” between Mr Collinson and Ms Hatherall. Ms Weiss said of Ms Hatherall she was not aware of “any prior work performance issues or breaches in company policy and procedure prior to the events that took place surrounding 6 November 2023”, save for a general dissatisfaction with the tardiness in Ms Hatherall submitting a risk assessment report, which Ms Hatherall had told her about herself.
Ms Weiss said Ms Hatherall did not ever mention to her Mr Collinson had made comment about Ms Hatherall’s appearance. However, she said:
“What she did say to me was that they had a conversation around her circumstances where they had been discussing her remuneration. The claimant had been always telling that she was more than $100,000 a year under paid for her role if it was to be benchmarked. She had spoken to me about this and said that she had spoken to Alex about increasing her salary. What she described to me did not set off any alarm bells, but she said something along the lines that Alex said it’s not like she had a mortgage or a family to support and that she was already very well paid, so it would be hard to get this across the line. Nothing set alarms bells off in my mind about discrimination, it was just Alex explaining that it would be a hard sell to get her another increase in salary.”
Ms Weiss recalled Ms Hatherall mentioning to her Mr Collinson “wanted to have a beer at the pub” with Ms Hatherall making comment along the lines “Nah I won’t be doing that.” Ms Weiss said this comment did not “set off alarm bells.” Ms Weiss said:
“I believe Alex Collinson was trying to develop a working relationship with the claimant and build some sort of rapport. He did this with all his direct reports as he was new to the business and in my experience, there was nothing sinister that I saw or was aware of. At worst it was an awkward attempt from Alex at building rapport with the claimant.”
Ms Weiss said she was told when she arrived at work on 6 November 2023 that Ms Hatherall was “in a disciplinary meeting” with Mr Collinson. On enquiry later that morning, Ms Weiss was told by Mr Firth what had occurred. Ms Weiss said she was shocked. Ms Weiss said she spoke with Ms Hatherall on two occasions after Ms Hatherall’s meeting with Mr Collinson on 6 November 2023. She said Ms Hatherall telephoned her that same evening. Ms Weiss said:
“She gave me a rundown of her version of the events that occurred on 6 November 2023 and she told me they had given her a deed to sign.”
Ms Weiss recalled Ms Hatherall laughing because Mr Collinson “read from a script which she could tell had been written by a lawyer and she said she knew which employment lawyer would have written it.”
Ms Weiss said when she spoke again with Ms Hatherall, she thought the next day or the day after, Ms Hatherall told her she had sought legal advice “and that she was going to fight this.” Ms Weiss said “she said words to the effect of, “Just so you know I’m going to say that I had made a complaint to you about Alex before, so you should tell Allan I am going to say that.” Ms Weiss said of this particular conversation with Ms Hatherall “it sounded like she was threatening me or trying to manipulate me.”
Ms Weiss confirmed she subsequently spoke Mr Collinson about what had occurred on 6 November 2023, and she also confirmed it was usual for TOGA to engage an external law firm “when dealing with sensitive HR matters like this one as well as when there are investigations or upcoming terminations.”
Ms Weiss said the person who replaced Ms Hatherall “came across an invoice from one of the claimant’s businesses which would suggest she is invoicing for paid work. It was dated August 2023 and the invoice was found on the claimant’s TOGA laptop. I will supply a copy of this invoice for the purpose of this investigation.”

Supplementary factual investigation report and annexure

AB Investigations prepared a further factual investigation report dated 1 May 2024. The attachment is a statement of Michael Byrnes.

Statement of Michael Byrnes

Mr Byrnes prepared a statement dated 29 April 2024. Mr Byrnes is employed by TOGA as a foreman, having previously reported to Ms Hatherall in his capacity as safety advisor.
While Mr Byrnes confirmed Ms Hatherall had a lack of presence in her role compared to her predecessors, he said he was not privy to any concerning behaviours regarding Ms Hatherall and he was not aware of any difficulties associated with working with Ms Hatherall. In saying this Mr Byrnes said he had not actually seen Ms Byrnes at work since at least mid-2023 when his role had changed from being that of safety advisor.
Mr Byrnes said he had attended a gathering at a pub during the evening of 23 November 2023 at which Ms Hatherall and a number of ex-employees of TOGA were present. While Mr Byrnes described Ms Hatherall as appearing to be in reasonably good spirits, he was aware of a harbored frustration when she spoke of Mr Collinson, who she described as being out to get her and stalking her social media.

Online investigation report and annexure

Quantumcorp prepared an online investigation report dated 23 April 2024, which relevantly demonstrated:
(a)    Ms Hatherall has an Individual/Sole Trader Australian Business Number
(ABN 62 151 079 758) which has been active since 16 August 2023 with the business name ‘The NeuroCircle’.
(b)    Ms Hatherall has held roles as Director, Secretary and Shareholder since 16 January 2023 in a UK based company ‘Brainstates Inc Ltd’. The website for the company describes Ms Hatherall as a ‘co-founder’ of the company. Four social media platforms were found to be associated with the company.
(c)    Ms Hatherall has held roles as Director, Secretary and Shareholder since 19 May 2023 in a UK based company ‘Nomadville Ltd’ which holds industry classifications for ‘hotels and similar accommodations’ and ‘other letting and operating of own or leased real estate’.

Financial records

While financial records of Ms Hatherall were not canvassed by counsel in submission I note on 21 August 2023 a credit of $300 is noted with particulars “Miss Jessica Caracog Tnc coaching”.

Treating medical evidence
Oak Park Medical Centre, Victoria

Dr Sakkera issued Ms Hatherall with a medical certificate on 8 November 2023 in which he wrote:
“This document is to declare that in my opinion Jodie Hatherall is unfit for work and should be allowed absence from work for the dates between 8/11/2023 and 10/11/2023”.
Dr Sakkera’s certificate was issued against a backdrop of Ms Hatherall seeking online assistance, with demonstrated interaction on 8 November 2023 at 6pm:
“… there is no risk of self-harm or depression. The anxiety is just being triggered by a very toxic work environment. I have a strong support network at home and have access to psychologists via counsel services that is helping me manage.”
…
“I can approve a medical certificate for 3 days. Please see your GP should you require longer. This way we ensure that you are being managed appropriately.”

Majors Bay Medical Centre

Ms Hatherall has come under the general medical care of Dr Sengupta who practises out of Majors Bay Medical Centre.
Ms Hatherall presented to Dr Sengupta just before 2pm on 13 November 2024 as a new patient. Dr Sengupta recorded in part:
“works in construction. Only female worker. Raised a harassment/bullying complaint against her manager with HR. have legal representation. Over the last week, things have become more uncomfortable at work, she was told by her lawyer that things may become uncomfortable, but it is starting to affect her. She is in a senior role and normally strong and together. Feeling anxious, teary ++, low in mood, not sleeping well. Needs a few days off work to get herself together.”
Dr Sengupta recorded “extensive counselling undertaken” and described Ms Hatherall as returning for MCHP as she does not have a regular general practitioner.
Dr Sengupta issued Ms Hatherall with a medical certificate on 13 November 2023 in which wrote of Ms Hatherall she “has an acute medical illness and will be unfit for work from 13/11/2023 to 15/11/2023 inclusive.”
On 17 November 2023 Dr Sengupta recorded in part:
“teary +++
She is still employed but has been stood down where she doesn’t have to go to work. She is not eating well, not sleeping well, work has stopped paying her even though they haven’t stopped her employment with them, stressed +=. Doesn’t want to burden her partner. needs help with strategies to calm down and get less anxious. During her consultation she was constantly getting emails from her work which made her shaky and noted to have hand tremor after that.”
That same day Dr Sengupta completed a GP Mental Health Treatment Plan in which he provided diagnosis of reactive anxiety and depression and adjustment disorder and referred Ms Hatherall for psychological therapy with review following six sessions. In the letter of referral dated the same day to Someone.health, Dr Sengupta relevantly wrote:
“Thank you for seeing Jodie Carla Hatherall … whom I consulted today, for psychological management of reactive anxiety and depression due to workplace events that started in May 2023. Mental health care plain in place for your consideration. No past history of any mental illness.”
When Ms Hatherall presented again on 1 February 2024 Dr Sengupta noted in part:
“very teary ++ consulting psychologist – has used 3 sessions so far. She is still feeling depressed and very stressed about financial situation as her employment with previous company was terminated after she complained of harassment to HR. she still hasn’t been paid. She spoke to iCare lawyers who suggested she makes a work cover claim. The harassment happened on 6/11/23 and she had a telehealth consult with a doctor as was upset and anxious after the event. She was issued a medical certificate for 3 days.
…
Extensive counselling undertaken … to return with more documentations/details of the day of the actual injury to have work cover initial certificate done.”
When Ms Hatherall presented on 23 February 2024 Dr Sengupta noted in part:
“ongoing depression and anxiety symptoms – consulting psychologist (telehealth)
… she has been working at the recent workplace for nearly 6 years.
There was a change in manager this year and she has been feeling harassed and intimidated by the new manager since May 23.
Jodie mentioned that he said that he felt she was too young to be in her current position, also he made comments about her appearance in passing but she brushed it off, she continued to work as usual.
On 6^th Nov, as per Jodie, the manager verbally threatened her and asked her to resign
She was upset and took sick leave then
On 17^th nov, she was dismissed from her role with no pay since.
She has been shaky, not sleeping, worried about the future and in financial stress since then
She is getting panic attacks, frequently and consulted the psychologist
As per psychologist, symptoms are severe…
Diagnosed with major depression and anxiety disorder with panic attacks.”

Someone.health

Ms Hatherall has come under the psychological care of James Minson, who practises out of someone.health. In a report dated 21 February 2024, Mr Minson confirmed he had reviewed Ms Hatherall by telehealth on two occasions (1 December 2023 and 5 February 2024). Mr Minson provided diagnosis of major depressive disorder, with anxious distress. Mr Minson considered that due to severity and persistence of Ms Hatherall’s presenting symptoms “recovery is not anticipated over the short term and a review is recommended in three months.”
Mr Minson relevantly wrote:
“Jodie described the experience of extremely severe distress related to the dismissal from her employment at the end of 2023, that has resulted in the onset of mental health symptoms. She reported financial stress, worry for the future, she has become fearful, withdrawn and isolated, and due to the experience of mental health symptoms, she feels unable to obtain or sustain alternate employment.”

Independent medical evidence
Dr Nagesh

Ms Hatherall was psychiatrically assessed by Dr Nagesh on 4 May 2024. Dr Nagesh is an independent medical examiner. Dr Nagesh provided a report dated 7 May 2024.
Dr Nagesh noted Ms Hatherall had not returned to any form of employment since she ceased working with TOGA in November 2023. Dr Nagesh noted Ms Hatherall had been employed with TOGA for some six years prior to her ceasing work in November 2023. Dr Nagesh described the history of injury:
“Ms Hatherall alleges that in May 2023 there was a change in line manager, a new CFO had started who from the very first day of his employment made comments about Ms Hatherall particularly about her body, made her feel sexualised. The comments continued on a day-to-day basis. In August 2023 Ms Hatherall alleged having a meeting with the CFO where comments were made about her not being married, not having children and why she needs a pay rise.
Ms Hatherall alleges that the CFO on multiple occasions invited her for drinks after work. Ms Hatherall alleged that she had been feeling anxious since May 2023 and because of that she was not coping, and she took extended leave to manage it. She reports having gone on leave on 28 September 2023 and returned from leave on 6 November 2023. When she returned from leave, she went into the office, attended the regular meeting with the CFO, the meeting finished and then the CFO asked for another meeting with her, and HR was present which made Ms Hatherall anxious. During the meeting she was told to resign or sign a Deed. Ms Hatherall asked as to why she needs to resign or sign this Deed and she was talked over, she was threatened and told that if she did not resign, she would be stood down without pay.
The CFO left the room with her alone with the HR person. He was pacing up and down outside. When she did speak to the HR, she did inform Ms Hatherall that she was there to escort her out of the building. Ms Hatherall alleged that she took the document, she had to walk out in front of her colleagues. She took the document home. Three weeks prior to the meeting she was paid a performance bonus. She felt the CFO was targeting her and it was purely personal. Her access was cut off. She could not contact her employer. She reports having emailed HR the next day and informed that she was not going to sign the Deed. She went to the doctor as she was not coping, and she obtained a medical certificate. She was further informed by her employer that she will be stood down and she will be investigated. She received a letter from the employer with disciplinary proceedings on 10 November 2023.
On 17 November 2023 she was dismissed from her employment.”
Dr Nagesh diagnosed Ms Hatherall with adjustment disorder and depressed and anxious mood. Dr Nagesh noted Ms Hatherall suffered no previous psychological injury. Dr Nagesh considered Ms Hatherall’s employment to be the main contributing factor to injury.
In response to specific questioning following his review of the investigative material made available to him, it is apparent Dr Nagesh formed the view the cause of Ms Hatherall’s psychological injury was notification she was considered to have engaged in serious misconduct and the presented option of resigning from her employment or being terminated from her employment as a consequence of this serious misconduct, actions by TOGA which Ms Hatherall perceived as bullying and harassment. Dr Nagesh said:
“… I am of the opinion the worker being the subject of serious misconduct, being notified of breaching the company’s policies and procedures and subsequently employment being terminated were the whole and predominant contributing factors for her alleged psychological injury which she perceived as being bullied and harassed.”
Dr Nagesh provided a further report dated 27 September 2024, which he said he prepared following his review of the further statements of Mr Collinson, Ms Young, the statement of Mr Gowing, the statement of Ms Hatherall, the report of Dr Napper referred below, and the clinical records of someone.health.
In response to specific questioning Dr Nagesh confirmed his previously expressed opinion regarding his diagnosis of Ms Hatherall’s psychological injury, causation of injury, capacity for work resulting from injury and her need for treatment for injury, in that Dr Nagesh provided opinion:
(a)    diagnosis is adjustment disorder with depressed and anxious mood due to Ms Hatherall’s perception about TOGA’s actions, which she perceived as being bullied and harassed;
(b)    Ms Hatherall has no pre-existing disability and there are no alternative causative factors;
(c)    the precise workplace events which led to Ms Hatherall’s psychological injury are:
“the worker being the subject of a serious misconduct, her being notified of breaching the company’s policies and procedures, and subsequent employment being terminated – these were the whole and predominant factors which led to her psychological injury, which the worker has perceived as being bullied and harassed.
…
… her psychological injury can be said to be wholly and/or predominantly the produce to her discipline, performance appraisal and dismissal;”
(d)    Ms Hatherall has a total incapacity for work resulting from the injury, and
(e)    Ms Hatherall requires medical and related treatment for her injury.

Dr Napper

Ms Hatherall was psychiatrically assessed by Dr Napper on 13 May 2024, which is just over a week after she was psychiatrically assessed by Dr Nagesh. Dr Napper is an independent medical examiner. Dr Napper provided a report dated 3 June 2024.
Dr Napper described Ms Hatherall as having been employed by TOGA since 2017 with her most recent role with TOGA being General Manager for Risk and Compliance, a role which she held for about 12 months before she was dismissed from TOGA on 17 November 2023.
Dr Napper reported:
“In May 2023 the previous CFO, Adrian Urquhart left and was replaced by a new CFO, Alex Collinson. Ms Hatherall said that in her first meeting with Mr Collinson, he made a number of personal, negative and inappropriate comments about her. He commented on her age, her appearance, her body and qualifications…
Ms Hatherall said that the personal comments about her became progressively worse between May and July 2023. She said that during weekly meetings with Mr Collinson he would question her qualifications. Ms Hatherall said, ‘he would say that I didn’t know what I was talking about/that other people (never mentioned) had issues with my age and gender.’ Ms Hatherall said that these comments made her feel belittled and humiliated, and that she did not feel that she belonged in the organization. Mr Hatherall said, ‘Mr Collinson would say that I did not have technical ability. These comments were made in front of other work colleagues.”
Ms Hatherall explained that since May 2023 her mood was changing, and she became more anxious, withdrawn and depressed. Ms Hatherall said in July 2023 she met with Mr Collinson for performance review. She provided comment “all her previous performance reviews since 2017 had gone well”. Ms Hatherall said of this particular performance review Mr Collinson made criticism about her work performance with reasoning. She explained:
“The meeting was meant to go for 30 minutes but went for 2 hours. She said that the meeting was a constant barrage of personal and negative comments that were not substantiated. Some of the comments were ‘I don’t understand why you need more money, you are young, you don’t have a mortgage, you are single, you don’t have children’.”
Ms Hatherall said Mr Collinson offered to help her “if they met up at the local pub.” Ms Hatherall said Mr Collinson’s repeated requests for her to go with him to the pub made her feel very anxious and distressed about going to work. Ms Hatherall said on Sunday nights she “got palpitations” due to her increased levels of anxiety. Ms Hatherall said she complained to “HR and the company lawyer”, both of who said they “were also having issues with Mr Collinson.”
Ms Hatherall said she took leave “because of her anxiety and stress levels” and explained “she wanted to take time to work out what to do regarding her job.” Dr Napper reported:
“Ms Hatherall returned to work on 6 November 2024. There was initially a group meeting, which was chaired by Mr Collinson. After the meeting Mr Collinson asked her to come into a separate room. The HR manager, Jodie young, also accompanied them. Mr Collinson then told Ms Hatherall ‘it would be better if you resign now.’ He handed Ms Hatherall a settlement deed which he had a lawyer draw up. Ms Hatherall was extremely shocked, distressed and anxious. Mr Collinson said that she was in breach of her employment contract but did not provide any supportive evidence. Mr Collinson did not answer any questions from Ms Hatherall and continued to talk over her. He told her ‘you have 5 minutes to look at the contract, but you cannot leave the room.’ Mr Collinson left the room and paced up and down outside the room, while Ms Hatherall and the HR manager were in the room. The HR manager told Ms Hatherall that there had been no investigation into her performance and no complaints about her. She told Ms Hatherall that Mr Collinson had cut off her email access, her calendar and her online service access. Ms Hatherall looked at the deed and it seemed that she would be signing her rights away. She said she refused to sign the deed. The HR manager walked Ms Hatherall out of the building past the staff. This made her feel very uncomfortable and embarrassed. The following day Ms Hatherall responded by the due time stating that she would not sign the deed. She was very emotionally distressed and took time off work. She consulted with her GP, who referred her to psychologist, James Minson. She has not worked since 6 November 2023.”
Following mental state examination (during which Dr Napper noted Ms Hatherall’s affect as tearful and described her as being emotionally upset and crying throughout most of the interview) Dr Napper provided diagnosis of major depressive disorder which he said had been caused by Ms Hatherall’s employment with TOGA. Dr Napper said:
“In particular, I consider the way she was treated by CFO, Mr Collinson, to be the major cause of her psychological injury along with lack of support by the employer.”
Dr Napper considered Ms Hatherall suffered a total incapacity for work resulting from the injury and he considered she needs treatment.

Submissions

Mr Malouf and Mr Beran made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance afforded to me by counsel in this matter, which is not without complexity. As a recording of counsel’s submissions is available to the parties on request I have not reproduced them here.

Determination

Was Ms Hatherall’s injury wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of TOGA with respect to performance appraisal, discipline, and/or dismissal?

While it is not disputed Ms Hatherall sustained primary psychological injury in the course of her employment with her employment being the main contributing factor to the injury, TOGA has raised defence under s 11A(1) of the 1987 Act relevant to the injury. In essence TOGA argues Ms Hatherall has no entitlement to compensation payable under the 1987 Act as a result of her injury, as her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of TOGA with respect to performance appraisal, discipline and/or dismissal.
TOGA have the onus of establishing the defence[2].
[2] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 (Sinclair).
I am mindful that in Nguyen v Cosmopolitan Homes (NSW) Limited[3] the court stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the actual existence of that fact.”
[3] [2008] NSWCA 246.

It is also helpful to note in Malec v JC Hutton Pty Limited[4] the court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it no having occurred, the occurrence of the event is treated as certain, if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
[4] (1990) 169 CLR 638.
There are two aspects to the defence raised by TOGA under s 11A(1) of the 1987 Act .
Firstly, Ms Hatherall’s injury must be “wholly or predominantly caused” by TOGA’s actions or proposed actions regarding one of the categories referred to in s 11A(1) and in Ms Hatherall’s case TOGA rely on performance appraisal, discipline and/or dismissal.
In Kushwaha v Queanbeyan City Council[5] “discipline” is broadly defined as learning by instruction and the maintenance of that learning by training, exercise or repetition, with the narrow meaning of punishment or chastisement being secondary to this broader meaning. In Sinclair it was held that “discipline” extends to the entire process, including the course of an investigation. In Northern New South Wales Local Health Network v Heggie[6] the court confirmed a broad view is to be taken of the expression “action with respect to discipline” prescribed in s 11A of the 1987 Act and said, “it is capable of extending to the entire process involved in disciplinary action, including the course of an investigation”.
[5] [2002] NSWCC 25.
[6] [2013] NSWCA 225; 12 DDCR 95.
I think it is also important to note that in Dunn v Department of Education and Training[7] the court referred to an earlier unreported decision of Gerahty J in Irwin v Director General of Education[8] in which his Honour said that performance appraisal should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment”. Irwin had previously been cited with approval in Bottle v Wieland Consumables Pty Ltd.[9]
[7] [2000] NSWCC 11; (2000) 19 NSWCCR 475 (Dunn).
[8] NSWCC 14068/97, 18 June 1998 (Irwin).
[9] [1999] NSWCC 32; (1999) 19 NSWCCR 135.
The “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act was discussed in Hamad v Q Catering Limited[10] with indication medical evidence is required to determine the causation issue. In Smith v Roads and Traffic Authority of NSW[11] Snell ADP accepted “wholly” and “predominately” are different concepts and accepted the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Cement Ltd v Bates,[12] Ponnan v George Weston Foods Ltd[13] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.[14]
[10] [2017] NSWWCCPD 6.
[11] [2008] NSWWCCPD 130.
[12] (1994) 35 NSWLR 452.
[13] [2007] NSWWCCPD 92.
[14] [2008 NSWWCCPD 96.
Relevant to the issue of causation of psychological injury, particularly when considering psychological injury caused in circumstances of a worker’s perception of real events occurring at work, in Attorney General’s Department v K[15] Roche DP usefully summarised the principles to be applied at [52]:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President in Leigh Sheridan v Q-Comp [2009] QIC 12);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], and
(f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[15] [2010] NSWWCCPD 76.
Roche DP also said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment,’ and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’…”
It is important to remember too an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[16] Roche DP said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[16] [2013] NSWWCCPD 64.
Secondly, if it is established Ms Hatherall’s injury was “wholly or predominately” caused by TOGA’s actions taken or proposed to be taken regarding performance appraisal, discipline and/or dismissal, then TOGA is required to establish TOGA’s actions were “reasonable.” Defence available to TOGA under s 11A(1) of the 1987 Act does not operate as a defence in respect of all reasonable actions taken or proposed to be taken by TOGA but only operates where reasonable action was taken or proposed to be taken in respect of the specified matters of performance appraisal discipline and/or dismissal.
In considering the meaning of reasonableness of actions, in Irwin the court said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In considering the meaning of reasonableness of actions, there is clear authority the reasonableness is judged having regard to fairness appropriate in the circumstances of a particular matter, including what went before or after a particular action taken[17]. There is also clear authority an employer’s reasons for particular actions is not decisive[18] and it is not enough an employer followed its usual protocols relevant to particular actions if those protocols are not objectively reasonable.[19] This said, in Van Vliet v Landscape Enterprises Pty Ltd,[20] Philips P acknowledged “the reasonableness in s 11A(1) does not, with respect, require a counsel of perfection.”
[17] Melder v Ausbowl Pty Ltd [1997] NSWCCR 454; Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45; Burton v BiLo Pty Ltd [1998] NSWCC 13 and Sinclair.
[18] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 (Jeffrey).
[19] Jeffrey and Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139.
[20] [2022] NSWPICPD (Van Vliet).
In Northern New South Wales Local Health Network v Heggie[21] the court helpfully set out the following statements of principle regarding reasonableness at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[21] [2013] NSWCA 225; 12 DDCR 95.
Turning first to whether Ms Hatherall’s psychological injury was “wholly or predominantly” caused by actions taken or proposed to be taken by TOGA with respect to performance appraisal, discipline and/or dismissal.
As far as TOGA’s actions or proposed actions regarding the category of “performance appraisal” which is referred to in s 11A(1) is concerned, I do not consider there is medical evidence to support argument Ms Hatherall’s injury was wholly or predominantly caused by TOGA’s actions or proposed actions with respect to performance appraisal. Although Dr Nagesh provided opinion in response to specific questioning Ms Hatherall’s injury “can be said to be wholly and/or predominantly the produce to her discipline, performance appraisal and discipline” such opinion is provided in the context of Dr Nagesh saying of Ms Hatherall:
“…being the subject of serious misconduct, being notified of breaching company’s policies and procedures and subsequently employment being terminated were the whole and predominant contributing factors for her alleged psychological injury which she perceived as being bullied and harassed”.
In such circumstances I do not accept Ms Hatherall’s injury was wholly or predominantly caused by actions taken or proposed to be taken by TOGA with respect to performance appraisal, particularly in circumstances where Ms Hatherall was rewarded by TOGA in October 2023 with a bonus of $75,000 for her “contribution and efforts” during the year ending 30 June 2023, which is well after the “performance review” with Mr Collinson about which she complained to Dr Napper.
As far as TOGA’s actions or proposed actions regarding the categories “discipline” and/or “dismissal” which are referred to in s 11A(1) are concerned, I consider there is medical evidence to support argument Ms Hatherall’s injury was wholly or predominantly caused by TOGA’s actions or proposed actions with respect to “discipline” and/or “dismissal”.
At the time she sustained injury Ms Hatherall was working in the role of Group General Manager for Risk and Compliance with TOGA. The employment agreement entered into by Ms Hatherall on 31 January 2022 required her to apply her full time and attention to the performance of her duties during her work hours and to act in the interests of TOGA during her employment, with the standards required of her relevantly including she must not at any time “engage, be involved in any business or employment” other than TOGA save for “portfolio investments, family trusts and companies, charitable and cultural activities” without the prior written permission of TOGA.
While employed with TOGA Ms Hatherall engaged in a business trading as ‘The NeuroCircle’ and held the roles of Director, Secretary and Shareholder in two UK based companies, being Brainstates Inc Ltd and Nomadville Ltd, without obtaining the prior written permission of TOGA. Ms Hatherall’s employment contract also provided for the termination of her employment without notice if she engaged in conduct “justifying summary dismissal.”
While Ms Hatherall was initially supervised by Mr Urquhart, when Mr Urquhart ceased working with TOGA in or about May 2023, Ms Hatherall was subsequently supervised by Mr Collinson, who replaced Mr Urquhart. Ms Hatherall complained Mr Collinson made a number of personal, negative and inappropriate comments about her that made her feel belittled, sexualised and targeted, with his comments becoming progressively worse between May and July 2023. While Mr Collinson denied making any such comments, and Mr Gowing and Mr Firth, who both worked closely with Ms Hatherall, said they did not hear Mr Collinson make inappropriate comments to Ms Hatherall, they were aware Ms Hatherall’s relationship with Mr Collinson was problematic. Ms Weiss, who described her relationship with Ms Hatherall as “friendly” was also aware Ms Hatherall’s relationship with Mr Collinson problematic, as was Ms Young, who described her relationship with Ms Hatherall as “good”. It is evident then the working relationship that existed between Ms Hatherall and Mr Collinson was not without its difficulties.
Ms Hatherall explained she took leave from the end of September until the beginning of November 2023 because of the stress and anxiety she was experiencing as a result of the work environment she found herself in. The leave records relevant to Ms Hatherall’s taking of leave during this period demonstrate the leave she took was a mixture of study leave and annual leave. While I have no reason not to accept Ms Hatherall was experiencing stress and anxiety as a result of the work environment she found herself at the time she decided take this leave, Ms Hatherall did not seek medical assistance at any time during the period she said she was experiencing stress and anxiety as a result of her work environment.
Mr Collinson said towards the end of September 2023 he became aware of information on Ms Hatherall’s LinkedIn profile that demonstrated Ms Hatherall had a business interest in “Brain States”, being a business interest of which he was unaware. Mr Collinson said he was initially uncertain what to do about Ms Hatherall’s unauthorised business interest and when he attempted to revisit Ms Hatherall’s LinkedIn profile in early October 2023 in ponderance, he was blocked from visiting the site. Mr Collinson was sufficiently concerned about Ms Hatherall’s conduct he sought legal advice from TOGA’s external lawyer and with the assistance of Ms Young began an investigation into Ms Hatherall’s conduct, the results of which he discussed with the Managing Director, which resulted in the meeting on 6 November 2023 and the agreed script prepared in advance of the meeting.
When Ms Hatherall returned to work on Monday, 6 November 2023, after she had participated in the usual group meeting, Ms Hatherall was called into a private meeting with Mr Collison and Ms Young, being a meeting of which she had received no prior warning. Although Ms Hatherall said during the meeting she was told she was in breach of her employment contract, was handed a deed to sign which was relevant to her voluntary resignation, and was told by Mr Collinson “it would be better for you if you resign now”, Ms Young denied Mr Collinson used those words with both Ms Young and Mr Collinson saying Mr Collinson had followed the prepared script, which offered Ms Hatherall the chance of “walking away” rather than TOGA conducting a formal investigation into the concerns TOGA held. While Ms Hatherall said she was initially provided with only a short time to review the deed, this was also denied by Ms Young who said Ms Hatherall was provided with time alone to read over the deed. Mr Firth said when he went to see Ms Hatherall when she was alone in the meeting room, she appeared “very upset and shocked.” Ms Hatherall said that with her review of the deed demonstrating the deed had immediate effect, she was uncomfortable about signing the deed and Ms Young subsequently advised she could take deed home for review and advise TOGA of her decision by email the following day, 7 November 2023.
While Ms Hatherall said being walked out of the building after she left the meeting room was awful and embarrassing and Mr Firth said of Ms Hatherall’s leaving he “could only imagine how badly that would have affected Jodie on top of everything else she had been experiencing from her manager over the past year”, Ms Young said she had checked in with Ms Hatherall as to her wellbeing at the time she left and Ms Hatherall had indicated “she was fine”.
Ms Hatherall advised TOGA on Tuesday 7 November 2023 she would not sign the deed and under cover of letter dated 8 November 2023 from TOGA, Ms Hatherall was advised she was formally suspended without pay pending investigation into the alleged conduct. Ms Hatherall obtained a medical certificate on online and there is demonstrated interaction with Oak Park Medical Centre during the evening of Wednesday, 8 November 2023, in which Ms Hatherall reported she was suffering anxiety triggered by “a very toxic work environment” and was accessing psychological assistance through a counselling service. Dr Sakkera issued Ms Hatherall with a medical certificate for three days with request she consult with her general practitioner should she require certification for a longer period.
Ms Hatherall consulted with Dr Sengupta on Monday 13 November 2023, being the same day she was issued with the letter dated 13 November 2023 from TOGA (with the very unfortunate subject reference “Termination of Employment”) in which she was notified of the four allegations made against her and a requested response by 15 November 2023. Dr Sengupta recorded Ms Hatherall’s consultation with him during the early afternoon the same day that Ms Hatherall was a new patient who provided a history of her having complained to HR of harassment and bullying by her manager, with things having become more uncomfortable at work “over the last week.” Dr Sengupta described Ms Hatherall as “feeling anxious, teary ++, low in mood, not sleeping well.” Dr Sengupta issued Ms Hatherall with a medical certificate for three days and described Ms Hatherall as returning for the purposes of creating a Mental Health Care Plan (MHCP).
Ms Hatherall responded to the allegations made against her as requested and during late morning on Friday 17 November 2023, Ms Hatherall again consulted with Dr Sengupta. Dr Sengupta described Ms Hatherall as “teary +++” and requiring strategy to assist her in calming down and reducing her anxiety. Dr Sengupta created a MHCP and referred Ms Hatherall for psychological review. Dr Sengupta noted at that time Ms Hatherall remained in the employ of TOGA but had been “stood down” from work.
While this consultation by Ms Hatherall with Dr Sengupta is the same day she was issued with the letter dated 17 November 2023 (with the subject reference “outcome of investigation into allegations of serious misconduct”) in which she was advised following consideration of her responses, TOGA had formed the view Ms Hatherall’s failure to comply with a number of contractual obligations required of her under her employment contract amounted to serious misconduct resulting in termination of her employment with immediate effect, it is not apparent Ms Hatherall knew her employment had been terminated at the time she consulted with Dr Sengupta. However, it is of interest to note Dr Sengupta said of Ms Hatherall during her consultation with him that day “she was constantly getting emails from her work which made her shaky and noted to have hand tremor after that.”
Although Ms Hatherall did not return to consult again with Dr Sengupta until 1 February 2024, it is apparent from Dr Sengupta’s records Ms Hatherall had been consulting with a psychologist in the interim. On this occasion Dr Sengupta reported Ms Hatherall presented as “very teary +++” with a history of her employment having been terminated and her obtaining legal advice regarding possible entitlement under the workers compensation scheme. Dr Sengupta described the injurious event as occurring on 6 November 2023 with Ms Hatherall being “upset and anxious after the event” and seeking medical attention.

In his report dated 21 February 2024, Mr Minson confirmed Ms Hatherall had consulted with him on two occasions, with a history of experiencing “extremely severe distress” related to the termination of her employment with TOGA.
On review on 23 February 2024, while Dr Sengupta reported a history of Ms Hatherall having experienced a change in manager and “feeling harassed and intimidated by the new manager since May 23” he noted too Ms Hatherall had been asked by her manager to resign from her employment on 6 November 2023, which resulting in her being “upset” and seeking medical attention.
Following independent psychiatric assessment of Ms Hatherall on 4 May 2024, Dr Nagesh reported a history of Ms Hatherall’s difficult relationship with Mr Collinson since May 2023, the meeting occurring on 6 November 2023 and the subsequent disciplinary process which resulted in the termination of Ms Hatherall’s employment with TOGA. Dr Nagesh provided diagnosis of psychological injury, which he said in essence was wholly or predominantly caused by the disciplinary process to which Ms Hatherall was subjected by TOGA and the subsequent termination of her employment.
Following independent psychiatric assessment of Ms Hatherall on 13 May 2024, Dr Napper likewise reported a history of Ms Hatherall’s difficult relationship with Mr Collinson since May 2023, including reference to her performance review in July 2023, and the meeting occurring on 6 November 2023. However, of significance is that Dr Napper made no reference to the disciplinary process Ms Hatherall was subjected to by TOGA following her refusal to sign the deed or the subsequent termination of her employment. Like Dr Nagesh, Dr Napper provided diagnosis of psychological injury, but said the major cause of her injury was the way she was treated by Mr Collinson “along with the lack of support by the employer.”
Ms Hatherall confirmed she has not returned to work since 6 November 2023, being the day of her meeting with Mr Collinson and Ms Young, and in her worker’s injury claim form Ms Hatherall wrote that at that time she sustained injury she was “attending a meeting at head office” which she particularised as the meeting with Mr Collinson and Ms Young on 6 November 2023. Ms Hatherall also said while she sustained injury at that point in time, she only became aware of her injury on 8 November 2023, being the date she first sought online medical assistance.
While I accept Ms Hatherall’s work environment became problematic for her after Mr Collinson replaced Mr Urquhart in the role of CFO and Ms Hatherall’s manager, I am satisfied Ms Hatherall’s injury was wholly or predominantly caused by actions taken or proposed to be taken by or on behalf of TOGA with respect to “discipline” and/or “dismissal”, being opinion provided by Dr Nagesh in his capacity as independent medical examiner. While Ms Hatherall was unhappy working with Mr Collinson, it was not until 8 November 2023 that she initially sought online medical assistance from Dr Sakkera for her mental health, which was understandably deteriorating as a result of the meeting occurring on 6 November 2023. Ms Hatherall’s mental health understandably continued to deteriorate during the subsequent disciplinary process and dismissal process to which she was subjected by TOGA, which saw Ms Hatherall seeking medical assistance from Dr Sengupta on 13 and 17 November 2023, at which time Dr Sengupta was sufficiently concerned about Ms Hatherall’s mental health to refer her for psychological review. I prefer the opinion provided by Dr Nagesh to that provided by Dr Napper in circumstances where Dr Napper has failed to consider any of the events occurring after Ms Hatherall advised TOGA she would not sign the deed, which included the subsequent disciplinary investigation and dismissal to which she was subjected by TOGA.
As I have accepted Ms Hatherall’s injury was wholly or predominantly caused by action take or proposed to be taken by TOGA with respect to “discipline” and/or “dismissal,” TOGA is required to establish that TOGA’s actions taken or proposed to be taken with respect to “discipline” and/or “dismissal” were “reasonable.”
The circumstances surrounding Ms Hatherall’s injury are not without complication. While I am mindful of the rather difficult situation TOGA found itself in with Ms Hatherall no doubt engaged and involved in a number of business interests other than that of TOGA without prior written approval of TOGA, which TOGA determined was in breach of the employment contract she entered into on 31 January 2022, of particular concern to me is that despite what appears to have been careful planning on the part of TOGA for the meeting occurring on 6 November 2023 (in that both external and internal legal advice had been obtained with an agreed script prepared for the meeting following discussion involving the Managing Director and Ms Young) Ms Hatherall was provided with no prior notice of the meeting on 6 November 2023, which was scheduled for as soon as practicable on her first day back at work following an extended period of leave.
I do not think it “reasonable” for TOGA to have provided Ms Hatherall no prior notice of a meeting with Mr Collinson and Ms Young during which (a) she was advised she was in breach of her employment contract due to the outside business interests she had with TOGA’s added concern about the amount of work time she was spending on these outside businesses, (b) she was provided with two choices, one being to sign a previously prepared deed effecting her immediate resignation and the other being formal investigation while stood down pending the outcome, and (c) she was advised she was required to leave the premises in any event. I am of the view Ms Hatherall should have been provided with prior notice of the meeting so as to enable her to adequately prepare for a meeting which was to have a profound effect on Ms Hatherall’s employment with TOGA and which was clearly going to be a confronting experience for her.
I do not think it “reasonable” for TOGA to have denied Ms Hatherall the opportunity to bring a support person with her to a meeting which was to have a profound effect on Ms Hatherall’s employment with TOGA, either by way of immediate resignation or formal investigation while stood down pending the outcome, and which TOGA knew or ought to have known could cause Ms Hatherall some significant distress. While both Mr Collinson and Ms Young have said Ms Hatherall was not offered the opportunity to bring a support person with her to the meeting because TOGA was offering Ms Hatherall the opportunity to resign with the reasoning behind her resignation kept confidential, I do not accept this to be a valid explanation as to why TOGA did not afford Ms Hatherall the opportunity to bring a support person with her to a meeting which as I have said, was clearly going to be a confronting experience for her. If Ms Hatherall had been properly provided with prior notice of the meeting, her preparation for the meeting would have included consideration of whether or not she wished to share the information to be discussed in the proposed meeting with a support person.
I do not think it “reasonable” for TOGA to have said to Ms Hatherall during the meeting, (which is evidenced in the prepared script that Mr Collinson and Ms Young said was followed) that it was TOGA’s preference Ms Hatherall resign effective immediately “and to leave gracefully without tarnishing your reputation”, which suggests insinuation by TOGA that Ms Hatherall’s refusal to sign the deed with which she had been provided may lead to a damaging of Ms Hatherall’s professional reputation.
I do not think it “reasonable” for TOGA to have forwarded to Ms Hatherall the letter dated 13 November 2024 in which the allegations against her were particularised with requested response by 15 November 2024 with the subject reference “Termination of Employment”, which to my mind suggests TOGA had determined Ms Hatherall’s ongoing employment status regardless of the investigation process and any response she may make to the allegations against her.
Although I am mindful of the President’s comments in Van Vliet, in the circumstances of this particular matter I do not share Ms Young’s lack of concern about the actions taken by TOGA regarding the discipline process and dismissal process involving Ms Hatherall. Following careful review of the evidence and consideration of counsel’s submissions, for the reasons discussed above I am not satisfied TOGA has discharged the onus of proof required and TOGA cannot rely on defence raised under s 11A(1) of the 1987 Act.

SUMMARY

TOGA does not dispute Ms Hatherall sustained primary psychological injury arising out of or in the course of her employment, with her employment being the main contributing factor to injury.
Ms Hatherall’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal, discipline and/or dismissal.
The parties agree any entitlement Ms Hatherall has to weekly compensation is to be paid at the maximum weekly compensation amount payable under s 34 of the 1987 Act. The parties agree Ms Hatherall has had no current capacity for work since 6 November 2023 resulting from the injury. Ms Hatherall has entitlement to weekly compensation payable under the 1987 Act as a result of the injury.
The parties agree Ms Hatherall requires medical or related treatment for the injury. Ms Hatherall has entitlement to medical or related treatment expenses payable under s 60 of the 1987 Act for the injury.

[2024] NSWPIC 707

17 December 2024