Ismail v Dental Health Services Victoria - [2021] VMC 5

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT

Case No. K11936727

Fareed ISMAIL	Plaintiff
v
DENTAL HEALTH SERVICES VICTORIA	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne
DATE OF HEARING:	9 – 12 February 2021
DATE OF DECISION:	1 April 2021
CASE MAY BE CITED AS:	Ismail v Dental Health Services Victoria
MEDIUM NEUTRAL CITATION:	[2021] VMC 005 First Revision on 21 April 2021

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CATCHWORDS – Workers Compensation – Rejection of claim – Mental Injury – Complaints by dental technician of alleged sexual harassment and bullying by his manager and of unreasonable workload – Aggravation or exacerbation of a pre-existing psychological injury or condition – Whether employment a significant contributing factor - Whether mental injury was of a non-compensable type arising wholly or predominantly as a result of management action on reasonable grounds in a reasonable manner - Standard of Proof – Whether nature of plaintiff’s allegations require evidence to the Briginshaw standard to be made out - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss. 39(1), 40 (1), 40(3), Sched 1, Cl. 25 - Evidence Act 2008 s.140

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms K Gladman	Hounslows
For the Defendant	Mr P Czarnota	Hall & Wilcox

HER HONOUR:

INTRODUCTION AND OVERVIEW

Mr Fareed Ismail, the plaintiff in this proceeding, is employed as a dental technician with Dental Health Services Victoria (‘DHSV’) at its Carlton laboratory. He brings a claim for psychological injury against DHSV under the Workplace Injury Compensation and Rehabilitation Act 2013 (Vic) ‘the Act’.

In his Amended Statement of Claim of 9 November 2020, Mr Ismail claims for psychological injury ‘as a consequence of being sexually harassed, isolated, ridiculed and bullied by his manager during the course of his employment and subsequently being given an unreasonable workload’. His WorkCover claim lodged on 12 March 2019 was rejected by notice dated 17 April 2019. In its defence, DHSV denied there had been any mental injury suffered and, if there had, it was non-compensable under the Act because it arose wholly or predominantly as a result of management action taken on reasonable grounds and in a reasonable manner: s 40(1).

Conducted over four days via WebEx, for the plaintiff, oral evidence was also given by a former co-worker, Mr Kim Jong, and by Mr Ismail’s girlfriend, Ms Nawaphat Konsombat. For the defendant, there were three lay witnesses, Ms Anne Maree (known as ‘Anni’) Greto, Ms Nezri Albayati and Mr Sach Jovevski, all current or former employees of DHSV. All medical evidence was tendered into evidence by consent.

For the reasons that follow, I find that the plaintiff is entitled to the relief that he seeks.

EVIDENCE

Plaintiff’s Evidence

Background and Prior History

Born in Gaza in 1975, Mr Ismail was educated in Saudi Arabia and qualified as a dental technician in Jordan. For about 15 years, Mr Ismail worked as a dental technician in Saudi Arabia. In about 2010, Mr Ismail came to Australia and began working as a dental technician in the private sector before commencing in 2012 with DHSV.

For about the last four years, Mr Ismail has lived with his partner, Ms Konsombat initially in Sunshine and then in Wyndham Vale where Mr Ismail had built a new home.

Mr Ismail had a prior history of anxiety and depression. Before arriving Australia, he had mental health issues for which he took medication available without prescription. Once he was living in Australia, he began treatment with a GP including taking an anti-depressant medication, Zoloft (150 mgs). He remained on that medication. In mid-2018, the dosage was increased (to 200 mgs) when his GP referred him to a psychiatrist. This was in the context of a workplace issue with a co-worker (‘Eva’). Mr Ismail saw the psychiatrist once and also saw a psychologist briefly who assisted him with some strategies for managing such issues. He lost no time from work.

In 2016, Mr Ismail had undergone a cervical discectomy for a neck problem.

Employment with DHSV

In July 2012, Mr Ismail began working for DHSV. His role was to hand-make crown and bridges units. The laboratory or lab (as it was referred to throughout the proceeding) had four sections, one being dedicated to crown and bridges. The hand-making of crowns and bridges is a specialised task involving various stages. Technicians worked from 8:30 am to 4:00 pm with two tea-breaks and a lunch break. The lab was a mostly open plan workspace with technicians operating at individual workbenches within the four sections.

For the first six years of his employment with DHSV, Mr Ismail said there no issues with his performance. The lab manager then was a Mr Greg Hansen who left the organisation in mid-2018. Mr Ismail said that when he began with DHSV, the expectation was that technicians complete three units per day. That was later dropped to two per day under Mr Hansen. Mr Jong, a dental technician who formerly worked for DHSV in the crown and bridges section, also said the expectation under Mr Hansen for units per day dropped from three to two. Mr Jong said completing three good quality units in a day would be busy, but it would be possible.

Circumstances in the Workplace from around July 2018

In about July 2018, following Mr Hansen’s departure, there was a restructure by DHSV and roles were re-organised within the lab. Mr Jovevski, a DHSV lab technician, was promoted to lab team leader. A new lab manager, Ms Greto, was also appointed. She had, additionally, oversight of other DHSV functions. Mr Jovevski reported to Ms Greto. In about July or August of 2018, Ms Greto moved her office to a glass-fronted internal office within the lab which she shared with Mr Jovevski. Ms Greto’s office was near to the crown and bridge section of the lab.

Ms Greto had to pass Mr Ismail’s workbench when moving from her office through to the lab. Mr Ismail said that she would stop when passing, and talk many times. Within a couple of weeks, Ms Greto would spend time at Mr Ismail’s bench daily. This was to observe first-hand, and understand, the technical process. After a while, Ms Greto would also ask him to come to her office to say good morning. Ms Greto said things such as, ‘I like to talk to you because you are bright and nice and you are one I can trust’. Many mornings, she would come from behind her desk and sit on a chair in front of the desk and gesture for Mr Ismail to sit on the other chair in front of the desk. Ms Greto denied she ever did this.

In conversation, Ms Greto spoke with Mr Ismail about personal matters. She spoke of her appearance and weight two or three times between August and November. She also discussed her brother’s relationship with his fiancée who had complained to her about her brother ‘not being good in bed’. Ms Greto asked him whether he had a girlfriend and about his relationship. Ms Greto twice spoke to him about wanting to have kids and wanting to find a man like Mr Ismail who was bright and nice and also wanted to have kids. One conversation was in her office and one was in the casting room (where the plaster-casts are made). There was banter and play on words such as a time when Mr Ismail said he had ‘six cases’ and Ms Greto replied: ‘sex, who would have sex with you’. Ms Greto denied all these matters had taken place.

In cross-examination, Mr Ismail denied that the only conversation in the workplace about Ms Greto’s weight or appearance was one he overhead in the kitchen when she was talking to female colleagues about losing weight to be a bridesmaid. Mr Ismail had said, you are beautiful and don’t need to lose weight.

Mr Ismail said that when Ms Greto was seated in a chair near him in her office, she moved in ways that deliberately revealed her cleavage and her upper or inner thighs. There was another time in about September in the reception area when she purported to adjust her bra under her top in a revealing way. Mr Ismail said this made him feel embarrassed and he would try to avoid Ms Greto.

Mr Ismail said other staff (such as a person called Rocque from the Orthodontics section who did not give evidence) spoke to him about Ms Greto’s behaviour towards him, saying it looks like she loves you, that it was not ‘manager behaviour’ and that it was weird. Mr Ismail felt this was not good for his reputation and he felt anxious and frustrated. In cross-examination, Mr Ismail disagreed that, as the new manager, Ms Greto was spending time with all the technicians including observing them at work. He said she had only introduced herself and engaged with one member of each team and, for crown and bridges, it was him.

Ms Greto had told Mr Ismail that she lived in Point Cook and that ‘they were neighbours’. She had proposed visiting his home and she did so once in the office and once at the pub after the Christmas 2018 work lunch. Mr Ismail said he was embarrassed by this and told her he had no furniture in the house (even though he did, but said this in order to discourage her). Ms Greto said it didn’t matter and that she would sit on a mattress.

It was put to Mr Ismail in cross-examination that he would regularly approach Ms Greto to discuss the issues regarding his new home such as the fixtures and fittings. He denied this and said if that was Mr Jovevski’ s evidence, he was making it up. In cross-examination, Mr Ismail denied frequently asking Ms Greto for lifts to and from the station. He said Ms Greto and Mr Jovevski were lying and that Mr Jovevski ‘would say anything’.

In cross-examination, Mr Ismail denied that it was he who had demonstrated numerous inappropriate workplace behaviours. He denied that in around December 2018, he put his hands on Ms Greto’s shoulders in her office or that he approached her to ‘get a hug’. He said Ms Greto was lying about this. Mr Ismail denied growling in a deep voice, ‘Anni, Anni’, when she would pass by his desk.

From September or October 2018, Mr Ismail was having trouble concentrating at work, difficulties sleeping and feeling down. He blamed himself for what was happening. When asked whether he tried the strategies learned from the psychologist he had seen before, he said he hadn’t because this was different. The difference was Ms Greto was his manager and not a co-worker. At night he spoke with Ms Konsombat about the issues with Ms Greto. He said that his mother (on video-calls overseas) would ask him what was going on as she could tell by his face something was wrong. From October or November, Ms Greto was less friendly and would pull him up for too much talking with a female co-worker. From around November 2018, Ms Greto appeared to him to be jealous of his interactions with female staff. She would say to Mr Ismail things such as ‘she is at your bench a lot, she’s single, maybe she loves you’. Mr Ismail said this made him feel anxious and down.

Mr Ismail said after years of working in Saudi Arabia, he had no experience of people, especially women, talking in the workplace about personal matters. He had never had ‘a stranger’ talk to him this way. It worried him and made him try to avoid Ms Greto. In cross-examination, Mr Ismail agreed that he had been given a formal warning in the past for making an inappropriate remark about women in the workplace.

Events at the pub around Christmas 2018 and Afterwards

In December 2018, the lab staff attended a Christmas lunch at a Lygon Street restaurant. Afterwards, Mr Ismail and three others (Ms Greto, Mr Jovevski and Ms Albayati) went to the Clyde pub. Mr Ismail hadn’t wanted to go, but Mr Jovevski told him he had to come otherwise Ms Greto would be upset with him. Mr Ismail said that when Mr Jovevski was in the bathroom, Ms Greto suggested going back to Mr Ismail’s house and that she didn’t mind sitting on a mattress.

Mr Ismail said there was banter at the pub between him and Mr Jovevski and Mr Ismail had placed his hand on Mr Jovevski’s thigh. This was to distract from Ms Greto’s suggestion about going back to Mr Ismail’s house. Mr Ismail was joking around, and he and Mr Jovevski had been good friends for about four years. After Ms Greto and Ms Albayati left the pub, Mr Jovevski had said to Mr Ismail: ‘What’s wrong with you! You could have gone with Anni, I could have gone with Nez, then we could have swapped and taken the white powder’. Mr Ismail responded that he loved his girlfriend and that if Mr Jovevski had wanted to do that, he should have gone ahead. Mr Jovevski denied this conversation had taken place.

Mr Ismail said that from the next day, Ms Greto’s behaviour towards him completely changed saying things such as if I see you talking too much, I will report you downstairs (to her manager and to Human Resources). From early January 2019, Ms Greto kept criticising his work. In cross-examination, Mr Ismail agreed that prior to the Christmas drinks at the pub, Ms Greto had raised the issue of him talking too much many times, but that after Christmas, Ms Greto was meaner about it.

Meeting on 17 January 2019 and Events Following

On 17 January 2019, Mr Ismail attended a meeting with Ms Greto and Mr Jovevski (‘the 17 January meeting’) which took place in Ms Greto’s office. The meeting had been arranged for 14 January 2020 but was re-scheduled as Mr Ismail had been absent from work. Mr Ismail said he did not recall receiving an Outlook calendar invite and said he first learned about the 17 January meeting when Mr Jovevski called out his name and escorted him into Ms Greto’s office. Mr Ismail did not dispute the formal minutes of the 17 January meeting which recorded the topics of: ‘Excessive talking; Coming in late, or sick without notification; Quality of work’. Mr Ismail was unhappy about the suggestion that some of his crown and bridge units were sub-standard or had been the subject of complains by clinicians. He wanted to know who the clinicians were and refused to participate in refresher training.

Mr Ismail conceded that he was not formally disciplined in the 17 January meeting, but said that it was not the proper way to talk to him. He agreed he didn’t like being told off and that he felt targeted unfairly as other staff were frequently talking too much. In cross-examination, he said he would not accept criticism on his technical work from Mr Jovevski who was ‘lower’ than him (meaning he had less years of experience) although he would accept criticism from qualified clinicians. He also said he would not accept criticism from Ms Greto who was not a technician whereas he had been in his field for over twenty years. In cross-examination, he agreed it was ‘a blow to his ego’ to be criticised about his work.

Afterwards, Mr Ismail felt stressed, very bad and nervous. He had trouble concentrating and felt worse every day. He was shaking and sweating. He didn’t know what he was doing, and he wanted to run away. In cross-examination, he agreed that after the 17 January meeting he felt anxious about losing his job, but also said they could not have sacked him as it would have been unfair dismissal. He agreed he was angry with Ms Greto, but denied he had an issue with having a female boss. He didn’t blame her, rather he blamed DHSV and ‘the Ministry of Health’ for putting Mr Jovevski and Ms Greto in roles as managers.

On 22 January 2019, Mr Ismail said ‘his feet took him’ to complain to the Executive Director, Ms Melanie Van Altena about his treatment by Ms Greto and Mr Jovevski. About a week after that meeting, Ms Greto was moved out of the lab, but she still came by every day. The other staff told him, ‘because of you, Anni has been moved’.

On 5 February 2019, Mr Ismail was talking with a co-worker when Mr Jovevski came over and said, ‘no talking’. Mr Ismail had pointed out that other people were talking in the workplace and that he was being picked on. Mr Ismail then left work and has not returned since that time.

Medical Treatment and Current Circumstances

Mr Ismail saw his GP Dr Mustafa who advised him to stop work. He was referred to a psychiatrist, Dr Akinbiyi, whom he then saw about monthly over the next year. Various medications were trialled. Presently, Mr Ismail takes an anti-depressant Effexor (300 mgs) and two other medications. Mr Ismail said he is now much better than he had been. He thought he had been greatly improved since about April 2020 which is when the doctors had arrived at the current medication regime.

Mr Ismail continues to be employed by DHSV. He said there had been discussions about return to work, but he had apparently been told ‘to wait until the court case was over’.

Lay Evidence

Mr Jong worked in DHSV’s crown and bridge section between 2015 and February 2019. From early 2018, his workbench was next to Mr Ismail’s. He recalled Ms Greto coming to the lab and talking to staff pretty often. She was a talkative person. Mr Kim had heard her talking with staff about both personal things and work-related maters. He had observed Mr Ismail going into Ms Greto’s office often, but it was hard to say how often. As for what he observed about Mr Ismail between August and December of 2018, he had mostly seemed okay but over time he mentioned Ms Greto more often and by December he was stressed out. He said this was more so after the Christmas lunch when Mr Ismail was much quieter and seemed uncomfortable in the presence of Ms Greto.

Ms Konsombat was unaware of Mr Ismail having pre-existing mental health issues. He generally didn’t talk much about work, but from around September or October of 2018, he had complained about Ms Greto making problems for him at work. Mr Ismail had seemed worried and to be thinking too much about work. In the weeks before he stopped work on 5 February 2019, he was quiet, stressed and not eating. He didn’t want to go out to restaurants and shopping as they had before. On a video-call with his mother in early January, she had commented that he had lost weight and looked sick.

Ms Greto was currently unemployed, her role at DHSV having recently been made redundant. Ms Greto had 20 years’ management experience, including in health settings. This was her first role in the public sector. From June 2018, she was clinical support manager of the lab and of other DHSV functions. She reported to the executive director, Ms Melanie Altena. Ms Greto said she was appointed to the role for the purpose of assessing and improving the lab’s efficiency. When she was first appointed, the lab’s work output was ten weeks’ behind schedule. She was to review whether productivity could be increased to an acceptable level or whether the work should be outsourced to the private sector. The lab staff were not informed of the possibility of the work being outsourced as this would have been upsetting for them.

Ms Greto’s role included training and coaching Mr Jovevski in his team leader role. She and Mr Jovevski had shared an office. Her review required her to observe the technicians’ work so she could understand the processes and respond to clinicians’ complaints as they arose. Ms Greto agreed she was concerned from the outset about the efficiency of the crown and bridges section as some technicians produced three units daily and some only two. She had no concerns initially about Mr Ismail’s output. In cross-examination, she disagreed that Mr Ismail had on many times before the 17 January meeting explained that the technicians could only produce two units per day. In cross-examination she also said that she had formed the view Mr Ismail was not doing three units per day and that had made it clear from the time she started in the lab manager role that the requirement was three units per day.

When asked whether there was any truth in the allegations made against her by Mr Ismail in relation to sexual harassment, she said they were false allegations. In cross-examination, she denied she was more talkative with members of the crown and bridge section. She denied talking about personal matters other than her house. She denied ever being flirtatious at work. She had never complimented Mr Ismail on being a nice or bright person and had never asked him to comment on her beauty or weight. She had been startled and felt uncomfortable when he had said she looked beautiful after he overhead the discussion in the kitchen with female colleagues about losing weight. She denied ever discussing with Mr Ismail her marital status or her desire for children or where she lived. She had never asked Mr Ismail about his own relationship status and could recall only a conversation in which Mr Ismail had complained about his girlfriend wanting expensive gifts.

Ms Greto said on numerous occasions, Mr Ismail would come into her office to show her photographs of his new house and ask for her opinion as to rugs and lights. There were a few times when Mr Ismail had made unwanted physical advances such as trying to hug her and another time placing his hands on her shoulders. These incidents had been witnessed by Mr Jovevski and others. In cross-examination, Ms Greto denied ever coming around from behind her desk to sit alongside Mr Ismail in her office.

In cross-examination, Ms Greto agreed that had she observed conduct in the workplace that could be bullying or sexual harassment, she had the knowledge and management experience to deal with it appropriately. DHSV had policies on occupational health and safety, bullying and sexual harassment. As a manager, she would have taken such matters seriously. Ms Greto agreed she had to pass Mr Ismail’s bench many times a day. When he called her name, in a slow, deep voice, ‘Anni, Anni’, she thought it was strange, but put it down to ‘just being his character’. As for the events at the pub, Ms Greto denied asking Mr Ismail back to her house or proposing she go back to his place. In relation to Mr Ismail touching Mr Jovevski’s leg, Mr Jovevski had appeared uncomfortable and had moved away.

As for the 17 January meeting, it was intended to be informal in nature and to set expectations with Mr Ismail. Ms Greto had sent an Outlook meeting invite to Mr Ismail, but there was no advance agenda sent. Issues discussed were: excessive talking in work hours; punctuality including the need to call Mr Jovevski if he was going to be late or away; not enough units being produced per day (two instead of three); and concerns as to work quality. Ms Greto had spoken to Mr Jovevski about these matters previously and he had been monitoring it. Mr Ismail was not being targeted as other technicians were being pulled up for excessive talking. Mr Ismail had refused the offered refresher training. Mr Ismail was told that unless there was an improvement, he would be placed on a formal performance plan. Mr Ismail was visibly upset in the meeting. Ms Greto denied there was any observable difference in Mr Ismail’s demeanour either before or after the Christmas event.

Ms Greto was cross-examined extensively on the DHSV’s ‘Managing Under Performance and Misconduct Procedure.’ She agreed Mr Ismail was not informed he could bring a support person to the meeting. This was because the 17 January meeting was an informal discussion and not part of a formal performance plan. She also agreed Mr Ismail was not told about the availability of the EAP (employee assistance program) for the same reason. Before the meeting, she had spoken to a member of the human resources team, Mr Boris Stojanovic. In re-examination, she said that had Mr Jovevski been a skilled leader, he would have been able to have the informal discussion himself.

Ms Albayati, the lab’s administration support officer, started with DHSV in November 2018. She and Ms Greto had worked together previously with a former employer. Ms Greto had played no role in her being appointed at DHSV. She disagreed Ms Greto had ever acted flirtatiously in the workplace. She had not heard her complement Mr Ismail in any way. She did recall Mr Ismail complementing Ms Greto on looking good and on losing weight. Mr Ismail had one time walked into Ms Greto’s office and put his hands on her shoulders and she responded, please don’t touch me. She recalled at the pub after the Christmas 2018 staff lunch, Mr Ismail touching Mr Jovevski’s leg in a way that made him uncomfortable. She could not recall Ms Greto suggesting going to Mr Ismail’s house.

Mr Jovevski, lab team leader, was responsible for the smooth running of the lab and over-seeing the team. He had monthly one on one catch ups with each team member (including Mr Ismail) with an informal agenda of: what was going well; what was not going well; what could be done better. In cross-examination, he said this was his first supervisory role and he relied upon Ms Greto for guidance. He was aware there were policies for managing under-performance, but he was ‘on a learning curve’ in relation to leadership skills. When asked whether he was aware certain procedures had to be followed regarding a worker’s under-performance, he said ‘he was now’.

In cross-examination, Mr Jovevski said the issue of too much talking had been raised ‘a number of times’ with Mr Ismail at his workbench before the 17 January meeting. The same issue was raised with other lab staff. Work quality was also raised with Mr Ismail prior to the 17 January meeting because some of his units were not ‘fit for purpose.’ He conceded that if there was a fault with a unit, Mr Ismail would make adjustments willingly. Another issue raised was lateness or absence without notifying Mr Jovevski. The 17 January meeting was arranged due to raising these concerns several times and there being no change. The reason Ms Greto was present as well as him was because she was the manager of the lab. He hadn’t advised Mr Ismail that he could have a support person present or of the availability of EAP. He thought it wasn’t required because the meeting was informal. He couldn’t recall whether Mr Ismail was told a list of things to be discussed beforehand. As for the discussion about the quality of Mr Ismail’s work, Mr Ismail couldn’t believe what they were saying as he believed his work was ‘top notch’. Mr Ismail declined the offered refresher training. Mr Jovevski said there was no disciplinary action taken as an outcome of the meeting, that the tone of the meeting was ‘helpful’ and that it had ‘stayed in the lab’ meaning it was not taken to HR or higher up.

In cross-examination, Mr Jovevski disagreed that he and Mr Ismail were close friends and said they ‘never’ spoke about personal matters or family stuff. When pressed, he conceded there were casual conversations and ‘a certain level’ of banter and joking in the lab. In relation to the pub event, Mr Jovevski said Mr Ismail was touching his leg and trying to sit close to him. Mr Ismail had suggested setting Ms Greto up romantically with someone at Melbourne University. Mr Jovevski never heard any conversation relating to Ms Greto asking to visit Mr Ismail’s home. He denied saying that Mr Ismail ‘could go home with Anni, he would go home with Nez they could then swap and take white powder’. Mr Jovevski said he had never seen or overheard Ms Greto being flirtatious towards Mr Ismail. He had never seen Ms Greto expose parts of her body inappropriately to Mr Ismail.

On the other hand, he had seen unwanted physical contact by Mr Ismail towards Ms Greto. This occurred when Mr Ismail had come into the office and said to Ms Greto that he wanted a hug and she tried to avoid this by moving behind Mr Jovevski. He had also noticed Mr Ismail growling ‘Anni, Anni’ a few times when she passed his desk.

Medical Evidence

Dr N Tadros, a former GP, provided a report dated 10 July 2012 (to support a permanent residency application). This confirmed treatment in Australia for anxiety and before that, overseas. There was a Mental Health Plan completed by Dr Ali Ziabari, former GP, on 28 December 2015 for anxiety and depression.

Dr D.C. Hettiarachchi, former treating psychiatrist reported on 30 July 2018 to a treating GP, Dr C. Koghar. The diagnosis then was of a generalised anxiety disorder relating to an episode of stressful workplace issues with a co-worker. Mr Ismail’s medication was reviewed.

Dr Abu Mustafa, treating GP, wrote a referral letter to a psychiatrist on 26 February 2019 and provided medical reports to Mr Ismail’s lawyers dated 30 May 2019 and 2 February 2020. The diagnosis was of a major depressive disorder which was an exacerbation of pre-existing depression. In February 2019, the presenting symptoms were poor sleep, low self-esteem, depressed mood and anxiousness and the reason for referral was ‘harassment at work’. This had begun three months before when his female manager had started to abuse him and wanting to ‘make sex with him’. Mr Ismail complained to HR, but it was not investigated. He was then given additional work and couldn’t cope. The prognosis was good, depending on a return to work, and with medication and counselling.

Dr Akinsola Akinbiyi, treating psychiatrist, reported to Dr Mustafa on 7 March 2019 and provided a medical report to Mr Ismail’s lawyers dated 27 February 2020. In March 2019, the diagnosis was of a major depressive disorder and generalised anxiety disorder. Symptoms were poor concentration, sweating, chest pain and disturbed sleep. Mr Ismail described being subject to sexual harassment by his female manager as well as bullying behaviour when the sexual advances were rejected. The manager would come to his bench, take him to her office, joke and be friendly but his friends said, ‘she is too friendly and that the new manager loved him’. She asked personal questions and appeared jealous when he talked to female co-workers. Mr Ismail reported that she would open her legs when talking to him and make sexual gestures with her lips. Mr Ismail had not responded to treatment and did not have capacity to return to pre-injury employment nor suitable employment. The prognosis was good due to his good pre-morbid functioning, past good response to anti-depressants and the presence of a specific stressor before the current episode of depression.

Dr David Weissman, psychiatrist, had provided a medico-legal report dated 22 November 2019 to Mr Ismail’s lawyers. Dr Weissman obtained a history of ‘stress and pressure’ prior to arrival in Australia and of depression since being in Australia. Mr Ismail described Ms Greto as ‘daring and rude’ and that she came to his bench frequently or that he would have to come to his office to say hello. She revealed parts of her body and often proposed visiting his house. The diagnosis was of chronic adjustment disorder with depressed and anxious mood as well as a moderate aggravation or recurrence of a previously resolved chronic adjustment disorder. His condition was not yet fully stabilised and required ongoing psychiatric treatment. There had been improvement, but he would remain totally psychiatrically incapacitated for all work for the short-term future (over the next three to six months).

Dr Nitin Dharwadkar, psychiatrist, provided a report dated 10 April 2019 for the WorkCover Agent. There was a history of stress due to sexual harassment by his female manager which began with her inviting him into office daily to say good morning, of questioning him about his girlfriend, of revealing skin in conversations and making sexual gestures with her lips. Mr Ismail was later criticised and given excessive work after refusing his manager’s advances. There had been improvement since ceasing work and Mr Ismail was motivated to return to work with a different manager. Given the history of pre-existing depression, the diagnosis was of exacerbation of a pre-existing chronic major depressive disorder. Mr Ismail at that time appeared ‘quite likely’ to have capacity for a graduated return to work in mid-2019.

A/Prof Shashjit Varma, psychiatrist, provided a report dated 6 November 2019 for the defendant’s solicitors. Mr Ismail said everything had gone well for him until a new female manager commenced in the lab in July 2018. He described her frequently coming to his bench, calling him to her office and favouring him in ways that other staff had begun talking about. She sat in ways that exposed her upper and inner thighs. At the pub after the 2018 Christmas lunch, she proposed going to his house. After that, things had got worse, she shouted and made his life hell. Noting the prior history of depression, the diagnosis was of a major depressive disorder which was an aggravation of the pre-existing depression. The mental injury was predominantly caused by the management action of the employer on 17 January 2019. At that time, Mr Ismail had no current work capacity perform pre-injury duties even with a different employer and the prognosis was guarded.

Dr Zeeva Cohen, psychiatrist, provided a ‘fitness for duty’ assessment reports for the defendant dated 18 November 2020 and 19 December 2020. A major depressive disorder was diagnosed. The prognosis was favourable depending on resolution of the legal difficulties, Mr Ismail having fully recovered with appropriate treatment. He was fit for a graduated return to work commencing on three days per week with other restrictions including not reporting to his former manager and not to be overloaded with work.

ANALYSIS

Burden and Standard of Proof

The legal and evidentiary onus of proof rested with Mr Ismail to establish an entitlement to compensation for injury in accordance with the Act. The defendant had the onus of proof in relation to its management action defence.

As for the standard of proof applicable to the plaintiff’s case, it was submitted for the defendant that the serious nature of the misconduct allegations against Ms Greto (including bullying and sexual harassment) required that the evidence be to the ‘Briginshaw standard’[1] In its Reply submissions, the defendant clarified that it was not inviting the Court to apply a higher standard of proof. Rather, it was submitted, the seriousness of the allegations required ‘strong, cogent and reliable evidence for the tribunal of fact to be satisfied on the balance of probabilities.[2]
[1] Briginshaw v Briginshaw (1938) 60 CLR 336
[2] Defendant Reply Submissions at [2]

In my view, it is the usual civil standard of proof, on the balance of probabilities, that applies in this case. As the plaintiff submitted, the civil standard of proof is governed by s.140(1) of the Evidence Act. That provision is to be read with s.140(2) which sets out three matters that the Court must take into account. These are: (a) the nature of the cause of action; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

In today’s workplace, there is no question that seriousness attaches to allegations of bullying or harassment. However, as noted, I am required by s.140(2) to consider, also, the nature of the cause of action and the subject matter of the proceeding. I am not persuaded, as a matter of law, that a worker bringing a claim for workers compensation benefits based on a complaint of bullying, harassment or other employer misconduct must discharge a more onerous evidentiary standard than otherwise. Such a requirement would be unreasonably burdensome and inappropriate in a statutory ‘no fault’ compensation proceeding that is governed by beneficial legislation. I accept the plaintiff’s submissions in this regard.

Legal Principles

It is important to set out the relevant legal principles in this case before I proceed to make findings.

As a starting point, it is relevant to note that the Act defines injury to include ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’: s.3 It was undisputed that Mr Ismail had a pre-existing psychological disorder involving anxiety and depression. In that circumstance, the Act is clear that Mr Ismail has no entitlement to compensation unless he can establish, on the balance of probabilities, that employment was ‘significant contributing factor’ to the aggravation or exacerbation of his pre-existing mental condition: s.40(3)(c).

As for whether a worker’s employment is a ‘significant contributing factor’ to an injury, the Act prescribes seven matters that must be considered: Sched 1, Cl. 25 (a) to (g). These are: the duration of the current employment; the nature of the work; the particular tasks of the employment; the probable development of the injury occurring if that employment had not taken place; the existence of hereditary risks; the lifestyle of the worker; and the activities of the worker outside the workplace. It is, as the Court of Appeal has made clear in St Mary’s School v Askwith, an essentially factual enquiry, being one of degree requiring evaluation.[3] As to what is meant by the adjective ‘significant’ in terms of assessing the weight of the workplace incident, the Court of Appeal has held that it must be of ‘considerable amount or effect’. [4]:
[3] [2011] VSCA 90 at [13].
[4] Ibid at [14].

Whilst Mr Ismail’s pre-existing mental condition was undisputed, both Counsel’s submissions referred to the plaintiff having the onus of establishing his entitlement to workers compensation under s.39(1) of the Act. Counsel for the plaintiff referred the Court, subsequent to the filing of written submissions, to the case of Attanayake v Simplot Australia Pty Ltd[5]. There, his Honour Justice Richards referred to the ‘very substantial overlap between the two tests and, in many cases, there is no discernible difference between them’. [6] In my view, this is such case given the plaintiff’s complaints as alleged in his claim form squarely relate to matters occurring in the course of employment. In any event, as I have said, it is plain, on the facts of this case, that in order to establish an entitlement to compensation under the Act, the plaintiff must discharge the onus of proof in respect to the ‘significant contributing factor’ test in s.40(3)(c).
[5] [2019] VSC 387
[6] Ibid at [39]

As for jurisdiction, the defendant submitted that the Court was required to consider and determine the allegations detailed in the plaintiff’s claim form ‘which frame the Court’s jurisdiction’.[7] In that context, the defendant referred to the well-known decision of Magistrate Garnett in Robinson v SPI Electricity.[8] The defendant then clarified in its Reply, correctly in my view, that there was ‘not any jurisdictional issue here’[9]. The Court’s jurisdiction, of course, is ‘to inquire into, hear and determine any question or matter’ relating to the Agent’s notice of decision dated 17 April 2019: s.266(1) of the Act.
[7] Defendant submissions at [2]
[8] VMC (3 October 2012)
[9] Defendant Reply Submissions at [3].

It is important to state that my task, as the authorities make clear, was not to determine where the truth lay in terms of the allegations. Rather, I was required to consider whether Mr Ismail perceived, and was affected by, stressors actually arising from the circumstances in the lab and his dealings with his managers, Ms Greto and Mr Jovevski. The guiding principle, as observed by his Honour Justice Bell in Pulling v Yarra Ranges Shire Council, is as follows:: ‘It was necessary to consider what [the worker] perceived about her co-worker’s conduct because, having regard to the no-fault nature of the workers’ compensation system, that causal connection can be established by a subjective perception that has a real connection with the workplace whether or not it is objectively correct’.[10]
[10] [2018] VSC 248 at [39]

Certainly, as the defendant submitted correctly, the law is also clear that a subjective perception, in itself, is not enough. It is also necessary, as the Court of Appeal made clear in St Mary’s School v Askwith, that ‘the plaintiff’s perception of an event or circumstance has a real connection with events that occurred arising out of her employment – as distinct from an event [the worker] simply imagined was connected with her employment’[11].
[11] Ibid at [12]

However, whilst there must be a real connection with events or circumstances in the workplace, I do not accept fully the defendant’s submission that: ‘The Court must, therefore, be satisfied there is a factual basis for the perception he was subjected to sexual harassment by Ms Greto, as well as the bullying and the like. He cannot (for example) be entitled to compensation if he imagined that Ms Greto sexually proposition him’. In my view, that is mis-stating the Court’s task in this case. The Court does have to decide whether there is a factual basis for the perception, however the Court does not have to decide whether the conduct complained of was, or was not, objectively sexual harassment. The authorities I have referred to make it clear the task is to determine whether there was a real connection between the perception and the events or circumstances actually occurring. I also refer to the statement of applicable principles adopted by Justice Cavanaugh in Clarke v National Mutual including that ‘a misperception by the worker of the relevant events or circumstances will not necessarily disqualify him or her’[12].

[12] [2013] VSC 36 at [56]

Mr Ismail’s credit was, of course, central to my determination of this ‘essentially factual enquiry’. The critical importance of the plaintiff’s credit in cases of this kind has been noted by the Court of Appeal on numerous occasions including recently in Johns v Oaktech Pty Ltd[13] Mr Ismail needed to establish the reliability of the histories he gave to the medical witnesses, whose opinions were premised on the accuracy of his accounts to them. All medical opinions were in large part, and particularly as to the complaints of Ms Greto’s conduct towards him, based on Mr Ismail’s account of events.
[13] [2020] VSCA 10 at [76].
In my examination of the medical evidence, I am, of course, guided by the well-known principles enunciated by Justice Bell in Pulling v Yarra Shire Council including the requirement to consider the whole of the evidence, including the medical evidence[14]. Furthermore, whilst the histories are of course dependent upon what the doctors have been told, ‘such considerations do not absolve the court from the obligation to properly engage in that evaluation’. [15]
[14] Ibid at [50] – [55]
[15] Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [51] in which Pulling J cites authorities including Allamanti Pty Ltd v Ernikiolis [2007] VSCA 17

Diagnosis and Nature of Injury

I turn first to the question of any medical diagnosis of injury and then to causation.

Four of the five psychiatrists in the case considered that the diagnosis was of a major depressive disorder which was an aggravation of the plaintiff’s pre-existing depression. I accept the opinion of the majority of the psychiatrists and in particular that of the treating psychiatrist, Dr Akinbiyi in relation to diagnosis. He also diagnosed a generalised anxiety disorder. Dr Akinbiyi, having seen Mr Ismail monthly for over a year, was optimally placed to arrive at diagnosis and his opinion, as I have noted, was largely consistent with the three psychiatrists who provided opinions as to diagnosis for the defendant. Accordingly, I reject the opinion of Dr Weissman who alone arrived at a diagnosis of a chronic adjustment disorder with a moderate aggravation or recurrence of a previously resolved adjustment disorder.

Additionally, I accept Dr Akinbiyi’s opinion, consistent with opinions of Dr Dharwadkar and A/Professor Varma for the defendant, that Mr Ismail’s condition was an aggravation or exacerbation of the underlying and pre-existing depressive disorder.

On the question of aggravation, I reject the defendant’s submission that there had been no worsening of any underlying psychiatric condition. The defendant submitted that Mr Ismail’s complaints in July 2018 to Dr Hettiarachchi were ‘substantially similar’ to those in March 2019 to Dr Akinbiyi.[16]. Dr Hettiarachchi’s clinical assessment in July 2018 occurred in the context of a referral because of a flare up of symptoms due to an episode of workplace stress. It is therefore unsurprising that symptoms might have been heightened at that point in time, however the evidence was of there being no follow up treatment nor ongoing heightened symptoms nor time lost from work.
[16] Defendant’s Submissions at [35].

On the other hand, Mr Ismail’s evidence was of feeling worry, embarrassment and anxiety from September or October because of Ms Greto’s attentions. He said at a number of points in his evidence that he felt down and anxious in the months before Christmas of 2018 because of the situation (of Ms Greto’s attentions).

I found, when considered as a whole, Mr Ismail’s evidence to be, for the most part, credible. Under pressure of cross-examination, some of his answers were somewhat histrionic or florid (such as that Mr Jovevski was user of illicit drugs), however my overall impression was that he was endeavouring to be cooperative in his responses. He made concessions against interest such as to the previous disciplinary warning. I do agree with counsel for the plaintiff that Mr Ismail may well have ‘what can probably be described as very outmoded moral’ views.[17] He conceded, as I have said, having been warned about over a past inappropriate comment regarding women in the workplace. He also admitted that he ‘if the Devil comes into brain’ he may be tempted to cheat on his girlfriend.
[17] Ibid at [41]

Whilst it is true there were no contemporaneous complaints to medical practitioners, Mr Ismail’s evidence was corroborated Mr Jong that ‘by December’ he was increasingly stressed and quiet.[18] Consistent with Mr Jong, Ms Konsombat, whilst not an independent witness, described a marked alteration in behaviour such as not wanting to eat or go out on the weekend as he had previously. She also described the video-call to his mother in which she commented on his observable ill-health and weight loss on his birthday (which fell on 3 January).
[18] Plaintiff’s Submissions at [42]-[43]

By February 2019, Mr Ismail was certified unfit for work and reporting symptoms to Dr Mustufa and to Dr Akinbiyi of low mood, poor concentration, sweating, chest pain and disturbed sleep. Additionally, on the evidence of Dr Akinbiyi, the substantial increase in medication dosage (an anti-depressant Effexor (300 mgs) and two other medications) is further basis for a conclusion that Mr Ismail’s condition had been aggravated or exacerbated beyond what it had been previously.

On weighing the whole of the evidence including the medical evidence, I find that there was an aggravation or exacerbation of Mr Ismail’s pre-existing condition that commenced in or around October 2018 and continued until he ceased work and beyond. In this regard, I note that injury is not the same as incapacity.

Causation and Whether Employment was a Significant Contributing Factor

In written submissions, the defendant contended the matters alleged by Mr Ismail were false and that there was simply no strong, cogent and reliable evidence that Ms Greto had sexually harassed Mr Ismail and that his evidence comprised ‘a multitude of scattergun allegations’.[19] These included: Ms Greto requiring Mr Ismail to attend her office daily to say good morning; spending long periods at his bench under the pretence of wanting to learn the technical side of his work; telling him he was nice, polite and ‘one I can trust’; speaking of personal issues such as her brother’s intimate relations with his fiancée; and exposing her cleavage or upper legs in a deliberate manner (all of which were denied by Ms Greto). As regards the ‘significant contributing factor’ test, the defendant disputed that there had been any worsening of Mr Ismail’s condition due to his employment. The defendant submitted that the present case was distinguishable from the facts of St Mary’s School[20].
[19] Defendant’s submissions at [6]
[20] See Defendant’s Submissions at [38]

Further, Mr Ismail’s perceptions of being isolated and ridiculed and of being bullied had no factual basis and were unfounded. For example, the defendant submitted that a requirement to attend work, refrain from excessive talking and complete two units per day, is not in all the circumstances, an unreasonable workload. [21] Similarly, the raising of concerns about these issues in informal discussions by Mr Jovevski and/or Ms Greto would not constitute bullying. [22]
[21] Ibid at [30]-[31]
[22] Ibid at [27]–[29]

It is true the plaintiff’s case relied upon a course of conduct by Ms Greto and Mr Jovevski in which Mr Ismail perceived he was being subjected to inappropriate sexual advances or unusual attention by Ms Greto, and then thought he was being victimised or treated unreasonably by her.[23] It was submitted for the plaintiff that the conduct of Ms Greto and her role in the workplace from July 2018 must be considered against the events and circumstances actually occurring in the workplace from that time. The plaintiff’s case is not that the altered circumstances were in, and of, themselves stressors that impacted upon him. Nevertheless, I do accept the plaintiff’s submission that the following matters were relevant to the Mr Ismail’s subjective perception of Ms Greto’s conduct and its impact upon him:
[23] Plaintiff’s submissions at [51]

a. Mr Ismail’s unchallenged evidence was that, for over six years until July of 2018, he had performed his duties as a dental technician satisfactorily and with no significant issues. Indeed, Ms Greto’s evidence was that she no concerns initially about Mr Ismail’s output of units.

b. After the re-structure and appointment of new managers, the workplace circumstances changed significantly. Ms Greto was tasked with reviewing and increasing the lab’s productivity. (I accept the staff were not aware of the potential for the work to be outsourced if efficiencies were not gained).

c. Mr Ismail’s former peer and co-worker (Mr Jovevski) was appointed into a new team leader role and, on his own evidence, was on a steep learning curve and (according to Ms Greto’s evidence) had little leadership skills.

d. Ms Greto’s style as a manager was talkative and friendly according to both Mr Ismail and Mr Jong. She spent a lot of time at the work benches of the technician observing the processes (unlike the former manager). She spoke of personal matters as well as work matters. Mr Ismail, as Mr Jong observed, was as ‘often’ in Ms Greto’s office.

As for how this level of personal attention by a female manager including being often in her office and having daily interactions and conversations may have been subjectively perceived by Mr Ismail, I accept the plaintiff’s submissions that Mr Ismail’s ‘views are informed by his cultural background and also his background as a dental technician in a laboratory environment’ and that was ‘confusing for the plaintiff’[24]. This level of personal attention and overt friendliness from a manager was something that Mr Ismail had no experience of and was surprising to him. As he said, after working for years in Saudi Arabia, he had no experience of women talking about personal matters.
[24] Plaintiff ‘s submissions at [56]

I found Mr Jong to be an honest and, given he was no longer employed by DHSV, an impartial witness. As I have said, Mr Jong’s evidence was of Ms Greto being talkative and the level of friendliness and attention and of him being often in the manager’s office.

It was undisputed, as noted by Counsel for the plaintiff in submissions, ‘that a certain level of “banter” was tolerated by Ms Greto and this was acknowledged by Mr Jovevski, Ms Albayati and Ms Greto’. [25]
[25] Ibid at [57]

On balance, I did not form a particularly favourable impression of Ms Greto. I found her responses to questions to be somewhat defensive and uncooperative. Concessions even on uncontroversial matters were reluctant and there were aspects of her evidence that were improbable. For example, she denied ever having personal conversations with lab staff other than about her house (and the one conversation in the kitchen about her weight and appearance) which I found implausible. I did not accept that her evidence that over the whole period from July to January she had only been alone with Mr Ismail once even though she had conceded he was often in his office.

I reject aspects of Mr Jovevski’s evidence as being similarly unpersuasive such as that he and Mr Ismail ‘never’ spoke of personal matters or family stuff whilst at the same time conceding there was a level of joking and banter. I find it improbable that he was routinely holding monthly one on one meetings with team members such as Mr Ismail given Ms Greto’s unfavourable assessment of his leadership skills.

As for Ms Albayati’s evidence, in my opinion, it added little of substance other than to corroborate the evidence of Ms Greto and Mr Jovevski. In considering her evidence, I consider its weight was lessened by her current employment with DHSV and also, to some extent, her previous connection to Ms Greto.

It was submitted for the defendant that ‘there was ample evidence’ that it was not Ms Greto but Mr Ismail who ‘acted inappropriately on many occasions’ such as asking Ms Greto for a hug or placing his hands on her shoulders or growling her name when she passed by. Again, whilst it is not my task in this proceeding to decide the truth of those complaints, in weighing those matters against the totality of the evidence, Ms Greto’s evidence was that, as a senior manager, had she observed conduct in the workplace that may have breached sexual harassment and bullying workplace, she had the knowledge to deal with it and would have taken it seriously. The fact that no steps were taken by Ms Greto regarding these matters is noteworthy in my view

It was submitted for the plaintiff that this case ‘is not only about sexual harassment’ and that, rather, the plaintiff ‘relies on a course of conduct’ by Ms Greto and to a lesser extent Mr Jovevski, in which Mr Ismail perceived he was being subject to inappropriate sexual advances or unusual attentions and ‘then subsequently perceived that he was victimised and treated unreasonably by her’. On the other hand, the defendant submitted that to suggest the case is not only about sexual harassment’ ignores the histories to various doctors’. Whilst that was the predominant theme of histories to doctors, the plaintiff’s claim about what happened in the workplace was broader than sexual harassment with his claim form referring to ‘being sexually harassed, isolated, ridiculed and bullied by his manager during the course of his employment and subsequently being given an unreasonable workload’.

As for Mr Ismail’s complaint of bullying conduct by his conduct, Mr Ismail’s evidence (which as I have said I found largely credible) included numerous references to his perceptions of Ms Greto’s (and to a lesser extent Mr Jovevski’s) altered conduct towards him both over time and in contrast to other staff. In my view, his evidence in this regard establishes a real connection to actual circumstances in the workplace (against the background referred to previously in these reasons).

Regarding the allegation of unreasonable workload, there is considerable inconsistency in the evidence as to whether expectations were of two or three units per day needing to be completed. Both Mr Ismail and Mr Jong said the expectation was reduced (by the previous manager) from three units per day to two. Mr Jong said that was still the expectation when he left in February 2019. On the other hand, Ms Greto disputed that Mr Ismail had many times before the 17 January meeting that the technicians could only produce two units per day. In cross-examination Ms Greto agreed she had formed the view Mr Ismail was not doing three units per day. Her evidence was that had made it clear from the time she started in the lab manager role that the requirement was three units per day. Ms Greto said this issue was one of the topics raised in the 17 January meeting. Weighting the whole of the evidence, I am satisfied that Mr Ismail had a subjective perception based on actual circumstances in the workplace as to the workload expectations of Ms Greto either shifting over time (but without clear communication) or retrospectively by the time of the 17 January meeting. It was inconsistent with Ms Greto’s evidence that the expectation was of three units. There were no evidence as to whether and at what point after July 2018 that expectation changed noting that her evidence was that initially she had ‘no issue’ with Mr Ismail’s output.

Regarding the allegation of altered conduct towards him, Mr Ismail’s evidence (which as I have said I largely accept was that From around October or November, Ms Greto ‘was less friendly’ and pulled him up for talking with his female colleague in the crown and bridges section. Then Ms Greto’s behaviour towards him ‘completely changed from the next day’ after the pub event and that, although she had raised excessive talking with him previously, after the pub event, she was ‘meaner’ about it. He was pulled up for talking by Mr Jovevski more than the other staff were for the same behaviour.

As for how the events and circumstances happening in the workplace impacted Mr Ismail, I found Ms Konsombat’s evidence credible in relation to his changed behaviour as a result such as eating less and not wanting to go out on the weekend. Also, as I have noted, Mr Jong’s evidence was that in the months leading up to December, Mr Ismail mentioned Ms Greto more often and was ‘stressed out’.

Turning to the medical evidence on the question of causation, whilst as I the first medical practitioner that Mr Ismail spoke to regarding his issues in the workplace was his GP to whom he described ‘harassment at work’ which had begun three months before when his female manager had started to abuse him and wanting to ‘make sex with him’, of subsequently reporting that to HR and of then being given more work. Dr Dharwadkar, who examined Mr Ismail for the Agent prior to rejection of the claim, obtained details of Mr Ismail being invited into Ms Greto’s office daily, of sitting in a revealing way and of apparently monitoring when he spoke to female co-workers. He opined that ‘based on the history and records made available … and the objective findings on mental state examination,’ it was reasonable to diagnose an exacerbation of depression. According to Dr Akinbiyi, who as I said previously, had the opportunity to assess Mr Ismail monthly for over 12 months, concluded that: ‘The sexual harassment and subsequent bullying behaviour when the manager sexual advances were rejected is the predominant cause of his injury’.

As noted earlier in these reasons, a causal connection can be established by a subjective perception that has a real connection with events that occurred in the workplace whether or not it is objectively correct’.[26] As the authorities make clear, a ‘misperception’ regarding the situation does not disqualify him, but the stressors must not be ‘simply imagined’.
[26] [2018] VSC 248 at [39]

In my view, on an examination of the whole of the evidence including medical evidence, the weight of the evidence supports a finding that there was indeed a real connection between events and circumstances actually occurring in the workplace and Mr Ismail’s perception of them and how he was impacted. I also find these matters were of considerable amount or effect and became overwhelming causing him to stop work on his GP’s advice and to require protracted psychiatric treatment and significantly increased medication.

As for the matters to be taken into account in accordance with Clause 25 regarding ‘significant contributing factor’, I have already considered most of these matters including the existence of Mr Ismail’s prior mental condition which had been well-managed over several years. There was the discrete episode in July 2018 when he was treated promptly and recovered to the same level as before. Paragraph (d) requires me to consider the probable development of the aggravation injury if the employment (meaning the workplace issues and his perception of them) had not taken place. Weighing the evidence, I do not find it probable Mr Ismail would have developed such an aggravation absent these matters. His pre-existing condition was of long standing and was well-managed with treatment and medication. It was notable that with the previous episode of workplace stress, he lost no time from work and had very limited treatment.

For the sake of completeness, I note that both parties made submissions as to the drawing of adverse inferences regarding witnesses not called. The plaintiff urged that an inference be drawn from the defendant’s failure to call Ms van Altena to whom Mr Ismail complained about Ms Greto’s conduct. as the plaintiff also noted, there was no evidence of there being any findings or specific outcomes related to that meeting. I therefore agree with the defendant that Ms van Alterna’s evidence beyond the fact of Mr Ismail’s meeting with her was of minimal relevance or, arguably no, weight. The plaintiff submitted that the defendant’s failure to call its employee ‘Roque’ ought to give rise to an adverse inference that his evidence would have been unhelpful. The defendant submitted, in response and correctly in my view, that ‘Roque’ in being an employee did not necessarily ‘place him in its camp’ as he was equally the plaintiff’s co-worker. Rather, the defendant submitted the failure to call ‘Roque’ gave rise to a basis for an adverse inference finding against the plaintiff in failing to call him to corroborate Mr Ismail’s evidence. Again, I do not draw an adverse inference that the failure to call ‘Roque’ that he would necessarily have been unhelpful to the plaintiff’s camp. There were numerous members of lab staff mentioned by all witnesses for both sides who were not called by either party and, ‘Roque,’ like most of them, played a peripheral role in the course of the disputed events.

Whether Injury Arose Wholly or Predominantly as a consequence of Management Action on Reasonable Grounds taken in a Reasonable Manner

If there was any mental injury, the defendant submitted, it was caused wholly or predominantly by management action of the defendant taken on reasonable grounds and carried out in a reasonably manner. The reasonableness of the management action is to be considered objectively having regards to all of the circumstances leading to it being taken and the manner in which it is taken[27].
[27] Krygsman-Yeates v State of Victoria VMC (4 November 2011) in which Magistrate Garnett at [35] reviewed the authorities in considering of s.82(2A) of the Accident Compensation Act 1985, the predecessor of s40(1) of the WIRCA

Management Action

The definition of management action in s 40(7) is not exhaustive in nature and includes, but is not limited to, any one or more of a range of fourteen actions. There is no doubt the 17 January meeting fell within the meaning of: (a) an appraisal of the worker’s performance; (b) counselling of the worker; or (n) communication in connection with one of those actions. I accept the defendant’s submission that the management action, to a lesser extent, also extended to the prior discussions Mr Jovevski and Ms Greto had held with Mr Ismail at his workbench in the months before the 17 January meeting.
Mr Ismail did not dispute the following issues had been raised with him in the months before Christmas: regarding excessive talking; the quality of some of his crown and bridge units; and requests to call Mr Jovevski if he was going to be late or absent. Therefore I accept the defendant’s submissions that there were at least some genuinely held concerns as to these persisting performance issues particular given the overall review under way of the lab’s productivity. I find that that the management action was taken on reasonable grounds.
As for the reasonableness of the manner in which the management action was carried out, the defendant submitted that Mr Ismail was given notice (via an Outlook calendar invite) of the 17 January meeting which had been re-scheduled after Mr Ismail was absent on the date originally scheduled (14 January). I accept there was an email invite sent although Mr Ismail’s evidence was, he did not recall receiving it and was just called to the office by Mr Jovevski not long before the meeting.
The plaintiff submitted that the defendant breached its own procedures as set out in the ‘Managing Under-performance and Misconduct Policy’, in particular Section 1.2, regarding the process for an informal meeting. This required that the employee be advised of the right to bring a support person to the informal meeting and of the availability of EAP.
Ms Greto and Mr Jovevski both conceded Mr Ismail was not told he could bring a support person to the 17 January meeting and was not told of the availability of EAP. They said this was because the meeting was informal and the performance management process had not been commenced. As for those omissions, the defendant submitted that whilst the concerns held as to Mr Ismail’s performance raised reasonable grounds for convening the 17 January meeting, the concerns did not rise to a sufficiently serious level to enliven the procedures in the policy. That is why, it was submitted, the defendant did not depart from the previous practice of informal discussion (that didn’t involve offers to have support persons or EAP) such had had taken place before the 17 January meeting.[28]
[28] Defendant’s submissions at [47]
As I have noted, the reasonableness of the manner in which the management action was taken is to be considered objectively having regards to all of the circumstances leading to it being taken and the manner in which it is taken. It would be incorrect, as a matter of law, to determine that non-compliance with procedures articulated in a written policy is of itself the basis for a finding of unreasonableness. As his Honour Chief Justice Spigelman stated in Department of Education and Training v Sinclair, a course of conduct may still be reasonable even if particular steps are not.[29]
[29] [2005]NSWCA 465
Both Mr Jovevski and Ms Greto said that as the issues causing concern were ongoing, it was necessary for a meeting to be convened not only with Mr Jovevski but with Ms Greto as well, as the overall manager, for the very purpose of escalating matters. together to escalate matters. I therefore reject the defendant’s submission that the concerns were not serious enough to depart from the previous practice of informal discussions. I find that that the discussions prior to the 17 January meeting were sporadic and casual. They were never held in the manager’s office and were only at Mr Ismail’s workbench. I have, previously in these reasons, noted that I reject as improbable Mr Jovevski’s evidence of loosely structured and recurring monthly meetings.
By contrast, the 17 January meeting was entirely different. I accept (although Mr Ismail said he didn’t recall receiving such an email) that it was convened by way of an email invitation. It was in the manager’s office with both his own direct line manager and the overall manager. I reject, again as improbable, Mr Jovevski’s evidence that Mr Ismail had been told in advance what the topics of the meeting would be. The meeting invite itself contained no information. In these circumstances, given the whole course of conduct, the fact that Mr Ismail was not offered the right to bring a support person when two managers would be present created an imbalance and was unreasonable. There was no reminder of the availability of EAP even though the meeting outcome was, according to the Minutes, if there was no improvement Mr Ismail ‘would be placed on a plan’.
In considering objectively, the whole course of conduct, there was no real explanation as to why the process was suddenly escalated in January if the concerns had gone on for months. If there were a concern, say, as to a worsening or deterioration in the performance of his duties, then Mr Ismail was entitled to be informed of that in advance, to be given time to prepare and to arrange support. In relation to reasonableness, I also take into account the matters referred to earlier in these reasons regarding expectations as to units per day. Whilst it was not recorded in the minutes of the 17 January meeting as being a topic raised, Ms Greto said in evidence that it was a topic for discussion even though, as I have said, there was a lack of clarity as when or if expectations were increased up from two to three after they were dropped by Mr Hansen.
In considering reasonableness, regard is to be had, objectively, to all of the circumstances leading to the management action. In my view, the escalation of criticism of Mr Ismail’s performance in the 17 January meeting by Ms Greto and Mr Jovevski (compared to the previous causal discussions at his workbench) coming shortly after the new year and just weeks after the events at the pub after the Christmas lunch is relevant to the overall question of reasonableness of the manner in which the meeting was conducted. There was considerable conflict in the evidence as to what transpired on that afternoon in December, but on the evidence of all four people present was that there was banter in the course of drinking alcohol and of Mr Ismail carrying a joke too far with Mr Jovevski
In my view, whilst I accept the management action was taken on reasonable grounds, the defendant has failed to discharge the onus of proof that such management action was taken in a reasonable manner.

As my finding in respect to management action is that it was taken on reasonable grounds but taken in a manner that was unreasonable, it is not strictly necessary for me to consider the causation element of ‘wholly or predominantly’ with respect to the defence based on s.40(1)(a) and (b). However, were I required to do so, I do not consider the evidence supports such a finding. The 17 January meeting was not an event that featured prominently in the histories to the medical practitioners. Further, Mr Ismail worked on for another few weeks after that meeting. Whilst A/Professor Sharma opined the mental injury was predominantly caused by the management action on 17 January 2019, he was alone, of the five psychiatrists in the case, in that opinion . As I have already noted in these reasons, whilst Mr Ismail did not seek treatment before ceasing work, the evidence was of increasing symptoms of worry and anxiety in the months before 17 January 2019.

The defendant, in its Notice of Defence, relies also upon s.40(1)(c), which is with respect to ‘any expectation by the worker’ that management action would be taken or not being taken or any decision made to take or not to take any management action. In other words, if the defendant succeeded in discharging the onus of proof that Mr Ismail had an expectation that management action would or would not be taken following the 17 January meeting and his mental injury was caused wholly or predominantly by those expectations, his entitlement to compensation would be defeated. Again, on an examination of the evidence, whilst I accept that Mr Ismail felt more stressed and worried after the 17 January meeting, I am not satisfied that there was an expectation on the part of Mr Ismail that was a predominant cause of his mental injury. A/Prof Sharma was alone of that opinion of the five psychiatrists in the case.

Whether any incapacity for work results from or is or was materially contributed to by the injury

In so far as incapacity for work is concerned. I must consider the situation of Mr Ismail’s incapacity for work up to date being still within the 130-week entitlement period which would be until August 2020 (although now extended due to legislative amendments related to the Covid-19 pandemic). I find based on the medical evidence including the opinions of Dr Akinbiyi, Dr Dharwadkar and Dr Sharma that Mr Ismail had no current work capacity from 5 February 2019 until at least that time.
Beyond that time, the only relatively current opinion is that of Dr Cohen who provided reports dated 18 November 2020 and 19 December 2020. Whilst I do not accept Dr Cohen’s opinion that Mr Ismail will have fully recovered, I find it likely that he now has a current work capacity. His GP Dr Mustafa considered Mr Ismail’s’ prognosis was good. In particular, Dr Akinbiyi stated the prognosis was good due to his good pre-morbid functioning, past good response to anti-depressants and the presence of a specific stressor before the current episode of depression.

CONCLUSION

For the grounds set out in these reasons, I find:
a.Mr Ismail suffered a mental injury in the nature of major depressive disorder with a generalised anxiety disorder and that the injury was an aggravation or exacerbation of his pre-existing underlying depression with a nominated date of injury of 1 October 2018;
b.The meeting on 17 January 2019, and performance discussions beforehand, constituted ‘management action’ as defined;
c.The management action was taken on reasonable grounds; but the management action was not taken in a reasonable manner;
d.The defendant’s reliance on the defence of management action is therefore unsuccessful.
e.Mr Ismail had no current work capacity from 5 February 2019 and that such incapacity resulted from or is or was materially contributed to by the injury.
f.Mr Ismail has a current work capacity.

g. He is entitled to reasonable medical and like expenses in accordance with the Act.

ADDENDUM

Since publishing my reasons it has been brought to my attention by the solicitors for the plaintiff and the defendant that there were typographical errors as to dates which have now been rectified: as follows: the references to ‘5 February 2018’ in paragraphs 111 and 113(e) have been corrected to ‘5 February 2019’; the reference to the meeting on ’17 January 2018’ in paragraph 113(b) has been corrected to ’17 January 2019’; and the first initial of the Plaintiff’s Counsel has been corrected from ‘C’ to ‘K’. I have also noted that at paragraph 104, the word ‘casual’ had auto-corrected to ‘causal’ and that has been rectified to ‘casual’ as intended. Finally, in my reasons for decision published by way of email to the parties on 1 April 2021, there was an error in the number sequencing of paragraphs which jumped from 71 to 77, which is now rectified and numbering revised. Accordingly, paragraphs referred to by the parties in the minutes of consent orders of 20 April 2021 are now as follows: paragraph numbered 116 is corrected to 111; and 118 to 113.