Jones v Gippsland Trucks
[2017] VMC 22
•1 DECEMBER 2017
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No. G13288636
| KAYE JONES | Plaintiff |
| v | |
| GIPPSLAND TRUCK CENTRE PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 6, 8 & 9 NOVEMBER 2017 |
DATE OF DECISION: | 1 DECEMBER 2017 |
CASE MAY BE CITED AS: | JONES v GIPPSLAND TRUCKS |
MEDIUM NEUTRAL CITATION: | [2017] VMC022 |
REASONS FOR DECISION
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Catchwords: Rejection of Claim: Psychiatric Injury: Adjustment disorder – allegation of bullying and harassment in course of employment – Rejection of claim on grounds that bullying and harassment did not occur, that the worker did not sustain an injury which arose out of or in the course of her employment and that if she did, compensation is not payable by virtue of the operation of S 40(1) of the Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Willshire | Simon Parsons & Co |
| For the Defendant | Mr Middleton | Minter Ellison |
HIS HONOUR:
1 Ms Jones commenced employment with the defendant in August 2009 as an administrator and accounts clerk. She ceased employment on 4 July 2016 and alleges that she was subject to bullying and harassment by a co-worker, Karen Dellow and by her supervisor Jill Hewat which resulted in her sustaining an adjustment disorder with mixed anxious and depressed mood. Ms Jones has remained off work since that date and claims weekly payments and medical treatment expenses in accordance with the provisions of the Workplace Injury, Rehabilitation and Compensation Act 2013.
2 Ms Jones lodged a WorkCover claim on 17 July 2016 which was rejected by Xchanging Integrated Services on 15 August 2016. The defendant denies the allegations of bullying and harassment and further alleges that Ms Jones did not sustain an injury which arose out of or in the course of her employment and that if she did suffer a mental injury, compensation is not payable by virtue of the operation of S 40(1) of the Act.
3 Ms Jones in answer to a request for Further and Better Particulars alleges that the bullying and harassment occurred over a period of time and in particular from March 2016 to 26 July 2016. She alleges that this conduct included being sworn at by a co-worker and suffering from verbal abuse, being undermined and humiliated by her co-workers, that she was not provided with appropriate or adequate training for a planned future promotion and that she received lack of support from senior management and co-workers.
4 The court heard evidence from Ms Jones, Ms Dellow, Ms Hewat and Mr Darren White, the General Manager of the defendant. In addition, numerous documents and medical reports were tendered. The company is based in Bairnsdale and as the name implies, it sells trucks and spare parts and performs mechanical repairs. The company employs in excess of 25 people which includes office staff, sales representatives and mechanics. Whilst the evidence revealed that the events which caused Ms Jones to cease work essentially occurred between Friday 1 July 2016 and Monday 4 July 2016, past incidents were relevant in the context of what was to occur during that period.
5 The evidence revealed that Ms Jones obtained employment with the defendant after replying to an advertisement in the local paper and being interviewed by Jill Hewat, the Office Manager. As a result of discussions over the years between the two, Ms Jones had an expectation that she would take over the role of office manager when Ms Hewat retired. Ms Jones told the court that she loved her job and expected to remain in the employ of the defendant until she retired. She told the court that throughout the period of her employment she had suffered from numerous medical conditions including lupus and epilepsy for which she was taking medication and that she had also dealt with personal and family issues which included; her husband being diagnosed with leukaemia in 2013, the death of her mother and a friend, some financial issues when her husband was made redundant from his employment and when he was establishing his own Trophy business in December 2014. Ms Jones told the court that she had previously sought psychological counselling in 2009 following an incident of a sexual nature in her previous employment for which she submitted a WorkCover claim and received compensation payments for her to 2 to 3 month period of incapacity. She told the court that she was not diagnosed with suffering from any permanent psychological or psychiatric condition and she required no ongoing treatment or medication.
6 The evidence revealed that in October 2014, Karen Dellow commenced employment as an accounts clerk/receptionist in the office after being interviewed by Ms Jones and Ms Hewat. Ms Jones gave evidence that she had a supervisory role over Ms Dellow and told the court that she found her to be a quite anxious and nervous person and therefore did not try to push her too much. She told the court that until late June/early July 2016 she had a good working relationship with Ms Dellow.
7 Ms Jones gave evidence that in approximately March 2016, Ms Hewat suggested to her that she reduce her hours of work to 2 to 3 days per week to enable her to spend more time with her husband. She told the court that she spoke to Darren White and his father Keith (owner of the business) who were opposed to her reducing her hours because they expected her to take over the role of office manager when Ms Hewat retired. Ms Hewat denied that she made the suggestion to Ms Jones that she reduce her hours and told the court that it was actually Ms Jones suggestion and she responded by telling her that it could only be done if Ms Dellow was able to be given further training in order for her to cope with the additional responsibilities. Despite indicating that she had a good working relationship with Ms Hewat, Ms Jones was somewhat scathing of Ms Hewat’s role and her work ethic. She told the court that she considered that Ms Hewat had created and ‘empire for herself’, had a ‘good set-up’ and only worked when she wanted to. She told the court that Ms Hewat would work on average 5 days per fortnight or less, was on a full wage, was provided with taxi vouchers, a car and other benefits and was never held accountable by the owners. She told the court that she believed the owners of the business were ‘frustrated with her’. In cross examination, she agreed that she was not privy to the employment agreement between Ms Hewat and conceded that in any event it was none of her business. Ms Jones also told the court that there was an incident in 2016 between her and Ms Hewat whilst Ms Hewat was on leave when Keith White requested that she make a payment from his self-managed superannuation fund. She said that when Ms Hewat learnt of this on her return from leave she told Ms Jones that she was not to perform that task even if Keith White requested her to do so.
8 Ms Jones also gave evidence that in late 2014 she and her husband were having some financial difficulties over the purchase of his new business and at the time she was also suffering from some medical issues. She told the court that she informed Ms Hewat of these difficulties and Ms Hewat suggested to her that she transfer $5000 from the office account to her account which would be debited against her employment records and she could repay the amount over 12 months. Ms Jones said that she did not discuss this with Darren or Keith White as Ms Hewat told her that she did not have to. According to Ms Jones, other employees had similar loans. Ms Hewat told the court that she made no such offer and the matter only came to her attention when she noted a discrepancy in the accounts. She gave evidence that when she approached Ms Jones about it she was tearful and apologised for taking the money. Ms Hewitt told the court that she did not consider Ms Jones intended to steal the money from the company as it was clearly marked on her employment account and she regarded it as a loan taken without authority. Ms Hewat told the court that she discussed this matter with Keith White and he accepted her explanation and agreed to Ms Jones repaying the company over a period of time. She refuted the allegation made by Ms Jones that other employees had obtained personal loans from the company or made purchases on credit from the company.
The Incidents between Thursday 30 June and Monday 4 July
9 Ms Jones gave evidence that during the afternoon of Thursday 30 June, Ms Hewat asked her whether Ms Dellow was taking an annual leave day on Monday 4 July in order to celebrate her 40th birthday. Ms Jones said that she then approached Ms Dellow and told her that any leave requests had to be processed through her. Ms Jones said that she was not angry with Ms Dellow for speaking directly to Ms Hewat regarding the request for leave but she was disappointed that the request had not been made directly to her. Ms Jones said on the following day, being Friday 1 July, she asked Ms Dellow to order more stationery and was met with an abrupt and somewhat rude response to the effect that she would do it if she had to. She said that Ms Dellow ‘let me have it’ and accused her of snatching a folder off her the previous day and that she was rude to her. Ms Jones told the court that she approached Ms Hewat who told her that she needed to sort out the issue with Ms Dellow and that they would discuss the matter later in the day. She told the court that she did sit down with Ms Dellow and told her that in the future any leave requests should be processed with her. She acknowledged that Ms Dellow had told her that she was upset with her about the way she had approached her about the leave issue. Ms Jones said that during the afternoon she asked Ms Hewat if she was going to sort the issue out with Ms Dellow and she said she would. Ms Jones gave evidence that Ms Hewat told her that she believed that she was ‘overreacting’ and ‘behaving over the top’ in respect to Ms Dellow’s leave request. Ms Jones gave evidence that her initial response to these comments were ‘here we go again’ and explained her feelings by recounting an issue that had occurred 3 or 4 years earlier with another employee who had made a leave request directly to Ms Hewat and when she raised the issue with Ms Hewat she was not given support. Ms Jones gave evidence that when Ms Hewat told her that she believed that she was ‘overreacting’ to the situation she burst into tears, left work and went home.
10 Ms Dellow gave evidence that during the afternoon of 30 June Ms Jones approached her and told her that she was being disrespectful and rude to her in not telling her that she required annual leave on Monday 4 July. Ms Dellow told the court that she was ‘a bit annoyed’ with Ms Jones over the way she approached her. Ms Dellow said that she had raised the issue of taking leave with Ms Hewat 1 to 2 weeks before in a general discussion with her and Ms Hewat had told her that it would probably be okay but she would need to consider it closer to the date in question. Ms Dellow said that in her opinion it was appropriate to raise the issue with Ms Hewat as she was the Office Manager and she was the person to whom she reported. She told the court that on Friday 1 July, Ms Jones approached her and in a ‘very firm manner’ requested that she order more stationery and asked her ‘if that would be a problem’. Ms Dellow told the court that she replied, “fine”, in an abrupt tone to which Ms Jones asked her if they needed to talk about things and Ms Dellow replied, ‘no’, in an abrupt tone. She said that shortly after Ms Jones called her into Ms Hewat’s office and once again asked her if they needed to discuss things and if they had a problem to which she said “no”. Ms Dellow then said to Ms Jones, ‘don’t poke the bear’. She said that Ms Jones became irate and upset and then called for Ms Hewat to come into the office. Ms Dellow told the court that Ms Jones told Ms Hewat that she (Ms Dellow) was being rude and disrespectful to her and Ms Hewat replied by telling both of them that she would be retiring soon and Ms Jones would be taking over from her and that they both needed to sort things out. She said Ms Jones then accused her of lying to Ms Hewat and wanted her to admit that she was rude. She said that Ms Hewat responded by telling both of them that they needed to calm down and that they would all talk about it later. Ms Dellow gave evidence that she did apologise to Ms Jones but Ms Jones refused to accept her apology and stormed out of the office. She told the court that during the meeting Ms Hewat was attempting to mediate but that by the end of the meeting the situation had become worse.
11 Ms Hewat gave evidence that on Friday 1 July she asked Ms Jones whether Ms Dellow had put in a formal leave request for Monday 4 July. She said that Ms Jones then said that Ms Dellow should have raised any leave request with her and that she would speak to Ms Dellow about it. Ms Hewat said that later in the day she was called into her office by Ms Jones and was told by her that she was not happy about the way Ms Dellow had spoken to her and that she had no respect for her. Ms Hewat told the court that Ms Dellow was in tears and she tried to settle both of them down and said that they would sort it out later. She said that later in the day Ms Jones approached her and said ‘we are going to have this out now’. She said that a heated discussion occurred between Ms Jones and Ms Dellow which ended when Ms Jones walked out.
12 Ms Jones gave evidence that on Saturday 2 July, she attended work and after collecting stock take sheets from Ms Hewat’s office, Ms Dellow called her a ‘fucking bitch’. Mr Jones told the court that she ignored the comment and kept working until the stock taking duties were completed and then went home.
13 Ms Dellow denied that she called Ms Jones a ‘fucking bitch’ and Ms Hewat told the court that Ms Jones never complained to her that Ms Dellow had said it.
14 Ms Jones gave evidence that on Monday 4 July she attended work and met with Darren White and explained to him what had happened over the preceding few days. She told the court that she considered that she received a ‘fair hearing’ and that he told her that he would speak to Ms Hewat. Ms Jones said that she then left the defendant’s premises and attended Dr Yeoh on 5 July who provided her with a certificate that she was unfit for work until 11 July. Ms Jones said that she expected Mr White would ring her to discuss the issues after talking to Ms Dellow and Ms Hewat but as she had not heard from him she decided to send a text message to him at 11.05 a.m. on Tuesday 5 July stating; ‘Hi Darren, are you in a position to advise where we are at with things. Thanks, Kaye. She told the court that at 1:14 PM that day she received a response from Darren which stated; ‘I come to ACT late yesterday and still up here delivering. When I left yesterday Jill was still very upset the fact that you had chosen not to turn up for work and elected to stay away from the office considering it was the end of financial year and all you wanted was to learn the GTC process. I think you need to contact Jill and discuss how you feel and also hear what Jill has to say in regards to what’s occurred. The words that were said last Friday I wasn’t there and there for I cannot really comment’. Ms Jones told the court that she replied by sending a further text to Mr White that evening stating; ‘thanks for getting back to me Darren. As I hope you can appreciate, I have not come to work for a very good and legitimate reason. The situation in its current state is unworkable for me. Karen’s behaviour toward me was unacceptable but for reasons only known by Jill, she has endorsed that behaviour. I appreciate that it is difficult for you to comment and act on a situation that you were not privy to, however I cannot be expected to continue as if nothing has transpired. Both Jill and Karen are aware of the facts. I am not surprised that Jill is disappointed with my nonappearance for EOFY-however she shouldn’t be surprised given the treatment I got on Friday. I have been more than eager to learn in the past but it didn’t suit. I would be very surprised if Jill expected things to ‘proceed as normal’ given what happened. Whilst there appears to be nothing that you can do Darren I hope that you can understand that this situation is having a huge impact on me’. Ms Jones gave evidence that she also sent an email to Darren White and Ms Hewat attaching a copy of the medical certificate she had obtained and stating; ‘Darren, as we have already discussed briefly, the events of Friday with Jill and Karen combined with the comment made to me on Saturday by Karen, has created an unworkable situation for me. As I have also previously mentioned this is causing me a great deal of anxiety and needs to be resolved sooner rather than later’.
15 Ms Jones told the court that she forwarded a further certificate of incapacity to her employer on 10 July and then received an email from Ms Hewat on 11 July, which stated; ‘Kaye on your return to work we will be having a meeting in regard to your position at Gippsland Truck Centre. You have the right to have any one of your choosing at the meeting’.
16 Ms Jones gave evidence that at this point she felt betrayed and let down and thought that she was a ‘failure’. She said that she went from being a confident person to locking herself at home and having no confidence whatsoever. She told the court that she thought that all parties would sit down with Darren White to sort out their issues and expectations. She also thought that Darren White and Ms Hewat would tell Ms Dellow that her behaviour was unacceptable. Ms Jones told the court that she expected her employer would contact her about returning to work but they never did and she interpreted the email from Ms Hewitt dated 11 July as an indication that they were going to sack her. She said that her condition subsequently worsened after being provided with statements made by her work colleagues as contained in an Investigation Report commissioned by the WorkCover agent which were critical of her and according to her contained false allegations.
17 Ms Jones told the court that she was referred by Dr Ng to Ms Crotty, Psychologist, for counselling but she still feels like a failure and has no confidence. She told the court that she has never been subject to a performance review and that her attitude and quality of work were never criticised or questioned prior to ceasing work with the defendant.
18 During cross examination, Ms Jones was questioned about the history she gave to Dr Walton, Psychiatrist, who assessed her on behalf of her lawyers on 25 May 2017. Dr Walton obtained a history from Ms Jones that on 30 June Ms Hewat ‘turned on me’ in front of Ms Dellow. Ms Jones told the court that what she meant by this was that Ms Hewat had told her that she was being ‘more than fair and reasonable’ concerning her attitude in relation to Ms Dellow’s leave request but that once they were in the meeting Ms Hewat failed to support her and according to Ms Jones she had ‘hung me out to dry’. Ms Jones disputed telling Dr Walton that the offer to her to be promoted to Office Manager had been withdrawn by the defendant.
19 Ms Jones told the court that on 25 July, she received an email from Ms Hewat with no content and with the letter ‘F’ as the Subject Matter of the email. She told the court that she interpreted this email as being ‘threatening’. When giving evidence, Ms Hewat, whilst conceding the email was sent from her iPhone, could not recall sending it and believed it may have been sent in error. She agreed with the suggestion that the email could possibly be seen as ‘aggressive’.
20 During cross examination, Ms Jones was also asked to identify the particular acts of bullying and harassment that she alleges occurred in the course of her employment. She responded by telling the court that the bullying occurred over the years including a comment made by Ms Hewat about a former employee and when she told Ms Hewat that her comments were not very nice, Ms Hewitt told her; ‘that’s what will happen to you if you cross me’. When asked to provide examples of harassment she told the court an example of this was when Ms Dellow swore at her and an occasion when she criticised Ms Dellow for placing a caller on hold for 15 minutes and Ms Dellow responded by being; ‘cruel to me’.
21 After Ms Jones completed evidence in chief and cross examination, she was recalled to give evidence concerning serious allegations she made against Ms Hewat to Dr Ng, her treating doctor on 2 September 2016 as recorded in a medical report Dr Ng provided to her solicitors dated 5 July 2017. Dr Ng recorded that Ms Jones informed him that; ‘her WorkCover claim had been rejected. She informed me that she may have worked out why her immediate supervisor (the office manager) was out to get her as Kaye had discovered that the manager had been embezzling money from the owners’. When cross-examined on this allegation, Ms Jones conceded that although she believed it occurred as far back as 2012 she never reported her suspicion to her employer or mentioned it to anyone else including her treating doctors until September 2016. She told the court that she left a folder containing the documentation on her desk which included copies of statements and cheque butts on her last day of work for Darren White to discover. She told the court that she never mentioned this before to her employer because; they have a ‘close relationship’ with Ms Hewat, ‘it would have been the end of me’ and she gave Ms Hewat ‘the benefit of the doubt’. Ms Jones told the court that she did mention the $40,000 amount to Ms Hewat years ago by asking her ‘how do we handle this $40,000?’, but she was ignored. Ms Jones told the court that she believed Ms Hewat would pay the money back. She also told the court that she did not believe it was a loan arrangement as Ms Hewat had said to her; ‘they will have to trust me with this because I have not run it by them’. Ms Jones denied making the allegation up and conceded the $40,000 may have been a personal arrangement between Ms Hewat and the company.
22 The allegation was put to Ms Hewat when she gave evidence. She told the court that she had an arrangement with the company that truck registrations, which were costly, were paid using her credit card account with the consent of the owners and this arrangement has been occurring since 2012. She told the court that Ms Jones never mentioned her concerns in relation to this payment method to her.
23 Mr Darren White told the court that the company authorised Ms Hewat to pay for truck registrations online via her credit card because of the large amounts of money involved and this has occurred since 2012. He told the court that the business credit card reaches its maximum quite quickly so it was convenient for the company to use Ms Hewat’s credit card when necessary.
24 Mr Darren White confirmed that Ms Jones was part of a succession plan to take over the role from Ms Hewat when she retired. He said that Ms Jones was a very good employee and the company had no concerns about her work attitude or capabilities. He told the court that he was made aware of the issue between Ms Jones and Ms Dellow by Ms Hewat and that he left it in Ms Hewat’s hands as she was the Office Manager. He confirmed that Ms Jones approached him on Monday 4 July and told him her version of events as to what had occurred and that she also told him that she felt she was not supported by Ms Hewat. He told the court that Ms Jones had said she needed a few days off work as she was not coping. He agreed that Ms Jones had told him that Ms Dellow had sworn at her. Mr White gave evidence that he and his father went interstate on 4 July and did not return until Wednesday 6 July. He said that by the time he returned Ms Jones had provided certificates of incapacity and therefore he was unable to deal with the matter any further. Under cross examination, he conceded that he could have contacted Ms Jones to discuss the matter further but said that as Ms Hewat was her boss it was her responsibility to deal with it. He disagreed with the suggestion that it was a poor management decision by him. He also told the court that the company did not intend to terminate Ms Jones employment and that was not the purpose of the email dated 11 July.
25 A copy of a statement Mr White made to the Investigator on 3 August 2016 was tendered. Of relevance are the following statements;
a. ‘the worker drinks alcohol. I think the worker might drink on most nights but I don’t know how much’. When cross-examined on this statement, Mr White told the court that Ms Jones regularly told him at the end of the day that she would go home and have a few drinks. Ms Jones denied making such a statement and told the court that she does not drink alcohol because of her medication intake;
b. ‘I believe the worker has had some marital difficulties…. The worker said she felt psychologically abused by her husband-she did not state it was physical abuse however she said that her marriage was on the rocks and could we bear with her because they were having troubles’. Ms Jones denied she had experienced marital difficulties and the medical reports and records tendered do not contain any reference to marital issues save and except for her concern about her husband’s health;
c. ‘she came and spoke to me and felt that her workload was reduced here at GTC and she felt she could do what she needed in 3-4 days. She asked if she could work here for 3-4 days and spend the rest of the time in the shop. I said I didn’t think it was a good idea because she was part of the succession plan for when Jill retired. She came back to me and agreed that she would commit to GTC and continue to work full-time (5 days per week). This conversation occurred in March 2016’.
d. ‘The worker has disclosed to me in the past that she has been diagnosed with bipolar and takes medication for this. The worker could also be moody at work. I would always need to gauge by her facial expression as to what type of mood she might be in. The workers moods seem to be worse around the time she had said she was having marital problems’. Ms Jones denied that she has ever been diagnosed as having a bipolar disorder and denied saying such a thing to Mr White.
e. ‘On the 21 May 2016, I had a meeting with the worker-she said that this is the biggest commitment she has ever made-to come and work for us. However she said she felt there was no extra learning from Jill and that she was very disappointed. She said she was ‘pissed off’ that there was no offer to learn how to do the work superannuation at the end of May. The worker said she was also annoyed that Jill had paid out the Isuzu’s but had not told her’.
f. ‘There are 3-4 staff that the worker has had ‘run-ins’ with. The arguments appeared to have occurred because she was trying to exert authority on others due to the succession plan. I think she felt she had more authority than she had’. Ms Jones gave evidence that she was never told of any complaints about her behaviour or work performance.
g. ‘We do not have a specific GTC policy regarding Code of Conduct, bullying and harassment etc. however we are members of VACC and they provide us with policies and procedures which we posted in our tea rooms for our staff to access. We have never conducted any training on bullying and harassment’.
h. ‘I do not believe that the worker is well liked within the workplace. Other staff have made complaints about the worker. The last complaint occurred in the last 3 months-my salesperson said to me ‘what is wrong with Kay today’ and I said ‘why’ and he said she has just had a go at me about the rego paperwork’. As mentioned Ms Jones gave evidence that she was not aware of any complaints being made about her behaviour or attitude at work.
i. ‘The worker is considered to be a good worker. I have often said to Jill that as much as the worker is fragile, when she does do her job she is very efficient’.
j. ‘I believe that the worker felt the transition process to Jill’s role was taking too long. I believe this was evident especially during meetings between the worker and myself earlier this year. I told the worker that this transition will happen when Jill is ready and that she should respect Jill’s decision in terms of timing’.
k. ‘Prior to the lodgement of the claim form, the worker has never said to me that she has felt bullied by Karen or Jill or anyone in the workplace’.
l. ‘There have been occasions where the worker has argued with customers. The arguments have been about overdue accounts. Quite often the worker was very rude to customers in regards to when they would agree to pay. The worker has had heated discussions over the phone in relation to payments and debtors’.
Medical Evidence
26 Ms Jones tendered a medical report from her treating general practitioner, Dr Ng at the Macleod St Medical Centre, Bairnsdale who reported that she first presented on 7 July 2016, with severe stress and anxiety symptoms. Dr Ng obtained a history from Ms Jones that she had been verbally attacked on 2 July by her immediate supervisor whom she felt had set her up and bullied her. Ms Jones told Dr Ng that this had been occurring for some time prior to 2 July. During the following weeks Ms Jones told Dr Ng that her symptoms had worsened to the extent where she was unable to leave her house for fear of bumping into a colleague or acquaintance and experienced intrusive thoughts of fear and felt betrayed, felt worthless, was experiencing sleep disturbance and other symptoms including palpitations, nausea and fatigue. Dr Ng reported that he referred her to Ms Crotty, psychologist for treatment.
27 As already mentioned, Dr Ng obtained a history from Ms Jones on 2 September 2016, that she believed Ms Hewat was out to get her as she had discovered that Ms Hewitt had been embezzling money from the owners. Dr Ng reported that on 28 September Ms Jones informed him that she had cited the Investigation Report which she believed was full of lies which included accusations of her being an alcoholic and suffering from a bipolar affective disorder. She was also critical of a psychiatric assessment she had attended on behalf of the WorkCover agent which she said only lasted 13 minutes. Dr Ng reported that by March 2017, Ms Jones condition had improved when she was offered a job by a friend at a shop in town. He also reported that over the following months her symptoms continued to fluctuate but her confidence remained low. Dr Ng diagnosed that Ms Jones suffers from a severe adjustment disorder with depressive and anxiety features and that she will require ongoing treatment at least until her WorkCover claim has resolved.
28 The defendant tendered medical records from the Cunninghame Medical Centre, Lakes Entrance where Ms Jones previously attended for treatment prior to 30 May 2016. The records indicate that Ms Jones and her husband suffered from a number of medical conditions over the years which caused Ms Jones some anxiety and grief and a suggestion that she required psychological counselling.
29 Ms Crotty reported that she first saw Ms Jones in July 2016 and diagnosed that she suffered from an adjustment disorder with depression and anxiety, the symptoms of which were not present prior to the breakdown of her relationship with her employer. She reported that in June 2017, Ms Jones continued to experience a high level of distress, required ongoing treatment and that her condition had not stabilised.
30 Dr Walton, Consultant Psychiatrist, assessed Ms Jones on behalf of her lawyers on 25 May 2017. Dr Walton was provided with a copy of the Investigation Report and the medical reports of Dr Prytula, Psychiatrist, who assessed Ms Young on behalf of the WorkCover agent on 28 July 2016. Dr Walton obtained a history from Ms Jones that; there was a particular incident on 30 June 2016 where the office manager ‘turned on me’ in front of the other office worker and the office manager presented Ms Jones with contradictory information regarding previous arrangements about taking leave which seemed to act as a psychological final straw for Ms Jones. She stated that she was nothing short of ‘devastated’ and ‘I was really upset’, sufficient for her to leave work early on 1 July 2016 but she did return to work the following day to assist with the annual stock take, that being Saturday. Ms Jones asserts that the other office worker (not the office manager) directed a derogatory expletive at her for unstated reasons. Ms Jones stated that she was advised by the office manager that she could go home around 2 PM, which she did. Ms Jones attended work again on the following Monday to meet with the general manager. Her impression was that he was supportive in relation to the difficulties she was encountering. However, the following morning there seemed to be a change of attitude and she was simply instructed to “sort it out’ with the office manager. 3 days later Ms Jones received an email from the office manager indicating that the offer of promotion had been reversed and Ms Jones stated that she actually became quite frightened of being retrenched outright at that point.
31 Dr Walton also obtained a history from Ms Jones that when she received a copy of the Investigation Report, the contents of which she regarded as false information, it ‘tipped me over the edge’. She told Dr Walton that she disputed that she had ever been diagnosed with suffering from a bipolar mood disorder, that her marriage was in trouble and said that the description of actual events at the workplace were distorted. She was also surprised by comments that she was not liked by customers and that she was regarded as a liability for the company. After obtaining a history and evaluating her current mental state, Dr Walton diagnosed that Ms Jones as suffering from a mixed anxiety/depressive disorder and based on her account with no other readily identifiable cause, the stressors at work impacted upon a vulnerable personality. Dr Walton recommended ongoing psychological counselling and did not believe her condition had stabilised. He is optimistic that she has reasonable prospects of regaining a full capacity for work at an alternative worksite.
32 Dr Prytula obtained a history from Ms Jones that she suffered ‘humiliation, undermining, an advancement offer which was not substantiated and a lack of support’ at her workplace. Ms Jones told Dr Prytula that; she felt that the undermining had been going on for several years. She said that she thought that Jill Hewat had a very close personal relationship over 20 years with the White family, who owned the business, and that Jill Hewat did not really want to leave and so when the worker was told that she was to go and speak to Jill and tell her that she had committed to taking over her position, the worker thought that this was not what Jill wanted to hear. Dr Prytula noted that in a statement made by Ms Hewat she alleged that Ms Jones was unable to deal with any pressure, was arguing with staff and customers and not showing tolerance. Dr Prytula diagnosed that over the past 6 months Ms Jones developed an adjustment disorder with mixed anxious and depressed mood.
33 Following his initial assessment of Ms Jones, Dr Prytula opined that her condition appeared to be work-related. On receipt of the Investigation Report which contained allegations of; marital trouble over the last 12 months; the transfer of $5000 from the company account to her own account; a disclosure by her that she had been diagnosed with a bipolar disorder and was prescribed medication for it; a prior WorkCover claim; a company supplied car and petrol allowance; personal issues with her husband going back several years; attacking another co-worker in the presence of the manager and her behaviour being short and condescending, he reconsidered his opinion and stated that Ms Jones condition was an aggravation of a pre-existing condition, the aggravation not being related to work.
Conclusion
34 It is not in dispute that Ms Jones suffers from an adjustment disorder with anxiety and depression. The issues to determine are whether this condition arose out of or in the course of her employment, and if so, whether S 40 (1) operates to disentitle her to compensation under the Act.
34 I did not find Ms Jones to be a credible witness in relation to certain aspects of the evidence she gave. I find that she deliberately embellished some of the evidence she gave and was untruthful in other aspects with a view to furthering her cause. However, the fact that I do not accept the truthfulness of certain aspects of her evidence does not mean her evidence should be discarded entirely. I find that she had a vindictive attitude towards Ms Hewat possibly emanating from her desire to take over her role as office manager. In particular, I do not accept her evidence as being truthful in relation to;
a. Ms Hewat suggesting to her in March 2016 that she reduce her hours of work. I accept the evidence of Ms Hewat and Mr White that it was in fact Ms Jones who sought to reduce her hours so that she could spend more time with her husband;
b. I do not accept her evidence that the $5000 she took from the company account was a ‘loan’ authorised by Ms Hewat;
c. I do not accept her evidence that Ms Dellow called her a ‘fucking bitch’ on Saturday 2 July. I therefore accept Ms Dellow’s evidence that she did not make that comment and Ms Hewat’s evidence that Ms Jones never complained to her that Ms Dellow had made such a comment;
d. I do not accept her evidence that she did not tell Dr Walton that the offer of promotion had been withdrawn by the company;
e. I do not accept her evidence that Ms Hewat said to her ‘that’s what will happen to you if you cross me’ when referring to a former employee;
f. I find that the embezzlement allegation made by her against Ms Hewat was fabricated and borne out of pure vindictiveness in relation to Ms Hewat’s delayed retirement date and Ms Jones view that she had been unfairly treated by Ms Hewat in her dispute with Ms Dellow;
g. I do not accept the evidence she gave attempting to justify her failure to report the alleged criminal conduct of Ms Hewat to her employer or the police.
35 Notwithstanding the adverse findings I have made as to her credit, I do find that the events at work over a period of time did cause her to become frustrated, anxious and depressed resulting in her incapacity for work from 4 July 2016. Her mental condition arose because;
a. she became increasingly frustrated with the delay in the retirement of Ms Hewat which would have resulted in her being promoted to office manager, as indicated by her in her discussions with Mr White in early 2016;
b. she believed that Ms Dellow was disrespectful to her in relation to the annual leave issue;
c. she believed that Ms Hewat failed to properly support her in her dispute with Ms Dellow;
d. she believed that Mr White failed to properly support her in her dispute with Ms Dellow and Ms Hewat; and
e. she felt disillusioned, disappointed and betrayed by the comments of her work colleagues to the investigator.
36 Accordingly, I find that Ms Jones did sustain a ‘mental injury’, being an adjustment disorder with mixed anxiety and depression, which arose in the course of her employment with the defendant. It did not occur because of alleged bullying or harassment.
37 The remaining issue to determine is whether s 40 (1) of the Act operates to disentitle Ms Jones to compensation. The action taken by Ms Hewat in attempting to resolve the conflict between Ms Jones and Ms Dellow and the attitude of Mr White when he became aware of the conflict between Ms Jones, Ms Hewat and Ms Dellow clearly falls within the definition of ‘management action’ as contained in S 40 (7).
38 In order for the provision to apply, thereby disentitling Ms Jones to compensation, there must be a finding that her ‘mental condition’ was caused wholly or predominantly by the ‘management action’. This is a question of fact to which the defendant has the evidentiary onus of establishing that the ‘management action’ was taken on reasonable grounds and in a reasonable manner, and if so, Ms Jones has the legal onus of demonstrating that her condition did not arise wholly or predominantly from such action. Whether Ms Hewat or Mr White took ‘management action’ on ‘reasonable grounds’ and in a ‘reasonable manner’ is to be assessed objectively after considering all the circumstances leading up to it being taken and the manner in which it is taken in a global context taking into account:
(i) that the management action and the manner in which it is taken should not be irrational, absurd or ridiculous but moderate and fair; and,
(ii) the judgement is whether the action taken was done “reasonably” not whether it could have been done more reasonably or in a different way more acceptable to the court; and,
(iii) the action and the manner in which it is taken may be reasonable even if particular steps involved are not; and,
(iv) the action and the manner in which it is taken should be assessed at the time it is taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.[1]
[1] See Krygsman-Yeates v State of Victoria 4 November 2011
39 I have already made a finding that Ms Jones ‘mental condition’ arose as a result of a combination of factors which included her honestly held belief that Ms Hewat failed to properly support her in her dispute with Ms Dellow and that Mr White failed to properly support her in her dispute with both Ms Dellow and Ms Hewat. However, the other factors which played just as important a role in the cause of her mental condition were; her frustration with the delay in the retirement of Ms Hewat thereby causing a delay in her promotion to office manager; her honestly held belief that Ms Dellow was disrespectful to her and her reaction to reading the comments made by her work colleagues to the investigator. Given these findings, her ‘mental condition’ was not caused wholly or predominantly by the management actions of either Ms Hewat or Mr White.
40 Even if I reached a different conclusion on this issue, I would not have concluded that the management action of Mr White was taken on reasonable grounds and in a reasonable manner. Mr White was aware on Monday 4 July and during the following week, as indicated by the exchange of emails between him and Ms Jones, that Ms Jones was frustrated and upset by the events over the previous few days, which included her belief that she had not been supported by Ms Hewat in her dispute with Ms Dellow. His decision to delegate responsibility to Ms Hewat to resolve the dispute with the knowledge that she was part of the problem was not ‘management action’ taken on reasonable grounds and in a reasonable manner nor was his authorisation of the insensitive email to her by Ms Hewat on 11 July which contributed to a worsening of her fragile condition.
41 Accordingly, Ms Jones is entitled to compensation in accordance with the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013.
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