Keegan v Sussan Corporation (Aust) Pty Ltd
[2014] QSC 64
•7 April 2014
SUPREME COURT OF QUEENSLAND
CITATION:
Keegan v Sussan Corporation (Aust.) Pty Ltd [2014] QSC 64
PARTIES:
GABRIELLE RENEE KEEGAN
(plaintiff)
v
SUSSAN CORPORATION (AUST.) PROPRIETARY LIMITED
ACN 005 489 725(defendant)
FILE NO/S:
SC No 62 of 2013
DIVISION:
Trial
PROCEEDING:
Civil
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
7 April 2014
DELIVERED AT:
Cairns
HEARING DATE:
20-22 August 2013 and 18-19 November 2013
JUDGE:
Henry J
ORDERS:
Judgment for the plaintiff in the sum of $237,770;1.
I will hear the parties as to costs.2.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the plaintiff claims damages for personal injury and consequential loss arising as a result of the negligence, breach of contract or breach of statutory duty of the defendant, its servants or agents – where the plaintiff alleges she suffered a psychiatric injury as a result of bullying and harassment by her supervisor – whether the defendant took appropriate precautions to prevent such an injury from occurring – whether the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable as a consequence of the defendant’s breach of duty
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – GENERAL – where the plaintiff has been unable to function in her role as mother, wife and employee as a result of the defendant’s breach of duty – whether the plaintiff’s award should be reduced because of her personality traits
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305D, s 306D, s 306F, s 306N, s 306O, s 306P
Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) sch 9Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, applied
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, followed
Tame v New South Wales (2002) 211 CLR 317, applied
Vairy v Wyong Shire Council (2005) 223 CLR 422, appliedWyong Shire Council v Shirt (1980) 146 CLR 40, applied
COUNSEL:
SD Anderson for the plaintiff
S Sapsford for the defendant
SOLICITORS:
Shine Lawyers for the plaintiff
Gadens Lawyers for the defendant
The plaintiff, Ms Keegan, claims about $1.2 million damages for personal injury and consequential loss allegedly arising as a result of the negligence, breach of contract or breach of statutory duty of the defendant (“Sussan”), its servants or agents.
She alleges she suffered a psychiatric injury as a result of bullying and harassment by her supervisor, Diana Clarke, over 11 working days at Sussan’s Cairns Central store. Her impairment is alleged to be so extreme that she is unlikely to be able to return to full time work.
Sussan denies liability, arguing Ms Keegan has had an extraordinary and unforeseeable psychiatric response to essentially unremarkable behaviour by a supervisor towards her.
Background
Ms Keegan had been an employee of Sussan’s Cairns Central store since 2004. She held the position of assistant store manager.
In April 2010 she took leave to care for her new born child. While she was on leave the store manager, Anne McMahon, left the store and Ms Clarke was employed as the new manager.
Ms Keegan returned to work on 7 September 2010. Within the ensuing 11 days at work she became so psychologically unwell, allegedly in consequence of Ms Clarke’s bullying conduct, that she was unable to return to work again.
The concerning conduct of Ms Clarke allegedly included her unwarranted criticism of Ms Keegan about the previous state of the store, not signing up customers to the store’s VIP discount programme, poor handwriting, failing to remove security tags from clothing and not mopping the floor properly. It also involved excluding Ms Keegan from knowledge of and participation in matters of business management, ignoring Ms Keegan’s offers of assistance and warning her of the consequences of a drop in standards.
Ms Clarke is alleged to have repeatedly spoken to Ms Keegan in an aggressive and nasty tone. In one instance she allegedly held her hand up towards Ms Keegan in a stop signal telling her not to help with arranging sleepwear for a sale and, in another, held a mop to Ms Keegan’s face challenging her for supposedly falsely asserting the mop was not in proper condition.
Further to these complaints Ms Keegan described an isolating atmosphere in which Ms Clarke was generally more sociable and friendly towards other staff in comparison to Ms Keegan.
On the third working day of Ms Keegan’s return she was telephoned by Sussan’s Queensland Business Manager, Jayne Makarein. Ms Makarein enquired of Ms Keegan how Ms Keegan and Ms Clarke were. At that point Ms Keegan chose not to reveal the problems she was experiencing and responded that she was enjoying being back at work and Ms Clarke was good.[1]
[1] T1-28 L17.
However, after the episode involving the mop at the end of the fourth working day Ms Keegan telephoned Ms Makarein and revealed the truth, outlining how Ms Clarke had been bullying her.[2] This complaint did not prompt a proper application of Sussan’s bullying and harassment policy. Ms Makarein’s unfortunate response was to telephone Ms Clarke telling her of what had been said and asking her to be mindful of how she dealt with Ms Keegan in the future.[3] That did not solve the problem, unsurprisingly.
[2] T1-33 L34.
[3] T2-59 L33.
Ms Keegan telephoned Ms Makarein on 13 September 2010 reporting her concerns about Ms Clarke’s continued conduct.[4] After the events of Ms Keegan’s eleventh working day she telephoned Ms Makarein the following day, reporting to her that matters had become worse rather than better. According to Ms Keegan, Ms Makarein’s response was to tell her she was going to have to work it out for herself.[5]
[4] T1-37 L15.
[5] T1-44 L34.
Ms Keegan was too upset to return to work and went into a period of prolonged mental decline during which she received psychiatric treatment and her husband and mother took increasing responsibility for the day to day care of her child.
She has been unable to return to any form of employment. It is admitted on the pleadings she has been diagnosed with a psychiatric injury variously described as:
(a) a major depressive disorder, single episode with possible melancholic features without psychotic features;
(b) major depressive disorder, single episode with significant melancholic features and borderline psychotic features complicated by pathological anxiety and psychosocial avoidant phenomenon;
(c) a chronic adjustment disorder with anxiety; and
(d) mixed anxiety depressive disorder.
The alleged foundation of liability
Ms Keegan’s claim alleges her injuries and consequential loss arise “as a result of the negligence, and/or breach of contract and/or statutory duty by the defendant, its servants or agents”. However, the allegation of a breach of statutory duty is not repeated in the pleadings. Nor did Ms Keegan’s counsel articulate any breach of statutory duty in her written or oral submissions.
The statement of claim alleges Ms Keegan’s personal injury was “a result of the course of conduct engaged in by Ms Clarke”[6] and “was caused by the negligence and/or breach of contract of the defendant.”[7]
[6] Statement of Claim (“SOC”) [11].
[7] SOC [13].
The particulars pleaded of how the injury was caused by the negligence or breach of contract of the defendant are:
“14. The defendant by its agents or servants failed to provide and maintain a safe workplace by:
(a) Causing and/or permitting Ms Clarke to bully and harass the Plaintiff when the employer knew or ought to have known it was occurring;
(b) Failing to implement any or any adequate policy to prevent bullying and harassment of the Plaintiff;
(c) Failing to undertake any or any adequate enforcement of the bullying and harassment policy of the Defendant;
(d) Failing to raise any perceived issues with the Plaintiff’s work performance in a confidential and private manner;
(e) Failing to ensure that Ms Clarke was trained;
(f) Failing to provide Ms Clarke with any or any adequate training with respect to appropriately managing and communicating with the staff;
(g) Failing to provide any or any adequate supervision to ensure that a safe system of work was adopted by the defendant.”
The statement of claim then alleges:
“16. In committing these acts and omissions the Defendant was negligent and in breach of its duty of care owed to the Plaintiff, further or alternatively the Defendant breached the terms of its contract of employment with the Plaintiff.
17. In the alternative, the Defendant is vicariously liable for the actions of Ms Clarke who engaged in the course of conduct, during which she bullied and harassed the plaintiff in the course of the plaintiff performing her employment duties.”
Despite vicarious liability being pleaded “in the alternative” it was not alleged elsewhere in the statement of claim or in submissions at trial that vicarious liability is a foundation for Sussan’s liability separate and apart from its negligence or breach of contract. Rather, Ms Keegan’s case appears to be Sussan is liable for Ms Clarke’s alleged bullying and harassment because it caused or permitted it by failing to provide and maintain a safe workplace.
Legal principles
An employer’s duty under the law of negligence to take reasonable care for the safety of employees also arises as an implied term of the employment contract.[8] In the present case Sussan did not attempt to argue there is any material variation in the nature of the duty of care arising under the law of negligence as distinct from the law of contract.
[8] As explained by McHugh J in Tame v New South Wales (2002) 211 CLR 317, 365.
It is well established the employer’s duty of care includes an obligation to take all reasonable steps to provide a safe system of work[9] and to take reasonable care to avoid psychiatric injury.[10]
[9] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 53.
[10] Ibid.
The critical pre-condition to liability for negligently inflicting psychiatric injury is whether “in all the circumstances, the risk of a plaintiff… sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.”[11]
[11] Ibid, 57; Tame v New South Wales (2002) 211 CLR 317.
It is not a separate pre-condition to liability that a person of “normal fortitude” might have suffered the psychiatric injury.[12] As the High Court explained in Koehler v Cerebos(Aust) Ltd,[13] the focus is not upon the hypothetical person of normal fortitude but rather upon the particular employee in the case under consideration and “invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.”[14]
[12] Tame v New South Wales (2002) 211 CLR 317.
[13] (2005) 222 CLR 44.
[14] Ibid, 57.
Further, it is not enough to demonstrate only that a psychiatric injury was reasonably foreseeable and that a defendant’s negligence was the cause thereof. The magnitude of the risk and its degree of probability must also be considered.[15] As was explained by Spigelman CJ in Nationwide News Pty Ltd v Naidu:[16]
“[I]t is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough. …
An employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty. …
One of the elements required to be assessed is the degree of probability that the risk of psychiatric injury may occur, even when the reasonable forseeability test of a risk that is not far fetched and fanciful, has been satisfied.”
[15] Wyong Shire Council v Shirt (1980) 146 CLR 40, 46.
[16] (2007) 71 NSWLR 471, 478.
Consideration of the degree of probability that the risk of psychiatric injury may occur is effectively enshrined in s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) which provides:
“(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.”
The consideration of whether a reasonable person in the position of the defendant would have taken precautions necessarily involves a consideration of what a reasonable person would have done by way of response to the risk.[17] Importantly, that inquiry is prospective.[18] In Nationwide News Pty Ltd v Naidu Spigelman CJ explained the particular significance of the prospective nature of the inquiry in the case of psychiatric injury:[19]
“In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless the situation can be seen to arise which requires intervention on a test of reasonableness.”
[17] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.
[18] Vairy v Wyong Shire Council (2005) 223 CLR 422.
[19] Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 477.
The High Court’s emphasis in Koehler v Cerebos (Aust) Ltd upon the need to give attention to the nature and extent of the work being done by the employee and signs given by the employee heralds a logical starting point for the application of the above principles to the present case.
Some fields of employment might of their nature bespeak a heightened risk of psychiatric injury. Here there was nothing extraordinary about the nature and extent of the work Mrs Keegan was employed to perform. Nor was it out of the ordinary that in performing her work Ms Keegan should be subject to supervision and, if necessary, correction by her store manager, Ms Clarke. Indeed, to a greater or lesser degree, virtually any employed person will be subject to some form of supervision and potential correction by or on behalf of their employer.
The High Court explained in Koehler v Cerebos (Aust) Ltd[20] that:
“...[T]he employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.”
By parity of reasoning in the present case, Sussan was entitled to assume Ms Keegan considered herself able to cope with supervision and, if necessary, correction by her store manager, that being an inevitable incident of the performance of her duties. Obviously such an assumption would be less readily open where the nature of such supervision or correction was known or should have been known to be excessive or inappropriate or where its effect was known or should have been known to be out of the ordinary.
[20] (2005) 222 CLR 44, 57.
It is therefore important to analyse what the facts of the present case actually were with an eye to whether there were signs warning of the possibility of psychiatric injury. Was Sussan aware Ms Clarke was so lacking in ability as a supervisor as to signal the possibility she might occasion psychiatric injury upon those she supervised? Was Ms Clarke’s actual supervision and correction of Ms Keegan of such an unreasonable or excessive nature as to signal the possibility it might occasion psychiatric injury to Ms Keegan? Did Ms Keegan exhibit signs suggesting the possibility Ms Clarke’s supervision and correction of her might occasion psychiatric injury? The analysis of the facts should also consider, in the event there were such signs, what Sussan’s response to those signs was with a view to considering whether it was a reasonable response.
Factual Analysis
Prior to Maternity Leave
Ms Keegan had worked full time as assistant store manager at Sussan’s Cairns Central store since 2004. The manager of the store throughout that time was Anne McMahon, who had worked there since March 2000.
Ms Keegan had longstanding experience in retail sales and had managed the Cairns Central Katies store.[21] While she had experienced some past psychological difficulty with bulimia, there is no suggestion it was work related or that Sussan should have been aware of it. On the face of it she was a stable and competent employee.
[21] T1-9; T1-58 L38 – T1-59 L15.
Ms Keegan testified she did not ever receive a warning or have trouble about her work performance.[22] Ms McMahon testified she had no hesitancy about Ms Keegan’s ability and Ms Keegan knew her job “inside out”.[23] Ms McMahon’s evidence was that prior to going on maternity leave “Gabby was probably the most loyal, dedicated person that I have worked with.”[24] She further stated that Ms Clarke’s personality was “huge” and that she brought a lot of fun and enthusiasm to the workplace.[25] Ms Laura Franks, store assistant, described Ms Keegan as a happy, bubbly person who was easy to get along with[26] and a great assistant manager.[27]
[22] T1-11 L25.
[23] T2-11 L33.
[24] T2-5 L37.
[25] T2-5 LL42-45.
[26] T4-46 L18.
[27] T4-47 L8.
During her employment at Sussan, Ms Keegan was given positive feedback from Ms McMahon[28] and received positive performance reviews,[29] one of which was tendered in evidence.[30] Ms Keegan also received positive feedback from customers.[31] Ms Makarein, the manager in charge of Sussan’s Queensland stores, provided Ms Keegan with positive feedback from a customer who emailed to express the great customer service she received from Ms Keegan.[32] Sussan customer support officer Haydee Hayes also wrote to Ms Keegan to congratulate her on excellent customer feedback and recognise her for her “hard work and positive attitude”.[33]
[28] T1-13 L2.
[29] T1-11 L24.
[30] Ex 2.
[31] T1-11 L44.
[32] Ex 3.
[33] Ex 3.
Ms Keegan commenced maternity leave unreservedly intending to return to work. She explained:
“…I wanted to come back to work because I loved my job. … It was my life. It was something that was a part of me.”[34]
[34] T1-13 L22.
During Maternity Leave
Whilst Ms Keegan was on maternity leave Ms McMahon ceased her employment at the store and Ms Clarke was employed as the new manager.
Ms Clarke was interviewed as a result of being referred by Ms McMahon.[35] Ms McMahon’s evidence was that Ms Clarke was a shopper who had visited the store a few times. Ms Clarke had said she was looking for work and Ms McMahon advised her position would be available soon.[36] Ms Clarke was employed by Ms Makarein after interviews and reference checks.[37]
[35] T2-72 L25-29.
[36] T2-7 LL33-38.
[37] T2-56 L13-17.
A reference check was provided by Donna Faulkner, who was the manager at Loloma Jewellers when Ms Clarke was employed there. Ms Faulkner testified that Ms Clarke came into her workplace with Ms Makarein, which was a surprise to her because Ms Clarke and Ms Faulkner did not speak. Ms Makarein enquired if Ms Faulkner would provide a reference for Ms Clarke, which she did the following day over the phone.[38] Ms Faulkner testified that Ms Makarein asked her if she would employ Ms Clarke again and Ms Faulkner’s response was “no”. When asked why, Ms Faulker said she did not believe that Ms Clarke was management material and she would need to learn management skills and people skills.[39]
[38] T4-54 LL38-45.
[39] T4-55 LL7-16.
In the face of such a clearly adverse referee report from Ms Faulkner it should have been obvious at the outset to Ms Makarein that she was employing a person with probably limited management skills. Sussan was in effect put on notice of the need for Ms Clarke to receive management training and, at least initially, to closely scrutinise and support her performance as a manager.
Sussan’s training of Ms Clarke in management was limited to on the job training. Ms McMahon testified that she was responsible for teaching Ms Clarke everything about her position because Ms Clarke had never worked in retail fashion.[40] Induction training was provided to Ms Clarke by Ms Makarein, covering policies and procedures, including Sussan’s bullying and harassment policy.[41] Ms Clarke was also taken through merchandising, store standards, the selling process and the basic running of the store.[42] Such evidence as there was of the training Ms Clarke received suggests its emphasis was on Sussan’s policies and procedures and managing the store and not on how to manage people. When Ms McMahon was asked if she trained Ms Clarke in management of staff she responded, “Well, we did go through the code of conduct and harassment policies.”[43] Ms Clarke acknowledged Sussan gave her no training in personnel management.[44] This made it all the more important for Sussan to closely scrutinise and support Ms Clarke’s performance as a manager of people. Ms Makarein testified that the store’s presentation and sales lifted under Ms Clarke’s new management and the store’s employees expressed no concerns to her about Ms Clarke but she did not suggest Ms Clarke’s performance in managing staff was the subject of any particular ongoing supervision or support.[45]
[40] T2-8 LL18-20.
[41] T2-57 L3-4.
[42] T1-96 LL35-44; T2-56 L45.
[43] T2-13 L22.
[44] T1-112 L20.
[45] T2-61 LL10-27; T2-72 L22.
Admittedly the store only had a small complement of staff, with seemingly only two or occasionally three staff members rostered on at any given time. If there had been on the job training about staff management it may potentially have sufficed in respect of staff who were working during that training period. But Ms Keegan was not working at that time. The return of Ms Keegan, the store’s longstanding assistant manager, to a store being run by a new manager was obviously an event that could potentially challenge Ms Clarke’s management ability. However, there was no evidence to suggest this prospect prompted any particular support or preparation of Ms Clarke by Sussan in advance of it occurring.
To compound the prospect of that event being problematic the evidence suggests in the era after Ms Clarke commenced and Ms Keegan sometimes visited the store while on maternity leave, each of them became uneasy about working with each other.
Ms McMahon testified Ms Keegan seemed annoyed upon hearing Ms McMahon was leaving the employ of Sussan and was apprehensive about who would be replacing her.[46] Ms Keegan was to later inform Ms Makarein that Ms McMahon had told her Ms Clarke was tough and she had better watch out.[47]
[46] T2-9 LL18-19.
[47] T2-78 L5.
Ms McMahon also made comments to Ms Clarke likely to arouse concern on her part about Ms Keegan. When she was asked whether she spoke to Ms Clarke negatively about Ms Keegan, Ms McMahon replied:
“I probably did tell that Gabby gave me trouble, because on certain occasions, she certainly did … we used to have the odd – remembering Gabby was a manager in her own right, before me, and she came. So she came with all these strengths, and although we worked together as a team, sometimes my ideas might not have been hers, and she was—or if I would suggest something, she may not agree with me. So we would have the odd tiff, but that wasn’t a bad thing. … So if I did say I had trouble, it was probably to do with her stubbornness and the fact that she knew her job. She knew every aspect of Sussans the way I did, so there was no fooling her, and there was no getting over what she knew, and the hardest thing I think would be for a new manager to say something to Gabby that Gabby would know was not right, because Gabby just wouldn’t have just been silent. She would have said this … is how it’s always done. This is Sussan’s way. So yes, I very well did.”[48]
[48] T2-11 LL5-27.
Ms Clarke’s account of this conversation was:
“I was told by Anne McMahon to be careful of Gabby because she used to give Anne a hard time and she would give me a hard time and just to watch her.”[49]
[49] T1-111 L25.
Ms Keegan attended at the store during her maternity leave on various occasions; for instance to introduce herself to Ms Clarke,[50] to obtain her group certificate[51] and to collect lay-by clothing. During one visit Ms Clarke had Ms Keegan mind the store for approximately five minutes while Ms Clarke went to the toilet.[52] On another visit Ms Keegan asked Ms Clarke to have a coffee together and talk, with the objective of creating a good working relationship.[53] This episode was prompted by a casual conversation Ms Keegan had previously with Ms Clarke when walking by the store.[54] During this conversation Ms Clarke told Ms Keegan that she was a different manager, there had been changes and things were different now.[55] Ms Keegan assured Ms Clarke that she would back her up and be the “2IC” Ms Clarke wanted.[56]
[50] T1-15 L14-18.
[51] T1-15 L32.
[52] T1-15 L37-43.
[53] T1-16 L6-22.
[54] T1-16 L24-27.
[55] T1-16 L29-30; T1-63 L13; T1-99 L29.
[56] T1-16 L32-33.
On one occasion Ms Keegan attended upon the store to ascertain her forthcoming work roster. The roster book was not there, so Ms Keegan asked another employee, Annie, if she could access the point of sale computer for Ms Keegan to see the roster.[57] Annie did so and Ms Keegan wrote her hours down.[58] On a later date, before her return to work, Ms Keegan was questioned by Ms Clarke about accessing the computer.[59] It is common ground that Ms Keegan did acknowledge when questioned by Ms Clarke that she ascertained her roster details from the computer via Annie. However, Ms Clarke testified Ms Keegan initially falsely denied having gained access to the computer,[60] an assertion disputed by Ms Keegan.[61] In point of fact, another staff member had accessed the computer so it was not a topic without risk of misunderstanding. The defendant’s counsel emphasised this event as adversely impacting Ms Keegan’s credit. While I accept Ms Clarke probably did perceive Ms Keegan lied when she first questioned her, I do not accept Ms Keegan actually did so. It is likely Ms Clarke’s impression that something improper had occurred left her more likely to assume the worst in interpreting Ms Keegan’s initial responses and she was unlikely to have allowed for the possibility Ms Keegan did not at first understand what she was being asked by Ms Clarke.
[57] T1-17 L8-33.
[58] T1-17 L35.
[59] T1-67 L20.
[60] T1-98 L16.
[61] T1-67 L21.
The upshot of this conversation was Ms Clarke instructed Ms Keegan she was not to access the computer again and not to be near the computer.[62] This was not an unreasonable instruction because Ms Keegan was on leave and not accountable for the use of the computer, which also controlled the till. However, its real motivation was Ms Clarke believed Ms Keegan lied to her about accessing the computer.[63] Ms Clarke’s adverse view of Ms Keegan assists in explaining why the instruction was said without the courtesy of acknowledging to a long serving employee that she was not suspected of any improper motivation in having accessed the computer. It was the kind of abrupt, insensitive style of expression which was to recur on Ms Keegan’s return to work.
[62] T1-18 L1-17.
[63] T1-116 L23.
At one stage while on leave Ms Keegan became aware Ms Clarke, in preparing for her return, had only rostered Ms Keegan for a 30 hour week. She was contracted to work a 38 hour week and stressed that to Ms Clarke. Ms Keegan then contacted Ms Makarein about the issue and was subsequently advised Ms Makarein had contacted Ms Clarke and “sorted it out”. Ms Clarke did not like the way Ms Keegan addressed this issue.[64]
[64] T1-115 L28.
On another visit Ms Clarke informed Ms Keegan that the two of them would be working alternating Thursday nights on her return.[65] Previously Ms McMahon and Ms Keegan had avoided working Thursday nights and as “a little privilege” of management had the senior casual work on those nights.[66] Ms Clarke’s evidence was Ms Keegan asked that she not work Thursday nights because her family only had one car and if the baby got sick her husband would not be able to take the baby to hospital. Ms Clarke’s response was they would have to work around it as Ms Clarke did not want to work every Thursday night and the store rosters were set up for them to share that shift.[67] Ms Keegan denied indicating to Ms Clarke that she was unhappy with this new arrangement,[68] although it is unlikely she would have welcomed such news. It would have done little to ease the building tension surrounding the prospect of her and Ms Clarke working together.
[65] T1-63 L24.
[66] T1-63 L26.
[67] T1-97 LL38-45.
[68] T1-64 L3.
Ms Clarke recalled that Ms Keegan, in a number of conversations prior to her return, said she wanted Ms Clarke to trust her. Ms Keegan recalls differently, but, in any event, Ms Clarke testified these conversations made her feel “uneasy” because she did not understand why Ms Keegan was intent on Ms Clarke trusting her.[69] While on her account Ms Clarke told Ms Keegan she did trust her, the reality, conceded in evidence by her, is she already thought Ms Keegan was a liar.[70]
[69] T1-99 L39.
[70] T1-118 L41.
Ms Clarke admitted to having made diary notes about Ms Keegan during the era when Ms Keegan was on leave because Ms Clarke had concerns about Ms Keegan returning to work.[71] She told Ms Franks on more than one occasion that she was worried about Ms Keegan returning to work.[72] She conceded she had a sense that there was going to be some problem when Ms Keegan came back to work.[73] Ms Clarke’s subsequent treatment of Ms Keegan in the workplace certainly guaranteed that prophesy was fulfilled.
[71] T1-108 L41.
[72] T4-48 L26.
[73] T1-108 L46; T1-111 L15; T1-111 L43.
Day One
Ms Keegan returned to work on 7 September 2010. Within only 15 days, a space of 11 rostered working days, she was to depart on sick leave and never return to work.
Ms Keegan gave evidence that her first day back at work with Ms Clarke was “not good”.[74] She alleged Ms Clarke blamed her and Ms McMahon for the store being “disgusting”.[75] Ms Keegan gave evidence Ms Clarke said, “I've cleaned the back room spotless. And if you mess it all up, well you ‑ well, you just better look out.”[76] Ms Keegan also testified Ms Clarke told her that she had had to apologise to customers who Ms Keegan had failed to sign up as VIPs.[77] Ms Keegan stated Ms Clarke spoke in an aggressive tone towards her and Ms Keegan was too scared to say anything.[78]
[74] T1-20 L40.
[75] T1-21 L7.
[76] T1-22 L40.
[77] T1-21 LL13-25; T1-24 L2; T1-26 L27.
[78] T1-21 LL31-40.
Ms Clarke denied blaming Ms Keegan and saying the store was in a disgusting state.[79] She denied telling Ms Keegan that Ms Clarke apologised on behalf of Ms Keegan to customers for not being signed up as VIPs[80] although on her own account she had in fact apologised to customers who had not been signed up.[81] Ms Clarke also gave evidence that she spoke with Ms Keegan, possibly on more than one occasion, about the company’s focus on signing up as many VIPs as possible.[82] She admitted telling Ms Keegan that the store had not signed up enough VIPs in the past.[83]
[79] T1-100 LL1-5.
[80] T1-101 L2.
[81] T1-125 L46.
[82] T1-100 LL30-36.
[83] T1-124 L30.
In describing these initial events it appeared Ms Keegan’s description of what was actually said blended with her hindsight interpretation of what Ms Clarke intended by her comments. On the other hand, Ms Clarke’s outright denials were not credible. Ms Clarke likely did make comments to Ms Keegan indicating the store’s past presentation was inferior, the back room needed to stay tidy and she had apologised to past customers about them not having been signed up as VIPs. These comments were likely made without any sensitivity to the likelihood, which ought to have been obvious to a competent manager, that Ms Keegan would interpret them as criticisms of her or as warnings to her.
Also on day 1, Ms Keegan, who was required to have knowledge of the store’s budget,[84] asked Ms Clarke about seeing the store’s financial books and Ms Clarke would not let her look at them.[85] Ms Clarke disputes this allegation, stating that because Ms Keegan had been away, Ms Clarke did go over “the financials with her, the budget and VIPs”.[86] It may be Ms Clarke gave Ms Keegan some cursory overview of financial matters but I accept Ms Keegan’s evidence Ms Clarke would not allow her to access the books. So began a pattern of excluding Ms Keegan from information and activity which was integral to the performance of her job as assistant manager.
[84] T1-21 L45.
[85] T1-21 L46; T1-22 L5.
[86] T1-100 L20.
Day Two
Ms Keegan gave evidence that on 8 September 2010 Ms Clarke questioned Ms Keegan about how her night was and whether she was tired, to which Ms Keegan responded she was not tired, she was fine.[87] Ms Clarke acknowledged asking Ms Keegan, “How did you go, are you tired, how’s the baby, how did you manage?”[88] Ms Keegan stated Ms Clarke told her if she was not coping they could reduce her hours, to which she replied she was okay.[89]
[87] T1-23 L19.
[88] T1-100 L39.
[89] T1-23 L21.
Ms Keegan testified Ms Clarke did not speak to her much for the rest of the day, though at one point alleged that Ms Clarke waited behind her while she finished serving a customer and said to Ms Keegan, “See that customer, I had to say sorry for you for what you did,”[90] a reference to signing up VIP customers. Other customers were present in the store. Ms Keegan testified Ms Clarke’s tone was aggressive and she was too scared to respond.[91] Again, Ms Clarke denied apologising on behalf of Ms Keegan to customers for not being signed up as VIPs.[92]
[90] T1-23 L39.
[91] T1-23 L41-43.
[92] T1-101 L2.
Ms Keegan gave evidence that, “I was afraid of her because of the way she was with me. She didn’t let me do anything in the store.”[93] She testified Ms Clarke would not share her knowledge about business management information such as forthcoming sales.[94] I accept Ms Keegan’s evidence.
[93] T1-24 L15.
[94] T1-25 L36.
Day Three
Ms Keegan testified that on 9 September 2010 throughout the day she was ignored by Ms Clarke and there was little communication until a casual staff member, Laura Franks, arrived and Ms Clarke then chatted to and sought input from Ms Franks. Ms Keegan testified when she tried to talk to Ms Clarke about the business she would be ignored.[95]
[95] T1-27 L15.
Ms Makarein telephoned Ms Keegan on this day as a matter of routine to see how Ms Keegan was settling back in.[96] She asked Ms Keegan how she was faring at work and how Ms Clarke was. Ms Keegan replied she loved being back at work[97] and was happy working with Ms Clarke. [98] She admits this was a lie.[99]
[96] T2-58 L5.
[97] T1-78 L5.
[98] T2-58 L20.
[99] T1-28 L14-19.
The defendant submits Ms Keegan’s response to Ms Makarein’s inquiry discredits her claim that in fact she was not faring well. It does not. Even Ms Clarke conceded “things were getting worse” between her and Ms Keegan while she and Ms Keegan worked together.[100] Further, Ms Keegan was within a day of this conversation complaining about Ms Clarke’s conduct. As at day 3 it is likely Ms Keegan was upset about Ms Clarke’s conduct but not so concerned by it as to overcome the natural reticence most employees would have against taking the major step of complaining about their supervisor. That reticence would be even more likely in the mind of a staff member returning from prolonged leave to work under a new supervisor.
[100] T1-133 L24.
Day Four
On 10 September 2010 Ms Clarke told Ms Keegan she was doing very well but, according to Ms Keegan, she was also told by Ms Clarke that if her standards dropped they would have to have a “chat”.[101] Ms Clarke conceded she made a comment to the effect that if business started to go down they “would have to have a chat”.[102] She claimed by that comment she meant the chat would be about how to improve the business[103] but she likely realised at the time it would be received as a reference to scrutinising Ms Keegan’s performance.
[101] T1-32 L10.
[102] T1-135 L11.
[103] T1-135 L11.
On this day Ms Keegan was required to prepare a stock report, which she completed in handwriting. Upon completing the report Ms Keegan handed it to Ms Clarke who said, “What handwriting is this? You need to go back to school. And ‑ do it again.”[104] Ms Clarke testified there were parts of Ms Keegan’s handwriting within the report she could not read and she asked Ms Keegan to re-write it.[105] Ms Clarke said Ms Keegan did appear to be upset about this.[106] Ms Keegan stated the usual practice had been to discard the report after its contents had been read over the telephone to Ms Makarein,[107] but Ms Clarke explained she wished to keep the reports, seemingly for her own information.[108] Be that as it may, it remained unclear why the supposedly illegible parts of the writing could not be corrected on the existing document instead of pursuing the apparently pedantic option of having the whole report re-written.
[104] T1-30 L18.
[105] T1-102 L1.
[106] T1-102 L9.
[107] T1-31 L14.
[108] T1-30 LL25-35.
Ms Keegan recalls later that morning, after Ms Clarke had apparently spoken by telephone to Ms Makarein, Ms Clarke said to her in a nasty tone, “I'm off my three‑months probation now. Whether you like me or not, I'm here to stay.”[109] Ms Clarke agreed this conversation occurred, although she recalled telling Ms Keegan, “that was Jayne on the phone and I’ve finished my probation so it looks like I’m here to stay.”[110] Ms Keegan alleges this is when Ms Clarke “really started to change”.[111]
[109] T1-31 L26.
[110] T1-103 L1.
[111] T1-27 L31.
Ms Keegan gave evidence that at the end of the day Ms Clarke questioned her about whether she had mopped because there were black marks on the floor. Ms Keegan had mopped the store, but that was the previous night. Ms Keegan recalled the black marks shown to her were in an area where customers would have walked during the day and there had been no such marks after she had mopped the night before.[112] This evidence prompted some unconvincing evidence from Ms Clarke that the black marks were actually underneath display tables.[113] Ms Keegan also testified she advised Ms Clarke they needed a new mop head as the current one was peeling.[114] Ms Clarke, who supposedly believed the mop used had not been clean enough, told Ms Keegan she had purchased a new mop head three weeks earlier and went to retrieve the mop. Ms Clarke returned and showed it to Ms Keegan.[115] Ms Keegan estimated Ms Clarke held the mop 10 centimetres from her face.[116] Ms Clarke estimated it was approximately one metre away and actually closer to her own face than Ms Keegan’s.[117] Ms Keegan testified Ms Clarke challenged her to say where the mop was peeling and said it was not peeling.[118] On Ms Clarke’s account, she told Ms Keegan she needed to clean the mop before using it and Ms Keegan did not like being corrected and became defensive.[119] Ms Keegan testified she did not say anything to Ms Clarke and went back to the counter to finish her work, at which time Ms Clarke told her to go.[120]
[112] T132 L43 – T1-33 L3.
[113] T1-134 L15.
[114] T1-33 L7.
[115] T1-102 LL23-27.
[116] T1-33 LL19-20.
[117] T1-102 LL34-36.
[118] T1-33 L16.
[119] T1-135 L42.
[120] T1-33 LL35-38.
It is noteworthy, despite some disagreement on factual detail, that Ms Clarke agreed the confrontation about the mop happened and actually descended into her fetching the mop and holding the mop head up showing it to Ms Keegan. She did not admit holding it as close to Ms Keegan as Ms Keegan alleged. Both witnesses only gave estimates of the relevant distance but it appeared Ms Keegan’s estimate was the more reliable and Ms Clarke downplayed how far away she held the mop to show it to Ms Keegan. Ms Clarke’s conduct towards Ms Keegan, an experienced assistant manager, was intimidating and demeaning. It is also likely the accusation of incompetent mopping was inaccurate. Even if it had been accurate, there was no past pattern of incompetent mopping as to even potentially justify such a reaction on Ms Clarke’s part.
Considered in isolation, some of the earlier mentioned episodes may not seem significant. But, considered as a whole, Ms Clarke’s behaviour towards Ms Keegan since she had returned to work, culminating in the mop episode, involved a pattern of such unreasonable and excessive behaviour by a manager towards an employee as to signal a risk that it may cause serious emotional distress.
After leaving the store Ms Keegan telephoned Ms Makarein, crying, and told her Ms Clarke was “bullying” her. These “signs given by the employee concerned” (to use the above-quoted language of the High Court) mark a significant development in the case.
During the call Ms Keegan told Ms Makarein she lied about being good on the previous day because she did not think Ms Makarein would believe her. Ms Keegan testified of the call’s content:
“Yeah, and she said stop crying. What's wrong. And I said to her, she's bullying me. She won't leave me alone. And she goes, but when I spoke to you on Thursday you were fine. I said, I know. I'm sorry. I lied. I said, I thought you didn't believe me. I said I'd just come back from maternity leave. I said, I'm telling you the truth. And she said, oh, you've got guts to call me. I said, well ‑ I said, thank you. I said, but I was scared because you talk to ‑ you talk to her all the time on the phone. She says, I don't favour any of my managers. And I said, okay. And then she said to me, could it be that you had ‑ had a baby and there's changes with that? Or could it be that Anne was not ‑ was not there, and you're finding it hard with that, or ‑ and then the changes in the business. I said no. I said, that's not it. And then she said, I'll speak to ‑ I'll speak to ‑ I'll speak to her, and she said you ‑ you go home and you go put some lippy on and you go home to your bub, and then I said, okay.”[121]
[121] T1-33 LL33-45.
She elaborated on the detail of what she told Ms Makarein of the bullying, testifying:
“What did you tell her?‑‑‑I told her about how she was telling me about ‑ she blamed me for the store, how disgusting it was. How she told me that she had to say sorry to the VIP customers. She told me that I told her about how she isolated me from the staff and then I was on my own all the time and I ‑ she ‑ she wouldn't let me have anything to do with the staff. I couldn't do anything. And she told me ‑ I told her about how she was behind the counter, she threatened me with my job. I told her about the mop. I told her and then ‑ and that's when she said is it ‑ to deal with the changes. I said no, it's got nothing to do with it.”[122]
...
“I just told her everything – I just – because I was crying and really upset.”[123]
[122] T1-34 LL4-11.
[123] T1-34 L26.
I accept Ms Keegan’s account of this telephone call. Specifically, I accept that in this telephone call Ms Keegan did use the word “bullying” and described behaviour which was bullying behaviour as described in Sussan’s bullying and harassment policy.
That policy relevantly provided:
“scope
This policy applies to all relationships within Sussan team including members, contractors, consultants, suppliers and customers.
policy
… This policy is aimed at ensuring that team members are not subjected to any unwanted workplace harassment or bullying. Sussan encourages all team members who experience harassment or bullying to report this immediately. Any harassment or bullying issues will be taken seriously and will be investigated in a timely manner, and appropriate disciplinary action will be taken.
…
what is harassment?
Harassment is behaviour which is inappropriate, offensive and demeaning, is unwanted, uninvited or unwelcomed by the recipient, and creates an unpleasant or intimidating work environment.
…
what is bullying?
Bullying is any behaviour that belittles, intimidates, humiliates or offends a person and could put the person’s health, safety or welfare at risk.
Examples of harassment and bullying:
… Bullying·Withholding information essential to do the job properly
…
·Public humiliation including being shouted at
·Verbal abuse, shouting, aggressive language, threats and insults
·Physical intimidation
·Demeaning remarks
·Constant unreasonable and unconstructive criticism
·Excessively tight supervision
·Persistent and undue criticism including inaccurate accusations about quality of work
·Deliberately excluding, ignoring or ‘ganging up’ on someone
…
line managers and supervisors responsibility
…·Line Managers are responsible for treating all complaints seriously and taking immediate action to investigate and resolve any harassment or bullying reported or witnessed.
·If a person approaches Managers or Supervisors with a complaint about harassment or bullying, they must take appropriate steps to resolve it. If this is not possible or is inappropriate, then the People & Development Manager must be informed.
…
·All complaints must be referred to the People & Development Manager.
…
what will be done in relation to complaints made to Sussan?·All complaints of harassment or bullying will be dealt with seriously. Confidentiality will be respected at all times.
·All complaints will be treated seriously and impartially, and investigated as confidentially as possible…”[124]
[124] Ex 8; T2-57 L10; T2-70 L17.
The way in which Ms Makarein, the line manager above the store manager,[125] proceeded to deal with Ms Keegan’s complaint of bullying was inconsistent with the above policy.
[125] T2-63 L35.
Ms Makarein had overseen the appointment of Ms Clarke and her purported training and in Ms Keegan’s absence Ms Clarke had delivered the improved store performance Ms Makarein was seeking. The day Ms Keegan’s complaint was made was the very same day Ms Makerein had, according to her diary note, congratulated Ms Clarke on “the fantastic month and the improvements in the store”[126] and confirmed her permanent appointment. My strong impression was that, even if unwittingly, Ms Makarein’s connection with Ms Clarke coloured her approach and attitude to Ms Keegan’s complaint.
[126] Ex 10 p 3.
Having failed to treat Ms Keegan’s complaint seriously it was hardly surprising that in giving evidence Ms Makarein appeared to downplay or have difficulty reliably remembering those facts which made it serious. For instance, she claimed not to remember whether Ms Keegan was crying during the call,[127] although her diary notes recorded the fact Ms Keegan “called crying”.[128] Further, she asserted in cross-examination she did not believe Ms Keegan’s call was a complaint about bullying[129] and denied Ms Keegan had complained of being picked on and bullied.[130] Yet on Ms Clarke’s evidence Ms Makarein told her Ms Keegan had complained of being picked on and bullied.[131]
[127] T2-68 L33.
[128] Ex 10 p 3 right margin.
[129] T2-71 L42.
[130] T2-66 LL30-36.
[131] T1-145 L28.
Ms Makarein’s evidence of what was said in the telephone conversation with Ms Keegan was:
“That she’d been given some good feedback that Diana had said that she was very pleased with her performance, but then Gabby … said there had – something along the lines of, you know, but you need to keep it up or we’ll be having a discussion. And then she mentioned that she’d been given some feedback about the floor because the floor wasn’t clean. And I think … they must’ve had the mop there or around there and, you know, it was – it – the mop itself was dirty so she would’ve made comment about that and seemed upset about that. …Yes, she said that the – that the mop was dirty and that we needed to clean that before cleaning the floor otherwise its just moving dirt around … I was quite surprised because, you know, I’d only spoken to her sort of the evening before and she seemed really happy and … then it sort of suddenly changed, so … I said to her perhaps, you know, you could have a – have a chat to her about how you’re feeling and just, I guess, most importantly its – take some time to work out how you’re going to operate as a team. That, you know, you need some quality conversations to, you know – just to talk about that sort of thing and, you know, you’ve gone from a manager that’s been there for 10 years … to a brand new person. So there’s that period that you need to, I guess, find out how you both operate and the best way to communicate in that sort of thing.”[132]
[132] T2-58 L37 – T2-59 L19.
Ms Makarein agreed Ms Keegan told her Ms Clarke was not letting her do her job.[133] She also understood from what Ms Keegan told her that Ms Keegan felt threatened by Ms Clarke.[134]
[133] T2-70 L34.
[134] T3-42 L39.
Ms Makarein’s managerial response to this complaint of bullying by a distressed employee about her supervisor was seemingly to suggest the employee and supervisor should take time to “chat” more about how they felt and how they would work together as a team in the future. It was a woefully inadequate and naive response to Ms Keegan’s complaint.
Day Five
Ms Clarke testified that on the morning of 11 September 2010 she received a phone call from Ms Makarein about the conversation Ms Makarein had with Ms Keegan the evening before.[135] Ms Clarke testified Ms Makarein told her there was an allegation she was picking on Ms Keegan and bullying her.[136]
[135] T1-103 L41-45.
[136] T1-145 L28.
Ms Makarein’s evidence of what she told Ms Clarke was obscure:
“I told her what had been said and that – basically the same thing I’d said to Gabby that, you know, you need to – I really think you need some time together to work through how you’re going to operate as a team, that sort of thing. But also, you know, that – she’d given some really great feedback which was terrific, and I, you know – I was – I’ve only got one person’s version of the event so I said, you know, I’m not 100 per cent sure what you said but, I guess – and saying that just being mindful of how you – how you put that message together. So her – I don’t – I can’t speak for Diana, but her version might have been, you know, you’ve done a really great job, we need to really keep that standard up. You know, rather than necessarily what followed after.” [137]
[137] T2-59 L29.
It was not readily apparent from this evidence just what, if anything, Ms Clarke was told to do but it was seemingly that she should be more mindful of how she provided feedback to Ms Keegan in the future.[138] Ms Clarke’s response to this call was to confront Ms Keegan about it.
[138] T2-59 L40.
Ms Keegan had experienced an anxious night, to the point where she was vomiting.[139] She felt scared to attend work but did so. She testified that soon after her arrival Ms Clarke asked, “so Jayne tells me I'm bullying you; I'm picking on you,” and Ms Keegan said “yes”.[140] She testified Ms Clarke responded, “I might have” and “I can't remember.”[141] She also claimed Ms Clarke patronised her, indicating she would have to use a child-like voice speaking to her in the future.[142] Ms Keegan, on her account, advised she wanted to be talked to normally, not in a patronising voice. Ms Keegan testified she told Ms Clarke all of her complaints, including not being told anything about the business, telling her about VIPs, putting her down, blaming her for everything, isolating her from the girls and threatening her job. [143] On Ms Keegan’s account, Ms Clarke asked Ms Keegan if she wanted her job, to which Ms Keegan replied she did not.[144] Ms Keegan alleges Ms Clarke told her to forget everything she knew and approach her job as if she knew nothing, to which she responded she just wanted a happy environment and for Ms Clarke to stop what she was doing.[145]
[139] T1-34 L46.
[140] T1-35 L40.
[141] T1-35 L43.
[142] T1-36 L5.
[143] T1-36 LL21-29.
[144] T1-36 L33.
[145] T1-36 L45.
Ms Clarke’s account was:
“I said to her that Jayne had called and said that she felt that Gabby had felt that I was picking on her, or bullying her, and I said that was not my intention. If that’s how she perceived what I’d said, and I apologised on a few occasions, and I asked if she was happy with the outcome, and I believe she said no she wasn’t, and I said we’d talk about it a bit later when one of the other staff members came in.[146]
[146] T1-104 L10.
When asked whether she had said anything to Ms Keegan about being sensitive Ms Clarke testified:
“I might have – yes. I did. I said I think she was being over sensitive, and probably because she’d just had a baby she was a bit hormonal, but I was not picking on her and I apologised again if I had given her that impression that was not my intent.”[147]
[147] T1-104 L18.
Ms Clarke denied having prevailed on Ms Keegan to agree that she had not been bullied, testifying:
“I said are we good, you know, because I had apologised. I asked if everything was okay, you know. Do you agree that you know – are you happy with the outcome.”[148]
[148] T1-104 L29.
Ms Clarke also acknowledged telling Ms Keegan she felt uncomfortable giving Ms Keegan any kind of direction or feedback or speaking authoritatively to her “as she would perceive it as bullying”.[149]
[149] T1-104 L36; T1-145 L40.
Ms Makarein’s records indicate Ms Clarke rang her that morning and told her she “did not seem to be getting through” to Ms Keegan.[150] Her records also indicate Ms Clarke rang again at about 2 pm telling her Ms Keegan was still “holding back” but that they had reached some “understanding”.[151]
[150] T3-43 L13.
[151] T3-43 L44.
Remarkably, Ms Makarein did not telephone Ms Keegan – the person who had made the complaint to her – to hear of her view of what had occurred that day with Ms Clarke.[152] Ms Keegan testified she tried to telephone Ms Makarein that day but the number diverted to message bank. Ms Makarein did not return her call.
[152] T3-44 L10.
On Ms Keegan’s account she successfully telephoned Ms Makarein on 13 September 2010 and asked her for help, telling her of Ms Clarke’s conversation with her; a conversation which plainly did not involve an “understanding” being reached.[153] Ms Keegan testified Ms Makarein did not further advise her what to do or what Ms Makarein would do.[154] It was obvious from Ms Keegan’s demeanour in describing Ms Makarein’s lack of support that it had upset her. Ms Makarein agreed she received a message to call Ms Keegan and testified she did call back but she did not suggest the conversation related to Ms Clarke.[155] I accept Ms Keegan’s account of this call.
[153] T1-37 L15.
[154] T1-37 L17; T3-46 L3.
[155] T2-60 LL5-13.
Day Six
On 14 September 2010 Ms Keegan attended work briefly but was unwell with an upper respiratory tract infection, went to the doctor and did not return to work that day.[156]
[156] T1-83 L35.
Day Seven
Ms Keegan testified that on 16 September 2010 she offered to help with arranging sleepwear for a forthcoming sale in response to which Ms Clarke said “no”[157] and put her hand up in front of Ms Keegan’s face and told her to leave it alone.[158] Ms Clarke denied putting her hand up in front of Ms Keegan’s face.[159] On Ms Clarke’s own account she did reject Ms Keegan’s offer indicating Ms Franks was helping with the sleepwear sale.[160] I accept she did so holding her hand in a stop sign in front of Ms Keegan’s face.
[157] T1-39 L34.
[158] T1-39 L27; T1-40 L6.
[159] T1-105 L33.
[160] T1-147 L26.
Given sleepwear was one of Ms Keegan’s specific areas of responsibility as assistant manager[161] this was obviously isolating conduct. Ms Clarke conceded in cross-examination that Ms Franks, who had acted as assistant manager in Ms Keegan’s absence, was still being used by Ms Clarke as her de facto assistant.[162] It was a concession consistent with Ms Keegan’s complaint she was being excluded from doing her job as assistant manager. That she was excluded in this instance with a dictatorial gesture must have been all the more humiliating and upsetting.
[161] T3-26 L39.
[162] T1-147 L34.
Day Eight
Ms Keegan recalls on 17 September 2010 neither Ms Clarke nor Ms Franks would speak to her so she just kept to herself.[163]
[163] T1-41 L1.
Ms Clarke says she spoke to Ms Keegan on this day in relation to a customer complaint about a security tag being left on an item of clothing. The security tag system was implemented while Ms Keegan was on maternity leave.[164] Ms Clarke’s evidence was that Ms Keegan was defensive and angry when this was raised with her.[165] Ms Keegan testified that the previous day Ms Clarke did accuse her of leaving a security tag on clothing bought by a customer and told her not to do it again.[166] It appears Ms Keegan was troubled by the lack of latitude given by Ms Clarke for a single mistake,[167] but, on the other hand, Ms Keegan did not dispute in her evidence that she had left the security tag on.[168] Given the inconvenience occasioned to the returning customer it was not unreasonable for Ms Clarke to raise the matter with Ms Keegan. The difficulty by this stage was that the earlier events, which Sussan had allowed to develop, meant ordinary acts of supervision or correction would be more than ordinarily upsetting to Ms Keegan.
[164] T1-105 L42.
[165] T1-105 L40 – T1-106 L1.
[166] T1-37 L30.
[167] T1-37 L30.
[168] T1-87 L13.
Day Nine
On 18 September 2010 Ms Clarke was not rostered on to work, but attended at the store and engaged in conversation with other staff members. Ms Keegan alleged she was excluded from all conversation,[169] though states Ms Clarke did say goodbye to her when she left the store.[170] Ms Clarke has no specific recollection of attending the store or who she spoke to.[171]
[169] T1-41 L17.
[170] T1-41 L30.
[171] T1-106 L5-11.
Ms Keegan gave no evidence about how long Ms Clarke was in the store or whether she was there for a reason, such as purchasing clothes.
Day 10
On 20 September 2010 Ms Clarke again was not rostered on to work. During the day Ms Franks asked Ms Keegan whether she could lend the steamer out to another store.[172] Ms Keegan stated she told Ms Franks to ask Ms Clarke.[173]
[172] T1-41 L45.
[173] T1-42 L1.
Day 11
Ms Keegan last worked on 21 September 2010. Ms Clarke testified she spoke to both Ms Keegan and Ms Franks that day about not lending the steamer out to other stores in case it was damaged.[174] Ms Keegan testified Ms Clarke told her in an aggressive tone not to lend out the store’s steamer, when she had not done so, and to place it in a rear room, when it had previously always been positioned to the side of the counter.[175] I accept Ms Clarke was aggressive in her tone. This was yet another instance of her using an innocuous issue as a means of exercising pedantic control over Ms Keegan.
[174] T1-106 L35.
[175] T1-42 L37 – T1-43 L17; T1-95 L10.
The relevant definitions of gratuitous services and services are contained in s 306D, which relevantly provides:
“gratuitous services means services, other than paid services, that are provided to a worker by a member of the worker’s family or household, or by a friend of the worker.
services means services of a domestic, nursing or caring nature.
Examples of services—
• assisting with personal hygiene needs
• changing bandages
• cleaning
• cooking
• dressing wounds
• gardening
• housekeeping
• mowing”
The examples given in the definition of services do not expressly include monitoring the worker, but it is difficult to apprehend how observing Ms Keegan to ensure she takes care of herself and her child and does not harm herself or her child is not a service of a “nursing or caring nature”. Nursing may involve observation. More relevantly though, observing a psychiatrically injured person to ensure the person and her child are not endangered or lacking in care because of the injury is quintessentially a service of a caring nature. It is a service which was either not required before the injury or was a service which Ms Keegan effectively performed for herself. Either way, it is a form of gratuitous service and thus not compensable.
The defendant accepts the amount of $20,000 claimed by the plaintiff for future expenses as it relates to psychiatric care and medication, but submits the court should discount the amount by 50 per cent having regard to the likelihood of the plaintiff sustaining injury in any event.[262] Consistently with the discount earlier adopted I would adopt a discount of 15 per cent.
[262] Outline of Submissions on Behalf of the Defendant [206].
That gives rise to an award for future expenses of $17,000.
Fox v Wood
The defendant agrees the Fox v Wood component to be awarded is $5,904.00.
Quantum Summary
General Damages $ 71,610.00
Past Economic Loss $ 117,501.45
Interest thereon $ 3,143.84
Future Economic Loss $ 54,977.75
Future Superannuation $ 4,948.00
Special Damages $ 27,621.32
Interest thereon $ 1,195.00
Future Expenses $ 17,000.00
Fox v Wood $ 5,904.00
Sub Total $ 303,901.36
Less Workcover refund $ 66,131.57
Total (rounded) $237,770.00
Orders
My orders are:
1. Judgment for the plaintiff in the sum of $237,770;
2. I will hear the parties as to costs.
2
3
2