Kucevic v Victorian WorkCover Authority
[2018] VCC 503
•20 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-04435
| EDISA KUCEVIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 19, 20, 21, 22, 23, 26, 27 and 28 February, 1, 2 and 5 March 2018 | |
DATE OF JUDGMENT: | 20 April 2018 | |
CASE MAY BE CITED AS: | Kucevic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 503 | |
REASONS FOR JUDGMENT
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Subject: TORT – NEGLIGENCE – DUTY OF CARE – WORKPLACE BULLYING
Catchwords: Accident compensation – personal injury – psychiatric injury – psychiatric illness suffered in the course of employment – reasonable foreseeability – employee complaints to employer of bullying conduct by another employee – whether breach of duty
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40; New South Wales v Fahy (2007) 232 CLR 486
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr J Noonan QC with Ms R Kaye | IDP Lawyers |
HIS HONOUR:
1 By Amended Statement of Claim dated 21 September 2016,[1] the plaintiff claims damages for personal injury arising out of her employment as a childcare worker with Preston East Children Services Pty Ltd, wherein it is alleged, inter alia:
[1]Court Book (“CB”) 8-11
“7. At all material times the Plaintiff was acting within the course and scope of her said employment.
8. The Plaintiff suffered injury at the said premises in the course of her employment with the employer and in particular from on and around 25 May 2007. The Plaintiff [w]as so injured in the performance of her work duties on the said date, while being exposed to aggressive, stressful and abusive bullying behaviour from another co-worker.
9. Further or in the alternative, the Plaintiff suffered injury by way of gradual process due to the frequent exposure to aggressive, stressful and abusive bullying behaviour from another co-worker, while performing her employment duties with the employer. These included but were not limited to excessive and intrusive questioning, ordering the Plaintiff to perform duties contrary to the manager’s instructions and belittling the Plaintiff.
10.The Plaintiff made a number of verbal complaints on various occasions, therefore the employer knew or ought to have known that working in the environment described in the previous paragraph hereof was likely to cause the Plaintiff injury.”[2]
[2]CB 9
2 The injury alleged was a –
“Mental or behavioural disturbance or disorder including but not limited to stress, anxiety and depression.”[3]
[3]CB 9, paragraph [11a)]
3 The Particulars of Negligence and/or Breach of duty included:
“c)Failing to provide any or any adequate risk awareness and preventative strategies for employee bullying;
d)Failing to provide any adequate procedures for reporting and investigating incidents with respect to employee bullying;
e)Failing to provide any adequate procedures for reporting and investigating incidents with respect to employee bullying;
f)Failing to respond adequately to reported incidents and to provide resolution strategies with respect to employee bullying;
g)failing to provide appro[p]riate alternative work environment for the Plaintiff;
h)… .”[4]
[4]CB 10-11 at paragraph [12]
4 The plaintiff further alleged she attempted to return to work on a modified basis, but was unsuccessful, and it was beyond her sustained capacity for work, and she has remained unable to engage in employment since on or about December 2009, to the present and into the future.
5 Senior Counsel for the defendant conceded:
“The pleadings per se do not raise the issue of vicarious liability, however it is apparent that the plaintiff’s case has been litigated on that basis.”[5]
[5]Written submission, 2 March 2018
6 The defendant, by its Defence to the Amended Statement of Claim dated 10 January 2017, admitted that the plaintiff was employed by the employer as a childcare worker from approximately 24 August 2006 until May 2009. It further admits that on or about 28 May 2007, the plaintiff reported suffering injury at the employer’s premises in the course of her employment with the employer, on or about 25 May 2007, as a consequence of being bullied by a co-worker. It otherwise denies negligence as a cause of injury to the plaintiff.
The issues
7 The essence of the defence conducted before me was that while at all material times the plaintiff suffers from incapacitating psychiatric symptoms, those symptoms are caused by an underlying Paranoid Personality Disorder, the identity of which had remained undetected from an earlier time, essentially because the plaintiff had not been in employment, and, professionals, such as the treating general practitioner, had not had an opportunity to observe same.[6]
[6]Associate Professor Doherty (exhibit 12)
8 Further, although external stressors can “trigger” incapacitating paranoid symptoms in a vulnerable, but otherwise employable individual, the stressors complained of by the plaintiff are not sufficient to have that effect in this instance.[7]
[7]Associate Professor Doherty (exhibit 12)
9 Further, if the Court decides that the diagnosis is one of a work-related psychiatric injury, either by way of a primary injury arising out of the employment, or by way of aggravation or exacerbation of an underlying condition, probably contributed to by stressors associated with an unhappy and sometimes violent marriage, the defendant denies that there was any breach of duty owed to the plaintiff which was a cause of that injury.
10 Insofar as the plaintiff had support for her cause of action from her treating general practitioner, her treating psychiatrist, medico-legal witnesses, a fellow workmate, Ms Lei Fei Ding, and her family members, consisting of her father and sister-in-law, the defendant alleges that the histories relied upon are inaccurate, if not false, and, accordingly, I should place more weight on the opinion of Associate Professor Doherty who, it is submitted, had all the information at a later stage and, thus, is able to express a superior perspective.
11 Further, it is submitted, the relevant witnesses acting on behalf of the defendant have given credible and unshaken evidence denying the essential ongoing allegations of bullying and this is to be contrasted favourably with the plaintiff’s evidence, which is largely a belated reconstruction, and to be further contrasted with that of her “best friend” at work, Ms Lei, who fails to corroborate any allegation other than stating that the relevant co-worker “bullied everyone”.
12 Finally, it is submitted that if the defendant was in breach of its duty to the plaintiff, the causative effect of that breach is “long gone” and the plaintiff’s symptoms are being produced or prolonged by paranoid ideation towards all manner of persons with whom she has had contact, including a number of solicitors previously retained by her, solicitors acting for her estranged husband, certain police officers, and certain Court officers.
13 It is contended that these paranoid symptoms are non-compensable as they are a continuation of the Paranoid Personality Disorder or, alternatively, represent a vicissitude which was likely to arise by now, even absent the alleged employment injury.
Discussion
14 Before attempting to analyse the competing submissions above, I wish to make some preliminary observations:
(a)first, the plaintiff was obviously psychiatrically unwell while conducting her litigation before the Court, but she showed considerable fortitude and resilience in doing so, ably assisted by an experienced interpreter;
(b)the plaintiff had strong support from her treating general practitioner, Dr Danica Skodric-Hadzimahmutovic, and treating psychiatrist, Dr Surya Tipirneni, to the effect that she suffers from a genuine psychiatric injury, to wit, a Major Depressive Disorder, Panic Disorder and Anxiety, which has arisen out of and in the course of her employment;
(c)further, those treating practitioners adhere to their opinion that the bullying complained of was an ongoing causative factor in the development and continuation of that psychiatric condition, and remains so today;
(d)on the other hand, the witnesses called on behalf of the defendant, although labouring under poor recall for events that ensued over ten years ago, did not impress me as being untruthful;
(e)the factual basis for the plaintiff’s claim of ongoing bullying, occurring particularly after December 2007, has increased in its scope, particularly since 2013;
(f)the plaintiff had credible support from her “best friend” at work, Ms Lei, to the effect that the relevant co-worker “bullied everyone”, but no corroboration for the allegations such as mocking the plaintiff’s Muslim faith;
(g)in light of the above observations, I consider the Court has to look closely at the contemporary evidence as events unfolded from May 2007 to July 2009;[8]
(h)in particular, I consider the employer’s response to any foreseeable risk of injury comes clearly into focus as those events unfolded.
[8]The relevant employment was said to have ceased on or about 30 June 2009
The Plaintiff’s evidence
15 The plaintiff tendered in evidence three affidavits sworn in her serious injury proceeding dated 26 August 2011, 7 May 2013 and 16 May 2013. She also tendered into evidence two written statements, one typed and one handwritten, dated approximately December 2017.[9]
[9]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 at CB 116, paragraph [2]
16 In her first affidavit, the plaintiff asserts she was born in June 1968 and was, accordingly, forty-nine years old at the time of hearing. She grew up in a village outside of Sarajevo, Bosnia, but was forced to leave due to the onset of the Bosnian War. She had previously completed Year 11 education, and then worked in the retail sector.
17 When she arrived in Australia, she studied English for about a year and also obtained a Certificate III in Children’s Services.
18 The plaintiff began working as a childcare worker for the employer on or about 4 April 2003. Initially, she worked full-time duties from 9.00am to 5.00pm, but later changed to a different position where she looked after an autistic child from the hours 9.00am to 2.30pm. She agreed to take on the new role as it enabled her to pick up her own children from school.
19 At the time of swearing her first affidavit, the plaintiff stated she had been married to her husband for about fifteen years, and they had four children aged between nine and fourteen. She also stated:
“… We have been separated for a few months in the past, but have since reconciled and now remain together. I currently live with my family at the above address.”[10]
[10]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 at CB 116, paragraph [7]
20 Under the heading “Relevant Medical History”, the plaintiff stated:
“In the past I have briefly felt slightly anxious and depressed. However, this condition did not cause me any or any significant interference with my capacity to work or ability to undertake my normal activities of daily living nor did it require any or any significant medical treatment.[11]
[11]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 at CB 116, paragraph [7]
21 Thereafter, under a heading “Circumstances in which the Injuries Arose”, the plaintiff alleged:
“12.The autistic child shared a room with other children but I was told to mainly focus on looking after her. Her previous carer, a woman called Elizabeth, was also working in the same room and looked after the other children. I was told that if I had spare time then I was to help Elizabeth out too.
13. Initially I enjoyed this new position and working with Elizabeth. However she slowly became more and more critical and abusive towards me. She would often question me repeatedly and unnecessarily about all manner of things. She would also be very negative and difficult about things that I did and often ordered me to do things that contradicted the manager’s instructions. She generally behaved this way towards me whenever we saw each other. Her behaviour would often cause the autistic child to become distressed, making the situation even more stressful.
14.At first I did not know what to do and simply tried to put up with her behaviour. However, during this time I began to develop symptoms such as panic attacks, sickness in my stomach, pressure and pain in my left chest, racing heart beat and had trouble breathing. The symptoms tended to become particularly bad when Elizabeth was around. At the time I decided to just put up with it because I loved my job and was scared that I lose it.
15.Elizabeth’s behaviour continued and the above symptoms progressively worsened until on or about 25 May 2007 when they became so severe that I could no longer work with her. I went to see my manager and explained the whole situation. I then took the rest of the day off. On the following Monday after consulting my GP, Dr Skodric-Hadzimahmutovic, I took about 6 weeks of leave from work.
16.After about 6 weeks, I returned to work on or about 15 July 2007 to continue working the same hours but in a different area to Elizabeth. Initially my return to work was good and my symptoms seemed to have settled a little. However, not long after my return, Elizabeth started to come over from other areas and continued in her intrusive and harassing behaviour. I made a number of verbal complaints to my manager about this, but nothing was done. My condition worsened and I was unable to attend work consistently any more, often needing to take time off work when my symptoms became too severe. My work hours were also reduced to about 15 hours per week.”[12]
[12]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 at CB 117-118
22 Under the heading “Treatment”, the plaintiff stated as follows:
“18.I have consulted my GP, Dr Danica Skodric-Hadzimahmutovic, for treatment for my injury including medication, management and referral for specialist opinion.
19On or about 28 May 2007 I began consulting Dr Skodric-Hadzimahmutovic for treatment of my work injury.
20.I was referred by Dr Skodric-Hadzimahmutovic to see a psychiatrist, Dr Tipirneni, who I consulted for the first time on or about 17 July 2007 for treatment of my work injury.
…
23.To alleviate at least some of my depression and anxiety I sought treatment and took medication including but not limited to Oxazepam, Dothiepin, Lexapro, Esipram and Temazepam.
24.I continue to consult my general practitioner and psychiatrist for treatment of my work injury and take medication to alleviate at least some of my symptoms and injury.”[13]
[13]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 at CB 118-119
23 Thereafter, under the heading “Pain and Suffering and Loss of Enjoyment of Life”, the plaintiff attested as follows:
“25.As a result of my work injury I experience intermittent and varied feelings of fear, depression and anxiety. I often cry and the slightest issue can trigger attacks of anxiety and/or a severe emotional low. I also tend to experience pain in my chest, headaches and body shakes. I sometimes have episodes of extreme tiredness and lethargy that render me incapable of doing anything at all and during which I end up staying at home all day doing nothing. On days when my symptoms are particularly bad, I also experience pain in my left chest that radiates down my left body and up to my neck.
26.I am frustrated by my work injury and incapacity. I love playing with and looking after children and this was why I chose to work as a child care worker. I was employed by Preston East Children Services for approximately 6 years and I had really enjoyed working with the children while I was there. However I am extremely upset and disappointed at my ill treatment despite my repeated complaints to my manager and efforts put up with it. As a result of the onset of my work injury, I am no longer able to work in this position and enjoy this job that I once loved. Although this job was demanding, it was rewarding and I would have wanted to remain working there or in a similar position indefinitely, possibly even until retirement. I am extremely frustrated and disappointed that I have been forced to cease working as a result of my work injury. It has caused all manner of upset and disruption in my life as I was previously a healthy and active person.
27.My relationships with my children and husband have suffered enormously as a result of my work injury. I used to love spending time with my children, looking after and playing with them. However these days due to the low moods and lethargy that I experience, I am generally unable to spend as much time with them as I used to. On my bad days, my husband generally has to do everything around the house such as look after the children, cleaning, laundry and cooking. It really upsets me that I am unable to look after my family as I once used to be able to.
28.My work injury has had a very significant effect on my memory and my ability to concentrate. As a result I find it difficult to occupy myself with activities that I used to enjoy. Prior to my work injury I was an avid reader and I used to derive great enjoyment from reading. However my difficulty in concentrating means that nowadays I am usually only able to read for a very short period, if at all. The difficulty I have in concentrating has also meant that I find it very difficult to drive for long distances. I now typically avoid driving for long distances unless necessary, as I am less confident about my ability to react in an emergency situation.
29.Since sustaining my work injury I have been suffering from insomnia and have great difficulty in sleeping. When I do sleep it is typically broken and I wake up feeling flushed and uneasy. I also suffer from occasional nightmares about Elizabeth, causing me to wake up in a panic. As a result I often wake up in the middle of the night feeling quite anxious and need to get up, walking around and have a drink before I can try to go back to sleep. Because of this I now sometimes sleep separately from my husband which has also had a negative impact on our relationship.
30.My work injury has also had a very significant impact on my social life. I have largely become withdrawn from society. Prior to my work injury I was a happy, independent, confident, optimistic and social person who enjoyed going out with family and friends. I now tend to avoid leaving the house and even when I do go out I feel that I am incapable of enjoying it. I occasionally go out with friends but will typically only do so if they contact and collect me.
31.My work injury has reduced and varied my libido. As a result I am not always able to engage in desired sexual activity with my husband. This has had an adverse effect on our relationship
…
34.The loss of my ability to work and the very significant diminishment of my mental state have struck at the core of my identity and sense of self-worth. I often feel that I am not valued as a person and believe I was treated very badly at work. I feel like a liability to those around me and have lost many friends and the social contact I used to have as a working family woman with a normal working, social and family life.”[14]
[14]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 at CB 119-121
24 Further, under the heading “Economic Consequences”, the plaintiff attested as follows:
“35.Prior to sustaining my work injury I was generally earning about $360.00 gross per week. I was generally working 21 hours per week at $17.14 per hour.
36.I ceased employment with Preston East Children Services in or about December 2009 when the symptoms from my work injury deteriorated to the extent that I could no longer perform my work duties. Since then I have been unable to recommence employment with my injury employer or any other employers as a result of my work injury. I am frustrated that I can no longer earn a living for my family or perform the work which I previously enjoyed.”[15]
[15]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 at CB 122
25 Thereafter, under the heading “Rehabilitation and Return to Work”, the plaintiff attested as follows:
“37.After the incident on or about 25 May 2007, I returned to work for the first time on or about 17 July 2007 to perform the same duties as before but in a different area. However, my work injury continued to worsen and my hours were reduced from about 21 to 15 per week. During this time I also took leave on several occasions when my symptoms became too severe. Eventually in or about December 2009 my work injury worsened to the point where I could no longer continue working. Since this date I have not been able to return to work with my former employer nor recommence employment with any other employers.
38.While I am keen to return to employment, I believe that my work injury, inability to concentrate and the lethargy that I experience as a result of my work injury has rendered me unsuitable for retraining or seeking alternative employment. I currently have no capacity to engage in my pre-injury employment or any other employment reasonably available to me given my current condition as a result of my injury, age, education, background and prior work experience.”[16]
[16]Exhibit “A”, plaintiff’s affidavit dated 26 August 2011 CB 122
26 It is noteworthy that the particulars of the alleged bullying were contained in paragraphs 13 and 16 and did not condescend to particulars such as mocking the plaintiff’s Muslim faith.
27 The plaintiff swore a second affidavit on 7 May 2013. Essentially, she alleged that her “work injury” was continuing to an incapacitating degree and that she was seeking treatment with her treating general practitioner and psychiatrist. There were no further particulars as to the allegations of bullying.
28 The plaintiff swore a third affidavit on 16 May 2013. The plaintiff confirmed her earlier evidence on the basic issues, but added further:
“2.Further to paragraphs 7 and 8 of my first affidavit prior to the onset of my work injury I have at times felt slightly anxious and depressed and I have at times discussed these symptoms with my family doctor, Dr Skodric, and received some counselling and assistance. I recall that I have in the past further received some counselling and assistance from Dr Skodric in relation to marital problems that I have experienced. I recall that prior to the onset of my work injury my feelings of anxiety and depression or low mood were generally transient and resolved and at the time of the onset of my work injury I was able to cope and these feelings did not cause any or any significant interference with my capacity to work or my ability to undertake my normal activities of daily living.”[17]
[17]Exhibit “A”, plaintiff’s third affidavit dates 16 May 2013 at CB 131
The Plaintiff’s statements to treating doctors
29 In a report dated 28 May 2007, the treating general practitioner, Dr Dana Skodric-Hadzimahmutovic (“Dr Dana”), stated:
“I would like to inform you that Mrs. Edisa Kucevic had stressful situation at work on 25.05.07 when she was provoked by another women (sic). Mrs Kucevic is not able to work from 28.05.07 – 01.06.07 due to this incident.”[18]
[18]Exhibit “C” at CB 36
30 On 25 September 2007, Dr Dana referred the plaintiff to psychiatrist, Dr Surya Tipirneni, with the following annotation:
“… anxiety with depressed mood due to stress at the work place.
…
please organise appointment.”[19]
[19]Exhibit “C” at CB 37
31 On 30 September 2013, Dr Dana wrote:
“Mrs Kucevic continious to suffer from depression and anxiety
Mrs Kucevic is having frequent episodes of pannic attacks in a different situations giving her additional feeling of insecurity.
Mrs Kucevic is often te[a]rful and forgetful, have difficulties coping with everyday life and family obligations.
Mrs Kucevic is having four young children who are growing up with [an] unhappy and insecure mother.Mrs kucevic have supportive husband and parents.
Mrs Kucevic is se[e]ing consultant psychiatrist Dr Tipirneni who is organising management , medication and profetional support.
At present , due to her mental condition Mrs Kucevic is not able to do any type of work.”[20]
(sic)
[20]Exhibit 3 at CB 38
32 The defendant also tendered in evidence the clinical notes of Dr Dana.[21] On 26 August 2005, Dr Dana noted:
[21]Exhibit 7
“[P]roblems in marriage, abusive husband
1) hit in the L) shoulder by her husband 2008 05
2) verbal[l]y abused – children frightened –
3) spitting on his wife – locking doors –
4) fearful he will … [indecipherable] her
5) advise[d] to go to the police
declined wants to try marriage to work due to 4 children.”[22]
[22]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 7
33 On 10 October 2005, there is an entry:
“[D]epressed mood.”[23]
[23]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 8
34 On 10 November 2005, there is an entry:
“[On] 8.11.05 – abused by husband verbally abused – swearing threatening – he has certificate … [indecipherable].”[24]
[24]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 8
35 On 2 April 2006, the general practitioner wrote:
“[H]usband attacked her yesterday again – verbal and physical abuse – counselling.”[25]
[25]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 9
36 Then, on 20 May 2006, the general practitioner wrote “anxiety”.
37 Thereafter, there is no relevant entry until 28 May 2007, wherein the general practitioner wrote:
“[H]ad stress at work –
looking after Autistic child –
another fellow woman – bossing her and interfere with her work –
last friday escalation of the problem –
Edisa reported problems to the supervisor – unable to work this week (from 28 05 07 to 01 06 07).”[26]
[26]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 13
38 Thereafter, on 2 June 2007, the general practitioner noted:
“Went back to work on 04.06 07 crying all the time
awakening at night with palpitations –.”[27]
[27]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 13
39 On a later day in June 2007, the record shows:
“Much better now to continue oxazepam on p.r.n. basis –.”[28]
[28]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 13
40 On the next occasion, in June 2007, the doctor has recorded:
“[N]ot well appare (sic) yesterday
was in crisis does not know why feels upset – oxazepam not well –”[29]
[29]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 13
41 Then, on 12 July 2007, the record shows:
“… still quite emotions (sic), but much improved.
Wants to return to work next week will be placed in another area away from the worker who caused her distress.”[30]
[30]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 14
42 Then, on 28 July 2007, it is noted:
“[W]ent back to work –
Coping well at present
managing to face to the person who was the cause for leaving for stress leave –
Still has flash backs –
… [indecipherable] oxazepam on PRN basis.”[31]
[31]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 14
43 On 2 August 2007, there is a notation:
“[A]nxiety over psychiatric app difficult counselling.”[32]
[32]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 14
44 On 29 August 2007, there is a consultation for unrelated matters.
45 On 24 September 2007, there is a notation:
“Went back to work
Still feels shaken whenever is close to the person from work –
wants to see psychiatrist
app with D Tipirneni organised –.”[33]
[33]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 15
46 On 27 September 2007, there is an entry:
“[T]tearful – flash back from accident at work –
will see lawyer tomorrow.”[34]
[34]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 15
47 On an unascertained date in October 2007, the notation states:
“[A]ppointment with Dr Timirneni 18.10.07. lack of energy –
anxiety back again –
Flash backs when spoke with another colleague who has similar problems with the same person
Tearful
Fearful from … at work that had problems before –
To have Oxazepam … .”[35]
[35]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 15
48 On 2 October 2007, the notation reads:
“[A]nxiety persists
Needs more time off
Will see Dr Tipirneni next week Thursday”[36]
[36]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 15
49 Then, on an unascertained date in October 2007:
“[L]owered mood …
lack of energy – ? D depression”[37]
[37]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 15
50 On 25 October 2007, the notation reads:
“[T]earful / tired not able to cope with extra stress –
anxiety / insecurity persists”[38]
[38]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 16
51 Then on 2 November, 2007, the note reads “wants to go back to work”.[39] Then, on 16 November 2007, the record reads:
“Coping well at present.
From 5 Sept 07 – lives together with husband”[40]
[39]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 16
[40]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 16
52 On 20 November 2007, the notation reads:
“Very distressed appare[ntly] due to the colle[a]g[u]e who burped on her. Since then tearful depression –
flash backs –
feels tired and weak –
plan to cont. with Avanza
Counselling.”[41]
[41]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 16
53 Then, on another date before 26 November 2007, the record reads:
“Second visit
[W]ent to work today tearful unable to work. WC given”[42]
[42]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 16
54 On 26 November 2007, the record reads:
“Unable to tolerate Avanza
too drowsy – she … [indecipherable] few days ago
doing well at present.”[43]
[43]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 16
55 On 3 December 2007, the record reads:
“Seen by Dr Tipirneni –
Avanza changed to Lexapro 10g 1/2T … Temazepam 10g
– small level of anxiety persists all the time
– back to work –
coping at present.”[44]
[44]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 17
56 Later, on 20 December 2007, it is noted:
“[F]amily life improved – relationship with husband
upset last week and week before - convince that work /Liz / person has support from someone
Oxazepam helps
Now has no regular shift
has no lunch or breaks
start Holiday today (20.12 - 4.02).”[45]
[45]Clinical notes of Dr Danica Skodric-Hadzimahmutovic, exhibit 7 at page 17
57 The treating psychiatrist, Dr Surya Tipirneni, first saw the plaintiff on 17 October 2007 and reported, first, on 20 December 2007.[46] The history taken was as follows:
“…She presented with more than six months history of low mood, crying spells, increasing anxiety, feeling tired and lack of energy, decreased sleep and decreased appetite following workplace harassment and bullying by one of her colleagues. Apparently this colleague would constantly interfere with her work, often bullying her to do things and tease her beratingly and demanding her to stop handling children. Mrs Kucevic understandably felt harassed and bullied and made a number of verbal complaints since 21 May 2007. She felt very anxious, had crying spells, unable to face this lady any longer at work. Despite a number of verbal complaints there was no action taken and this lady colleague continued to intrude into her space and demanding her to do things in her way although she is not responsible for her or she is not under supervision of her. She reports ongoing flashbacks and nightmares about the abovementioned colleague’s behaviour and verbal abuse. … .”[47]
[46]Exhibit “B”
[47]Exhibit “C”, report of Dr Surya Tipirneni dated 20 December 2007 at CB 20
58 Dr Tipirneni recorded that there was no history of Depression and no family history of Depression. He also had no history of conflict with her husband. His diagnosis at that stage was:
“… Adjustment Disorder of depressive type in the context of workplace harassment and bullying by one of the work colleagues. … .”[48]
[48]Exhibit “C”, report of Dr Surya Tipirneni dated 20 December 2007 at CB 21
59 Her medication at that stage was Lexapro, 10 milligrams, 1 mane, and Temazepam, 10 milligrams, 1 p.r.n. nocte. Avanza had been ceased because it made her too drowsy.[49]
[49]Exhibit “C”, report of Dr Surya Tipirneni dated 20 December 2007 at CB 21
60 In December 2007, Dr Tipirneni stated:
“In my opinion Mrs Kucevic is very keen to continue to work her current employment. She is at the moment working her normal hours which are about 21 hours a week. However the major work restriction is to limit her contact with the person who was bullying. However this person continues to bully her as recent as [a] few days ago and this situation is unacceptable and could be the maintaining factor for her depression. At the moment although she has some symptoms she is willing to return and continue to work.
…
If the ongoing stressor bullying and harassment is taken away, she is likely to return to full recovery within 3-6 months.”[50]
[50]Exhibit “C”, report of Dr Surya Tipirneni dated 20 December 2007 at CB 22
[50]Exhibit “C”, report of Dr Surya Tipirneni dated 20 December 2007 at CB 22
61 Prior to writing the above report, Dr Tipirneni wrote to the employer on 7 December 2007 and addressed same to the supervisor, “Lena”. He stated:
“I request you to be aware of bullying and harassment by a co-worker Ms Elizabeth (Liz) who apparently is very intrusive and bullies Edisa even after the WorkCover – Injury Claim.
I recommend that Edisa not to have contact with Ms Elizabeth as the ongoing bullying is detrimental to her mental health and recovery. Please take appropriate setting to avoid ongoing stress to worker.”[51]
[51]Exhibit 4
62 Dr Tipirneni’s clinical notes were tendered in evidence by the defendant.[52] At his first consultation on 18 October 2007, the relevant history read:
[52]Exhibit 5
“Stress at work place conflict – bullied/harassing > 6 mths by Ms Elizabeth make her stop doing care
treated her like a child
following her all the time
Incident on May 21st 07
couldn’t send children to school.”[53]
[53]Exhibit 5, page 1
63 With respect to her husband, the notes read:
“Husband @ Ramadan
> 6 years
Accident at work,
on workcover
good, caring.”[54]
[54]Exhibit 5, page 2
64 As to her premorbid personality, Dr Tipirneni noted:
“Confident
Coped well
strong.”[55]
[55]Exhibit 5, page2
65 On examination, he noted:
“Sad
teary,
depressive
‘I love my work’
Pressure …
Insight – limited.”[56]
[56]Exhibit 5, page 3
66 On 26 October 2007, Dr Tipirneni noted:
“Well settled
Crying
Received A call from Brisbane ABC
Wants to go back.”[57]
[57]Exhibit 5, pages 3-4
67 On 2 November 2007, Dr Tipirneni noted:
“Med R/V
Feeling slightly better
Still sad
Met manager
wants to go back to work”.[58]
[58]Exhibit 5, page 4
68 On an indecipherable date in November 2007, Dr Tipirneni noted:
“Med R/V
Returned to work
Chest pain
…”.[59]
[59]Exhibit 5, page 5
69 On 16 November 2007, Dr Tipirneni noted:
“Med R/V
Well settled,
‘didn’t feel good last week’
‘ felt stressed’, headache, sore body
sleep disturbed
She said
‘where is your food going?’
I am upset, when she screams on (sic) children often.”[60]
[60]Exhibit 5, page 5
70 I infer the last interchange is between Elizabeth and the plaintiff.
71 On 23 November 2007, the note reads:
“Med R/V
Felt better
Wants to go back to work but feels tense
drowsy in mornings
Sleep tired
husband – doesn’t help.”[61]
[61]Exhibit 5, page 6
72 At the next attendance on 30 November 2007, Dr Tipirneni notes:
“R/V
Ceased Avanza after seeing GP
Didn’t feel well
gets help from parents
Husband is on workcover
doesn’t help much.”[62]
[62]Exhibit 5, page 6
73 On 2 December 2007, Dr Tipirneni’s notes read:
“Med R/V
Elizabeth continues to boss everyone at work, more so Edisa
She bullied another worker & Edisa is very upset
Edisa feels angry/upset
She can’t forget bullying by Elizabeth
She came from another work area & keeps harassing her
On 4th Dec, again she tried to do this
on 6/12 bullied Chinese lady.
She [the plaintiff] took 5-6 wks leave from 21/12/07 till end of Jan ‘08.”[63]
[63]Exhibit 5, page 7
74 On 21 December 2007, Dr Tipirneni noted:
“Med R/V
Same … [with] husband
- depressed
- not coping.”[64]
[64]Exhibit 5, page 8
Workmate’s evidence
75 Ms Li Fei Ding gave viva voce evidence on behalf of the plaintiff and tendered a statement of hers dated 13 December 2017.[65] Ms Li was unable to recall an exact timeframe, but stated:
“… I don’t remember exactly when her smile on her face was gone. Sometimes I saw her crying at work. She looked sad and pale. I asked her ‘What is wrong?’ She would not tell but cry at the start. After a few times attempts, she told me that there was an employee who put stresses on her by blaming she had done this wrong, and had done that wrong. Edisa said she was scared of her and did not know how to work with her. I said, ‘You should report her to the boss’, but Edisa said, ‘Even the boss is afraid of her’. At that time I was afraid of that employee too. Because she always treated me the same way, all our staff at the kindergarten were scared of her. With time passing by, Edisa’s smile disappeared. I often saw her crying. Edisa used to be very healthy. She got sick gradually. Later I always saw her crying. One day, she told me, ‘I cannot continue to work. I have headaches and feel dizzy. I could not sleep at night and I don’t eat well. I was panic, nervous and scared at, and had an urge to cry at work. It has been difficult for me to work here anymore. I need to see a doctor.’ This is why she left her position.
… .” [66]
(sic)
[65]Exhibit “F”
[66]Exhibit “F”
Employer evidence
76 Ms Kassar Taleb gave viva voce evidence on behalf of the defendant, but had little recollection of events and, in particular, could not recall making a statement to an investigator on 13 August 2007, or the contents of same, having read a copy. The defendant was unable to produce the original of her statement, but during the Discovery process, furnished an unsigned copy of the statement of Ms Taleb, said to be witnessed by Robert Paton of Ron Camp & Associates Pty Ltd, at Preston, on 13 August 2007. The copy statement was admitted into evidence on behalf of the plaintiff.[67]
[67]Exhibit “N”
77 Within the statement, Ms Taleb recited that she was employed as area manager for the defendant and had been in that role for some eight months. Further, the statement recites:
“Edisa Kucevic is employed as an Inclusive Support Service Officer working at our Preston West location. Her role is to provide care to a child with special needs.
In her role Edisa reports directly to the Centre Director, Maddalena Sciodore.
Edisa has proved to be an excellent employee; she has not faced any disciplinary procedure. She is extremely good in her role.
Over a period of time Edisa has worked in the same room as another of our employees, Elizabeth (Liz) Vallence. I emphasise that Liz does not supervise Edisa.
I am aware of matters that occurred in the work environment on 25th May 2007. I was notified by the Director that there was a problem between Edisa and Liz. I attended the Preston West premises with our HR manager, Julie Walker. I met with Edisa; she was clearly upset. Edisa said to me that she had been spoken to very aggressively by Liz and that the tone of voice used by Liz was upsetting her. It is (sic) appeared to be more how Liz spoke than actually what she said.
Edisa was so upset that we sent her home.
We then met with Liz; she admitted that she had probably spoken to Edisa in an inappropriate way, indicating that she was fairly abrasive in her tone of voice. Liz said she can understand why Edisa had become upset, but said there was no malice in the way she had spoken to Edisa and it was just how she usually spoke to people.
Other employees have complained about Liz at various times.
As a result of the above and with Liz’s agreement that she had addressed Edisa inappropriately, Liz was issued with a counselling advice and put on a performance improvement action plan.
I don’t doubt for one minute that Edisa was upset by Liz. I again emphasise that Liz was understanding of how she had upset Edisa.
Prior to the above Edisa had never made any complaints to me that she was concerned about Liz and the attitude of Liz in the work environment.
At no stage has Edisa indicated that she felt under pressure in the performance of her day to day duties. Her core hours of work are 9.30am – 2.30pm, five days per week.
I don’t know a lot about Edisa outside the work environment. I believe she has a couple of children.
To the best of my knowledge there were no other factors that led to Edisa submitting a WorkCover claim.
Edisa returned to work as of 15th July 2007 and is now continuing to perform of her required duties. She now works in a different room to Liz Vallence.”[68]
(sic)
[68]Exhibit “N”
78 Also produced to the plaintiff during the Discovery process was a report from Ron Camp & Associates Pty Ltd dated 14 August 2007.[69] The references was cited as “28452RP”, which I infer relates to Mr Ron Paton, who witnessed the statement of Kassar Taleb. The report reads as follows:
[69]Exhibit “M”, report of Ron Camp & Associates Pty Ltd, dated 14 August 2014
“Following our initial report of 9th August 2007 we were able to make contact with the Employer’s head office in Queensland and spoke to HR manager Susanne Laing. We found Ms Laing to be of significant assistance. She arranged for us to attend the Employer premises on Monday, 13th August 2007. The intention was for us to interview the Claimant; her supervisor – director of the Employer Preston West Centre Maddalene Scioldore; and area manager – Kassar Taleb.
…
When we arrived at that Centre at the appointed time we were told the claimant was absent, as was director Ms Scioldore. As a consequence at that stage we were only able to interview the area manager Kassar Taleb.
Due to the urgency of your requirements in relation to this report, we have subsequently held preliminary discussions with both the Claimant and witness Ms Scioldore and appointments have been arranged for Wednesday, 15th August 2007.
We have confirmed through our enquiries that the Claimant was the subject of what was termed by the Employer to be workplace bullying. The employee responsible for that bullying has been placed under a performance review. We were told by the Employer that the person in question (Liz Vallence) has accepted that she addressed the Claimant inappropriately on frequent occasions. We were told it was more the tone of voice used by Ms Vallence than actually what was said. Apparently Ms Vallence can be quite abrasive in her tone of voice. She has also caused some upset to other employees.
In the brief discussions we have had with the Claimant we learned from the Claimant she was born in Bosnia and has lived in Australia for the past twelve years. She said she very much enjoyed her work with the Employer. The Claimant works as an inclusive support services officer and provides care to a child with special needs.
Director in charge Maddalena Scioldore has described the Claimant as an excellent employee; as has area manager Kassar Taleb. We were told there were no work performance issues pertaining to the Claimant.
Director Ms Scioldore said that she first learned of the fact that the Claimant was concerned about the attitude of Ms Vallence a short time prior to when this claim was lodged. We were told on 25th May 2007 the Claimant was extremely upset about the manner she was spoken to by employee Ms Vallence. The Claimant was so upset that the Employer sent her home.
Area manager Kassar Taleb then conducted enquiries in relation to the Claimant’s complaints. It was very apparent to the Employer that Liz Vallence had acted inappropriately.
The Employer provides support to the Claimant; both area manager Kassar Taleb and director in charge of the Centre Ms Scioldore said they have no doubt that the attitude of employee Ms Vallence had been upsetting to the Claimant and led to the Claimant developing a workplace anxiety condition. We were told that as far as is known there was no background to that situation. It was simply the attitude of Ms Vallence.
We were told prior to this claim being lodged the Claimant and Ms Vallence had worked in the same area, although their roles were somewhat different. Ms Vallence did not supervise the Claimant.
As a consequence of the Claimant suffering anxiety and stress that is claimed, she was absent from her duties and returned to employment as of 15th July 2007. She now works in a different area than Ms Vallence, although the Claimant continues to perform the same role of inclusive support services officer.
In our discussions the Claimant denied any factors outside of the work environment that have contributed in any way to her condition. She has no history of any stress related conditions.
A statement has been obtained from area manager Kassar Taleb (attached).
And all page 3 down to ‘the statement has been obtained from area manager Kassar Taleb attached’.”[70]
[70]Exhibit “M”, report of Ron Camp & Associates Pty Ltd, dated 14 August 2014, pages 1 to 3
Preliminary findings
79 As at July-August 2007, the employer, through its agents, Kassar Taleb and Lena Scioldore, were of the view that the plaintiff had been subjected to “workplace bullying” at the hands of a co-worker, “Liz”, on or about 25 May 2007.
80 In response to the complaint, Liz was interviewed. Liz apparently accepted that she had addressed the plaintiff inappropriately and, accordingly, the employer issued her with counselling advice and put her on a Performance Improvement Plan.
81 I accept that as at August 2007, the plaintiff had suffered a work-related anxiety condition arising out of her employment and as a result of the actions of the co-worker, Liz.
82 I also accept that the response by the employer, as outlined above, was reasonable in terms of the “Shirt calculus”.[71] I note that the response included a direction that the plaintiff and Liz were to work in different rooms, whereas previously, they had worked in the same room.
[71]Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40
Medical Certificates of Capacity provided to the employer and relevant clinical notes
83 Late in the proceedings, and after she had closed her case, the plaintiff tendered a bundle of medical certificates provided by her treating medical practitioners to the employer.[72]
[72]Exhibit “O”
84 On 28 May 2007, Dr Dana certified the plaintiff unfit from 28 May to 1 June 2007, on account of “anxiety work related”.[73] Further certificates for total incapacity were provided until 15 July 2007. There were no particulars of work relationship provided on the face of the certificates.
[73]Exhibit “O”, at page 1
85 On 8 October 2007, Dr Dana certified the plaintiff unfit from 8 October to 12 October 2007, on account of “exacerbation work related anxiety disorder”[74] and recorded a referral to a psychiatrist. The document does not relate as to whether the exacerbation, itself, occurred at work, or was a manifestation of the previous work-related Anxiety Disorder.
[74]Exhibit “O”, at page 10
86 On 18 October 2007, the treating psychiatrist, Dr Tipirneni, certified the plaintiff unfit for all duties from 22 October to 26 October 2007 on account of “bullying/harassment at work. Adjustment Disorder – mixed Anxiety & Depressive type”.[75] It would appear that the plaintiff worked between 12 October and 22 October. It would appear from Dr Tipirneni’s clinical note of 18 October 2007, that the symptoms of anxiety, et cetera, occurred in May 2007, but there may have been a complaint of ongoing harassment up until 18 October.
[75]Exhibit “O”, at page 13
87 On 26 October 2007, Dr Tipirneni again certified the plaintiff unfit for all work from 26 October 2007 to 2 November 2007 on account of “Adjustment Disorder – Depressive type”.[76] There is no suggestion on the face of the document that the harassment is ongoing. Further, from his clinical note of the same date, there is no note of a suggestion of further harassment. There is a note that the plaintiff “wants to go back”.[77]
[76]Exhibit “O” at page 15
[77]Exhibit 5
88 On 2 November 2007, Dr Tipirneni certified the plaintiff “to work 4 hrs shift per day”[78] on account of “Adjustment Disorder – Depressive type”.[79] There is no allegation of harassment on the face of the document and his clinical note of the same date records “feeling slightly better … met manager wants to go back to work”.[80]
[78]Exhibit “O” at page 17
[79]Exhibit “O” at page 17
[80]Exhibit 5
89 On 9 November 2007, Dr Tipirneni certified the plaintiff to work four-hour shifts from 9 November 2007 to 23 November 2007 on account of “Adjustment Disorder – Depressive”.[81] There is no allegation of further harassment. His clinical note of the same date records “Returned to work”.[82]
[81]Exhibit “O” at page 19
[82]Exhibit 5
90 On 16 November 2007, Dr Tipirneni certified the plaintiff fit “to work up to 5 hour shifts”[83] from 16 November 2007 to 29 November 2007. There is no allegation of further harassment on the face of the Certificate. However, the clinical note records:
[83]Exhibit “O” at page 21
“Well settled,
‘didn’t feel good last week’
‘ felt stressed’, headache, sore body
sleep disturbed
She said
‘where is your food going?’
I am upset, when she screams on (sic) children often.”[84]
[84]Exhibit 5, page 5
91 In any event, when Dr Tipirneni saw the plaintiff on 23 November 2007, he certifies her fit for all duties without any work restrictions. On that date, his clinical note records:
“Felt better
Wants to go back to work but feels tense
drowsy in mornings
Sleep tired
husband – doesn’t help.”[85]
[85]Exhibit 5, page 6
92 Further, on 30 November 2007, Dr Tipirneni certified the plaintiff to be fit for normal duties from 30 November 2007 until 7 December 2007, with “nil” work restrictions. His clinical note of the same date records:
“Ceased Avanza after seeing GP
Didn’t feel well
Gets help from parents
Husband is on work cover
doesn’t help much.”[86]
[86]Exhibit 5 at page 6
93 On 7 December 2007, Dr Tipirneni certified the plaintiff fit for normal duties, but with the following work restrictions:
“To avoid contact with Ms Elizabeth who apparently bullied and trying to bully ongoingly (sic).”[87]
[87]Exhibit 5 at page 6
94 On the same date, Dr Tipirneni’s clinical note reads:
“Elizabeth continues to boss everyone at work, more so Edisa.
She bullied another worker & Edisa is very upset
Edisa feels angry/upset.
She can’t forget bullying by Elizabeth.
She came from another work area & keeps harassing her. On 4th Dec, again she tried to do this
On 6/12 bullied Chinese lady.”[88]
[88]Exhibit 5 at page 6
95 It was also on this date that Dr Tipirneni wrote to “Ms Lena” in the following terms:
“I request you to be aware of bullying and harassment by the co-worker Ms Elizabeth (Liz) who apparently very intrusive and bullies Edisa, even after the WorkCover – injury claim.
I recommend that Edisa not to have contact with Ms Elizabeth as the ongoing bullying is detrimental to her mental health and recovery. Please take steps to setting the … ongoing stress to worker.”[89]
[89]Exhibit 4
96 On 21 December 2007, Dr Tipirneni again certified the plaintiff as fit for full duties with the work restrictions cited:
“To avoid contact with Ms Elizabeth who apparently bullied her ongoingly … next review date 11 January 2008.”[90]
[90]Exhibit 5 at page 6
97 In his clinical note dated 21 December 2007, Dr Tipirneni noted:
“Came [with] husband
• depressed
• not coping
… she took five to six weeks leave from 21 December 07 to the end of January.”[91]
[91]Exhibit 5 at page 8
98 In response to Dr Tipirneni’s letter of 7 December 2007, area manager, Ms Kassar Taleb, contacted the regional human resources manager for Victoria and Tasmania, Mr Troy Cox, and asked him to attend an informal meeting with the plaintiff and Ms Taleb on 21 December 2007. Mr Cox’s file note of 21 December 2007 was tendered in evidence by the defendant.[92] The file note reads:
[92]Exhibit 9
“Attended informal meeting with Edisa Kucevic of ABC Preston North Centre. I was contacted and requested to attend the meeting in support of Area Manager Kassar Taleb who was concerned about the content of a letter from Edisa’s Doctor suggesting that thje workplace was not safe for Edisa due to the stress resulting from bullying in the centre.
Considering that the Doctor had never attended the centre to assess the bona fides of Edisa’s stress concerns, but was still willing to assert the presence of bullying behaviour, the business felt an obligation to investigate further.
It was particularly concerning given that we are aware of significant stress that Edissa experiences in her private life, particularly caused, as we understand it, by the dynamics of the relationship she has with her partner who is apparently quite overbearing and allegedly occasionally violent.
Edisa was in a distressed state almost from the moment we closed the door to commence the meeting. Edisa was not rostered to work on the day and had come to the centre especially for the meeting at our request.
We advised Edisa that we were concerned about her and were here to support her. Kassar asked how Edisa was feeling.
Edisa almost immediately burst into tears, saying that she was being bullied by another staff member at the centre, she said that this had been going on for some time and that Kassar would be aware of it.
The person Edisa was referring to is an employee named Liz. Edisa told us that Liz was constantly mean to her. When asked what she meant by this, Edisa provided examples of behaviour that she considered to be bullying:
·Constantly correcting the way Edisa does things,
·Ordering Edisa away from a particular child in the room whom Edisa said only felt comformatble with her;
·Ordering Edisa to do menial tasks in the room and then watching her closely as she did them,
·Spoke to her in a rude and abrupt tone all the time.
Edisa felt that whatever she did wasn’t good enough as far as Liz is concerned and that Liz would butt in and take over things that edisa was doing.
Kassar suggested to Edisa that she was aware that there had been some issue with some of Liz’s mannerisms and that Liz was very forthright and occasionally abrupt.
Edisa said that Liz was menacing and threatening towards her. Again Kassar suggested that Liz had been made aware that her personal style could be taken offensively by some people and had provided an assurance that she would be more conscious of this.
We also pointed out that Edisa had been moved from working directly with Liz in the her room and had, for some time now, been allocated relieving duties across the centre (replacing people in each room during breaks).
Edisa said she still had to relieve in Liz’s room and that nothing had really changed.
Again Kassar tried to ascertain what type of behaviours, when relieving in Liz’s room, Edisa felt threatened by.
Edisa went over previous examples that she felt were demeaning and deliberately threatening. Edisa seemed to work herself up as she continued to rehash examples already given.
Edisa then went on to say that she had also been bullied by another employee, Maria. Edisa provided the examples of:
·When Edisa was putting a shoe on one of the children, Maria had taken it off and tossed it several feet away from her and told her to go and get the shoe and put it back on the child.
·An occasion when Maria had come in the room and slapped Edisa in the back of the head.
Kassar had a look of incredulation on her face. She said she knew who Maria was and indicated that Maria was one of the most timid employees in the centre. Kassar could not believe that Maria would do anything like the behaviours of which Edisa had accused her.
Kassar then asked what Edisa wanted in the way of options to assist with her workplace situation. It was suggested that we could consider transferring Edisa to another centre. Edisa said that this was not right, she had done nothing wrong, if anyone was going to be moved it should be Liz.
Edisa said that she is taking medication for her current illness. She said it felt that something inside her had “broken” and she couldn’t cope with being at work with Liz.
We reassured Edisa that we would do what we could to assist with her workplace situation. Edisa had just commenced a period of leave and was not due back until February. Kassar suggested that she take time to forget about work and have a good relaxing break, which may help her when she returns to the centre after her leave.
Edisa said this would help.
We said that we would further consider Edisa situation and re assured her that we would do what we could to assist to help her feel good about coming to work.
Edisa thanked us for taking the time to see her. The meeting was then concluded.”[93]
(sic)
[93]Exhibit 9, CB 135-136
99 Thereafter, Mr Cox stated he and Ms Taleb went to the centre to speak to the employees that the plaintiff had claimed had been bullying her, on 10 January 2008. His file note of that date[94] reads as follows:
[94]Exhibit 9, CB 137
“We first spoke to Liz. Liz explained to us that she had had discussion with her Director in October last year in response to Edisa’s sensitivity to her manner. Liz acknowledged that she can be very direct in her interactions with people but it was not a matter of anger, she was just a naturally forthright person. Following her ‘talking to’ she said she had not said “boo” to Edisa and deliberately gave her a wide berth where ever possible.
When we advised Liz of the comments that Edisa had made about her in December, Liz said that this is the stuff that was raised with her in October last year and that absolutely nothing had happed, as far as she knew, since then.
Liz said everyone was walking on egg shells around Edisa because she just ‘wasn’t right’, and it was felt that anything could set her off. Liz said she was extremely conscious of her situation and history with Edisa, and that she had been spot on with the suggestions and direction provided to her since the discussion last year.
Liz said she could not think of one situation where she felt that she may have upset Edisa, even accidently since well before Christmas and had no idea why Edisa would still be making such accusations.
We then spoke to Maria who was quite visibly shocked when told of Edisa’s allegations. She strongly denied what Edisa had said and was concerned as she had never had never sensed any ill feeling towards Edisa and thought they got along quite well.
We also spoke to 2IC Slav and asked if she was aware of anything happening in the centre regarding inappropriate behaviour by any staff members towards Edisa. She said she wasn’t aware of anything like that and reiterated that everyone is wary of Edisa and deliberately ensure that they watch themselves lest they upset her.
We suggested that for the immediate future, Edisa stay on breaks but not relieve in Liz’s room. This would ensure that there is no work related contact or any reason for them to be in any situation where Liz could be watching Edisa at work or direct or advise her to perform any duties. Slav said this could be accommodated and that she would fill the Director in on her return and ensure that this happens.
Kassar and I were satisfied that every step had been taken, short of transferring one of both of Edisa and Liz to another centre. This arrangement means that there is no reason, other than passing each other in the corridor, that Edisa and Liz’s paths should cross within the Centre.”
(sic)
100 Suffice to say that both Ms Vallence and Ms Maria Fatouros gave viva voce evidence consistent with this file note.
101 In any event, the action taken by the employer as set out in the file note was to the effect:
“We suggested that for the immediate future, Edisa stay on breaks but not relieve in Liz’s room. This would ensure that there is not work related contact or any reason for them to be in any situation where Liz could be watching Edisa at work or direct or advise her to perform any duties. Slav said this could be accommodated and that she would fill the Director in on her return and ensure that this happens.”[95]
[95]Exhibit 9 at CB 137
102 Mr Cox stated at that time:
“Kassar and I were satisfied that every step had been taken, short of transferring one of both of Edisa and Liz to another centre. This arrangement means that there is no reason, other than passing each other in the corridor, that Edisa and Liz’s paths should cross within the Centre.”[96]
[96]Exhibit 9
103 As to the plaintiff’s complaint to him made in December 2007, Mr Cox stated:
“6. I have been shown two file notes typed by me on 21 December 2007 and 10 January 2008. Now produced and shown to me and marked ‘TCI’ are true copies of those file notes. These file notes are an accurate record of the events and interactions between the persons referred to in those file notes.
7. I recall that I spoke to both Elizabeth Vallence and Maria Fatouros on 10 January 2008 after the allegations were made against each of them by the Plaintiff. After doing so, I formed the view that the allegations against each of them were unlikely to be accurate.
8. My recollection is that when I spoke to the Plaintiff, she was medicated and I considered it probable that she had been affected by matters outside the workplace, including her marital troubles.
9. The subsequent steps taken by the employer – arranging it so that the Plaintiff and Ms Vallence would work in different rooms – was reasonable and appropriate, and all that the employer could do after the complaint. As noted in the file note, the Plaintiff refused to move to a different centre when that option was raised with her during the meeting.”[97]
[97]Exhibit 8
Stress caused by the marital relationship
104 In the context of “Liz” strongly denying to Mr Cox that there was any further harassment after August 2007, and confirming same in the witness box before me, it is relevant to consider the contents of an affidavit sworn by the plaintiff on 11 September 2007 in support of her husband’s WorkCover Claim.[98] Relevant parts of the affidavit read as follows:
[98]Exhibit 1
“1. I was born … June 1968 and am 39 years of age.
2. I am the wife of Ramadan Kucevic, the Plaintiff in this proceeding. We have been long term partners since 1995, and eventually married on 25 January 2003. We have four children, Jusuf aged 11, Jasmin aged 9, and twins Amel and Amela aged 5 ½.
3. Prior to the Plaintiff sustaining injury on 21 August 2002 I never knew him to complain of neck pain, severe headaches, sensitivity to noise and light or depression.
4. Since the accident I have observed a significant change in Ramadan’s demeano[u]r, character and behaviour. He has progressively become more withdrawn. He is easily angered, and at times has become violent. This has had a significant impact on our relationship, and also the relationship between Ramadan and the children. It is as though he is a different person.
5. Prior to the accident Ramadan and I would have the usual disagreements like any other couple, but we had what I would describe as a normal relationship. He was certainly never violent towards me.
6. Before the accident Ramadan was very good towards the children. He would play soccer with the older boys, and would take the children to the park. He would enjoy sitting on the couch with the children. He showed interest in them and was a lot more affectionate towards them.
7. Since the accident he screams and shouts at the children at lot. Our second son Jasmin in particular has reacted emotionally to the change in his father’s demeano[u]r. Even our 5 ½ year old daughter has noticed the changes in Ramadan as she has grown up. She asks questions such as why her father sleeps on the couch in his clothes, and has told me that she ‘wants a different daddy’. It breaks my heart.
8 Since the accident Ramadan likes to spend time by himself. He does not speak with me. He smokes a lot more, and over the past several months he has been drinking alcohol heavily. Before the accident Ramadan would drink alcohol socially. Since sustaining injury his alcohol consumption has increased. He will now for instance keep beer in the house all of the time, and regularly drinks during the day. His cigarette smoking has also increased.
9. At times Ramadan has become violent, pushing and shoving me. There was a particular incident in May 2006 when Ramadan tipped a glass of water over my head, pushed me and punched me. Following this incident I attended the police station and took out an Intervention Order. Ramadan moved out of the house for approximately 3 months and lived with his sister. During this time he spoke with the children on only one occasion, and only because I took them to see him.
10. When the Intervention Order lapsed Ramadan moved back into the family home, though we continued to live separately under the same roof. He would sleep in a separate room downstairs on a couch. I did his washing if he left it in the laundry. I would make him a plate of food when cooking for myself and the children, but he generally would not sit down to eat with us. Often he would not eat the food I had prepared for him at all. During this period we rarely spoke.
11. About a month ago Ramadan screamed at me and the children and locked us out of the house. I had returned from the supermarket and had bags of shopping at the door. We were forced to stay at my parents’ home that night. This was very traumatic for the children, particularly Jasmin, who has become quite distressed by the changes in Ramadan and the environment within the home.
12. Since the accident Ramadan takes little pride in his appearance. He sleeps on the couch downstairs, often in his clothes. There are times when he has slept wearing his jacket, and days where he does not shower or wash. His hair is often dirty.
13. Before the accident people would laugh at Ramadan’s ability to fall asleep anywhere. Now he has trouble sleeping. I often awake in the middle of the night to find Ramadan still awake downstairs on his couch with the heater on, watching television.
14. Since the accident Ramadan has made little contribution to the maintenance of the house, and has had very little involvement in the day to day care of our four children. I have been working as a relieving child care assistant since April 2003 in an attempt to earn enough money to keep our home. The bank is calling all the time because of late payments and I must deal with them, and explain that the payment is late because the children need school uniforms.
15. My hours of work vary, and my employer is sympathetic to our circumstances. Even still, there are shifts where I am required to work outside of usual school hours. During these times I arrange for the children to be in ‘before and after school care’ or my father will collect them from school because I cannot trust Ramadan to care for them. I am scared that he will get angry with the children, or forget them.
16. Despite the difficulties we have had with our relationship since the accident, I have not given up hope. As recently as last week we have decided to make an attempt at reconciliation for the sake of the children.”[99]
(sic)
[99]Exhibit 1
105 It is clear from this affidavit, that the probability is, that the marital situation was causing considerable stress to the plaintiff in the latter half of 2007, at least. Further, the employer was aware of her circumstances and was “sympathetic”. Mr Cox has attested that the employer was aware of her domestic situation and he believed that the employer was addressing her concerns with respect to “Liz” to the best of their ability.
106 I am prepared to accept that the plaintiff’s Anxiety Depressive Disorder as at December 2007 had been contributed to by the actions of Liz on or about 25 May 2007, and probably due to stress within the marital relationship.
107 As to whether, as a matter of fact, Liz continued to harass the plaintiff, contrary to the instructions of the employer, between August 2007 and December 2007, it is difficult to ascertain. Certainly, the plaintiff complained to her treating psychiatrist that the harassment was continuing in early December 2007, but this is strongly denied by Liz. It is clear enough that she had conceded her inappropriate actions earlier in the year but had strenuously denied that they had continued beyond August 2007.
108 In particular, Ms Fatouros denies taking the shoes off the autistic child, throwing them away and telling the plaintiff to come and fetch them, as alleged by the latter on 21 December 2007. Although the employer, through Ms Taleb, accepted that Liz’s behaviour earlier had been inappropriate, she was incredulous that Maria would do such a thing. Maria, for her own part, strenuously denied that any such incident took place, and I regarded her as an impressive witness. On balance, I find the allegation about Maria to be unproven, and possibly a manifestation of the illness then suffered by the plaintiff at that time. It is also noteworthy that there is no independent corroboration of the plaintiff’s complaints of Liz or anyone else mocking her Muslim religion based on contemporary documents prior to December 2007. Indeed, the plaintiff’s “best friend” at work, Ms Li, does not give evidence of any such incident occurring, or of a complaint of same to her by the plaintiff.
109 Similarly, the allegation that the plaintiff had been excluded from ‘Cultural Day’ was not able to be corroborated by Ms Li or anyone. Nor was the allegation that the plaintiff’s photo had been removed from a photo board in the centre’s staff room. The fact that no such complaint was corroborated by Ms Li despite the plaintiff’s allegation that Ms Li raised the absence of the plaintiff’s photo with her leads me to the conclusion that these facts are not proved.
110 In the premises, although the employer was of the opinion that Liz was bullying the plaintiff in May 2007, I am satisfied that their actions thereafter, up until December 2007, were reasonable in all the circumstances, taking into account the Shirt calculus[100] and the requirement that the employer’s actions must be looked at prospectively and not with hindsight.[101]
[100]Wyong Shire Council v Shirt & Ors (supra)
[101]New South Wales v Fahy (2007) 232 CLR 486 at paragraph [5]
Medical certification and treatment from 2008 to July 2009
111 The first certificate provided in the new year of 2008 was dated 6 May 2008, whereby Dr Dana certified the plaintiff unfit for all duties for one day until 7 May 2008 on account of “acute exacerbations of adjustment disorder and/depressive type”.[102] There was no allegation that the exacerbation was work related.
[102]Exhibit “O”
112 In the meantime, on 25 January 2008, Dr Tipirneni has noted:
“Felt upset last Wednesday
& felt panic attacks
· Taking Oxazepam to deal with panic attacks
· Not as much preoccupied with work conflict.”[103]
[103]Exhibit 5 at page 9
113 Apparently no certificate was prepared.
114 Thereafter, on 5 February 2008, Dr Tipirneni has noted:
“• Returned to work
• Feeling better
• Getting better
She will do full shift (10-6) & doing relieving duty.
Feels more stable.
On 16/1/08 – had panic attack.”[104]
[104]Exhibit 5 at page 10
115 There was no suggestion that the panic attack was work related.
116 On 21 February 2008, Dr Tipirneni has noted:
“• Now working well –
• Feels tired & finds it hard
• less energy –
• Sometimes, I don’t feel good, but better
• I feel sweaty, a bit”[105]
[105]Exhibit 5 at page 11
117 Once again, there is no allegation of work aggravation.
118 On 7 March 2008, Dr Tipirneni notes: “Stable …”. The other notes are difficult to decipher, but there is no allegation of work aggravation.
119 On 8 March 2008, Dr Tipirneni has noted:
“• Fairly settled
Mood up & down.”
120 There was no allegation of work aggravation.
121 On 11 April 2008, Dr Tipirneni noted:
“Last week it was good
This week [increased] anxiety
• [decreased] energy
…
• missed sleep
Had panic attack
‘I feel hot’
‘I saw someone falling about in Denmark, everyone laughed at her’.”[106]
[106]Exhibit 5 at pages 12-13
122 There was no work aggravation alleged.
123 On 9 May 2008, Dr Tipirneni wrote:
• “Taking Lexapro 10mg mane
• Neighbo[u]r died 4 days ago, & attended the funeral
• she is close to him
• they were always 4 my kids.
O/E
• well settled
• low moods.”[107]
[107]Exhibit 5 at page 13
124 On a particular day in May 2008, Dr Tipirneni has noted:
“Had panic attacks very upset with Nadia
Back to work ‘pushed’ me saying that why I am not well
Feeling sick
Not able to take phone calls
I felt dizzy, palpitations when she had meetings with conciliator with Margaret last year
Always thinking about my health.”[108]
[108]Exhibit 5 at page 14
125 It is not clear who “Nadia” is, but she has not been the subject of a complaint before me.
126 On 20 May 2008, Dr Dana has written a certificate for three days off work for:
“… acute exacerbation of depression but with no work restriction or allegation of work relationship.”[109]
[109]Exhibit “O”
127 Similarly, Dr Dana wrote another certificate for six days off work on 26 May 2008 for an acute exacerbation of depression but with no allegation of work relationship.[110]
[110]Exhibit “O”
128 On 13 June 2008, Dr Tipirneni provided a certificate for four days’ total incapacity due to Adjustment Disorder of depressive type, but with no allegation of work relationship. In his clinical note of the same date, he notes:
“• Not gone to work for 3 weeks
• mood
• headache +
Still shaking / palpitation
‘I am not able to finish work,
I am going around in circles’
‘I can’t get up’
‘I am exhausted’
‘I had palpitations … [leading to] pins & needles’
Sleep down.
Even struggling with her household work.”[111]
[111]Exhibit 5 at page 15
129 On 13 June 2008, Dr Tipirneni certified the plaintiff was unfit for all work from the following Monday, 16 June, until Friday, 20 June 2008. In the meantime, he had an attendance upon her on 19 June 2008, where he has noted:
“Ms Edisa still remains upset
On Monday, Elizabeth wore a head scarf, like a Muslim – to mock at her because Edisa is Muslim.”[112]
[112]Exhibit 5 at page 16
130 Senior Counsel for the defendant submits that this event is unlikely to have occurred, as Dr Tipirneni had the plaintiff certified unfit for the whole of that week on 13 June 2008. In any event, in his certificate dated the same day, he makes no mention of that allegation, and certifies her for another seven days of total incapacity from 21 June until 27 June 2008. It should be noted that not only does “Liz” deny that any such incident took place, so does Lena, the supervisor, who was said by the plaintiff to have witnessed this event, and it is not corroborated by Ms Li.
131 Even if this event occurred as alleged on 26 June 2008, Dr Tipirneni has noted:
“feeling better now
Felt sore
Nausea / … fair
Sleeps better
…
Rx return to work.”[113]
[113]Exhibit 5 at pages 16-17
132 On 4 July 2008, Dr Tipirneni has written:
“Returned to work on Monday
Son broke arm & wrist while playing
He stayed overnight
He had plaster of paris & is in pain
In the night I feel tired
Occasionally take Alprazolam
Cope OK at work but had anxiety on few occasions
…
worried about son.”[114]
[114]Exhibit 5 at page 17
133 Although the plaintiff was said to have had anxiety on a few occasions at work, there is no allegation of any ongoing bullying.
134 On 2 July 2008, Dr Tipirneni has written:
“‘Felt anxious, puffed in her face’
I felt very hot
‘Can’t relax’
‘I felt chest pain but all the tests are normal’.”[115]
[115]Exhibit 5 at page 18
135 Once again, there is no allegation of work exacerbation.
136 On 18 July 2008, Dr Tipirneni has certified the plaintiff as unfit for all work from 18 July to 29 July 2008 but has not made any allegation about her work stress. On the same day, his clinical note reads:
“Ceased Effexor
• Still feels hot
• BP … [down]
• Not able to manage work
• Now I am not able to tolerate kids screaming etc.”[116]
[116]Exhibit 5 at page 19
137 Once again, no allegation of bullying is recorded.
138 Thereafter, from 5 August 2008 to 22 December 2009, Dr Tipirneni has written in excess of twenty Certificates of Incapacity, all citing the same psychological condition, sometimes with exacerbations. On none of the Certificates is it alleged that there is ongoing bullying occurring at work.[117]
[117]Exhibit “O”
139 In terms of the complaints made to Dr Tipirneni in this latter period, it is worth noting the following entries in his clinical notes:
(a)22 August 2008 –
“• working 3 days a week only 5 hrs / day
• worried about not getting enough hours
•copes ok at work & enjoys her work with kids
…
•‘Now, I’m assertive now’”;
(b) 3 October 2008 –
“• working 15 hrs/ week
•stabilising at work
• feels up & down still
…
sleep improved
work environment improved
no nasty behaviour”;
(c) 18 November 2008 –
“• not able to get enough hours from work”;
(d) 5 January 2009 –
“• feels stress about potential closure of the centre by 31st March ‘09
• she is hoping that someone will take over
• Anxiety +
no panic attacks”;
(e) 12 February 2009 –
“• work is getting quiet
• feels very tired …
• worried about leg – swelling
• had x-ray …
husband is not feeling very well
…
not able to pick up kids at times”;
(f) 1 March 2009 –
“• still uncertain about work
• now energetic
• no panic attacks
• had meeting with union
• sometimes I can’t handle pain at times
• not crying anymore”;
(g) 21 March 2009 –
“The work uncertainty to continue
The Centre will continue till April/May”;
(h) 31 March 2009 –
“’Feels sad’
“only had twenty-one kids / day”
Now the centre might wound up & closem everyone is feeling sad there!
espec the kids
• no panic attacks
‘not feeling down/scared’”;
(sic)
(i) 20 April 2009 –
“the Centre was taken over by another Company
Feels shaky, no energy
…
she had vomiting/headaches”;
(j) 9 June 2009 –
“feels up & down
didn’t work for 2 wks as kids were off sick
still having Chinese Medicine”;
(k) 2 July 2009 –
“• kids got sick & took 4 wks off
daughter got admitted at RCH for Bronchitis
• She is better now
• All the kids got sick
• feels tired/sitting with kids”;
(l) 28 July 2009 –
“• working 2 days x 5 hrs & coping well
• Got a new 2nd in charge & finding it better
• Elisabeth is not there …
• had an incident
• got upset with Elizabeth … she is following me again”;[118]
[118]This allegation was not communicated to the employer
(j) 25 August 2009 –
“up & down still
…
work is stable - 15 hrs/wk
… Mom looked after kids
feeling sick”;
(k) 15 August 2009 –
“Ramadan is sick not able to pick up
Very close friend died … last year”;
(l) 20 October 2009 –
“• Feeling settled
• work is giving only 15 / wk
• ‘Lena’ – centre manager is leaving because of pressure
• Now struggling
not getting the extra hours
‘Liz tried to create problems for me - she blamed my kids (10 kids
in big room) for blocking the toilet’
‘spoke to field manager - upset with Lena for cutting hours from 15 to 14 hrs …
not going to gym
sick … that’s why”;
(m) 4 November 2009 –
“‘Lena has gone & new manager came there to work’
…
Husband doesn’t help”;
(n) 10 December 2009 –
“Feeling sick/crying
‘Had panic/anxiety’
slowed down at work …
didn’t work for last month
On sick leave till Dec 13
…
‘Put on 8 kg’
…
‘Husband is to start a new business – welder”;
(p) 22 December 2009 –
“• Sleeping more
• taking tablets
•feels to drowsy as she is taking very late
…
Ramadan will commence a business in Feb’10
Not going to work at all
I am not well same as other staff
I am shaking inside
…
‘gaining weight’ – because of meds.”
140 The defendant has tendered the clinical notes of the general practitioner, Dr Skodric-Hadzimahmutovic.[119] On 27 March 2008, the general practitioner has noted:
“… anxiety due to work situation – same dispute as … [indecipherable] – counselling – to work.”[120]
[119]Exhibit 7
[120]Exhibit 7, page 19
141 No details are given and no certificate or communication is provided to the employer.
142 On 6 May 2008, the general practitioner has recorded:
“Unwell this morning
Depressed mood, fearful ? reasons – went to work unable to stay”[121]
[121]Exhibit 7, page 20
143 Once again, no suggestion that the depressed mood is work related and there is no communication to the employer in any event.
144 On 20 May 2008, Dr Skodric-Hadzimahmutovic has recorded:
“Anxiety with Depression mood … exacerbations without obvious reason.”[122]
[122]Exhibit 7, page 21
145 On 26 May 2008, the record states:
“Pt claims not having further issues at work but is having frequent exacerbations of her Depression.”[123]
[123]Exhibit 7, page 21
146 On 11 July 2008, Dr Skodric-Hadzimahmutovic records:
“D Tipernini (sic) sent her back to work –
…
Problems with Liz countinious (sic) – everyone moving to the centre and moving with children.”
147 The “problems” with Liz are not particularised and certainly the entry is consistent with contact with Liz in the course of her employment in a non-contentious manner, and perhaps consistent with ongoing bullying, except that there is no allegation as such, and there is no communication of same to the employer.
148 On 21 August 2008, it is recorded:
“…
Works for 3 days – feels anxiety over wc situation unable to cope with different personalities at work.”[124]
[124]Exhibit 7, page 24
149 On 8 September 2008, it is recorded:
“[P]roblems with wc certificate – coping well at present.”[125]
[125]Exhibit 7, page 24
150 On 9 September 2008, it is recorded:
“[H]ad good day at work today – Liz was not around - – everything was .. enjoyable.”[126]
[126]Exhibit 7, page 25
151 On 19 November 2008, it is recorded:
“[F]eels pressure … (Lina) wants to give her more working hours.”[127]
[127]Exhibit 7, page 26
152 On 25 January 2009, it is recorded:
“Problems at work continuous – stressed and fearful – counselling.”[128]
[128]Exhibit 7, page 27
153 The “problems” are not particularised and there is no communication made to the employer.
154 There is no further complaint about work until 11 June 2009, when it is recorded:
“[W]ent to work yesterday, fearful/upset work place under new management – disturbed with coworkers at work (Liz, Lina) fearful – feels … not vwell.”[129]
(sic)
[129]Exhibit 7, page 29
155 Then, on 28 July 2009, it is written:
“[P]roblems with Lina again unwell – unhappy unable to work at present /tired – fearful …”[130]
[130]Exhibit 7, page 29
156 Then, on 7 August 2009, it is recorded:
“[U]nwell today / fearful
Fearful loss of energy
Pressure in her head –
Upset ? causes –.”[131]
[131]Exhibit 7, page 30
157 Then, on 10 September 2009, Dr Skodric-Hadzimahmutovic records:
“[U]pset fearful problems with Liz again – unable to work – abusive behaviour – (because of toilet obstructions) Edisa is trembling when she shouts – tomorrow will have conversations with her counsellor.”[132]
[132]Exhibit 7, page 31
158 Then, on 8 November 2009, it is recorded:
“[P]roblems at work again – feels people are against her – unable to work more than 4 hours.”[133]
[133]Exhibit 7, page 32
159 Then, on 10 November 2009, it is recorded:
“[F]earful anxious went to hand over wc certificate – had unpleasant encounters.”[134]
[134]Exhibit 7, page 32
160 The last recorded entry is 26 November 2009.
Discussion
161 I am able to accept from the clinical notes of both Dr Tipirneni and Dr Skodric-Hadzimahmutovic that the psychiatric illness from which the plaintiff was suffering prior to December 2007 continued into 2008 and 2009, up until the time she ceased employment towards the end of 2009, and probably ongoing.
162 Given that I am satisfied that the original psychiatric illness was contributed to both by the stresses caused by the interaction with Liz and by the marital relationship, I consider there had been no complete recovery from that mental illness which was extant as at December 2007.
163 Insofar as there was ongoing contact with Liz in the workplace, it is reasonable to assume that such contact, having arisen in the course of the plaintiff’s employment, may have exacerbated her condition, as alluded to in the clinical notes referred to above.
164 However, there is no further communication from either treating doctor to the employer, such as contained in the letter from Dr Tipirneni dated 7 December 2007.[135] In particular, there is no allegation on the face of the medical certificates in 2008 and 2009 to the effect that there is ongoing “bullying” from Liz or, indeed, any other factor which could reasonably have demanded a response from the employer to change the work environment.
[135]Exhibit 4
Conclusion
165 Although there is evidence that the psychiatric condition from which the plaintiff suffered had not fully recovered by 2009 and ongoing, and, as such, may be said to arise out of or in the course of her employment, I am not satisfied that the facts proved by the plaintiff in this matter are sufficient to amount to a breach of a duty of care owed by the employer, either prior to May 2007, or thereafter. In particular the lack of complaints from the treating practitioners concerning bullying, on the face of the WorkCover Certificates, from 2008 and 2009 lead me to the conclusion that the plaintiff has failed to prove that the employer has acted unreasonably in this period.
166 As stated earlier, if an event such as the mocking of the plaintiff’s religion did occur at the hands of Liz in June 2008, for which the employer would be vicariously liable, I find that I am unable to say that the plaintiff has discharged the onus in this regard and, if I was wrong in this conclusion, I consider that this event resulted in but a temporary exacerbation of the underlying mental condition.
167 It follows that the proceeding must be dismissed, and I will hear the parties as to any consequential orders.
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