FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174
File number(s): SYG 339 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 November 2024 Catchwords: INDUSTRIAL LAW – where applicant employee had been a long serving employee of respondent employer in the role of “Emergency Customer Service Operator” (ECSO) – where for almost two years employer considered employee was underperforming and had placed the employee under performance management plans and had issued letters of warning – where employer suspended the employee from her work without paying wages on the basis of what employer understood medical reports to have conveyed about the employee’s capacity to perform the roles of an ECSO – whether by not paying the employee wages while employee was suspended the employer contravened provisions of the enterprise bargaining agreement that applied to the employment – whether by suspending the employee without paying wages the employer breached the contract of employment or unlawfully discriminated against the employee on the grounds of her disability – whether as a consequence of the employer’s suspension of the employee the employee suffered psychiatric injury – by suspending employee without pay the employer repudiated the employment contract but did not discriminate or unlawfully discriminate against the employee – by reasons of the breach of the employment contract the employee suffered psychiatric injury which incapacitated her from being able to work – damages for breach of contract awarded. Legislation: Disability Discrimination Act 1992 (Cth) ss 5(1), 15(2)(d)
Fair Work Act 2009 (Cth) ss 50, 323(1)
Telecommunications Act 1997 (Cth) ss 7, 19(1), 56, 466
Telecommunications (Consumer Protection And Service Standards) Act 1999 (Cth) ss 6, 147(1), (11)
Telecommunications (Emergency Call Service) Determination 2019 (Cth) ss 6, 19, 20, 21(2), 40, 41, 42(1), 43, 45, 48
Cases cited: Addis v Gramophone Co Ltd [1901] AC 488
Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542
Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435
Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859
Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Elisha v Vision Australia Limited [2024] HCATrans 71
Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779
Hanley v Pease & Partners Limited [1915] 1 KB 698
Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
Morton v Lamb (1797) 7 TR 125; 101 ER 890
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366
Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199
Parker v Comptroller-General of Customs [2009] HCA 7
Teubner v Humble (1963) 108 CLR 491
Thomson v IGT (Australia) Pty Ltd [2008] FCA 994
Vision Australia Ltd v Elisha [2023] VSCA 265
Watson v Automatic Fire Sprinklers Pty Ltd (1946) 46 SR (NSW) 336
Willis Australia Group Services Pty Ltd v Harden [2021] NSWSC 939
W Emmens, Secretary, etc-Plaintiff in Error; E M Elderton,-Defendant in Error [1853] EngR 884; (1852-53) 4 HLC 624; 10 ER 606
Division: Fair Work Number of paragraphs: 268 Date of hearing: 21, 22, and 23 February, 26 and 27 April, and 4 May 2023
Place: Sydney Counsel for the Applicant: Mr A Harding
Solicitor for the Applicant: Wotton & Kearney Lawyers
Counsel for the Respondent: Mr K Brotherson
Solicitor for the Respondent: Hall & Wilcox
ORDERS
SYG 339 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VALERIE MARTIN
Applicant
AND: TELSTRA CORPORATION LIMITED ABN 33 051 775 556
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The matter be listed at 9.30 am on 22 November 2024, or at such other time and date as may be convenient to the parties and the Court, for the purpose of pronouncing final orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
INTRODUCTION
[1]
ARRANGEMENT OF REASONS
[13]
FACTS
[14]
Triple Zero emergency call service Telstra provides
[14]
Telstra’s obligations as an emergency call person
[19]
The ESAP Policy
[27]
ESAP Quality Review
[31]
Managing compliance with EQR
[34]
E000 Guidelines
[37]
Dr Milecki’s evidence about the E000 Guidelines
[41]
Ms Martin’s employment and EBA coverage
[44]
Management structure of ESAP in which Ms Martin worked
[47]
Telstra’s Performance Support Policy and role of Global case Management Team
[49]
Audiometry tests before 2018
[52]
2 August 2012 hearing test
[53]
23 December 2014 hearing test
[59]
4 October 2016 hearing test
[60]
16 January 2018 – Mr Horncastle lodges HR Request
[63]
2 February 2018 – commencement of PIP
[69]
18 March 2018 – end of PIP
[70]
8 November 2018 – Mr Horncastle requests Ms Turner reopen SOA breaches
[71]
November 2018 – Mr Horncastle informs Ms Martin that a formal performance process will be initiated
[74]
24 November 2018 – Ms Martin is issued November 2018 PSP
[76]
15 January 2019 – Ms Barnett and Mr Behardien meet with Ms Martin and extend November PSP to March 2019
[80]
11 February 2019 - Mr Behardien discusses a mishandled call with Ms Martin
[84]
22 March 2019 - Mr Behardien issues written warning and March PSP
[85]
2 May 2019 – March PSP extended for 6 weeks
[89]
21 June 2019 – Ms Martin issued with second warning letter and placed on further PSP
[91]
28 August 2019 -– Ms Martin placed on further PSP to commence on 16 September 2019
[97]
7 September 2019 – alteration of ticket
[102]
23 September 2019 – Mandatory hearing test
[108]
11 October 2019 - first Milecki Report
[111]
October 2019 – mishandled calls
[115]
4 November 2019 – Ms Martin undergoes audiology
[116]
5 November 2019 – second Milecki report
[118]
7 November 2019 – Ms Martin told not permitted to attend work
[120]
9 November 2019 – Ms Martin asserts that Telstra could not lawfully require her to take sick leave
[131]
21 November 2019 – third Milecki report
[136]
22 November 2019 – Ms Martin obtains audiology report
[144]
25 November 2019 – Ms Barnett provides third Milecki report to Ms Martin
[146]
Events from December 2019 to 14 February 2020
[147]
11 January 2020 – Ms Martin consults Dr Williams
[148]
14 February 2020 – Ms Martin commences proceeding
[155]
16 March 2020 – Ms Martin’s lawyer demands payment of normal salary
[156]
13 May 2020 – Professor Fagan performs fitness for work assessment
[157]
11 June 2020 – Ms Martin’s lawyers seek confirmation that Ms Martin will not be subject to PSP on her return to work
[167]
11 June 2020 – Ms Martin obtains medical certificate she is unfit for work
[168]
26 June 2020 – Telstra makes back payments of base salary
[173]
2 July 2020 – Dr Insley refers Ms Martin to Ms Rendle
[175]
22 July 2020 – Ms Martin consults Ms Rendle
[189]
August 2020 to March 2021 – Ms Martin undertakes further medical consultations
[190]
10 May 2021 – Ms Martin resigns
[192]
18 October 2021 – Ms Martin consults with Dr George
[193]
ISSUES ARISING ON THE PLEADINGS
[194]
Claim based on contravention of s 50 of the FW Act
[195]
Alleged contravention of cl 32.1 of the EBA
[195]
Alleged contravention of cl 17.1 of the EBA
[199]
Alleged contravention of s 323(1) of the FW Act
[202]
Claim based on implied terms of contract
[205]
Claim based on the DD Act
[207]
CLAIM BASED ON CL 32.1 OF THE EBA
[209]
Parties’ submissions
[209]
Determination
[211]
CLAIM BASED ON CL 17.1 OF THE EBA
[216]
Parties’ submissions
[216]
Determination
[218]
CLAIM BASED ON S 323(1) OF THE FW ACT
[220]
CLAIMS BASED ON BREACH OF EMPLOYMENT CONTRACT
[223]
Parties’ submissions
[223]
What are the issues?
[228]
Legal Significance of Purported Direction
[229]
Did Ms Martin suffer a psychiatric injury?
[237]
Open to claim damages for the loss of wages caused by the psychiatric injury?
[253]
What wages would Ms Martin have earned but for the Purported Direction
[258]
General damages for Ms Martin’s psychiatric injury
[267]
CLAIMS UNDER THE DD ACT
[272]
Parties’ submissions
[272]
Determination
[275]
CONCLUSIONS AND DISPOSITION
[279]
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Ms Martin, was employed by the respondent (Telstra) from 1989 to 10 May 2021. From around 2000 Ms Martin was employed as a “call centre Customer Service Operator” (ECSO). Her principal duties consisted of answering and handling triple zero calls.[1]
[1] Amended Statement of Claim, 16.02.2021
Approximately every two years, Telstra required Ms Martin and all other ECSOs to undergo an audiometry, being a test that measures a person’s ability to hear between specified frequencies. The purpose of the audiometry was to determine whether Ms Martin’s (and other ECSOs’) hearing fell within the hearing thresholds (E000 Threshold Requirements) specified by a Telstra policy that was recorded in a document titled “Hearing Assessment Guidelines for E000 work” (E000 Guidelines).[2]
[2] Affidavit D S Barnett 12.08.2021, [23]; annexure “DSB-4” (CB829)
An audiometry conducted on 2 August 2012 revealed that Ms Martin’s hearing did not satisfy the E000 Threshold Requirements; the test results showed that Ms Martin carried hearing losses in the mid to high frequency ranges in both her left and right ears.[3] Ms Martin was referred to an audiologist, who conducted a further audiometry, and tests known as “bone conduction” and “speech discrimination” tests. In a report dated 12 September 2012, the audiologist confirmed that Ms Martin had mild to moderate high frequency loss of hearing, but concluded that Ms Martin was able to perform the role of an ECSO with a binaural headset.[4] Ms Martin underwent hearing tests on 23 December 2014, on 4 October 2016, and on 5 December 2016; and, although these tests confirmed Ms Martin did not meet the E000 Threshold Requirements, Telstra considered Ms Martin was fit to perform her role as an ECSO, and she continued to do so using a binaural headset.
[3] Affidavit D S Barnett 12.08.2021, [47]
[4] Affidavit D S Barnett 12.08.2021; annexure “DSB-7” (CB836-839)
Until around December 2017 Ms Martin performed her role as an ECSO in a manner that appeared satisfactory to Telstra. In around December 2017, however, Telstra formed the view that Ms Martin was not complying with certain key performance indicators relevant to her role as an ECSO, and that she was mishandling calls. Telstra consequently placed Ms Martin on a number of “performance support plans” (PSPs), one in November 2018, one in March 2019, one in June 2019, and one in September 2019. Ms Martin was also issued with two written warnings for unsatisfactory performance, one on 22 March 2019, and another on 21 June 2019.
On 23 September 2019 Ms Martin underwent an audiometry in which she did not satisfy the E000 Threshold Requirements and, on 4 November 2019, Ms Martin underwent further audiological tests. The results of those tests were not materially different from the results of the tests undertaken in 2016; but they were referred to a medical practitioner specialising in occupational health, Dr Milecki, for assessment. Dr Milecki prepared two reports, one on 11 October 2019 and one on 5 November 2019, which he provided to Ms Barnett, who was Ms Martin’s manager. Ms Barnett understood Dr Milecki’s reports to have conveyed that Ms Martin did not meet the E000 Guidelines, and that she was not fit to perform her role as an ECSO. On 7 November 2019 Ms Barnett informed Ms Martin that she had not passed the hearing test and was considered not to be fit to perform her role as an ECSO; and that she was required to take sick leave from 8 November 2019 until such time as she could be medically confirmed to be fit to perform the role of an ECSO. Ms Martin left her workplace on 7 November 2019, never to return.
On 21 November 2019 Ms Barnett received a third report from Dr Milecki in which he advised that Ms Martin was unfit for her usual role of ECSO until further medical assessments were undertaken to clarify whether there were any medical issues that impacted on Ms Martin’s ability to safely perform that role; and Dr Milecki recommended that Ms Martin be requested to consent to Dr Milecki discussing with Ms Martin’s treating general practitioner to determine whether there were any such issues. On 25 November 2019 Ms Barnett requested Ms Martin’s consent to Dr Milecki speaking with Ms Martin’s treating general practitioner; but Ms Martin did not respond to that request until 11 February 2020, when she sent an email to Ms Barnett in which she said she would not sign a consent form.
At the time Ms Barnett informed Ms Martin that she was not permitted to attend work until medically cleared, Ms Barnett also informed Ms Martin that she would be on sick leave as from 8 November 2019. In response to Ms Martin’s objection, by email sent on 12 November 2019 Ms Barnett informed Ms Martin that her absence from the workplace will be treated as discretionary compassionate leave. Telstra paid Ms Martin compassionate leave up to 14 February 2020, excluding the period 7 January 2020 to 2 February 2020 when Ms Martin had taken leave for which she had requested in the middle of 2019. Telstra made no further payments to Ms Martin until 26 June 2020.
On 14 February 2020 Ms Martin commenced this proceeding against Telstra in which she made three claims, one of which Ms Martin abandoned.[5] On 10 June 2020, on the basis of a medical assessment Professor Fagan conducted on 13 May 2020, Telstra informed Ms Martin that it considered Ms Martin was fit to return to work and perform her role as an ECSO; and on 26 June 2020 Telstra, without admissions, paid to Ms Martin an amount equivalent to her base salary for the period from 14 February 2020 to 12 June 2020, and personal leave she had taken in that period. Ms Martin, however, did not return to work. Commencing on 11 June 2020 Ms Martin obtained from a general practitioner, and arranged her lawyers to provide to Telstra, medical certificates which certified that Ms Martin “has a medical condition and will be unfit for work”.[6] The medical certificates were issued around once a month up to 5 March 2021, and all but the last medical certificate specified a period of around 4 weeks for which Ms Martin was certified as being unfit for work. The last medical certificate covered the period from 7 March 2021 to 7 May 2021.[7]
[5] The amended statement of claim filed on 11 August 2020 removed paragraphs 36-42 of the statement of claim as originally filed on the basis of which Ms Martin alleged Telstra contravened s 352 of the Fair Work Act 2009 (Cth)
[6] Affidavit D S Barnett 12.08.2021, annexure “DSB-57”
[7] Affidavit D S Barnett 12.08.2021, annexure “DSB-58”
On 18 October 2021 Dr George, a psychiatrist, prepared a report (George Report) in which he provided an opinion that Ms Martin suffers from “persistent depressive disorder”, and that she has suffered from that condition from 7 November 2019, being the date Ms Martin nominated to have been “the date when she left” the workplace; and that Ms Martin “became unfit to work on the day that she was asked to leave the workplace”.[8] Dr George prepared the report in response to a request made by Telstra, through its lawyers, that he prepare and undertake an independent psychiatric assessment of Ms Martin.
[8] Exhibit B
In these circumstances Ms Martin makes a number of claims. First, Ms Martin claims that by Ms Barnett, on 7 November 2019, directing Ms Martin to take sick leave from 8 November 2019 when, as Ms Martin alleges, she was not sick or injured, Telstra contravened cl 32.1 of the Telstra Enterprise Agreement 2015-2018 (EBA) and, therefore, contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act). Second, by not paying Ms Martin any wages after 14 February 2020, Telstra contravened cl 17.1 (or in the alternative, cl 18.4(f)) of the EBA and, therefore, s 50 of the FW Act. Third, by not paying Ms Martin any wages after 14 February 2020 Telstra contravened s 323(1) of the FW Act. Fourth, Telstra’s requiring Ms Martin not to attend work until such time as Telstra was satisfied that Ms Martin was medically fit to continue to perform her role as an ECSO, and Telstra’s requesting that Ms Martin consent to Dr Milecki contacting her general practitioner, constituted a breach by Telstra of one or more of three implied terms of her contract of employment, these being that Telstra would co-operate with Ms Martin; that Telstra would act in good faith towards Ms Martin, and that Telstra would only give lawful and reasonable directions to Ms Martin. Furthermore, Ms Martin claims that the conduct on which Ms Martin relies for her third claim, that is, that Telstra breached implied terms of her contract of employment, also constitutes unlawful discrimination against Ms Martin, contrary to s 5(1) and s 15(2)(d) of the Disability Discrimination Act 1992 (Cth) (DD Act). Ms Martin claims that as a consequence of Telstra’s conduct, she suffered psychiatric injury; and on the basis of that injury Ms Martin claims damages for economic loss equal to the income she says she would have earned from 7 November 2019 until 18 May 2023, being the day on which she turned 75 years of age; and general damages.
Telstra denies it engaged in any unlawful conduct. Telstra submits that its conduct towards Ms Martin was motivated by its desire to ensure that Ms Martin was fit to perform the important work of an ECSO; and that the decision Ms Barnett made on 7 November 2019 to require Ms Martin to leave the workplace until such time as Ms Martin was medically certified as being fit to work as an ECSO, and Ms Barnett’s seeking Ms Martin’s consent that Dr Milecki contact Ms Martin’s treating doctor, was based on the reports Dr Milecki provided, and what Telstra had assessed as Ms Martin’s failure to consistently meet the requirements of the role of ECSO over a period of nearly two years.
Three principal questions, therefore, arise. The first is, assuming Telstra’s motivation for, and the basis on which, it submits it acted in relation to Ms Martin are irrelevant, has Ms Martin established that Telstra contravened the EBA, s 323(1) of the FW Act, and s 15(2)(d) of the DD Act, and breached implied terms of the employment contract in the manner Ms Martin alleges it did? To the extent this set of issues is answered in the affirmative, are Telstra’s motivation for, and the basis on which, it submits it acted in relation to Ms Martin relevant to determining whether Telstra contravened the EBA, s 323(1) of the FW Act, and s 15(2)(d)of the DD Act, and breached implied terms of the employment contract in the manner Ms Martin alleges it did? The third question is whether Ms Martin suffered psychiatric injury.
ARRANGEMENT OF REASONS
These reasons are arranged as follows. In the longest section of these reasons, I set out in in narrative form the facts against which Ms Martin’s claims are to be considered. Most of the facts are not in dispute, because most of the evidence, which is voluminous, is in the form of contemporaneous documents and correspondence. It is nevertheless relevant to set out what these documents reveal because, at least on Telstra’s case, they provide essential context by reference to which Telstra’s conduct towards Ms Martin is to be assessed. Second, I will set out the causes of actions Ms Martin pleads in the amended statement of claim she filed on 16 February 2021 (Statement of Claim), and Telstra’s pleaded defences to those causes of actions. Third, I will consider separately each of the causes of action on which Ms Martin relies.
FACTS
Triple Zero emergency call service Telstra provides
Telstra is the holder of a “carrier licence” under s 56 of the Telecommunications Act 1997 (Cth) (Telco Act) and, therefore, is a “carrier” within the meaning of s 7 of that Act. Being a carrier, Telstra is licensed to provide, and does provide, carriage services by use of the network it owns or operates. A “carriage service” is defined in s 7 of the Telco Act to mean “a service for carrying communications by means of guided and/or unguided electromagnetic energy”.
Telstra is a “recognised person who operates an emergency call service” within the meaning of s 7 of the Telco Act, having been determined to be “a national operator of emergency call services” by a written determination made by the Australian Communications and Media Authority (ACMA) pursuant to s 19(1) of the Telco Act. The expression “emergency call service” is defined in s 7 of the Telco Act to mean a service for “receiving and handling calls to an emergency service number” and transferring such calls to at least “a police force or service”, or “a fire service”, or “an ambulance service”. The expression “emergency service number” is a number determined pursuant to s 466 of the Telco Act, and those numbers include “000” and “112”.
Telstra is the “emergency call person for 000 and 112”, as that expression is defined in s 6 of the Telecommunications (Emergency Call Service) Determination 2019 (Cth) (ECS Determination), being a determination ACMA made pursuant to s 147(1) Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (Standards Act).[9] That is, Telstra is the “emergency call person who is the recognised person who operates an emergency call service for the emergency service numbers 000 and 112” (ECP).
[9] For ease of expression, I will speak in the present tense, it being understood, however, that the legislative provisions to which I refer are those that applied at the times relevant to this proceeding; and the state of affairs I describe are those that existed at that time.
What I later identify as the ESAP Policy describes the triple zero and 112 emergency call services Telstra provides as follows:[10]
Every caller to Triple Zero will first hear a front end recorded announcement assuring the caller they have dialled Triple Zero and that their call will be answered.
Current technology displays the Calling Line Identification (CLI) and address of the caller when the Telstra Triple Zero agent answers the incoming call. This information is then used by the Triple Zero system to connect the call to the assigned ESO answering point for emergency calls in that area. When the call is connected to the ESO [that is, the Emergency Service Organisation] the system automatically connects the call using the 1st priority number supplied by the ESO’s and stored in the contact database.
Agents will wait until the service answers the call and the conversation has started or details passed to the service. The call is them [sic] released.
If a call is received from a nomadic services [sic] (includes mobile phones and VOIP services) then only the caller’s CLI will be displayed with a region base station message. The region message will display the Standard Mobile Service Area (SMSA) which denotes the region or area covered, and the originating State. . . . This information assists the operating system in connecting the call to the designated answer point for the emergency service in that region. The Telstra agent must then request from the caller the State and Town that the emergency is in.
If the Town name is not known or found, the agent may have to ask for the nearest Town. Again if this is still not known or found, the call will be connected to the capital city ESO for the region. If the region is unknown the call is to be connected to the Call Centres state capital city. During this type of call the agent may need to confirm the spelling of the town name with the caller.
Once the Telstra agent has selected the State and Town as provided by the caller, the call is automatically connected using the first priority number given by the ESO for that State and Town. As per our legal requirements, all calls answered by Telstra are written back to a call records database. Each call is voice recorded and stored. Both the call record and the voice recording will be held for a minimum of seven years.
[10] Affidavit D S Barnett 12.08.2021, [9]; annexure “DSB-2” (CB795, at CB804-CB805)
It will be seen that Telstra provides the 000 and 112 emergency calls through “agents” (ECSOs). An ECSO’s work involves sitting at a computer, inputting and retrieving data while listening and talking to customers typically through a monoaural headset (but sometimes binaural headsets) fitted with a lightweight foam ear pad connected to a console. ECSOs work in office-like environments, either completely open or in “pods” with approximately four to six other ECSOs in a semi-enclosed area. The ambient sound level for the operation of ESAPs is designed to be less than or equal to 55db.[11]
[11] Affidavit D S Barnett 12.08.2021, [23]; annexure “DSB-4” (CB829)
Telstra’s obligations as an emergency call person
As a “carrier” and the ECP, Telstra is bound by the terms of the ECS Determination. Relevant to this proceeding are the provisions contained in Division 2.2 and Division 3.2 of the ECS Determination.
First, s 19 of the ECS Determination requires Telstra to give end users access to the emergency call service it operates as the ECP:
(1)Subject to subsection (2), a carriage service provider who supplies an emergency telephone service other than an exempt satellite service must ensure that an emergency call made using the service is carried to the relevant termination point for the call:
(a) on the provider’s telecommunications network; or
(b) if the provider’s telecommunications network does not allow direct delivery to the relevant termination point for the call— by another telecommunications network.
(2)Subsection (1) does not apply if a matter beyond the control of the carriage service provider materially and adversely affects the provider’s technical ability to carry the emergency call to the relevant termination point.
The expression “relevant termination point”, for a call to the emergency service numbers 000 or 112, is defined in s 6 of the ECS Determination to mean “the point in the network of the emergency call person for 000 and 112 reasonably specified by that person as the point to which a call using a particular type of carriage service must be carried”.
Second, s 20 of the ECS Determination requires Telstra to ensure that an emergency call is carried to an emergency service organisation:
1)Subject to subsection (2), a carriage service provider who supplies a carriage service to an emergency service organisation (ESO service provider) must ensure that an emergency call transferred to the organisation by a call taker is carried from the relevant transfer point to the ESO answering point:
(a) on the ESO service provider’s telecommunications network; or
(b)if the ESO service provider’s telecommunications network does not allow direct delivery to the emergency service organisation— by another telecommunications network.
(2) Subsection (1) does not apply if a matter beyond the control of the ESO service provider materially and adversely affects the provider’s technical ability to carry the emergency call to the ESO answering point.
(3) In this section:
ESO answering point means the point in the network of the ESO service provider at which an emergency service organisation is able to answer an emergency call transferred to the organisation.
relevant transfer point means:
(a) for a call to the emergency service number 000 or 112, the point in the network of the emergency call person for 000 and 112 reasonably specified by that person as the point from which a call transferred to an emergency service organisation by a call-taker must be carried by the ESO service provider; and
(b) for a call to the emergency service number 106, the point in the network of the emergency call person for 106 reasonably specified by that person as the point from which a call transferred to an emergency service organisation by a call-taker must be carried by the ESO service provider.
Section 6 provides that “emergency service organisation” has the meaning given to that expression by s 147(11) of the Standards Act, which includes a police force or service, a fire service, and ambulance services.
Third, s 21(2) of the ECS Determination provides that where an end-user makes an emergency call using the emergency service number 000 or 112, and the call is carried within Telstra’s network, Telstra must “ensure that the call is transferred to the relevant termination point with the highest priority”.
Fourth, s 40 of the ECS Determination requires Telstra to ensure that each call it receives on an emergency service number “is handled in accordance with” Division 3.2. Those requirements include the following:
(a)Telstra must ensure that an emergency call delivered to the “relevant termination point” for access to Telstra is carried to the “relevant answering point” for Telstra, “unless a matter beyond the control of [Telstra] materially and adversely affects their technical ability to do so” (s 41). The expression “relevant answering point” is defined in s 6 to mean for a call to the emergency service number 000 or 112, the point in the network of the [Emergency Call Person] for 000 and 112, after the point at which the announcement for emergency calls is played, at which a call-taker is able to respond to the call”. The expression “announcement for emergency calls” is defined in s 6 to mean “a pre-recorded voice announcement that advises the end-user that they have made a call to an emergency call service”; and “call-taker” is defined in s 6 to mean “an individual who responds to a call made to an emergency service number on behalf of [among others] the emergency call person for 000 and 112”.
(b)A call-taker must transfer a call he or she receives from an end user to an emergency service organisation if the end user: (i) “asks the call‑taker to transfer the call to an emergency service organisation; (ii) indicates in another way that the end‑user wishes the call to be transferred to an emergency service organisation; or (iii) gives information to the call‑taker that the call‑taker may reasonably rely on as indicating that the end‑user should contact an emergency service organisation (s 42(1)).
(c)A call-taker must transfer a call he or she receives from an end user to “the announcement for State and Territory emergency services” if the end user: (i) asks the call‑taker to transfer the call to a State or Territory emergency service; (ii) indicates in another way that the end‑user wishes the call to be transferred to a State or Territory emergency service; or (iii) gives information to the call‑taker that the call‑taker may reasonably rely on as indicating that the end‑user should contact a State or Territory emergency service (s 43). Section 6 of the ECS Determination defines “State or Territory emergency service” to mean the emergency services organisations it identifies as established under a law of a State of Territory; and s 6 defines “announcement for State and Territory emergency services” to mean “a pre-recorded voice announcement that includes: an explanation that a State or Territory emergency service cannot be contracted through the emergency call service”
(d)A further requirement is imposed by s 45 of the ECS Determination, which applies to a “Caller No Response Call”. That expression is defined in s 6 to mean “a call made to an emergency service number by an end-user who, when asked at least twice by the call-taker if police, fire or ambulance is required, has not responded, or has not indicated in another way, that police, fire or ambulance is required”. Where a call-taker receives such a call, the following must occur:
(i)Telstra must transfer the call to the “announcement for Caller No Response Calls”. (s 45) That expression is defined in s 6 to mean “a pre-recorded voice announcement that: (a) asks the end-user to dial or press ‘55’ if the end-user requires emergency assistance, and, (b) if played in full, repeats the request described in paragraph (a) three times.”
(ii)If the end-user dials or presses ‘55’, the call-taker must ask the end‑user if the end‑user requires police, fire, or ambulance and, if the end‑user does not respond, or does not indicate in another way, that police, fire, or ambulance is required, the call-taker must transfer the call to the police force or service in the capital city of the end‑user’s State or Territory. (s 45)
(iii)If the end-user does not dial or press ‘55’, the call-taker must disconnect the call.
Section 48 of the ECS Determination is particularly relevant:
Speed, efficiency and reliability for numbers 000 and 112
(1) Subject to subsection (2), the emergency call person for 000 and 112 must ensure that, for each day that the person receives calls to the emergency service number 000 or 112:
(a)85% of the calls are answered by a call‑taker within 5 seconds of reaching the relevant answering point for the call; and
(b) 95% of the calls are answered by a call‑taker within 10 seconds of reaching the relevant answering point for the call.
(2) The emergency call person for 000 and 112 will not be in breach of subsection (1) if a failure by it to reach a daily target set out in that subsection is due to a matter beyond the control of the person and which could not have been reasonably foreseen by the person.
Example 1: Delay in answering emergency calls due to unexpectedly high calling volumes caused by unforeseen natural disasters.
Example 2: Delay in answering emergency calls because of action taken to prevent or manage an ECS disablement event.
Example 3: Delay in answering emergency calls due to operational issues experienced by an emergency service organisation.
The ESAP Policy
Telstra has sought to implement its responsibilities as the ECP for 000 and 112 by having established and operating call centres it identifies as “Telstra Emergency Service Answer Point Call Centres” (ESAPs or ESAP), and formulating a policy that is recorded in a document titled “ESAP – Emergency Service Answer Point Triple Zero Policy v 4 – Policy 003750” (ESAP Policy).[12] That document “details the responsibilities, key activities, policies and system used by the Emergency Service Answer Point (ESAP) as the ECP provider for Triple Zero”, its purpose being:[13]
to clearly define the Responsibility of [sic; perhaps should read “to”] the Australian Communication and Media Authority (ACMA), Emergency Call Person (ECP), the Emergency Service Organisation (ESO) and Concentrix (National Relay service) in relation to the provision of the 000/112 and 106 emergency numbers.
[12] Affidavit D S Barnett 12.08.2021, [9]; annexure “DSB-2” (CB795)
[13] Affidavit D S Barnett 12.08.2021, [9]; annexure “DSB-2” (CB799)
The ESAP Policy further states that:
This Policy document will apply to the Telstra Emergency Service Answer Point Call Centres and will be a reference point for Telstra management and Telstra Legal Representatives.
The ESAP Policy provides an overview of the “Telstra Triple Zero Service” (which I reproduced above), and specifies the tasks of a number of different classes of persons who are associated with the provision of that service. The first class of person is the “Triple Zero AGENT (ECP)” (these being the ECSOs I have identified above). It would be convenient to reproduce what the ESAP says about ECSOs (emphasis added):[14]
[14] Affidavit D S Barnett 12.08.2021, [9]; annexure “DSB-2” (CB799)
The ECP is determined by the Australian Government in the Telecommunications (Emergency Call Person) Determination 2019.
•Telstra, functions as the Emergency Call Person (ECP) for 000/112. Telstra switching role is a condition of its licence and is a requirement under the ACMA’s Emergency Call Service Determination 2019. Concentrix (National Relay Service) are the nominated ECP’s.
•Telstra and Concentrix are responsible for providing the service to the caller, and reporting on the performance of the service on a quarterly basis.
•Concentrix is nominated ECP for the hearing and speech impaired emergency number, 106.
•The Telstra agent is the switching agent and is only responsible for switching calls to the Police, Fire or Ambulance as requested by the caller. Agents must answer and connect the call to the required emergency service as quickly and efficiently as possible.
•The call must not be released until the service has answered. During extreme events the Team Manager may enforce special procedures for these types of call.
•Failure to answer a call as soon as the system allows or connect calls using the correct procedures may bring disciplinary action. This will depend on the severity of the non-compliance and can range from an informal chat with a Team Manager to dismissal from the Emergency Service Answer Point (ESAP).
•Agents should be alert and connect calls to the emergency service not only on verbal exchange with the caller. But also be alert to any background noise that may be heard, which may indicate distress, panic, alarm or fear.
•Any call handling issues or difficulties should be referred to the Team Manager for follow up.
•Triple Zero Centres are staffed 24 hours a day and seven days a week. Agents are rostered on duty depending on the traffic requirements.
•During this rostered time agents are permitted to take a break once every 40 to 70 mins (based on the rostered shift.)
•At all other times, the agent must be logged on and sitting/standing, facing the screen at the Triple Zero call handling position, available to answer any call that is presented to the position.
•Agents should always be alert and be ready for a quick response to 000/112 calls, with the calls being handled as calmly and quickly as possible, that is within 3 seconds of a call being presented to the position. (The answer time of 3 seconds is a measure used in the agents Monthly Performance Discussions.)
•The Concentrix is nominated ECP for the hearing and speech impaired emergency number, 106.
The second class of responsibilities the EAP Policy specifies are those that apply to “Triple Zero Team Managers” (Team Managers). The tasks include the following, amongst other things:[15]
•Ensuring the ECP (agents) are able to answer, process and connect all 000/112 calls in accordance with ACMA and the Triple Zero Policy and Procedures.
•Performing Monthly Performance Reviews (MPRs) on each Triple Zero agent.
•Coaching agents will also be required to correct any issues with call handling. At times this may include disciplinary action.
•Managing day to day Call Centre issues.
. . . .
[15] Affidavit D S Barnett 12.08.2021, [9]; annexure “DSB-2” (CB800)
ESAP Quality Review
Telstra requires employees who work in an ESAP to meet key performance indicators (KPIs) that are specified in a document titled “ESAP Quality Review” (EQR).[16] The document identifies seven sets of “competencies”, these being headed “greeting”, “active listening”, “phrasing”, “connection”, “3WC” (that is, “three-way connection”), “tone and manner” and “non-negotionables [sic]”. Under these headings there are more particularly described competencies. For example, the particular competencies in relation to “Greeting” are “SOA” (that is, “speed of answer”) “within 3 seconds” (SOA requirement), and “Opening Phrase offered within 3 seconds of answer”. The particular competencies for “Active Listening” are:
Caller gave a clear trigger for service and/or location, agent connected to appropriate service/location promptly
Caller having difficulty responding/understanding, agent responds appropriately eg interjecting where required
Agent allowed caller to provide all necessary information
[16] Affidavit D S Barnett 12.08.2021, [10], [17]; annexure “DSB-3” (CB827)
The particular competencies for “connection” are as follows:
Full final connection phrase used before connecting “Connecting PFA/Town/State” or “Connecting Capital City PFA”
Selected correct State/Location/ESO
Reassurance 4-5 rings
Line change when prompted (< 8 seconds)
The EQR also contains ten columns headed “Call 1” to “Call 10”, and in relation to each competency there is required to be included whether the competency has been met. Thus, the EQR is a proforma which is completed in relation to particular ECSOs in relation to particular calls by stating whether each competency in relation to each call has been met.
Managing compliance with EQR
According to Ms Barnett, who is employed by Telstra as the “Centre Senior Lead, Sydney” in the ESAP located in Paddington, the ESAP Policy requirements and the KPIs are discussed with ECSOs at regular points throughout their employment, and they are provided with regular support to help them meet the KPIs. In particular, at each ESAP:
(a)The ECSOs hold monthly meetings led by the Team Leader where participants discuss general performance across the ESAP.[17]
(b)Each ECSO conducts a weekly “one-on-one coaching” with the Team Leader which includes “call reviews”.[18]
(c)Each ECSO receives one-on-one “side-by-side” coaching by a Team Leader listening. That involves a Team Leader listening in on the call and providing guidance to the ECSO. These sessions are held approximately monthly.[19]
(d)ECSOs hold “Call Calibration sessions” every month. These involve members of the “Quality Team” listening to emergency calls remotely with a group of ECSOs, and then discussing individual performance against the KPIs, and areas for improvement in handling calls.[20]
(e)Team Leaders hold monthly reviews with each ECSO.[21]
[17] Affidavit D S Barnett 12.08.2021, [13(a)]
[18] Affidavit D S Barnett 12.08.2021, [13(c)]
[19] Affidavit D S Barnett 12.08.2021, [13(d)]
[20] Affidavit D S Barnett 12.08.2021, [13(e)]
[21] Affidavit D S Barnett 12.08.2021, [13(f)]
All ECSOs have a target of 100% in the SOA requirement so that, if a SOA requirement is breached in relation to a call, the call is recorded as 0% compliance.[22] Further, if an ECSO were to transfer a call to the wrong ECSO or location, or fail to pass on relevant information the caller provided, it would be considered a “mishandled call”. According to Ms Barnett:[23]
Mishandling calls is serious and can result in life-threatening implications for members of the public. Any mishandled call that is identified through call reviews, Call Calibration sessions or general quality assurance reviews are brought to a Team Leads’ attention and needs to be formally addressed with the E000 Operator. Mishandled calls can warrant the commencement of a formal performance management process and/or disciplinary action such as a formal warning depending on the circumstances.
[22] Affidavit D S Barnett 12.08.2021, [19]
[23] Affidavit D S Barnett 12.08.2021, [20]
Ms Barnett does not in her evidence identify the connection between the competencies the EQR identifies and the obligations Telstra had under the ECS Determination, and in particular s 48 of the Determination. As I have already noted, s 48(1) of the ECS Determination requires that “85% of the calls are answered by a call‑taker within 5 seconds of reaching the relevant answering point for the call”, and that “95% of the calls are answered by a call‑taker within 10 seconds of reaching the relevant answering point for the call”. Telstra has not provided any evidence that explains why Telstra employs 3 seconds as its SOA competency when the ESCS Determination specifies 5 seconds; and Telstra has not provided any evidence about the percentage of calls it expects will be answered within 3 seconds, given that the ECS Determination requires that 85% be answered within 5 seconds. Nothing turns on the absence of evidence on this subject.
E000 Guidelines
An ECSO requires a good level of hearing to be able to clearly hear and effectively communicate with the caller. To ensure this is the case Telstra requires persons who apply for the position, or who are in the position, to undergo a hearing assessment in accordance with the guidelines recorded in a document titled “Hearing Assessment Guidelines for E000 Work” (these being the “E000 Guidelines” I identified at the beginning of these reasons).[24] These guidelines appear to be directed to persons who are to conduct the hearing assessments.
[24] Affidavit D S Barnett 12.08.2021, [23]; annexure “DSB-4” (CB829)
The E000 Guidelines:
(a)note that “pre placement base line hearing assessments are conducted for all applicants seeking to undertake Emergency E000 call centre work”, it being the case that “[s]uccessful placement is contingent on a satisfactory hearing assessment result”.
(b)describe the work ECSOs perform, and the environment in which they perform the work;
(c)under the heading “Audiometry”:
(i)specify that “[a]ir conduction thresholds should be measured at frequencies of .5k, 1k, 1.5k, 2k, 3k, 4k, 6k, and 8kHz in both ears”, and that candidates “for E000 work should have hearing of 25dB [that is, decibels] HTL [that is, “hearing threshold level”] or better in at least one ear at all frequencies between 500 and 4KHz” (this being the “E000 Threshold Requirements” I identified at the beginning of these reasons); and
(ii)require that if hearing levels exceed 25dB HTL in both ears, further audiological testing is required to verify the initial results and, based on additional bone conduction and speech discrimination tests, determine if the applicant or employee will be able to carry out the inherent requirements of E000 work; and
(d)under the heading “Audiology”, specifies what should be determined or be the subject of comment in relation to bone conduction tests and speech discrimination tests.
Under the heading “Recommendations” the following is stated:
Adequacy of communication ability using a headset is a matter of professional clinical judgment based upon an understanding of the workplace requirements and the hearing ability of the employee.
Please indicate in your report whether, if in your professional opinion, the candidate will or will not be able to carry out the inherent requirements of headset work.
Please also indicate if there are any reasonable and practical adjustments to the workplace that would enable the inherent requirements of the job to be performed without difficulty eg. alternative headset type. Please record in detail.
Finally, the E000 Guidelines state the person carrying out the assessment “should explain the hearing assessment results to the applicant at the conclusion of the assessment”.
Dr Milecki’s evidence about the E000 Guidelines
It would be convenient at this point to refer to the evidence Dr Milecki gave under cross-examination about the E000 Guidelines. Dr Milecki is a medical practitioner, and an employee of a practice that trades under the name “InjuryNET”, and is the author of a number of reports to which I refer later in these reasons.
Dr Milecki practises in the area of occupational health, and has done so for the last 35 years. Dr Milecki developed an interest and a specialty in dealing with the concept of fitness for duty at work, particularly in the emergency services sector. He gives advice on fitness for duty, and in developing medical standards relevant to the fitness of a person to perform a particular duty. He works for InjuryNET that is “contracted by Telstra to provide occupational medical services, and that includes undertaking the . . . screening of workers . . . in different sort of scenarios, and one of those scenarios is the E000 call centre in Sydney, whereby we sort of organise the … audiometry every couple of years, and then organise follow-up, and then . . . give advice on any cases”.[25]
[25] T256.35-T257.5
Dr Milecki gave the following evidence about the steps that are involved in giving effect to the E000 Guidelines.[26]
(a)The first step is to perform an audiometry. An audiometry measures, not speech reception, but “hearing thresholds”, that is, the ability “to hear sounds . . . through the … machine, through the audiometrist”.[27] The hearing/air conduction thresholds are measured at particular frequencies;[28] and the E000 Guidelines stipulate a particular measure as to the level of hearing between specified frequencies.[29]
(b)The second step is to perform audiological testing, and this is required if the person being tested does not meet the hearing threshold under the audiometry (these being the E000 Threshold requirements I identified earlier in these reasons). Audiological testing consists of “bone conduction”, and “speech discrimination” (together with a repeated audiometry).[30] An “audiology” is different from an audiometry “in that it’s a more extensive test, with other things being tested, and also the expertise and the training of the person who’s undertaking the test is consistent with being a qualified audiologist, and also they’re able to give advice and opinions . . . based on their findings”.[31] An audiology is “more detailed and thorough” than a pure audiometry test, involving clinical judgment because the person conducting the audiology must interpret the results.[32] Further:[33]
So the audiologist really is – has to undertake all the tests that an audiologist usually does, so it’s an audiological review, and that includes repeating the audiology with [functional] audiometry, and then also undertaking with the test specifically a bone conduction and speech discrimination. Sometimes they perform other tests as well, and they look at the impedance in the ear – that sort of thing as well, so they may do that. But really, the things that we’re looking for, in the end, the – the things that are important – the bone conduction test is really to identify the source of the problem, not the severity of it. The speech discrimination tells about their ability to discriminate speech, which is pretty – which is very central to understanding their capacity, and – but they also repeat the [functional] audiometry so we get a more – a repeat and perhaps more accurate view of their actual hearing in pure tone.
(c)The third step in conducting a hearing assessment pursuant to the E000 Guidelines is the making of an assessment whether, in the assessor’s opinion, the person undergoing the assessment will or will not be able to carry out the inherent requirement of headset work.[34]
(d)The fourth step arises if in step 3 the assessor forms the view that the person being assessed could not carry out the inherent requirements of headset work; and the step requires the offering of an opinion on whether any adjustments could be made by use, for example, of an alternative headset.[35]
(e)A fifth step, although not a required step, is to explain the hearing assessment results to the person being assessed.[36]
[26] T261.5
[27] T261.40
[28] T261.20
[29] T261.35
[30] T262.15
[31] T262.35
[32] T262.40 – T262.45
[33] T263.30
[34] T264.30- T264.40
[35] T266.10
[36] T265.10- T265.25
Ms Martin’s employment and EBA coverage
Ms Martin commenced employment with Telstra in around 1989 within Telstra’s Directory Assistance Department;[37] and, in around September 2000, she commenced employment as an ECSO. It is admitted on the pleading that:
(a)Ms Martin was employed on a full time basis;[38]
(b)Ms Martin’s duties included answering 000 calls and recording details of an emergency while speaking with potentially highly emotive callers; transferring calls to the relevant emergency services; and answering up to 100 calls per hour;[39]
(c)Ms Martin has a mild to moderate level of high frequency sensorineural loss;[40] and
(d)in 2012 Telstra permitted Ms Martin to use a binaural headset instead of a monoaural headset.[41]
[37] Affidavit D S Barnett 12.08.2021, [37]
[38] Amended Statement of Claim, [5]; Defence, [5(a)]
[39] Amended Statement of Claim, [6]; Defence, [5(b)]
[40] Amended Statement of Claim, [14]; Defence, [7]
[41] Amended Statement of Claim, [17]; Defence, [11]
During the period that is relevant to these reasons, Ms Martin’s employment was covered by the EBA;[42] and there are two sets of provisions that are relevant to claims Ms Martin makes in this proceeding. The first is clause 17.1 of the EBA, which provides that Ms Martin’s ordinary hours of work were 36¾ hours per week. The second is clause 32.1 of the EBA, which provides:
a)You get 15 days of paid personal leave each year, which Telstra credits you with at the start of each leave year and which is cumulative. You will only be credited with a portion of this if you are engaged on a fixed term basis for less than 12 months.
b)You can use this leave:
i)if you are sick or injured; or
ii)to care for a member of your immediate family or household who is sick or injured or where they are the subject of an unexpected emergency.
[42] Affidavit of V Martin 28.09.2020, [5], annexure “VM1” (CB89)
Ms Martin predominantly worked a 10 day fortnight rotating roster on the morning shift. Each shift was for a period of approximately 7.35 hours with a scheduled break every hour plus a 30 minute meal break. Morning shifts had a start time of 5:30 am.[43]
[43] Affidavit D S Barnett 12.08.2021, [38]; annexure “DSB-5” (CB832)
Management structure of ESAP in which Ms Martin worked
At the times relevant to this proceeding Ms Martin reported to persons who occupied the position of “Team Lead”.[44] Before 10 December 2018 Ms Martin reported to Mr Horncastle; from 10 December 2018 to 27 March 2019 Ms Martin reported to Mr Behardien; and after 27 March 2019 Ms Martin reported to Ms Fleming-Page.
[44] Affidavit D S Barnett 12.08.2021, [42]
The Team Leads to whom Ms Martin reported in turn reported to Ms Barnett.[45] Since 2012 Ms Barnett held the position of “Centre Senior Lead”.[46] Ms Barnett was responsible for the oversight and management of the Sydney and Adelaide ESAPs.[47]
[45] Affidavit D S Barnett 12.08.2021, [42]
[46] Affidavit D S Barnett 12.08.2021, [1]
[47] Affidavit D S Barnett 12.08.2021, [2]- [3]
Telstra’s Performance Support Policy and role of Global case Management Team
Telstra has in place a policy titled “Performance Support Policy” (PS Policy).[48] The PS Policy is directed to “unsatisfactory performance”, which it defines as “the situation where an employee is not achieving their performance objectives”; and its purpose is to support an employee to rectify the unsatisfactory performance. The PS Policy distinguishes between two processes. The first is the “performance improvement opportunity”. This process begins when an employee’s manager believes that an employee’s performance is unsatisfactory; and it consists of the manager discussing with the employee “the performance issues with the employee at the time they are identified and [taking] action to address the issues through performance improvement support and coaching”.[49]
[48] Affidavit L J Turner 12.08.2021, [9]; annexure “LJT-1” (CB297)
[49] Affidavit L J Turner 12.08.2021, [9]; annexure “LJT-1” (CB297)
The second process is known as “performance support formal process” (Formal Process), and it begins when a manager considers the employee’s performance remains below the expected standard. The Formal Process consists of holding a formal meeting where a PSP (that is, a “performance support plan”) is presented to the employee, and may include the giving of a written warning. If unsatisfactory performance continues, there may be a second formal meeting where termination or separation may be considered, or the employee is given a PSP together with a written warning. If the employee’s unsatisfactory performance continues, there will be a third formal meeting at which point separation will be considered.
A manager who decides to invoke the Formal Process does so by seeking the assistance of a member of Telstra’s Global Case Management Team (GCM Team), which is part of Telstra’s Human Resources (HR) function.[50] Members of the GCM Team (each of whom occupies the position of “Human Resources Specialist”) are responsible for “providing coaching, advice and support to various business units across Telstra in relation to processes related to performance, conduct and medical concerns with employees, in line with Telstra’s HR policies and procedures”.[51] Members of the GCM Team provide support in response to requests for assistance (HR Requests) that are lodged on Telstra’s “Ask HR” online platform by persons who seek the assistance of members of the GCM Team. The HR Request contains brief details of the assistance that is required. Once received, the HR Request is allocated to a person within the GCM team, and an “HR case file” is created (Case File).[52] The Case File “acts as a central repository where information related to a particular case, including notes of discussions and emails between the Human Resources Specialist and relevant people managers within the business can be stored”.[53]
[50] Affidavit L J Turner 12.08.2021, [2]- [3]
[51] Affidavit L J Turner 12.08.2021, [5]
[52] Affidavit L J Turner 12.08.2021, [6]
[53] Affidavit L J Turner 12.08.2021, [6]
Audiometry tests before 2018
ECSOs are required to undertake a hearing test every two years; and I infer that this occurred with Ms Martin throughout her employment as an ECSO, except for 2018, when hearing tests were postponed to 2019 because the Sydney EASP moved offices.
2 August 2012 hearing test
On 2 August 2012 Ms Anne Dunne issued a “Hearing Assessment Report” in relation to a hearing test which was described as a “Mandatory Hearing Test”.[54] Under the heading “Comments” Ms Dunne stated: “Test results indicate that hearing losses exist in mid to high frequency groups in both the L & R ears”. In a section headed “Further actions” there is included “Next test: 05/08/2014”.
[54] Affidavit D S Barnett 12.08.2021, [47]; annexure “DSB-6” (CB834)
On 12 September 2012 an audiologist, Ms Sorbello, from the “Connect Hearing” clinic, performed air and bone conduction tests on Ms Martin, and a speech discrimination test; and she prepared a report on the same day.[55] The report includes the following statements:
[55] Affidavit D S Barnett 12.08.2021, [48]; annexure “DSB-7” (CB836)
(a)Connect Hearing had last tested Ms Martin in 2008.
(b)The air and bone conduction test revealed:
Mild high frequency hg loss ®, mild to moderate high frequency hg loss Ⓛ, both ears fail criteria. [S]ig. drop in hearing in the high frequencies of both ears from 2008 test.
(c)The speech discrimination test revealed the following:
Speech discrimination in quiet was good (93%) in both ears.
Speech discrimination with +10dB SNR was outside criteria at 80% in both ears.
In the section headed “Recommendations”, there are two printed questions. The first is:
1)Can the examinee adequately and safely communicate using a headset in the proposed E000 role under current workplace arrangements without any adjustments? Place any comments in the box below.
This question required that it be answered by the person completing the form ticking the box that appears before “Yes”, or by ticking the box that appears after the word “Yes”, but before “No”. If the person answers the first question by ticking “No”, the form directs the person completing the form to “proceed to question 2”, which is:
2)Are there any reasonable and practical adjustments to the workplace that would enable the examinee to meet the requirements of the role?
“Yes” was ticked for both questions; and the following was included under question 2:
Given she has access to a volume control on her headset & she is sitting in a carpeted petition [sic] she can manage the volume herself to improve the signal to noise ratio. Partition should be above head height.
*A binaural headset would be of help to Valerie as it would allow even greater access to the sound & reduce the impact of background noise further.
At around this time, Ms Martin was permitted to work with a binaural headset.[56]
[56] Affidavit D S Barnett 12.08.2021, [49]
23 December 2014 hearing test
On 23 December 2014 Ms Martin underwent a hearing test that was performed by Ms Ruth Kirk, from “AudioClinic”. In her report under the heading “Comments” Ms Kirk said:[57]
Otoscopic examination revealed both ear drums and canals to appear normal. The screening test results indicate hearing within normal limits for the lower frequencies then declining from mild to moderate loss for both ears, with LEFT ear asymmetry.
Tympanometry is consistent with normal Middle Ear function bilaterally.
In view of the asymmetry we recommend a full hearing test and report to Ms Martin’s medical practitioner.
[57] Affidavit D S Barnett 12.08.2021, [51(a)]; annexure “DSB-8”
4 October 2016 hearing test
Ms Martin participated in a further hearing test on 4 October 2016, this time conducted by Ms Helen Johnstone.[58] In her report, under the heading “Comments”, Ms Johnstone stated as follows:
Test results indicate that hearing losses exist in both high and low frequency groups, including frequencies that are known to be affected by noise. Review by a GP is recommended if not already attended recently. Hearing protection is required in all activities involving significant noise exposure to prevent further loss.
[58] Affidavit D S Barnett 12.08.2021, [51(b)]; annexure “DSB-9”
As with the other hearing test reports to which I have referred, the hearing test report of 4 October 2016 came to Ms Barnett who arranged for Ms Martin to undergo a “Secondary Mandatory Test”.[59] This occurred on 5 December 2016 when Ms Pauline Primrose-Heaney conducted an air and bone conduction test, and a speech discrimination test. In the report she issued on 5 December 2016,[60] Ms Primrose-Heaney reported that the air and bone conduction tests revealed Ms Martin had “mild sloping to moderate sensorineural hearing loss bilaterally”, and that the speech discrimination tests revealed:
Excellent speech discrimination in quiet at normal conversation levels bilaterally.
Hearing ability in noise-moderate signal-to noise ratio loss (0.5 dB SNR Loss)
[59] Affidavit D S Barnett 12.08.2021, [51(c)]
[60]Affidavit D S Barnett 12.08.2021, [51(c)]; annexure “DSB-10”
Ms Primrose-Heaney answered “Yes” the question whether “the examinee [can] adequately and safely communicate using a headset in the proposed E000 role under current workplace arrangements without any adjustments”, and recommended that Ms Martin continue to use the binaural headset.
16 January 2018 – Mr Horncastle lodges HR Request
At 10.40 am on 16 January 2018 Mr Horncastle lodged an HR Request in relation to Ms Martin; and at 10.40 am on the same day Mr Horncastle had a conversation with a Mr Jay Odion.[61] At 10.54 am on 16 January 2018 Mr Odion communicated to the members of the GCM Team details of the “case escalation” Mr Horncastle had conveyed to Mr Odion:[62]
… Valerie has breached the speed in answering calls. Valerie has a total of 170 breaches in 1 month which is quite excessive as per Ian according to their business requirements. [He] would like to formalise the formal improvement plan for Valerie since he has been coaching her and has an ongoing 1-on-1’s with Valerie but no improvement so far.
Advice provided by GPS: Advised someone will get in touch with him within 24-48 hours regarding the case.
[61] Affidavit L J Turner 12.08.2021, [25]; annexure “LJT-3” (CB304)
[62] Affidavit L J Turner 12.08.2021, [25]; annexure “LJT-3” (CB305)
On 16 January 2018 Ms Martin’s case was assigned to Ms Turner who is a Human Resources Specialist within the GCM Team.[63] The Case File records a conversation between Ms Turner and Mr Horncastle that included the following: [64]
Been in the business for at least 15 yrs. Never had this experience before. Perhaps her age has been affecting her performance of call handling lately. She is a very good employee however she is turning 70yrs this year. Currently working full time on a 9 day/fortnight roster and loves her job.
Ian to look as to whether it can be seen in the data whether her speed answer is occurring later in the day.
Lisa and Ian discussed that instead of looking at this as a conduct case, perhaps it is more health and wellness. Lisa suggested to discuss with Centre Mgr whether they would support reduced hours for Valerie as it could be the long days are affecting her and then build a gradual retirement process for her. If agree[d], discuss with Valerie, also explaining the impact on her role at the moment and the significant breaches that are being reported.
Ian to discuss with Ctr Mgr and then work with Valerie next week. W[i]ll then come back to Lisa on progress.
[63] Affidavit L J Turner 12.08.2021, [1], [25]; annexure “LJT-3” (CB305)
[64] Affidavit L J Turner 12.08.2021, [25]; annexure “LJT-3” (CB305)
On 30 January 2018 Mr Horncastle sent an email to Ms Turner in which he stated the following:[65]
(a)An SOA audit identified Ms Martin committed 176 breaches of the SOA competency in December 2017. The SOAs for 148 of the breaches were 4 seconds, 5 seconds for 14 of the breaches, 6 seconds for 8 of the breaches, 7 seconds for 2 of the breaches, 8 seconds for 3 of the breaches, and 9 seconds for one of the breaches.
(b)SOA breaches were identified on every day in December that Ms Martin worked.
(c)On 26 January 2018 Mr Horncastle discussed with Ms Martin “the breach of SOA concern, and the importance of reaching this requirements [sic] to her role”. The discussion points were around what is likely impacting her performance. The email stated as follows (errors in original):[66]
After a lengthy discussion [i]t was identified that it was a lack of focus whilst handling calls and although the reasons the agent [that is, Ms Martin] suggested was that she often can’t work the computer mouse after breaks, was not a reasonable reason for these breaches as the overall volume of breaches don’t show any patterns around what the employee has suggested, in-fact they seem to be continuous throughout her shift, from start to finish.
An obvious observation was the employees age and conversations I have had around the amount of time spent with her grandkids after work and on days off and family time that means a lot to her. I mentioned that an option to reduce her current hours/days which would likely allow her to spend more time with family and to commence the strategy to transition to retirement. I felt this was a good starting point to assist the employee in reducing hours before formalising a movement towards Performance related Improvement Plan or formal HR related actions.
The employee made no time to think about the options provided to her and advised that she could not reduce her hours due to financial reasons, nor would she consider a transition to retirement at this stage.
For these reasons, I advised the employee that I would be formalising the performance management plan, of which is completed a draft PIP for you (attached) which I will commence on Friday 2nd February, for four (4) weeks. Also an expectation email will be provided to the Employee, outlining our conversation and expectation to demonstrate the required measures to ensure a speed of answer of 3 seconds is achieved on every call on every shift rostered, and that a performance management plan will commence to help and support the employee reach this important goal within the time specified.
[65] Affidavit L J Turner 12.08.2021, [31]; annexure “LJT-4” (CB310)
[66] Affidavit L J Turner 12.08.2021, [31]; annexure “LJT-4” (CB310-311)
Mr Horncastle ended his email by requesting Ms Turner to review and provide any additional feedback.
Ms Turner responded by an email sent on 1 February 2018. Ms Turner said that the “performance Improvement Plan” (PIP) Mr Horncastle prepared looked good, and advised it was reasonable, after Mr Horncastle discusses the PIP with Ms Martin, to send the PIP with an email explaining that he will be working with Ms Martin over the next month to help her meet the expectations. If Ms Martin does not show reasonable improvement, “then we may move to the Performance Support Process which starts with an informal Performance Improvement Opportunity Plan and may lead to disciplinary action”. Ms Turner then stated the following:[67]
To explain ….. [sic] normally, before we start a Performance Improvement Opportunity Plan (which is the first stage of the Performance Support process) there needs to be evidence of focused informal coaching (day to day coaching). Based on our discussions, I got the impression that Valerie’s performance has always been at expected levels and so have made the assumption that this may not have been occurring. If my assumption is incorrect, happy to look at moving straight to the 1st stage of the process.
To ensure that I have all of the information to support you through the process, I am hoping that you can give me some information on the following:
•What is the average number of SOA breaches for other in the team?
•If there are any employees with similar number of breaches, are they on Performance plans?
•Are there results from SOA audits for previous months for Valerie? I am trying to understand whether this is the first month of such a high number of breaches, or whether it has been occurring for some time.
[67] Affidavit L J Turner 12.08.2021, [32]; annexure “LJT-3” (CB307)
In an email sent on 2 February 2018 Mr Horncastle said he would compile some central data around SOA breaches and average SOA, and get back to Ms Turner. Mr Horncastle also said he will not “start with Val” until Ms Turner reviews the information he will provide to Ms Turner “next week”.
2 February 2018 – commencement of PIP
In an email sent to Ms Turner on 12 February 2018 Mr Horncastle said that he had commenced a PIP with Ms Martin on 2 February 2018, which was for 4 weeks. Mr Horncastle said that, “after a lengthy chat”, Ms Martin “understood and [accepted] this process”. After he had spoken with Ms Martin, Mr Horncastle sent her an email in which he outlined his “expectations to Val on improving her level of performance around the SOA”, and he “documented [that] [i]f she does not show reasonable improvement then we may move to the Performance Support Process which starts with an informal Performance Improvement Opportunity Plan and may lead to disciplinary action”.[68]
[68] Affidavit L J Turner 12.08.2021, [34]; annexure “LJT-3” (CB307-8)
18 March 2018 – end of PIP
On 18 March 2018 Mr Horncastle requested Ms Turner to close the case. On 21 March 2018 Ms Turner noted that Ms Martin had been “more focused and vigilent [sic] and is now meeting the expectations after focussed day to day informal management”, and that the “manager believes that she has just become slightly more complacent but seems to be back to focus”.[69]
[69] Affidavit L J Turner 12.08.2021, [35]; annexure “LJT-3” (CB308)
8 November 2018 – Mr Horncastle requests Ms Turner reopen SOA breaches
On 5 November 2018 Mr Horncastle sent a ticket to Ms Turner in which he said that a report had been provided to him “for speed of answer, which outlined over 70 breaches once again which is unacceptable due to Government requirements set down by ACMA”. Mr Horncastle further said there was a “Misdirect call last week”. Mr Horncastle asked whether he is able to “reopen his SOA breach”, or whether he needs to “start again”.[70] That led to Ms Turner having a discussion with Mr Horncastle over the phone on 8 November 2018. Ms Turner’s notes of her conversation include the following:[71]
[Ms Martin] apparently is a very active grandmother due to personal choices/reasons and her shift starts at 5am.
Lisa to discuss with Workplace Relations options. Ian to hold informal discussion with Valerie regarding the breaches and also challenge her thoughts on ability to continue working full time.
Note….[sic] previous discussion Ian suggested a gradual reduction in hours in preparation for retirement however Valerie was not interested in reducing her hours”.
[70] Affidavit L J Turner 12.08.2021, [37], [38]; annexure “LJT-6” (CB326-327)
[71] Affidavit L J Turner 12.08.2021, [40]; annexure “LJT-6” (CB327)
After informing Mr Horncastle by an email sent on 9 November 2018 that a “ticket has been set up for the HR Case regarding Valerie Martin”,[72] Ms Turner requested advice from Telstra’s “Workplace Relations Team”. Ms Turner then provided her recommendations to Mr Horncastle in an email she sent on 9 November 2018:[73]
[W]e will need to look at this case now as performance. . . . [W]e need to begin a formal process.
My recommendation would be to continue to hold your informal discussion as planned and explain in that you will need to progress to the Performance Support Process and given the serious nature of the breaches you will begin with a formal process. You will send her an invitation shortly to attend the formal meeting and she will be offered the option of a support person. We can then discuss the formal process and planning on Wednesday. Upon reflection, and after reading the attached link it is best not to discuss retirement unless she brings it up. I do not want this to become an age discrimination complaint. We just need to follow the process as we would with anyone else. . . .
[72] Affidavit L J Turner 12.08.2021, [40]; annexure “LJT-6” (CB326)
[73] Affidavit L J Turner 12.08.2021, [41]-[48]; annexure “LJT-6” (CB327); “LJT-7” (CB336)
By email sent to Ms Turner on 10 November 2018 Mr Horncastle said he understood the approach that Telstra had to undertake, and noted a meeting will be arranged with Ms Martin; and such meeting was arranged some time before 16 November 2018.[74]
[74] Affidavit L J Turner 12.08.2021, [45]; annexure “LJT-6” (CB327)
November 2018 – Mr Horncastle informs Ms Martin that a formal performance process will be initiated
According to a file note Ms Turner made of a conversation she had with Mr Horncastle, Mr Horncastle met with Ms Martin in which he explained to Ms Martin that, given her large number of breaches, and the previous informal management of performance, Telstra would seek advice on how to proceed. Mr Horncastle informed Ms Turner that Ms Martin had appeared confused on a call request for police, and then looked to diverting to ambulance, and that Ms Martin seemed not to be focused at work, and seemed to be getting confused. Mr Horncastle said that he would begin a formal approach given the serious nature of the breaches; and that he was “to draft the PSP and Outcome meeting guide in preparation for a meeting to be held Friday week”.[75]
[75] Affidavit L J Turner 12.08.2021, [46]; annexure “LJT-6” (CB328)
On 20 November 2018 Mr Hornstone sent an email to Ms Turner confirming that “we have discussed the overall performance, focusing on the SOA breaches as a formal process”, and attached the documents that were provided.[76] According to Ms Turner the documents Mr Hornstone attached to his email were draft formal “Performance Support Plans” Mr Horncastle was to provide to Ms Martin at a meeting that was scheduled on 24 November 2018 and a document titled “Performance Support Process – Formal Meeting Guide/Notes”, which is in effect a script of the matters Mr Horncastle planned to say to Ms Martin during the scheduled meeting of 24 November 2018.[77] By email sent on 23 November 2018 Ms Turner provided her feedback to Mr Horncastle on the documents he had provided. Ms Turner also provided a “pro-forma meeting invite”.[78]
[76] Affidavit L J Turner 12.08.2021, [48]; annexure “LJT-9” (CB342)
[77] Affidavit L J Turner 12.08.2021, [48]; annexure “LJT-9” (CB347)
[78] Affidavit L J Turner 12.08.2021, [49]; annexure “LJT-10” (CB353)
24 November 2018 – Ms Martin is issued November 2018 PSP
In an email he sent to Ms Turner on 28 November 2018 Mr Horncastle attached a “copy of the Meeting Guide, outlining the answers provided by Val in our formal meeting on Saturday”.[79] I infer from the “Meeting Guide” that on 24 November 2018 Mr Horncastle met with Ms Martin, during which words to the effect set out in the “Meeting Guide” were spoken. According to the Meeting Guide Mr Horncastle said:[80]
[79] Affidavit L J Turner 12.08.2021, [51]; annexure “LJT-11” (CB357)
[80] Affidavit L J Turner 12.08.2021, [51]; annexure “LJT-11” (CB360-361)
(a)he had previously worked with Ms Martin on an informal PIP to assist her with the SOA “metric” which started on 4 February 2018 and closed on 30 March 2018 when her performance was consistently meeting the KPI requirements;
(b)Mr Horncastle would like to take Ms Martin through his recent observations of Ms Martin’s performance over six weeks;
(c)he had some historical data reports done to audit Ms Martin’s SOA, and Mr Horncastle has identified a pattern of recurrence of SOA breaches;
(d)Mr Horncastle identified 81 SOA breaches in October 2018, and 26 breaches in November 2018 that were discussed at the meeting of 16 November 2018;
(e)additional breaches included 24 SOA breaches in May, 13 in July, 30 in August, and 50 breaches in September 2018;
(f)on average Ms Martin had received one quality review feedback per month; one remote review feedback per month, one “SBS live at the workstation per month”, and one “NCCR per month”;
(g)the target is to achieve 100% accuracy with no breaches recorded by the due date of 24 January 2019;
(h)Ms Martin’s “Quality average score from May-July is 89% which has dropped to under benchmark”, with the last quality review being 89.5% “with areas of opportunity being identified “active listening” & phrasing”;
(i)despite the support and coaching Telstra had offered since May 2018 Ms Martin’s performance “is still not at the level we require”;
(j)recent call reviews demonstrated a lack of focus, specifically in regard to listening to the caller’s request and responding in an efficient manner; and
(k)Ms Martin’s performance in respect of the SOA will be reviewed over the next eight weeks, noting that Ms Martin’s failure to show significant improvement may result in disciplinary action up to and including termination of her employment.
Ms Martin was asked whether there was anything she thought of that may have negatively impacted her performance. Ms Martin answered “no”, but asked whether she was the only one with SOA breaches. Mr Horncastle answered that “[a]ll leaders will check the SOA of all staff”, noting that “[w]e are regulated by ACMA so we are trusted to answer all calls within 3 seconds of when the call is presented”.[81] Mr Horncastle also noted that his observations were that conversations on the floor in between each call were impacting Ms Martin’s concentration. When asked to comment about that, Ms Martin said that conversations were probably impacting her concentration, she was a talker, but she wants to do the right thing.
[81] Affidavit L J Turner 12.08.2021, [51]; annexure “LJT-11” (CB362)
In oral address, counsel for Telstra submitted that “the medical evidence in this case relied on by the applicant is actually sparse”; further submitting that Dr George saw Ms Martin “very briefly on one occasion”, and that Dr George had viewed the material he was provided with the night before, “but not meticulously”.[349] Counsel accepted that Telstra’s attack on Dr George’s opinion turned on the “adequacy of the premises”.[350] I invited counsel to identify the facts on which Dr George relied or the facts that had not been provided to Dr George that are relevant to assessing Dr George’s opinion. Counsel submitted as follows:[351]
We see a number of contrasts in the evidence of the applicant. She tells Dr George in 2021 of these conditions that have been present since she says 7 November 2019. She’s CC’ing Ms Rendle in October 2019, because symptoms were improving, but she now tells Dr George, “Well, I didn’t get much out of it”, or words to that effect. What’s to be believed? She tells Professor Fagan in May of 2019, “My general health is good. Nothing interferes in my day-to-day living.” Nothing interferes. What’s to be believed? Yes, we’ve got Dr George’s report, and the applicant’s own evidence is she says what she told was Dr George was right. She just omitted to tell Professor Fagan because she didn’t think it was relevant, because it wasn’t her role, we’ve said, to . . . decide that.
[349] T470.45
[350] T471.5
[351] T471.35- T471.45
There are two difficulties with this submission.
(a)First, the matters that the George Report records Ms Martin as having stated to Dr George were not the subject of any cross-examination. It was not put to Ms Martin in cross-examination that she did not suffer from insomnia; or that she did not wake up ruminating about what occurred on 7 November 2019 and how she had been treated on that day; or that Ms Martin did not suffer from anxiety; or that her psychologist did not provide her with behavioural techniques and ways of thinking to help her; or that the manner in which she was removed from her workplace had an indelible impact on her level of confidence and self-esteem.
(b)Second, the contemporaneous medical records, the contents of which I have summarised earlier in these reasons, record Ms Martin’s presenting symptoms that were centred on her thoughts and reactions to her removal from her workplace on 7 November 2019; and both Dr Williams and Dr Insley proffered psychological diagnoses. The Mental Health Treatment Plan Dr Williams prepared on 11 January 2020 contained the diagnosis of “adjustment disorder”;[352] and the Mental Health Plan Dr Insley prepared on 2 July 2020 recorded a provisional diagnosis of “GAD” (which I assume stands for “Generalised Anxiety Disorder”) “relating to way [she] was dismissed from 30 year job, feeling hurt and rejected”.[353]
[352]Affidavit A P Dearden 12.11.2021, [4]; annexure “APD-2” (CB1321-1322)
[353] Affidavit A P Dearden 12.11.2021, [3]; annexure “APD-1” (CB1292)
There are, however, two broad matters that are relevant to whether I should accept Dr George’s opinion that Ms Martin was rendered unfit as from 7 November 2019 to return to work and remained unfit. The first is that Dr George’s opinion is apparently inconsistent with the following:
(a)In her lawyer’s letter dated 17 December 2019, it is stated that “there is no medical impediment for our client to continue to perform her work in contradiction of the assumptions that Dr Milecki made”.[354]
(b)In paragraph 37 of the Statement of Claim Ms Martin alleges she “is and at all material times able to perform the inherent requirements of the role”.
(c)In her lawyer’s letter dated 16 March 2020 it is stated that “it is our client’s case that she is ready, willing and able to perform her normal work”.[355]
(d)In the affidavit she made on 28 November 2020 Ms Martin deposed as follows:[356]
From November 2019 to 12 June 2020 I never requested to be on personal leave or on any other form of leave for 3 or 4 days annual leave in December 2019 and in January 2020 where I took 2 weeks long service leave and 4 or 5 days annual leave. For that entire period, I was ready, willing and able to perform my job. The only reasons I could not work [were] because of Telstra’s actions.
[354] Affidavit of V Martin 28.09.2020, [42]; annexure “VM14” (CB196-197)
[355] Exhibit C, tab A, page 113
[356] Affidavit of V Martin 28.09.2020, [50]
The apparent inconsistency of the matters in the preceding paragraph with Dr George’s opinion was not explored in the cross-examination of either Ms Martin or Dr George; and the parties have not made any submission about the apparent inconsistency. In those circumstances, it is not open to me to consider what significance, if any, is to be attached to the apparent inconsistency, or to consider what may account for the apparent inconsistency.
Another potential difficulty relates to the statements Ms Martin is recorded as having made to her general practitioners which, had they been brought to Dr George’s attention, may have led him to form a different opinion. Thus:
(a)On 11 January 2020 Dr Williams recorded ““not depressed” - still enjoys things”.[357]
(b)In the Mental Health Treatment Plan Dr Williams prepared, she recorded that Ms Martin said, “she is not depressed but is upset, anxious and hurt by current situation”.[358]
(c)Ms Martin consulted Dr Insley on 6 August 2020 (in which Ms Martin said she was “doing well”); on 3 September 2020 (in which she said she was benefitting from sessions with Ms Rendle); on 1 October 2020 (in which she said she was feeling better mentally); on 5 November 2020; on 3 December 2020; on 7 January 2021 (in which she said she was “much more comfortable with the situation now and enjoying not working”); on 5 March 2021 (in which she said she has become adjusted to the situation but still tears up if asked to recount); and on 3 May 2021 (in which she said Telstra is pushing to have neuropsychological assessment 4 hour sessions, and this was causing her to worry and anxiety with loss of sleep).[359] The notes do not record Ms Martin manifesting the symptoms from which Ms Martin, in general terms, informed to Dr George she was suffering. There is no record of Ms Martin stating “she still wakes up ruminating about what happened”, or there has been no real change in her sleep pattern over time despite intervention by a psychologist, or that on occasions, when she felt stressed, when she would think about what happened, she would find her mouth would go dry, feel emotionally upset, and then have a “weird feeling”; or that she found it difficult to enjoy activities; or that the manner in which she had been removed had left an indelible impact on her level of self-confidence.
[357] Affidavit A P Dearden 12.11.2021, [3]; annexure “APD-1” (CB1281)
[358] Affidavit A P Dearden 12.11.2021, [3]; annexure “APD-1” (CB1286)
[359] Affidavit A P Dearden 12.11.2021, [3]; annexure “APD-1” (CB1283-1285)
The matters in the preceding paragraph also were not explored in cross-examination with Dr George or Ms Martin, and the parties have consequently made no submissions in relation to those matters. In those circumstances, it is open to me to consider what significance, if any, is to be attached to those matters in determining whether I should accept Dr George’s opinions.
On the basis of what I have said in this section of my reasons, I accept the opinion of Dr George; and on the basis of his opinion I find that, as from 7 November 2019 Ms Martin has suffered from persistent depressive disorder; the Purported Direction was a materially contributing factor to her acquiring the persistent depressive disorder; and as a consequence of her acquiring the persistent depressive disorder she was no longer fit to work as an ECSO.
Open to claim damages for the loss of wages caused by the psychiatric injury?
Telstra also does not submit that a psychiatric injury that is caused by a breach of contract is not capable of being a matter for which damages for breach of contract may be awarded. It may be taken that Telstra does not so submit because there are authorities that have held that damages may be recovered for psychiatric injury that a party to a contract has suffered because of the other party’s breach of contract. The position has been stated by the Full Federal Court in Goldman Sachs JB Were Services Pty Limited v Nikolich:[360]
Damages may be awarded for psychiatric injury caused by a breach of contract, including a breach of a contract of employment: Gogay v Hertfordshire County Council [2000] IRLR 703 (Court of Appeal, Hale LJ with whom May and Peter Gibson LJJ agreed); see also Johnson, where this appears to have been assumed by the House of Lords. Given the content of the terms implied in employment contracts by the common law and their close – if not complete – correlation in relevant respects with the duty of care in tort, it would have been anomalous had damages been unavailable for psychiatric injury caused by a breach of an employment contract when they undoubtedly would be available in tort: see Koehler v Cerebos[2005] HCA 15; (2005) 222 CLR 44; Barber v Somerset County Council [2004] UKHL 13; [2004] 1 WLR 1089.
[360] Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120, at [72]
Telstra does not submit that Ms Martin’s suffering psychiatric injury as a consequence of a repudiation of the employment contract was too remote within the principles of Hadley v Baxendale.[361] In the absence of any such submission, I am prepared to proceed on the basis that it “is notorious that stress and disturbance of mind may lead to a psychological disability”;[362] and that, given it is reasonably foreseeable that the repudiation by the employer of an employment contract constituted by directing the employee to leave work would cause stress and disturbance, and psychiatric injury in consequence of such stress and disturbance.
[361] Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
It is appropriate, however, that I refer at this point to the judgment of the Court of Appeal of the Supreme Court of Victoria in Vision Australia Ltd v Elisha.[363] In that case an employee successfully claimed damages for psychiatric injury he claimed he sustained because, in the course of dismissing the employee, the employer breached due process provisions of his contract of employment. The Court of Appeal upheld the primary judge’s finding that the employer had breached the employment contract; but the Court of Appeal found that the psychiatric injury the employee suffered because of the breach of contract was too remote to be the subject of an award of damages for breach of contract. The Court of Appeal, however, went on to consider whether, under the principle associated with Addis v Gramophone,[364] damages may not be awarded for psychiatric injury that arises from the wrongful dismissal of an employee. The Court of Appeal held that “[w]e are hence unable to be satisfied that the damages in contract for psychiatric injury in this case were available even if (contrary to our earlier finding) they satisfied the remoteness principles”.[365]
[364] Addis v Gramophone Co Ltd [1901] AC 488
[365] Vision Australia Ltd v Elisha [2023] VSCA 265, at [216]. The High Court granted special leave to appeal; and the High Court heard the appeal on 16 October 2024 - Elisha v Vision Australia Limited [2024] HCATrans 71
I have not invited the parties to make submissions about the Victorian Court of Appeal’s judgment in Vision Australia because I am bound by the judgment of the Full Federal Court in Nikolich, and, moreover, Telstra has not submitted that the psychiatric injury Ms Martin claims she suffered because of the Purported Directive was too remote.
Ms Martin, therefore, is entitled to recover such wages she is able to prove she would have earned, but for the psychiatric injury that was caused by the Purported Direction; and she is entitled to be awarded general damages for such injury.
What wages would Ms Martin have earned but for the Purported Direction
As I have already noted, Ms Martin submits that, but for the Purported Direction, Ms Martin would have continued to work with Telstra until 18 May 2023, being the day on which Ms Martin planned to retire; and that, during this period, Ms Martin would have earned $330,064.07 gross.[366] The question requires me to determine what would have happened, but for the Purported Direction.[367]
[366] Applicant’s Outline of Closing Submissions, [117]-[119]
[367] I considered some of the principles that are relevant to this question in Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779, at [15]-[21]
Telstra submits that, but for the Purported Direction, Telstra would have dismissed Ms Martin “within a short further period of time”.[368] Ms Martin, on the other hand, submits as follows:[369]
Telstra’s argument that there is a likelihood that Ms Martin would have been terminated on performance grounds should be rejected as having no real basis in the evidence. In this regard, there is no evidence of any discussion between the Telstra decision-makers about actually terminating Ms Martin. The highest the evidence reaches is that this was a potential outcome. Ms Martin was a long-standing employee who was, according to the Telstra decision-makers well-liked and respected. Ms Martin had managed to improve her performance previously. There is no reason to think that she could not have done so again.
[368] Respondent’s Outline of Final Submissions, page 28
[369] Applicant’s Outline of Closing Submissions, [120]
Ms Martin’s submissions ignore the following:
(a)Commencing in December 2017, Telstra considered Ms Martin had performance issues.
(b)Ms Martin’s performance issues continued intermittently over the next two years, resulting in Telstra placing Ms Martin under four PSPs, the fourth of which (being the PSP I identified earlier in these reasons as the “September PSP”) Telstra suspended after Ms Barnett received the second Milecki report.
(c)Ms Barnett had formed the view that on 7 September 2019 Ms Martin had altered a business record to hide an error.
(d)The September PSP recorded that on 27 September 2019 and on the fifth week of that PSP Ms Martin did not meet the QR benchmark. That means that, under the Formal Process, Ms Martin’s employment would have been liable to be terminated.
It is the case that Telstra has not led any direct evidence from Ms Barnett about what she would have done, had the September PSP run its course. Ms Martin does not submit, however, that the absence of such evidence is a basis for inferring that Telstra would not have terminated Ms Martin’s employment; and I would not, in any event, be prepared to draw such inference, given the four PSPs and the warning letters Telstra had applied and issued to Ms Martin.
It is also the case that Ms Martin has tendered an unsworn affidavit in which she deposes to matters which are intended to show that her performance did not justify her being subjected to the performance management to which Telstra had subjected her.[370] Ms Martin, however, does not allege or submit that Ms Barnett or other employees of Telstra did not believe that Ms Martin’s performance merited her being subjected to the PSPs it applied Ms Martin, or that Telstra acted in breach of contract, or in bad faith, or otherwise acted unlawfully in the assessments it had made of Ms Martin’s performance, or by applying the PSPs to Ms Martin. In those circumstances, it is not relevant to consider whether Telstra was justified in its assessments of Ms Martin’s performance, and its imposing the PSPS it did.
[370] Exhibit A
The question I must consider is not whether, on the balance of probabilities, had Telstra not issued the Purported Direction, Telstra would or would not have continued to employ Ms Martin; my task is to assign a probability to Telstra’s having retained Ms Martin up to 18 May 2023, but for having given the Purported Direction. That is so because of the principles the High Court considered in Malec v J C Hutton Proprietary Limited.[371] In Malec Deane, Gaudron, and McHugh JJ said (emphasis added):[372]
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. . . . Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. . . . The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.
[371] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
[372] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638, at pages 642-643
Also relevant is the following passage from the judgment of Brennan CJ and Dawson J:[373]
The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
[373] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638, at page 639-640
I am satisfied that, given the length and persistence of Telstra’s perceptions that Ms Martin was not consistently performing to the level she was expected to perform, it is very unlikely that Telstra would have continued to employ Ms Martin until 18 May 2023. In my view, 15% represents a fair estimate of the probability that Telstra would have retained Ms Martin in its employment until 18 May 2023. Accordingly, Ms Martin’s damages for lost wages should be calculated by applying 15% to the amount Ms Martin would have earned, including shift allowances and penalties, up to and including 18 May 2023 had she remained employed with Telstra up to that time.
If, on the other hand, it were necessary to find, on the balance of probabilities, the period for which Ms Martin would have remained employed by Telstra, I would find that, given that Telstra had applied PSPs in November 2018, March 2019, June 2019, and September 2019, and Telstra’s continuing perceptions of Ms Martin’s poor performance, it is more probable than not that Ms Martin’s performance under the September PSPS would not have risen to the level that would have met Telstra’s expectations; and that, by no later than 1 April 2020, Telstra would have terminated Ms Martin’s employment.
General damages for Ms Martin’s psychiatric injury
Ms Martin submits that $100,000 is an appropriate award for general damages having regard to Dr George’s opinion. Apart from identifying two cases where, Ms Martin submits, “substantial awards for general damages for psychiatric injury were made”, Ms Martin does not say why $100,000 represents an appropriate amount of damages. Determining what is an appropriate amount of compensation requires the identification of the purposes for which non-pecuniary awards of damages are made, and the particular circumstances of Ms Martin’s case.
The expression “general damages” usually denotes the award of a sum of money to compensate a person for non-pecuniary loss; and such loss is often classified under a number of heads, these being pain and suffering, loss of amenities, disfigurement, and loss of expectation of life.[374] In Teubner v Humble, [375] Windeyer J described “loss of amenities” as consisting of the “destruction or diminution of a faculty” that deprives a person “of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer”. Pain and suffering denotes “actual physical pain”, and “is perhaps the one that is least susceptible of monetary assessment”.[376]
[374] Harold Luntz Assessment of Damages for Personal Injury and Death 5th Edition, online edition, at [3.2.1] (accessed 23 October 2024)
[375] Teubner v Humble (1963) 108 CLR 491, at page 506
[376] Teubner v Humble (1963) 108 CLR 491, at page 507
The extent of Ms Martin’s claimed loss of amenities of life due to persistent depressive disorder, and pain and suffering, are coterminous with the symptoms Ms Martin communicated to Dr George on the basis of which Dr George offered the diagnosis of persistent depressive disorder. Those symptoms are “sleep disturbance, ruminations, agitation, a degree of anxiety and mild panic phenomena at times, in combination with depressed mood, which has been somewhat persistent”[377] (Relevant Symptoms). Ms Martin’s communication of these symptoms to Dr George, however, is to be considered in light of the following matters:
(a)Ms Martin has adduced no evidence which reveals the extent to which she experienced or is likely to experience the Relevant Symptoms, or the frequency with which she experienced these symptoms. In evidence given at the hearing, Dr George acknowledged that he did not ask Ms Martin questions that were relevant to determining the frequency with which Ms Martin experienced the Relevant Symptoms; he uncritically relied on what can only be described as general or conclusory statements Ms Martin conveyed to Dr George on 11 October 2021.
(b)The George Report referred to Ms Martin walking her dog for exercise, enjoying going to the beach in summer, seeing friends from time to time, spending time with family and grandchildren when she can, liking to read as a leisure outlet, and listening to music. There is no reference to Ms Martin having experienced the Relevant Symptoms when undertaking these activities, or that the Relevant Symptoms have ever prevented or hindered her from undertaking such aspects of her life, or to persistent depressive disorder having affected Ms Martin’s ability to enjoy, or undertake, these aspects of her life.
(c)The records of Ms Martin’s consultations with Dr Williams and Dr Insley do not record Ms Martin manifesting the Relevant Symptoms. There is no record of Ms Martin stating “she still wakes up ruminating about what happened”, or there has been no real change in her sleep pattern over time despite intervention by a psychologist, or that on occasions, when she felt stressed, when she would think about what happened, she would find her mouth would go dry, feel emotionally upset, and then have a “weird feeling”; or that she found it difficult to enjoy activities; or that the manner in which she had been removed had left an indelible impact on her level of self-confidence.
(d)Some of the entries made by Ms Martin’s general practitioners suggest the absence of the Relevant Symptoms. Thus, during her consultation with Dr Insley on 6 August 2020 Ms Martin said she was “doing well”; during her consultation with Dr Insley on 3 September 2020, Ms Martin said she was benefitting from sessions with Ms Rendle; during her consultation with Dr Insley on 1 October 2020, Ms Martin said she was feeling better mentally; during her consultation with Dr Insley on 7 January 2021 Ms Martin said she was “much more comfortable with the situation now and enjoying not working”; and during her consultation with Dr Insley on 5 March 2021, Ms Martin said she has adjusted to the situation but still tears up “if asked” to recount.
(e)There is no evidence that Ms Martin has sought any psychological or psychiatric assistance other than from Ms Rendle pursuant to the Mental Health Plan Dr Insley prepared on 2 July 2020; and there is no evidence that Ms Martin is on any medication in relation to the persistent depressive disorder.
[377] Exhibit B, page 7
It is the case, however, that during her consultation with Ms Rendle on 22 July 2020, Ms Martin is recorded as stating that she would wake up “thinking about it”, “Depression”, “Keeps awake at night thinking about it”; “Not characteristic”; “Uncharacteristic irritability/getting upset”.[378]
[378] Affidavit A P Dearden 12.11.2021, [4]; annexure “APD-2”, (CB1331-1332)
On balance, although the evidence suggests Ms Martin experienced Relevant Symptoms, I am not satisfied that Ms Martin has suffered any substantial or sustained loss of amenities or pain and suffering because of her persistent depressive disorder. I am therefore satisfied that $30,000 would constitute just compensation for the pain and suffering and loss of amenities Ms Martin has suffered because of her persistent depressive disorder.
CLAIMS UNDER THE DD ACT
Parties’ submissions
The conduct Ms Martin alleges Telstra engaged in which constituted unlawful discrimination is Telstra’s issuing of the Purported Direction. Ms Martin submits that the Purported Direction constituted Telstra’s treating Ms Martin differently because of her hearing disability because, up to 7 November 2019, Ms Martin had been permitted to perform the functions of an ECSO notwithstanding her disability, but on 7 November 2019 Telstra prevented Ms Martin from performing those functions in circumstances where no new facts had emerged that made it reasonably necessary for Telstra to do so.[379]
[379] Applicant’s Outline of Closing Submissions, [138]-[139]
In its counsel’s written submissions, Telstra submits that Ms Martin impermissibly posits herself as the comparator by reference to which the question whether Telstra treated Ms Martin differently by issuing the Purported Direction is to be assessed. It is impermissible to use Ms Martin as her own comparator because she has a disability, and the relevant comparator must be one who does not have the disability.[380] Telstra submits that the appropriate comparator would be:[381]
an employee without the Applicant’s pleaded disability of a mild to moderate level of high frequency sensorineural hearing loss in circumstances that are not materially different. That would necessarily involve an employee without mild to moderate level of high frequency sensorineural hearing loss who has performed inconsistently for an extended period, been subject to performance management and where the employer receives medical advice that they are not suitable for E000 work. In the circumstances of the present case this would be a hypothetical comparator.
[380] Respondent’s Outline of Final Submissions, [104]-[105]
[381] Respondent’s Outline of Final Submissions, [109]
Telstra further submits that Telstra would have treated such comparator no differently than it treated Ms Martin when Telstra issued the Purported Direction.[382]
[382] Respondent’s Outline of Final Submissions, [110]
Determination
I have set out elsewhere the relevant provisions of the DDA act, and some principles relating to their application; and I do not propose to repeat what I said in these reasons.[383]
[383] Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542, at [107]-[119]
I accept Telstra’s submissions that the relevant comparator would be an employee without a mild to moderate level of high frequency sensorineural hearing loss who has performed inconsistently for an extended period, been subject to performance management and where the employer receives medical advice that they are not suitable for the work of an ECSO. I also accept Telstra’s submissions that, by issuing the Purported Direction, Telstra did not treat Ms Martin differently than what it would have treated the comparator.
Quite apart from this, it is an element of the unlawful discrimination provided for by s 15(2)(c) and (d) of the DD Act that the conduct that constitutes unlawful discrimination must have been engaged “on the ground of the employee’s disability”. Ms Barnett gave evidence of the grounds on which she decided not to allow Ms Martin to continue to perform her role as an ECSO.[384] Ms Barnett deposed that, having regard to her responsibility to uphold Telstra’s regulatory obligations, she felt she could not allow Ms Martin to perform her duties as an ECSO in the face of the available medical evidence that stated she was unsuitable to perform the role; and her concern was exacerbated by her knowledge of Ms Martin’s declining performance and calls she had recently mishandled. The reasons Ms Barnett gave for deciding to act in the way she did do not refer to Ms Martin’s disability, but to Ms Barnett’s perception of Ms Martin’s ability to perform the role of an ECSO. Ms Barnett was not challenged on that evidence; and Ms Martin has not submitted I should not accept her evidence.
[384] Affidavit D S Barnett 12.08.2021, [131]
For these reasons, Ms Martin’s claims based on the DD Act fail.
CONCLUSIONS AND DISPOSITION
Ms Martin has failed on all of her claims other than her claim based on Telstra’s breach of Ms Martin’s employment contract. I have found that, but for Telstra’s breach of contract, there was a 15% chance that Telstra would have continued to employ Ms Martin until 18 May 2023. Assuming Ms Martin is correct that she would have earned $330,064.07 gross, had she remained employed by Telstra until 18 May 2023,[385] Ms Martin would be entitled to damages equal to 15% of this amount, being $49,509.61, less the $37,516.20 that Telstra paid to Ms Martin on 26 June 2020. Thus, Ms Martin would be entitled to damages for loss of wages in the sum of $11,994.41. Alternatively, on the assumption that Telstra would have terminated Ms Martin’s employment by no later than 1 April 2020, Ms Martin would be entitled to damages equal to the wages (including shift allowances and penalties) she would have received from 8 November 2019 to 1 April 2020, less the $37,516.20 Telstra paid her. I have also concluded that Ms Martin is entitled to general damages, assessed in the amount of $30,000.
[385] Applicant’s Outline of Closing Submissions, [117]-[119]
I certify that the preceding two hundred and sixty-eight (268) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 8 November 2024
- AGLC
- Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174
- Case
- [2024] FedCFamC2G 1174
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Telstra's decision to suspend Ms Martin without pay breached the EBA and the employment contract, and if such actions constituted unlawful discrimination. Furthermore, the court needed to determine if Ms Martin's psychiatric injury was a result of the employer's actions, and if so, whether the injury was a direct consequence of the alleged breaches.
The court found that Telstra did not breach the EBA or discriminate against Ms Martin under the Disability Discrimination Act. However, it did find that Telstra breached the employment contract by suspending Ms Martin without pay. This breach led to Ms Martin suffering a psychiatric injury, which incapacitated her from working. As a result, the court awarded Ms Martin damages for the breach of contract, comprising lost wages and general damages. The court calculated the lost wages based on the assumption that Telstra would have continued to employ Ms Martin until a certain date or alternatively, until an earlier termination date. The total damages awarded included both lost wages and general damages.
In conclusion, the court ruled in favour of Ms Martin on the breach of contract claim, awarding her $11,994.41 in lost wages and $30,000 in general damages. The claims regarding unlawful discrimination and breach of the EBA were dismissed.
Orders
Orders of the court
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Background
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Evidence
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