Milardovic v Vemco Services Pty Ltd (Ruling)

[2024] VCC 1157

IN THE COUNTY COURT OF VICTORIA

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-21-04953

STEPHEN MILARDOVIC	Plaintiff
V
VEMCO SERVICES PTY LTD	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2024
DATE OF RULING:	2 August 2024
CASE MAY BE CITED AS:	Milardovic v Vemco Services Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1157

RULING
---

Subject:EXPERT EVIDENCE

Catchwords:              Expert Report - expertise of witness - relevant principles- field of specialised knowledge in work hours

Legislation Cited:      Evidence Act 2008 ss 76, 80 and 135; Fair Work Act 2009 (Cth) s 62

Cases Cited:Baulch v Lyndoch Warranmbool& Anor (Ruling No. 3) [2008] VSC 420; Kozarov v Victoria [2022] HCA 12

Ruling:  Expert evidence ruled out

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Broadfoot KC with Ms K Liu	Redlichs
For the Defendant	Mr I McDonald SC with Mr G worth	Russell Kennedy

HER HONOUR:

1The plaintiff sought to rely on evidence from Michael Alkan, Principal Consultant of HR Experts, in support of his case that he was overworked (and also bullied) in the course of his employment by the defendant, and as a result of which he suffered psychiatric injury.[1]

[1]No evidence of Mr Alkan in this regard was sought to be relied on

2Mr Alkan’s report set out that he holds a Diploma of Business (Human Resources) and a Bachelor of Business (Human Resources Management) in Industrial Relations.  He has approximately fifteen years of industry-related experience and holds various continuing professional development training credentials.  He has experience and involvement in representation before the Fair Work Commission in his capacity as an IR and HR agent/expert.

3Mr Alkan described his report as “documenting his opinions in relation to the proceeding as an expert in the areas of workplace law, human resource management and adjacent fields.”

4In the Letter of Instruction, Mr Alkan was asked his answers to twelve questions which formed his report.  On the first day of the hearing, a large amount of Mr Alkan’s report was redacted and ultimately the plaintiff sought to rely only on his answers to questions 1(a) and (b), 2, 4, and 5 in relation to the overwork allegations.[2] 

[2]Transcript “T” 61; Annexure “1”

5Ultimately, the plaintiff’s focus was on Mr Alkan’s opinion in answer to question 1 (a) and (b), in terms of the reasonableness of instructing the plaintiff to work 60-to-80 hours per week.[3]

[3]Transcript T 61, T81

6In summary, Mr Alkan thought the quoted working hours (60-to-80 per week) were not reasonable in the circumstances; 1(a).

7In support of his opinion, Mr Alkan relied on s 62(1) of the Fair Work Act2009 (“FWA”), which provides maximum weekly hours for a full-time employee are 38 hours, unless the additional hours are reasonable. Mr Alkan listed the factors which must be taken into account under s 62(3) when determining whether the additional hours are reasonable, focusing solelu (a) any risk to health and safety from working the additional hours.[4]

[4]He did not consider the other factors set out in (b) – (j)

8In his report, Mr Aklan referred to a number of studies finding an association between working long hours and psychological injury, and concluded the primary relevant consideration ought to be whether an undue risk to health and safety was posed by the working of additional hours.  If it was accepted the plaintiff was working the claimed hours, he thought the defendant essentially required the plaintiff to act in the stead of two employees.

9More broadly, Mr Alkan concluded the number of hours the plaintiff was required to work over an extended timeframe would appear to go entirely beyond that typically expected of workers in the industry, and indeed of white-collar workers in similar positions more generally.  

10Mr Aklan thought it would have been reasonable in the circumstances for the defendant to have provided the plaintiff with a range of support, resources, and training; 1(b).  

11In answer to Question 2, Mr Aklan thought Mr Barry’s response to the plaintiff’s request for assistance following allocation of five tenders at same time in February 2013 was not reasonable in the circumstances; 2(a).  He considered it would have been reasonable in the circumstances for the defendant to have provided the plaintiff with a range of support, resources, and training; 2(b).

12In terms of Question 4[5] and Question 5[6], Mr Alkan thought it would have been reasonable in the circumstances for the defendant to have provided the plaintiff with a range of support, resources, and training.  In summary, he suggested increasing the amount of time assigned or reducing the amount of work to be done; hiring an additional staff member; prioritising certain work projects; providing counselling and support to the plaintiff; or giving him additional time in lieu.

[5]Regarding the plaintiff’s 16 April 2013 email where he advised that he had been “working long hours including only having been able to leave the office at 2 am and returning at 8 am that morning”

[6]Regarding the plaintiff’s work reports provided by him to Mr Barry on a weekly basis between July and December 2013

13Counsel for the plaintiff accepted, potentially, Mr Alkan’s evidence was probably strongest in relation to question 1, insofar as matters that extend outside the scope of what might otherwise be common knowledge.[7]

[7]T81

14There was a global objection by the defendant to the reliance on Mr Alkan’s report. If the Court was against that submission, there was an objection to “in effect, each and every remaining paragraph.”[8] 

[8]T63

15In general terms, the defendant contended that Mr Alkan’s opinion as to whether the plaintiff’s workload was reasonable was not based on any field of specialised knowledge, lacked the necessary information about the plaintiff’s role, and that his opinion is no more than common knowledge and is therefore not admissible.

The plaintiff’s submission

16Counsel for the plaintiff submitted Mr Alkan’s report set out his specialist knowledge.[9]  It was submitted that gave him some sort of broad expertise in human resource management and occupational health and safety.  More specifically, it was the field of expertise he needed to have in order to provide the opinions expressed in relation to overwork: expertise in issues such as normal hours of work; statutory limitations on hours of work; reasonable overtime; the occupational health and safety risks of overtime work; and the sorts of employer responses that might be reasonable in respect of working those hours.[10]

[9]At T63 and T64

[10]T64

17This remaining opinion sought to be relied upon went to the question of whether the plaintiff’s hours of work created a foreseeable risk of psychiatric injury: “that’s the basic relevance.”[11]

[11]T62

18While counsel for the plaintiff did not seek to rely any opinion to establish medical causation,[12] it was argued that, in his capacity as an HR consultant, Mr Alkan had an understanding of the risk posed by working excessive hours and that question goes to the foreseeability of risk of injury in the mind of a defendant employer.[13]

[12]T65

[13]T66, T 78, see also Kozarov v Victoria [2022] HCA 12

19In response to my comment that the matters commented on by Mr Alkan were a matter of common knowledge, counsel submitted the jury could apply their own personal experience.  However, Mr Alkan is someone who has been in an industrial relations and HR role, and based on his experience is able to say what a reasonable amount of work hours is for employees of companies of this kind.[14]

[14]As J Forrest J found re the HR expert in Baulch v Lyndoch Warrnambool & Anor (Ruling No. 3) at paragraph 5; T66

20In a nutshell, it was submitted Mr Alkan had expertise in what the defendant might reasonably have foreseen.  While it was conceded he did not have any particular knowledge in the management of tenders, it was submitted his opinion was not in respect of that limited field only.[15]  It was submitted his opinion exceeded that of common knowledge because an integral part of the work for almost every HR officer is hours of work.  The question of what might be a reasonable number of hours to work, having regard to the nature of the job, is the reason why the opinion expressed in his report exceeds that of common knowledge.[16]

[15]T70

[16]T74

21Counsel then detailed Mr Alkan’s remaining opinion sought to be relied on his answer to Questions 1 (b) 2, 4, and 5, in which he largely repeated his view as to the range of support, resources, and training that would have been reasonable for the defendant to have provided the plaintiff in the circumstances.[17]

[17]T76, T80

The defendant’s submission

22Counsel for the defendant submitted there was a fundamental flaw in the plaintiff’s submission for the purpose of relying on what remained of Mr Alkan’s report to establish foreseeability, which was a matter of law or mixed fact and law.  Where Mr Alkan does purport to provide opinions on that issue, he is usurping the role of the judge and Court, so the reason relied on is impermissible in and of itself.[18] 

[18]T82

23Mr Alkan himself deferred to the expertise of the defendant at 6.1 in his report, in terms of its familiarity and knowledge of the particular business niche “to which he was not fully aware”.[19]

[19]T83

24It was submitted Mr Alkan is a very generalised HR person who nowhere in his report professes any particular knowledge of tenders, the role of bid manager or the role of bid estimator.  In effect, all he is saying is “long hours bad and shorter hours are better. And that is simply not admissible”.[20] 

[20]T83

25Further, it was submitted there are no redeeming features at all in this report.  Its probative value is virtually nil. The assumptions are not set out anywhere whatsoever.[21]  It appears the material with which Mr Alkan has been provided has been “cherry picked”, the questions asked are certainly leading, and “there is simply nothing in the report of any redeeming value, or appropriate value, more pertinently”.[22]

[21]The assumptions were set out in the letter of instruction and various footnotes throughout the report

[22]T83

26Mr Alkan has provided no basis in respect of his opinion; no indication of what the assumptions were that allowed him to arrive at that opinion; no indication of how he has applied any specialist expertise; and no indication why specialist knowledge was required to reach what is, in virtually every case, a very general basic opinion.[23] 

[23]T84

27It was submitted there is no analysis of what bid managers or bid estimators do. Mr Alkan simply says the FWA provides for a 38-hour work week, and if you are working 60 or 80 hours, you are doing two people’s jobs. That criticism goes for each and every opinion, all of which are matters of common knowledge.[24]

[24]See Forrest J in Baulch v Lyndoch at paragraph 14(c); T84

28Every single one of the questions here is within the common knowledge: “work too hard, maybe stressed, work less, maybe better”.[25]  In any event, Mr Alkan’s comments are just general observation, and he defers to the defendant, who presumably has much greater knowledge than he does.[26]

[25]T86

[26]T86

Ruling

29I accept the defendant’s submissions in relation to Mr Alkan’s opinion set out in his answer to question 1 and the balance of his report.

30Importantly, as Mr Alkan conceded, he has no knowledge of the plaintiff’s particular role or that of a bid manager, etc, and would defer to the defendant in that regard. 

31Having made that concession, he then simply refers to s 62 of the FWA, which provides for 38 hours a week, and further hours if reasonable. Mr Alkan took into account only one of the factors set out in s 62(3), simply concluding if the plaintiff was working 60-80 per week, that was unreasonable and a risk to his health, and that two people were needed to do his job.

32While s 80 of the Evidence Act 2008 abolished the ultimate issue rule,[27] Mr Alkan does not have the expertise or knowledge of what was involved in the plaintiff’s work with the defendant to provide any expert opinion as to the foreseeability of harm in this case, or for that matter what steps the defendant should reasonably have taken to reduce any such risk.   

[27]T87

33While the plaintiff’s focus was on the opinion in relation to Question 1, the remaining parts of the report were still relied upon.

34As counsel for the plaintiff conceded, it was difficult to argue that these matters went beyond common knowledge.  As I commented during the hearing,[28] Mr Alkan does not provide a specialised opinion based on expert knowledge in this case. He has no proper details of what the plaintiff’s work involved. He therefore has no basis and gives no path of reasoning for his suggestions that the plaintiff should have been given more time to do the work allocated, been provided with help or counselling, extra staff having been hired or the plaintiff being given time in lieu. 

[28]T77

35I accept, as counsel for the defendant submitted, that to allow Mr Alkan’s opinion as an expert would invest his opinions with an appearance of authority.  Given that many of his opinions do no appear to involve the application of any specialised knowledge – and if they do, the path of reasoning has not been disclosed – and many of the matters upon which he opines are matters the jury is capable of deciding itself without expert assistance, his evidence should be excluded on the grounds that its probative value is substantially outweighed by the danger that the evidence may be misleading or confusing.

36Accordingly, Mr Alkan’s evidence is ruled out.

Annexure 1 – Redacted Expert Report of Mr. Michael Alkan

ALLEGED WORKPLACE STRESS AND LACK OF SUPPORT

Question 1 – Working 60 to 80 hours per week

5. Reasonableness of instructing an employee to work such hours

5.1. The primary legislative instrument for industrial relations in Australia is the Fair Work Act 2009 (Cth).[29]

[29]Hereby referred to as the FWA

5.2. Section 62(1) of the FWA provides that:

62 Maximum weekly hours of work

Maximum weekly hours of work

(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a) for a full‑time employee—38 hours; or

(b) for an employee who is not a full‑time employee—the lesser of:

(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

5.3. This sentiment is also reflected in the National Employment Standards.

5.4. As the Plaintiff was a full-time employee, the material question arises of whether the additional hours required of them by the Defendant were reasonable.

5.5. Section 62(3) of the FWA provides a list of factors which must be taken into account in determining whether additional hours are “reasonable” in the legal sense under section 62(1), which are (emphasis added):

a) any risk to employee health and safety from working the additional hours;

b) the employee’s personal circumstances, including family responsibilities;

c) the needs of the workplace or enterprise in which the employee is employed;

d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

e) any notice given by the employer of any request or requirement to work the additional hours;

f) any notice given by the employee of his or her intention to refuse to work the additional hours;

g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

h) the nature of the employee’s role, and the employee’s level of responsibility;

i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

j) any other relevant matter.

….

5.11. Complaints of the health impacts of working long hours – which range from physiological injury to emotional and psychological harm – are unfortunately not at all a new development, with papers as early as 1831 and 1915 investigating such impacts on workers.[30]

[30]Working for Nothing – 2021 FSU Report, NAB-REPORT.pdf, page 5

5.12. In 2021 the Financial Services Union (FSU) published a comprehensive report in relation to white collar / office workers of the National Australia Bank (NAB), which had findings that are directly transferrable to the Plaintiff’s experience.

5.13. In that publication, the FSU reviewed submissions from 1,254 NAB staff and received complaints of stress and anxiety, loss of sleep, detriments to mental health, and physical ailments.[31]

[31]Working for Nothing – 2021 FSU Report, NAB-REPORT.pdf, page 17

….

5.15. In 2020, the World Health Organisation (WHO) in conjunction with the International Labour Organization (ILO) commissioned several systematic meta-analyses into the effects of long working hours on physiological health.

5.16. One such review which encompassed 37 studies involving over 760,000 participants internationally concluded that there was a statistically significant outcome of increased harmfulness and mortality of ischaemic heart disease (commonly referred to as coronary heart disease) in workers who regularly worked over 55 hours per week.[32]

[32]The effect of exposure to long working hours on ischaemic heart disease: A systematic review and meta-analysis from the WHO/ILO Joint Estimates of the Work-related Burden of Disease and Injury, Another connected study involving 22 studies of over 835,000 participants internationally concluded a similar finding in relation to a “clinically meaningful” increase in the incidence and mortality of strokes.[33]

[33]The effect of exposure to long working hours on stroke: A systematic review and meta-analysis from the WHO/ILO Joint Estimates of the Work-related Burden of Disease and Injury, The health effects of long work hours are in no ways confined to physical health either – there is a wide body of research to suggest the various psychological and emotional harm which may also result, including anxiety and depression,[34]

[34]Long working hours and symptoms of anxiety and depression: a 5-year follow-up of the Whitehall II study, In one meta-analysis involving 18 studies of 190,000 participants internationally concluded that there was significant evidence to support an association between working long hours and depressive symptoms.[35]

[35]Long working hours and depressive symptoms: systematic review and meta-analysis of published studies and unpublished individual participant data, Another unrelated analysis of 61 studies involving 330,000 participants found that workers subjected to long working hours were at a heightened risk of increased alcohol consumption to the extent of developing health complications related to substance abuse.

5.21. In my view, the primary relevant consideration ought to be whether an undue risk to health and safety was posed by the working of the additional hours.

5.22. It is incontrovertible that workers that are subjected to extensive work hours are liable to suffer a range of physical, psychological, and emotional harm of the sort which easily poses a risk to health and safety.

5.23. I am instructed that the Plaintiff was expected to work between 60 and 80 hours per week for months at a time.[36]

[36]Annexure A – Letter of Instruction, page 1

5.24. This would, if accepted as alleged, mean that the Defendant essentially required the Plaintiff to act in the stead of two (2) employees.

….

5.30. The evidence tendered also suggests that the Defendant placed a great deal of reliance upon the Plaintiff to complete a considerable amount of workload.

5.31. While it again remains a question of fact to be determined, it would appear that the workload performance and output expected of the Plaintiff went far beyond that which is ordinarily expected of workers in the Plaintiff’s role, either by the Defendant at Vemco, or at other similar companies in the sector.

5.32. It therefore follows that, regardless of whether the Defendant genuinely required the work to be performed, that requirement was a product of the Defendant’s own doing borne out of a lack of resources rather than the inherent reasonable requirements of the role itself.

…

5.34. More broadly, the number of hours that the Plaintiff was required to work over an extended timeframe would appear to go entirely beyond that typically expected of workers in the industry, and indeed of white-collar workers generally in similar professional positions.

5.35. For the above reasons, I therefore feel that the hours of work claimed to have been required by the Defendant ought not to be considered reasonable in the circumstances.

6. Support which reasonably ought to have been provided in the circumstances

6.1. It is not my intention in this report to provide an exhaustive list of detailed hypothetical alternatives which the Defendant could have taken or implemented, as the Defendant presumably bears a degree of familiarity and knowledge of their particular business niche to which I am not fully aware.

6.2. However, from my experience in advising and interacting with businesses of varying size, scope, and field, I can provide general observations as to how the Defendant may have more suitably responded in the circumstances, either prior to assigning so much work to the Plaintiff, or alternatively upon becoming aware of their error from the Plaintiff’s various protestations.

6.3. It appears the main thrust of the issue was caused by the large amount of work assigned and the relatively short time within which it was expected to be completed.

6.4. This lends itself to the natural conclusions of either a) increasing the amount of time assigned, or b) reducing the work to be done.

6.5. Due to their broad applicability, the general support strategies detailed as follows (collectively referred to as General Support Strategies) will arise and be relied upon throughout this report.

6.6. It is clear that the Defendant ought to have at least considered extending the duration of time in which the Plaintiff was expected to have each project completed by, and to have made more reasonable allowances when contracting with their clients.

6.7. If this was not reasonable – and I note that mere inconvenience and revenue ought not to be taken as the sole and primary consideration in determining such reasonableness – there were a range of actions which remained reasonably available to the Defendant.

6.8. It is accepted that structural changes such as hiring additional personnel becomes less reasonable in the event of a workload “crunch”, i.e., where there is a sudden and unexpected increase of workload which is only expected to last a short duration.

6.9. However, it is clear given the extended periods of months that these extended hours went on for that this was not a case of a crunch.

6.10. Given the longevity of the increased demand and the sustained level of business evidently available, it would appear to be have been a reasonable option for the Defendant to have hired an additional staff member, or alternatively reallocated personnel from other areas of the business.

6.11. In any case, if the Defendant was not in a position to be able to hire more staff, the Defendant ought to have considered the limitations of their practical capacity when contracting for or seeking the additional work.

6.12. The Defendant could have also considered prioritising certain work by breaking up the projects and allocating peripheral work to other teams where possible to reduce the workload, or assigning further administrative or office support.

6.13. Additionally, the Defendant ought to have made counselling and support aimed at facilitating the Plaintiff’s psychological and emotional and wellbeing available to them, especially once the Plaintiff had raised concerns regarding his wellbeing.

6.14. Finally, even if it is accepted that none of the above options of mitigation were reasonably available to the Defendant – a finding which I would not believe is supported on the facts – the Defendant ought to have considered some form of compensation and remediation after the work was complete.

6.15. This could have included the granting of additional time-in-lieu, a period of paid leave, recognition, or other such initiatives aimed at emotionally supporting the Plaintiff’s long-term wellbeing.

6.16. Each of the above suggestions may appear to be fairly rudimentary in nature, but that is because they are fundamental opportunities which remained at the Defendant’s discretion at the material times.

6.17. However, rather than taking any of these options, it appears that the Defendant unreasonably sought to have the “best of both worlds” by both reducing processing supply while increasing workload demand.

Question 2 - February 2013 (tenders) Emails

7. Reasonableness of the Plaintiff’s request for assistance, and of his manager’s response

7.1. To summarise,[37] it is alleged that the Defendant assigned to the Plaintiff a batch of five (5) “tenders” in or around February of 2013.

[37]Annexure B – Brief to Expert, pages 6-7

7.2. It is alleged – and accepted at face value for the purposes of this report – that the time allocated by the Defendant for the Plaintiff to complete the tenders was 5 times shorter than would otherwise usually be given, and was therefore grossly insufficient for the workload.

7.3. In response to this, the Plaintiff advised a Mr. Nigel Barry[38] (Mr. Barry) of the Defendant that the workload was “not possible” for him to complete alone, and otherwise requested support and assistance to facilitate its completion.

[38]Director of Sales and Marketing of Vemco Services Pty Ltd, and the Plaintiff’s direct reporting manager

7.4. In response to this, Mr. Barry is alleged to have said words to the effect of “…if you can’t get it done, then maybe you’re not the right person for this job.”

7.5. As a result of the Defendant’s refusal to modify the project constraints, and indirectly due to the tacit threatening of the Plaintiff’s ongoing employment, the Plaintiff was compelled to work excessive hours – allegedly up to 12-to-14-hour days, 7 days per week.

7.6. It is in my view self-evident that expecting the Plaintiff to perform work at five times the productivity without any additional support is inherently unreasonable.

…

8. Support which reasonably ought to have been provided in the circumstances

8.1. As outlined above, the General Support Strategies would all have provided variously effective means of supporting the Plaintiff in the circumstances, including:

8.1.1. Granting the Plaintiff more time to reasonably complete all of the tenders; or

8.1.2. Hiring or internally redeploying an additional employee to assist; or

8.1.3. Prioritising the tender work by reassigning peripheral work or duties unrelated to the tenders away from the Plaintiff; or

8.1.4. Assigning additional administrative and office support to the Plaintiff; or

8.1.5. Making counselling and emotional support available to the Plaintiff; or

8.1.6. Supporting the Plaintiff’s long-term recovery and wellbeing by authorising additional leave and/or compensation once the tenders were completed.

8.2. Of particular note to this allegation is that the Defendant also could have provided support by not doing certain things, specifically by not making highly inappropriate and coercive comments as Mr. Barry did.

8.3. Alternatively, the Defendant may have sought to remedy the situation after the fact by initiating disciplinary action against Mr. Barry once the substance and nature of his comments came to light.

Questions 4, 5, (and 6 – 16 April 2013 Email)

11. Support which reasonably ought to have been provided in the circumstances

…

11.2. Question 4 refers to the Plaintiff’s 16 April 2013 email, where he advised his manager Mr. Barry that he had been working long hours, including only having been able to leave the office at 2am and returning at 8am that morning.[39]

[39]21 Annexure B – Brief to Expert, pages 7, 66

11.3. Question 5 refers to the Plaintiff’s “Work Reports” as provided by the Plaintiff to Mr. Barry on a weekly basis between July and December 2013.[40]

[40]22 Annexure B – Brief to Expert, pages 8, 67-102

11.4. Upon brief examination, the reports can be seen to rapidly fluctuate between 38 hours to 48 hours per week, and on occasion some days are reported to have involved 13+ hours of work.[41]

[41]23 Annexure B – Brief to Expert, pages 68, 76, 78

11.5. Of particular concern however is another email sent by the Plaintiff later in the year which informed Mr. Barry that he only claimed time in lieu for weekend work, and not additional hours worked in the week.[42]

[42]24 Annexure B – Brief to Expert, pages 63 

…

11.8. As outlined above, the General Support Strategies would all have provided variously effective means of supporting the Plaintiff in the circumstances, including:

11.8.1. Granting the Plaintiff more time to reasonably complete his duties, either by rescheduling deadlines or otherwise giving the Plaintiff more notice; or

11.8.2. Hiring or internally redeploying an additional employee to assist; or

11.8.3. Prioritising duties in such a way as so to reassign non-vital work or duties away from the Plaintiff; or

11.8.4. Assigning additional administrative and office support to the Plaintiff; or

11.8.5. Making counselling and emotional support available to the Plaintiff; or

11.8.6. Supporting the Plaintiff’s long-term recovery and wellbeing by authorising additional leave, and more specifically, in approving time-in-lieu commensurate to his ongoing efforts.

11.9. I note that the 16 April 2013 email, and the work reports which followed throughout the rest of 2013 when each taken in isolation may appear to indicate only a minor pattern of occasional long days or hours.

11.10. However, these occurrences must be considered in the shared context of preceding events as covered earlier in this report, and with regard to the various communications already exchanged between the Plaintiff and Mr. Barry.

11.11. On this basis, a reasonable inference may be drawn that Mr. Barry as the Plaintiff’s manager either did, or reasonably ought to have been aware of the Plaintiff’s heightened susceptibility to burnout and overworking.

11.12. Despite this personal awareness, to the extent of being provided documentation of the Plaintiff’s workload on a weekly basis, the Mr. Barry appears to have taken no meaningful action to mitigate or manage the Plaintiff’s deteriorating wellbeing.