Mills v City of Whitehorse (WorkCover)

[2016] VMC 4

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE  No F12022701

WORKCOVER DIVISION

RAYMOND L MILLS   Plaintiff

-and-

WHITEHORSE CITY COUNCIL  Defendant

MAGISTRATE:   Ginnane

WHERE HEARD:  Melbourne

DATES OF HEARING:   1, 2 & 3 February 2016

DATE OF DECISION:   26 February 2016

CASE MAY BE CITED AS:  Mills v City of Whitehorse

MEDIUM NEUTRAL CITATION:  [2016] VMC004

REASONS FOR DECISION

APPEARANCES   Counsel   Solicitors

For the Plaintiff  Ms Crock  Shine Lawyers

For the Defendant  Mr Chamings  Wisewould Mahony

HIS HONOUR:

Introduction

1. Raymond Mills was born on 31 January 1954. He completed his school education to 4^th form. He undertook a motor trimmer’s apprenticeship and worked in that field for approximately 4 years. He has been employed as a paint store manager and by Thomas Nationwide Transport for a period of about 12 years. He has spent more recent years employed in a number of guises in traffic management within local government including, at the cities of Glen Iris, Kingston, Bundoora and Yarra. He commenced employment with Moreland Council in about 1999 and was with them for approximately 8 years. He said that there have been occasions when he has been assaulted in his employment. On one occasion about 13 years ago he was assaulted in Lygon Street. He was taken to Royal Melbourne Hospital. He remained overnight for observation at and was off work for approximately six months. He said he suffered mild Post Traumatic Stress Disorder (PTSD) and was cleared for return to employment in early or mid-2004. He referred to another incident when he awoke at Epping Hospital with no memory of an incident in which he had been found wandering in a park and speaking incoherently.
2. The plaintiff commenced employment with the defendant in September 2011.
3. On 21 November 2013 the plaintiff was assaulted in the course of his employment. He had returned to his employment just 2 days prior having recovered from a cat bite which resulted in medication rehabilitation and surgery to a nerve in his hand.
4. The plaintiff was patrolling in the vicinity of a school. He saw cars parked illegally. He went to a vehicle to issue an infringement notice and as he was placing it on the windscreen he heard footsteps and was then abruptly shunted onto the ground. His left femur was shattered. He was hospitalised at Knox Hospital and spent a considerable period of time in rehabilitation. He was subsequently diagnosed with PTSD. He saw and came under the care of a psychologist, Ingrid Morgan (Morgan) in August 2014 initially twice per week but later reduced to once per week. He is no longer under her care as she has told him he requires a psychiatrist but he cannot afford the cost.
5. Morgan has reported that as a result of the assault the plaintiff suffered the following symptoms:

Intrusive thoughts about the assault

Rumination

Nightmares

Emotional numbing

Avoidance and disassociation

Panic attacks, with associated muscle cramps

Poor concentration

Difficulty sleeping

Difficulty dealing with stressors

Anger and irritability

Reduced confidence and self-esteem

Social isolation

Loss of interest and motivation

Loss of hope for the future

Suicidal ideation

Failure to engage in normal safety behaviours

6. The plaintiff is on a number of medications predominantly painkillers and has only relatively recently commenced taking antidepressants. He has had a diagnosis of colorectal cancer and suffers from diabetes. The plaintiff said he had tried to commit suicide on two occasions.
7. The plaintiff is married and has adult children.
8. Following the assault of 21 November 2013, a return to work program was initiated. It commenced initially by the plaintiff working 2 days a week from home. Subsequently his employer made provision for him to travel the considerable distance from his home to the workplace and back again by taxi for the balance of his working week. Eventually the plaintiff worked up to the position where he was able to drive his own vehicle to work and home but he testified that on occasions it was necessary to stop his car by the roadway for a break for up to 15 minutes in order to stretch his leg.
9. By February 2015 the plaintiff was effectively back in full time work. Although he was performing alternative duties and undertaking 1 day a week working from home he was working a full suite of ordinary hours and was in receipt of his ordinary wage.
10. A note made by Morgan dated 16 January 2015[1] records that the plaintiff had started going “back out on the road and doing local laws and some traffic infringements”. The note records as well that the plaintiff was at that stage “still anxious booking cars.”

[1] Ex D8

11. Writing to the plaintiff’s treating doctor on 19 March 2015[2] Morgan said that prior to the events that the plaintiff says occurred on 6 February 2015 and form the basis of this proceeding, he “has been very well engaged in cognitive behavioural treatment for his PTSD, and was making great progress…”

6 February 2015

[2] Ex D7

12. The plaintiff said that he was driving home from his workplace in a council marked vehicle. He had crossed the Yarra River in the vicinity of the “Lexus Centre”. His leg was aching and so he turned into Alexandra Avenue and pulled into a car bay. He opened his door with his legs adjusted outwards in order to relieve an ache. He said a redheaded man appeared from nowhere and commenced screaming at him. As best the plaintiff could discern the man wanted to report a Whitehorse City vehicle that had attempted to run him off the road. When the alleged incident occurred was not clear. The plaintiff said he was taken aback and told the man that it was a matter he should report to the police and that he could not help him but he did hand him a business card. However, the man continued to berate the plaintiff and, in an effort to diffuse the confrontation, the plaintiff used his private mobile phone to telephone the City of Whitehorse in order to put the man on to speak to someone then and there. The plaintiff said he handed the man his phone before the number connected. The plaintiff said that a short time later the man threw the phone back at him into the car where it fell to the floor and yelled words to the effect, “You are all the same”. The plaintiff said that the man had given him part of the registration of the Council vehicle about which he complained. He said he recognised the registration as that attached to a car used by a fellow employee Craig Neville (Neville).
13. The plaintiff said that he retrieved his telephone from the floor of the car and held it up and heard “on hold music”. When the call was again attended to he said that he needed to report an incident. The female at the other end of the line said words to the effect, “We know it’s you Ray” and told him that there would be “a report for you on your desk Monday morning to complete”.  The plaintiff said that at this stage the red headed male had decamped the scene to whereabouts unknown.
14. There is nothing in the evidence to indicate that the defendant subsequently received complaint of the sort recounted to the plaintiff by the unknown male against the driver of the council vehicle.
15. The following Monday, 9 February 2015 the plaintiff attended work. He said there was no document or report awaiting him at his desk as he expected. He said that at about 8:30 am he saw his coordinator Joe Watkins (Watkins). The plaintiff said he wanted to report the incident to Watkins. Watkins told him to shut the door and told the plaintiff that “he had thought about it over the weekend and did not believe a word I said” and that he thought the plaintiff was trying to implicate Neville. According to the plaintiff, Watkins added, “there are also a lot of complaints about you as well”. There, according to the plaintiff, the matter ended. That state of affairs was to change.
16. The plaintiff continued to work during the week apparently without incident or distress. On 17 February 2015 he was notified (presumably electronically) of the need to attend a meeting with Human Resources on 18 February 2015. The plaintiff was allowed to attend with a support person, which he did, who was a union representative. The support person did not testify. Notes were taken of the meeting.
17. The plaintiff said that in the course of the meeting it was alleged that he had lied and that he was told he needed to apologise to Rikki Skocir (Skocir) the receptionist who had answered his phone call on Friday 6 February 2015 and to his fellow employee Neville as well as being furnished with a verbal warning.
18. When the meeting concluded he left work and went to see Morgan. He said to her that “everything has fallen apart”. He told her that he had come from a meeting with his employer. Morgan suggested he see his general practitioner and said she “thought his PTSD had come back”. He consulted his local doctor who furnished him with a certificate. He has not returned to work since. He has submitted medical certificates thereafter for no current work capacity with the specified injury expressed as left femur injury and PTSD.
19. The Authority’s Agent Xchanging Integrated Services Pty Ltd treated the plaintiff’s certificates of capacity as an application for reinstatement of weekly payments referrable to his 2013 injury which of course embraced his PTSD. By written notice dated 4 March 2015[3] it advised the plaintiff that weekly payments would not be reinstated because he had ceased work for reasons not related to his previous incapacity. That decision is under challenge as a part of this proceeding.

[3] Ex D4

20. The plaintiff’s Statement of Claim does not advance the matter and is in fact uninformative.
21. Counsel for the defendant Mr Chammings, addressed the agent’s written notice dated 4 March 2015 in final address as follows:

There are two injuries caused by two separate incidents. The Agent’s decision in the Notice of 4.3.15 that the Plaintiff ceased work for reasons not associated with his incapacity was justified. The Plaintiff has not submitted a claim form in respect of aggravation et cetera of his psychological condition due to disciplinary process on 18.2.15. The Agent has not made any decision in this regard and there is therefore no jurisdiction to consider injury occasioned on 18.2.15. The situation is similar to that considered by His Honour Magistrate Garnett in Robinson v SPI on 30.10.12 where the worker had sustained a back injury on 12.8.05 and the Court proceeding sought to expand the mechanism of injury to throughout the course of employment. His Honour ruled there was no decision on the expanded claim and this could not be remedied by the inclusions of such a claim in the proceedings. In the present case the Court is confined to considering the validity of the Agent’s decision on 4.3.15 notwithstanding the attempts of the Plaintiff’s medical witnesses to bundle what happened in the assault in 2013 and the consequences to the Plaintiff at the disciplinary proceedings into one parcel.

22. The plaintiff says he suffered the accepted work injury of a fractured femur in November 2013 and subsequently developed PTSD in consequence of the accepted injury. The plaintiff’s contention is that his participation in the meeting held with his employer on 18 February 2015 triggered an adverse psychiatric reaction which precluded him from returning to work.
23. The defendant submitted that if the plaintiff suffered “aggravation, acceleration” or the like of his accepted PTSD on 18 February 2015 then this was caused because of the separate incident of the “disciplinary meeting” on 18 February 2015 regarding the phone call complaint and was not caused by any problems he had as a result of the accepted work injury of the fractured femur and there is no claim for the separate injury. I accept the defendant’s submissions. In my judgment there is a  world of difference between this court exercising de novo power by virtue of ss 39 and 43 of the Act and s 100 (1)(d) of the Magistrates’ Court Act (1989) , to inquire into, hear and determine any question or matter arising under the Act in relation to any decision of the Authority (its Agent), an employer or a self-insurer, relating to entitlement or any termination or alteration of weekly payments, as opposed to the situation in which the court is urged to make a determination in relation to  another injury where there has been no decision by the Authority or its Agent because of the absence of a claim.  The agent treated the provision of certificates as an application for reinstatement of weekly payments for the accepted injury. I am satisfied that this was a proper response.
24. I am satisfied that:

(a)The plaintiff’s PTSD was initially caused by an assault on him on 21 November 2013.

(b)If there was any aggravation, acceleration of the plaintiff’s PTSD on 18 February 2015 then it was caused by the disciplinary meeting regarding the alleged inappropriate phone call and not the accepted injury of 21November 2013.

(c)I am satisfied and find that the aggravation was not caused by any new problems the plaintiff suffered as a result of his accepted injury.

(d)The agent’s decision contained in the notice dated 4 March 2015 that the plaintiff ceased work with the defendant for reasons not associated with his incapacity is justified. The incapacity was the accepted injury and consequential effect of the injury in November 2013. The plaintiff had not submitted a claim form in respect of aggravation of his psychological state due to disciplinary process on 18 February 2015. No decision has been made by the authority in this regard. I am satisfied of a lack of jurisdiction to warrant me to consider “injury” occasioned on 18 February 2015. It is not good or sufficient enough for the plaintiff to construct a contention that the aggravation of the psychological condition was not due to disciplinary process but due to the injury of November 2013 because the accepted PTSD waxed and waned with it “waxing” again as a result of the events of 18 February 2013.

25. The law imposes on the defendant an onus of proving the validity of a notice such as that given to the plaintiff dated 4 March 2015. The law also establishes that the defendant must show that there is adequate evidentiary material supporting the grounds for the alteration or termination given in the notice. In this case s 114(2A) (e) (ii) of the Act is relevant and it is argued by the defendant that the plaintiff has reduced his hours of work for reasons unrelated to his incapacity thus enlivening the power in the Authority to determine (g) “not to pay compensation in the form of weekly payments”.
26. In my judgment it cannot be said that the notice being validly given by the insurer that the discretion of the Agent miscarried by reason of a failure by it to not consider the psychological reaction to the interview as a manifestation of the accepted injury from November 2013.
27. In the event that  I am wrong in my finding and either the plaintiff’s psychological reaction  to the interview on 18 February 2015 is as a manifestation of the accepted injury from 21 November 2013, or is a new injury about which that I have jurisdiction to consider  the lawfulness of the Agent’s decision (despite the fiction this would require to fashion a “decision”) then I am satisfied by the defendant that the plaintiff’s condition arose wholly or predominantly by reason of  reasonable management action within the meaning of s 82(2A) of the Act and that being so, I am not satisfied that the plaintiff has discharged his burden to establish the contrary.
28. However, more fundamentally, I do not accept the plaintiff’s account that the incident of 6 February 2015 occurred. This is important, because I have come to the conclusion that the plaintiff’s reaction is not grounded in, for example, a misconception of fact that may nonetheless amount to a stressor but instead that the report of events to his employer as it related to the unknown red headed man amounted to a fabrication of an event.

Discussion of the evidence

29. There was a dispute between the plaintiff and Watkins whether the “document” required to be completed by the plaintiff on the Monday following the telephone call was a soft copy or hard copy document. The plaintiff maintained under cross-examination that he was told that the document would be on his desk on Monday morning and it was not.  Nothing turns on the dispute. It was put to the plaintiff as well that Watkins told him that until a form was completed nothing could be investigated. The plaintiff did not agree. In any event, even if I accept Watkins’s evidence that no form was completed by the plaintiff nonetheless the consequences of the telephone call escalated to the point that the meeting with the plaintiff was convened on 18 February 2015.
30. Mr Chamings told the plaintiff that Watkins would testify and deny having called him a liar because he was not in a position to make a judgement about the matter so early in the piece. However, the plaintiff maintained that on Monday 9 February 2015 Watkins said words to the effect that “he had deliberated over the weekend and it didn’t gel” and “I really don’t think it happened.” Whether the “it” referred to the existence of an unknown male or of the allegedly erratic driving of Neville or both was never spelt out.
31. If the plaintiff was accused of untruthfulness on 9 February 2015 I would have expected an entry to that effect in the records of the plaintiff’s general practitioner whom he saw that day. No such record is contained in the general practitioner’s note.
32. The plaintiff did not agree with Mr Chamings that Watkins said to him in the course of the informal meeting on 6 February 2015 that the manner in which he had made a complaint about another staff member was unsatisfactory.
33. The defendant witnesses agreed when they testified that the plaintiff had maintained his account throughout that on 9 February 2015 he had felt effectively forced to make a telephone call from an irate motorist.
34. The plaintiff denied that Watkins had said to him that by failing to identify himself to Skocir he had caused her distress.
35. The plaintiff did not agree that in the meeting on 18 February 2015 he was told that enforcement officers should “look after each other” and that telephoning the council to complain about another officer was contrary to that principle but instead he maintained that all that Watkins said to him was that he was not believed.  
36. The plaintiff agreed that he was given a verbal warning. This was reflected in a subsequent letter sent to the plaintiff.
37. On 23 February 2015 the plaintiff was the recipient of a letter headed “Performance Counselling – Verbal Warning[4]”.  The letter is not without need for some comment when read in conjunction with oral evidence adduced by the defendant’s witnesses. First, the letter is internally inconsistent. No conclusion is expressed on the matter of the plaintiff’s allegation that he was confronted by an agitated unknown man. Rather the plaintiff is issued with a verbal warning with a threat that repetition may “have serious consequences which could include termination of your employment”. Elsewhere the letter states:

“We have considered your response and taken into account your personal reflection that you should have identified yourself during the phone call. However, as explained, your conduct on this occasion was not in line with Council’s values of teamwork or the Employee Conduct Policy including respect and integrity. It is inconsistent with our expectations of you as an employee of the Whitehorse City Council.

It is Council’s expectations that you conduct yourself in an appropriate manner at all times and comply with Council’s values and Employee Conduct Policy (enclosed). It is also Council’s expectation that if you come into contact with an aggrieved member of the public that you are to provide them with a business card for them to phone in their complaint to Joe Watkins directly.

Consequently, given the serious nature of this incident, this letter will serve as a verbal warning in accordance with Council’s Performance Management Policy. If there is a need for Council to issue you with further formal warnings in relation to any aspect of your conduct or performance, it may have serious consequences which could include termination of your employment.”

[4] EX D1

38. The reference to the provision of business card to be used if the plaintiff found himself in contact with an aggrieved member of the public might amount to some indication that the defendant believed the plaintiff’s account of the incident occurred.  But that is not the case. The defendant had by then certainly formed the view that the incident was not genuine. Furthermore the plaintiff said he had given a business card to the man. The reference to business cards seems to me to have more to do with reinforcement of procedures than with the substance of the matter.
39. The letter makes no reference to other prejudicial statements attributed to the plaintiff by the defendant by Skocir who said that the plaintiff had called himself “Tony” and had adopted an accent and said, “Well tell Joe [Watkins] that Craig [Neville] is driving like an idiot”.
40. The plaintiff said he could not recall being told in the meeting that he would receive a verbal warning. He said, “I can’t honestly recall that. I was very distressed”. He agreed that he told Morgan when he saw her at the conclusion of the day that “everything has fallen apart”.

The defendant’s witnesses

Rikki Scocir

41. Skocir said she has been employed with the defendant for 5 years and for the last 2 years in the role of Administration Officer. She said she knew the plaintiff “reasonably well”.  She said that she would probably have spoken with him at work once or twice a day. She said the plaintiff is one of approximately 6 local law officers employed by the defendant.
42. She said that she received a telephone call on 6 February 2015. A male wanted to report a community law officer who had been driving erratically and she was given a registration number. She said the voice sounded very much like the plaintiff. She said the caller did not identify himself and she felt disturbed by the nature of the call. She said she put the caller on hold and went to speak with Watkins. She mentioned the registration number and she and Mr Watkins identified it as attributable to a vehicle allocated to Neville. She said that although she believed the voice to be that of the plaintiff she did not recognise the phone number which was displayed on the incoming call and so she asked Watkins to check the number and it was revealed to belong to the plaintiff. Watkins told her to return to the telephone and to tell the plaintiff that there would be a report for him to complete on his desk the following Monday. She said she came back to the phone and spoke to the plaintiff and told him she had spoken to Watkins and as well told him about the provision of report on Monday. She added: “Ray I know it’s you”. She said the caller responded with: “Ray? This is Tony”. She said the person adopted what sounded to her to be an accent.  He then said, “Tell Joe that Craig is driving like an idiot.” Skocir said she was concerned by the call because of the very odd nature of it. From her perspective, such a reaction was understandable.
43. Skocir was cross-examined. She said the plaintiff sounded “distressed” a description consistent with the plaintiff’s account of his reaction to having been confronted.
44. Skocir said that the plaintiff and Neville did not get on, thereby contradicting the plaintiff’s evidence which was that hi relationship with Neville was satisfactory. Neville was not called to give evidence.
45. Skocir said she believed she had spoken only once to Watkins about the events since they occurred but had not made a written statement or given a written account to anyone of her employer.
46. She said had no further involvement in the matter but that the incident had become known among the staff.
47. She said she thought the phone call was odd but she was not distressed or upset by it.

Joseph Watkins

48. Watkins is the “Coordinator Community Law” employed by the City of Whitehorse and has held this role for approximately 2 ½ years. During the course of his professional working life he has held management and regulatory roles with other councils. He spoke of being aware of the plaintiff’s previous work injury in which his femur was fractured. He said he was involved in the plaintiff’s return to work to the extent of searching out alternative duties for him to perform. He explained how the plaintiff returned to work initially on a graduated basis but eventually to a full complement of preinjury hours although performing alternative duties. He said that he and Kelly Bachelor had regular discussions with the plaintiff in the carriage and administration of his return to work. He said the plaintiff was very cooperative and very keen to return to full-time duties.
49. Watkins said that he was made aware of the telephone call received on 6 February 2015 when approached by Skocir who was upset because she had the plaintiff on the telephone but was pretending to be somebody else.
50. Watkins testimony largely corroborated Skocir. He said that he was told that Ray was on the telephone but had not identified himself and was complaining about another car with a registration number which details tallied with those of Neville. Mr Watkins said that Skocir was “quite concerned” about the nature of the call because of the failure of the person to identify himself despite her confidence in the identity of the caller. He said the council employed an electronic complaint and incident system which was something all employees including the plaintiff were aware of.
51. Watkins testified about the conversation he had with the plaintiff on the morning of 9 February 2015. He said that the plaintiff was told to put his incident into the system so the matter could be invested investigated. He denied telling the plaintiff that he had that he did not believe him. He said Neville made a complaint and Ms Batchelor spoke with him about it and a question then arose whether or not the plaintiff had breached council “values” by bringing forth such a complaint in the manner he did.
52. Watkins said he had also spoken to Neville “possibly” on Monday 9 February 2015 and “possibly” prior to speaking with the plaintiff that morning.
53. Watkins attended the meeting held on 18 February 2015. He said Ms Batchelor took notes of the meeting but did not recall having seen the notes. He said the tenor of the meeting was amicable. He said that the parties discussed further training to assist the plaintiff to deal with matters that may come his way in the performance of his work.  He said the plaintiff was provided with cab voucher to return home at the conclusion of the meeting. He said the verbal warning was given to the plaintiff because of the “concealment of his identity”.
54. Watkins acknowledged that he was aware of the plaintiff’s emotional state stemming from the effects of the injury suffered in 2013. He said no formalised incident report was made by the plaintiff as requested and therefore the council was investigating the plaintiff’s admitted failure to identify himself when telephoning under the guise of a complaint of the driving of a fellow council employee.

Kirstie James

55. Kirstie James gave evidence. She said that she is the “Organisation Development Advisor” with the City of Whitehorse and has held that position since October 2011. She said she knows the plaintiff. She was aware of the telephone complaint made on 6 February 2015 and she spoke at the meeting on 18 February 2015. She said that it was contrary to council values of integrity for the plaintiff to make a complaint of the type that he did about a fellow employee in the manner he did.
56. She said she had spoken with Neville prior to 18 February 2015 and he denied he had driven erratically but it seems he was in the general vicinity of the area on the date that the telephone call was made by the plaintiff. She said the meeting convened with the plaintiff was an “extremely civil discussion”. She said “we were very conscious of him being on a return to work plan”. Her notes of the record of interview were received into evidence.

Kelly Bachelor

57. Kelly Bachelor testified. She is the return to work officer with the plaintiff and has held the position for 20 months. She said the plaintiff coped well with his return to work duties. She said the certificates furnished by the plaintiff as unfit waste by reason of an exacerbation of PTSD have all arisen since February 2015. A bundle of relevant certificates of capacity were received into evidence.
58. In cross-examination Bachelor acknowledged that during the management of the plaintiff’s return to work and up to the date of the incident he was not doing his usual suite of duties which involved interaction with members of the community and this was due to consequences of the assault inflicted on him in November 2013 that included PTSD.

The medical evidence

Dr David Weisman

59. David Weissman is psychiatrist who testified on behalf of the plaintiff.  He prepared a report for the plaintiff’s solicitors dated 18 September 2015. Dr Weisman agreed in cross examination that the plaintiff h having earlier suffered from PTSD had returned to work on a graduated basis and had returned to full-time work and was able to do so without apparent intrusion on his medical or psychological wellbeing until 18 February 2015. Thereafter the plaintiff’s PTSD increased.
60. Dr Weissman’s report gave an account of the plaintiff suffering an injury as a result of a cat bite on 6 December 2012 that was sufficiently serious as to warrant surgery, taking the better part of 12 months to recover including a period of rehabilitation. Dr Weissman went on to record the events that occurred some 2 days after the plaintiff had returned to work from the cat injury when set upon and assaulted whilst attaching an infringement notice to a vehicle. Dr Weisman reported that the plaintiff was off work for approximately 9 months and he gave an account of the plaintiff’s graduated return to work. He reported that he only occasionally went out “on the road”. Dr Weisman went on to note that the plaintiff had told him that by February 2015 he “got up to about two hours per day out on the road.” Otherwise he did customer service reports, and administrative duties.
61. Dr Weissman gave an account of the events that transpired in February 2015 that culminated with the telephone call and subsequent actions including the interview that occurred on 18 February 2015 with members of the defendant’s management. The plaintiff’s account was that he was accused in the meeting of making up the scenario involving the irate male. Dr Weisman added that the plaintiff “broke down” at that point and subsequently saw Morgan who recommended he take time off work. Dr Weisman reported the plaintiff’s personality as one that had been depressed and had suicidal ideations. In particular, Dr Weissman reported the plaintiff as having said that “Honestly, I don’t feel life is worth living because people who tell lies and do the wrong thing get everything, whereas people who tell the truth and tried to do the right thing are always kicked in the teeth.”

1. Dr Weissman reported that:

   “The content of his thinking revealed fairly frequent thoughts, triggers, reminders and recollections of the reported assault at work on 21. 11.13 as well as the more recent incident in February 2015 associated with moderate, classical and discernible, Post Traumatic Stress Disorder symptoms and traumatisation features. He referred to some associated panic attacks as well as panic attack symptoms and agoraphobia. He reported at least moderate mixed depressive symptoms, themes and features with some anhedonia, negative thinking and contemplation of suicide (no clear, current suicidal plan or intent).

   62. Dr Weissman said he had read the Morgan report dated 16 April 2015. It seems the plaintiff attended some 20 sessions with Morgan by the date of her report. Dr Weissman noted that the plaintiff’s symptoms included “intrusive thoughts and nightmares about the assault, avoidance of real and imagined reminders of the assault, panic attacks, anxiety, difficulty concentrating and sleeping, irritability, withdrawal, loss of hope for the future, and suicidal ideation.”
   63. Dr Weissman went on to report that the plaintiff “felt pressure to return to his pre-injury duties by his manager and the HR worker at Whitehorse Council and as a result found himself engaged in tasks and duties for which he did not feel prepared or confident.” As I have said already, I do not accept that as a true characterisation.  Interestingly, however, Dr Weisman relates the event of 6 February 2015 by way of an exemplar within the plaintiff’s work environment and wrote:

   “For example, while dealing with the conflict out in public, Mr Mills allowed a disgruntled and aggressive member of the public to use his phone to call the Council with a complaint. He was later accused of making the phone call himself, he was reprimanded and ordered to apologise for his behaviour.”

   64. Dr Weissman acknowledged that the matter was “complex” and concluded that the assault that occurred on 21 November 2013 was, and still is, distressing and traumatic for the plaintiff. Furthermore, that leading up to February  2015 “due to a combination of physical and psychiatric factors it seems, Mr Mills had not returned to (exact pre-injury duties, he had virtually returned to pre-injury hours, but he was still doing alternative/restricted duties again it seems, due to a combination of physical/surgical and psychiatric/psychological/emotional factors. Mr Mills was then allegedly involved in an (complex) incident in February 2015 when he was driving home and accosted by an aggressive member of the public. This further distressed him. He then attended a work meeting in late February 2015 which is more distressing for him because he perceives that he was unsupported by management, that they did not believe him, and that he had allegedly falsely constructed a scenario about the recent incident in February 2015”.
   65. Dr Weissman went on in his report to state as follows:

   “The aggravation of his emotional symptoms and distress following the group of incidents and events (above) in February 2015 was essentially an extension/aggravation of the original/initial work -related psychiatric conditions and mental injuries (to follow) arising from the second work incident on 21 November 2013”.

   66. Dr Weissman concluded that the plaintiff was suffering from “moderate classical and discernible chronic post-traumatic stress disorder symptoms and traumatisation features, directly due to the circumstances of the second incident at work on 21 November 2013, and aggravated by the more recent incidents that occurred during February 2015 as noted above.” He expressed the opinion that the PTSD increased as a result of the incident.
   67. In oral evidence Dr Weissman said it was his opinion that the incident with the unknown man on 6 February 2015 mirrored the previous assault of November 2013 and this occurred whilst the plaintiff was still in a vulnerable mental condition as a result of the PTSD that he developed consequent on the physical attack.
   68. Under cross-examination Dr Weissman said that it was not the confrontation with the unknown man on 6 February 2015 that was as important to the plaintiff’s combination of a depressive condition and an increase in the PTSD symptomology as was the judgment the plaintiff formed of a lack of management response to the incident or support for him.
   69. Dr Weissman endeavoured to explain why it would be that if on 9 February 2015 the plaintiff had been accused by Watkins of lying and confecting a false complaint he had continued to work on without apparent difficulty until 18 February 2015.  Dr Weissman could really only surmise a response, such as the stoicism of the plaintiff or that the meeting on 18 February 2015 was the proverbial straw that broke the camel’s back.

Dr Benjamin

70. Dr Jose Benjamin is the plaintiff’s long standing general practitioner testified. He provided two brief reports to the plaintiff’s solicitors dated 12 October 2014 and 27 April 2015. In his most recent report he wrote that the plaintiff consulted him on 18 February 2015 “appearing very stressed and tearful. Events at work has triggered a severe recurrence of his post-traumatic stress disorder. He has been unable to return to work since.”
71. In cross examination Dr Benjamin conceded that had any matter of discord at work been raised by the plaintiff with him in the course of his consultation on 9 February 2015 he would have recorded it. No such record or note is contained in his clinical notes for the period 16 January 2015 to 20 February 2015.

Reports of Ingrid Morgan

72. The plaintiff relied upon the reports of Ingrid Morgan dated 19 March 2015, 13 April 2015 and 15 October 2015. The substance of the reports have already been addressed in my reasons.

Dr Yeager

73. Dr Yeager interviewed the plaintiff for the purposes of the provision of a medico-legal report for the defendant’s solicitors dated 14 December 2015. He was asked what the plaintiff perceives to be the cause of his condition and the reason why he ceased work. He responded:

“The plaintiff perceived the assault of 21/11/2013 to have been the cause of his condition. He ceased work for other reasons being the issue of the verbal warning in February this year”.

Findings on evidence

74. I make the following findings of fact:

(i)The plaintiff is employed by the defendant as a Community Law Officer.

(ii)The plaintiff suffered a work injury on 21 November 2013 when he sustained a comminuted fracture of the left femur as a result of a physical assault committed by a member of the public.

(iii)The defendant accepted liability of the plaintiff’s claim dated 22 November 2013 and the plaintiff commenced to receive compensation by way of weekly payments.

(iv)Subsequent to the physical assault on 21 November 2013 the plaintiff was certified as suffering from a consequential PTSD that manifested itself consequential to his work injury.  Liability was accepted by the defendant.

(v)The plaintiff undertook a graduated return to work program.  Ultimately, and prior to 6 February 2015, the plaintiff had returned to a full complement of work hours and was receiving his full remuneration. However, he was not performing his ordinary duties but alternative duties. His normal duties involved ongoing and frequent inter action with members of the public. In undertaking alternative duties the plaintiff was insulated from interaction with the public.

(vi)I am satisfied that the plaintiff made no relevant complaint about his return to work duties and I am also satisfied that he was keen to return to full-time duties as quickly as possible It was suggested to the plaintiff by Mr Chamings that he had regularly asked to increase his hours and that he had never complained about his duties. He denied this saying, “They were demanding it of me”. I do not accept this is an accurate reflection of the state of affairs that prevailed at the workplace, and I find on the whole of the evidence, that the defendant was accommodating  and attuned to the plaintiff’s needs as part of returning him to gainful work with it. There is no contemporaneous account or other corroborative evidence to suggest that the defendant was exerting any pressure on the plaintiff, and indeed such notes of Morgan that are before me, indicate the contrary. I do not accept the plaintiff’s evidence that he was pushed to work harder than he was capable or willing to perform by the defendant. To the extent that complaint is expressed in the narrative obtained by Dr Weissman and related in his report, I reject it.

(vii)I find that on Friday 6 February 2015 the plaintiff made an anonymous report concerning Neville, a fellow employee of the defendant.

(viii)I do not accept on the balance of probabilities that the plaintiff was verbally confronted and accosted by an unknown male on 6 February 2015 in relation to a complaint regarding another officer of the defendant as the plaintiff reported to his employer. I find and I prefer and accept the evidence of Skocir that she received an incoming telephone call and believed she recognised the plaintiff’s voice. I am satisfied that her only hesitation was that the telephone number displayed was not recognisable as the plaintiff’s work mobile phone. I find that she only spoke with one man and it was the plaintiff. The plaintiff said he used his own mobile telephone call to make the relevant phone call because at that time his work mobile phone was new and was being charged in the car. It is not apparent why that phone could not have been used whilst in charge. One explanation is that the plaintiff hoped the call would not be traced to him.

(ix)I am unable to and it is not necessary for me, to make a finding of fact as to whether Neville drove in a way that prompted the plaintiff to log a complaint against him under the ruse of an unnamed stranger. Some evidence from the defendant suggests that Neville was in the vicinity of the plaintiff on 6 February 2015. Whether something occurred or was witnessed by the plaintiff that prompted him to make the telephone complaint under the guise of a complaint conveyed on behalf of an unknown citizen I cannot say.

(x)It is to be noted that the plaintiff’s evidence was that he felt compelled to make the call for and on behalf of the unknown male. Skocir said the call she answered was a first-hand complaint. Furthermore she was adamant that both initially and when she returned to the call the person to whom spoke was the one and the same despite what she said described as the adoption of an accent and the nom de plume of “Tony” that she said the caller adopted.

(xi)The plaintiff accepts that he participated in the call but only spoke after he picked up the phone when it was thrown on the floor of his car and the male had disappeared. Furthermore despite having endeavoured to clothe himself in anonymity and “conceal” his identity as “Tony” this too gave way when according to Skocir he said “Tell Joe that Craig is driving like an idiot”. This would be consistent with the plaintiff having made an observation about Neville’s driving. However, that inference cannot amount to evidence that Neville was driving erratically and I need make no finding in that regard.

(xii)I am satisfied that from the defendant’s perspective, and justifiably on the facts then known to it, that there was a legitimate matter of concern about the manner in which a complaint about a fellow employee had been brought forth by the plaintiff for the defendant’s attention.

(xiii)I am satisfied on the balance of probabilities that the defendant had in place an electronic incident mechanism to be utilised by employees for a raft of matters that would embrace an event such as the plaintiff allegedly encountered (i.e. the verbal confrontation initiated by the unknown male or a complaint regarding another employee) but that the plaintiff did not make any report of the incident in written form.

(xiv)I am satisfied that the plaintiff and Watkins had a conversation on the morning of 9 February 2015. I am satisfied on the balance of probabilities that Watkins may have formed an opinion that the narrative of a complaint made by the plaintiff to Skocir was improbable. The law does not and cannot prohibit persons from forming initial impressions but it can and will view unfavourably actions taken to another’s detriment by reason of the same as opposed to action taken by way of reason and well founded judgment. However, I am not satisfied on the balance of probabilities that Watkins expressed any scepticism to the plaintiff let alone accused the plaintiff of lying at that time. I note that in the minutes of meeting of 18 February 2015 Watkins emphatically denied this allegation when it was raised by the plaintiff. That Watkins however expressed disbelief in the discourse of the meeting on 18 February 2015 is a different matter and contextually different.

(xv)I am not satisfied that any adverse action was initiated against the plaintiff by the defendant as a result of any doubts harboured by Watkins about the matters raised as a result of the telephone call.

(xvi)Furthermore, I am satisfied on the balance of probabilities that had the plaintiff been accused by Watkins on the following Monday of lying or fabricating the events of Friday 6 February 2015 then he would have raised the matter with his treating doctor or have reacted with some manifestation of distress. I am satisfied that the plaintiff suffered no adverse consequence as a result of his discussion with Watkins on 9 February 2015. I am fortified in that conclusion by the fact that in the days that followed and up to 18 February 2015 the plaintiff continued to discharge his alternative duties without incident and that no account of the same or of any distressing matter arising at work was raised with his treating practitioner until he presented to Morgan on 18 February 2015 following the meeting with his employer.  

75. In any event in the carriage of the proceeding counsel for the plaintiff concentrated attention on the effects of the meeting held on 18 February 2015 and not the plaintiff’s reaction on or after 9 February 2015.
76. Management action is defined by s 82 (10) of the Act in the following terms:

management action, in relation to a worker, includes, but is not limited to, any one or more of the following—

(a)       appraisal of the worker's performance;

(b)       counselling of the worker;

(c)       suspension or stand-down of the worker's employment;

(d)       disciplinary action taken in respect of the worker's employment;

(e)       transfer of the worker's employment;

(f)        demotion, redeployment or retrenchment of the worker;

(g)       dismissal of the worker;

(h)       promotion of the worker;

(i)        reclassification of the worker's employment position;

(j)        provision of leave of absence to the worker;

(k)       provision to the worker of a benefit connected with the worker's employment;

(l)        training a worker in respect of the worker's employment;

(m)     investigation by the worker's employer of any alleged misconduct—

(i)        of the worker; or

(ii)       of any other person relating to the employer's workforce in which the worker was involved or to which the worker was a witness;

(n)       communication in connection with an action mentioned in any of the above paragraphs;

77. The question for me is one of fact to which the employer has the evidentiary onus of establishing that the management action was taken on reasonable grounds and in a reasonable manner, and if so, then the plaintiff has the legal onus of demonstrating that his  condition did not arise wholly or predominantly from such action.
78. I respectfully agree with the principles distilled from a variety of jurisdictions by Garnett M in Joanne Krygsman –Yeates v State of Victoria  at [35]:

(a)whether the conduct of the employer complained of constitutes management action as contemplated by s82(10);

(b)if so, whether the management action was taken on reasonable grounds;

(c)if so, whether the management action was taken in a reasonable manner;

(d)…

(e)whether the mental injury was caused wholly or predominantly by that management action which was taken on reasonable grounds and in a reasonable manner;

(f)when considering the “reasonableness" of that action, it is to be considered objectively having regard to all of the circumstances leading to it being taken and the manner in which it is taken in a global context taking into account:

(i)that the management action and the manner in which this taken should not be irrational, absurd or ridiculous but moderate and fair;

and,

(ii)the judgement is whether the action taken was done quote reasonably" not whether it could have been done more reasonably or in a different way more acceptable to the court;

and,

(iii)the action and the manner in which it is taken may be reasonable even if particular steps involved are not;

and,

(iv)the action and the manner in which it is taken should be assessed at the time it has taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.

79. Although the term  “management action” is not exhaustively defined under the Act, I am satisfied that management action was taken by the defendant and it consisted of counselling of the plaintiff in a meeting with his employer on 18 February 2015 and the provision to him of a verbal warning. It is not necessary for me to decide if the meeting better meets a characterisation of “disciplinary action”. On balance it may but in the end it does not matter.
80. It is a necessary part of the Court’s exercise in a case of this type to identify when management action commenced. I think management action began when the defendant requested the plaintiff to attend a meeting on 18 February 2015. It may have been open to the plaintiff to have argued that it commenced earlier but that was not pressed.
81. Was it legitimate action by the defendant to take steps to counsel the plaintiff in regard to the manner in which complaints about other staff are initiated that was at the basis of the phone call he made on 6 Februarys 2015? I am satisfied that it was.
82. Whilst I have rejected the plaintiff’s evidence that on Monday 9 February 2015 Watkins accused him of fabricating the account of the irate motorist, the notes from 18 February 2015 disclose that Watkins expressed that belief to the plaintiff as reflected in the following exchange[5]:

[5] DB comprise the initials of the name of the plaintiff’s support person from his union

DB-said that processes are the most important things and that there are a range of facts to consider and that RM had been thinking on his feet and was under pressure and that there are a number of things he could have done to diffuse it that he was acting on his instincts at the time that the driver was I rate and wanted answers now and that RM understands that this was not the right way to deal with it.

DB-said that under the circumstances RM had used his own mobile and that there was other mitigating things to consider and that was not professional the right thing to do.

JW-said that he had been in the industry a long time and dealt with millions of situations and if he delves into this situation that he feels it is not true and that it is not professional that there was no introduction on the phone.

…..

JW-said that the Monday after this incident he had a conversation with RM

JW-said that he indicated to RM in this meeting that the incident was not a satisfactory way of dealing with another staff member.

JW-said that during the conversation with RM, the RM had indicated that he was ringing on behalf of the person and that the person was not identified.

JW-said that it is his situation as coordinator to try and build a team that is cohesive and can work together.

JW-said that in this job, the officers don’t always have a lot of friends in the community and that it is important that they can rely on each other for support.

JW-concerned after the conversation and RM had left the office.

JW-asked if this was a fair summary of what happened.

RM-said that it was to a point.

JW-said that RM’s behaviour had been a breach of Council values especially regarding teamwork and a breach of the employee conduct policy regarding integrity and respect.

JW-said that the incident had concerned it because it involved allegations against one of his officers and it involved the administration officer that had taken the call.

RM-said that at the day of the incident that he thought he was helping a distraught motorist who wanted action then and there.

RM-said that he had used his phone and that he spoke when he first called in.

RM-said that motorist wanted action first and that it handed in the business card.

83. Watkins said in answer to a question asked of him by me that by the time of the meeting of 18 February 2015, “Yes we did not accept his account of what had gone on”. Watkins said “he had spoken with Neville possibly on 9 February prior to speaking with the plaintiff”. An employer cannot be criticised in forming a judgment on disclosed facts. Watkins comment is but one matter. The content of the meeting as a whole was very much directed at facilitating the provision of methods for the plaintiff to deal with confrontations and to use transparent means if a legitimate complaint was to arise regarding another employee. It is plain that the defendant was conscious of the plaintiff’s vulnerability and was trying to “manage” his work performance as opposed to classifying his account as “untrue” despite its improbability. This is the very definite impression I gained from listening to the evidence of Bachelor and James.  
84. Ms Crock submitted that the plaintiff suffered a stressor by reason of the meeting on 18 February 2015 when he was told that he would receive a verbal warning and was asked to apologise to staff. I am not satisfied that the plaintiff was required to apologise as opposed to it being a suggestion.
85. I cannot agree with Ms Crock’s submission that the response of management was not even handed.  Whilst the plaintiff maintained his account the council elected not to accept his version of events involving an unidentified man. It was open to it to do so based on the account given by Skocir.
86. James testified that she had spoken with Neville who denied he had driven erratically. James said she had spoken with Neville before the meeting with the plaintiff on 18 February 2015. Neville apparently denied the accusation but unlike the view the defendant was able to form of the credibility of the plaintiff’s account of the unknown male by reason of it preferring the account of the conversation from Skocir despite the plaintiff’s denial of important particulars, it was not in a like position to form an adverse conclusion about Neville. The disparate treatment is explicable and defensible.
87. Given that I am satisfied that the defendant’s request for the plaintiff to attend a meeting on 18 February 2015 amounted to management action taken on reasonable grounds was it also undertaken in a reasonable manner? This element of the inquiry requires a judgement to be brought to bear on the particular facts of the case. The reasonableness of the manner in which management action is undertaken is a matter that will inevitably be informed by facts known to the defendant or that ought to reasonably have been within its purview and knowledge at the relevant time. Facts may change and information may come to light during the course of an investigation to warrant the recalibration of management’s response. What may amount to a reasonable manner of conducting an investigation is not fixed and immutable. I am satisfied that the defendant conducted the meeting with the plaintiff and the resolution of the matter reasonably for reasons I have already referred to.
88. In any event, and regardless of my own view, if evidence discloses that the reasons for taking management action are within the realm of what is objectively reasonable, then I should not substitute my own assessment of the defendant’s requirements. The court’s inquiry must always be whether the action taken was done “reasonably” not whether it could have been done “more reasonably” or in a different way and more acceptable manner to the court.
89. The action and the manner in which management action was taken by the defendant is to be assessed at the time it was taken and without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker. This is an important facet of the case to which I have had regard.
90. In this case it was not suggested that manner in which the management action was taken by the defendant was not reasonable because, for example, some particular step required to be taken by the defendant was lacking.

Conclusion

91. The plaintiff’s application is dismissed. I will give the parties an opportunity to be heard on the appropriate form of order.