Mitchell v Grace Worldwide Pty Ltd
[2021] NSWPIC 3
•4 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mitchell v Grace Worldwide Pty Ltd [2021] NSWPIC 3 |
| APPLICANT: | Stacey- Lee Mitchell |
| RESPONDENT: | Grace Worldwide Pty Ltd |
| MEMBER: | Deborah Moore |
| DATE OF DECISION: | 4 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological claim; worker claimed bullying and harassment from her boss; was then stood down in April 2020 due to Covid; Held- no evidence of bullying; meetings and discussions robust but appropriate in the context of the workers position; the injury was caused by reasonable action proposed to be taken by the employer with respect to retrenchment and the provision of employment benefits; award to the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Stacey-Lee Mitchell, was employed by the respondent, Grace Worldwide Pty Ltd as the head of the marketing department, commencing in June 2018.
She claimed that she sustained a psychological injury on a deemed date of injury of 20 April 2020 “due to her ongoing experiences with Mr Brown.”
By an Application to Resolve a Dispute (the Application) registered in the Workers Compensation Commission on 9 October 2020, she claimed weekly benefits of compensation from 21 April 2020 to date and continuing.
By a s 78 Notice dated 28 April 2020, the respondent denied liability for the claim on the basis that the applicant did not sustain an injury within the meaning of the Workers CompensationAct1987 (the 1987 Act) and that the employer’s decision that she be stood down on 2 April 2020 was “reasonable considering the circumstances of the COVID-19 pandemic, the impact on business activities and … decisions made to protect the business and preserve roles long term.”
The parties attended an arbitration hearing on 10 December 2020. Due to time constraints, the matter could not conclude. Consequently I directed the parties to file written submissions.
These have now been received. The respondent filed submissions on 21 January 2021 and on 5 February 2021.
The applicant filed her submissions on 29 January 2021.
ISSUES FOR DETERMINATION
The parties reached agreement as to the applicant’s entitlement to weekly compensation. The applicant did not concede that any matter was in issue, but the respondent identified the issues in dispute as follows:
(a) Causation; and
(b) Section 11A of the 1987 Act
.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) The Application and attached documents;
(b) Reply and attached documents;
(c) An Application to Admit Late Documents filed by the respondent on 3 December 2020 (report of Dr Adam Martin dated 13 November 2020), and
(d) Written submissions referred to above.
THE EVIDENCE DISCUSSED
The applicant’s statement
In her detailed statement dated 17 June 2020 the applicant said:
“I commenced my employment with Grace on 18 June 2018. I was employed as the Department Head for the Marketing Department. Prior to my commencement date I was interviewed by Steven Brown, the general manager of Grace…
The marketing team that I encountered has had a problematic history and it took me approximately two years for me to correct the Department's shortcomings. These problems were flagged with me in my initial interview with Steven and that the Marketing Department needed a complete overhaul.
In November 20181 had my first run in with Steven. This was over our ‘Nurture Campaigns’ which were developed on the ·Marketa platform. Steven in our weekly meeting suddenly raised the following issue: ‘You have these Nurture Campaigns, all the spend on Marketo, why are you not reporting on these, what are they delivering?’
Steven's comment felt like an accusation… I provided the necessary details to Steven and he then backed down on his accusations of time wasting…
Steven managed his Department Heads by having weekly meetings…There was no agenda other than a 'department update' that I ran through but there was no formal process as to what was to be discussed during the meetings. As a result it was often a nerve wracking experience, as I would frequently be asked questions out of left field about issues which either I had no input on, or I could not provide an immediate response, given the no prior notice.
Marketing is meant to be across all of Grace's businesses. The way Steven had set up the communication lines meant there was not clear communication across all departments and as a result it is difficult to keep up with everything that Steven was asking in the meetings, as he has access to a lot more information than I did. During these meetings I was incredible nervous and stressed as Steven has a blunt manner of communication and expected answers to things on the spot and would not accept answers when details were not at hand.
In December 2018, a Digital Specialist in my Department resigned… I had to pick up the additional workload of the digital specialist which added to my hours of work and stress levels.
In January 2019, our Marketing Communications Manager resigned. Again, I had to pick up the additional workload…
In March 2019 we appointed a marketing coordinator… I was able to hand back some of the workload to these three positions as their induction and settling in period had passed.
On 30 April 2019 during my weekly · meeting with Steven I had a difficult discussion….
0n the 21 May 2019 Steven asked me about the Quick Quote Tool and what had happened to the Detailed Quote Tool on our webpage. He went on to say: ‘Who gave you the authority to remove the detailed quote tool.’ and ‘I run this business and that when leads are dropping or lost, I want to know as I am responsible for the bottom line, not you particularly if it affects this business.’ I explained I had every intention to discuss it with him at our next meeting as he had not been in the office. This answer was not acceptable to Steven and he let me know I had no decision-making powers and everything comes through him. Steven continued to berate me about not giving him the heads up that we had changed the site…
This ad hoc management style was one of the frustrating things when dealing with Steven. We did not have a regular agenda for our meetings or ways to communicate properly beyond emails. Hence, problems would either take him or me by surprise and cause significant tension during our weekly meetings.
In May 2019, our Communications Manager resigned… Again, I had to pick up her work and manage the tenders process. This was a particularly stressful period given the recent interactions with Steven and now the additional work which I had to undertake.
In June 2019 Andrew Wilson came across from another removal company…
On the 15th June 2019, a Digital Specialist resigned following seven years at Grace as they wanted to do something different. Again, I had to pick up the additional workload on top of the Communications Manager.
In July 2019 we managed to replace the Digital Specialist who took about six weeks to get their feet under the desk and then I was able to hand back a significant amount of work.
On 16 July 2019 I had a planned hour-long meeting turn into a two hour difficult conversation with Steven who was firing questions aggressively at me, criticising my results, my team and being particularly unhappy. If Steven did not get the response he wanted, he kept coming at me and going around and around until I conceded the point. He would fire blunt accusations at me rather than questions. This compounded my stress and anxiety as I was constantly having to think on my feet and had no notice of some of these .questions. Further, some of these questions were blatantly unfair but demanded answers there and then. Later that same evening I received an email from Steven advising that: ‘We got off on the wrong foot today and I want to ensure we are on the same page.’ Our meeting was not a happy one. The next day Steven called me to ascertain whether I had seen his email and ensure that ‘we are ok’
In August 2019, the Communication Manager was appointed out of the Melbourne office and I was eventually able to hand back the communication.
On 16 August 2019 during our regular meeting with Steven he handed me a job description for Andrew Wilson who was becoming a full-time employee in September. This was billed as E-commerce Group Manager role. Steven was looking at giving Andrew the digital aspect of my role. Andrew's proposed job description was given to me at the end of the meeting and I had not had a chance in the meeting to review and provide in person feedback. After the meeting I reviewed the position description and provided feedback in email form noting that the E-commerce Group Manager role was essentially part of my role and that of my team's for management. I felt victimised, I felt I was being pushed out and incredibly uncomfortable that Steven had asked me to provide feedback on a role which was clearly within my purview…
From 1 September Andrew Wilson became a full-time employee. I felt incredibly threatened by Andrew being given this role which was clearly part of my purview…
On 14 September I was called to a meeting…Steven berated me for being uncooperative with Andrew… Steven did not back down and in fact said to me: ‘Andrew is here. Make it.work. He is here to help you, do not let him hinder you, find a way to work together.’
I was then instructed to hold weekly meetings with Andrew… Andrew and I found the right balance and managed to work successfully together…
In November 2019 I had yet another run-in with John Burgess, the Operations Manager for removals… I mentioned to Steven in our regular meeting regarding Johns behaviour but Steven’s response was that (John's): ‘His bark is worse than his bite’ and laughed…
On January 2020 our Marketing Coordinator (designer) resigned… it was another role where I would have to pick up the workload.
In February 2020 Steven provided an email to all direct reports advising that he was dropping his weekly meetings back to fortnightly. This was a great relief to me as I would be in a constant state of fear during the week going to these meetings and the unexpected or un-forewarned questions I would be met with.
On 4 February 2020 Steven issued an email for the bonus scheme submissions due on 21 February 2020. This was the first time in my employment that I had received an email to be included in the scheme. I was not given at any time during the induction a description of the scheme nor did I realise the matrix I had to apply to be eligible…
On 21 February 2020 our Communications Manager resigned…Again, I was forced to pick up the role.
In March we managed to replace both the Designer and Communication Manager's roles. I was eventually able to hand back some work.
On the 25th March 2020 Steven emailed both me and Andrew Wilson requesting we restructure the Marketing Department and have a Head of Digital and Customer Interaction and Head of Marketing and Promotions. Again, having another attempt to further break apart and undermine my role. Digital Marketing is marketing and Andrew with the greatest respect has no marketing background…
I penned a response to Steven in conjunction with Andrew disagreeing with the proposed structure and suggested a more workable solution that both Andrew and I felt were appropriate. On the 30th March Steven responded to our email but requested the discussion be placed on hold due to the Covid-19 threat.
On the 31 March 2020 I met with Steven and he advised the whole marketing team would be stood down including me, but not Andrew Wilson. I suggested to him that this would be a wrong decision as many projects could continue that we needed to get off the ground but that I am happy to pull back and I strongly suggested that I work at least 2 to 3 days a week to keep the train on the tracks. He said he would think about it. Later that afternoon he came to my office and advised: 'There is nothing sinister in this decision to stand you down, but I know what you are proposing is from the heart and I need to give that some thought.’
On 1 April I met with Steven and he advised me that I was to issue my four team members with the stand down instructions effective immediately. He asked me would I work from home one day a week. Andrew was not stood down at this point and Steven mentioned that he hadn't turned his mind to that role yet…
On the 2nd April Steven issued an email to the whole business advising that all the marketing team was stood down. Further, that I would be working from home one day a week on certain projects only and that I was not to be requested for work outside of these projects. For all other online marketing Andrew Wilson will support the business as well as our client service centre. This was an unpleasant email to receive where essentially Andrew had been assigned my role.
On the 9th April I was locked out of all systems at Grace after my application for medical support due to my mental health which apparently came from a victimisation point of view.
I am currently under the care of my general practitioner and a psychologist…”
Mr Brown’s statement
In his statement dated 8 September 2020, Mr Steven Brown said:
“I am employed as the Managing Director of the Grace Group. I joined in this role have been with Grace for 16 years, 9 months.
Stacey Mitchell was employed as the Group Marketing Manager, and she started on the 18th of June 2018. The position was advertised, Stacey applied and was successful. Stacey held various marketing roles at Director and senior Management level, both in Australia and the United Kingdom.
As the Group Marketing Manager, she was responsible for all marketing activity across the group, the primary objectives included responsibility for marketing strategy, execution and cost management and return on the Groups marketing investment.
Stacey's performance was reasonable. Some elements of her role she did well, and some elements were a point of concern and some discussion. We had a number of serious discussions about marketing outcomes and her performance, but never to a point where we began a formal disciplinary p delivered a formal written warning.
Stacey reported directly to me, and she had a market team of 4 staff reporting to her initially, which subsequently grew to 5, over the period 2019 and 2020 we added additional marketing resources…There were issues with of Stacey's management style, attached is a summary of the feedback received from staff on exiting the business in Stacey's time as their manager. of her staff.
I had some empathy for Stacey, as some in the team were difficult to manage, but I felt that Stacey's management of them lead them to become frustrated and the way she managed them as individuals didn't help their relationship. She wanted to be in control, of them and their work, and make them accountable and on a tight rein, without supporting them nor giving them clear guidance on their work and priorities - this did not work for her staff and impacted productivity.
Nurture Campaign.
I cannot recall when we started the discussion about these nurture campaigns exactly… in late October I came to understand that nothing had been done with any of these white papers since they were completed, Stacey tried to deny that she knew anything about them and it was not something she was responsible for, that was just not credible given that she had met with our marketing agency (the authors of these white pages) a number of times to discuss our brand strategy and had been in a number of internal meetings were this had been discussed…
In the November 2018 meeting Stacey again reiterated her view that this was not her fault or responsibility for her part in this situation, I disagreed and set out the reasons why, Stacey rejected my view, it was a difficult subject to discuss given that she did not agree my analysis of the situation but it remained a reasoned and professional discussion about an issue of some importance to the company.
Staffing 2018-2019.
One of the challenges with Stacey, was that she would passively resist any offer of help. She wanted to control what she did and be master of her own destiny. As one example at the time Stacey joined the business, I negotiated a consultancy agreement with the former marketing manager (Racquel) to support Stacey on some of our more complex projects. Stacey and I discussed this and I asked her to meet with her and agree a timetable and project plan, Stacey met with Racquel and subsequently told me that it would not work with Racquel and she would take on these projects herself, later in 2018 I again asked her to reach out to Racquel to help her with the Marketo nurture campaign, Stacey advised that Racquel was unavailable. I subsequently spoke with Racquel who said she felt that Stacey did not want her assistance in both instances and so for that reason this arrangement never progressed.
To the issue of staffing in the period November 2018 to March 2019. The marketing team comprised 6 staff members including Stacey as of October 2018. At that time Stacey recommended that Ashley be made redundant and she was made so on the 31/10/2019. In the period several staff resigned and were replaced…It was also in this period that I again recommended to Stacey that she use Racquel in the consulting role. Additionally, we agreed to pause a number of projects to support marketing during that time…
SEO Plan.
This discussion started as a result of my concern at the decline in our paid (PPC) campaigns and feedback we received from our digital agency on this Issue…We discussed this issue a number of times…
In March, we had a conversation about it…I was becoming increasingly concerned… That discussion on the 30th of April occurred because Stacey tried the SEO plan was not her responsibility, and therefore not her fault. We had a series of conversations in late March, I then wrote an email to her on 28 March, setting out a course of action and priorities in her role.
I was overseas for a several weeks and in turn Stacey was away after that, so we did not reconvene until the 11th of April. I emailed her about the fall in organic traffic and we then met to discuss this and she suggested that the management of organic traffic was not her responsibility and I explained it was inherently part of her role. This discussion was made difficult because Stacey would not accept that this was her responsibility, her stance was not credible given her email provided immediately after Interview 29th of May 2018 and her business plan produced in December 2018 for the 2019 year both which dealt with the SEO issue in detail, again it remained a reasoned and professional discussion about an issue of some importance to the company. I followed up that discussion with another email.
During this time we had already determined that she was not as expert in digital marketing as her interview process on recruitment suggested-over time we offered her the opportunity to undertake external training, encouraged her to seek support from professional consultants etc, Stacey didn't undertake any training however organic continued to fall, and she insisted It was not her responsibility. It was a key part of her role and she needed to work with us to fix this. This was the conversation.
Quick Quote Tool.
Our web designers had been contracted to build a quick quote tool. There was a discussion on 14th of May following a number of meetings on the subject…Stacey was working with our provider on this issue and the timeline to completion continued to drift and Stacey's go to position was to blame the provider, in my view Stacey as the contract owner, it was her responsibility to get it resolved, Stacey disagreed with my view. It took a long time for this task to be completed. Stacey in a discussion on the 30th of April promised it would be delivered by the 2nd of May 2019.
On the13th of May, Stacey emailed, notifying me of another delay and confirming it would be launched within 48 hours.Stacey references a meeting on the 21 of May 2020 and a difficult conversation with me, on that day I was in a board meeting all day and immediately left the office to fly to Brisbane for the balance of that week and in the week prior from the 14th to 17th I was in Melbourne and Brisbane, I also do not recall us having a telephone discussion.
21 May 2020.[sic 2019]
To address the point raised - I think that Stacey Is talking about our two options for quoting a move. I recall the detailed quote tool may have been taken down and replaced by the quick quote tool, however other parts of the business used that tool. I would have asked her why she removed it. As to Stacey saying I said ‘I was the managing director and I get to say what happens’ that is not who I am and I do not believe I have ever said that to anyone in the organisation, I also did not ‘berate her’ as suggested, however I am sure that I asked direct questions of Stacey as the person responsible for the project.
Increased workload between May 2019 and August 2019.
There was one resignation and two replacement staff joining and 2 additional staff added. In that period responsibility for Smartbox marketing was devolved to the business manager, as too the responsibility for the Grace New Zealand to that business manager thus reducing the marketing teams workload, we also recruited additional consulting support…all of which expanded significantly our overall marketing capability.
I tried to get Stacey to embrace these support opportunities unfortunately she again actively resisted this and resisted it, as one example - Steve Phillips the Smartbox Manager had asked to take over the marketing responsibility, I agreed and asked Stacey to facilitate this handover.
Marketing is a popular support service, in a diversified group everyone wants Marketing's attention, and I spoke a lot with Stacey about prioritising her workload. In our monthly meetings, we would discuss priorities and I would encourage her to focus on what she believed to be her priorities. I told her regularly that she could tell any business unit that their project was not a current priority if she felt that was the case and I would support her if required/requested to do so. Stacey really wanted to do what she wanted to do which made the job of supporting her a challenge, on a number of occasions I did sideline nonessential projects or re set the proprieties to balance marketing's workload.
16 July 2019.
Stacey and I had a marketing review meeting. It was supposed to covered a number of marketing topics, but became consumed by three items her relationships with staff, managing workload and our SEO program, the discussion was frank but respectful, As for the duration of the meeting, I don't recall exactly but my recall supported by my calendar of appointments on the day suggests that it was over an hour but not two. I deny that I was firing blunt accusations at her, I was questioning her, questions that were relevant to her role and responsibilities.
I emailed her later that day as I realised the conversation had been consumed by these topics so had gone of a course as a result, I had intend to discuss other matters in marketing and to compliment her on other work done by her and the team, I felt with hindsight we had not invested time in discussing other matters that were good news for the business, hence the email.
16 August 2019.
We had this ongoing issue with significant fall in online enquiries, I also felt we did not have a sophisticated sales process to support online sales. The business we acquired had a very robust online sales and marketing program. Stacey, I felt, needed support in digital marketing and we needed to improve sales process - this being a separate activity to marketing, and the person we brought on was an expert in E-commerce and online sales and the software that supports this, and consequently offered a lot to the business, so I brought Andrew Wilson on as E-Commerce Manager.
I must have had 5 meetings with Stacey in relation to this, I wrote to her several times, and wrote extensively on the reasons why, but she didn't or wouldn't understand why, and didn't want to share any responsibility, and actively resisted what we were trying to do.
I wrote to Stacey on 9 August and shared the working draft PD she saw in the later meeting. I explained that this would enable her to focus on marketing with strong inhouse technical support. I responded again on Annexure 19 August 2019 in detail, explaining my thinking. Stacey had provided feedback prior to this, but I set out again the reasons for the role and we met again.
Andrew's role was to support Stacey and it was an investment in broadening our skill set and increasing the fronts we were working on to support our online presence, this would give her more time to do the things she needed to do. Andrew's role was never intended to push Stacey out, it had a different set of responsibilities.
Google Suite.
Andrew sent an email to Stacey on the 10th of September asking for access to Google Suite, and Brightedge, which is an SEO software solution. I had already asked she provide access to both prior to this…Stacey refused to allow access and in fact reached out to our digital specialist in Manilla and told him not to provide access to Andrew either. I explained to Stacey, again in an email on the10th of September why we need to do this.
14 September 2019 Meeting.
There was a meeting on 16th of September 2019, not 14tt1. The purpose of the meeting was to discuss the E-commerce Managers role as referenced above, additionally, despite my repeated request to provide access Stacey had still not done so. I told her she had to give access and that it was no longer a discussion it was a directive. It was a relatively short discussion. I was not aggressive; she was not happy with this directive but did comply that day.
Stacey and Andrew clashed a few times, and I think that despite my best efforts to work together, there was a lack of cooperation, Stacey's opposition to this is addressed in this document. I also took Andrew to task over his attitude and emailed him reminding him that he was new to Grace, and he had to show respect to existing roles and people in the business.
Run in with John Burgess.
Our marketing merchandise is stored in the Sydney branch warehouse…The issue arose when Stacey asked for some supplies and John advised that he was unable to help immediately, Stacey took issue with this and in tum John took issue with her attitude to him…They exchanged words and both left the discussion frustrated, Stacey raised the issue with me, I talked to John's manager and came to the conclusion they were both at fault, Stacey for the timing of her request and attitude to John and John's reaction to Stacey- I spoke about it with Stacey about her role in the matter and also had John apologies to Stacey.Increased workload, resignation of marketing coordinator.
During this period there was only one resignation in the role of marketing coordinator in mid-January. At that time, we had Andrew in the E-Commerce role, a digital specialist in manilla, additional digital resources from an agency in Manilla, we had given responsibility for marketing in New Zealand to the Business Manager responsible, likewise the Business Manager of Smart Box.
Stacey was not happy with any of these changes and consequently had difficult relationships with all these people as a result. Work suffered as a result. was not [sic] she would not share responsibility for these tasks and others and passively resisted any offer of support.
Bonus system.
Her first bonus period was for the first half of 2019 submission was within 3 months of the end of the period, and she did not submit a claim. the second bonus period was the second half of 2019, which was due by February 2020…
The issue with the bonus scheme claims was that when Stacey submitted her application, it was late, the KPl's and the calculations were incorrect on both bonuses claims, any one of these three requirements could have excluded her from payment, but Instead we re-calculated the payments to meet the scheme criteria, we found there was some ambiguity around the KPl's and accordingly we erred on the side of Stacey, and paid her both amounts in May 2020. We were not trying to deny her the bonus, she simply did not follow the bonus process.
In recent times we have been scrutinising aspects of our sales performance…from July 2019 the numbers submitted by Stacey were 200 to 300% higher than the actual numbers sourced from Google analytics and provided to her by our digital consultant…I now wonder if Stacey's refusal to allow access to Google Suite was connected to this issue. We are currently considering our position in relation to this matter and what actions we may take as a result.
25 March 2020 – restructure.
We acquired a service centre in Manilla and over the course of the 14 months prior to March 2020, we progressively moved services to the service centre, in sales, marketing, digital finishing, international imports and exports, pricing and (some) accounting services to the service centre. We already had a digital marketing specialist in Manilla to support the marketing team, and as we had such a high staff turnover in marketing, the thinking was that we would contract out all marketing support, and Instead we have two roles based in Australia with all support in Manilla. That was the thrust of the idea. It was never intended to undermine her role, and I continued to reassure Stacey about her continued importance to the business throughout this period. A point to note ts that company staff turnover was 26.8% in 2018/19 and 23.4% in 2019/20, marketing turnover during this period and with Stacey as managers was over 160%.
I agree that Stacey responded, and on 30 March 2020, I requested that we delay the discussion due to COVI0-19.Stand-down.
I met with Stacey on 31 March 2020. I told her that she and the rest of the marketing team would be stood down.
Stacey raised the issue of Andrew's continuing to work in the business role, I replied to that concern in an email to Stacey on the 14th of April 2020.
We acquired Crown Relocations in April 2020, in the lead up to acquisition and onward Andrew has been working on the integration of this business into Grace, this is not a marketing task it is focussed on process integration…I tasked Andrew to manage this task as well given his background in logistics- so he has two projects, the business integration and coordinate the move, neither of which Stacey could have done.
I considered Stacey's proposal that she should work 3-4 days per week but decided that we would stand down all marketing staff, in Stacey's case I asked her to work one day per week.Wilson not being stood down.
Andrew had never been assigned to take over Stacey's role. We had some marketing tasks that in Stacey's absence had to be addressed - the reduction in our PPC advertising spend as a result of COVID, we also asked our IT manager to post messages to our intranet as part of our internal communications plan resulting from COVID.
Access removed to Grace Systems.
When a staff member is on sick leave and is absent from the workplace for an extended period, we do remove their access to our systems as much for their benefit and wellbeing as ours to track and control access generally.
Stacey was challenging to manage, and I guess the term passive resistance best describe her demeanour. If she did not agree, she would passively resist. I had to constantly work with her to get her to embrace what we were trying to do. She resisted or refused offers of help and support, the company invested in people, systems and processes to improve our marketing outcomes and support our marketing team, the value of this investment was reduced by Stacey’s unwillingness to use those same resources.
On a personal level, I have emails from Stacey, where she thanks me for my support, provides positive feedback toward me, my leadership and my help and support, the most recent was in March 2020. I felt that on a personal level, we had a reasonable relationship and the allegations she now makes have disappointed and surprised me.”
There are extensive annexures to Mr Brown’s statement such as emails and other documents which he says support his account. I do not propose to set them out in detail, but will refer to them more fully when dealing with the parties’ submissions.
Mr Elsworth’s statement
Mr Warren Elsworth, the Financial Director, also prepared a statement dated 8 September 2020. Although he had limited contact with the applicant, he was in attendance at several meetings and he also addressed staffing issues and other matters as follows:
“I am aware of the resignations, and through her tenure, there were often discussions around staff. During these discussions, the tone was that she inherited two individuals that she had issues with, one was Navid and another was Emily, and they were challenging and in the early days, she was frustrated that she couldn't get her team to do what she wanted them to do. We manage sick leave across the business and in Marketing people were taking a lot of leave. There were a lot of conversations about this in the early days, in getting the culture to improve and for them to work as a team. There were never any discussions around Stacey's workload increasing though or any issues she had in terms of bullying.
The digital marketing aspect of Marketing was not performing well…
Stacey spoke to me about Rochelle taking the role. She noted she was not happy with Rochelle's performance, but despite that, and the fact that Rochelle had no experience, Stacey indicated she would like to give Rochelle a chance given her tenure with Grace. I advised her against doing do, firstly because a poor performer will seldom become a.star, and secondly because the role was critical to Grace and we needed someone in Digital Marketing that had the experience to improve our digital marketing outcomes. I understand Steven Brown Independently expressed the same reservations to Stacey, as she provided that feedback at the time. Despite, advice Stacey stuck to her opinion, and went ahead with the appointment. Rochelle stuck in the role for a few months and used her new skills to find a digital marketing role outside Grace. Stacey was frustrated she had stuck her neck out for Rochelle, in terms of her getting the role that she probably should not have had, and Stacey was both disappointed and annoyed that Rochelle had resigned under the circumstances.
Stacey often complained about her team, but I am not aware of Stacey's workload being increased because of staffing issues…
14 September 2019 meeting.
I believe that we had the meeting to clearly define the E-Commerce role to Stacey as she continued to resist working with Andrew Wilson. Sometime before the meeting, Stacey had confided to me that she was concerned about Andrew's role, and I had suggested she work with Andrew, because it was evident that she was trying her hardest to fight him. It became clear through our discussions that her concern was more around reporting lines, and who would head Marketing within Grace, than real issues with Andrew or his role. Stacey admitted that she would be more comfortable if Andrew reported to herself. As that indicated to me that it was a power play, rather than concern for her role, I suggested she express her views to Steven Brown.
In that meeting, Steven clearly set out the e-commerce role, highlighting how it fundamentally differed from the Marketing role Stacey filled. At the end of the meeting Steven raised the Issue of Stacey providing systems access to Andrew. Stacey had been asked repeatedly to provide access, as it was required for Andrews role, but she just did not do so. Steven asked her why she had not provided access and she could not answer. Steven made it clear that she needed to provide access right away. Steven did not raise his voice or berate Stacey, he was direct in asking her to provide access. It was clear that Stacey was annoyed at the direction.
The digital marketing world has become very important to companies and requires specialised skills beyond the traditional marketing function. Stacey had limited knowledge on digital marketing and lacked the time to focus on only digital marketing, and Andrew was very experienced at the technology aspects of digital marketing but did not have Stacey's creative marketing skills. The roles were complementary but quite different in terms of skills set…
Stand-down.
A detailed review was performance in March 2020, to ascertain the impact of Covid-19 in the business. We rely on International relocations, interstate moves, and access to people's homes to conduct our business. Borders started closing…
We sought legal advice on what actions we could take. We decided on the hope that we would qualify for JobKeeper to avoid as many redundancies as we could, in favour of standing down any non-essential staff. We went into crisis mode, and rapidly identified people to be stood down, and 109 people were stood down. The basis for the stand down is that marketing is discretionary spend and the entire team was stood down, in addition to other non-critical areas of the business. We managed this and brought people back on a systematic basis and Steven was exceptional in providing detailed and regular communication to keep everyone informed of what was going on.
Andrew Wilson was not stood down and he was leading several critical projects…
External matters.
I know that Stacey was doing a lot of home renovations and she made comments to staff that she would not be able to afford her mortgage if she was stood down. She and her husband had just moved into the place they had renovated…
General comments.I think that Stacey got it in her mind that Andrew was replacing her, and no matter what was said, she could not be convinced, and she saw the stand down of herself and not Andrew, as confirmation she was right all along. Her concerns were unfounded.
I liked Stacey and we got on well. She was enthusiastic, and by all account was good at the Marketing aspect of her job. I believe Stacey was treated very well, often being granted privileges outside the normal Grace policy. She was permitted to start late and work flexible hours to suit her childcare requirements. Stacey was permitted to work from home often, whilst Grace has a policy of people not working from home (pre-Covid-19}. Stacey was running in a local election and was granted flexible work arrangements for that as well.
Stacey is quite a determined person and when she gets an idea, she sticks with it. In my experience when I had a contrary view to Stacey, she became defensive and stuck to her guns out of principal and I believe she did the same in-her interaction with Steven. She did not appreciate it when Steven had a contrary view to hers. I believe she received support from Steven, and that he went out of his way to help her to be successful in her role. I know they had weekly meetings, and I always thought they had a sound working relationship.”
The respondent conducted an internal “Incident and Investigation Plan” on 22 April 2020. Findings were reported as follows:
“On 20 April 2020 at 3.24pm, Grace received email notification from Ms Stacey-Lee Mitchell…
[She] said:’ I have today sought more medical assistance following legal advice as I feel victimised and humiliated which has resulted in me suffering panic attacks, anxiety, poor sleep and plain nervous system shock. I would request no further contact whilst I seek the medical assistance available to me.’
A NSW Workers Compensation Medical Certificate was provided attached to the email…
Grace has undertaken a formal investigation into the matter which is included as part of the notification to ICare and EML, together with all relevant evidence in support.
From 30 March 2020, 87 Grace employees were stood down in response to the financial hardship from COVID-19 Pandemic. Stacey Mitchell, along with her Marketing Team and further 14 staff, were stood down on 2 April 2020, legally under the COVID-19 Fair Work Jobkeeper Program.From reviewing the correspondence from Stacey Mitchell it is clear that the issues presented regarding her anxiety related directly to the Stand Down. This is evident through her correspondence noting her concerns to the Managing Director, and more recently to ICare dated 23 April 2020…
Grace was in a position where there would be a considerable financial loss and hardship to the business operations due to the restrictions in place due to COVID-19 Pandemic. The business Directors reviewed Grace position and had to make business decisions to combat the financial downturn. Grace sought legal advice as to the Grace position and undertook all actions in line with legal advice. Grace undertook a series of stand down, redundancies and reduction of hours for all of Grace employees still working. This is in line with Grace rights under the COVID-19 Pandemic FWA Amendments…
On being stood down Stacey started a process to avoid the financial consequences of being stood down and amongst other things, lodges a worker's compensation claim noting anxiety. There were evidence and communication that Stacey understood that the Workers Compensation Scheme would have been a mechanisms of income due to the concern of losing her house: o On 31 March 2020, Stacey Mitchell had correspondence with Vanessa Lakits Group Manager- Compliance & Risk through Microsoft Teams noting her concerns that be 'Stood Down meaning no pay- I will lose my house'. This indicated that there was a desperation to sustain an income long term. o Stacey is well versed of the Workers Compensation Psychological Claims process, as Stacey told Grace staff (including Susan Gilroy HR Manager and Vanessa Lakits - Group Manage - Compliance & Risk) that her husband had a psychological worker's compensation claim due to loss of job, and used the worker's compensation psychological claim as a means of income.
Grace was surprised by the allegations of bullying brought by Stacey as Grace has been very supportive to Stacey since her time with Grace including:
o Stacey has been provided more sick leave than other staff due to family issues.
o Stacey was provided extended leave when running as Councilor in her local elections.
o Stacey was provided flexible work arrangements which is not typical within Grace, to accommodate her childcare needs given she lives a long way from the office.
o Stacey was known to have a good relationship with her Direct Report - Steven Brown - Managing Director. Stacey would comment freely to her peers, in particular Susan Gilroy HR Manager and Vanessa Lakits - Group Manage - Compliance & Risk.
Grace has in place a Employee Wellbeing Company – Interrelate…Stacey Mitchell was offered to utilise the services of Interrelate, she did not take up this offer.”
Clinical notes from Mona Vale Medical Centre confirm that the applicant first attended on 20 April 2020 and saw Dr Deng. The history recorded was:
“work cover case bullying from boss - manage director, he re-assigned her role, humiliated her, boss is aggressive towards her, not sleeping well - only 3 hours of sleeping, heart pumping at night a lot, nervous going to work, scared of going to work, sick of whole things at work…
been like this for long time - basically since she started working there, worse from last Sept when another person was brought in and replaced her role, boss pushing her responsibility towards him, confidence gone boss gave her no explanation.
spoke to solicitor already not well enough going to work would like to claim worker's compensation. Given WC certificate - not for work for 2 weeks to see psychologist and psychiatrist…”
Her next visit was on 29 April 2020. The entry reads: “Letter written re NSW Certificate of Capacity.” She also had a flu vaccine.
On 27 May she again attended. The entry reads: “Letter printed. Request printed to OHM Eorder: serum troponins; CK level; ECG..”
On 24 June the entry reads: “Letter printed. Letter written.”
On 1 July she attended with “anxiety.”
The last entry is on 16 September 2020 which reads: “Worker's compensation Actions: NSW Certificate of Capacity.”
The applicant consulted Dr Allan at the request of her solicitor on 27 August 2020 via video conference. In a report dated 28 August, he summarised her statement. He then said:
“Ms Mitchell was employed at Grace Worldwide as a group marketing manager from June 2018 up until her termination from employment on 25 August 2020. She last worked in April 2020 and has had no employment since. She described it as deeply distressing to have been terminated, having been told previously that her claim was not accepted as it was felt ‘she didn’t have a medical condition.’ Ms Mitchell has never previously been in the WorkCover system and has had no previous workplace issues…
Ms Mitchell is on no psychotropic medications. She has not had any psychotropic medications over the course of her injury. She states her general practitioner has asked her about starting medication…Ms Mitchell sees her general practitioner, Dr Zorn, on a monthly basis. She has no psychiatrist. She has not had any psychological treatment as yet. She states that she had been pursuing treatment but after her case was declined she cannot afford to pay for such treatment…”
In documenting “Workplace issues” Dr Allan said:
“She states that over the first few months despite being a ‘honeymoon period’ at work, she was aware of Mr Brown's management style being challenging for her to experience. She observed him as being markedly introverted. She states there was significant stress associated with ‘what you are going to get with any meeting with him’. She indicates that she had a tendency to enter meetings ‘on guard’ as meetings could quickly descend into a ‘battle.’ She describes how he would ‘throw questions at you from left field’ in an undermining fashion and ‘if you didn’t give him what he wanted in meetings they would go round and round and on for hours’. She indicates that Mr Brown was exceptionally hard to please in the workplace.
She recognised in the workplace, ‘a boys’ club’ of members of staff who had been there ‘a long time’. When Ms Mitchell had encountered difficulties with such staff she would explore these with Mr Brown who would simply respond ‘what do you want me to do, their bark is worse than their bite’. On one particular occasion she was told to ‘suck it up princess’ and to put a ‘big boy pants on’ when raising her concern.
Ms Mitchell’s health had been gradually deteriorating over the course of 2019. She states that her physical health was impaired and that she was having recurrent flus and viral infections, the types of which she had never experienced in the past with such frequency. She had become aware over the course of 2019 of recurrent palpitations. She states her heart would ‘jump like it was out of my chest’. She would experience heavy sweating. She would feel fearful and overwhelmed and recognises that she was having significant dread for much of 2019 on the days when she would know she had meetings with Mr Brown. She indicates that in the aftermath of those meetings, she would feel a marked sense of relief, but in the build up to them for the 48 hours prior to them occurring, her anxiety levels would be much heightened…
She reflected how her health had worsened further in September 2019 when Mr Andrew Wilson had arrived in their position. She described that there were significant issues with alteration of her role and a new reporting structure. She states that after Andrew's arrival, she had observed ‘Steven would have a go at me if things were not done on time line, but Andrew would not get the same treatment.’
During the early stages of the COVID-19 pandemic, this further caused complexity in her workplace. She was told by Steven that he wanted to ‘stand staff down’. His intention was for staff to be ‘stood down’ under job keeper… Having been told that she could work one day per week in this atypical arrangement she states, ‘the next day, Steven sent an e-mail to the whole business saying that myself and my whole team were being stood down and that all inquiries were being sent to Andrew Wilson’. This was deeply distressing for Ms Mitchell to observe given that there was clearly a continuing need for her role given that inquiries were being sent to Mr Wilson, but she felt ‘crushed’ at having been isolated and excluded in this fashion. She states, ‘It was clear that I was not required’”.
Dr Allan diagnosed “an adjustment disorder with depressed and anxious mood. She remains unwell and distressed…”
In a supplementary report dated 2 November 2020, Dr Allan said:
“I have reviewed the patient summary and the factual investigation by Procare dated 21 September 2020, that includes the statement of Mr Steven Brown and by Warren Elsworth.
Having reviewed these documents, it is my opinion, that these statements generally confirm the events that occurred that were referred to in my initial report. I note that there are different perspectives about what had occurred but that the events seemed to be generally agreed upon.
The enclosed documents have not led me to alter my opinion in any way regarding the main contributing factor to Ms Mitchell’s condition.”
The applicant saw Dr Martin at the request of the respondent on 12 November 2020. In a report dated 13 November 2020, after taking a history of the claimed injury he said:
“'There is a general consistency in her presentation (of reporting anxious symptoms in relation to industrial issues). Her presentation appears consistent with the assessment of Dr Martin Allan…
In terms of any particular inconsistency, the main contention appears to be around cause and liability, with her narrative account being essentially that she was exposed to unfair treatment and bullying in the workplace, whereas the employer refutes this (as per the factual investigation…Obviously there is a temporal association between the worker seeking medical attention for anxiety and having been stood down, which at face value would appear to be inconsistent with the proposition that her anxiety was directly associated with bullying behaviour…In terms of diagnosis, I agree with Dr Allan’s assessment of an adjustment disorder with depressed and anxious mood…
She has obviously framed this as bullying. This appears to have been denied by the employer which is not particularly surprising…”
Dr Martin was then asked to comment on the s 11A legislation. He said:
“In my view it appears that her anxiety symptoms have been related to work in the sense that she reports onset of anxious and depressive symptoms which she attributes to bullying by the managing director, whom she states had been intimidating and attacking and unsupportive. She reports a sense of insecurity in relation to her work, particularly with the introduction of Andrew Wilson and a feeling that she was fighting for her job, and reported being very distressed when she was stood down but Andrew Wilson was not, around the COVID situation. She formed the view that this fed into her sense of being unsupported in the workplace.
I think it can be said that employment was a substantial contributing factor to her psychological condition. I think it is less certain whether her anxiety can be said to have been caused by the events raised or is more closely related to her being stood down (and subsequently terminated) when another worker, Andrew Wilson, was kept on.
I think it is probable that she was experiencing anxious symptoms in the time leading up to being stood down, but there is no sense that she was significantly impaired in terms of performance in the time leading up to April 2020, and subsequent complaints of anxiety have been after this time, and on balance, I am inclined to the opinion that s11A factors are more relevant to her distress. That is, in my view, it is more likely that the predominant cause of the psychological condition is the standing down of the worker on 2 April 2020…In relation to the issue of ‘reasonable conduct’,,,[as a psychiatrist]…I have not directly witnessed what occurred in the workplace, I am in no place to comment on whether the conduct of Mr Brown and Grace in managing the worker was reasonable or otherwise…”
Dr Martin then addressed issues relating to capacity which, given the agreement between the parties as regards the applicant’s entitlements, I do not propose to repeat here.
THE SUBMISSIONS
The respondent’s submissions
The issue to be addressed by the Commission concerns the cause of this condition.
The respondent submits:
“The most compelling conclusion is that the applicant's injury was caused by action taken by the respondent employer on 2 April 2020.
That action is described by Warren Ellsworth, the respondent's financial director, in Mr Ellsworth's statement of 8 September 2020…[as regards the impact of Covid 19]…
In her statement dated 17 June 2020, she describes events in the workplace prior to 31 March 2020 including interactions with her superiors and the elevation of Andrew Wilson to full-time employee on 1 September 2019. Mr Wilson's position was ECommerce Group Manager.The interchanges were clearly robust, sometimes difficult and, at times, to use the applicant's words, incredibly frustrating. There is no suggestion, however, that her employment challenges were causing the applicant any illness.
On 2 April 2020, the applicant and her marketing team were stood down along with 14 other staff.
The applicant's reaction to the steps taken by the respondent is in sharp contrast to the absence of any consequences of the previous interchanges.
After being stood down, the applicant emailed Susan Gilroy, the respondent's human resources manager, stating:
‘Just to advise I have an appointment with my GP in the morning so it is unlikely I will be up to work tomorrow. I have had a flareup of my throat haven't been suffering stomach issues – I suspect it is down to stress related issues but I have booked to see my GP tomorrow at 0945. I have found it really tough not having a role to play and this could be manifesting itself in more than a mental situation.(Emphasis added, Reply 204).
The particular grievance that troubled the applicant, in addition to herself being stood down is that Mr Wilson was not stood down. This is apparent from the applicant's account to Dr Allan: ‘Andrew was not stood down at this point and Stephen mentioned that he had not turned his mind to that role yet).’ [and] the applicant’s statement.
Critically, Dr Martin has the following record of the applicant's history to him: ‘She said that in October 2019, following a restructure and take over, that another person was introduced (interview) to the role of e-commerce, identified as Andrew Wilson. She said that when she was stood down that this person was not stood down and she remarked ‘that broke me’.(emphasis added).The applicant's own self-diagnosis ‘I have found it really tough not having a role to play and this could be manifesting itself in more than a mental situation’ is compelling. Prior to the stand-down, it would appear from all the evidence that she was industrious, fully engaged and effective. Mr Brown and Mr Ellsworth speak favourably of her performance. There was no suggestion of symptoms similar to those described by the applicant in her email to Ms Gilroy.
It is also compelling that the applicant had a strong sense of injustice that she was stood down and not Andrew Wilson, and that this perceived injustice aggravated her condition. She was now seeking medical attention for a psychiatric condition which had not existed before.
On 20 April 2020, the applicant again emailed Mrs Gilroy as follows; ‘I have today sought more medical assistance following legal advice as I feel victimised and humiliated which has resulted in me suffering panic attacks, anxiety, poor sleep and nervous system shock.’
Clearly the victimisation and the humiliation perceived by the applicant are her being stood down and the retention of Andrew Wilson
But both of the factors (the stand-down, and the retention of Wilson) are the direct result of the employer's action of 2 April 2020. The strictures set out by Deputy President Snell in Hamad v Q Catering Limited NSWCCPD 6 at [43] to [51] are met.
Was the employer's action reasonable?
The respondent was clearly taking the steps it was obliged to take given the extent of the financial impact of the pandemic. The forces leading to the respondent's necessary steps are comparable to the forces considered in AMP Bank Limited v Ayoub [2010] NSWCCPD 37. In that matter, the employer, a bank, considered itself obliged to restructure following the sharp downturn in its position caused by the GFC. The restructure led to the retrenchment of the worker.
In concluding that the employer's action was reasonable, Acting Deputy President Moore, at [135] and [136], had reference to Jeffery v Lintipal Pty Limited [2008] SWCA138 at [50] (Jeffery) and to Richie v Department of Community Services (1998) 16 NSWCCR 77 at [40].
Jeffery was applied by the Court of Appeal in Northern NSW Local Health Networkv Heggie [2013] NSWCA 255, (Heggie) and by Deputy President Elizabeth Wood in Westpac Banking Corporation v Mani [2019] NSWWCCPD 41.
Here, the evidence of Warren Elsworth and of Steven Brown demonstrate the reasonableness of the decision to stand staff down.
As to the retention of Andrew Wilson, Mr Brown observed: ‘Andrew had never been assigned to take over Stacey's role. We had some marketing tasks that in Stacey's absence had to be addressed – the reduction in our PPC advertising spend as a result of COVID-19, we also asked our IT manager to post messages to our intranet as part of our internal communications plan resulting from COVID.’
Mr Elsworth also addresses the reasonableness of the retention of Andrew Wilson in his statement.
Did the action fall within sec 11A(1)?
The psychological injury sustained by the applicant was, then, the result of reasonable action by the respondent. As Mr Ellsworth points out in the paragraph quoted above, the standing-down of staff as opposed to redundancies qualified members for inclusion in the JobKeeper program, thus the obtaining for stood-down staff of the employment benefit made available by the program. Whether this is correctly described as reasonable action with respect to provision of employment benefits or reasonable action or with respect to retrenchment (in this case the avoiding of retrenchments) is a moot point. But the action clearly fell within sec 11A (1).
The issues between the parties concern whether the cause of the applicant's condition was wholly or predominantly the respondent's action in standing her down while retaining the services of Andrew Wilson and whether that action was reasonable.
If those issues are resolved in favour of the respondent, then the defence provided by sec 11A (1) is made out.”
The applicant’s submissions
The applicant submits as follows:
“The Respondent did not make an application to cross-examine the Applicant.
As Basten JA pointed out in Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203 at [40] it behoved the Respondent to cross-examine the Applicant if there was a serious challenge to the Applicant’s version of events
The absence of a challenge to the Applicant’s version of events means that the Arbitrator can comfortably accept the substratum of fact set out in the Applicant’s Statement.The Respondent says causation and s.11A are in issue.
Causation
Numerous causation issues are raised in the insurer’s s.78 Notice. Given the contents of the Respondent’s written submissions it is clear that s.4(b) and s.9A are no longer in issue. To be clear, non-employment factors are no longer alleged by the Respondent.
The Respondent in its submissions expressly argues that the employment events of 2 April 2020 caused the Applicant’s psychiatric injury.
Accordingly, there is no causation issue in the conventional sense in this case apart from consideration of the Respondent’s case on s.11A.Section 11A
Given the Respondent’s submissions it is unclear to the Applicant whether the Respondent relies on ‘retrenchment’. In event that the Respondent does rely on ‘retrenchment’, the Applicant squarely submits that the Applicant was never retrenched by the Respondent.
The evidence is that the Applicant was stood down on 2 April 2020… There is no history of retrenchment. It is common ground that the Respondent stood the Applicant down due to the pandemic crisis.
The only part of s.11A(1) which is left to the Respondent is ‘provision of employment benefits to workers’.
The standing down of the Applicant is not ‘a provision of employment benefits to workers’. Rather than a benefit, the standing down was a detriment. A detriment is the opposite of a benefit.
The Applicant does not dispute that it was reasonable to stand down the Applicant due to the pandemic crisis.
The Respondent goes on to argue that the provision of JobKeeper falls within ‘provision of employment benefits to workers’.
It seems that JobKeeper is a payment provided by the Commonwealth to employers and not employees. The employer then pays wages to the employee. The payment of an employee’s wage cannot be a benefit to an employee.
As the onus to establish the defence under s.11A(1) lies with the Respondent, it behoved the Respondent to lead evidence regarding the mechanics of the JobKeeper system. The Commission cannot decide facts in a vacuum. This is particularly so when the JobKeeper argument is the crux of the Respondent’s case and has the potential to defeat the Applicant’s claim.
In any event, assuming that the payment of JobKeeper did fall within ‘provision of employment benefits to workers’ there is absolutely no evidence, let alone medical evidence, to prove or even suggest that the provision of such a benefit caused the Applicant any psychological injury whatsoever.
The Respondent’s argument on s.11A must therefore fail.Accordingly, there ought to be an Award for the Applicant…
In the event that the Commission is not so persuaded the Applicant relies upon the following submissions on ‘causation’ in relation to s.11A(1).
Wholly or predominantly
The dispute here between the parties is the importance to be placed on the events of 2 April 2020.
The Respondent appears to be arguing that all of the employment stressors prior to 2 April 2020 are to be ignored.
The Applicant’s position is that the stand down on 2 April 2020 was the culmination of work stress. Whether the stand down be viewed as the ‘trigger’ or the ‘straw that broke the camel’s back’ it is unrealistic to simply ignore the build-up of tension and stress as set out in the Applicant’s statement.
Dr Martin Allan opined that the Applicant’s condition (ie adjustment disorder with depressed and anxious mood) ‘arose as a direct result of experiences with Mr Brown’. He further opined that ‘the treatment she received from Mr Brown was the main contributing factor to her developing her condition.’ [He did not alter his position in his supplementary report]
The Respondent has made some very specific submissions from [15] to [19] about [Dr Martin’s] report which need to be addressed.
The Respondent provides an extract from p.2 of Dr Martin’s report. The extract finishes with a full stop although the text of Dr Martin’s report indicates the remainder of the sentence is as follows:
‘and said that over the previous six months that she had felt threatened every day in terms of job security and that she had been shocked to see half her role being passed to this other person.’
When the entire sentence is read a picture different to that painted by the Respondent is readily apparent.
The events of 2 April 2020 were indeed a culmination of events over a lengthy period of time. The Applicant made it plain to Dr Martin that over the six months prior to 2 April 2020 she felt threatened every day in terms of job security.
Events have to be placed in context.
Given that history, the events of 2 April 2020 are best viewed as a culmination of work stress.
Andrew Wilson was not stood down. The Applicant apparently told Dr Adam Martin that this ‘broke’ her. In other words, this was the last straw.
To focus purely on the events of 2 April 2020 is not only unfair to the Applicant but it simply pretends that the prior history does not exist. The Commission must have regard to the entire sequence of events.
Realistically, it is impossible to assess the psychological impact of each individual affront to the Applicant. However, it is far more likely than not that the Applicant ‘broke’ because she was already under considerable mental strain.
On this approach the finding that the events of 2 April 2020 wholly caused her psychiatric injury is really not open to the Commission.
Furthermore, the argument that the events of 2 April 2020 predominantly caused her psychiatric injury is highly problematic. The Applicant saw her GP on 20 April 2020 who typed notes of her complaints…
The Respondent says in its submissions that ‘there is no suggestion, however, that her employment challenges were causing the applicant any illness.’
The GP entry of 20 April 2020 is evidence that the Applicant was suffering over an extended period and that her symptoms became worse in September 2019 which is consistent with the history she gave to Dr Adam Martin that over the six months prior to 2 April 2020 she felt threatened in terms of her job security.
The reality is that the Applicant was suffering for a long time and was straining under the pressure. That pressure increased from September 2019. The final straw was being stood down on 2 April 2020.
The events of 2 April 2020 were the last chapter of a lengthy book or simply part of a continuum of events.
The notion that the reasonable actions of the Respondent on 2 April 2020 predominantly caused the Applicant’s psychological injury is therefore not sustainable.”
The respondent's submissions in reply
In reply, the respondent submits:
“It is correct for the applicant to say that the respondent has asserted that the employment events of 2 April 2020 caused the applicant's psychiatric injury.
The respondent has relied upon evidence put forward by the applicant that that is the case, and that evidence is compelling.
It is the applicant herself who identified ‘not having a role to play’ as the cause of her illness in her email to Susan Gilroy cited] in the respondent's submissions.
It was the applicant who identified the respondent's action in standing her down and not standing down Andrew Wilson as the action which ‘broke’ her. [Account to Dr Martin, cited in the respondent's submissions.]
The applicant correctly identifies the relevant actions, for the purposes of the sec 11 A(1) dispute, as retrenchment and provision of employment benefits. The applicant's response to the issue between the parties regarding the employer's action with respect to retrenchment is, correctly, not to deny that there is an issue raised between the parties on this point, but rather that the respondent should not succeed, because there was in fact no retrenchment of workers.
The actions taken by the respondent fell within action taken or proposed to be taken by or on behalf of the employer with respect to retrenchment. The crisis caused by the pandemic placed at the respondent in a position which, but for the availability of measures discovered by the respondent with legal assistance, would have necessitated significant retrenchments. In order to protect its employees from retrenchment, the respondent took the measure of standing employees down. This action to avoid retrenchment was an action with respect to retrenchment. The fact that, as a result, there were no retrenchments does not disqualify the action taken by the respondent from being so categorised, despite the applicant's assertion to the contrary.
In Heggie, a worker's psychological injury was caused wholly by his being stood down from his employment while his employer conducted an investigation into alleged misconduct. That is, the action took place well before any disciplinary action. In fact, the employer did not discipline the worker. Despite these facts, as Justice Sackville noted at [14B], there was no dispute that the main or principal cause of the worker's psychological injury was action taken by the employer with respect to discipline. That is, it is not essential to establish that disciplinary action was taken before an employer's action can be categorised as action with respect to discipline. In the present case, it is not essential for there to be retrenchment for the respondent's actions to be categorised as action with regard to retrenchment.
The action was also action with respect to the provision of employment benefits, since the action provided access to Commonwealth support for workers stood down, clearly an employment benefit.
The matters referred to by the applicant do not displace the compelling inference that it was the standing down of the applicant and the retention of Andrew W/ilson that was the cause of the applicant's injury.
There is simply no suggestion that the applicant was made psychologically ill by events which preceded the standing down. By sharp contrast, being deprived of work, on the applicant's own assertion, caused the applicant's symptoms.
The applicant did not consult a practitioner for symptoms of emotional distress before the stand-down, but did so afterwards. The identity of the medical practitioner who she saw and referred to in her email to Susan Gilroy has not been identified, but it must be inferred that the applicant gave to that medical practitioner an account of herself similar to that given to Ms Gilroy, namely that ‘not having a role to play’ has brought about her decompensation. Conversely, having a role to play can be seen as having provided the applicant with stimulation and support, notwithstanding disagreements and altercations of the type recounted by the applicant in her statement. Were it not so, the applicant would not have been so despondent at the loss of that role.
There is no doubt that the applicant felt resentment, particularly that she was stood down and Wilson retained, and that fact comes through strongly in the account relied upon in her applicant's submissions. The recounting of a list of grievances to this general practitioner, at a time when the applicant was resentful about what had happened to her, does not lead to the inference that the event that had changed her to a person in need of medical treatment was simply the ‘culmination’ of a series of causes. A much more likely conclusion is that the event was the cause.
It is noted that the applicant concedes that the respondent's actions in standing her down were reasonable.
Accordingly, the only issue between the parties is the question of the cause, or the predominant cause, of the applicant's injury. For the reasons set out in principal submissions and in these submissions, the conclusion ought be that the whole or predominant cause was the respondent's actions in standing down the applicant to avoid retrenchment, an action with respect to retrenchment and also an action with respect to the provision of employment benefits.”
FINDINGS AND REASONS
I have carefully considered all of the submissions.
At the outset, I note that the respondent quite properly concedes that the applicant sustained a psychological injury, consistent with the medical evidence.
Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The onus of proof rests with the respondent to establish the defence under s11A (see Department of Education and Training v Sinclair [2005] NSWCA 465; (2005)).
The two principal issues for determination in my view are causation and s 11A.
The causation issue depends very much on the veracity of the evidence of the applicant, Mr Brown and Mr Elsworth.
I should say at this point that the applicant’s submission that the respondent did not seek to cross-examine her the is without merit, since cross-examination in proceedings in the Commission is very limited. In this case, I had the benefit of detailed statements from applicant, Mr Brown and Mr Elsworth, and I do not consider that cross-examination was necessary given the nature and extent of those statements.
I have set out in some detail the evidence given by all three of them, because it seems to me that the applicant’s principal complaints relate to the various meetings, programmes and activities mentioned by them all.
These must also be viewed in the context of the operations of a large company with an international business. With this in mind, I can understand that detailed notes and records were kept by them all in relation to the running of the business, hence the specific matters raised by the applicant to which Mr Brown and Mr Elsworth responded with equal specificity.
At the outset, what I have gleaned from all this evidence is that, with senior employees such as the applicant, Mr Brown and Mr Elsworth, meetings were inevitably going to be thorough, robust and forthright: that is to be expected from senior members of an organisation.
A workplace is not an isolated hub. For most workers, it can be both challenging and rewarding. Not everyone is going to like everyone else: that is the nature of the environment.
The respondent, like many employers, had in place procedures for grievances and the like which the applicant does not appear to have utilised.
In this context, I have difficulty in accepting is that the behaviour of Mr Brown and Mr Elsworth could be described as bullying for a number of reasons that follow.
“Bullying” as described in the Fair Work Act Australia, (Fair Work) relates to a person or group of people who repeatedly and persistently act unreasonably towards an employee. Unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Examples of bullying include: behaving aggressively, teasing or practical jokes, pressuring someone to behave inappropriately, excluding someone from work-related events or unreasonable work demands.
What is not regarded as bullying is reasonable management action that is carried out in a reasonable way. An employer or manager can make decisions about poor performance, take disciplinary action, and direct and control the way work is carried out.
I accept that the applicant on occasions found some meetings “incredibly frustrating” as she said, but in my view, that is inherent in a senior role in a company where various interested parties’ views may overlap or clash.
Mr Brown conceded that on some occasions he may have spoken firmly and directly to the applicant, but again, as I see it, part of his role as managing director was to balance these competing interests as they related to the overall performance of the company. For example, he said:
“As to Stacey saying I said ‘I was the managing director and I get to say what happens’ that is not who I am and I do not believe I have ever said that to anyone in the organisation, I also did not ‘berate her’ as suggested, however I am sure that I asked direct questions of Stacey as the person responsible for the project.”
I have found the evidence of Mr Elsworth most compelling, particularly his “general comments” at the end of his statement where he said:
“I think that Stacey got it in her mind that Andrew was replacing her, and no matter what was said, she could not be convinced, and she saw the stand down of herself and not Andrew, as confirmation she was right all along. Her concerns were unfounded.
I liked Stacey and we got on well. She was enthusiastic, and by all account was good at the Marketing aspect of her job. I believe Stacey was treated very well, often being granted privileges outside the normal Grace policy. She was permitted to start late and work flexible hours to suit her childcare requirements. Stacey was permitted to work from home often, whilst Grace has a policy of people not working from home (pre-Covid-19}. Stacey was running in a local election and was granted flexible work arrangements for that as well.
Stacey is quite a determined person and when she gets an idea, she sticks with it. In my experience when I had a contrary view to Stacey, she became defensive and stuck to her guns out of principal and I believe she did the same in-her interaction with Steven. She did not appreciate it when Steven had a contrary view to hers. I believe she received support from Steven, and that he went out of his way to help her to be successful in her role. I know they had weekly meetings, and I always thought they had a sound working relationship.”
It seems that the applicant was both liked and respected for her work, not only by Mr Elsworth but also by Mr Brown.
The applicant pleaded that she sustained a psychological injury “due to her ongoing experiences with Mr Brown.” This broad-brush claim then expanded to include the allegations she made to Dr Deng namely:
“bullying from boss - manage director, he re-assigned her role, humiliated her, boss is aggressive towards her, …sick of whole things at work… been like this for long time - basically since she started working there, worse from last Sept when another person was brought in and replaced her role, boss pushing her responsibility towards him, boss gave her no explanation.”
These comments are significantly at odds with the evidence of both Mr Brown and Mr Elsworth, and for reasons already given, I do not accept them.
There is no evidence that Mr Wilson was brought in to replace her: clearly his role was in the same area (marketing) but in a completely different category, principally digital work.
I can accept that there were periods when the applicant’s workload increased for short periods due to staffing changes, but this seems to have been short-lived and according to Mr Brown was fully explained. The applicant acknowledged in her statement that replacement staff did arrive.
Moreover, as I said earlier, in a senior role such as the applicant held, it was to be expected that on occasions, she may have been required to shoulder a bit of extra burden, in line with the responsibilities inherent in her role. In short, I do not accept that the applicant was subjected to “unreasonable work demands” as referred to in Fair Work.
In summary then, I do not accept that the applicant was bullied by Mr Brown as she claimed, nor was she subjected to any unreasonable work demands.
Of greater significance in my view, as the respondent points out, is that “there is no suggestion that her employment challenges were causing the applicant any illness.” There is no evidence of the applicant seeking any medical treatment, or availing herself of the employer’s assistance programme.
The point being, even if I am wrong about the ‘bullying’ allegations, let alone workload issues and other matters to which I have referred, none of these appear to have affected the applicant’s health.
It is this aspect of the evidence that the applicant principally relies upon in her submissions, that is, that throughout her employment she was subjected to behaviour that, taken over that period, caused her to sustain a psychological injury.
What is clear to me on all the evidence is that the whole or predominant cause of the applicant’s psychological condition was the respondent's actions in standing her down to avoid retrenchment. I add that it seems clear also that the failure to stand down Mr Wilson at the same time contributed to her condition. This of course was an action by the employer entirely in its discretion, and not a matter of relevance to the applicant.
As the employer noted in its internal enquiry, the allegations made by the applicant when she was stood down “did not include bullying, but only pertained to the Stand Down Decision.” As she said in her email to Ms Gilroy, it was ‘not having a role to play’ that caused her condition. In addition, as she told Dr Martin, it was the respondent's action in standing her down and not standing down Andrew Wilson which was the action which ‘broke’ her.
Dr Allan’s report carries little weight because he has clearly based his opinion on what the applicant told him, particularly about events prior to her being stood down. The matters she raised, as set out in his first report, such as Mr Brown’s challenging management style, his alleged comments such as ‘suck it up princess’ and the concept of a ‘boy’s club’ are not mentioned anywhere else, let alone in her detailed statement, and seem to me to be inconsistent with the evidence of Mr Brown and Mr Elsworth.
Moreover, as I said earlier, such matters do not appear to have affected the applicant’s health, contrary to her assertions to Dr Deng and Dr Allan, until she was stood down.
In his supplementary report, having been provided with the statements of Mr Steven Brown and Warren Elsworth, Dr Allan noted that there seemed to be agreement as regards the particular events but did not change his opinion, clearly regarding the dispute between the parties as “different perspectives about what had occurred”.
I see the differences as more than a matter of “perspective.” Mr Brown and Mr Elsworth both identified the applicant’s dogged determination to do things her way, her reluctance to be questioned about her methods and her own management style as being both a benefit and a curse, but none of this workplace interaction seems to me to have had any real impact on the applicant until she was stood down.
In other words, it seems to me that these are all matters which the applicant has decided to invoke after she was stood down in further support of her claim.
Even if she did harbour grudges or complaints about her workplace, not uncommon in much of the population, they do not appear to have had any real impact on her functioning throughout her employment with the respondent.
In her submissions, the applicant now “does not dispute that it was reasonable to stand [her] down due to the pandemic crisis.”
The question then becomes was the employer’s action reasonable within the terms of s11A?
The applicant submits that the terms of s11A are specific, and that the standing down of the applicant is not covered by this section.
I reject this submission.
Section 11A clearly refers to action taken “or proposed to be taken” by an employer “with respect to” retrenchment and/or the provision of employment benefits. The action itself need not have taken place.
The term ‘proposed’ in my view must include any number of considerations or ‘proposals.’ In the present case, a proposal to consider alternate methods to avoid retrenchment is an action “with respect to” retrenchment.
Put another way, if the respondent had indeed retrenched the applicant, it would undoubtedly have been regarded as an action with respect to retrenchment.
What the employer clearly set out to do in an unprecedented situation was to try and avoid retrenchment to better assist not only the applicant but also the employer because of the availability of government benefits.
It is indeed arguable as the respondent submits, that those benefits could be construed as the “provision of employment benefits to workers” again because of the unprecedented situation caused by the Coronavirus. The provision of Jobkeeper benefits in my view should be seen as the provision of employment benefits since the funds made available were distributed by and through the employer. Without such benefits, the applicant may well have received no income or limited income depending on her personal circumstances.
I have some sympathy for the applicant and indeed all workers affected by the Covid situation, but I must apply the legislation, and in this case,I am of the view that the provisions of s 11A are satisfied as regards the issue of both retrenchment and the provision of employment benefits.
I accept all the respondent’s submissions on this point, including the authorities to which the respondent referred.
The applicant having now conceded that it was reasonable for her to have been stood down in the circumstances, I therefore accept that the respondent’s actions were reasonable.
It follows then that I have determined that the whole or predominant cause of the applicant’s condition was the respondent's actions in standing her down to avoid retrenchment, an action that was with respect to retrenchment, such that the provisions of s 11A are satisfied.
SUMMARY
The applicant sustained a psychological condition arising out of and in the course of her employment.
In accordance with the provisions of s11A (1) of the 1987 Act, no compensation is payable since the injury was caused by reasonable action proposed to be taken by the employer with respect to retrenchment and the provision of employment benefits.
Deborah Moore
MEMBER
4 March 2021
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