Pateras v State of Victoria
[2015] VCC 1710
•1 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-12-03169
| MARY PATERAS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 October, 4, 5, 6, 9, 10, 11, 12, 13, 17, 18, 19, 20 November 2015 | |
DATE OF JUDGMENT: | 1 December 2015 | |
CASE MAY BE CITED AS: | Pateras v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1710 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Workplace bullying – plaintiff alleges discrimination, victimisation, bullying, humiliation and isolation by various employees of the defendant in the course of her employment as a teacher at a State Secondary College – negligence and breach of statutory duty – pain and suffering damages and economic loss flowing from breach of duty of care – injuries include Adjustment Disorder with Anxiety and Depressed Mood and various physical sequelae – foreseeability of psychiatric injury – content of the duty of care – nature and extent of duty of care owed by school authorities – whether breach of duty
Legislation Cited: Accident Compensation Act 1985; Occupational Health and Safety Act 2004
Cases Cited:Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Hatton v Sutherland [2002] 2 All ER 1; Doulis v State of Victoria [2014] VSC 395; Larner v George Weston Foods Ltd [2014] VSCA 62; Rawlings v Rawlings [2015] VSC 171; Woolworths Ltd v Perrins [2015] QCA 207; Hegarty v Queensland Ambulance Service [2007] QCA 366; Govic v Boral Australian Gypsum Ltd [2015] VSCA 130;
Judgment: Judgment for the Defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendant | Ms M A Hartley QC with Mr R Kumar | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Pateras, has taught at the Galvin Park Secondary College (“the College”) since 1988 and from about 2000 as a careers teacher. She was an experienced and commended teacher. She claims various teachers at the College, in particular the principal, Mr Peter Newland, and others in the Department of Education and Early Childhood Development (“DEECD”) discriminated against her, subjected her to victimisation, bullying, humiliation and isolation in the course of her work duties and then failed to provide her with appropriate and timely measures to return her to her work. Her complaints focus on a meeting with Mr Newland on 22 October 2007, concerning her appointment to a teaching position known as a ‘Leading Teacher 1 - Pathways and Transition’ (“LT1”).
2 She has not worked since October 2007 although there were a number of return to work efforts made in 2008. She retired in December 2009 on the grounds of ill health. Ms Pateras represented herself throughout the trial.
3 Her Statement of Claim is a somewhat difficult document to interpret but the cause of action lies in negligence and breach of statutory duty. The negligence is alleged against various teachers at the College, and others employed by the defendant. The acts and omissions said to constitute a breach of duty are particularised against each of those persons in the Statement of Claim.[1] The breach of statutory duty is also pleaded.[2]
[1]See paragraph 33 of the Further Amended Statement of Claim – Plaintiff’s Court Book (“PCB”), document 10
[2]See paragraph 10 of the Further Amended Statement of Claim – PCB, document 10
The pleadings
4 Ms Pateras’ Statement of Claim is somewhat difficult to interpret, but includes an allegation that she was working pursuant to a contract of employment.[3] However, no breach of contract of employment was pleaded. Thereafter follows a range of factual allegations. From paragraph 30, Ms Pateras alleges that she suffered injury, including:
[3]Paragraph 1(c) of the Further Amended Statement of Claim
· Severe Adjustment Disorder with Anxiety and Depressed Mood
· Severe bruxism
· Temporomandibular Disorder
· Alopecia Aretha
· Irritable Bowel Syndrome.
as a result of the defendant’s negligence, and breach of statutory duty.
5 From the Statement of Claim, and the evidence adduced, much of Ms Pateras’ complaint concerns what occurred in the course of a meeting with the principal, Mr Newland, on 22 October 2007, although Ms Pateras also makes allegations in relation to conduct of various persons which occurred before that time, and acts and omissions which occurred subsequently.
6 The allegations against the various employees, servants or agents of the defendant are as follows:
(1) Acts or omissions relating to Mr Newland:
(a)Failing to provide a safe place and system of work.
(b)Failing to prevent victimisation and bullying by inconsistent action when compared to others.
(c)Discriminating against the plaintiff.
(d)Victimising the plaintiff.
(e)Denying a promotion without just cause.
(f)Bullying and humiliating the plaintiff.
(g)Isolating the plaintiff from other employees.
(h)Failing to put appropriate measures in place to ensure a safe return to work for the plaintiff given her vulnerable psychological state.
(2)Acts or omissions relating to Mr Mooney:
(i) Discriminating against the plaintiff.
(j) Failing to manage the plaintiff’s performance reviews adequately.
(3)Acts or omissions relating to Ms Kennedy:
(k)Failing to return the plaintiff’s telephone calls after the plaintiff left three distressing messages.
(l) Failing to provide the plaintiff with adequate support.
(m)Failing to attend conciliation conferences at the Accident Compensation Conciliation Services (“ACCS”) as requested by the plaintiff.
(4)Acts or omissions relating to Ms Conquest:
(n)Failing to investigate the plaintiff’s complaints adequately.
(o)Failing to establish the precise nature of the plaintiff’s complaints.
(p)Failing to afford procedural fairness and interview the plaintiff.
(q)Failing to keep the plaintiff informed of the progress of the investigation.
(r)Failing to undertake the investigation in a timely manner and follow the defendant’s guidelines for managing complaints, unsatisfactory performance and serious misconduct in relation to Principles 2006.
(5)Acts or omissions relating to Ms Henderson:
(s)Failing to respond to the plaintiff’s complaints about the ultimatum in a timely manner and following the defendant’s policy in handling complaints of government registered teachers.
(t)Failing to respond adequately or at all to the plaintiff’s complaints about Mr Newland’s conduct on 29 January 2008.
(u)Failing to ensure that a mediation between the plaintiff and
Mr Newland took place.
(v)Failing to prevent the situation from escalating.
(w)Failing to ensure the provisions of natural justice were afforded to the plaintiff.
(x)Failing to investigate the precise nature of the complaints and follow up on complaints with appropriate intervention as specified in the defendant’s guidelines for managing complaints, and serious misconduct in relation to Principles 2006.
(6)Acts or omissions relating to Ms Gigatsis-Halge:
(y)Failing to assist the plaintiff to return to work as her return to work officer and/or in her capacity as assistant principal.
(z)Failing to participate in conciliation conferences with the ACCS as requested by the plaintiff and in accordance with the defendant’s WorkCover Management Kit and with the provisions of the Accident Compensation Act 1985 (“the Act”).
(aa)Failing to formally contact the plaintiff until some eighteen months into her claim and intervene and provide support in the critical early stages of this matter as would be expected from a reasonable person in her position.
(7)Acts or omissions relating to Ms Ryan:
(bb)Failing to assist the plaintiff to return to work in her capacity as acting principal on or about June 2009.
(cc)Failing to respond at all to the adverse, neglectful and harmful behaviours and omissions of the College management insofar as they relate to the plaintiff.
(dd)Failing to provide the plaintiff with a reference in an effort to assist the plaintiff in securing alternative employment as requested by the plaintiff in 2007.
(ee)Failing to amend her letter dated 23 October 2009 to reflect the true reason for the plaintiff’s retirement.
(8)Acts or omissions relating to Mr Dawkins:
(ff)Failing, either by himself or by directing another appropriate officer to adequately address or to adequately respond to the complaints of the plaintiff as set forth in email of 5 February 2008.[4]
[4]This last particular was amended after discussion with Ms Pateras
7 As a result of these breaches, Ms Pateras claims general damages, and loss of income and earning capacity.
8 Details of the defendant’s response to this Amended Statement of Claim are set forth in its Amended Defence, dated 7 August 2015. Without going into precise detail, generally, the allegations of breach of duty of care are denied.
The evidence
9 Ms Pateras’ evidence was given by her adoption of her Witness Statement dated 19 August 2015.[5] She commenced work at the College in 1988 as a student teacher. She retired due to ill health in December 2009. Mr Newland was appointed principal in 2003. Ms Pateras filled a number of roles within the College in addition to her teaching duties.
[5]Exhibit A
10 Before 2006, Ms Pateras’ absences from the College were minimal. Between February 2006 and October 2007, she took twelve weeks certified sick leave/carer’s leave. She was not suffering any psychiatric illness, although had counselling in relation to her marriage separation. In 2007, Ms Gigatsis-Halge was the assistant principal and Mr Mooney was the senior years’ manager.
Ms Pateras believed that in March 2007, Mr Heaney raised concerns about her absences from the College. Ms Pateras alleged that another teacher, Peggy Theodosis, was underperforming, and a support group was established for her. No such support group was established for Ms Pateras.
11 Ms Pateras’ interpersonal conflict with Mr Newland commenced in June 2007. He sent her an email relating to her absences. She explained them to him and he told her to forget about the email. She had an argument with Mr Mooney in August 2007 about her taking time off. She reported it to her doctor.
Mr Newland said he would speak to Mr Mooney.
12 In early October 2007, Ms Pateras applied for the LT1 position. She submitted a written application and attended an interview on 17 October 2007. She attended a second interview on 22 October 2007. She was told by the selection panel they wanted her to elaborate on how her role would ‘interface’ with other leading teacher positions and her teaching duties. The interview panel comprised Mr Newland, the principal, and two other teachers, Ms Javni and
Ms Armstrong. According to Ms Pateras’ statement:
“I was asked five questions by Mr Newland while other panel members took notes and did not say anything. In the first question Mr Newland expressed an element of surprise that I had applied for the position at all. In the last question Mr Newland asked about the stagnation in my role over the past twelve to eighteen months. Both these questions put me ill at ease. I felt that the questions were alluding to the amount of leave I had taken in 2006/2007 and my personal circumstances. I found this part of the interview difficult. I became upset and told the panel I was not prepared to answer any more questions and that I would accept their decision in regards to the LT1 position. … .”[6]
[6]Exhibit A – paragraph [14]
13 According to Ms Pateras, Mr Newland approached her later that day and offered her the LT1 position on behalf of the selection panel. She said she thanked him and accepted the position. On three occasions she claims Mr Newland then told her that he would not accept her ‘acceptance’ of the position as it was not in the best interest of the College. Despite this, she continued to accept the position. He suggested that she carefully consider the issue over the next
24 hours and come back with a different answer.
14 Ms Pateras was distressed and immediately went to see her general practitioner, Dr Milone. She said she suffered a panic attack.
15 She ceased work on 22 October 2007. She telephoned Ms Gigatsis-Halge, the assistant principal, and Ms Tracey Morrison, HR manager, advising that her doctor had completed a WorkCover form. A WorkCover claim was submitted on 10 December 2007 and accepted in March 2008.
16 Ms Pateras believes the selection panel consulted Mr Mooney, in particular about the argument of August 2007. He was Ms Pateras’ performance review appraiser. His duties in that regard involved addressing any underperformance by Ms Pateras. She said Mr Newland had an obligation to allow her to be heard as to Mr Mooney’s allegations and to respond to them. No opportunity nor support was provided in that regard. Mr Mooney failed to complete her performance reviews adequately in 2005 and 2007.
17 As a result of Mr Newland’s failure to acknowledge her acceptance of the LT1 position, Ms Pateras became very distressed and unable to sleep.
18 On 22 October 2007, Mr Newland sent a reminder email to staff about a forum at the College the next day. Early in the morning of 23 October 2007,
Ms Pateras responded, saying she would be an apology. Her email further said:
“Following the bizarre discussion that occurred after the follow-up interview by the panel – I am at a complete loss in believing, that my contributions to this forum or to the overall organisation will have any impact on improving organisational health – when my own self-worth as a teacher and leader at the College was completely shattered by your comments. I attach my response to your ‘offer’ in the above document.”[7]
[7]Part of exhibit 1
19 Attached to that email was a “letter” addressed to Mr Newland and the other members of the panel.[8] In part, the letter read:
“I left the interview – feeling personally attacked and proceeded to the careers office and assisted a number of students with work experience enquiries – I was heading to my car for a folder when Peter Newland caught me in the corridor … and mentioned something about the panel – I replied that I was no longer going to face the panel and would accept the panel’s decision – his response was – ‘Don’t you want to know the outcome’? – to which I replied ‘Yes’ – we proceeded to his office – where he offered me the position – which I accepted. At this point in time he questioned my acceptance of the offer based on his inability to accept my commitment to the position offered.
I continued to be concerned and disillusioned about Peter Newland’s continued questioning of my commitment and whilst I accept the position, Peter insisted that I reflect and consider the offer, after three separate times of me telling him I was keen to accept the position, he refused to accept my stance and has asked me to consider the offer overnight.”
[8]Part of exhibit 1
20 Ms Pateras said she could not understand why the panel had failed to acknowledge her acceptance of the position. She felt this placed her in an intolerable position and she was unable to accept the offer.
21 In the final paragraph of her letter, Ms Pateras said:
“It is because of all these circumstances that I feel forced into the position of being unable to accept the offer. I wish the successful applicant the best and will assist in any capacity I am able to support the transition into this position.”
22 Later, on 23 October 2007, Mr Newland sent an email to Ms Pateras, as follows:
“Dear Mary
Where to start, perhaps in stating the obvious, that there remains much to talk about! You have taken offence at my approach and for this I am sorry, in trying to work through the process I have caused you great hurt and upset. There will be no resolution to the appointment until we have has (sic) a discussion. I know that I have eroded any goodwill you had towards me but I hope you can see this state of play is not good for you, me or the school. I know that your health is such that you will not be at school this week. Could you please consider sitting down with me at a time that is convenient to us both next week? I would be okay if you wish to bring someone along with you as support rather than meeting me alone. I would appreciate this very much Mary, could you please reply as soon as possible.
Peter.”[9]
[9]Defendant’s Court Book (“DCB”) 322 – 323
23 Following this, Ms Pateras said she rang and left a message on both
Mr Newland’s mobile and College telephones. She said she needed time out and that there would be no resolution until he granted her promotion. Various emails passed between herself and Mr Newland. She said there was no point in seeking to clarify what the panel was saying, that was not the issue. The issue was his failure to accept her acceptance of the LT1 position.
24 Between 23 and 31 October 2007, Ms Pateras said she contacted eight people from the College and the Department of Education trying to find resolution of the matter. They were Leanne Gigatsis-Halge (assistant principal), Christopher Mooney (senior years manager), Beverley Teresse (registrar – Merit Protection Board (MPB)), Kath Kennedy (senior performance and development officer), Tracey Morrison (HR manager), Silvia Leber (employee health unit), Alison Armstrong and Jan Javni (panel members and teachers).
25 Ms Pateras was emailed the panel report of 5 November 2007, but there was no job offer included. Other teachers at the College who had successfully obtained leading teacher positions in 2008 received job offers in the form of a letter/contract. It was usual for the offer to be left open for seven days.
26 Ms Pateras made a complaint to Mr New (acting regional director – Western Metropolitan Region - DEECD) on 7 November 2007[10]. A response was received on 24 December 2007 advising her that an investigation would be conducted by Ms Sue Conquest (senior education officer). In the meantime, the LT1 position to which Ms Pateras had applied was re-advertised, and
Mr John Hart was appointed to the position from the beginning of the 2008 school year.
[10]Exhibit 3
27 According to Ms Pateras, she said Mr Newland knew that she was physically and mentally unwell during 2007 and that should have put him and the DEECD on notice that she was vulnerable and at risk of sustaining psychological injury from interpersonal conflict.
28 Ms Pateras returned to work on 16 January 2008. She was approached by
Ms Gigatsis-Halge and advised she should not be on the College premises or working, given she had a WorkCover claim. Ms Gigatsis-Halge offered assistance. She was the College’s return to work officer.
29 In late January 2008, Ms Pateras telephoned Ms Conquest, seeking clarification of matters. Ms Conquest did not get back to her. She was certified as being fit to return to work on 29 January 2008 by Dr Milone. She attended a staff meeting but was not welcomed back by Mr Newland. In the course of giving a presentation, she had a panic attack, left the College and went to see her psychologist. She could not attend work the following day. She continued to communicate with students via her mobile telephone, but that was disconnected.
30 Ms Pateras made a complaint to Ms Henderson of the Merit Protection Board (“MPB”) about Mr Newland’s discrimination. Ms Henderson ignored her complaints, which were not investigated nor addressed.
31 On 5 February 2008, Ms Pateras emailed Mr Dawkins, the secretary of the DEECD, expressing her concerns about the lack of action by the DEECD. She said her inability to return to work was as a result of the inaction by the DEECD and its employees.
32 On 11 February 2008, Ms Pateras arrived at the College to have lunch with colleagues. She sought a meeting with Mr Newland but he said he was busy. He insisted she leave the College premises. Mr Newland provided her with the documentation she requested. She was upset at being denied access to the College.
33 On 19 February 2008, Ms Pateras requested, via email with Mr Newland, to come to the College to collect personal items. That was arranged after hours and on a Sunday. She believed this was done to isolate her.
34 On 23 February 2008, Ms Pateras was advised the investigation of her complaint against Mr Newland by Ms Henderson had not been substantiated. She lodged an appeal, and after a hearing on 16 May 2008, the investigation was found to have been flawed. A new investigation was conducted by Julie Baker Smith & Associates. As a result of this further investigation, Ms Pateras was formally offered the position of LT1 and accepted it on 15 September 2008. It was agreed Ms Pateras undertake a gradual return to work program from
8 October 2008. Upon her return to work, Mr Newland asked her to complete Portfolio Partnership Programs (PPPs)[11]. This was an impossible task, even though she stayed back from 3.30pm to 6.30pm trying to complete them. She had a panic attack, with shortness of breath, and had to take medication. She was unable to return to work the next day.
[11]A program to help students choose career paths
35 In 2008, with the assistance of a rehabilitation provider, she attempted to work in various other areas of employment, including at a restaurant, as a cleaner and sales representative. She was unable to continue in those positions.
36 In January 2009, as a result of the failure by the College to return personal belongings, she said she suffered a psychotic episode and was taken to the Melbourne Hospital. She was severely depressed. She wrote numerous emails to other staff members about her plight, and her emails were restricted. There were complaints about her emails.
37 In June 2009, Ms Pateras was contacted by Ms Gigatsis-Halge, about teaching work for the 2010 school year. She hoped that there would be a return to work but this did not occur.
38 In 2009, Ms Pateras sought assistance in relation to a farewell from the College and with her long service leave entitlements. Ms Gigatsis-Halge did not get back to her. The matters relating to her long service leave were resolved at a VCAT hearing in 2011.
39 Ms Pateras alleged she was bullied, victimised, ridiculed and demeaned without cause, as a result of which she suffered a psychiatric injury. The DEECD knew that if the interpersonal conflict was not mediated at an early stage, she would be at risk of suffering psychological injury. Other staff members on WorkCover were appointed a return to work officer. These included Peter Stone, Frank Van’t Wout, Sheryl Desailly and Shirleen Anderson. They were contacted on a regular basis and supported with a gradual return to work program.
40 As a result of the injury, Ms Pateras says she continues to suffer an Adjustment Disorder. Her social life is affected and she has become reclusive. Her relationship with her partner, Peter Stone, is affected. She has low self-esteem and lacks confidence. She has had extensive treatment from a psychiatrist,
Dr Mohr, for the last eight years. She takes various medication. She suffers Temporomandibular Disorder, which causes severe bruxism, which has required extensive dental treatment. She has also suffered stress-related hair loss. She has suffered financial hardship.
41 In 2001, Ms Pateras was awarded the Centenary Medal for services to education, presented by the Prime Minister. Her work had been recognised as best practice and to this day remains on the DEECD website.
42 Ms Pateras was cross-examined. She accepted she made four allegations arising from the meeting with Mr Newland on 22 October 2007. These were:
· Mr Newland, on three occasions, refused to accept her acceptance of the position.
· He told her that it was not in the best interests of the College that she accept the position. He said this on three occasions.
· That she should come back to him with a different answer within 24 hours. He said this on three occasions.
· That he was aggressive in the course of the meeting. She complained to a number of people about this.
43 Ms Pateras was taken to her letter attached to the email of 23 October 2007.[12] There was nothing in that letter to suggest any aggression on Mr Newland’s part. She was taken to the final paragraph, which said she was unable to accept the offer. She wrote that because that was what he told her to do. She respected him as he was her boss.
[12]Exhibit 1
44 There was nothing about aggression referred to in various other documents in the initial investigative process.
45 In relation to what occurred at the meeting of 22 October 2007, Ms Hartley put various matters to Ms Pateras:
MS HARTLEY:
Q:“I want to suggest to you, Ms Pateras, that what happened on 22 October was that Mr Newland told you that you were the successful applicant for the leading teacher role. I think that is agreed?‑‑‑
A:Yes.
Q:That he wanted to speak with you about certain aspects of the role and the expectations for that role?‑‑‑
A:No.
Q:That you didn’t want to talk about those matters and became upset?‑‑‑
A:No.
Q:That he then suggested that you and he could continue the discussion on the next day and that would give you a chance to think about the role overnight?‑‑‑
A:No.
Q:That he didn’t tell you anything about a view that the acceptance of the job was not in the best interests of the school?‑‑‑
A:That is not correct.
Q:He didn’t say that he insisted that you not accept the position?‑‑‑
A:That is not correct.
Q:He didn’t put pressure on you to consider your acceptance?‑‑‑
A:He did.
Q:Just bear with me a moment. Sorry, I have got it. It is all right. I also suggest to you, Ms Henderson (sic), that on the day when you went into Mr Newland’s office, he explained to you that the panel had determined that you met the criteria for the job and that we, meaning the panel, was able to make you a job offer?‑‑‑
A:No.
Q:That you accepted that?‑‑‑
A:I accepted the job offer Mr Newland made me.
Q:He then went on to say something like this: “That’s fine, but I want to take the opportunity to talk to you about the job. In particular, its relation to the new leading teacher positions”?‑‑‑
A:No.
Q:That you indicated you were not in a state to do that and you weren’t prepared to do that and you queried why he would do that if she had said, ‘If she had the job, wasn’t that enough?’ Perhaps I should just put that to you again because it wasn’t clear.”
HIS HONOUR:
“And put it one step at a time, I think.”
MS HARTLEY:
Q:“Yes, okay, Your Honour. (To witness) You indicated to him that you weren’t in a state to do that, namely, to have a discussion about the job and its relation to the new leading teacher positions?‑‑‑
A:No.
Q:And that you told him you weren’t prepared to do that, namely, to have a discussion about the job and its relation to the new leading teacher positions?‑‑‑
A:No.
Q:And you queried why Mr Henderson would do that on the basis that if you ‑ ‑ ‑.”
HIS HONOUR:
Q:“Mr Henderson? Mr Newland.”
MS HARTLEY:
Q:“I am sorry. You queried why Mr Newland would do that. If you had the job, wasn’t that enough?‑‑‑
A:I queried that, yes.
Q:He said all he wanted to do was sit down with you and explain how the job would interface now and the shift in its focus and its impact on teachers in their classroom?‑‑‑
A:No, those matters were discussed in the interview prior to the meeting.
Q:You say not at all in the meeting with Mr Newland?‑‑‑
A:Absolutely.
Q:And you indicated that you didn’t believe you were able to do that, namely, have the discussion, and he then says what he was really saying was – just bear with me a sec – perhaps I should just read his account and you can consider it. ‘Mary indicated she didn’t believe she was able to do that.”[13]
[13]T199, L29 – T201, L27
…
MS HARTLEY: (To witness)
Q:“So where I was reading from, Ms Pateras, was about two-thirds of the way down a statement that says: ‘Mary indicated she didn’t believe she was able to do that and what was I really saying. Do I have the job?’ I suggest to you that that is one of the matters that was conveyed by you to Mr Newland in that meeting?‑‑‑
A:Yes, I asked him three times, ‘Do I have the job?’ and he said, ‘Yes’.
Q:Did you say you didn’t believe you were able to have a discussion about how the job would interface?‑‑‑
A:No.
Q:And the shift in focus?‑‑‑
A:No.
Q:He then said something along the lines: ‘Yes, Mary, we are making you a job offer, but can we sit down for 10 minutes to discuss what is involved in the job?’ And you indicated you were unable to do that at the time?‑‑‑
A:No, that’s not what happened.
Q:He then said: ‘That’s fine. Why don’t we agree to meet in 24 hours and talk about that then? And in the meantime I asked her to think about this new job and how it would interrelate to the new set of leading teacher positions coming into play in 2008’?‑‑‑
A:Absolutely not.
Q:And you then said that was okay, ‘Let’s do that,’ and left? ‑‑‑
A:Absolutely not.
Q:On 23 October - so perhaps just bear with me a moment – do you allow for the possibility that you understood[14] what was being asked of you in that conversation?‑‑‑
[14]Although the transcript records ”understood”, in the context of the question, the word should be “misunderstood”.
A:No.
Q:Do you accept that you came into the discussion with your mind distracted on matters to do with the students that you were with at the time Mr Newland interrupted you?‑‑‑
A:No, I was not distracted with those matters.
Q:Were you unwell on the day of 22 October?‑‑‑
A:Only with women’s problems.
Q:So you weren’t emotionally unwell on that day at the time of the interview?‑‑‑
A:No, no.
Q:I suggest to you that the matter, i.e. your acceptance of the job and what the job involved, was not concluded at the discussion in that you both agreed that the idea was that it would be talked about again in 24 hours?‑‑‑
A:No.
Q:And that left you with the option of discussing any grievances you had?‑‑‑
A:No.
Q:You yourself knew that you needed to give a response in relation to the offer, didn’t you?‑‑‑
A:Yes, I did.
Q:Doesn’t that suggest that the discussion was not concluded?‑‑‑
A:No, it doesn’t.
Q:You write on 23 October in the morning that you are not accepting the job?‑‑‑
A:I wrote that I was forced - I felt forced not – I felt forced to decline it, in effect.
Q:But if the matter had been concluded in the discussion you had with Mr Newland, there was no need for you to write anything, was there, on the morning after?‑‑‑
A:Yes, there was because Mr Newland refused my acceptance and told me to come back in 24 hours with a different answer.
Q:So you are saying that you believed you had to confirm the rejection?‑‑‑
A:Yes, I did.
Q:As at 22 or 23 October, you had every opportunity to discuss any grievances you had about the manner of the discussion between you and Mr Newland, didn’t you?‑‑‑
A:Yes, I did.
Q:And you had every opportunity to discuss any grievances you had about what had been discussed in that?‑‑‑
A:Yes, I did.
Q:But apart from what you wrote on 23 October in the email that we considered earlier, you didn’t pursue any opportunity to discuss your grievances with Mr Newland or the selection committee on 23 October?‑‑‑
A:Yes, I did. I left two messages for Mr Newland on his mobile phone in accordance with an email he sent me on 23 October.”[15]
[15]T202, L9 – T204, L11
46 Ms Pateras was then taken to a number of emails passing between herself and Mr Newland shortly after the meeting.[16] Those emails indicated Mr Newland wanted to have a discussion about her role as a leading teacher and it was suggested she refused to have that discussion. Ms Pateras said she knew what the role meant as she had written the guidelines. She disagreed it was reasonable for her to contact Mr Newland to discuss that with him. She said he ought to have sent her the formal letter of offer, which was what she wanted. She did not agree it was reasonable for the panel and Mr Newland to want to talk about the relationship between her role as LT1 and her teaching duties, as that had been discussed in the previous interview.
[16]PCB Tab 85 – pages 29 – 25
47 Ms Pateras’ position was that she would not have any further discussion with Mr Newland until he granted her the promotion which the panel had approved. The panel members signed a form indicating she was the successful applicant. Any discussions concerning the position she was to be promoted to had been canvassed in the meetings.
48 Ms Pateras was taken to the statement of Ms Javni.[17] She disagreed that in the interview, she did not come across well and appeared underprepared.
[17]DCB 207 – 210
49 Ms Pateras agreed that one of her referees was Christopher Mooney (senior years’ manager), John Hart, the other applicant, and Peter Krauz. An interview was held with Mr Mooney.
50 Ms Pateras agreed that she was asked five questions by the panel. She agreed she spoke about her personal life and became upset, and that the interview ended with her in an upset state. She agreed with Ms Javni that Mr Newland asked a question to the effect that the panel or her referees were surprised she had applied for the position.
51 Ms Pateras agreed that the purpose of the follow-up interview was to cover her vision over the next three years in the new position. She agreed with Ms Javni that in response to why she wanted the position, she said she was committed and passionate. She agreed with Ms Javni that the panel decided to offer her the position. She agreed that because she was upset, the panel did not want to put any pressure on her. She agreed that Peter Newland would speak to her alone so that she would be not under any undue stress, and that he would offer her the position and outline how it would fit into other leading teacher roles and the changed leadership structure of the College. She agreed that all candidates who filled the new roles were offered 24 hours to think about the application, but in her case, Ms Pateras said that she was told by Mr Newland to come back with a different answer.
52 Ms Pateras said that every other applicant for the LT1 positions were sent a formal offer but she was not. She saw no purpose in any discussion with
Mr Newland until he made her the formal offer. She said she was distressed and anxious at the time.
53 It was put to Ms Pateras that on three occasions via email, Mr Newland had sought to have a meeting with her and that his attempts to contact her were perfectly appropriate. She disagreed. She accepted it was reasonable for him to have a discussion with her about the new senior teacher positions, but that was not what occurred. It was suggested to her that she should have written to him and requested the formal offer. She responded by saying: “Why didn’t he make the formal offer to [her]?”
54 Within a short time, 7 November 2007, she lodged a “Grievance Application” with the MPB. Ms Pateras disagreed that she was being irrational and that, with sensible discussion, the difficulty could have been resolved in November or December 2007. It was suggested to her she made no effort to rectify the situation and simply became intransigent.
55 Ms Pateras submitted a WorkCover Claim Form on 12 December 2007.[18]
[18]DCB 266 – 7
56 Shortly prior to the first interview of 17 October 2007, she told two people that she was unwell. The panel offered to reschedule the meeting but she did not accept the offer and said she was able to continue with the interview.
57 Ms Pateras denied that in the period leading up to the interview, her position had stagnated and that her performance had not been as good as eighteen months before.
58 Ms Pateras denied that the first interview did not go well. She had some difficulty with the new names of some of the teaching positions. These were relatively minor. She admitted to being a little nervous in the first interview but was happy to proceed. She was offered the opportunity to reschedule it but refused, as she did not feel it was necessary. She rejected the view of
Ms Javni[19] that the second interview was called because it was not clear she understood what was expected of her in the role as a leading teacher.
[19]DCB 183
59 It was put to her that she did not handle the second interview well. She disagreed with that and said she left, quoting Mr Newland: “Despite rumours about me, I will commit to this position for the next three years.”[20] She denied this was having a go at Mr Newland for having only a contingent commitment to the College. His questions were unreasonable and she became distressed and upset.
[20]T317, L15
60 At the second interview, which was a Monday, 22 October 2007, she was stressed and anxious, but felt capable of completing the interview. She said she felt personally attacked. She agreed she could have asked for the interview to be rescheduled but there was no need. Her health and personal relationships were raised by her, not the interview panel. That occurred in response to the question about there being some surprise that she had applied for the position. She had had a marriage breakup in 2006 or 2007, and there was the possibility of moving from the Werribee area.
61 The evidence to be given by Mr Newland was put to Ms Pateras.[21] She agreed she was asked about the stagnation in her role over the past twelve to eighteen months and that that question had been prompted by information obtained from Mr Mooney, her referee. She said that question should not have been asked, as there had been no previous questioning of her role. She had just given her vision for the next years. It was put to her that that question was not unreasonable, in particular, given that she had seven weeks or so of sick leave during the 2007 school year. She said that was a very different issue.
[21]PCB Tab 109
62 Ms Pateras was asked whether she communicated with Mr Newland to ask for the letter of offer. She responded that she asked him to accept her acceptance. When asked why she did not write back to say she accepted the offer, she said she was distressed.
63 She thought Mr Mooney had given the panel information which was unrelated to her application because of a previous argument she had had with him. If he was of the view that she had stagnated in her role, he should have taken that up with her rather than the panel.
64 Ms Pateras was taken to the sick leave which she had taken during the 2007 year.[22] Those records showed that she had some thirty days of sick leave during the school terms of 2007. The sick leave was in part to look after her son, who had glandular fever, and in part because she had gynaecological problems.
[22]PCB Tab 97 – exhibit 5 – medical certificates and records
65 Ms Pateras said Mr Newland forced her to come out of hours or on the weekend to collect her belongings. However, that did not accord with emails passing back and forth in February 2008.[23]
[23]PCB Tab 85, page 18 – 19
66 Ms Pateras said she did want to have a mediation to resolve the matter and asked for one through the Employee Health Unit, but her call was not returned. She also asked for a mediation through various members of the Western Region, DEECD.
67 She went for treatment to Dr Janette Mohr, commencing from August 2008. In the history, she said she had no past psychiatric history.[24] Yet, in 2003, on a number of occasions, she was treated for depression by Dr Milone, her general practitioner. In response, she said that she told Dr Mohr that she had “no ongoing” psychiatric history. Further, in 2006 and 2007, she was treated for depressive symptoms and stress following the break-up of her marriage, and its effect upon the relationship with her children. She was treated by Dr Muller-Robbie, a psychiatrist, and Ms Garfi, psychologist, on a number of occasions.
[24]PCB Tab 15
68 She returned to work on 16 January 2008 for a short time. On 29 January 2008, she returned to work. She gave notice of her intention on 25 January 2008, which was the Friday before the long weekend. She claimed this was a genuine attempt to return to work and to resume her duties. Yet, according to emails passing back and forth with Tracey Morrison, personnel manager at the College, she enquired about whether a return to work on the first day of term, that is 29 January 2008, would ensure she had extended leave entitlements available. In response, Ms Pateras said part of the reason for the return to work was to secure her leave entitlements, and part was to make a genuine attempt to resume her duties. Later that day, she said she had a panic attack and left work, seeking medical treatment. She was taken to Dr Milone’s clinical notes, which did not show that she gave a history of a panic attack. The note of the
26 January 2008 recorded “wants to return to work (not to lose holiday pay)”[25].
[25]Part of exhibit W
69 In relation to the first interview on 17 October 2007, Ms Pateras accepted that she was offered to have it rescheduled but she felt able to continue the interview. In relation to the second interview, that was rescheduled to enable her to attend a medical appointment. She said she was fine in the second interview and capable of performing.
70 It was put to her that the other candidates for senior positions received a letter but that was because they had had a discussion with Mr Newland, which she had refused to do. She disagreed.
71 Ms Pateras made no complaint to the College about her work being too stressful. She never complained about being overworked before 22 October 2007. She said she complained to Mr Mooney in the heated discussion that she had with him.
72 Mr Newland readvertised the LT1 position on 7 December 2007 and subsequently appointed Mr John Hart. Ms Pateras said he should have waited for the outcome of the investigation by the officers of the Western Metropolitan Region.
73 On 11 February 2008, Ms Pateras went to the College and telephoned
Mr Newland on the way to say she was coming. She said she had previously emailed Ms Morrison. The purpose of the visit was to speak with Mr Newland. The MPB recommended it. She wanted a copy of the interview notes from the panel. She also had arranged to have lunch with friends. It was put to her that she told Mr Newland she would call back within fifteen minutes when she was on the way. She denied this, and said that she told him she was fifteen minutes away. She said he told her to “get off the premises”. It was suggested that he said to her “Please leave because you have been certified as unfit for work”. She disagreed with this. He arranged to meet her later that day at a café.
74 Ms Pateras was asked about her complaint to the various education authorities. She made a number of telephone calls on 24 or 25 October 2007 to various persons within the Education Department. Her first letter was 7 November 2007 to Mr New.[26] The letter indicated that the matter was urgent. She said she would have expected Mr New to commence an informal process; that is get the parties together to try to resolve the issues, and then undertake a formal investigation.
[26]Exhibit 3 – DCB 332 – 335
75 On 7 November 2007, Ms Pateras put in a “grievance” to the MPB. That body determined it did not have jurisdiction.
76 Ms Henderson took over from Mr New the investigation of the complaint on
10 December 2007 and wrote to Ms Pateras on 10 December 2007.[27] On
19 December 2007, Ms Conquest was appointed to make an investigation and she wrote to Ms Pateras on 19 December 2007.[28] The letter invited Ms Pateras to speak to her in relation to the complaint and provided a contact number.
[27]Exhibit 7 – DCB 351
[28]Exhibit 8 – DCB 356
77 On 14 December 2007, Ms Henderson wrote to Mr Newland asking for his response to the complaint within three working days.[29]
[29]Exhibit 9 – DCB 355
78 Ms Pateras was taken to her handwritten notes.[30] In fact, the notes were made on 21 January 2008, and not 21 December 2007. The note records that
Ms Kennedy would be the WorkCover officer if the WorkCover claim was accepted (emphasis added). The note also records “that he denied me the opportunity to apply for other leading teacher positions at the school”.[31]
Ms Pateras said that he did not say that directly to her but that was the way he made her feel.
[30]DCB 366
[31]DCB 367
79 According to a handwritten note of Ms Conquest,[32] recorded on 21 January 2008, Ms Conquest “asked if she wanted to come in and meet with me – no”. Despite what the note recorded, Ms Pateras said that it was her who wanted to meet with Ms Conquest and Ms Conquest refused.
[32]DCB 373
80 Ms Pateras accepted it was reasonable for Ms Conquest to have the Christmas period off and then to return to the task on 21 January 2008.
81 On 4 February 2008, Ms Pateras wrote to Ms Henderson to complain.[33]
[33]DCB 404 – 5
82 On 5 February 2008, she emailed Mr Peter Dawkins complaining of the inaction of the DEECD.[34] In that email, she said:
“Since the initial lodgement of my complaint I have received notification that the matter was to be investigated and have never been informed of the status of the investigation despite leaving distressed messages within the various departments that the above personnel are in charge of, including the Employee Health Unit.”
[34]Exhibit 12 – DCB 410
83 That statement stands in contrast to the correspondence received and telephone calls had with Ms Conquest and Ms Henderson.[35]
[35]See chain of emails – Exhibit 16 – PCB 134 ; letter Ms Henderson to the plaintiff dated 6 February 2008 – Exhibit 14; email dated 7 February 2008 from the plaintiff to Ms Conquest – Exhibit 15
84 In relation to Mr Dawkins, Ms Pateras said she hoped he would look into the fact that she was unable to return to work. She was frustrated as she had not heard from Ms Conquest since 21 January 2008.
85 On 20 February 2008, the result of the investigation was provided to
Ms Pateras. The investigation concluded that there was no substance to her complaint. She lodged an appeal on 6 March 2008 and a finding was made in her favour in May 2008.
86 Her complaint against Mr Dawkins was he had failed, either by himself or by one of his delegates, to contact her to facilitate a return to work. It was put to Ms Pateras that a response to the investigation within two weeks of contacting Mr Dawkins was reasonable. She disagreed. She received communication from Ms Matthews, the WorkCover officer at CGU on 24 December 2007.
87 In relation to Ms Henderson, Ms Pateras said she disagreed there was no unreasonable delay in her investigation. She further disagreed that her investigation was conducted in accordance with the DEECD Policy and Procedure.
88 She disagreed that there was adequate detail in the letter to Ms Conquest of
19 December 2007 about her complaint. She disagreed that it was reasonable for Ms Henderson not to organise a mediation. Her role was to investigate the complaint.
89 Correspondence passing between Ms Pateras and Ms Henderson and
Ms Conquest was tendered.
90 Ms Pateras said her complaint to Mr Dawkins, when she wrote to him on
5 February 2008, was not only as to the progress of the investigation, but the main purpose was to tell him that she had attempted to return to work and had failed to do so because of the failure of the officers of the DEECD. She expected one of his delegates to contact her.
91 Throughout this process, she was in regular contact with Ms Matthews, the officer at the WorkCover insurer, CGU.[36]
[36]See letter Ms Matthews to the plaintiff – exhibit 18
92 In relation to Ms Pateras’ request for a mediation, she said she expected DEECD, or staff at the College or those from the Western Metropolitan Region, to arrange a mediation. She herself did not write and request one.
93 In relation to her return to work, the Certificates of Capacity issued by Mr Milone were as follows:
· 1 March 2008 to 23 March 2008 - Unfit for any duties
· 30 March 2008 to 7 May 2008 - Fit for alternative duties not at Galvin Park and not at Education Department.
· 6 May 2008 to 3 June 2008 - Fit for alternative duties not at Galvin Park and not at Education Department.[37]
[37]See exhibit 22
94 By letter of 26 August 2008, Ms Henderson wrote to Ms Pateras saying her complaint had been successful. Mr Newland wrote to her on 2 September 2008 and offered the LT1 teaching job.[38] In September 2008, Ms Pateras accepted the job offer. Mr Newland wrote on 16 September 2008, making arrangements for her to return to work.[39] There was some difficulty accommodating
Ms Pateras’ various medical appointments. Eventually, she arrived at work on 8 October 2008 but was not aware of the email of 6 October 2008 which suggested that she work longer hours on 8 October and not work another day that week. At a lunchtime meeting with Mr Newland, she suggested there needed to be work done on the students’ portfolio programs (“PPP”). It was suggested that she work with John Hart to get these into shape. There was urgency as they had to be submitted two days later, on Friday, 10 October 2008. Mr Hart was teaching and she was unable to find him. There was a lot of work to be done with the PPPs and it was to be done in conjunction with the students. Only three of thirty were completed. She worked to 6.00pm and then was asked by the cleaners to leave. She had a panic attack. She had taken medication during the day.
[38]Exhibit 23
[39]Exhibit 25
95 Ms Pateras accepted that there was a misunderstanding with Mr Newland as to her working hours. It was suggested she should have raised the problem with someone else at the College. She said she was in no state to do that. She said she should not have been expected to work in the way she did on the first day back.
96 After October 2008, there was no issue about a return to work because her psychiatrist, Dr Mohr, certified her as not fit to return to work at the College. In December 2009, she retired on ill health grounds.
97 In relation to Ms Gigatsis-Halge, Ms Pateras thought she was the return to work officer. There was reference to that fact in a document from Work Solutions. Ms Pateras said she believed Ms Gigatsis-Halge’s name was on a notice board at work.
98 In relation to obtaining a reference from Ms Gigatsis-Halge and Ms Ryan,
Ms Pateras denied that Ms Gigatsis-Halge had offered to provide her with a reference and that she (Ms Pateras) had failed to follow up. In relation to asking for a reference from Ms Ryan, it was suggested that Ms Pateras had been abusive in an email to Ms Ryan about the request for a reference.[40]
[40]See exhibit 26
99 In relation to Ms Ryan failing to assist in Ms Gigatsis-Halge’ return to work,
Ms Pateras said Ms Ryan had previously played a role with other sick teachers.
100 In relation to Mr Mooney, it was suggested that he was supportive in his reference and what was said to the interview panel. In fact, both
Ms Armstrong’s and Ms Javni’s notes were all complimentary. Mr Mooney did refer to her absences and the impact on other teachers. She said that this was not appropriate, and her “lower performance” did not refer to absences from work. She said Mr Mooney should have checked these matters with her first and it was inappropriate to bring them up at an interview panel.
101 In relation to her health issues, Ms Pateras was taken to her response to a statement of Mr Newland[41] where she said:
“My health ‘issues’ have NEVER been significant. I was back at my workplace performing my duties from 6th August 2007 until the incident with Peter Newland on October 22nd 2007. To suggest my health somehow resulted in ‘Mary’s incapacity to cope with the meetings’ is blatantly untrue and has been used by Peter to build a case to avoid liability in this matter.”
[41]DCB 471
102 In re-examination, Ms Pateras agreed that there were four main issues from her meeting with Mr Newland of 22 October 2007 about which she complained. They were:
· On three occasions he refused to accept her acceptance of the position.
· That it was not in the best interests of the College that she accept the position.
· That she should consider the matter for 24 hours and come back to him with a different answer.
· That he was aggressive in the course of the meeting.
103 In relation to these matters, she referred to various letters and documents of complaint in the period after 22 October 2007 where these matters were raised.
104 Ms Pateras said there were no problems with the first panel interview. There were some problems with the second panel interview but the real issue was with the discussion with Mr Newland. The most logical thing for him to do was to send her the letter of offer and in that letter, talk about the matters that he wished to raise about her working with other leading teachers. The matters that he wanted to discuss with her were matters which she was already well aware of, given that she had written part of the curriculum, and had also been canvassed in the course of the first two interviews.
105 She said she made a number of genuine attempts to return to work. The first was on 16 January 2008, where she said she was told by Ms Gigatsis-Halge to leave the College premises. This occurred after she sat down with Ms Gigatsis-Halge and had a coffee outside her office. She said Ms Gigatsis-Halge told her that because she had a WorkCover claim, she was not entitled to be there.
106 At the outset, Ms Gigatsis-Halge said that she should not be at the College. However, they had coffee at a table outside Ms Gigatsis-Halge’ office within the College grounds. Ms Pateras explained what had happened with Mr Newland and Ms Gigatsis-Halge said she would help as best she could.
107 In relation to her complaints to the DEECD, the initial complaint was to
Mr New by letter of 7 November 2007. On 19 December 2007,
Ms Henderson was appointed the investigation officer. The investigation response was provided on 25 February 2008. Ms Pateras said that the investigation needed early intervention given her job as LT1 was pending. She followed up with emails to Ms Henderson and Ms Gigatsis-Halge in February 2008. According to Guidelines for Managing Complaints, the investigations should be completed within six weeks. Further, a complainant should be contacted and asked to attend a face-to-face interview.
108 Evidence was given by Mr Richard Almond, a retired teacher, and his witness statement was tendered.[42]
[42]Exhibit C – PCB Tab 28
109 He had known the plaintiff since 1988 and was formerly the assistant principal at the College. He worked with Ms Pateras for many years. He described her as a skilled and capable teacher and said she was “one of the most outstanding educators I have ever had the pleasure to work with at any level”.
110 Performance reviews were conducted from about the year 2000. If a teacher’s performance was unsatisfactory, he would look at the reasons why and attempt to work out what was happening, then strategies would be developed to address those problems. The process was that at the start of the year, a teacher would set targets and goals for the year and then review that with the appraiser in the middle and then at the end of the year. He said that if a teacher was underperforming, he would not generally mention that to a selection panel during a selection process without having addressed the matters with the appraisee. He said that was common courtesy.[43] Staff wellbeing was important.
[43]T286, L10
111 Mr Almond said that when a person was successful in applying for a teaching position, firstly, there would be a verbal conversation where the person was offered the position, and then paperwork would be dealt with by the business office. He was taken to documents in which written offers of employment were made.[44]
[44]Exhibit E – PCB Tab 119
112 Mr Almond thought Ms Pateras was likely to be successful in obtaining a principal class appointment. He was taken to various newspaper extracts regarding the success of the College and Ms Pateras in textiles and careers.[45] He said that if he was asked to be a referee for a teacher and had reservations about that person being appropriate for a position, he would discuss it with them and ask “Would you want me to be your referee?”
[45]Exhibit D – PCB Tab 69
113 Evidence was given by Mr Peter Stone and his various statements tendered.[46] He is Ms Pateras’ partner, and former teacher at the College. He was also assistant principal of the College and said it was common practice for staff on extended sick leave to attend the College, meet with colleagues and involve themselves in activities.
[46]Exhibit J
114 Mr Stone referred to a meeting in 2008 where he was present with Mr Newland. He said Mr Newland asked him “I want to know where you stand in relation to Mary Pateras’ grievance”. He said the issue should not be discussed publicly. He said both then and in an earlier telephone call on 22 October 2007,
Mr Newland sought his support in relation to his decisions regarding
Ms Pateras.
115 He himself was off on WorkCover leave with depression from June 2008. He said within several days of leaving work, a return to work plan was devised in conjunction with Leanne Gigatsis-Halge and Tracy Morrison. He was assisted in his WorkCover claim by Kath Kennedy of the Western Metropolitan Region. Other staff members were assisted in returning to work by people from the College and from the regional DEECD office.
116 Evidence was given by Mr Richard Westhorpe and his statement tendered.[47] He said he recalled Ms Pateras giving a presentation to the Year 10 team on the first day of the 2008 school year, 29 January 2008. He taught at the College over a long period and retired in March 2014. He was her head of department at various periods and a friend. He recalled rumour and gossip about her relationship with Mr Stone but she was not ridiculed nor ostracised. There was some angst at senior level. He could not recall other teachers grumbling about the extra work because of her time off.
[47]Exhibit H
117 In relation to her presentation, he thought it might have been in the morning session. He recalled collecting folders with her from a storage room for her presentation.
118 Evidence was given by Mr Garry Heaney and his statutory declaration tendered.[48] He held various roles at the College, including as assistant principal until 2007.
[48]Exhibit M
119 Ms Pateras was an exceptionally hard worker and good at her job. Part of his role was to monitor staff wellbeing and assist with staff who were returning to work after injury or illness. Staff returning from absences attended a pre-return meeting with an advocate (a union representative or WorkCare representative) and a return to work program was developed. It was intended the process would be as supportive as possible. Staff on leave were encouraged to visit the College at any reasonable time. He was not aware of anyone being denied access to the College in the thirty years he taught there. He said Mr Newland became upset on a number of occasions because of the difficulty to achieve performance benchmarks and to make sound decisions, in his role as principal.
120 It had become apparent to him that Ms Pateras’ attendance and ability as a careers counsellor had slipped well below her norm by March 2007. He urged the issue be pursued by Mr Newland.
121 Mr Heaney spoke about a number of cases where teachers were away from the College. One involved a teacher who developed a phobia of returning to school. A strategy was developed and a program built. Another staff member became depressed and suicidal. A program was put in place and he eventually returned to the College. The principal was the one to sign off on a return to work plan once it had been developed.
122 At one point, Mr Heaney became aware that there were complaints from students, parents and teachers that Ms Pateras could not be found at the College. He raised it at a management committee meeting which included the members of the “principal class”, including Mr Newland and Ms Gigatsis-Halge. He recalled being dissatisfied with the outcome. As a result of these absences, Ms Pateras’ performance slipped, in that she was not at the College. He did not think her absences were always being recorded. It was not the role of Chris Mooney to speak to her about these absences.
123 Ms Elaine Fyvie attended Court and her statement was tendered into evidence.[49] She was employed as a teacher at the College between 1974 and 2014. She worked closely with Ms Pateras.
[49]Exhibit K
124 Leanne Gigatsis-Halge was the return to work officer in 2007, so Ms Fyvie believed. She had heard whisperings of the relationship between Ms Pateras and Mr Stone. She did not get involved. Sometime in 2009, she had a discussion with Ms Ryan about organising a farewell event for Ms Pateras and a gift. It turned out Ms Pateras did not want a farewell event. A gift was purchased but not given to her.
125 Evidence was given by Mr Hans Karge and his statement was tendered into evidence.[50]
[50]Exhibit L
126 He was the union representative at the College. He retired in 2007. When
Ms Pateras was denied access at the College, he found her in an agitated state. She asked him to be a witness. He scribbled out a statement of what he heard.[51] He said there was an ‘open door’ policy at the College for past teachers or those on leave.
[51]PCB 147
127 On 11 February 2008, he was present when Ms Pateras was ordered off the College premises by Mr Newland because she had organised to have lunch with other staff members. He said he found it strange that she was not invited to return for functions for staff with whom she had worked for a long period. It was common practice for the College to invite past retired staff, and those on leave. Ms Pateras was treated differently.
128 Evidence was given by Dr Rafael Milone, the plaintiff’s general practitioner from Werribee. His various reports were tendered.[52]
[52]Exhibit W
129 According to his reports, he first received a complaint from Ms Pateras’ about stress at the College in August 2007. On 23 October 2007, she presented upset and distressed and gave a history that she had been informed that she fulfilled the criteria for a new job but that the principal would not accept her acceptance of the offer. She said she thought she was being penalised for some time off work.
130 She was provided with a Certificate off work from 23 October to 6 November 2007, which was extended to 8 December 2007. She told Dr Milone that she felt she was unable to return to work because of the stressful situation.
131 She was continually certified as unfit for work until 10 January 2008. On
26 January 2008, she said she wanted to return to work so that she would not lose her holiday pay.
132 He diagnosed her as suffering anxiety/depression which was work related.
133 In April 2008, Dr Milone provided a WorkCover Certificate saying that she was suitable for alternative employment.
134 In May 2008, Ms Pateras said she did not want to return to Galvin Park nor to the Education Department. He prescribed various medication. He noted alopecia and she was referred to a dermatologist. She also saw a psychologist. The medication included antidepressants.
135 Dr Milone was then taken to his clinical notes.[53] In August 2003, he diagnosed Ms Pateras with depression and on 23 August 2003, he recorded she was still depressed. He thought this related to early marriage problems. In April 2006, he noted the marriage problems again by that time they were in full flight. He referred her to Dr Muller-Robbie, a psychiatrist, in November 2006. By October 2006, he noted that she was stressed out, although a letter from Dr Muller-Robbie said that there was no major psychiatric illness.[54]
[53]PCB Tab 21
[54]Exhibit 28
136 On a number of occasions in 2007, there was a reference to stress. In July 2007, she was given two weeks off work because of stress. Various other medical certificates were given for gynaecological problems. In July and August 2007, the plaintiff was seeing Ms Garfi, a psychologist, who diagnosed Severe Depression as a result of being ostracised and ridiculed at work because of her involvement with the break-up of Mr Stone’s marriage[55].
[55]Exhibit Y - Report of Ms Garfi
137 He was taken to various WorkCover Certificates[56] which he issued to
[56]See exhibit X – PCB Tab 56
Ms Pateras after the incident of October 2007. These, taken together, showed Ms Pateras was certified as follows:
· 23 October 2007 to 29 March 2008 - Unfit for any duties
· 30 March 2008 to 7 May 2008 - Fit for alternative duties at a school other than Galvin Park
· 6 May 2008 to 3 June 2008[57] - Fit for alternative duties at a school other than Galvin Park or Education Department
[57]There is a further certificate for the same period which provides that Ms Pateras is fit for alternative duties without restriction for the period 6 May to 3 June 2008
· 28 May 2008 to 25 June 2008 - Fit for alternative duties not with the Education Department
· 24 June 2008 to 15 October 2008 - Unfit for any duties
· 9 October 2008 & following - Unfit for any duties.
138 His note of 26 January 2008 was that Ms Pateras wanted to return to work on 29 January 2008 so as not to lose holiday pay.
139 After the incident when he saw Ms Pateras on 23 October 2007, his note recorded that she did not want to go back to the College.
140 Evidence was given by Dr Janette Mohr, consultant psychiatrist. Her reports and ancillary documents were tendered into evidence.[58] She commenced treatment of Ms Pateras in August 2008 and has treated her through to the present time. Dr Mohr’s various reports map the history provided and the treatment undertaken.
[58]Exhibit EE
141 According to those reports, and letters to Dr Milone, in the early years, she suffered a Severe Adjustment Disorder with prominent anxiety and depressive symptoms. In her first report of 11 October 2010, she said:
“Ms Pateras has informed me that she had no past psychiatric history until the episode of workplace stress which has caused her WorkCover claim.”
142 Further:
“Ms Pateras stated that she had not seen a psychiatrist or a psychologist prior to the commencement of the difficulties.”
143 Dr Mohr noted that over the years, Ms Pateras’ mental state had fluctuated greatly with, in the early years, suicidal ideation and self-harm. However, even in June of this year, Dr Mohr said Ms Pateras was in a fragile mental state and suffered relapses of depressive symptoms. She treats Ms Pateras with antidepressant medication, Effexor, Risperidone and lithium carbonate.
Dr Mohr considered that Ms Pateras would be unable to return to her pre-injury employment as a teacher. Given her ill health over seven years and lack of employment over that time, she does not have any current work capacity. The prognosis for future employment is guarded.
144 Evidence was given by Mr Peter Dawkins and his witness statement tendered.[59] Further, the chain of emails passing between Ms Pateras and himself, and his personal assistant, were tendered.[60] He was the secretary of the DEECD in 2007 and 2008. He was not normally involved in the management of employment disputes within a school. He did not see it particularly appropriate that a complaint was made to him about a failure by members of the Department to respond to complaints. Nonetheless, according to the chain of emails, his executive assistant replied to Ms Pateras the same day, details were obtained in respect of the investigation and the head of the HR department responded to Ms Pateras on 13 February 2008. In the circumstances, he said that his response was appropriate.
[59]Exhibit 31
[60]Exhibit 32
145 Evidence was given by Mr Peter Newland, the principal of the College at the relevant time. His two statements were tendered into evidence.[61]
[61]Exhibit 37
146 According to those statements, he was the principal at the College between 2003 and 2009. In Ms Pateras’ role, she worked under Mr Chris Mooney, the senior years’ manager. He held Ms Pateras in high regard professionally.
147 In 2007, Ms Pateras had quite a bit of time off work but he otherwise had no concerns about her performance.
148 In 2007, it was determined Ms Pateras’ role would be reclassified to the LT1 position – this was the senior pathways and transition coordinator, or senior careers’ teacher. She was a strong candidate and there was no expectation anyone else would be a better candidate. With Ms Javni and Ms Armstrong, he was part of the selection panel for that position. They received Ms Pateras’ written application and an interview was organised. Interview questions were determined in advance. Ms Pateras did not handle the first interview well and the selection panel was not satisfied that she had addressed the criteria. The panel then spoke to Mr Mooney and it was decided that a further interview would be undertaken on 22 October 2007. The purpose was to give Ms Pateras the opportunity to address how she saw her new role and how it would fit in with the direction that the College was going in. The second interview was not about whether she could perform the role, but that she had not been clear in understanding what was expected of the LT1 position. She did not handle the second interview well and appeared nervous.
149 The panel was satisfied that she was the appropriate candidate, but given her performance in the two interviews, the panel discussed that Mr Newland should speak to her, although agreeing that she should be appointed to the role. He spoke to her later that day and told her that she was the successful applicant. He said he wanted to speak to her about certain aspects of the role and its expectations. However, she did not want to speak about this and became upset. He suggested the discussion continue another day, which would give her the chance to think about the role overnight. He denied he said that her acceptance of the job was not in the best interests of the College, or that he insisted she not accept the position or that he put pressure on her to consider her acceptance.
150 In the email correspondence which occurred with her after that, he attempted to meet with her to discuss the problems. He confirmed that she was still the successful applicant.
151 As time went on, it was necessary to re-advertise the position to cope with the start of the next school year and Mr John Hart was appointed.
152 Ms Pateras returned to work in January 2008 and that took him by surprise. He did not expect her to be there. He said that he received a telephone call from Ms Pateras, who said she would ring back in 15 minutes when it was safe to speak on the mobile phone from her car. Notwithstanding this, she arrived and he felt he was being ambushed.
153 At one point, when she returned to the College on 11 February 2008, he suggested to her that given she was on sick leave, it was not appropriate for her to attend the College.
154 Subsequently, he had communication, with her, and said it was appropriate for her to attend and collect her personal belongings and filing cabinets.
155 Later, in 2008, a formal return to work was organised through the Western Regional office and she was offered the LT1 position. He was involved in that process.
156 Going back to the interview, when Mr Mooney was spoken to, he said there had been issues with her over the previous twelve to eighteen months. In the meeting in his office, Ms Pateras was clearly nervous. He had received information from Ms Gigatsis-Halge that she was not well.
157 In the formal interview process, the questions were pre-arranged and structured. She spoke about her health over the previous twelve months. According to his second statement, Mr Newland said, in relation to his final interview with Ms Pateras:
“I explained that the panel had determined that she met the criteria and we were able to make her a job offer. Mary accepted.
I then went on to say something along the lines that, ‘That’s fine but I want to take the opportunity to talk to you about the job, in particular its relation to the new leading teacher positions’
Mary indicated that she wasn’t in a state to do that, she wasn’t prepared to do that and she queried why I would do that. If she had the job wasn’t that enough?’
I said all I wanted to do was sit down with her, and explain how her job would interface now, and the shift in its focus and its impact on teachers in their classroom and how that would happen.
Mary indicated that she didn’t believe she was able to do that, and what was I really saying, do I have the job? I said something along the lines, ‘Yes Mary, we are making you a job offer but can we sit down for 10 minutes to discuss what’s involved in the job?’ Mary indicated she was unable to do that at this time.
I said ‘This fine, why don’t we agree to meet in 24 hours and talk about that then?
In the meantime I asked her to think about this new job and how it would inter relate to the new set of leading teacher positions coming into play in 2008.
Mary said that was okay, let’s do that and she left.”[62]
[62]Second Statement – part of exhibit 37
158 He knew that she had been sick on this day, and the week before, he had been informed she had been in hospital. He was concerned she was not well and she was not composed. He thought she had misunderstood what was said in their last meeting.
159 He had not received any complaint from her that she was stressed or anxious before October 2007.
160 He was taken to the chain of emails which transpired shortly after the final interview.[63] In his email of 23 October 2007, the words “there will be no resolution to the appointment until we has [scil have] a discussion” meant that there would be no appointment until they had discussed the various matters to which he had earlier referred, relating to her new role. By her email shortly following, he took the phrase “my decision still stands” to mean that she would not accept the position.
[63]Exhibit 19 – page 28
161 In relation to his email of 23 October 2007 and his apology, noting that he had caused her “great hurt and upset”, Mr Newland’s explanation was as follows:
HIS HONOUR:
Q:“Just before you start, Ms Pateras, can I ask you something Mr Newland: just the meeting that you had with Ms Pateras on 22 October 2007, after the formal interview, the evidence is that you saw her in the corridor, she was busy, you said something to the effect ‘Can I have a quick word’ or something like that, and this is the meeting which seems to be central to her complaints, and as I understand your evidence, you were just wanting to talk to her about her new role would, I think the word you used was ‘interface’ or some word like that, with other leading teacher roles and with her teaching duties. In other words I suppose, ‘How are you going to cope with this new role’, and as I understand your evidence, you [say] it was a perfectly appropriate thing to raise and you raised it in a perfectly [appropriate] manner, is that right?‑‑‑
A:Yes.
Q:At some point she became upset and you said ‘Go away and think about it and we’ll talk later’, sort of thing. Can I then take you to your email of - I don’t know that you’ve got it there - an email of the next day I think, 23 October 2007, it’s one of the emails in the plaintiff’s court book at Tab ‑ ‑ ‑?‑‑‑
A:Page 28.
Q:Yes, at p.28, yes?‑‑‑
A:Yes.
Q:Your email I think, after you received and email from her is about half way down that page, you say this: ‘Dear Mary, where to start, perhaps in stating the obvious, that there remains much to talk about. You have taken offence at my approach and for this I am sorry. Trying to work through the process I have caused you great hurt and upset. There will be no resolution to the appointment until we have a discussion’ et cetera. Why did you need to apologise and what was the ‘great hurt and upset’ given what you’ve told me about the appropriateness of what occurred?‑‑‑
A:I wanted to make it very clear to Ms Pateras that in responding, I was taking no offence to the way in which she had interpreted what I was trying to say and that I was prepared to accept that she was upset in terms of what she had written to me.
Q:But why would you say, I know this is what she’s saying to you?‑‑‑
A:Yes.
Q:‘You’ve taken offence at my approach and for this I am sorry’, why did you need to be sorry if there was nothing inappropriate that transpired?‑‑‑
A:At this point at time I was aware that she had been physically unwell. I was also aware that through the process she had been stressed.
Q:What was physically wrong with her?‑‑‑
A:I don’t know the details. I was aware that she had been unwell.
Q:That day or earlier in the year or what?‑‑‑
A:No, we’re talking about the first interview was a Wednesday the 17th, and I’m talking about that period, from the Wednesday the 17th through to Monday the 22nd that she had been unwell. I had been notified by staff members, Leanne Gagatsis [sic] that she had been unwell, so, I am sorry that if she was in a state that she was unable to understand what it was that I was trying to say. it was not my intention to cause her distress, it was my intention to make the job offer and impress upon her what this new role was, and the panel’s perspective was that Mary need to understand what the job was as part of saying ‘Yes’ to the job.
Ms Pateras was the standout and approved candidate. In all these circumstances, it is difficult to see how Mr Newland could have behaved in the manner Ms Pateras alleges. Ms Pateras submitted in her address that he had made a cold and calculated decision to prevent her from obtaining the position. It is difficult to understand any motive for taking such a stance. There is no evidence of any significant conflict between the two before the meeting, save for a heated discussion Ms Pateras says she had with Mr Mooney in July or August of 2007 and which she reported to Mr Newland.
247 In relation to Mr Newland’s alleged aggression, I do not accept that he was aggressive as claimed. There is no reference to his aggression in the emails authored by Ms Pateras in the days that followed, nor complaints to her doctors. The allegations that it was not in the interests of the College that Ms Pateras be appointed and that he refused to accept her acceptance of the position defies the logic of the situation. She had been offered the job by the panel. All that Mr Newland was seeking was to have her outline her vision for her new leadership role and how that role would interact with others in similar roles and her teaching duties.
248 Ms Pateras’ response to this was that all these issues had been canvassed in the two formal interviews, and in any event, she was responsible for writing the “curriculum” for the LT1 position and there was no need to explain her view of the role in any further detail. Further, she said, there was little difference between the role she had previously been performing as a careers and pathway teacher, and the new LT1 position. She, in particular, referred to the “Typical Duties and Responsibilities” document as opposed to the LT1 “Typical Duties and Responsibilities” document.[117] As she pointed out, many of the duties are the same. Nonetheless, the document in relation to the LT1 position commences:
“The pathways and transition co-ordinator will provide leadership to the College community on all aspects of senior school pathways. A primary focus for the co-ordinator will be the effective implementation of careers education and the development of the senior student Managed Individual Pathways Plans.”
[117]See exhibit U
249 That statement in itself is an indication of the changed level of leadership required in the new position.
250 As to the allegation that Ms Pateras should come back within 24 hours with a different answer, there is no doubt that Mr Newland gave her 24 hours to consider the matter and to respond to his, and the panel’s question, about how she saw her new role. There was nothing in the correspondence which immediately followed, nor in the complaint to Mr New of 7 November 2007 to the effect that Mr Newland had requested she come back in 24 hours with a different answer.
251 I conclude from all of this that Ms Pateras emerged from the meeting with Mr Newland with a misunderstanding of what he and the panel requested of her. I conclude that she took the view, given the position was being offered to her, that there was nothing further to be said, and no further account to be had. For whatever reason, she determined it was unnecessary or inappropriate that she answer any question about the way she saw her role. She saw the position as clear-cut. She was offered the job. She had accepted the job, and that was it. By Mr Newland not acknowledging that, and immediately arranging for a letter of offer and confirmation to be forwarded to her, he was somehow placing pressure on her to not accept the position. I do not accept that to be the case. The tragedy of the whole affair was that Ms Pateras became entrenched in her view and would not, in the days that followed, seek to find some resolution of the misunderstanding, in particular, to re-join communication with Mr Newland and talk about the matter, as he offered on a number of occasions.
252 It is Ms Pateras’ misunderstanding of what occurred in the meeting, and her then entrenched position, which is the real nub of the issue which led to complaints to a range of bodies, and this litigation. The situation was further compounded by the view Ms Pateras took that it was up to others, rather than herself, to offer solace, condolences and reconciliation. Because of the tone of her response and the steps she took, that became difficult.
253 There is one aspect of Mr Newland’s conduct, however, which bears consideration. In his email of 23 October 2010,[118] he said the following:
“Dear Mary,
Where to start, perhaps in stating the obvious, that there remains much to talk about! You have taken offence at my approach and for this I am sorry, in trying to work through the process I have caused you great hurt and upset. There will be no resolution to the appointment until we have has (sic) a discussion. I know that I have eroded any goodwill you had towards me but I hope you can see this state of play is not good for you, me or the school. … .”[119]
[118]Part of exhibit 19
[119]DCB 322 – 323
254 It is not easy to understand why Mr Newland would send such an email where he considered his conduct to be perfectly appropriate. His explanation as to what he meant by the email and for what he was apologising is difficult to follow.[120] While it is understandable that a person may apologise for causing another distress, even when that person’s actions were completely appropriate, it is unusual for someone to apologise for having caused “great hurt and upset”, and further, to have “eroded any goodwill you had towards me”.
[120]T1096, L26 – T1099, L6
255
I am of the view that there was probably some abruptness in the manner of
Mr Newland where, in offering the position to Ms Pateras, made that appointment strictly and unarguably linked to Ms Pateras providing a satisfactory explanation as to how she saw she would perform in the new role and interact with other teachers. This is confirmed by Mr Newland’s statement that there would be “no resolution to the appointment until we have had a discussion”. While a more conciliatory and diplomatic approach may have caused less offence and been more appropriate in the circumstances, nonetheless he had the imprimatur of the interview panel to pose the question and require it to be satisfactorily answered.
256 However, in my view, accepting the stance taken by Mr Newland, I do not accept that there was any breach of any duty owed by him or by the State to Ms Pateras for the manner in which the interview was conducted, or his requirement that there was a condition to the offer of the new position which had to be properly addressed. This aspect of the claim fails.
The allegations against Ms Kennedy
257 According to the Statement of Claim, Ms Pateras makes three allegations against Ms Kennedy:
·Failure to return phone calls on three occasions.
·Failing to provide “adequate support”.
·Failing to attend a conciliation conference at the Accident Compensation Conciliation Service as requested by the plaintiff.
258 None of these allegations were the subject of any evidence from Ms Pateras. There was no reference to the telephone calls allegedly made. I take it that the allegation concerning support relates to a failure to facilitate Ms Pateras’ return to work. I have already dealt with that issue.
259 There was no evidence concerning a conciliation conference.
260 I was advised by Ms Hartley that Ms Kennedy was formerly employed at the Western Regional office of the DEECD and retired from that department in July 2010. She is now 70 years of age and has a range of medical conditions. According to a report of a general practitioner, Dr Rubina Rawal, she is unable to attend Court by reason of those various conditions.[121] It is clear she is on a vast medication regime.
[121]Exhibit 49
261 In the circumstances, I draw no adverse inference from the failure to obtain a statement from Ms Kennedy, or for her attendance at Court.
Nature and content of the duty of care – foreseeability of psychiatric injury
262 In Koehler v Cerebos (Australia) Ltd,[122] the High Court considered the content of an employer’s duty of care in circumstances when an employee subsequently suffered psychiatric injury. The appellant had worked for the respondent as a sales representative. She was dismissed, then re-employed on a part-time basis, working three days per week. She complained regularly to her employer that she was unable to “cover” all the stores that she was required to visit within three days of the week. She did not say the workload was affecting her health. She was subsequently diagnosed with fibromyalgia syndrome, described as a “psycho-physical disorder” and later developed a major depressive illness, found attributable to her conditions of employment. The High Court held that the employer had not breached its duty of care to the appellant. This was for a number of reasons, including that an employer can assume an employee can perform his or her workload “in the absence of evident signs warning of the possibility of psychiatric injury”.[123] Further, the Court concluded that a reasonable person in the employer’s shoes would not have foreseen the risk of psychiatric illness to the appellant. The employer had no reason to suspect the appellant was at risk of psychiatric illness.[124] Further, the injury to a particular employee must be reasonably foreseeable.[125] A psychiatric illness is reasonably foreseeable where it is not far-fetched or fanciful.[126] The Court said that while the employer was on notice that its employee may not be able to carry out the work, it was not on notice that the work may cause a psychiatric reaction in the nature of a diagnosable psychiatric injury.
[122](2005) 222 CLR 44
[123]Koehler (supra) at paragraph [36]
[124]Koehler (supra) at paragraph [27]
[125]Koehler (supra) at paragraph [35]
[126]Koehler (supra) at paragraph [33]
263 There were two reasons for the Court’s conclusion. Firstly, the appellant agreed to perform the duties which were a cause of her injury. Secondly, the employer had no reason to suspect she was at risk of psychiatric injury.[127] The Court said:
“In Tame v [State of] New South Wales; Annetts v Australian Stations Pty Ltd,[128] the Court held that ‘normal fortitude’ was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.
It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner’s conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton,[129] the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.”[130]
[127]Koehler (supra) at paragraph [27]
[128](2002) 211 CLR 317 at 332 – 333 paragraph [16], at 343 – 344 paragraphs [61] – [62], at 385 paragraph [201]
[129][2002] 2 All ER 1 at 13, paragraph [23]
[130]Koehler (supra) at paragraphs [33], [34] and [35]
264 The Court rejected the proposition that reasonable foreseeability alone was the determinant of the content of the duty. The Court said:
“The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment …”[131]
[131]Koehler (supra) at paragraph [21]
265 In Hardy v Mikropul Australia Pty Ltd[132] J Forrest J commented upon Koehler and noted the High Court considered the following factors as relevant in determining the content and scope of the duty of care of the employer:
·The contract of employment.
·The nature and extent of the employee’s work.
·Any signs from the employee concerned (for example, in the form of express warnings or the implicit warning that they may come from frequent or prolonged absences that are uncharacteristic).
·An assumption that the employee taking on the employment is capable of doing the job.[133]
[132][2010] VSC 42
[133]Koehler (supra) at paragraphs [24] – [26], [35] and [36]
266 His Honour also commented on Hegarty v Queensland Ambulance Service[134] where an ambulance worker who was required to attend traumatic and distressing scenes in the course of his work, sustained a psychiatric injury. He alleged that the employer had an obligation to provide counselling, support and intervention on the occasions of those traumatic experiences. In Hegarty, Keane JA said:
“In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer's duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that “the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.” Further, “litigious hindsight” must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.”[135]
[134][2007] QCA 366
[135]Hegarty (supra) at paragraph [47]
267 In Doulis v State of Victoria,[136] Ginnane J said:
“The authorities decided since the decision in Koehler pay particular attention to whether the employee has given signs of distress to the employer that might indicate risk of psychiatric illness. The risk must be perceptible and a response of the employer must have been required to the perceived risk.
For instance, in the recent Victorian Court of Appeal decision, Larner v George Weston Foods Ltd,[137] an employee was unsuccessful in a psychiatric illness claim, as the court accepted the trial judge’s findings that the employee did not give any indication of being vulnerable to psychiatric injury and that there was no reason for the employer to have appreciated that he was at risk of psychiatric illness in performing his duties.”[138]
[136][2014] VSC 395
[137][2014] VSCA 62 at paragraphs [211] – [212]
[138]Doulis (supra) at paragraphs [520] – [521]
268 In Rawlings v Rawlings,[139] Dixon J applied the reasoning in Koehler and noted that psychiatric injury in workplaces “can be suffered from stress in at least two distinct scenarios”:
“… one is circumstances of bullying and/or employee behaviour that creates stress for a plaintiff, the other scenario being circumstances of overwork or pressure from employer directed workload or tasks. … .”[140]
[139][2015] VSC 171
[140]Rawlings (supra) at paragraph [60]
269 Ms Pateras’ case is concerned with the former rather than the latter scenario. That situation received attention from the Queensland Court of Appeal in Woolworths Ltd v Perrins.[141] The Court considered the scenario where stress caused to a plaintiff through the acts or omissions of work colleagues was foreseeable. Mr Perrins’ psychiatric injury resulted from a manager’s decision to exclude him on a number of occasions from a management training course for which he had been selected. The following passage is relevant:
[141][2015] QCA 207 (per McMeekin J, with Fraser JA and Gotterson JA agreeing)
“In determining what may be ‘far-fetched or fanciful’ the authorities make clear that the risk in question must not merely be ‘foreseeable’ but must be ‘reasonably’ so: see the various judgments in Tame. Sight should not be lost of what is really in issue. The point of the enquiry is to determine whether it was reasonably foreseeable that the conduct complained of was likely to result ‘in mental anguish of a kind that could give rise to a recognised psychiatric illness’ to adopt Gleeson CJ’s words in his analysis of Annetts v Australian Stations Pty Ltd.
As Callinan J pointed out in Koehler on which side of the line a particular case falls — far-fetched or not — is not always easy to say. At some level it could be said that any employee, if sufficiently vulnerable, might succumb to psychiatric injury or illness if disappointed in their ambition or in the performance of their colleague’s duties when it impacts adversely on their hopes and ambitions. In that sense it is hardly far-fetched or fanciful to say that such decompensation might occur. But the reasoning and outcome in Koehler provides authority for the proposition that an employer need not guard against risks that are so generally expressed.
The issue then is whether Woolworths ought reasonably to have foreseen that Mr Perrins was at risk of suffering psychiatric injury by twice disappointing Mr Perrins by withdrawing its offer of engagement in the trainee management programme not long before, or immediately before, he was to commence it, in an insensitive way, for reasons to do with well-established policy, and for reasons that should have been apparent to his manager before the offer was made, had enquiry been undertaken. Absent such a risk Woolworths was not under an obligation to avoid it.
For present purposes I put to one side the point made above that in putting himself forward for the trainee course Mr Perrins ‘was not consistent with harbouring, let alone expressing, a fear of danger to health’.
When one examines the relevant facts pertaining here, in my judgment, the employer could not have reasonably foreseen that by taking him off the course for trainee managers there was a risk of causing such mental anguish to Mr Perrins as to result in psychiatric decompensation.
On the facts as found the human resources manager made a mistake — she twice failed to check Mr Perrins’ absenteeism record before inviting him onto the management programme. Indeed it may be too harsh to say that she made a mistake. It seems that she relied on a system by which information came to her, she not being in a position to physically observe Mr Perrins and his performance of his duties. Thus Ms Render relied on information from team leaders in the usual way and because of the timing of the counselling that took place she was not alerted by them to the true state of affairs until after the letter of offer was sent. Thus she learnt of the true state of affairs very late, about a week before the programme was to start on each occasion. Mr Perrins was informed immediately on the first occasion but very belatedly on the second. There was merit in the trial judge’s view that the matter was not handled sensitively. That the belated recognition of Mr Perrins’ absenteeism and the insensitive manner of his removal from the course might cause disappointment, frustration at Ms Render’s allegedly incompetent performance of her duties, and even anger from Mr Perrins at his time being wasted and his expectations built up are all understandable reactions. But in judging his expected reaction it needs to be recalled that Mr Perrins had himself been responsible for the absenteeism, had retained his employment and was told that he would be re-considered for the training course in the future. Against that background the notion that informing an employee that they had failed to meet certain objective criteria, expected of all employees, previously laid down and previously advised, would result in decompensation into psychiatric illness does not seem to me to be ‘reasonably foreseeable’.
My view is that disappointed ambition is a commonplace in the employment situation, sometimes resulting from events far more unfair than a colleague belatedly but accurately carrying out her duty, and sometimes disappointments occur on many more occasions than the two here, but psychiatric decompensation as a result is not commonplace. In my judgment very few people would react and suffer psychiatrically as did Mr Perrins if placed in his situation.
… .”[142]
[142]Perrins (supra) at paragraphs [67] – [73]
270 From these authorities, in a case such as this where a claim is made by an employee claiming bullying, intimidation, isolation or failure to support, the following principles are of relevance:
·The nature and content of the duty of care owed by the employer is informed by the contract of employment, the nature of the work undertaken and the nature of the relationship between the employer and the employee.
·The question is then whether the kind of psychiatric harm subsequently suffered is reasonably foreseeable in the circumstances which existed at the time. Relevant to that is whether the employer had notice of unexplained absences from work, particular behaviour, medical evidence or other factors which would indicate an employee had a susceptibility or proclivity to psychological decompensation and injury.
·Part of the test is concerned with whether the employee believes he or she is capable of taking on the work.
·The test also requires consideration of whether it was reasonably foreseeable that the conduct complained of was likely to result in the type of mental anguish that could give rise to a recognised psychiatric injury.
·The duty by the employer, which is owed, does not require “absolute and unremitting solicitude” for an employee’s mental well-being, and should not be viewed with the convenience of hindsight.
·The fact that a workplace issue is not handled as sensitively as it might otherwise have been does not necessarily give rise to a breach of the duty. Disappointed ambition in a workplace is common. Psychiatric decompensation as a result is not.
271
In determining whether the risk of psychological injury was foreseeable to the State, it is first necessary to understand the nature of the psychological injury suffered. According to the plaintiff’s treating psychiatrist, Dr Mohr, she has suffered a Chronic Adjustment Disorder with severe depressive symptoms. This condition has fluctuated somewhat over the years, and in the early years, particularly 2008 and 2009, her symptoms, which include sleep disturbance, high anxiety, palpitations, shortness of breath, depressive symptoms, including low mood, tearfulness, agitation, and affect upon concentration and memory, all were debilitating. Over the years, her condition has required treatment with antidepressant and psychotropic medication. Of more recent times,
Ms Pateras’ psychological condition has improved, although she still remains fragile and subject to stressors.
272 As the authorities have prescribed, it is necessary to examine Ms Pateras’ psychological state, and the extent to which teachers at the College or others in the Department were aware of that state.
273 According to Ms Pateras’ statement,[143] she had minimal absences from work prior to 2006.[144] Between February 2006 and October 2007, she had a significant amount of sick leave or carer’s leave. These absences were explained by her as resulting, on the one hand, from the need to care for her son who had glandular fever, and on the other hand, were related to gynaecological problems.
[143]Exhibit A
[144]Paragraph [6]
274
Although from the notes of Dr Milone, Ms Pateras had several short episodes of depression in 2003, and then some period of two weeks or so away from work because of stress in October 2006, there is no evidence to suggest that those difficulties were relayed to the College authorities or teachers. While
Ms Pateras was treated by Dr Muller-Robbie in 2006 and Ms Garfi, a psychologist, in 2007, again, there was no suggestion the episodes which took her to those practitioners were relayed to the College authorities or teachers. In fact, according to Ms Pateras’ statement:[145]
“I did not suffer any psychiatric illness at this time [2006 and 2007]. I was undergoing counselling in respect of my marriage separation. Mr Newland and Ms Gigatsis were informed of these matters.”
[145]Paragraph [6]
275 By “these matters”, I took Ms Pateras to mean the counselling in relation to her marriage separation.
276 Further in her statement,[146] Ms Pateras referred to interpersonal conflict with Mr Newland and Mr Mooney. However, this related to time that she had spent away from work, and the consequent additional workload on other teachers. It was put to Ms Pateras that she had suffered depression and anxiety before October 2007. She said that she had some counselling with a counsellor, was not suffering anxiety and was depressed about certain matters.[147] The matters about which she was depressed was the breakdown of her relationship with her former husband, and its effect upon her children.[148]
[146]Paragraph [12]
[147]T255, L26
[148]T256, L5 – 25
277 Turning to the two interviews which Ms Pateras underwent, she said that while she was a little nervous at the first interview, she thought it went well.[149]
[149]T306, L16, T310, L23
278 At the second interview, she felt stressed and anxious when she was asked personal questions.[150] She had rescheduled the second interview but that was to accommodate an ultrasound examination.[151] She disagreed that she was “very unwell through the process”.[152] Matters of her health and personal circumstances were raised by her, but that was largely related to the prospect that she might leave the Werribee area.[153] She became upset towards the end of the second interview.[154]
[150]T320, L14
[151]T322, L3
[152]T323, L10
[153]T325, L6
[154]T350, L18
279 From this evidence, I conclude that while the College authorities, and possibly the teachers would have known Ms Pateras had significant time away from the College in 2007, this was in order to look after her son, and for physical gynaecological problems, nothing to do with stress or anxiety. Further, although she had some difficulties in the interview process, they were not such as to put Mr Newland or anyone else on alert that either continuing the interviews, or asking her to sit down with Mr Newland later in the day, on 22 October 2007, was likely to cause any stressful reaction. In fact Ms Pateras acknowledged at the second interview, she was offered to have it rescheduled, but refused on the basis that she felt quite capable of handling it.
280
Bearing in mind these matters and legal principals, and even accepting those at the College and the DEECD failed to appropriately facilitate a return to work for the plaintiff, and that the conduct by Mr Newland in the interview on
22 October was aggressive or inappropriate, I am not satisfied that, given
Ms Pateras’ past history and conduct, there was anything to indicate that she might suffer the significant psychiatric injury which subsequently transpired. At best, what could be said is that she might be disappointed, offended or upset. It should further be said that, to the extent that she was disappointed, offended or upset, all of that could be readily cured by her responding to Mr Newland’s emails to sit down and talk about the issues and attempt a sensible resolution. Sadly, that did not occur.
Conclusions
281 While the State undoubtedly owed its employee, Ms Pateras, a duty to take reasonable care against the risk of foreseeable psychiatric injury, I am not satisfied that any of the acts, failures or omissions alleged by Ms Pateras against the teachers of the College and others in the DEECD, constituted a breach of that duty of care.
282 Further, even if one were to accept, in the circumstances which prevailed, there was a breach of that duty, it was not reasonably foreseeable Ms Pateras would go on to suffer the psychiatric decompensation and injury which subsequently occurred.
283 As earlier stated, it is disappointing and unfortunate, that Ms Pateras’ career as an acclaimed and competent teacher appears to have been brought to an end, largely as a result of a misunderstanding with Mr Newland and others at the College, following the events of 22 October 2007. That result lies largely at the feet of Ms Pateras for failing to respond to Mr Newland’s request for a sensible discussion about what had occurred, her uncompromising attitude to the appointment to the LT1 position and her unassailable view that other teachers at the school and in the DEECD, rather than herself, were responsible for the sad state of affairs.
284 In the circumstances, Ms Pateras’ claim fails.
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