Pfeiffer v Belgravia Health and Leisure Group (Workcover)

[2017] VMC 10

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION  F13141171

BETWEEN:

Carrie Pfeiffer   Plaintiff

-and-

Belgravia Health and Leisure Group   Defendant

REASONS FOR DECISION

MAGISTRATE:   GINNANE

DATE OF DECISION:                  16 JUNE 2017

WHERE HEARD:   MELBOURNE

MEDIUM NEUTRAL CITATION:  [2017] VMC010

Appearances   Counsel   Solicitors

For the Plaintiff   Mr T Ryan   Dimitra Panagopoulos

For the Defendant  Mr P Johnstone   Minter Ellison

HIS HONOUR:

Introduction

1. The plaintiff applies for weekly payments and medical expenses for an alleged mental type injury said to have been aggravated by her employment with the defendant. She was represented in the hearing by Mr T Ryan of counsel. The defendant operates and manages leisure centres. It was represented in the hearing by Mr P Johnstone of counsel. The defendant has a number of leisure centres throughout Australia. The operations about which I heard evidence were two at which the plaintiff worked namely, the Wyndham Centre (‘Wyndham’) and the East Keilor Leisure Centre (‘EKLC’).
2. The plaintiff says her injury by way of aggravation of a pre-existing mental condition was significantly contributed to by her stressful working environment with the defendant. The ‘particulars of stressors’ relied on by the plaintiff are expressed at paragraph 7 of her Statement of Claim.  They were also appended to her Worker’s Injury Claim Form dated 22 June 2015 and referred to as, ‘Particulars of Stressors’. The plaintiff says she prepared them with the assistance of her solicitors. They were expressed as follows:

i.the employer failed to take appropriate measures to resolve a complaint about bullying at the workplace

ii.the employer failed to organise mediation to deal with the allegations of bullying at the workplace despite repeated requests

iii.the employer failed to take any reasonable steps to address my grievance despite knowing that it was causing my health to deteriorate

iv.being subjected to criticism for attempting to escalate my complaints about bullying in accordance with the grievance policy

v.having meetings regarding my complaint delayed repeatedly with no explanation

vi.being advised of ‘alternative measures’ for the resolution of my complaint but not advising me what they were

vii.the employer disclosed information of a confidential nature which breached my privacy and compromised my capacity to perform my duties

viii.the employer engaged in bullying conduct including isolation, not communicating at all in speaking to me in an aggressive, threatening and overbearing manner

ix.failing to adequately address a grievance regarding the completion of timesheets and the possibility of inaccurate information being recorded in the timesheets

x.discrepancies in conflicting instructions regarding the nature of my work duties so that I did not know what was expected of me and my role

xi.unclear instructions as to whether my Position Description had been changed or not and if so to what extent.

3. The plaintiff’s employment with the defendant culminated with her letter of resignation dated 17 May 2015. Relevantly, she expressed her decision to resign thus:

I am therefore forced to resign from this untenable position for my own health and safety.

4. The plaintiff said that had it not been for the aggravation of her pre-existing mental state caused by certain treatment meted out to her in her employment by her manager and the way in which the defendant dealt with her complaints about him she would have remained in employment with the defendant.
5. At the date of hearing the plaintiff remained in receipt of monthly certificates for total incapacity provided by her treating Psychiatrist Dr Akinbyi. The plaintiff has taken takes a number of prescribed medications for anxiety and for her diagnosed mental condition. She remains on a regime of psychotropic medicines.
6. The principal question for determination by me in this proceeding is whether the plaintiff suffered a compensable injury of a type characterised by her as an aggravation of her pre-existing mental illness and, if so, whether such injury was caused wholly or predominantly by the employer’s conduct and, if it was caused by such conduct, whether the defendant has discharged its evidentiary onus that such conduct amounted to reasonable management action taken on reasonable grounds and in a reasonable manner such that it would then fall to the plaintiff to establish on the ordinary civil standard of proof that her injury had not been caused wholly or predominantly by the reasonable management action of the defendant.
7. The overarching theme of the defendant’s defence to the action is that the plaintiff’s decision to resign had little or nothing to do with work related stressors but instead was a reaction to the defendant declining her request for a pay rise as a part of a Performance Review. In addition the defendant relied on the extent to which the plaintiff’s mental condition and the extent of her non-compliance with medication to manage her condition coalesced and thereby caused her to imagine events that did not occur or to exaggerate behaviour that objectively assessed was benign.
8. The plaintiff’s claim was rejected by the defendant’s insurer CGU. I am not satisfied that the grounds relied on by the defendant are supported by reference to an objective assessment of the evidence. In any event, I am not bound by the reasons of the insurer. I am not undertaking judicial review of the insurer’s decision but instead I am called upon to make the correct decision and I am seized of all of the powers of the Authority.[1]

Summary of Findings

[1] Jarvis v Salvation Army Northern Territory [2016] VSCA 175

9. As apparent from the plaintiff’s pleading the alleged stressors are numerous. The ultimate conclusion I have reached is:

i.I am not satisfied on the balance of probabilities that the plaintiff has established each of the stressors relied on as matters of fact.

ii.I am satisfied on the balance of probabilities that the plaintiff was subjected to adverse behaviour by her Manager David Antonello (Antonello).

iii.I am satisfied that the adverse behaviour resulted in injury to the plaintiff by way of aggravation of her pre-existing mental state. I am satisfied that the effect of his conduct caused an increase in anxiety and stress to which she was more vulnerable by reason of her existing mental condition than a worker who did not suffer a like vulnerability.

iv.I am satisfied that a decision taken by Antonello to relieve the plaintiff of the responsibility for the kiosk was management action taken on behalf of the defendant. I am not satisfied the action was reasonable management taken in a reasonable manner and on reasonable grounds and I am satisfied that the plaintiff suffered a worsening of her pre-existing mental state as a result by way of her stress and anxiety and increasing paranoia.

v.I am satisfied that the decision by Antonello to refuse the plaintiff’s request for assistance in the operation of the kiosk amounted to management action and that the same was taken on reasonable grounds and in a reasonable manner.

vi.I am satisfied that the decision by Antonello to refuse the plaintiff’s request for a pay rise was also an incident of management action but I am not satisfied that the action was taken on reasonable grounds in a reasonable manner.

vii.I am satisfied that the conduct by defendant management in response to the plaintiff’s complaints about Antonello and that included his adverse behaviour directed at her was itself management action but that the response did not amount to reasonable management action and it did cause injury to the plaintiff by way of aggravation of her pre-existing mental condition and that her condition can be assessed as having worsened to an appreciable degree as a result of the same and that this state of affairs is reflected in the opinions of, among others, Dr Timothy Entwisle, who examined the plaintiff and reported for the defendant.

10. Although not all stressors relied on by the plaintiff related to allegations of bullying or intimidation by Antonello nonetheless her relationship with him occupied a good deal of the evidence adduced over the course of the 6 day hearing and therefore need to be addressed in detail.
11. The plaintiff’s relationship with Antonello was ‘fraught’. I use the word deliberately because it describes the ultimate state of their relationship but not its commencement or indeed much of the period of which it extended, which even by the accounts from the plaintiff and Antonello was very different. However, the path that led to dysfunction in their dealings with one another is complex and ultimately was not satisfactorily explained by the evidence of either the plaintiff or Antonello. The plaintiff, for example, relied on adverse behaviour exhibited towards her by Antonello in the workplace, but when pressed repeatedly in the course of her evidence to suggest a cause she was at a loss to do so, although the evidence she gave about it and to the extent it made sense suggested it was triggered by a complaint she made to management concerning some staff under Antonello’s direction whom she believed were recipients of favoured treatment by him or who had been receiving unauthorised payments for phantom work.
12. Having listened carefully to the evidence of Antonello I formed the impression that he seemed bewildered as to the reasons that underpinned the deterioration in the good relationship he had once enjoyed with the plaintiff but which he acknowledged had reached an eventual and calamitous state. However, by his manner exhibited in the course of his evidence, he did not seem concerned by or conscious that his alleged conduct towards the plaintiff was said to have contributed to an aggravation of her pre-existing psychiatric condition.

The complication of the plaintiff’s pre-existing mental state

13. The determination of the defendant’s liability for the plaintiff’s claimed work injury is complicated not just because of the opaqueness of much of her evidence about the treatment by Antonello and of management towards her but also because of her pre-existing mental condition. The plaintiff suffers from schizophrenia. Prior to 2010 she was thought to be possibly bi-polar. Her schizophrenia manifests itself by way of a number of symptoms including hallucinatory and auditory experiences. This was not contested by the plaintiff. I am satisfied that schizophrenia is the pertinent diagnosis of all doctors whose reports are before me in evidence.
14. There was significant unreliability in parts of the plaintiff’s evidence and this was particularly evident in her recollection of histories and the accounts of events she gave to those who have treated her. I am satisfied there was incorrect evidence given by the plaintiff about her compliance with medications that had been prescribed to assist in managing her illness and I am satisfied that there were periods of time when she was failing to maintain her regime of medication that coincided with her employment with the defendant. Unremarkably, in light of these discrepancies, the defendant submitted that the plaintiff’s account of her complaints about the workplace and the treatment accorded her by Antonello should not be relied on. The defendant’s submission has considerable force.

The course of the evidence

15. The order of presentation of witnesses by the plaintiff and defendant was disjointed to a very considerable degree with a number of witnesses interposed during the course of the plaintiff’s evidence by consent. I have adopted the approach in these reasons of addressing the principal evidence of each witness and cross examination as a discrete whole.

The plaintiff

16. The plaintiff was born on 9 October 1978. She completed Year 12. She commenced, but did not complete, a Health Science Course. She said she deferred her studies during her employment at EKLC. Her curriculum vitae was produced. The defendant submitted that I should have some doubts about its reliability. I am not satisfied that I should but, in any event, the plaintiff’s curriculum vitae is not relevant to any issue in dispute upon which I am called to decide.
17. The plaintiff is the mother of an 11-year-old boy. She is separated from her partner and the father of her son. The state of her relationship with her former partner and his documented intrusions into her domestic life together with his alleged drug use and dependency including the use of ice with its resulting aberrant behaviour was raised by the defendant as factors or ‘stressors’ that were operative and adverse in their effect on the plaintiff’s mental state. I will address this issue and others and their significance later in these reasons.

The employment

18. The plaintiff commenced employment with the defendant at the Wyndham Centre in April 2011 in the position of Customer Service Operator (CSO) and Swim Teacher. The plaintiff said she was very happy in her employment. She spoke of having received a laudatory reference from her Centre Manager. I am satisfied on the evidence that during the period from 2011 to 2013 whilst the plaintiff was employed at the Wyndham Centre she was functioning well enough to have satisfactorily discharged her work responsibilities in spite of her prevailing schizophrenia. I am satisfied too that during this time frame the plaintiff was compliant with medications that had been prescribed to assist her mental condition.
19. Records produced by Noel Molloy (Molloy), a registered psychiatric nurse record that the plaintiff first began to see him in early 2011.
20. The plaintiff said that she commenced on prescription medication in about 2011 but stopped some months afterwards because it was not agreeing with her.
21. The plaintiff maintained her position under questioning that when she commenced at Wyndham in April 2011 she was not taking medication and that when her employment was transferred to EKLC in about March/April 2014 she also was not taking medication. She vigorously contested the suggestion put to her by the defendant’s counsel that she had been advised to resume medication and she maintained that it was not until about March/April 2015 when she recommenced medication. The evidence establishes that the this account by the plaintiff is wrong and that prior to and after commencing employment at EKLC the plaintiff had been taking medications for her mental condition and as well had come under the care of Molloy and of Dr Akinbyi, a psychiatrist as far back as 2011.
22. The plaintiff said that her mental illness manifested itself in different ways. She said she heard voices, felt anxious and depressed. She agreed that she had been experiencing these symptoms prior to a formal diagnosis of schizophrenia in 2011 when it was thought she suffered from a bi-polar disorder. She said the voices were derogatory and told her to do things. She said the medication she had been prescribed helped dampen the sound of the voices.
23. It appears from among the many medical records put into evidence that in April 2012 the plaintiff’s mental condition was so dire that she experienced suicidal ideation. She had absences from work however when she was asked if stress and anxiety had caused these absences she said she ‘could not remember’.
24. Antonello worked at Wyndham with the plaintiff but the plaintiff said that her day to day interactions with him were infrequent whereas at the EKLC their contact was frequent. Antonello agreed with this assessment in the course of his testimony.
25. The plaintiff’s employment with the defendant at the EKLC was expressed with a commencement date of 14 March 2014. She was furnished with a Contract of Employment dated 14 March 2014. (Exhibit P3)[2]. She was titled ‘Administrative Services Coordinator.’ The job was accompanied by a ‘Position Description’ for a ‘Book Keeper/ Administrative Services Officer’ (Exhibit P4). She was required to report to the Centre Manager. Antonello was the Centre Manager. Her position conferred on her supervisory responsibility for the following areas: ‘Reception’, ‘Café and Merchandising staff’. The ‘Position Description’ was signed by the plaintiff and by Antonello as ‘Facility Manager[3]’.

[2] A ‘contract variation’ dated 16 April 2013 and signed by Antonello and by the plaintiff described the changes to the plaintiff’s employment as ‘effective from 25 February 2013’.

[3] It was not suggested the tile of Centre Manager and Facility Manager were not interchangeable.

26. The plaintiff described her relationship with Antonello initially as ‘quite good.’ However, she said he subsequently stopped talking to her. She said he was aggressive when speaking to her both in his manner and the tone of his voice. She referred specifically to his response to a question she asked of him on one occasion (the date of which she could not recall and the question too lacking certainty) when he said to her, ‘What a stupid question to ask’.  She said his response ‘made me feel like an idiot’ and the more so, she said, because it was expressed in front of other staff in the office. She said on other occasions (also occurring on dates she could not remember) Antonello ‘would bang his fists on the table’. She said also that whenever she said ‘hello’ to him as gesture of common courtesy he would ignore her. She also said that she noticed that if he saw her approaching him, ‘he would roll his eyes at me’.

The Antonello history

27. The plaintiff has known Antonello for over 11 years. He was instrumental in obtaining employment for her with the defendant. The plaintiff said that when she was told that her employment was to be transferred from Wyndham to the EKLC, Antonello recommended her for the role of Administrative Services Coordinator. She said he asked her if she would like to take on the job and she told him that she would.
28. The plaintiff was cross-examined about the antecedents of her relationship with Antonello. She said they often had coffee and met outside work on weekends on a regular basis. She said in the middle of 2014 Antonello moved residence to Port Melbourne and as a result their social catch ups came to an end.
29. Mr Johnstone suggested to the plaintiff that as Administrative Co-Ordinator she was charged with responsibilities that were new to her, more responsible and onerous than had been the case with her previous position at Wyndham as a CSO. The plaintiff agreed. Mr Johnstone noted that her new role extended to management of the kiosk and shop and when a decision was subsequently made to relieve her of responsibility for this area she felt very disaffected. She agreed and thought it unfair as she was doing a good job.

The Performance Review  

30. Antonello went on a period of annual leave for the Christmas and New Year and returned to work on 24 January 2015.
31. The plaintiff participated in a Performance Review on 29 January 2015 upon Antonello’s return from leave. There was nothing untoward about this occurring other than the review was initiated by the plaintiff and not Antonello although Antonello said that the plaintiff was due for a review in the ordinary course of her employment.
32. The Performance Review was undertaken by Antonello. This was appropriate given that the plaintiff was a direct report. There was no evidence led to suggest that the plaintiff did not want the review conducted by him or, for example, that she had requested someone else to do it. The plaintiff said that in the course of the review she raised with Antonello matters of complaint she had with him. She said she told him that she did not like the way he treated her [4]but that he did not address her concerns and they remained unresolved at the end of the review. 

[4] It was not particularised.

33. The plaintiff said that in the course of the review she raised an allegation against a fellow employee, Daniel Torres (Torres). The allegation concerned his apparent unreliability in work attendance as well as purported irregularities in the remuneration he received. The plaintiff said this had been a complaint she raised with Antonello and with Amber Campbell[5]  who was part of the defendant’s management ‘a couple of weeks’ prior to the Performance Review. The plaintiff said Antonello told her he would ‘look into her complaint’ about Torres and another member of staff. When the plaintiff was asked how Antonello reacted to her complaints about him that she had raised in the Performance Review, she said she thought he was ‘not upset’ and that he appeared to accept their validity.

[5] Prior to February 2015 was the Centre Manager of the Windy Hill Fitness Centre.

30. It was put to the plaintiff by Mr Johnstone that during the Performance Review she identified her pay and rostering as the matters of concern to her and that she had requested the review because she wanted approval to decrease her workload and have Antonello make staff at the EKLC ‘pull their weight’ which she did not think was occurring.
31. The plaintiff said that in addition to raising concerns with Antonello during the Performance Review in January 2015[6] she also complained to him about her belief that he had denigrated her to the Learn to Swim Co-Ordinator at an Australia Day  party[7] by describing her as a ‘stupid fat bitch’.

[6] The plaintiff said she had mentioned her concerns as well in November or December 2014.

[7] It was not explained if the party was a work organised occasion or not.

32. The plaintiff testified that she believed the issue of her ongoing responsibility for the operation of the kiosk came to a head in about February 2015, which would be, subsequent to the Performance Review. Mr Johnstone put to the plaintiff that she had requested Antonello allocate to her a member of staff to act as a supervisor to assist her in the kiosk’s operations. She denied this and said that all she wanted was ‘someone to help’. She said she made the request for assistance in the kiosk prior to her performance review on 29 January 2015. She said Antonello told her that there was no occasion for assistance to be provided because there was not enough ‘through traffic to justify the placement of an assistant’. She was she said was subsequently replaced in the kiosk by another employee.
33. The plaintiff said she thought she received the outcome of her Performance Review on or about 12 February 2015. She agreed with Mr Johnstone that it was possible that after learning her request for a pay rise had not been granted she had emailed Antonello to advise him that she would not be at work the next day. The records identify that the plaintiff was absent from work that next day.

Post-Performance Review events

38. Mr Ryan examined the plaintiff about the content of an exchange of emails she had with her employer from March 2015 until May 2015. I received these emails as a composite exhibit. The first of them is dated 11 March 2015. The communications are important because they constitute the predication on which the plaintiff’s claim for aggravation caused by Antonello’s alleged conduct and the employer’s response to her complaints about him is based. I will address them in detail later in these reasons.

The plaintiff’s mental state

39. The plaintiff said she thought her diagnosis of schizophrenia was made in 2010 or 2011. The plaintiff said the voices she heard directed her to do things which she knew were wrong, as well as engendering in her feelings of anxiety and depression. She said the voices are often derogatory in nature and ‘tell her to do things’. She said she had been experiencing these symptoms prior to the formal diagnosis of schizophrenia. She said that in April 2012 she was so severely affected by her condition that she had considered suicide.
40. Mr Johnstone suggested to the plaintiff that while working at Wyndham in 2011 she was experiencing a need to isolate herself from others and this symptom of her mental condition did not manifest itself at the EKLC as a result of her dealings with Antonello. The clinical records corroborate the suggestion by counsel.
41. The plaintiff was asked if stress and anxiety caused her to have time off work at Wyndham in 2013. She said she could not remember.
42. She said that no one from work including Antonello was aware of her medical condition.
43. The plaintiff disputed that she lacked an understanding of the effects of her illness on her behaviour and said she had ‘a lot of insight’ into her condition and she realised that with the stress of the work place bullying it proved necessary for her to resume her medication. However, the resumption of medication by the plaintiff did not occur during the time frame of the conduct allegedly engaged in by Antonello.
44. The plaintiff said that her non work related stressors such as her partner’s behaviour affected her differently than the work related problems. She said the former were issues she could ‘manage’ without the need for medication but that she came to understand the same was not the case in regard to her work stressors.

Tendency Notices and evidence

45. The plaintiff filed notices of tendency evidence pursuant to the Evidence Act (2008). Evidence was adduced from two employees of the defendant. Mr Ryan characterised the testimony as constituting tendency evidence. It did not. The evidence did, nonetheless, satisfy me that the atmosphere at the workplace between the plaintiff and Antonello was ‘frosty’. The testimony corroborated one aspect of the plaintiff’s evidence which was that she was yelled at by Antonello. Otherwise the evidence was not probative of any relevant issue, however, I will address the evidence of both of the witnesses adduced by the plaintiff. The evidence of each witness was interposed during the course of the plaintiff’s evidence.

Christine Dermanin

46. Christine Dermanin was the first of the two witnesses referred to in the notices of tendency. She said that she was employed with the defendant at the EKLC in May 2013 and ceased employment with the defendant in or about April or May 2016. She said she was employed by the defendant as a Customer Service Operator. She said she subsequently took over from the plaintiff as the Kiosk Supervisor sometime in 2014. She said she saw the plaintiff on a daily basis. She described her as ‘always competent’ and that matters under her care ‘ran smoothly’. She said she knew Antonello and saw him on a daily basis in his capacity as the Centre Manager. She testified about one occasion in the back office when in the presence of other employees Antonello yelled at the plaintiff across the room. She said she could not discern any visible reaction on the part of the plaintiff, although she added that she was ‘clearly unhappy’. She said Antonello spoke to the plaintiff quite loudly and his tone was ‘angry’. She said he ‘shouted and the room was still’.
47. She said towards the end of the plaintiff’s employment she often observed her exhibiting signs of stress and she was ‘not herself’. She said no one[8] in the office would speak to her.

[8] Emphasis added.

48. Ms Dermanin said that prior to this occasion of discord she had no recollection of the plaintiff taking periods of time off work but her ‘impression’ was that this changed and that the plaintiff was taking more time off work. She said, ‘I knew she was having issues with David. It was visible to me’. She said prior to the shouting incident the plaintiff had been ‘happy’. She said this changed and thereafter the office was ‘silent’.
49. She said she did not think Antonello was a good manager. She said she believed that he prioritised and favoured his own friendship groups within the workplace.
50. She recalled an occasion when Antonello approached her and asked her if the plaintiff had ever helped her and he said ‘not to go to her for help but come to him because if she went to her for help she would only screw me over’.  Antonello denied this but I prefer the account from Ms Dermanin as it is consistent with the plaintiff’s account of having brought matters of complaint about Antonello to management’s attention.
51. Ms Dermanin was asked about Torres. She said she knew him. She did not think much of him. She said he was rarely on time for work and this adversely impacted his capacity to keep appointments, which in turn, gave rise to complaints by clients who had appointments scheduled and that this had been going on for ‘as long as I can remember’. She said she understood that the plaintiff thought his work performance ‘was an issue’ but she unaware what steps, if any, the plaintiff took in regard to it.
52. Ms Dermanin said she was aware that the plaintiff and Antonello had once been very friendly and that their friendship extended outside of work.
53. When cross-examined Ms Dermanin said she was unaware of the length of time Antonello and the plaintiff had been friends and she did not know the extent or nature of their friendship.  She said the plaintiff was ‘previously one of his [Antonello’s] favourites’ but this changed towards December 2014 which she also thought coincided with the occurrence of the shouting incident.

Kirsten Boyd

54. Kirsten Boyd was the second of the witnesses for whom a notice to adduce tendency evidence was filed. She said she had been employed at the EKLC since 2004. She said she worked with Antonello. She said that after the plaintiff came over to the EKLC from Wyndham in about late 2012 or early 2013 she commenced working with her.
55. She said she was aware the plaintiff had come to the EKLC as a Customer Service Officer at which time she was employed as the full-time Duty Manager. Ms Boyd said she commenced maternity leave on 30 November 2013 and returned on 20 September 2014 to the position of Administration Officer and she characterised the plaintiff’s role as ‘100% greater responsibility than that of a Customer Service Officer’.
56. She said she observed no differences in the plaintiff after her return from maternity leave in September 2014. However, she said that commencing from about December 2014 her observations was that were that ‘things changed’. She said that Antonello ‘allowed other staff to ostracise the plaintiff although he did not directly behave in an untoward fashion towards the plaintiff[9]’. It was not explained by Ms Boyd’s evidence how she believed Antonello ‘allowed other staff to ostracise’ the plaintiff.

[9] Underlining added.

57. Ms Boyd said she had lodged a written complaint dated 30 July 2013 of workplace bullying and harassment. She said that Human Resources acknowledged her grievance by a written response dated 6 August 2013. Her complaint of bullying was not directed against Antonello.
58. In the course of final submissions the plaintiff pointed to the comparative swiftness of the defendant acknowledging Ms Boyd’s grievance to the much longer timeline it took to respond to the plaintiff’s complaint. I place no store in this difference. In my judgement a mere comparison of timelines in responding to a complaint is a neutral fact because it was not explored in the evidence if Ms Boyd’s grievance was straightforward or not or well particularised or not or if it was of a more general nature and lacking in particularity such as dates and times, that besets a good amount of the plaintiff’s written communications of complaint to management.
59. Ms Boyd said she observed changes in the plaintiff such that ‘she was not coming in as much to work and was quieter and more reserved’. However, she acknowledged that she never inquired of the plaintiff as to the reason why. She said she was aware that plaintiff and Antonello had been friends. She said that they were both smokers. She knew they would occasionally lunch together.
60. Ms Boyd said that she witnessed Antonello say to the plaintiff on one occasion, ‘what is your problem’ and that his voice was raised when he spoke to her. She said Antonello had in the past spoken to her in a like manner although she was unable to say when or where.
61. Ms Boyd said she was unaware if the plaintiff laboured from any health issues.

David Antonello

62. Antonello said that when the plaintiff commenced employment at Wyndham he was the Assistant Manager. He said he put the plaintiff forward to the defendant for employment with Wyndham in the role of a CSO.
63. Antonello said while he was at Wyndham the plaintiff gave him therapeutic massages as part of a massage business she had operated from home.
64. Antonello left Wyndham by way of promotion to EKLC. The plaintiff remained at Wyndham until 2013 when she moved to the EKLC. Antonello said he ‘thought I offered her a position as a CSO’.
65. Antonello said that he and the plaintiff caught up on weekends for coffee in Point Cook.
66. Antonello said that in March 2014 the plaintiff’s role changed when the Assistant Manager Administration resigned ‘and Carrie stepped in to help out on a temporary basis and then it became more of a permanent role’.
67. Antonello said he and the plaintiff continued to catch up of a Saturday. He said this phased out in about July or August 2014 when he relocated residence to Port Melbourne.
68. Antonello said that what he considered to be a good working relationship with the plaintiff continued through to about September 2014.
69. Antonello said that it was about in September 2014 that work became difficult between the two of them and ‘she [the plaintiff] started presenting with a lot of problems’ in relation to him and other staff.  He described an IT issue which involved connecting up printers. Unbeknownst to him the plaintiff had arrived at a different solution to the problem that he had earlier resolved and implemented and she approached him expressing dissatisfaction and believing she had been overruled by him and that ‘he never supported her’. He said the plaintiff also complained to him that her job was too great for the hours she worked and that she wanted an assistant. He said as well she complained about an appointment of a staff member as an Assistant Supervisor. Antonello said he did his best to try and deal with each issue raised the plaintiff raised ‘one by one’.
70. Antonello said that he operated on the assumption that each issue the plaintiff raised had been resolved only to subsequently discover her agitating the very same issues with him again. As he put it, ‘they kept resurfacing’.  
71. Antonello said that by the end of 2014 he met with Drew Hildebrandt, the State Manager of the defendant. He said he thought it was important to get him involved because issues he believed had been resolved with the plaintiff proved otherwise. He said he spoke with Drew Hildebrandt with the result that ‘the three of us met’[10]. He said that ‘we agreed to improve communication between the two of us but at some stage whether at the meeting or some other time it was decided that we catch up once a week’. He said that he and the plaintiff ‘met up a few times’ and he thought communication between the two of them had improved but he said that circumstances changed for the worse.

[10] Hildebrandt, Antonello and the plaintiff.

72. Antonello said the Christmas season fell and he took a period of approximately 3 weeks annual leave. He said he returned from leave on about 11 January 2015. He said the Performance Review took place on 29 January 2015. He said it covered the plaintiff’s request for a pay rise based on her belief that her pay was not comparable to other employees. He said they went over the contents of an Appraisal Inputs Review document (Exhibit P4) in the process. The document consists of an input on a range of performance indicia taken from contributions by the plaintiff and by Antonello as manager. ‘Performance Standards’ were divided into categories consisting of ‘Work Performance’, ‘Safety’, ‘Communication’, ‘Planning and Organisation’, ‘Customer Service’, ‘Organisational Relationship’ and ‘Management Skills’ each of which had sub-categories and assessed on scale of ‘A’ to ‘E’. The plaintiff was assessed between ‘B’ and ‘C’.  ‘B’ equated to ‘Sometimes Exceeds Performance Requirements’ and ‘C’ was graded as ‘Meets Performance Requirements’. Antonello wrote under the heading, ‘Managers Comments’:

Great job knowledge and provides a great amount of support to the centre manager. Works well without supervision. Would like to see development in understanding the business and why decisions are made.

73. The plaintiff was provided an opportunity to make comment and they were recorded as:

1.What has been your performance compared to the key responsibilities required in the position description? (list responsibilities and note performance outcomes)

Meets Key performance areas as set out in the position description

Further work on developing, documenting and applying work instructions.

2.What have been your main professional achievements in the last 12 months? Consider business plan goals of appropriate

- administration responsibilities met pg 36

- HR Responsibilities met pg 37

- Played a critical role in cleaning up qualification register

- Meets Training flow requirements

3.Are there any areas you could improve and how can this be achieved?

-    Continue to improve communication lines with Centre Manager, Continue to improve problem solving, creating and implementing work instructions

-    Develop boundaries with staff so that unnecessary out of hours calls need to be made.

74. Under the heading of Development Action Plan the actions and goals set for the plaintiff are expressed as follows:

Reviewing, writing and implementing Policy/Procedure & work instructions to be developed.

Improve Communication with Centre Manager by

-     requesting meeting times

-     report complaints or concerns in a timely manner.

75. Antonello said the plaintiff’s input contained ‘a lot of complaints about others’. He said he thought ‘they were outrageous claims’ and he ‘doubted I responded to them. They seemed offensive’.  The plaintiff’s complaints formed part of the ‘Appraisals Output Review’ (Exhibit P4).
76. Antonello said he put the plaintiff’s request for a pay rise to his manager. He said the request was not granted and he communicated the decision to her. He said she did not take the news well and said she ‘would need to think about this’.  He said she was absent from work the following day. He said the plaintiff had also complained that the kiosk role was too great for her and she wanted a supervisor to assist her but that he did not agree to the request because he could not justify the allocation of an additional resource to the operation based on its operating return.
77. Antonello said he received a text message from the plaintiff on Sunday 15 February 2015 saying she wanted a meeting with him and Hildebrandt. Antonello said he learned that Hildebrandt was unavailable but that Campbell was. He said the issues thereafter escalated and from then on the plaintiff was regularly emailing his superiors about work related tasks he had supposedly not completed.
78. In relation to the complaint that Torres was not doing his work and had been double dipping Antonello said the allegation proved untrue and he satisfied himself of that fact.
79. Antonello said the plaintiff’s position changed and the kiosk and merchandising responsibilities were taken out of her control ‘after much discussion about it’[11]. He thought this occurred in December 2014[12].  

[11] Though what the discussion entailed was not explored.

[12] Which would mean the decision was taken prior to the Performance Review of 29 January 2015

80. When asked to comment further on the plaintiff between December 2014 and May 2015 Antonello said that from about February 2015 all his dealings with the plaintiff went through his superiors and when asked by the defendant’s counsel why this had occurred, he said, ‘I’m not sure’.
81. Antonello said the plaintiff had discussed with him certain details of her personal circumstances including her ex-partner living out of car and his apparent gambling problem. However, he said that the plaintiff never mentioned her health to him.
82. Antonello was not asked in his evidence in chief to respond to any of the factual allegations made by the plaintiff.

Antonello cross-examined

83. Antonello agreed that prior to the Performance Review the plaintiff had complained to him that Torres was ‘pilfering’. Antonello said he could not recall if anything else had been raised by the plaintiff about Torres.  
84. Antonello said that staff are entitled to an annual performance review and he agreed that had the plaintiff not instituted a request for a pay increase she would have been entitled to a review in the ordinary course of her employment. Antonello said the review ‘pretty much came about because of her request for a pay increase’.

83. Antonello’s comments in the review were complimentary of the plaintiff despite the criticisms she levelled in her section of the review. Antonello did note that the plaintiff needed to work on improving her communications with him including the reporting complaints in a timely manner and improving problem solving.
84. Weekly meetings were initiated between Antonello and the plaintiff in December 2014 but with Christmas intervening and Antonello taking 2 weeks leave that fed into January 2015 there was little time available for them to meet prior to the Performance Review on 29 January 2015 but Antonello said they had managed to meet up ‘a few times’. He described them as just ‘day to day’ business operation meetings and when asked if the plaintiff mentioned any personal criticism of him in the course of them he said ‘I don’t think so’ and went onto to say that these criticisms [of him] ‘got all bottled up’.
85. Antonello said he believed there were further emails between them in existence to those that had been discovered and these would have been stored ‘on his computer’ which access was given to Michael Farkas (Farkas) the defendant’s Human Resources Manager. Mr Ryan called for their production but nothing was produced in response to the call and Farkas did not testify.
86. Because the plaintiff’s inputs to her Performance Review included attacks on Antonello’s conduct he was prompted to speak to Hildebrandt but he not could recall whether he was instructed to do anything as a result of the complaint although he said Hildebrandt asked him if the statements were true to which he responded that they were not.
87. Antonello could not recall whether the plaintiff’s work attendance was less regular after the performance meeting on 29 January 2015. He said, ‘I’m not sure. I can’t recall’. Antonello said he was unaware if stress was a reason expressed for any of the plaintiff’s work absences. Antonello said that an SMS sent by the plaintiff to Amber Campbell on 7 May 2015 (Exhibit P7)  that she was unable to attend work because of stress was not passed on to him although he could not explain why. He characterised his general level of communication with Campbell as ‘very open’.
88. Antonello was absent from work on a further period of annual leave from the end of April 2015 to approximately the end of May 2015.
89. Antonello was asked what he knew of a tranche of emails dated 15 April 2015 to 22 April 2015that commenced with the plaintiff’s email to Campbell and Hildebrandt. He said he was not consulted about the matters contained in them and he was not part of any discussions between management in regard to them, despite not having departed for the period of further annual leave by the dates they bear.
90. Antonello was asked if the plaintiff’s complaints were brought to his attention. He said they typically were and he gave by way of example, a complaint alleging that he had not signed an invoice of some sort to which he responded that he had. He said this occurred frequently but that was the extent of ‘it’.
91. Antonello was told of Darmenin’s testimony that Torres was causing difficulty not just to the plaintiff but to the day to day operations of the defendant because of his poor work ethic and that this had been a long standing issue going back ‘as long as she could remember’. Antonello said ‘she’d be wrong’.
92. I asked Antonello about the plaintiff’s lengthy email letter to Campbell dated 11 March 2015 (part Exhibit P5) and if anyone from management had spoken to him about it to obtain his response to the matters referred to and that were critical of him. Antonello said, ‘think we had a meeting - all of us’ by which he meant Hildebrandt, Campbell and the plaintiff, and he thought it was called ‘in relation to bullying’. He thought the meeting might have occurred in March 2015.  At a later stage Antonello said he thought ‘it,’ by which he meant the plaintiff’s complaint, was more along the lines of ‘I don’t listen to her’. I asked Antonello if he was ever asked his view about the allegations. He said ‘We discussed the ‘stupid bitch’ comment because it had come to Carrie’s attention by someone else’. He said his response to it was to tell management that it was ‘not true’. He said he could not recall any outcomes that were arrived at as a result of the meeting.
93. The plaintiff’s email letter dated 11 March 2015 to Campbell was introduced as follows: ‘...I have decided to make another complaint regarding bullying and Dave. I would prefer a third party to look into this matter to ensure this is unbiased…’ Antonello said he was not aware of an ‘earlier complaint’ other than the reference to the same in the plaintiff’s letter and about which the meeting he previously referred to had occurred.
94. Antonello said he was not aware of the plaintiff making repeated requests for mediation or the provision of a third party person as ‘honest broker’.
95. Antonello also said he was unaware that the plaintiff commenced a proceeding in Fair Work Australia and he was unaware of the defendant’s Response to the Application.
96. For reasons I am unable to fathom Antonello was not challenged in cross-examination by the plaintiff’s counsel either as to his demeanour allegedly directed at the plaintiff in the office environment and about which the plaintiff complained or indeed of the allegations that he yelled at her in the open office or banged his fists on the table or made her feel otherwise uncomfortable or had belittled her in offensive language to a fellow team member. Indeed it was necessary for me to directly raise these core allegations with him and all of which he denied.

Amber Campbell

99. Amber Campbell testified. She is the Area Manager for the defendant and has been employed by the defendant for 4 years. Prior to commencing as Area Manager on 1 February 2015 she was the Centre Manager of the Windy Hill Fitness Centre, a site also operated by the defendant.
100. Campbell said that the plaintiff came to her attention in February 2015 when she attended on her at Windy Hill concerning a complaint she had against Antonello. She said the plaintiff also raised as a concern about an incident she said had occurred on the Australia Day weekend whilst attending a party and a workmate approached her and said that Antonello when at work had described her as a ‘stupid fat bitch’. Campbell said that as well the plaintiff complained to her about ‘double dipping’ by Torres and another employee.
101. Campbell said she spoke with Hildebrandt and Farkas. She said she was instructed to speak with Antonello, which she did, and he denied the allegation of the alleged abusive description of the plaintiff to a fellow employee.  
102. Campbell said the allegation of double dipping in relation to Torres was investigated. She contacted payroll and examined the timesheets and discussed the matter of Torres with Antonello, Hildebrandt and Farkas. She said the interrogation of the time sheets and the personal classes taken by Torres and for which he had been paid failed to disclose any irregularity and he was shown to have undertaken supplementary classes inside his suite of working hours.
103. Campbell characterised the plaintiff’s role of Administrative Co-Ordinator as one involving a variety of tasks such as looking after the customer service team, the crèche team together with invoicing and assistance with payroll.
104. Campbell said she had met with the plaintiff ‘a few times’ and all of her dealings were in relation to Antonello and her concerns that he was not speaking to her in the office or was not responding to emails sent to him by her as well as her remaining dissatisfied with the ‘Australia Day incident’. Campbell said she spoke with Antonello and he said that he was not isolating the plaintiff and was engaging with her in the workplace.
105. The plaintiff wrote to Campbell in a lengthy email dated 15 March 2015 and wrote that she had decided ‘to make another complaint of workplace bullying and Dave. I would prefer a third party to look into this matter to ensure this is unbiased’[13].

[13] All direct extracts are reproduced in original form and without grammatical corrections

106. Campbell said the plaintiff’s and Antonello’s relationship did not improve and so she escalated the issue to others in authority in the defendant, specifically Hildebrandt, Farkas and McIntosh.
107. She said she and Hildebrandt met with the plaintiff and Antonello at the EKLC site but nothing was resolved. She said ‘we spoke with the plaintiff alone after the meeting but again nothing was resolved’.  
108. The plaintiff on 15 April 2015 wrote a further detailed email addressed to Campbell and Hildebrandt (No 3A) in which she referred to a meeting that had occurred between her and Campbell and Hildebrandt on 1 April 2015 and she expressed dissatisfaction at what she perceived were inadequacies exhibited by them such as ‘evident misinformation and contradictory information and a failure to investigate harassment/bullying claims…’ The letter then identified a series of complaints against Antonello and frequently expressed by the plaintiff as sufficient examples of her complaints about him to enable management to respond. Her letter continued:

I am not able to accept the above ongoing behaviour and no longer placing myself in a position to accept the above. At this point of time I see only the following options to rectify this problem

·Dismissal of the Centre Manager for breach of contract/gross misconduct

·Settlement to leave

·Forced resignation

·Transfer Dave to another Centre

·Transfer myself to another Centre with adverse result i.e. same position (admin/CSO/merch/cafe/crèche) and same rate etc

Dave has been given every opportunity to rectify and move forward from the events but has chosen to continue.

I will obtain a medical certificate for leave covering Thursday 16^th and Friday 17^th April. A decision needs to be made in regards which way Belgravia would like to proceed with this matter on Friday 17 April so I can move forward.

109. In relation to this letter from the plaintiff Campbell said she had ‘passed it on’. She said she spoke to Antonello about its contents and she believed he had responded to the matters referred to in it but she could not remember his response and she made no notes of their discussions such as might have refreshed or assisted her memory.
110. Campbell at one point suggested to the plaintiff that she might want to consider a transfer to Windy Hill where the plaintiff would have been working alongside her in a slightly altered role but that the plaintiff declined that option.
111. Campbell replied by email to the plaintiff on Friday 17 April 2015 and wrote that the defendant was ‘looking at other avenues to resolve this…’ The plaintiff sent another email on the 17 April 2005 seeking an explanation of what ‘other avenues’ meant and inquiring what she was ‘expected to be doing in the meantime?’ Having not received a response by 4.47 pm that day the plaintiff emailed Campbell and it read:

Hi Amber

I have not heard back in regards to ‘other avenues’ and it is important that I know before next week sometime if they are viable options. If they are, I intend on being back at work on Monday under the assumption Dave will be on leave until a resolution is reached and events are looked into by an external person.

112. Campbell responded at 5.07 pm and wrote:

Hi Carrie,

Sorry I haven’t got back to you earlier I have been in meetings all afternoon.

Dave will still be in his position as he is gearing up for his leave at the end of the week.

If you don’t feel comfortable in this environment you have my permission to not attend work Monday.

Cannot clarify or elaborate until I receive further advice on other avenues at this. I will contact you as soon as I have further clarification.

113. At 6.04 pm the plaintiff sent a further email to Campbell. It read:

That is completely unacceptable that any employee (regardless of position or pending leave) could remain in their position under these circumstances especially while forcing someone out of theirs. I would have thought that Belgravia would liked to have seen as at least pretending to treat this matter within policy and ethical standards.

I have given Belgravia more than enough time to sort this matter out but the situation has only been perpetuated. I have attempted to compromise but have got nowhere. I have been understanding in that this is not an everyday occurrence and we aren’t really sure how to go ahead and I have been tolerate as I believe yourself and Drew appear not to be on the same page times. In turn, I have received nothing except told to ‘stop annoying you (Amber)’, wait for meeting they don’t eventuate with no correspondence and patronising comments from Drew like give Dave first right of reply. Now I am told to sit in limbo again while the rest of the world waits for Dave to act like a decent human being or wait while other avenues are looked into. I am not going to wait for nothing. If there is another option regardless of whether it is not confirmed as a possibility I need to be told about it. There is either a possible option or there isn’t. The fact Dave can remain in his position while I (the person who has done her job, followed policy and been extremely understanding and compromising) is told just don’t go to work is not okay with me. I think we both know bullying/harassment has and will continue. I take do my job at the best I can and try to do the best by everyone and to be told (in action and words) that you are not important enough and annoying is disgraceful.

114. The plaintiff continued to communicate the defendant  and on Tuesday, April 21 she emailed Campbell as follows:

As I have had no confirmation as to what is happening or how to proceed I will continue to remain waiting.

115. Campbell said she was aware that a mediation had been discussed ‘but it had not gone through all the channels of our senior management’.
116. Campbell said she was unaware of the plaintiff having any work-related stress.

Drew Hildebrandt

117. Hildebrandt is the State Manager of the defendant. He was the Regional Manager and more recently that title was altered to State Manager. He said his role ‘supported the Centre Managers to deliver appropriate business outcomes’ for the defendant.
118. Hildebrandt said he became aware of the plaintiff in 2014 at which time she was employed as Administrative Coordinator. He described her as ‘part of Antonello’s leadership team’. He said he was aware the plaintiff and Antonello had shared a friendship at Wyndham. He said it was at about the end of January or early February 2015 that he became aware of the existence of ‘some issues involving their working relationship’. He said Antonello had contacted him and told him that the plaintiff wanted a meeting and so one was arranged at which the three of them met. He described the plaintiff’s initial complaints as including emails she had sent to Antonello on work related matters going unanswered by him, dissatisfaction with the outcome of her performance review conducted in January 2015 and her changed role as a result of kiosk responsibilities having been taken away from her.
119. He said that the conversation included the plaintiff ‘wanting Antonello to do his job’ and from an operational viewpoint her complaint regarding other staff [i.e. Torres) as well as her remuneration. Hildebrandt said he told Antonello and the plaintiff that they needed to be ‘interactive’. A subsequent meeting in which Amber Campbell was present also included a discussion about improving communication between the two and Hildebrandt said he understood that weekly meetings had been encouraged so as to enable them to better facilitate one on one communication.
120. Hildebrandt said that as best he could recall the word ‘bullying’ was first used in the plaintiff’s letter of 15 April 2015.
121. By email dated Wednesday 22 April to the plaintiff Hildebrandt wrote:

Good evening Carrie,

Please note that you are required to return to work tomorrow.

122. The plaintiff responded to Hildebrandt by email at 8:15 pm stating that she was ‘happy to return to work tomorrow. I have been waiting for confirmation of a time and day so issues can be discussed before going back as stated I will not be putting myself in harm’s way any longer’.  Later that evening at 10:29 pm the plaintiff wrote in a further email to Hildebrandt:

Your message was a bit vague. I am assuming I will be meeting with yourself and/or Amber at 9:30am. I just require confirmation as I would like to bring a representative with me. I doubt they will be able to attend on short notice but would like to confirm that with them.

123. The next morning on Thursday, April 23 at 8:12 am the plaintiff emailed Hildebrandt saying:

Unfortunately confirmation was not received so I can only conclude there is no meeting. Under these circumstances I will not be returning to work and will continue stress leave until a time can be arranged before returning.

As I have stated at the current state the workplace is unsafe and issues remain unaddressed or refused to be heard. I will not continue to put myself in harm’s way and will await other avenues.

Anthony McIntosh

124. McIntosh is the General Manager, Operations of the defendant and has held the position for last two years. He said that the plaintiff became known to him on 27 April 2015. He said that Hildebrandt had contacted him saying that there was a staff member who would not come to work because of a concern ‘at being harmed’. He said Hildebrandt gave him a letter that provided some particularity about the problem. He was shown (Document 3A) and he identified it as the letter that Hildebrandt had sent to him.
125. McIntosh and the plaintiff met for coffee on the morning of 23 April 2015. He said ‘he did not get much detail’ from the plaintiff.
126. Antonello commenced leave at the end of April 2015.
127. On Friday, May 1, 2015 McIntosh added his input to the controversy by way of a lengthy email to the plaintiff in which he wrote:

Dear Carrie,

It is disappointing that you are not prepared to provide the necessary details to help me investigate your claim of harassment and bullying. Without any further details I only have the one item to investigate which is the removal of the Kiosk and Merchandise responsibilities.

As previously indicated I will continue to attempt to contact David however this may not occur into the returns from leave.

Based on lack of information and facts that I will most likely not be able to discuss the matter with David until he returns, it would be expected that you continue with the roles and responsibilities as outlined by David prior to his leave.

My offer to assist you if you feel you have been placed in a situation of being bullied or harassed still stands and as previously indicated I will investigate at the time.

Please feel free to call to discuss at any stage.

128. Perhaps unsurprisingly in light of the long history that had passed the plaintiff responded to the McIntosh email with an email of her own dispatched at 12:56 pm that day and her response was couched in the following terms:

Hi Anthony,

It is disappointing that Belgravia have the information and choose not to properly investigate over the last 6 months. It is disappointing that Belgravia have not given little to no feedback on progress or outcomes to date (business decision or can’t be substantiated-when it clearly could) despite asking. It is disappointing that Belgravia expect me to keep going around in circles despite having predetermined outcomes. It is disappointing that Belgravia offered no support or concern for me. It is disappointing that Belgravia was not open and honest. It is disappointing that Belgravia pay lip service to their policies and procedures. It is disappointing that employees are only important as their position. It is disappointing management would prefer someone to fail and cause damage than rectify the situation before it gets to that point. It is disappointing management do not listen. It is disappointing that management are not honest. It is disappointing that until a staff member reaches breaking point that matters are taken seriously. It is disappointing management cannot communicate and withhold information for each other. It is disappointing that after 6 months I still am here sitting around waiting. It is disappointing management can make and support decision without any information. It is disappointing that mediation involves biased mediators. It is disappointing that Belgravia went back on its word and did not bother let me know the external mediation was called off. It is disappointing mediation requires me to blindly follow all requests and outcomes with no consideration to common sense. It is disappointing that Belgravia listened and reacted within days when it came to the monitory aspect of my complaint but has done nothing to help me. It is disappointing that Belgravia refused to help for the last 6 months of me asking. It is disappointing Belgravia expect me to go through the mediation process with them again now they are ready six months later. It is disappointing Belgravia do not wish to participate in a fair and unbiased mediation. It is disappointing that drew Amber on Michael Farkas refused to help (or perpetuated situation) for 6 months and then you have the nerve to tell me I am “not prepared to provide the necessary information”. It did all but put it in neon lights. I got no apology, no explanation, not even are you okay? All I got was, just do your job (despite being humiliated, embarrassed, disrespected, continued to be harassed and effectively demoted). Belgravia did not stop his bullying. Belgravia encouraged and provided him with excuses to get around it. Training offered to him clearly has not taken seriously and ignored. I you really surprised I do not wish to take up your offer to “investigate” again? You may be honest in your offer, I don’t know, but I’m not willing to take that chance from my past experiences will with Belgravia and their mediation/investigation processes.

I do not sleep, displays with my mind constantly, it effect my home life, it has destroyed professional relationships, I well up with tears at having to come to work and have anxiety and then you say to me I am ready to investigate now after 6 months. This is not business. This is bullying and harassment. I followed Belgravia’s policies. Belgravia did not. I did what I was supposed to do. Now you come onto the scene and tell me “I offered”. Where were you for the last 6 months? I you just hearing about this now? Did you not think 6 months of constant bullying would have an effect? Where is the report of Drew’s investigation that you can obtain details from that to actually investigate? Why are you using the excuse that Dave is on holidays? You honestly believe that because he is not in the building his effect’s left with him? What is the outcome of your one investigation (good business decision or bullying to remove merch and kiosk-You do not need to speak to Dave to determine that, numbers and complaints don’t lie)? You seem to be giving all the politically correct answer so Belgravia can now be seen to be doing the right thing now that you are not being honest.

129. In a subsequent message shortly after and also sent by email to McIntosh, the plaintiff wrote:

I can still forward you correlated list of complaints already made but still do not wish to investigate. Belgravia had shown they cannot. They are biased.

130. A period of time appears to have lapsed and on Sunday, May 17, 2015 at 9.21 pm the plaintiff wrote the following email to McIntosh:

Hi Anthony

Due to:

•          Unilateral and fundamental changes of multidisciplinary contract

•          Harassment/bullying

•          Victimisation

•          Failure to provide a working environment which is reasonably suitable for the performance of duties

•          Failure to appropriate the act on bullying/harassment (duty of care)

•          Lack of management trust and support

•          Lack of effective communication

Belgravia has chosen to refuse unbiased mediation/investigation and refused to communicate/engage/suggest any possible remedies. I am therefore forced to resign from this untenable position for my own health and safety.

131. On Monday 18 May McIntosh replied to the plaintiff as follows:

Carrie,

It is unfortunate that you feel the need to resign your employment with Belgravia despite our efforts to resolve the very issue you listed in your email on 17 May 2015.

You have given us no option but to accept your resignation which will be effective from the date and time of your email (17 May 2015 at 9:21 pm). You will be paid your outstanding statutory entitlements directly into your nominated bank account in the next available pay run.

I sincerely wish you all the best in your future endeavours.

132. Approximately a half hour later the plaintiff again engaged in email communications and wrote to McIntosh in these terms:

Anthony

It is disappointing that I had too.

Resolution can never be reached when no effort, no communication, transparency or honesty are given. If you were truly sincere and impartial you would have. Having a one-off one-sided meeting is not resolving an issue and you refused any further.

You never had any wish to resolve the situation.

133. Two days later the plaintiff again emailed McIntosh. She said:

Hi Anthony,

I did wish to amend the first line of my resignation to the below to reflect what my position has been i.e. fundamental breach did not occur by one event alone (other circumstances listed contributed to a point I could not tolerate-see previous emails)…

Medical certificates can be provided for notice period if required.

Medical Evidence

Dr Akinbyi

134. Dr Akinbyi testified for the plaintiff. He was interposed during the carriage of the plaintiff’s evidence without objection by the defendant. Dr Akinbyi said that he commenced treating the plaintiff on 18 January 2011. He produced 2 written reports dated 27 April 2016 and 3 September 2016 (Exhibit P 11). He was shown the clinical notes of Dr Wani. He was taken to a subsequent letter of referral from Dr Wani dated 20 May 2015 (Exhibit P 12) and he consulted with the plaintiff again on 4 July 2015.
135. Dr Akinbyi was directed to his notes of attendance by the plaintiff.
136. Mr Johnstone directed Dr Akinbyi to the plaintiff’s evidence that between April 2011 and April 2014 she was coping and functioning well and when asked if she had any ongoing need for psychiatric treatment said she had not. Dr Akinbyi was directed to an entry dated 28 January 2012 in which he recorded that the plaintiff mentioned hearing voices and also that her ‘work is good’. Dr Akinbyi was prescribing medication to the plaintiff at this stage.
137. Dr Akinbyi agreed there was a gap of 6 months from 3 December 2014 to 20 June 2015 during which he did not see the plaintiff and as far as he was aware between these dates the plaintiff was not medicated. This is relevant because chronologically it was during this time that the accumulated effects on the plaintiff of the alleged treatment accorded her at work by Antonello appears to have become particularly relevant. Mr Johnstone suggested to Dr Akinbyi that the plaintiff’s mental condition deteriorated during this period of time and it coincided with the period of time that she was not compliant with medication. Dr Akinbyi was unwilling to make that concession but I am unable to accept it because in my judgement it is contrary to the evidence.
138. Dr Akinbyi was directed to his report to Dr Latiffe dated 18 January 2011. Initially he could not recall the report. It was pointed out to him that his mental state examination of the plaintiff conducted in 2016 was couched in almost identical language to his 18 January 2011 report. Self-evidently a reading of the later report mimics the earlier report.
139. Dr Akinbyi said that in his opinion the plaintiff would be less able to cope with stressors than the ordinary person because of her schizophrenia. He said he believed that her work stress aggravated her existing condition such as not to allow her to work.
140. Dr Akinbyi’s second report was provided in response to the plaintiff’s solicitors who by letter dated 22 August 2016 asked him to report on the opinions expressed by Dr Entwisle in reports he had provided to the defendant.  As well the plaintiff’s solicitors furnished Dr Akinbyi with the record of notes of attendance by the plaintiff on Molloy.
141. In Dr Akinbyi’s report of 27 April 2016 he said that the plaintiff was referred to him by Dr Wani and his first consolation was on 18 January 2011. The history he noted included the following references:

·The plaintiff worked as an administrative coordinator with the defendant commencing in April 2011 and since April 2012 at the EKLC[14] and that she was ‘forced to resign in May 2015’. She was working at the EKLC on a part-time basis for the last two years on a 30 hour per week basis as an administrative coordinator.

·She ceased working in June 2015 following a stress claim.

·She recounted that in about September 2014 she noticed her Centre Manager[15] having discrepancies in time sheets used to pay a co-worker who was a friend of his. The plaintiff regarded it as double dipping and she ‘told her manager to fix it’. She said that nothing was done and ‘she issued an ultimatum’ which in turn prompted her manager to make a complaint about her.

·In January 2015 the defendant reprimanded Antonello and as a result he stopped talking to her and was rude and was angry[16].

·She would speak and offer a greeting to Antonello but he would look away.

·She said the situation was highly stressful and she went to management and told them but nothing happened and she spoke to a mental health nurse[17] and commenced under his care.

·Bullying by Antonello commenced in September 2014 ‘and [it] came to a head in May 2015 when she was forced to resign’.

·She described becoming anxious and her paranoia worsening. She reported that thinking people were trying to get rid of her and were following her home.

[14] Factually incorrect

[15] Antonello

[16] A timetable of cause and effect at variance with the plaintiff’s viva voce evidence

[17] Molloy

142. Dr Akinbyi noted that the plaintiff stopped her medication for approximately two years because it were not helping her and he noted that at a review he conducted on 2 December 2014 the plaintiff had recommenced antipsychotic medication. She described her paranoia as better but her anxiety as ongoing. Her auditory hallucinations were not as loud as they had been.
143. Dr Akinbyi wrote in regard to the plaintiff’s psychotic symptoms that she described a worsening of the voices around November/December 2014. He described the plaintiff feeling that people were talking about her and that if she brought any work related matters to the attention of work colleagues there was always a reason why it could not be dealt with or needed to be looked into and this in turn fuelled her paranoia.
144. Dr Akinbyi diagnosed schizophrenia, a major depressive disorder with psychotic symptoms and a generalised anxiety disorder. In relation to her schizophrenia he regarded her prognosis as guarded. When asked to address the question whether the plaintiff’s injuries arose out of and during the course of her employment with the defendant, Dr Akinbyi wrote:

Ms Pfeiffer has a pre-existing condition and the injuries she sustained during the course of her employment with Belgravia Health and Leisure Group has aggravated her pre-existing psychological illness.

145. Dr Akinbyi concluded that the plaintiff does not have a current work capacity for unrestricted, pre-injury duties at her employer in the role she performed and he said that in his opinion the plaintiff did not have a residual work capacity for other suitable employment.
146. In his second report dated 3 September 2016 Dr Akinbyi was asked by the plaintiff’s solicitors to respond to a series of opinions expressed in the report of Dr Entwisle[18]. The questions and Dr Akinbyi’s answers are set out as follows:

·     Whether the plaintiff’s condition had settled as a result of management from Dr Akinbyi and with medication to such a point that she presented in July 2015 with a capacity for preinjury duties?

Dr Akinbyi wrote that he did not agree that the plaintiff’s condition had settled by July 2015 and nor did he believe that the plaintiff had a capacity for her preinjury duties at that time. He said he thought Dr Entwisle’s opinion constituted a ‘cross sectional view’ of the plaintiff’s presentation whereas he said that his opinions were based on a ‘longitudinal assessment’ of her mental state.

·     Whether having reviewed the entirety of Molloy’s notes it is evident that the plaintiff’s alleged difficulties at work followed a period of non-compliance with treatment in the context of a number of psychosocial issues such that her non-compliance with treatment for her psychiatric condition precipitated the work related events rather than the other way around?

Dr Akinbyi wrote that he did not agree with Dr Entwisle’s opinion that the plaintiff’s non-compliance with treatment for her psychiatric condition precipitated the work related events as opposed to it being the other way around. He wrote that the plaintiff had been non adherent with her anti-psychotic medication as it was not helping her for close to 2 years but despite the same was functioning ‘reasonably well’. He expressed the belief that the plaintiff experienced work-related stress as a result of which her mental state deteriorated which he believed was directly and causally related to work.  He believed that the injuries the plaintiff sustained during her employment had aggravated her pre-existing psychological illness.

·     Whether it was as a consequence of non-compliance with psychiatric treatment that the plaintiff misinterpreted events at her workplace and developed and anxiety disorder?

Dr Akinbyi disagreed with Dr Entwisle that the plaintiff had misinterpreted events at the workplace and hence developed the anxiety disorder. He reported that the plaintiff had been non adherent with her antipsychotic medication as it was not helping her for close to 2 years but had continued to function.

[18] Incorrectly referred to by the plaintiff’s solicitors as Dr Epstein

147. In relation to the balance of the questions asked of him by the plaintiff’s solicitors, Dr Akinbyi expressed the opinion that the plaintiff still laboured from total incapacity and when he last assessed her on 30 August 2016 his view was that she did not have the capacity for pre-injury work or any other work and that this situation resulted from her work-related injury.

Dr Akinbiyi’s Clinical Record

148. I have considered Dr Akinbiyi’s written reports in conjunction with his clinical record and his viva voce evidence. His written record identifies a number of observations and comments over the course of his consultations with the plaintiff, For example, on 28 January 2012 he wrote that ‘work is good’… ‘Ongoing auditory hallucination’. The plaintiff was prescribed medication. In March 2012 he recorded the plaintiff as continuing to experience auditory hallucinations. In February 2012 he recorded the experiencing ‘feelings of paranoia’ and ‘that somebody is watching her’. On 3 April 2012 he recorded that the plaintiff was under stress as a result of her son but was coping and that she was able to function well and she described the ‘voices is 100% better.’ It appeared this was as a result of a change in her medication.
149. Throughout June and August 2012 Dr Akinbyi’s notes include records of observations including the plaintiff completing university exams and her mood having improved and that she was continuing to do her work at the defendant three days per week. By November 2012 Dr Akinbyi recorded that the plaintiff was employed at EKLC[19] and that, ‘work has been busy - now there five days a week, swim teacher and front desk.’ In January 2013 he recorded the plaintiff as suffering depressive symptoms, being isolated and crying with voices getting worse and as well he noted that all medication had ceased[20]. By April 2013 Dr Akinbiyi’s notes include references as well to the plaintiff’s employment at the EKLC where she is ‘…doing well. Voices are there but no longer seems to bother. They say bad things, think people are thinking a certain way. Especially starting a new job, think they are out to get her, she thinks it but able to rationalise that it is not true’.

[19] Incorrect as the plaintiff was engaged at that time at Wyndham.

[20] An example of the correlation between the plaintiff’s heightened symptoms and non-compliance with medication.

150. A series of stressors continued to be noted in the latter months of 2013 such as in October 2013, ‘the voices getting worse’, and as well there was the presence of other stressors associated with the death of her mother-in-law and a family friend with cancer. By early December 2013 it is recorded that the plaintiff had stopped using Zyprexa and since doing so the voices ‘had become worse’[21]. There followed other entries by Dr Akinbyi including:

·On 5 February 2014 the plaintiff’s voices were ‘full on’ and the Administrator had left and she was performing administration work;

·On 3 December 2014 Dr Akinbyi wrote that plaintiff had stopped taking her medication and ‘things were good for a while’. As well he recorded that the plaintiff ‘thinks people have different roles at work than they do and of stories being made up’ and that ‘everything is a drama. Sometimes it distresses her’.

·On 6 June 2015 Dr Akinbyi recorded that the plaintiff ‘believed a few things were going on at work and she had resigned’ [on 17 May 2015]. ‘Constant talking, the room goes dark, when she is talking to certain people at workplace. She knows people are not following her but has to work it out in a head if it is true or not. Ongoing suicidal thoughts’.

·On 20 June 2015 Dr Akinbyi noted that the plaintiff was engaged in a dispute with the defendant at the Fair Work Commission and under the WorkCover regime. She was contending that the workplace failed to provide a safe working environment. She had complained that an employee was pilfering funds and she gave him an ultimatum to stop. She then went to the boss to say that he was not doing a good job only for him to start bullying her.

[21] My emphasis.

151. There were parts of Dr Akinbyi’s oral evidence that I found difficult. I expressed as much to Mr Ryan in the course of his final address. He was not easy to understand. In addition, for example, his reports omitted reference to other events that were occurring in the plaintiff’s life during the tenure of his treatment of her. His lack of reporting and assimilation of other stressors operating on the plaintiff calls for closer consideration of the extent of his investigation and the assistance that can gained from his opinion attributing the plaintiff’s injury solely to her work. The absence of reference by him to the other factors operating on the plaintiff makes the task of calibrating them and their significance in relation to aggravation occasioned by work or management practices difficult. He exhibited in his oral testimony a nonchalant attitude to the plaintiff’s partners alleged ice addiction and its effects on the plaintiff’s family dynamic was given little weight by him. Nonetheless I have given importance to the fact that despite some limitations occasioned by his reporting and testimony he has had the benefit of seeing the plaintiff and treating her over a lengthy time and hence is opinion is grounded over a broad timespan.
152. In response to the stressors not canvassed or considered by Dr Akinbyi in his reports I am not satisfied that this a type of case in which it might be open for me to conclude that the absence of reference by a treating doctor to other factors might reasonably be thought to lead to the conclusion that to the extent they prevailed they were in his opinion of no or little significance. I am satisfied the other matters amounted to stressors and were significant contributing factors to the plaintiff’s ongoing battle with schizophrenia.

Altona Super Clinic Notes

153. The Altona Super Clinic notes for the period December 2010 to April 2015 were before me in evidence (Ex P12). The first entry is dated 20 December 2010. It records that the plaintiff was sent by Dr Wani to Dr Akinbyi for a psychiatric assessment of her mental condition due to uncertainty of diagnosis of bipolar disorder. The plaintiff had been experiencing difficulty sleeping and at the time of the referral to Dr Akinbyi was working from home and conducting a massage business. She was sleeping only 3 hours per night. She was prescribed Serapax[22].

[22] Serapax is a prescription medicine prescribed often enough for anxiety

154. The Altona Super Clinic records identify the provision to the plaintiff of various prescriptions at various times. In 2012 Dr Akinbyi prescribed medications to the plaintiff on at least 10 occasions and in 2013 the plaintiff attended on Dr Akinbyi on 9 occasions and on 5 of these occasions medication was prescribed. In 2014 the plaintiff attended on Dr Akinbyi on 4 occasions and on 3 of these attendances medication was prescribed or prescriptions renewed.

The Molloy Notes of Attendance

155. The first recorded attendance by the plaintiff on Noel Molloy is dated 10 February 2011. His notes refers to ‘Jude Weston’ psychologist however the plaintiff said the name meant nothing to her.  There were references as well in his notes to problems with the plaintiff’s medication. References to the plaintiff’s medication appear in March 2011, on 20 June 2011, 8 July 2011 and 8 November 2011. In the course of 2011 there are references to prescription medication and despite an increased dosage a note records the plaintiff as ‘Isolated herself not mix with friends’. There are further references by Molloy to medication on 28 January 2012 and 12 April 2012. On 17 April 2012 a note records that ‘medication working’. On 22 December 2012 a note records the plaintiff having been offered a job at the EKLC and that her medication ‘is working’ and she is suffering ‘low-grade hallucinations’. On 15 January 2013 an increase in medication was noted and on 7 May 2013 it was recorded that the plaintiff was ‘compliant with medication’. On 27 May 2013 an entry records the plaintiff was complying with medication but that she did not like the taste. An entry dated 18 October 2013 noted that the plaintiff although preferring to keep to herself was described as compliant with medication. On 7 November 2013 it was noted that the plaintiff attended Dr Akinbyi and her medication was increased and changed to Zyprexa[23]. Approximately a month later on 6 December 2013 Zyprexa was stopped and alternative medication prescribed.

206. I am satisfied that the decision by Antonello to use the process and architecture of a Performance Review to meet with and respond to the plaintiff’s concerns about Torres and to consider her request for a pay rise and his subsequent decision to reject this request amounted to management action. I am also satisfied that the conduct by management to decline the plaintiff’s request for a pay increase constituted management action but I am not satisfied it was reasonable management action taken on reasonable grounds. No evidence was adduced to identify any cogent reason why the request was denied. Antonello said the matter of the request was referred to management and the request declined but why it was declined was not explained and no evidence led by the defendant to identify a reasoned objective basis for the same. It is apparent as well from the ultimate distillation of issue agitated by the plaintiff that this decision was one that added to and worsened her progression such as to lead to her ultimate decision to resign and hence she has discharged her shifting burden that such aggravation of her mental condition was not caused wholly or predominantly by management action taken on reasonable grounds such that any aggravation attributable to that action was caused wholly or predominantly by the same and not otherwise.  
207. The matter of the plaintiff’s complaint about Torres stands apart. I have considered the fact that of the plaintiff’s evidence that despite having brought her complaints about Antonello to his attention as well as her complaints about Torres, both prior to the Performance Review and in the course of it, she said that Antonello did not appear upset with her and she believed him when he told her that he would look into the issue of Torres. The further evidence from Antonello and from Campbell was that an audit was undertaken in regard to Torres and no irregularities were identified. The ongoing prosecution by the plaintiff of a belief to the contrary about Torres is one thing, but the employer should be not be expected to respond on an ongoing basis to the plaintiff’s continuing upset and disquiet about Torres after it has objectively satisfied itself of a lack of merit in the complaint. To demand otherwise of an employer would be unwarranted and overly burdensome and not supported by any authority to which I was directed by the plaintiff.  The decision to refuse a request for an assistant in the kiosk operations also falls into the category of management action but here there was evidence led by Antonello of the lack of operational capacity based on through traffic for the plaintiff’s request to be met. I am satisfied that this was management action and that it was reasonable management action taken on reasonable grounds in a reasonable manner.
208. There were a series of other ‘stressors’ that were drafted and referred to but  none of them reached a sufficient level of proof and they had the effect as so often the case to the distract from the core claim.
209. The next series of matters for consideration involves the narrative of events and fluid situation that arose in response to the plaintiff’s complaints to management about Antonello’s conduct generally which she complained about and her belief that management’s response to the same was inadequate and had placed her in ‘harm’s way’ and her resultant aggravation of her mental state.
210. I have already noted that in May 2015 the plaintiff wrote to McIntosh and said that she was not able to cope and said that she could not sleep. I am satisfied that by this time her psychiatric condition and its symptoms were profoundly impacting her. McIntosh said that he regarded the contents of the plaintiff’s complaint expressed in email (No 1) as identifying a sufficient basis to have initiated an investigation. However, the plaintiff was told on more than once occasion by her employer that further details were required from her. McIntosh could not explain why. The requests for further details was not a reasonable basis to have delayed an investigation. The email sent by McIntosh to others in management included as well the direction to ‘tell her to get back to work’. The tenor of the email regardless of the genuineness or not of the plaintiff being at risk of harm was an instruction for her to return to work and amounted to management action and was in the face of the communications by the plaintiff to management unreasonable.
211. On 16 March 2015 the plaintiff advised her employer that she no longer wanted an external person to deal with her complaint because she thought her employment would be transferred from EKLC, however, when that did not eventuate she reinstated her request to management for an external independent third party and reinvigorated her request by a further email to Ms Campbell dated 24 March 2015 (Tab 6). (Tab 7) comprised the email that noted that Farkas was ‘making contact with VECCI today to organise a mediation’. There was a further effluxion of time. The plaintiff’s evidence was that she was unaware of that development.
212. How an investigation was to be conducted whether internally or externally and whether with the consent or not of the plaintiff was fundamentally a responsibility of management which I am satisfied on the evidence was abdicated.
213. On 1 May 2015 the plaintiff emailed Ms Campbell stating that she had decided not to take leave as she believed there ‘will be adverse consequences’ to her if she did because she believed Antonello had been passing on to other people work that was her responsibility and she expressed the concern that if she took leave when she returned there would be no work for her to do. McIntosh replied that her leave had been arranged and there would be no adverse consequences to her. That response at the time was reasonable.
214. The plaintiff was directed to her email to McIntosh of 5 May 2015 sent at 6.23 pm in response to his email earlier in the day when he wrote to her that despite previous requests made on 30 April and 1 May 2015 he ‘had yet to receive any examples that can be investigated’. He added that in regard to the ‘removal’ of her responsibilities for Kiosk/Merchandise he would discuss that with Antonello on his return from leave.
215. The plaintiff’s email of 6.23 pm to McIntosh included:

‘You choose (and continue) to ignore clear ramifications of bullying and refused unbiased mediation to rectify or address issues. I, therefore, had no choice but to remove the legal ramifications to myself’.

217. In an email dated 6 May 2015 and sent to McIntosh at 9.49 pm the plaintiff said that her position had been affected ‘so much since making bullying complaints’ and McIntosh replied that he believed her ‘response had been unsatisfactory and that she preferred to accuse a range of people without any real supporting evidence’.
218. The plaintiff when asked about this tranche of emails sent by her said that when she sent them ‘I was not going to return to work so to be honest I was just trying to be a bitch’. She added, ‘I had had enough of it and I had voices going on’.

Summary

219. I am positively satisfied that had the defendant managed the plaintiff’s complaints better and managed them in a way that had brought a conclusion to the plaintiff’s matters of complaint then arguably the defendant would have been in a better position to have relied on the defence of reasonable management action. Had it done so, the onus would have shifted back to the plaintiff to establish that any worsening of her pre-existing condition was not wholly or predominantly caused by such management action. However, that is not the position I have found to exist in a number of instances.
220. It is not to the point that the plaintiff might not have found satisfaction with management’s response to a proper investigation of her complaints. As the authorities make clear the question of the action taken by management in any given set of circumstances is to be assessed objectively.
221. The defendant’s response to the plaintiff’s complaints referrable to the objective facts known at the time to the defendant or reasonably capable of being ascertained was in my judgment unreasonable. I do not find that the responses by management were intentionally below par but intention is irrelevant. Furthermore, having listened carefully to the plaintiff testify over the course of several days I can appreciate that the defendant’s management must have found coming to grips with the substance of the plaintiff’s complaints extremely difficult but the plaintiff was entitled to no less a reasonable response from management to work related complaints of conduct irrespective of the difficulties they presented to management in their identification and management and these difficulties included of course navigating the changes to the way the plaintiff wanted her complaints dealt with and whether by the intercession of a third party or not. The response by management was hindered as well because of the imprecision with which many of the complaints were formulated by the plaintiff and the employer of course was unaware of the plaintiff’s schizophrenia which undoubtedly affected her perception of the conduct by Antonello and by management.
222. However, regardless of the defendant’s lack of knowledge of the plaintiff’s mental illness, in my judgement she could reasonably have expected more from her employer. She could have expected the policies for dealing with complaints to be engaged. They were not. She could have expected the left hand to know what the right hand had done or was intending to do. That was not the case. Not a single contemporaneous note of pertinent discussions held with the plaintiff and her employer was made and nothing was produced in evidence to inform the management processes adopted by the defendant in dealing with the plaintiff’s complaints. Perhaps there existed other documents that might have shed further light on the matter and of course Antonello suggested the existence of other emails he believed existed and that he said he provided to Farkas but neither he nor any additional emails were produced. I was asked to draw an adverse inference from the failure of the defendant to adduce evidence from Farkas. For example, the defendant was unable to identify the adoption or the adaption of polices and protocols that existed for the management of employee complaints. Evidence from the defendant’s Human Resources Manager might have elicited relevant evidence on the question. Based on the extent of evidence that was adduced, I am satisfied the plaintiff was not dealt with according to the policy template. In the circumstances because of my primary findings it has not proved necessary to draw an adverse inference.   
223. Another problem associated with the action taken by management to the plaintiff’s complaints was that the involvement by management in addressing the plaintiff’s concerns was diffused across a variety of people in authority, however, the provision of information about the complaints between the relevant individuals was lacking, as exemplified by the evidence of McIntosh that he was ‘unaware of the complaint of bullying’.
224. Mr Johnstone contended that although the workplace response was not perfect the defendant did respond to the plaintiff’s concerns and it is the plaintiff’s perception that has framed her adverse response to the employer’s conduct. I agree with Mr Johnston’s submission that the response by the defendant was not perfect however it is not a requirement at law that it need be but rather and only that the employer’s management action when assessed objectively constitutes a reasonable response. As far as perception is concerned, I have already addressed that matter and made my findings on it.
225. Mr Johnstone submitted that that the events operating on the plaintiff’s private life were all stressors impacting on her existing vulnerable mental state and by and large these stressors had been impacting on her for a much longer period of time than Antonello’s impugned conduct and therefore objectively assessed the former were significant matters and in all probability more significant than the events that she was met with at work. I agree but again and for the reasons I have already expressed, I am satisfied that the work events comprising the defendant’s conduct in responding to the plaintiff’s complaints were also significant contributing factors.
226. I am satisfied that by May 2015 the plaintiff was not only continuing to complain about Antonello but more importantly her belief in the failure by management to deal with her complaints and bring them to resolution. Her belief was well founded. Her disaffection with the manner and progress of her complaints was genuine and rooted in fact and not fanciful.

Did management’s response aggravate the plaintiff’s pre-existing mental condition?

227. Mr Johnstone observed that between January 2012 and June 2015 Dr Akinbyi saw the plaintiff in excess of two dozen occasions. He noted that Dr Akinbyi did not say that the plaintiff’s work was a significant contributing factor either in his evidence or his report (P11) but he testified that in his opinion her work had aggravated her pre-existing condition. The records from Molloy were provided to Dr Akinbyi and in his supplementary report dated 3 September 2016 he made a temporal connection that the plaintiff’s work is a factor in her condition. He wrote that the plaintiff had reported that she had not been compliant with her medication but had been functioning well. However, as Mr Johnstone submitted, this account of presentation by the plaintiff is inconsistent with the clinical notes received in evidence, which contrary to the opinion of Dr Akinbyi, identified a deterioration from 2012 and not just a deterioration or worsening from the latter part of 2014. As well Dr Akinbyi’s 2016 report of mental state examination of the plaintiff is in the same terms as his mental state examination report made in 2011 including that her mental functioning had not altered.
228. The defendant’s submission rests on the proposition that the plaintiff presented with no progression i.e. a worsening of her condition from the latter part of 2014 and that her presentation was essentially the same as it had been prior to the alleged impugned work conduct.
229. Mr Ryan submitted that the evidence should lead to a very different conclusion than contended for by the defendant. He referred to contemporaneous notes appearing within (Ex P20) that identifies a basis in fact that prior to the commencement with the EKLC and Antonello having day to day contact with the plaintiff that her situation was settled enough for her to work without evident disquiet in the workplace despite her existing mental disorder. There is merit in this submission.
230. I am satisfied that prior to Antonello assuming the position of the plaintiff’s manager there is no evidence of any documented work related issues regarding the plaintiff. However, by 3 December 2014 one can see that there has been an alteration in the plaintiff’s presentation and this reflected by the note made concerning the plaintiff that, ‘aware she had stopped taking medication, everything at work was distressing her’.
231. Dr Entwisle’s second report noted his concern at the plaintiff’s failure to continue with her medication from in about August 2014. Mr Johnstone relied on this to argue that the plaintiff’s problems occurred after she ceased her medication. He pointed out that it was subsequent in time to her stopping medication that clinical notes record the plaintiff as increasingly disturbed.
232. Mr Johnstone attributed the plaintiff’s inability to presently return to work as due to litigation anxiety. The litigious environment and workcover process in which a plaintiff is embroiled may play a part in an ongoing mental state. In regard to the matter of the administration of the worker’s claim I note that any feature or manifestation in the plaintiff because of what was once labelled ‘litigation neurosis[33]’  can be misleading and, for my own part, would prefer to adopt the reasoning that if a factor contributing to an ongoing incapacity on the part of a worker includes the litigation associated with a claim for a work related injury and it can be seen as having stemmed from the original injury or its aggravation, then prima facie, there is no sound or logical reason to exclude it as part of the mix.

Current capacity

[33] See Hruskar v Champion Meat Packing [1974] 4 WCBD 408

233. As to capacity, what does the evidence reveal of the plaintiff’s condition post injury? The defendant submitted that the relevant consideration to which I should have regard and attribute determinative weight is to be found in the email chain of 17 May 2015 in which the plaintiff was seeking to negotiate a return to work or a payment by the defendant and nothing was raised by her of an inability to work. Mr Johnstone submitted that the evidence did not disclose that as at 17 May 2015 the plaintiff laboured from a work related incapacity. As well he relied on the testimony of Dr Akinbyi that the plaintiff has suffered a possible deterioration from other factors.
234. The defendant collated the evidence going to the question of capacity by way of a comparison of the plaintiff’s condition post March 2015 to her documented condition prior to March 2015 about which she expressed herself as functioning well, not medicating and not seeing doctors. I am not satisfied that her account is a reliable history in all respects as the medical evidence records the plaintiff as having experienced fluctuating periods of paranoia and difficulties with leaving her house and interacting with people as well as trust issues well prior to September 2015. Post March 2015 the plaintiff is recorded as having recommenced medication, was very paranoid, could not leave her house, was plagued by thoughts running through her head and was ruminating all of which Mr Johnstone pointed to as characteristics from which the plaintiff laboured before the claimed aggravation. Mr Johnstone submitted that there was no objective evidence that should on the balance of probabilities satisfy me that there had been a worsening of her condition. Mr Johnstone said that over the period March, April and May 2015 the plaintiff was exhibiting nothing more serious than frustration and anxiety through a lack of resolution being brought to bear by the defendant but that frustration and anxiety do not constitute ‘injury’. If the plaintiff’s condition was reduced to no more than this, then her claim might have failed. However, the difficulty I have with this contention, is that I am not persuaded that I should without explanation assume that the same or similar symptoms presenting at different times in a worker who suffers a psychiatric disorder such as schizophrenia excludes the work as an operative cause for the presentation of the same and moreover despite being able to cope with work in the past, the effects of the same symptoms had a profoundly more acute and serious impact on the plaintiff and incapacitated her for work. There is as well the clinical findings of Dr Entwisle to which I have already referred.
235. Mr Ryan contended that the defendant’s defence to the proceeding could be characterised as ‘a highly sanitized set of submissions’. He submitted that the plaintiff has been incapacitated since 17 May 2015 and has no present current work capacity. He relied on the certificates of incapacity. The provision of certificates by qualified medical practitioners is a matter of significance and due weight should be afforded them but, of course, they are not inviolate and their relevance and reliability in determining current capacity are open to be displaced by other evidence. Has that occurred?
236. As I have noted earlier, Dr Entwisle’s second report includes the opinion that the plaintiff’s mental condition does impact on her capacity to work and very importantly that her mental condition flows from her work place but that the matters that have occurred at work have been exaggerated as a result of the plaintiff’s non-compliant regime of medication. In short, whilst Entiwsle’s opinion of causation is not predicated on the plaintiff’s work, his opinion as to the plaintiff’s capacity, does support a finding of incapacity although not enduring or excluding work elsewhere.

233. Mr Ryan further submitted that on the premise that the plaintiff has established incapacity, the question of the operative cause is not difficult. Mr Ryan described Antonello’s conduct as having had an adverse effect on the plaintiff that has led to an ongoing incapacity. Mr Ryan developed a picture of the plaintiff as young woman who went from being able to hold down her job to one who has now has no capacity for employment with the cause of the deterioration being her work environment. He submitted that ‘all of the matters have impacted the plaintiff’ including:

A failure to take appropriate measures to deal with the complaint of bullying.

A failure to organize mediation as repeatedly requested by the plaintiff but not accommodated by the defendant apparently due to time constraints.

238. Mr Ryan’s submission noted the text message sent by the plaintiff at the end point of her employment that she was suffering from work related stress and was decidedly unwell.
239. I asked Mr Ryan on a number of occasions in the course of his final address that if I accepted the facts as he presented them what was the extent of the medical evidence to establish the existence of a progression in the plaintiff’s pre-existing mental condition because of the conduct of the defendant as opposed to the evidence confirming and corroborating a consistency with her pre-existing mental state. After all the plaintiff must establish that she sustained injury arising out of or in the course of employment in the sense that employment was a significant contributing factor that has resulted incapacity.  In challenging the existence of an evidentiary basis for current incapacity the defendant pointed not only to the actions of the plaintiff in seeking to negotiate a continuation of her employment but as well to the plaintiff’s testimony that save for the Antonello matter and the lack of resolution of the same by the defendant she enjoyed her work. Mr Ryan sought to counter the effect of the plaintiff’s testimony when he submitted that I should not find that she was not holding herself out as having a present capacity to undertake her employment with the defendant but that her evidence reflected no more than at that stage her desire to work in an environment in which her concerns were dealt with but that in any event she was in receipt of a certificate of incapacity. I agree.
240. I do accept that the contents of the plaintiff’s email dated 15 May 2015 (Tab 13) can only reasonably be construed as the plaintiff treating with her employer that she return to work on acceptable terms.  Mr Ryan conceded this was a reasonable interpretation of the email’s contents but he submitted that the plaintiff’s incapacity is a medical question and cannot be mitigated because of such an expression on her part. There is force in that submission and on balance I accept it particularly in light of the plaintiff evident and historical lack of insight into her condition and her unreliable recall of history including that of treatment. Ultimately that the work events real and perceived had no adverse reaction is dependent on a fallacy that ignores the progression that at the end point of the chronology she laboured from incapacity to undertake her employment as certified and that this is at face value evidence of a worsening progression by the plaintiff.
241. Mr Ryan submitted that although the defendant sought to make much of the vexed and variable accounts given by the plaintiff of her medical history and the disconformity between her evidence and the documented case management history disclosed in the clinical records, nonetheless, at no stage was the plaintiff said to have been incapacitated by reason of her psychiatric condition and that stage was not reached until 17 April 2015. I agree with this submission.
242. Sarah Tiong’s report dated 13 May 2016 (Exhibit P19) identified a pre-existing condition. She expressed the opinion that:

The various incidents of bullying and intimidation during her employment at Belgravia Health… aggravated and exacerbated her pre-existing psychological illnesses.

243. Tiong noted that the plaintiff reported being stable and managing work and home life well before the claimed bullying and then reported a decline and that this impacted her with an increase in low mood and an increase and anxiety. She expressed the opinion that the plaintiff had suffered an exacerbation and aggravation of the psychological condition. Tiong also expressed the opinion that the plaintiff’s work was a significant contributing factor.
244. In considering the assistance that I have been able to obtain from Tiong’s report, an unhelpful fact is, that she does not refer at all to the history of symptomology the plaintiff presented with or address the number of other stressors that were operative in the plaintiff’s life thus rendering questionable her opinion that the plaintiff’s work was a significant contributing factor.
245. Tiong was not called and hence she was not challenged about any part of her report such as the absence of reference to historical accounts of other events that I heard evidence about. Regardless that the report was received unchallenged and it falls to me to determine the value of it as with every expert opinion relied on by the parties. Furthermore, Tiong’s report does not address the effect of the response of management on the plaintiff. In light of my findings rejecting the fact of the occurrence of the conduct alleged against Antonello save for discreet incidents that I have found on balance occurred but did not caused an aggravation injury I was not assisted by Tiong.
246. The plaintiff resigned on 17 May 2015. Three days later Dr Wani referred the plaintiff back to Dr Akinbyi. He recorded that she has recently had issues at work and feels stressed. That was the reason for the referral. Dr Akinbyi in his report dated 3 September 2016 sated:

I don’t agree with Entwisle…she was not taking the anti-psychotic material and she was coping until the work related stress when her mental state deteriorated.

247. There is validity in that expressed view of Dr Akinbyi.
248. The plaintiff suffered ‘injury’ by way of aggravation of her pre-existing mental condition in the course of her employment with the defendant as a result of the defendant’s responses to the plaintiff’s complaints to management about Antonello and Torres.

249. I am satisfied that the defendant’s response in dealing with the plaintiff’s allegations of bullying and allied conduct by Antonello amounted to ‘management action’ within the meaning of s 40 (7) (m) of the Act;

250. The defendant’s management action in response to the plaintiff’s complaints was not reasonable management action taken on reasonable grounds in a reasonable manner.

251. The inadequacy of the response of management is not excused by reason that the plaintiff’s perseverance with her complaints were aggravated responses informed by her perception of matters of fact or by reason of non-compliance with medicines prescribed to assist manage her pre-existing condition.

252. I am satisfied that the decisions taken by the defendant to refuse the plaintiff a salary increase; the decision by Antonello relieve the plaintiff of responsibility for the kiosk were each instances of ‘management action’.

253. I am satisfied that the management action taken was not reasonable management action taken on reasonable grounds in a reasonable manner.

254. I am satisfied that the plaintiff suffered injury in the form of aggravation by way of a worsening of her mental condition by reason of the management action taken by the defendant in response to her allegations of bullying and allied conduct by Antonello and I am not satisfied that the defendant has discharged its onus of proof that such injury occasioned to the plaintiff was in response to the reasonable manner of its management action.

255. CGU adopted the view that the employer’s consideration of the plaintiff request for a pay rise and its refusal and its decision to refuse the recanting of the resignation were management actions and taken reasonably and that these were the reasons for her disgruntlements. This is a rejection claim and I am not satisfied that the grounds are made out.
256. It was intimated by Mr Johnstone that the Kerridge v Monsfelt Pty Ltd [2009] VCC 0154 applies in that the plaintiff could return to work elsewhere. I am not satisfied that she could. Neither am I satisfied that the plaintiff has a residual work capacity for other suitable employment and Tisong supports this finding and her finding remains undisturbed from a medical point of view irrespective of casual attribution she sought to bring to bear about which I have already commented.
257. Mr Johnstone submitted that Kerridge has other operative work to do and that his Honour Judge Bowman said that all questions are open for determination and the defendant is not confined to the grounds relied on in its notice. Like issues are reflected in the decision of the Court of Appeal in Jarvis. As is apparent from my primary findings this controversy real or supposed does not call to be addressed.
258. I am satisfied that the administration by the defendant of its practices put in place to respond to and deal with the plaintiff’s complaints were not reasonable and the delay visited on the plaintiff by the defendant’s conduct contributed to her anxiety that in turn fed into an aggravation of her pre-existing mental state exhibited in the form of schizophrenia  and a major depressive illness and that such manifestations of a worsening of symptomology associated with her condition had also been made worse by Antonello’s behaviour toward her. All of this culminated with the plaintiff’s decision to resign. She very soon afterwards sought to retract her resignation but to no avail. Her communications with her employer and in particular Mr McIntosh in May 2015 suggest a woman in a very fragile condition.

259. Mr Johnstone suggested to the plaintiff that if Antonello had been taken out of the equation she was at the time able to work. Her last email dated 18 May 2015 proposed a payment of $50,000. She said she was ‘just being stupid and a bitch and what I thought then I don’t think now and my mental health was no good’. That response by the plaintiff was itself very much in character and indicative of the effect of her mental condition made worse by the employment. I am not satisfied that the level of the plaintiff’s incapacity can be ameliorated by assessing her with a work capacity elsewhere. Such attempts at work subsequently were unsuccessful.

Conclusion

260. For the reasons expressed the notice dated 23 July 2015 should be set aside and the plaintiff is entitled to weekly payments of compensation and like benefits on the basis on no current work capacity for injury comprising aggravation of a mental type disorder namely chronic schizophrenia and major depressive illness.
261. I will direct that a minute of order giving effect to these reasons including costs be filed with the Court.