Piper v Department of Transport
[2024] VMC 1
•08 March 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. MAG-CI-220037888
| Justin PIPER | Plaintiff |
| v | |
| DEPARTMENT OF TRANSPORT | Defendant |
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| MAGISTRATE: | Magistrate M AHOARE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 01 – 08 December 2023 |
| DATE OF DECISION: | 08 March 2024 |
| CASE MAY BE CITED AS: | Piper v Department of Transport |
| MEDIUM NEUTRAL | [2024] VMC 1 |
| CITATION: |
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WORKERS COMPENSATION – Rejection of claim – Mental injury – Claim brought
by safety adviser alleging workplace bullying and unreasonable management action after a period of parental leave - Whether mental injury was of a non- compensable type arising wholly or predominantly as a result of management action on reasonable grounds in a reasonable manner - Whether capacity for pre-injury employment - Workplace Injury Rehabilitation and Compensation Act 2013, ss 39(1), 40(1), 160.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr G. Pierazio | Clavens Burdess Lawyers |
| For the Defendant | Mr B McKenzie | Hall & Wilcox |
| HER HONOUR: | ||
| Overview |
1. Mr Piper, a safety adviser employed with Major Road Projects Victoria (MRPV), a division of the Department of Transport (DOT), claims compensation for mental injury under the Workplace Injury Compensation
and Rehabilitation Act 2013 (Vic) (‘the Act’).
2. According to his WorkCover claim form of 31 May 2022, Mr Piper claims
that he suffered ‘major depression’ as a consequence of ‘workplace
bullying’ (‘the claim’).3. MRPV defended the claim (which was rejected by notice dated 8 July 2022) on the grounds that any injury was a mental injury caused wholly or predominantly as a result of management action taken on reasonable grounds and in a reasonable manner pursuant to s.40(1) of the Act.
4. The factual circumstances were unusual and somewhat complicated. A voluminous quantity of documents (including extensive email communications) were tendered into evidence. Many acronyms were used and adopted by parties and witnesses. Accordingly, it is convenient to begin by setting out relevant factual matters based on those contemporaneous documents that were not in dispute. I will then turn to the evidence on contentious matters.
5. In addition to the plaintiff himself, Mr Piper’s former treating GP, Dr Julia
Coote, gave oral evidence. As did various lay witnesses for MRPV, all being former or current employees of the DOT: Ms Yalcin, Mr Doyle, Mr Cracknell and Mr Walker.
Factual background
6. In December 2018, Mr Piper presently aged 37 years, began permanent full-time employment as a safety adviser (SA) with MRPV. Before that, he worked in a similar capacity with MRPV, although as a contractor, from July 2018.
7. MRPV had responsibility for numerous major programs of construction work across metropolitan Melbourne.
8. In broad terms, the role of SA involved project sites inspections and compliance checks of the project sites to ensure contractors adhered to public safety standards.
9. Between March and September of 2021, Mr Piper was on approved parental leave (PL). That was taken in accordance with the Victorian Public Service Enterprise Agreement 2020 (VPSEA 2020). His PL coincided
with the birth of his first child, Mr Piper becoming the baby’s primary
carer after his wife return to work.
10. In late August 2021, discussions and email exchanges ensued between Mr Piper and his managers: Mr Doyle, area safety manager, and Mr Cracknell, his line manager, about his planned return to work (RTW).
Mr Piper raised his need for ‘some stability and certainty’ as to reporting lines and accountabilities. He also expressed feeling ‘disappointed’ about MRPV’s handling of his unsuccessful application for promotion to Senior
SA whilst on PL.
11. Due to the COVID-19 restrictions then in place, Mr Piper also raised his need for a childcare permit so he could access childcare.
12. On 31 August 2021, Mr Piper and Mr Cracknell met via the Teams platform[1] (to discuss the RTW arrangements including the still outstanding childcare permit).
[1] Unless otherwise stated, all meetings were online and occurred via the ‘Teams’ platform.13. Prior to his PL, he had been based in a program in the north-west (based in Essendon).
14. In September 2021, Mr Piper resumed work initially WFH (working
from home).
15. On 11 and 12 October 2021, Mr Piper and Mr Cracknell exchanged emails regarding various operational matters and Mr Piper having outstanding site surveillance tasks. During that exchange, Mr Piper requested time with Mr Cracknell as follows:
•
Some time ‘this week or next week to discuss workload, responsibilities and PDP’ (a performance development plan); and
•
Time ‘for a meeting to discuss workload, responsibilities and PDP’ which he had been requesting ‘for three weeks now’ since before his return from PL and the need for ‘structure and some assurances’ to
assist in managing workload.
16. On 21 October 2021, Mr Piper and Mr Cracknell had a meeting (the 21 October 2021 meeting). A screenshot showed the meeting began at 2:00 pm and lasted for 31 minutes and 35 seconds.
17. Mr Cracknell sent the 21 October 2021 meeting invite earlier the same day (at 10:56 am) entitled ‘Discussion about core responsibilities and workload expectations’. Also attached to the meeting invite was a ‘PD’ (position description) document for the role of ‘safety adviser’. After
receiving the invite, Mr Piper called Mr Cracknell over Teams and they
spoke for seven minutes.18. Also on 21 October 2021, following the 2:00 pm meeting, there was another telephone discussion when Mr Piper called Mr Cracknell.
19. The next day, on 22 October 2021 (a Friday) Mr Piper emailed Mr Cracknell informing him that he was now on sick leave which was likely ‘to be for an extended period’. He stated he would give an update after
seeing his GP.
20. Mr Piper’s usual medical practice of many years was the Bundoora Family Clinic (BFC).
21. On 26 October 2021 (a Tuesday), Mr Piper saw Dr Coote, a GP at BFC, via telehealth (the 26 October 2021 attendance). Dr Coote recorded
the following history: ‘Just came back from 6 months of PL / Feels he is being bullied / Never a problem previously … / Has raised issues with HR, but feels hasn’t had a productive process / Not very forthcoming about
the nature of the bullying / Feels he has been organised work to do that
he can’t get done. Performance management 2 weeks after coming off
leave for 7 months … / Discussed EAP… contacted psychologist and made
appt already … Everything feels like a personal attack … Requested two
weeks Stress leave.’
22. Dr Coote issued a medical certificate during the 26 October 2021 attendance (a matter to which I will return).
23. On 5 November 2021, Mr Cracknell emailed Mr Piper asking for
‘evidence to support [his] absence’ from work and asking when he would
RTW.
24. On 8 November 2021, Mr Piper resumed work and emailed Mr Cracknell apologising for his ‘less than stellar communication’ and also stating that ‘due to recent events I now find myself suffering from major
depression and anhedonia’ (the 8 November email). He referred to having
a treatment plan from his GP and noted his plan to work on completing a
‘to do’ list. That included submitting a leave request for his absence from
22 October 2021.
25. Later on 8 November 2021, Mr Piper and Mr Cracknell had a discussion about outstanding tasks and other operational matters.
26. On 10 November 2021, Mr Piper emailed Mr Cracknell reporting absence due to sickness. Later the same day, Mr Cracknell emailed Mr Piper a list of outstanding tasks and followed up his leave application.
27. On 12 November 2021, Mr Cracknell emailed Mr Piper to enquire whether he was at work or on leave as he had not been online.
28. Over the next month, Mr Piper saw a GP at BFC regarding mental health issues as follows:
•
on 11 November 2021 (Dr Coote) and a medical certificate was issued (a matter to which I will return).
•
on 16 November 2021 (Dr Dhaliwal his usual GP) and was prescribed an anti-depressant Zoloft (50 mgs/daily); and
• on 13 December 2021 (Dr Dhaliwal) for ‘depression’ and had prescribed a doubled Zoloft dosage (100 mgs/daily).
29. In the new year, on 13 January 2022, Mr Piper saw Dr Dhaliwal who recorded a history that: his depression was ‘improving’; work was ‘still stressful but manageable now’; and his ‘mental health was improving’
with the anti-depressant well-tolerated.
30. On 7 February 2021, Mr Piper and Mr Cracknell had a meeting about outstanding tasks and some covid-related leave taken.
31. On 23 February 2022, Mr Piper emailed Mr Cracknell reporting he would be on sick leave for the rest of the week. The next day Mr Cracknell wrote back regarding his absence, leave entitlements and seeking a medical certificate.
32. On 2 March 2022, Mr Piper attended a different GP at BFC, Dr Crilly, who recorded a complaint of ‘anxiety at work, taking days of work’.
33. On 8 March 2022, Mr Piper received a formal letter from the CEO of MRPV (the 8 March 2022 letter). MRPV advised him of the instigation of
an ‘initial assessment’ into alleged ‘inappropriate workplace behaviour’. This was pursuant to clause 23 of the VPSEA 2020 as well as MRPV’s
Management of Misconduct Policy (the misconduct policy). The letter informed him of his right to have a support person present at any
meeting and reminded him of the availability of counselling via MRPV’s
Employment Assistance Program (EAP).
34. The ‘inappropriate workplace behaviour’ alleged by MRPV was that Mr Piper had: ‘Falsified multiple medical documentation relating to personal leave taken between 25 October and 15 November 2021’ (the
certificates allegation).
35. Pausing here, the certificates allegation was a substantial focus of the hearing and a matter of considerable controversy between the parties. Contradictory evidence was adduced as to the authenticity and origins of four medical certificates. In essence, the certificates allegation arose
because of apparent discrepancies or a ‘mismatch’ between, on the one
hand, two medical certificates submitted by Mr Piper via the MRPV employee portal and, on the other, two medical certificates apparently held by BFC as copies of the originals.
36. At this point, and for ease of reference, it is convenient to label and identify the four medical certificates central to the certificates allegation as follows:
Issue date Stated dates unfit for work Electronic
(stated on signature of certificate) Dr Coote
A 25/10/2021 25/10/2021 - 09/11/2021 No B 26/10/2021 26/10/21 - 09/11/21 Yes C 11/11/2021 11/11/2021 - No 15 /11/2021 D 11/11/2021 11/11/21 Yes
37. There was agreement that certificates A and C were those provided by Mr Piper to MRPV (via the employee portal). Whereas, according to information given by BFC to MRPV, certificates B and D were as retained in the records of BFC (as copies of originals). However, Mr Piper had a different explanation (as will become apparent from his evidence).
38. The ‘initial assessment’ process was conducted by MRPV’s appointed investigator, a Mr Walker, who was a senior HR director with Rail Projects Victoria (a separate division of the DOT).
39. On 9 March 2022, by email, Mr Walker invited Mr Piper to a meeting. He was advised he could bring a support person and was reminded of the availability of EAP counselling. The email informed Mr Piper he would have the opportunity to provide his version of events and
there would be ‘an emphasis on procedural fairness’. He was also informed that the assessment was ‘a fact finding process’ with Mr Walker’s role to gather the facts and determine whether the allegation
was substantiated or not.
40. On 10 March 2022, Mr Piper attended Dr Dhaliwal complaining of stress, bullying and feeling victimised. He informed her of the certificates allegation.
41. On 15 March 2022, Mr Piper and Mr Walker had an hour-long meeting (a HR officer was present taking minutes) Mr Piper was content to proceed without a support person. According to the minutes, Mr Walker stepped Mr Piper through the basis of certificates allegation and apparent discrepancies as between certificates A and C (provided to MRPV by Mr Piper) and certificates B and D (as MRPV was informed were retained by BFC). Mr Walker told Mr Piper the discrepancies had become apparent when MRPV contacted BFC on 25 February 2022.
42. On 17 March 2022, Mr Piper saw Dr Dhaliwal and discussed the certificates allegation with her at length.
43. On 21 March 2022, Mr Piper and Mr Walker had a second hour-long meeting, with a minute-taker (the 21 March 2022 meeting). Mr Piper was content to proceed without a support person. Mr Walker questioned him extensively as to apparent discrepancies between the unsigned certificates A and C and signed certificates B and D and the differing dates.
44. On 22 March 2022, Mr Walker, having completed his initial assessment report, delivered his finding to MRPV that a full misconduct investigation of the certificates allegation was warranted.
45. MRPV then instigated under VPSEA 2020 a misconduct investigation of the certificates allegation with Mr Walker as the appointed investigator.
46. Between 24 March and 29 June 2022, Mr Piper saw a psychologist (Kylie Dickers) via EAP.
47. On 29 March 2022, a formal letter marked ‘private and confidential’
and signed by the CEO was emailed to Mr Piper, to both his work and personal email addresses (the 29 March 2022 letter). Mr Piper was informed of the formal investigation being instigated pursuant to clause 25.10 of the VPSEA 2020. He was also informed of the initial assessment
finding. That was: ‘Based on evidence collected during the initial
assessment, the dates provided by BFC do not match the dates included in the two medical certificates uploaded by [Mr Piper] onto [the employee
portal].’
48. On 14 April 2022, Mr Walker wrote to Mr Piper asking for his written consent to contact his GP at BFC about the apparent mismatch of certificates. Mr Walker made it clear his consent would be confined to: date of issue and dates listed unfit for work. Mr Piper was invited to be present at any discussion between Mr Walker and the GP. In the alternative, Mr Piper was asked to provide a signed statement of
explanation from the GP satisfying Mr Walker as to the ‘legitimacy’ of
certificates A and C.
49. At no time did Mr Piper give Mr Walker the requested consent.
50. It was not disputed that BFC, in responding to MRPV’s investigation of the certificates allegation, forwarded to MRPV, inadvertently, Mr Piper’s
clinical records including personal and medical information.
51. On 13 April 2022, Mr Piper and Mr Walker had a third meeting with a minute-taker. Mr Piper elected not to have a support person. Mr Walker again questioned Mr Piper about certificates A and C.
52. On 27 April 2022, Mr Piper emailed to Mr Walker a very lengthy response statement. His email stated that ‘mental distress’ was affecting
his capacity to complete tasks in a timely way.
53. On 29 April 2022, Mr Piper provided a second statement expressing that he had ‘no motivation’ nor could gain any ‘financial advantage’ from
falsifying medical records.
54. By letter to Mr Piper dated 10 May 2022, Mr Walker acknowledged concerns about BFC’s disclosure of medical information to MRPV; stated
that the records were deleted without being accessed; and, again, asked
for consent to contact a GP at BFC regarding the certificates allegation.55. On around 12 May 2022, Mr Piper attempted to resume working from home, without medical clearance, stating to MRPV he ‘may as well turn up to work’.
56. On 15 May 2022, Mr Piper provided a further very lengthy written statement in response to Mr Walker’s letter of 10 May 2022.
57. On 20 May 2022, Ms Yalcin sent Mr Piper an email headed ‘Direction
to cease work pending medical clearance’.
58. On 31 May 2022, Mr Piper lodged his WorkCover claim form.
59. On 3 June 2022, Mr Walker’s ‘Misconduct Investigation Report’ of that date concluded that the certificates allegation was substantiated (the investigation report). The conclusion (contained in the Executive
Summary Section) was: ‘…on the balance of probabilities, the certificates
uploaded onto the HR ESS system by [Mr Piper] on 16 November 2021 for
the periods 25/10/21 – 9/11/21 and 11/11/21 - 15/11/21 were falsified
by [Mr Piper]’.60. On 23 June 2022, Mr Piper was emailed a ‘show cause’ letter dated
22 June 2022 (the show cause letter) together with a copy of the investigation report. MRPV had accepted the investigation findings that
the certificates he submitted to MRPV were ‘likely to have been altered by him’. That was because they were ‘materially different’ to certificates held
by BFC. Further, the ‘substantiated behaviour’ was ‘serious misconduct’
within the meaning of the DOT misconduct policy because:
• it was ‘dishonest’ – based on both submission of ‘falsified medical certificates’ and ‘the lack of remorse or contrition shown by you throughout the investigation;’
• it was ‘fraudulent’ – as it ‘misrepresented’ medical advice for his ‘own personal gain’; • he received leave entitlements based on altered certificates; • it was ‘premeditated, wilful and/or deliberate’. 61. The proposed disciplinary outcome was termination of employment. He was given the opportunity to respond on or by 14 July 2022.
62. On 5 July 2022, Mr Piper consulted Dr Coote, by then practising at a different clinic. She provided Mr Piper with a signed ‘To Whom it May Concern’ letter dated 5 July 2022 (the 5 July 2022 letter) which stated in
part:
‘I saw this patient on the 11/11/2021 and provided a medical
certificate from 11/11/21 – 15/11/21 at my previous workplace. The
electronic medical certificate did not have my e-signature on it, so I
am writing to verify that this was a valid medical certificate. …’
63. Mr Piper gave MRPV the 5 July 2022 letter as part of his response to the show cause letter.
64. MRPV granted an extension of time for Mr Piper to formally respond to the show cause letter.
65. Mr Piper via his lawyers provided a written response dated 2 August
2022.
66. By letter dated 30 September 2022, Mr Piper was informed his employment was terminated for serious misconduct in accordance with clause 25.12 of the VPSEA 2020.
67. Mr Piper has not worked again for MRPV nor any other employer since his attempted RTW in May 2022.
Mr Piper’s evidence
68. Mr Piper had welcomed the offer to become a permanent direct employee of MRPV and had enjoyed his work before going on PL. He was
on MRPV’s executive leadership program and was undertaking further
studies. He was allocated a work vehicle. There were no complaints about
his performance by his superiors.Return to work following parental leave
69. Regarding his RTW, he felt he had no response from Mr Doyle or Mr Cracknell to his request for stability and certainty regarding reporting lines and accountabilities.
70. During the 31 August 2023 meeting, due to MRPV’s shifting programs of work, Mr Cracknell had proposed Mr Piper be allocated to a program in the south-east (Hallam) with another line manager. Mr Piper expressed immediate concerns about: increased travel times impacting childcare arrangements; the still outstanding childcare permit; accessing a work vehicle (which had not been retained whilst on PL); and career progression including not being interviewed for the Senior SA role.
71. His further evidence in examination-in-chief about his RTW included
that:
• MRPV ‘would not give him’ a childcare permit which meant taking extended leave.
• There was delay lasting ‘months’ in being re-allocated a work vehicle which impacted on his ability to do site-work and made things more difficult. This affected his dealings with Mr Cracknell who was frustrated and blunt with him. Although there was a vehicle pool at depots, it was still necessary to get to the depot.
•
Two ‘massive changes’ to MRPV operations were rolled out whilst he was on PL. These were: a software upgrade to the SIM (‘Safety Incident Management’) program which he had not been trained on;
and MRPV’s method of working with contractors moved away from a
formal tender process to more of a collaborative ‘on-boarding’.•
He was unable to do the work required because of matters including: he had no work car; he had a work phone which was broken or not fit for purpose as he could not take photos or enter site reports (although replaced around 31 December 2022); and he could not access the SharePoint software.
• He found it very difficult to organise himself as work was being given on a ‘last minute basis’ and he was getting ‘push back’ from
contractors when he was trying to develop relationships.
• He was criticised by Mr Cracknell for having outstanding actions on things he could not do anything about. • The reason he had wanted time with Mr Cracknell after returning from PL was to have a PDP in place which was important for career progression. However he got pushback from Mr Cracknell. • As he was joining a Teams meeting, he overhead Mr Doyle say to Mr Cracknell ‘this is not something a man would do’. He thought this was
referring to him taking PL. Both Mr Cracknell and Mr Doyle denied this
remark was made.21 October 2021 meeting and communications
72. As for the 21 October 2021 meeting and communications with Mr Cracknell, his evidence in examination-in-chief included that:
• When he rang Mr Cracknell in the morning about the attached PD, he was told to ‘read and digest’ it. He was concerned because the PD was
a big change to the original PD and more onerous.
• There was no discussion at any point in the meeting about Mr Piper’s wish for a PDP to be drawn up and as to workload and responsibilities
even though he raised this several times.• He felt targeted and that it was hard to meet expectations. This was because: he didn’t know what the expectations were; he didn’t have the tools; it didn’t seem fair to be given a new PD just two weeks after
his RTW; and he had been wanting a PDP.
• After the 2:00 pm meeting, he rang Mr Cracknell back because he felt unprepared, taken aback and unable to get his point across. 73. Under cross-examination, he was taken through Mr Cracknell’s
meeting notes. He didn’t recall Mr Cracknell saying he sent the PD as a ‘good starting point’. He did recall Mr Cracknell asserting there was not
much change between the previous PD and the version he was sent for
the meeting, but did not recall other matters Mr Cracknell’s notes
recorded as being discussed.
74. As for Mr Piper’s aspiration to be promoted to Senior SA, under cross-examination, he agreed Mr Cracknell had emphasized the need to meet expectations of his current role. He agreed Mr Cracknell brought up the need to avoid being diverted by people taking up his time.
75. Mr Piper denied in cross-examination the assertion by Mr Cracknell that he was only giving him the equivalent of two days’ tasks for site
surveillance leaving him three days a week to do other work. Mr Piper was
having to work on many days more than eight hours a day.76. Mr Piper agreed he told Mr Cracknell that if he didn’t get an answer
on how he was going to progress, he was ‘going to be the worst employee’; he denied that was intended as a threat. He denied being
‘pissed off’ about the Senior SA role, but agreed he told Mr Cracknell he
would not raise a formal complaint about it which would be a waste of
time.77. He saw Dr Coote on 26 October 2021 because he felt depressed, targeted, anxious - no matter how he tried he could not do anything right. He had not seen Dr Coote before. In cross-examination, he denied the reason for the attendance was because he was upset over the 21 October 2021 meeting, rather it was over all the issues surrounding his RTW. As
for why Dr Coote might have recorded that he was ‘not very forthcoming
about the nature of the bullying’, it could have been because he was not
very good at expressing himself.
78. As for what he meant in the 8 November 2021 email regarding
‘recent events’ having led to ‘major depression’, it was everything, the
Senior SA job application, lack of support upon his RTW, the attempted relocation (to Hallam) and caring for a new baby. He had not had such feelings about work previously. In cross-examination, he agreed it was
likely he also said later that day he was ‘okay’.
79. As for why he saw Dr Coote on 11 November 2021, after having returned to work, he then felt unable to work and was overwhelmed by how things were going and work being on top of him.
80. By mid-November 2021, Mr Piper continued to feel overwhelmed, targeted and unable to get on top of things at work. That was why he saw Dr Dhaliwal on 16 November 2021 and was prescribed Zoloft.
Certificates allegation
81. As for his evidence regarding the certificate issued by Dr Coote during the 26 October 2021 attendance:
•
Certificate A was the certificate issued to him by BFC. It was an attachment to an email sent by BFC after the telehealth appointment. It was dated 25/10/21 and certified him unfit from 25/10/21 because
that’s what he asked Dr Coote for. He needed a certificate for his leave
application after he got back at work.
• However, when he went to apply for leave based on the certificate Dr Coote issued on 26 October 2021 he noticed it was ‘wrong’. It was
wrong because he saw Dr Coote on 26 October 2021 but the period
unfit commenced on the date prior.• On 11 November 2021, therefore, when he saw Dr Coote again, he asked for a replacement certificate with the ‘correct date’ meaning 26/10/21. She did that, emailed it to him and also told him to ‘delete’
the original email.
• What happened then was that he had both certificates (one dated 25/10/21 and one dated 26/10/21) downloaded onto a file on his computer at home. • His process for adding a certificate to his leave application was to download the certificate attached to the BFC email onto his computer then to upload it onto the MRPV portal. However, when he came to submit his leave request via the portal, he uploaded inadvertently the one dated 25/10/21 (certificate A) and not the replacement one dated 26/10/21. • As for certificate B, that was not the replacement certificate issued by Dr Coote because it had a signature. As for how the certificate B came about, his understanding was that, after the investigation was under way, BFC printed out the original copy, scanned it and emailed it to MRPV with a signature. • He had tried to track down Dr Coote after he became aware she had left BFC but this took some time. Eventually he found her and that is when he went to see her on 5 July 2022. • Medical certificates issued by BFC were in type of Word format that could be edited. 82. Under cross-examination, Mr Piper denied that the true explanation
for the ‘discrepancy’ between certificates A and B was that he himself
altered the certificate after it was emailed to him by BFC. That was with respect to the issue date and the first date of incapacity (from 26/10/21 to 25/10/21).
83. As for the further certificate issued during the 11 November 2021
attendance:
• Dr Coote issued a certificate for five days (11/11/21 – 15/11/21) to cover him until his scheduled appointment with Dr Dhaliwal. That was
certificate C. His wife was present and she would corroborate that.• As for certificate D being for a single date (11/11/21), no such certificate was sent to him and he could not say where that had come from. 84. Under cross-examination, Mr Piper denied that the true explanation
for the ‘discrepancy’ between certificates C and D was that he himself
altered the end date of incapacity from being a single date (11/11/22) to
15/11/22 after it was emailed to him by BFC.85. In cross-examination, Mr Piper was questioned extensively as how his evidence was in apparent conflict with what was recorded by Dr Coote
in her progress note for 11 November 2021. She had recorded, ’Medical certificate for today’ and also that he would be ‘fine to go in tomorrow’.
Mr Piper’s explanation was Dr Coote had given him a certificate for a
single day initially, but then that plan was changed and she certified him
unfit for work until he was scheduled to see Dr Dhaliwal.86. In re-examination, as for why he might would told Dr Coote he
would be ‘fine tomorrow’ but also seek to be certified unfit till 15/11/22,
that was him being optimistic.
87. Also under cross-examination, Mr Piper was then taken in detail through the progress note of the 17 March 2022 attendance on with Dr
Dhaliwal. She recorded there being a ‘clear mismatch’ between Dr Coote’s
note of 11 November 2022 and certificate C. She recorded having
‘explored’ this mismatch with him ‘again and again’. Mr Piper was
adamant (as he was with Dr Dhaliwal) that he had not altered certificates.
Misconduct investigation
88. Under cross-examination, Mr Piper denied the true reason for complaining of anxiety to Dr Crilly on 3 March 2021 related to Mr Cracknell querying his leave in circumstances where he had already altered the certificates as issued by BFC.
89. In re-examination, he said his anxiety related to Mr Cracknell being grumpy with him and his sense that he could not do anything right at work. As a result, he was procrastinating and not completing his reports which was making things worse.
90. It was confronting to receive the letter dated 29 March 2022 (advising of the formal investigation) via his personal email address because his parents and brother had access to his account and questioned him about it.
91. The only welfare check at any stage throughout the investigation was a thirty second phone call from Mr Walker asking if he was all right. That followed his own email on 2 June 2022 to the CEO and Ms Yalcin which set out his concerns about: the handling of certificates allegation;
MRPV ‘not being concerned about his welfare in the slightest’; and the
impact of it including suicidal ideation.
92. As for the 5 July 2022 attendance on Dr Coote at her new clinic, under cross-examination, Mr Piper agreed he showed her a BFC ‘patient summary’ export printout, but not the progress notes as he did not have
them then.
93. As for the minutes of interview with Mr Walker on 21 March 2022, in cross-examination, Mr Piper was taken through Mr Walker’s
communications with BFC including that BFC had no record of certificates
A and C. The minutes record that Mr Piper responded to Mr Walker: ‘this
is completely fucked for me and has completely ruined my trust in the medical profession. In saying that though I have reviewed Fair Work
cases similar to this and if I don’t plead guilty I might not lose my job and I don’t then I will and that is fucked too’. Mr Piper agreed that was what
he had in his mind at the time, although he did not recall specifically
saying it to Mr Walker.94. Mr Piper did not dispute that in his third statement he stated:
“Irrespective of the finding … this investigation has completely destroyed
my life’; of feeling ‘extremely violated’’; ‘exhausted’; and but for the
availability of EAP, he would ‘certainly have committed suicide during the
investigation’.
Other matters
95. As an adolescent with depressive symptoms, Mr Piper was diagnosed with narcolepsy (a sleep disorder) which has been managed with medication ever since.
96. He felt violated when he became aware that his full clinical records had been sent to MRPV by BFC and not just the requested copy certificates. Mr Piper lodged a formal complaint with AHPRA[2] against BFC with respect to breaches under the Health Records Act including the unauthorised release of his medical records.
[2] Australian Health Practitioner Regulation Agency97. As for his May 2022 attempted RTW, in cross-examination, Mr Piper denied he had considered himself fit for work. He did not do his normal job, rather he was preparing his response to the investigation.
98. Also in cross-examination, Mr Piper denied that his retained capacity to perform ‘thinking’ work was evidenced by his lengthy written
statements for the investigation. He took a long time to do them and was
aided by his wife, lawyer, friends and colleagues.99. From May 2022, he has been treated by Dr Shakir of the Vital Medical Centre, Epping. Dr Shakir prescribed his medication (including Zoloft 200 mgs) and certified him as having no capacity for work.
Dr Coote’s evidence
100. Dr Julia Coote, now practising in Coburg, ceased her practice at BFC in February 2022. She had no specific recollection of Mr Piper.
101. During Covid, the process at BFC for issuing a medical certificate after a telehealth appointment was to send it to the patient as an
attachment via BFC’s ‘no reply’ generic email. The software used to do
this was brought in due to the pandemic and, at least initially, was not set
up to add electronic signatures. The ‘work around’ was to copy and paste a photo image of the doctor’s signature. She recalled some issue with the
signature image not downloading on the version received by the patient.
She had no awareness that certificates could be altered subsequently.102. It was her habit to make quite detailed notes which she typed whilst the patient was in front of her. On reviewing the BFC progress notes of the attendances on 26/10/21 and 11/11/21, she agreed that on each of
those dates, she recorded as an action: ‘Email sent to [patient’s email
address]. Subject – medical certificate – Mr Justin Piper’.103. As for the 26 October 2021 attendance, under cross-examination, she was shown her note of that date and certificates A and B. She agreed there was no way of telling which one was given to Mr Piper on that date. However, her usual practice would be to document specifically any modification of a certificate either in the note of the patient consultation
or subsequently in the progress notes as a ‘non-visit’ entry. Also, it would
be ‘extraordinary’ for her to tell a patient to delete a certificate.104. As for the 11 November 2021 attendance, under cross-examination, she was shown her note for that date and certificates C and D. She could not say one way or another if someone in addition to the patient (such as a spouse) was present; nor what date or dates she had issued a
certificate for that day. As for her last note ‘Also needs me to re-send
original medical certificate’, she could not say what that meant other than
patients sometimes asked for certificates to be re-sent, for example, if
they got caught up in junk mail etc.105. She agreed her note of ‘medical certificate for today’ would be
consistent with providing a certificate for that day only. She could have offered to cover the period until 15/11/21 (when he was to see his usual GP), however that was not reflected in the notes. Also, her notes for 11/11/21 reflected nothing about alteration of a certificate issued on a previous date (such as on 26/10/21).
106. In re-examination, she said that the issue date of certificates was auto-generated so it would be odd for a certificate issued on 26/10/21 to be dated 25/10/21.
107. Looking at the certificates (as identified in the table):
• Certificate B was consistent with the attendance on 26/10/21 which is when she saw him; and certificate D was consistent her note about issuing a medical certificate ‘for today’.
• The signatures on certificates B and D were consistent with her usual practice at BFC. 108. As for the attendance on 5 July 2022 at her Coburg practice, she had no access to her BFC notes. She relied on what Mr Piper provided. The certificate she was shown to prepare the 5 July 2022 letter was certificate C. She did not see certificate D otherwise she would referred to it in the 5 July 2022 letter.
Ms Yalcin’s evidence
109. Ms Yalcin was director of HR with the DOT from 10 January 2022 up until 20 June 2023. She had many years of experience in HR and now worked as a consultant in the private sector. She had no personal knowledge of Mr Piper.
110. Once the discrepancies were brought to her attention, Ms Yalcin took various steps which accorded with DOT policies including the misconduct policy. She relied on and was informed by legal advice with
respect to MRPV’s handling of the certificates allegation. The steps taken
by her were:
•
Appointing Mr Walker as investigator for the initial assessment, the rationale being to ensure impartiality (as he was from a division outside MRPV), and then, to conduct the formal investigation, the rationale being to ensure consistency of approach.
•
Drafting the 8 March 2021 letter (based on a DOT template) for sign- off by the CEO and also speaking with Mr Piper prior to emailing him the 8 March 2021 letter as well as copies of the relevant clause of the VPSEA 2020 and the DOT Misconduct Policy.
• After reviewing Mr Walker’s initial assessment finding, seeking legal advice and making a recommendation to the CEO to instigate a formal
investigation. That took a few weeks.
• Preparing the 29 March 2022 letter (to be signed by the CEO) informing Mr Piper of the formal investigation and emailing that to Mr Piper via both his work and personal email addresses. That was because staff on personal leave could not be expected to check work email addresses. • Reviewing the investigation report and approving Mr Walker’s draft memo to the CEO dated 22 June 2022 containing recommendations.
Then, preparing the 22 June 2022 ‘show cause’ letter for the CEO’s
sign-off and then, on 23 June 2022, emailing that to Mr Piper together with copies of the misconduct policy and s.7 of the Public
Administration Act (which sets out various public sector ‘values’).
• Reviewing Dr Coote’s 5 July letter when it was emailed to her by Mr Piper.
111. Under cross-examination, she agreed she was speaking to Mr Piper that day after an email from his work address so there was no justification basis for sending the email to his personal email address.
112. In cross-examination, she accepted none of the letters or emails to Mr Piper about, or in the course of, the misconduct investigation made any reference to timeframes as required by the misconduct policy.
113. Ms Yalcin accepted there were no formal welfare checks of Mr Piper throughout the misconduct investigation as required by the misconduct policy. She conceded being unaware Mr Piper had, on 8 November 2021,
disclosed to his manager that he was suffering from ‘major depression’.
She could not say whether any of her HR officers made follow up enquiries after that disclosure nor during the misconduct process. She agreed that it would be reasonable to expect Mr Cracknell to inform HR of
an employee’s disclosure of major depression.
114. She stayed in regular contact with him but only via email because he had asked for no phone contact. She had no involvement in the matter beyond 8 September 2022 as she was then on leave.
Mr Doyle’s evidence
115. Mr Doyle’s current role with MRPV was Manager of Safety. He was Mr Piper’s line manager from late 2018 to early 2020. He had initial
involvement in his RTW arrangements but not thereafter. Mr Doyle had no involvement or oversight regarding the 21 October 2021 meeting nor the
investigation. His evidence on the practical matters around Mr Piper’s
RTW was as follows:
• There were challenges in obtaining authorised work permits and childcare permits during Covid. • There was a shortage of available vehicles due to covid-related supply issues although he had no involvement in arrangements for Mr Piper. • Phone or laptop problems were experienced by everyone at times and the IT support team gave prompt and helpful service. • While the SIM software was accessible via either the mobile app or a laptop, most people used the laptop so access to the app did not matter. Mr Piper had no apparent difficulty using SIM when looking at documents he generated after his RTW. • A SA would not be unduly impacted if there were SharePoint access issues as Word was always available. • Site inspections might take up to three hours and it would be most unusual for a SA to do longer than the standard day of 7.6 hours. 116. He was shocked Mr Piper alleged he was ‘made to feel unwelcome due to having had PL’. He ‘didn’t think’ he made the ‘not something a man
would do’ remark about Mr Piper taking PL. As a parent of young children,
he himself ‘tapped into’ the flexibility offered by VPS policies. Later in cross-examination, he said the reason he said ‘he didn’t think he said it’
was because he was wracking his brain and trying to be transparent.
Mr Cracknell’s evidence
117. Mr Cracknell is a Senior Manager Health & Safety, now with another
DOT program (the Suburban Rail Loop). He had been Mr Piper’s line
manager at MRPV for a period in 2019 and then from 1 September 2021 until Mr Cracknell changed division in July 2022. In 2019, there were no performance issues with Mr Piper. He had been a competent SA save for some difficulties observed in maintaining contractor relationships.
118. Regarding practical issues and communications around and following Mr Piper’s RTW including in the 31 August 2021 meeting, Mr
Cracknell gave the following evidence:
• In late August 2021, operational change across MRPV meant two programs were winding up and others were coming to the fore. This necessitated a change in where SAs were allocated. • As for Mr Piper’s concern in the 31 August 2021 meeting about travel times to the Hallam project, that never eventuated because Mr Cracknell was able to accommodate him by putting him in a SA role back in Essendon that became vacant.
• There was a delay in getting childcare permits authorised although this ended up only being about two weeks for Mr Piper during which time he was eligible for special covid leave. • There was a strong demand for vehicles within MRPV at the time, however Mr Cracknell was able to transfer Mr Piper’s former vehicle
(still then allocated to his previous program) into his new one. Pool
vehicles were always available at depots.• SIM software was accessible via a work laptop and also via the mobile phone app, which was convenient, but not necessary. Mr Piper mentioned issues with the app once and Mr Cracknell responded it wouldn’t stop him from doing his job using the laptop.
• Mr Piper’s paperwork demonstrated he could use SIM competently, it was compliant and of good quality when completed; although needed
more detail.119. The 21 October 2021 meeting and discussions were prompted by Mr
Piper’s email of 12 October 2021 requesting time to meet.
120. As for why Mr Cracknell had attached a PD to the meeting invite, it was because Mr Piper wanted clarity of his responsibilities and workload.
The PD sent to Mr Piper was no different to Mr Piper’s existing PD.
121. In cross-examination, regarding the PD, he then said it had been revised for a current vacant SA role which was going ‘to market’. He
disagreed it was unreasonable to send it on the morning of the meeting.
122. Mr Cracknell prepared notes of the meeting discussions within the hour of the meeting and of the later call in the afternoon. He confirmed the notes accurately recorded discussions as follows:
•
Providing the PD was intended to be ‘a good starting point to run through his role and responsibilities’. The PD could be a ‘framework to
run through’ and questions could be asked along the way.
• Mr Piper had raised that he thought the 21 October 2021 meeting was to discuss what steps he needed to take to be promoted to a Senior SA role and why he had been overlooked previously. • Mr Piper was given extensive and wide-ranging feedback. • Mr Piper raised with Mr Cracknell at least three times that the meeting was ‘not what he expected’ and that it was ‘unfair’ and ‘unreasonable’
for Mr Cracknell to assert he hadn’t delivered on expectations.
123. In cross-examination, Mr Cracknell denied the 21 October 2021 meeting was an appraisal of performance nor a performance management
meeting. He disagreed that, given his observations as to Mr Piper’s past
difficulties with contractor relationships, the changed processes would be a big issue for him given the new processes which required more contractor liaison. It was the opposite because under the new model the contractor relationships were more collaborative from procurement onwards and there was less friction on sites over safety issues.
124. Mr Cracknell considered Mr Piper’s comment about him ‘going to be the worst employee’ a threat to make Mr Cracknell’s life difficult.
125. As for why Mr Cracknell had not subsequently prepared a PDP for Mr Piper, it was because from 22 October 2021 he was not consistently at work.
126. As for Mr Piper’s allegedly overhearing the ‘not something a man would do’ remark, Mr Cracknell denied saying that. Nor had Mr Doyle for
whom it would be out of character and, if he had, Mr Cracknell would
have pulled him up on it.127. On 22 February 2022, Mr Cracknell had responded to a request from Ms Yalcin and anther HR officer to complete various columns of
spread-sheet entitled ‘Justin Piper Sick Leave’ including for the periods 22/10/21 – 5/11/21 and 10/11/21 – 15/11/21. That had come about
because Mr Piper was not submitting leave in the system.
128. Mr Cracknell had no involvement with Mr Piper thereafter in terms of the initial assessment or misconduct investigation.
129. As for Mr Piper’s evidence it was ‘unreasonable’ to expect him to do
two site inspections per day and it was plain he was having trouble meeting expectations, Mr Cracknell, under cross-examination, did not
accept that, saying ‘that was what Mr Piper said’. Later in cross-
examination he said Mr Piper was ‘getting bogged down in other things’ that he didn’t have responsibility for and Mr Cracknell wanted him to
succeed in his role. Mr Piper never told him he was working eight hour days which would have told Mr Cracknell there was a problem nor of working on weekends nor of doing overtime.
130. In cross-examination, Mr Cracknell denied he was getting grumpier and more frustrated with Mr Piper not completing able to complete his site inspections.
Mr Walker’s evidence
131. Mr Walker’s current role was Assistant Director, People and Performance. He had post-graduate qualifications in HR and over 16
years’ experience in the public and private sectors. He was appointed to
carry out the initial assessment and then the investigation for MRPV into the certificates allegation which he conducted in accordance with the VPSEA 2020 and the policies.
132. In his dealings with him and based on what Mr Piper himself told him, Mr Walker became aware fairly quickly that he was suffering pretty serious mental health issues. He could not now say whether or not he was
aware of Mr Piper’s disclosure of major depression to Mr Cracknell on 8
March 2022.
133. After completing the investigation report of 3 June 2022, Mr Walker had no more involvement in the matter.
134. Also in cross-examination, Mr Walker said that knowledge of a
person’s mental health issue was a mitigating factor but would not stop a
misconduct investigation for going ahead. His approach would be to tread very lightly and to give the person under investigation time and options as he did with Mr Piper.
135. I will return later in these reasons to Mr Walker’s evidence in more
detail.
Medical evidence
136. Dr Mohammad Shakir, current treating GP, treated Mr Piper from May 2022 onwards. In a brief letter dated 22 September 2023, he opined the diagnosis was depression and anxiety in the context of alleged workplace bullying. He referred him to a psychiatrist and psychologist and prescribed anti-depressants and an anti-psychotic medication. As of September 2023, there were ongoing complaints of symptoms of anxiety and depression and of an inability to work.
137. Dr Sereena Abraham, former treating psychiatrist, provided letters and reports dated 20 June 2022, 10 October 2022 and 14 August 2023. In an initial letter to Dr Shakir, she recorded numerous aspects of
the history given by Mr Piper. Matters included: things were ‘frosty’ on his
RTW from PL; of not being interviewed whilst on PL for a role he applied for; that his manager, within two weeks of his RTW, presented him with a PD that had changed while he was away and also told him he had not done enough work since his RTW; that his initiating of career advancement plans was not received well by his manager; that requests for flexible work conditions were ignored; that he was unable to access a work vehicle which was offered to colleagues and as he had previously;
and of things ‘coming to a head’ in March 2022 when the misconduct
investigation was launched into discrepancy of certificate dates. The past history of narcolepsy was noted. Mr Piper had to be discharged back into
Dr Shakir’s care due to financial constraints. Concerns were held about
the abrupt ending of care given the ongoing symptoms of anxiety and depression as well as passive death wishes and vulnerability. There were 22 reviews between 17 June 2022 and 28 March 2023. Diagnostic opinion was of an adjustment disorder with mixed depression and anxiety with symptoms of traumatisation in the context of alleged workplace bullying and harassment. The long-term prognosis was guarded with no capacity for any work as at 28 March 2023.
138. Ms Kylie Dickers, former treating psychologist, completed a practitioner questionnaire dated 28 July 2022 having treated Mr Piper between 24 March and 29 June 2022. The history was of developing low mood and reduced motivation after workplace bullying over several months upon RTW after PL. The employer insisted he falsified certificates despite him providing confirmation from his GP as to their legitimacy. No prior stress or psychological conditions before October 2021 were reported. In a letter to the Court dated 27 January 2023 enclosing subpoenaed records, she noted Mr Piper had reported suffering a very upsetting privacy violation after BFC sent his records to MRPV.
139. Dr Michael Epstein, consultant psychiatrist, prepared a report for Mr Piper’s lawyers dated 25 May 2023. A prior history of the narcolepsy
diagnosis was given. It appeared there had been no other factors in life that could have brought about this situation other than employment. The
‘basic issue’ was the accusation of falsifying certificates. Prior to that,
from the time of his RTW from PL he was treated poorly by his manager. He was deprived of essential working tools, accused of not doing his job and was not briefed on jobs he was required to do. He came to the view
he was being ‘pressured out’ of the DOT. The situation came to a head
with the certificates allegation and, in that context, his capacity for coping has broken down. The impression gained was of there being significant issues in his employment apart from the certificates allegation. Diagnosis now was a major depressive disorder characterised by constant depression, sleep and appetite disturbance, frequent suicidal ideation and significant problems with memory and concentration. Dr Epstein considered there were problems with cognition especially memory and concentration. He opined there was no ability to resume pre-injury employment possibly for the foreseeable future and no present capacity to return to employment.
140. Professor S Sahoo, consultant psychiatrist, prepared a report for the Agent dated 27 June 2022. Mr Piper reported workplace bullying from the time of his RTW after PL in about October 2021; of being given a changed PD by his manager; of being given jobs he could not do; and being subjected to performance management. He took time off having become depressed. He was never given a PDP in spite of requesting it. He was turned down for a promotion. Then a serious misconduct investigation began in March 2022. No history was given of the narcolepsy issue. Cognitive function including insight and judgement were normal and appropriate. Diagnosis was opined to be an adjustment disorder with a depressed mood with persisting and moderate to severe symptoms. There were no non-work-related factors identified. There was
no work capacity but should be in a month’s time for modified duties in a
different work place.
141. Dr Steven Adlard, consultant psychiatrist, prepared a report for
MRPV’s lawyers dated 8 June 2023. Mr Piper reported workplace
difficulties that began upon his RTW after PL including: MRPV handled unfairly a job application he made; MRPV did not respond to requested flexible work arrangements; and there were negative comments by managers about him taking PL. He felt distress after the 21 October 2021 meeting when he was given a new PD and told he was not meeting the requirements of the position. That affected him badly as he was trying his
best. It took ‘forever’ to get some items required to do his job being a
mobile, care and laptop. He took time off. There were more negative comments and unreasonably expectations expressed by Mr Cracknell
causing Mr Piper to think he ‘couldn’t win’. There was a misconduct process regarding medical certificates. The employer had ‘gone behind his back’ in approaching the clinic, then the clinic sent his complete records
with the certificates. He never altered the certificates and could not explain how the dates differed. He gave a history of the narcolepsy diagnosis as an adolescent. The diagnosis was a major depressive disorder with anxious distress. As for causation, based on the history and his review of the BFC records, he opined there was pre-existing depression developing in 2019 or earlier if it was a depressive illness rather than narcolepsy. His opinion was a worsening of the pre-existing
major depressive disorder occurred at some point after Mr Piper’s RTW
following PL. There was no current work capacity whatsoever.
Analysis
142. The legal and evidentiary burden of proof rested with Mr Piper to establish, on the balance of probabilities, an entitlement to compensation pursuant to s.39(1) of the Act. He needed to show, on the evidence, that he had suffered injury arising out of or in the course of employment.
143. On the other hand, with respect to its defence that any mental injury was non-compensable as it resulted from management action, the defendant needed to prove such action was on reasonable grounds and taken in a reasonable manner. The plaintiff had the onus to prove that any mental injury was not caused wholly or predominantly by reasonable management action.
144. There was agreement as to the key issues:
a.
whether Mr Piper suffered injury in the course of or arising out of performing his duties between late August 2021 and March 2022 in an environment he alleged to be stressful including: the circumstances surrounding his RTW after PL including lack of support and being made to feel unwelcome; the 21 October 2021 discussions; and the handling of the certificates allegation[3];
b.
whether he suffered injury by reason of management action was taken on reasonable grounds and in a reasonable manner;
c.
if so, whether injury was caused wholly or predominantly by such management action;
d.
if there was a compensable injury, whether he had capacity for pre- injury employment either with this or an alternative employer.
[3] These matters represent particulars pleaded at paragraph 3 of the plaintiff’s Amended Statement of Claim
145. The credibility of the plaintiff is always central to cases of this kind.[4]
[4] Johns v Oaktech Pty Ltd [2020] VSCA 10, [76].
146. To succeed in the case, Mr Piper needed to establish the reliability of the histories given to medical witnesses whose opinions were premised on the accuracy of his accounts to them. Inevitably, the medical opinions relied on his account of disputed events and circumstances in the
workplace such as his managers’ conduct, the certificates allegation and
MRPV’s handling of it.147. The plaintiff’s credit is of particular significance in a case of a claimed psychological injury where the plaintiff is self-reporting symptoms and where histories and impressions given to doctors are self-reported.
148. Unsurprisingly, given the substantial focus of the evidence concerned the allegation that Mr Piper falsified or modified certificates, his credit came squarely under attack at hearing.
149. Counsel for MPROV put it this way: the issue of the altered medical certificates was stark given Mr Piper’s unwavering evidence of not having
altered the certificates. In other words, the plaintiff was not contending
he did alter the certificates, but had done so under some form of duress.150. In that regard, Counsel pointed to the BFC progress note of 17 March 2022 (nine days after the certificates allegation was raised by
MRPV in the 8 March 2022 letter). On that date, Dr Dhaliwal had ‘…
explored again and again whether [there was] any possibility where he
may have felt overwhelmed and made a change’. Mr Piper had refuted
that completely then and ever since.
151. In essence, it was submitted that the certificates allegation was the
first and most significant ‘strike’ against Mr Piper in terms of his credit at
a witness. Counsel for MRPV urged that it was a compelling basis for
holding strong reservations as to Mr Piper’s credit. That extended to the
genuineness of his self-reported complaints of medical symptoms being
undermined.152. It is true Mr Piper had denied the certificates allegation throughout the investigation and at hearing. Indeed, it was pleaded[5] as a particular of
[5] paragraph 3(f) of the ASOC
‘the stressful work’ that he was ‘wrongly accused of providing falsified
certificates for leave from 22 October 2022 to 16 November 2022’.
153. It seemed to me that, in closing submissions on the plaintiff’s
credit, Mr Piper’s Counsel largely side-stepped the certificates allegation.
Rather it was submitted that what was significant was that no witness for MRPV had anything to say about Mr Piper other than him being a good and competent worker he went on PL. There was no suggestion by Mr Cracknell nor Mr Doyle, both of whom had worked with Mr Piper prior to his PL, of unreliability or untrustworthiness.
154. Of course, it is a well-established principle that it always necessary to evaluate the whole of the evidence In Pulling v Yarra Ranges Shire Council, Bell J referred to the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor[6].
[6] [2018] VSC 248, [50] to [55].
Also on the plaintiff’s credit, Counsel for MRPV submitted Mr Piper’s
evidence about alleged poor treatment when he returned from PL was
unreliable. Mr Piper had sought to ‘colour’ matters retrospectively in his
favour and gave a misleading impression, particularly in examination-in-
chief, of protracted difficulties and obstacles.
156. I accept there were aspects of his evidence that were inconsistent and contradictory particularly as to logistical matters encountered surrounding his RTW. An example was his evidence in examination-in-
chief that the delay in getting a vehicle lasted ‘months’ whereas, under cross-examination, he accepted he had the vehicle back ‘a little while’
after his RTW.
157. Importantly, however, when alternative propositions were put to him in cross-examination about these complaints, Mr Piper readily and appropriately made the following concessions against interest, including:
• Mr Doyle and Mr Cracknell had provided detailed explanations and updates about MRPV’s shifting operations across projects in the
context of his planned RTW in late August 2021.
• Mr Doyle had committed to look into the car issue and to chase up the childcare permit with HR on his behalf. • The ‘mooted’ relocation to Hallam did not actually proceed after a SA vacancy came up nearer to his home.
•
Although he preferred using the SIM mobile phone app, at all times he could access SIM via his laptop and documents he completed did illustrate successful use of the software.
•
Although there was period when he could not access documents via SharePoint, at all times he could have and did contact the IT Helpdesk about issues; and
•
The delay with the childcare permit him lasted about a fortnight during which time he accessed special Covid leave so he was not impacted financially.
158. Pausing here, whilst it is of course my task to assess the plaintiff’s
credit as a witness, it is of some assistance to also consider the medical
witnesses’ impressions of Mr Piper, particularly the four psychiatrists in
the case. Whilst medical witnesses especially in psychological cases do, as I have said, rely on self-reporting, I nevertheless attribute weight to the fact that none of the four psychiatrists in the case reported gaining any impression other than that Mr Piper was entirely genuine in his presentation.
159. Prof Sahoo, who assessed Mr Piper for the Agent in June 2022, accepted there were symptoms at a sufficient level to constitute a diagnosable illness. These included at that time: depressed mood, anhedonia, lack of motivation, lack of energy, disturbed sleep all of which had arisen in the context of industrial issues. He noted no background
history of mental health issues ‘but a possible Axis II diagnosis of either
autistic spectrum disorder or a cluster-A personality type’.
160. A year later, Dr Adlard, who provided a very lengthy and
comprehensive report for MRPV’s lawyers, conducted a mental state
examination of Mr Piper. He assessed him as being cooperative with normal attention, concentration and memory. He considered there were prominent depressive features including lowered mood, suicidal thoughts and low energy/motivation.
161. It is true, as Counsel for MRPV observed, that Dr Adlard noted
‘subjectively impaired concentration and memory’; yet, it seems to me,
that is not the same as consciously or deliberately embellishing or
fabricating symptoms.162. A month prior to Dr Adlard, Dr Epstein (who also prepared a very lengthy report for Mr Piper’s lawyers) made detailed observations based
on a mental state examination of appearance, affect, perception and so
on. He opined there was a major depressive disorder ‘characterised by
constant depression, sleep and appetite disturbance, frequent suicidal
ideation and significant problems with memory and concentration’.
163. Finally, Dr Abraham, the former treating psychiatrist, proffered her diagnostic opinion of a psychiatric condition based on ‘longitudinal assessment, Mr Piper’s self-report and information from his GP’. The
longitudinal assessment was a considerable one, given she treated Mr
Piper on 24 occasions between 12/05/2022 and 28/03/2023.164. Also on credit, Counsel for MRPV submitted Mr Piper’s claims of impaired memory and concentration needed to be viewed with scepticism. That assertion was contradicted by his own presentation as a witness over almost three days.
165. I reject the submission that he demonstrated ‘significant powers’ of concentration and memory. To my mind there were numerous matters about which he had poor or limited recall including discussions with Mr Cracknell and Mr Walker. Also, at least to my observation at times, including in examination-in-chief, Mr Piper was fatigued and flat.
166. Mr Piper gave viva voce evidence over the course of three days and it would hardly be surprising if there were not some variations in demeanour and presentation over that length of time and under the pressure of cross-examination.
167. For these reasons, and weighing the whole of the evidence, my overall impression was that Mr Piper was endeavouring to be cooperative. I certainly did not gain the impression he was being deliberately untruthful in the sense of seeking to mislead the Court.
168. Also for these reasons, I reject the submission for MRPV that the task of assessing Mr Piper’s credit turned on the central allegation of him
having falsified certificates (which the investigation found was substantiated). I will return to the issue of the certificates allegation later in the reasons.
169. Having said that, weighing the whole of the evidence, I do accept I ought to treat Mr Piper’s evidence with some caution and, to the extent
there may be discrepancies particularly as to his subjective perceptions, I
will prefer contemporaneous or corroborated accounts.170. Pausing here, although not put squarely as a bullying case at hearing, Mr Piper in his evidence referred at numerous points to feeling
‘targeted’. His claim form referred to ‘bullying’ and his pleadings relied on:
not getting an adequate response from his managers; feeling ‘unwelcome’
and being ‘criticised’.
171. In assessing allegations of victimisation or bullying conduct in the context of a no-fault workers’ compensation scheme, the Court’s task, as the authorities make clear, is not ‘to determine where the truth lay in
terms of the alleged ill-treatment once it was satisfied that the employee perceived and was affected by stressors actually arising from the situation
in the workplace’.[7]
[7] Pulling v Yarra Ranges Shire Council [2018] VSC 248, [64].
Also, as the Court of Appeal has made clear, the worker’s subjective
reaction must be a reaction to events and circumstances actually
occurring in the workplace, provided that the reaction ‘has a realconnection with events that occurred arising out of her employment - as distinct from an event she simply imagined was connected with her
employment’.[8]
[8] St Mary’s School v Askwith [2011] VSCA 90, [12].
173. I turn now to the evidence and my findings. I will firstly consider the evidence regarding injury before turning to causation and the management action defence.
Diagnosis and Nature of Injury
174. I will not repeat what I have already said as to the specialist medical witnesses’ assessments of Mr Piper.
175. On diagnosis, both Dr Adlard and Dr Epstein opined there was a major depressive disorder. These were the most recent psychiatric assessments and their diagnosis is consistent with the current treating GP (Dr Shakir) who diagnosed depression and anxiety.
176. I prefer Dr Adlard and Dr Epstein’s opinion on diagnosis over Prof Sahoo who assessed Mr Piper 12 months prior.
177. As Dr Abraham’s diagnosis, she opined there was ‘an adjustment
disorder with mixed depression and symptoms of traumatisation’ and
reported suicidal ideation which intensified at times of increased stress.
178. I find the diagnosis was a major depressive disorder or, in the alternative, an adjustment disorder with mixed depression and symptoms of traumatisation.
Causation and Injury
179. The medical evidence was overwhelmingly in support of a finding that mental injury was caused to Mr Piper in the course of or arising out of employment. Indeed, there was no contrary medical opinion. Prof Sahoo (for the Agent) specifically stated no non-work related factors were identified. Dr Adlard (for MRPV) alone speculated as to a pre-existing depressive illness based on his own review of the clinical notes, yet the
presenting mental ‘illness’ was attributed squarely to issues in the
workplace.
180. Although MRPV had maintained a denial of liability for injury (according to its defence, in opening the defendant’s case, it was
accepted by Counsel on the evidence that mental injury was caused to Mr
Piper arising out of or in the course of his employment.181. I find that mental injury was caused to Mr Piper arising out of or in the course of his employment.
182. The real contest regarding causation turned on whether Mr Piper’s
mental injury was, in fact, caused ‘wholly or predominantly’ by management action taken by MRPV (and asserted to be on ‘reasonable’
grounds and in the manner taken).
I turn now to ‘management action’ defence under s 40(7) of the
Act.
Management Action
184. The management action relied upon by MRPV comprised:
(a) the meeting and communications of 21 October 2021; and
(b) the misconduct investigation commencing with the email of 8 March 2022 in which the certificates allegation is first raised.
185. Additionally, or in the alternative, MRPV, under s.40(1)(c) of the Act, contended that any mental injury was caused wholly or
predominantly by an ‘expectation’ on the part of Mr Piper that
‘management action would … be taken’ or a ‘decision made to take…
management action’. In other words, Mr Piper’s mental injury was caused
by an expectation that his employment would be terminated for
misconduct.186. I will consider each of these aspects in turn.
There was consensus as to the legal principles applicable to a
consideration of reasonableness of ‘management action’. They are as set
out in the frequently cited passage in Krygsman-Yeates v State of
Victoria[9] and do not require repeating here.
[9] [2011] VMC 57, [35] which was concerned with the predecessor provisions in the Accident Compensation Act 1985 and remain relevant to considering the operation of s 40(1) of the present Act.9
(a) Meeting and communications on 21 October 2021 188. Counsel for Mr Piper submitted (although not with vigour) that, on one view of the evidence, the 21 October 2021 meeting and
communications did not constitute ‘management action’ within the
meaning of s.40(7) of the Act. That was apparently because it was Mr Piper (rather than MRPV) who had been requesting a meeting. However, I reject that contention based on the whole of the evidence.
189. It is helpful to make findings as to what the meeting and communications on 21 October 2021 comprised which is based on the undisputed contemporaneous evidence (set out previously in these reasons). The matters are:
•
The meeting itself at 2:00 pm including the emailed meeting invite which was sent by Mr Cracknell that morning (with the attached PD); the phone call discussion in response to the invite; and the telephone discussion post-meeting in the afternoon.
190. The further evidence was that the meeting title was ‘Discussion about core responsibilities and workload expectations’. It is true Mr Piper
had requested a wide-ranging career discussion with Mr Cracknell (in
emails of 11 and 12 October 2021) about ‘…workload, responsibilities and PDP’. Yet both Mr Piper and Mr Cracknell said those matters were
discussed and, although Mr Cracknell did not prepare, or agree on
implementing, a PDP, he gave plenty of feedback about Mr Piper’s
performance (a matter to which I will return). Indeed, Mr Piper complained to Dr Coote on 25 October 2021 that he found himself subject
to ‘Performance management 2 weeks after coming off leave for 7 months
…’191. I therefore prefer the submission of Counsel for MRPV and conclude that the meeting and communications of 21 October 2021 did constitute
‘management action’ pursuant to s.40(7) of the Act being:
(a) appraisal of the worker’s performance; (b) counselling of the worker; (n) communication in connection with either (a) or (b).
192. Submissions also diverged on the reasonableness or otherwise of
MRPV’s management action with respect to the meeting and
communications of 21 October 2021.
193. Counsel for MRPV submitted that the 21 October 2021 meeting was arranged on reasonable grounds given the evidence that Mr Cracknell was
responding to his direct report’s own request to understand better his employer’s expectations. Mr Cracknell’s meeting and communications on
21 October 2021 with Mr Piper were all about giving him the clarity he
sought by way of an ‘appraisal’ of how he was preforming so far and
‘counselling’ as to how he could progress.194. To that extent, I find that Mr Piper’s requests (especially following an extended absence from work) did constitute Cracknell reasonable grounds for the convening of a meeting for appraisal and counselling.
195. Next, I turn to assess the reasonableness of the manner in which the management action of 21 October 2021 was taken by MRPV.
196. It is convenient at this point to make some observations about the evidence of Mr Cracknell.
197. I did not find Mr Cracknell to be a particularly impressive or credible
witness.
198. His evidence was frequently self-serving and long-winded or not to
the point. An example was his response to a question about the delay in convening the meeting with Mr Piper. He expanded at length on the impact of the Covid pandemic lockdowns on the construction industry in Victoria, particularly critical infrastructure projects; on trying to keep the
industry open; and it being a time when people ‘were losing their jobs’.
199. It also seemed to me that, on key disputed matters, his evidence was contradictory or implausible. As an example, under cross- examination, he denied that the 21 October 2021 meeting involved an
appraisal of performance. Yet, although not flagged as ‘performance management’, there was as I have said extensive appraisal of Mr Piper’s performance. That was apparent not only from Mr Piper’s impression as
he told Dr Coote on 25 October 2021. It was also clear from Mr
Cracknell’s own evidence and also his notes of the meeting including:
• Mr Piper needed to focus on and meet expectations of his current role. •
Mr Piper was allowing himself inappropriately to be caught up in matters outside his role such speaking with colleagues about non-core matters.
•
Mr Piper had numerous outstanding work tasks such as car logbooks; and there were various areas for improvement such as producing site diaries in a timely way.
• Mr Piper was not performing his role in spite of Mr Cracknell then apparently giving him only the equivalent of two days’ work per week.
200. Pausing here, I reject as improbable Mr Cracknell’s evidence that he prepared the notes of the 21 October 2021 meeting within (as he said) an hour of the meeting. Although the meeting lasted only 31 minutes
(according to the screen-shot), Mr Cracknell’s notes were most
voluminous (extending over four and a half A4 pages) and even the notes of the post-meeting afternoon phone call were also lengthy (one and half pages).
201. It seems to me more likely, weighing the whole of the evidence and given what followed, that the notes were expanded upon on at a later date. That could have been either after Mr Piper went off on stress leave (the next day) or after he returned to work disclosing that he had
developed ‘major depression’ due to ‘recent events’ (as he did in the 8
November 2021 email)
202. Moreover, Mr Cracknell’s handling of Mr Piper’s ‘major depression’
disclosure was another example of evidence that was self-serving and
contradictory. Although Mr Piper made the disclosure of ‘major depression’ to Mr Cracknell that morning, Mr Cracknell’s reporting to HR
the same day omitted that. He reported to HR only that Mr Piper had said
he was ‘ok’ and had no medical restrictions.
203. When challenged under cross-examination about that omission in the report, he said it was because he had forwarded Mr Piper’s 8
November 2021 email to HR. Yet, when it was put to him there was no
record of that, he changed his evidence and said he ‘would have’ informed
HR and ‘must have done so by verbal report’.204. I return now to make findings on the evidence as to whether the 21 October 2021 meeting and communications were undertaken in a reasonable manner.
205. Based on the contemporaneous emails (referred to previously), it is very plain Mr Piper approached the meeting anticipating one sort of discussion (clarity on expectations and workload as well as career progression assurances after an extended absence). Yet, instead, he found himself having quite a different sort of discussion with his line- manger (the thrust of which was that he was falling short of expectations).
206. In that regard, I have already set out some of the wide-ranging and largely critical feedback given to Mr Piper.
207. Whilst it is true Mr Cracknell’s contemporaneous notes included statements such as he was seeking to ‘help him ease back into routines in a new team and refresh himself as to changes and process’, I have
already said why I have considerable scepticism about the veracity of
aspects of those notes.208. Nevertheless, the notes recorded Mr Piper at least three times complained the meeting was not what he expected. Mr Cracknell
apparently accepted that was so, telling him he was ‘sorry’ it wasn’t what he expected but they ‘needed to talk about it’ and there were ‘things he
needed to step and do’.
209. I conclude therefore that it was both unfair and unreasonable to conduct the meeting in the manner in which it was conducted. It seems to me, on the evidence to which I have already referred, that the meeting was something of an ambush. That is because it was a substantively
critical review of the various identified deficiencies in Mr Piper’s
performance (or indeed under-performance).
210. Additional to the matters to which I have already referred, I take account the following:
• Both Mr Cracknell and Mr Doyle said there no performance issues prior to Mr Piper going on leave; he achieved his role’s requirements
in apparent contrast to the situation after his return.
• Whilst it is true there were scattered references in emails about performance (e.g. ‘deficiencies’ regarding a site diary (11/10/21 at
1:34 pm), in my opinion there was an absence of advance communication as to there now being identified apparently
significant performance concerns that ‘needed to be talked about’.
•
Mr Cracknell having identified unsatisfactory or deficient work performance, then put in place no formalised support via a performance improvement plan or performance management plan. Indeed, under cross-examination, in a rare concession, Mr Cracknell
agreed Mr Piper’s email of 12 October 2021 was flagging he was
struggling to perform required tasks. Mr Piper stated: he did not understand a point Mr Cracknell had made previously; he was concerned about meeting 24 hour expectations; and he did not have capacity to complete some tasks.
• The non-responsiveness to Mr Piper’s request for a PDP (after apparently being considered for a more senior role). Mr Doyle conceded that a PDP was helpful to assist employees and their managers in supporting career advancement. Both Mr Doyle and Mr
Cracknell were aware Mr Piper aspired to progress into a SSA role –
unsurprisingly, given the evidence he was actively recruited into MRPV having been a contractor and was on a leadership and coaching program.
• Given the fairly extensive concerns conveyed about unsatisfactory performance, the minimal same day notice of the meeting was inadequate and unfair (the invite being sent at 10:56 am for a 2:00 pm meeting). Also, while the relevant clauses of the VPSEA 2020 governing unsatisfactory performance were not tendered, it seems to me performance discussions of the kind Mr Cracknell had with Mr Piper on 21 October 2021, when objectively considered, reasonably required not only more notice but an opportunity offer to bring a support person and/or a reminder about accessing EAP. • The inclusion of the PD which I find was different in form and not merely substance to the PD with which Mr Piper was familiar. 211. To my mind, as part of a global context, these matters lend additional support to my conclusion that the 21 October 2021 meeting and surrounding communications were unreasonably done.
For all the reasons already stated, I accept Counsel for Mr Piper’s
submission that Mr Cracknell had formed the view Mr Piper was not doing his job satisfactorily. It was this which drove what occurred on 21 October 2021.
213. As for the inclusion of the PD in the meeting, for the reasons already stated, I reject Mr Cracknell’s evidence (based on his notes) that: the PD was included merely ‘a good starting point to run through his role and responsibilities’; and a ‘framework to run through’. Rather, I find it was a ‘short cut’ method for Mr Cracknell to illustrate to Mr Piper all the
ways in which he was falling short of requirements.
214. Mr Cracknell's evidence about the PD itself was contradictory. In
examination-in-chief, he said there was no difference between the PD
sent on 21 October 2021 and Mr Piper’s original PD. Then, under cross-
examination, he explained away any differences as being a matter of form
not substance. It was because the PD was going ‘to market’ externally for
a vacant SA role.
215. Counsel for MRPV submitted Mr Piper had been unable to articulate in cross-examination what differences were with specificity. Nevertheless
he gave evidence that: there were ‘quite big changes’ in the role which
was seemingly a lot more onerous; he would need more training; and
tasks would require more time and more negotiation with the contractors.216. On my reading of both documents, I find that, whilst broadly
similar, the PD sent on 21 October 2021 did contain substantive
differences. Importantly, they are in 'Key Accountabilities' including: anemphasis on the number one accountability being 'implementation of
MRPV's Contractor Engagement Strategy'; assisting 'ASM and PDT'…;
'collaborating and supporting the contractor' with respect to 'MTIA
standards'; supporting the 'the ASME and PDT through the procurement'…
217. That the PD was quite different is, I infer, at least part of the reason
Mr Piper almost immediately telephoned Mr Cracknell upon receipt and in advance of the scheduled meeting that afternoon.
218. I find that in all the circumstances it was another aspect of the 21 October 2021 meeting that was unreasonable and unfair. By that I mean, for a revised PD with altered key accountabilities to be simply attached to the meeting invite without any, or any adequate, explanation or context.
219. I accept the submission of Counsel for MRPV that the legal principles require me to consider whether the manner of the management action was reasonable even if particular steps involved were not.
220. However, to my mind and for the reason stated, it was the manner in which the 21 October 2021 meeting and communications was taken by MRPV, considered holistically, that was unreasonable rather than there
being ‘mis-steps’ along the way.
221. Indeed, there were yet other matters of evidence that support the finding that Mr Cracknell’s manner of going about the appraisal was
unreasonable. The evidence was of a constellation of extenuating
circumstances around how Mr Piper was performing :
• Being only weeks into a return from work after several months absence; • Being on a different MRPV program of work; • MRPV’s operations having undergone a big shift (according to both Mr Doyle and Mr Cracknell); and
•
Whilst not to the extent perceived by Mr Piper, to my mind, objectively considered, the return to work was also disrupted and impacted by: needing to take Covid leave for a fortnight (whilst awaiting the permit); delay (albeit weeks not months) in getting a car; and so on. In cross-examination, Mr Doyle conceded it would be frustrating not to have a vehicle when returning to work and also frustrating to experience delay and have to take more leave due to delays with covid permits.
222. Accordingly, I find that MPRV has failed to discharge the burden of proof as to the management action of the 21 October 2021 meeting and communications being taken in an reasonable manner.
(b) Investigation of certificates allegation
223. There was consensus MRPV’s investigation into the certificates allegation was an investigation into alleged misconduct. On that basis, I find the investigation was management action within the meaning of s. 40(7)(m) of the Act.
224. I now turn to the reasonableness of that management action, firstly, as to the grounds for taking it and, secondly, as to the manner of it being taken.
225. Counsel for Mr Piper conceded there was a basis to investigate, although not accepting Mr Piper did alter certificates; yet, whether he did
(or didn’t) do so was not a matter the Court needed to make findings
about.
226. Whilst Counsel for MRPV did not submit specifically otherwise, his submission was that, on the whole of the evidence, the certificates
allegation was substantiated. Thus Mr Pipers’ credit was impugned
(because he maintained his denial of doing so) and the investigation was
on reasonable grounds.227. In a case of this kind, the Court’s task is to assess objectively, in a global context, the reasonableness of the employer’s grounds for taking
the action and grounds should not be trivial or baseless. The task is thus distinct to making findings, retrospectively, about the truth or otherwise of the alleged misconduct itself. The correctness of this approach was confirmed recently by her Honour Justice Forbes in Rennie v State of Victoria..10
228. I accept the evidence of both Ms Yalcin and Mr Walker as to why an employee altering or falsifying medical certificates would represent a serious concern to an employer. Fairly obviously, such activity has the potential for an employee to be paid leave to which there was no entitlement.
229. Ms Yalcin also gave what I found to be credible evidence about the origins of the certificates allegation. She explained how the discrepancies came to light during a regular reconciliation process of employee leave requests including spot-checks of medical certificates. That was the basis for the initial assessment (preliminary to the investigation). According to the contemporaneous file-note (of her HR team-member) of the phone
call on 25 February 2021 with BFC’s receptionist, MRPV wanted to confirm
the validity of medical certificates given they were in an editable format.
230. Also according to that file-note, the BFC receptionist on reviewing
BFC’s records advised that the copy certificates BFC retained did not
match the certificates submitted to MRPV.
231. The apparent differences between the certificates uploaded onto the MRPV employee portal (those labelled A and C) and the copies of originals as retained by BFC (those labelled B and D) are contained in the table set out previously in these reasons.
232. I found Ms Yalcin to be an impressive and cooperative witness who answered questions directly and objectively. I consider her evidence to be impartial given she was no longer employed by DOT or government.
233. I also formed a generally favourable opinion of Mr Walker who, for
the most part, answered questions directly and objectively. He made
important concessions against interest to which I will return later in these
reasons.234. In terms of the grounds for proceeding to the formal misconduct
investigation, both Ms Yalcin and Mr Walker gave evidence as to the initial
assessment step first being undertaken.235. As part of that, Mr Walker gave evidence of his own contact on 16 March 2022 with two representatives of BFC, a receptionist and the practice manager. They each reviewed BFC records and informed him (in summary):
• A certificated dated 26/10/21 was sent to Mr Piper on 26/10/21 for the period 26/10/21 – 9/11/21.
• No certificate was issued with a date of 25/10/21, with GPs not ‘legally allowed to backdate’ certificates. • A certificate dated 11/11/21 was issued for a single day (11/11/21). 236. Mr Walker confirmed his conclusion of the initial assessment was that the certificates allegation could not be substantiated nor not substantiated. That was why a full investigation was warranted pursuant to clause 25 of the VPSEA 2020.
237. Given these matters of evidence, therefore, I conclude that,
objectively considered, there were reasonable grounds for MRPV’s
investigation into the apparently altered certificates once it became aware
of the ’mismatch’.
238. For completeness, I turn now to the submission made by Counsel
for MRPV that Dr Coote’s evidence supported the MRPV’s contention that
the certificates were altered.
239. I have already stated that it is not my task to make factual findings about the truth of whether the certificates were altered or not. It is necessary therefore to consider her evidence only briefly given my conclusion the investigation was undertaken on reasonable grounds. Her evidence at hearing was concerned with the 5 July 2022 letter (only
provided by Mr Piper after the ‘show cause’ letter) and also, in a broader
sense, whether Mr Piper’s explanations for the apparent discrepancies
letter did (or did not) have merit. Also, by 3 June 2022 Mr Walker had
concluded his investigation.240. I found Dr Coote to be an impressive and impartial witness given she had no specific recall of Mr Piper as a patient (although she did remember seeing him on 5 July 2022 at her new practice) and no longer
worked at BFC. It is fair to say that Dr Coote’s evidence was in line with
what the BFC receptionist and practice manager had told Mr Walker. In
other words, her evidence really did not lend support to Mr Piper’s
explanations. She was clear that, should an administrative task (like amending a certificate) be performed by a GP within a consultation then it would be recorded in the progress note. Were such a task done in between consultations, it would be recorded in the progress notes as a
‘non-visit’. There was no progress note that explained the existence of
either certificates A or C.
241. I now turn to the manner in which the investigation of the alleged misconduct was taken.
242. I begin by setting out those aspects of the investigation process I
consider were carried out in an appropriately fair and reasonable manner
as follows:
• The initial assessment occurring prior to launching the formal investigation. • Appointing an experienced HR officer from outside MRPV to conduct the investigation. • Written communications to Mr Piper were plain yet detailed and set out references to relevant clauses of the VPSEA 2020 and DOT policies. • Mr Piper was reminded of his rights regarding a support person at interviews and about accessing EAP. • Mr Piper was invited to respond and given the opportunity to do so and given extensions of time to do so. • Based on the accuracy of the records of the three interviews conducted by Mr Walker (as per the minutes) on 15 March 2022, 21 March 2022 and 13 April 2022 which Mr Piper did not dispute, he was questioned Mr Piper to respectfully and fairly. 243. Throughout the investigation, there were persistent (although
unsuccessful) attempts by Mr Walker to garner Mr Piper’s consent to him
contacting the GP. He also proposed that Mr Piper to be present at any
conversation or offered for Mr Piper to arrange a written statement from
the GP about the apparent mismatch.244. Yet, in two important ways, Counsel for Mr Piper was submitted
MRPV had failed to meet the requisite burden of proof as to the reasonableness of the manner of the investigation. Those were: first, as to timeliness and time-frames and, second, inadequate or lack of welfare
checks. As to both of those, Mr Piper relied upon the MRPV’s own
misconduct policy.
245. I will consider each aspect in turn.
Timeliness and Time-frames
246. The Misconduct Policy provided, relevantly, as follows:
• That, under clause 2, MRPV was committed to ‘effectively and expeditiously managing misconduct or alleged misconduct …’ • That, under clause 13, MRPV should: detail for the employee the expected timeframes for conducting the investigation; generally complete the investigation within the expected timeframe; ensure the employee is notified that the timeframes can be changed throughout the process; matters that were ‘complex, voluminous or logistically complicated’ could take longer to
complete; and, in the event of delay, parties were to be notified
and given reasons for the delay.
• That, as part of Step 4 under the heading ‘Procedures’, an investigation should be conducted in a ‘confidential and timely’ way; and, that ‘Most investigations conclude within 30 days’ although could be longer if ‘particularly complex and/or
voluminous’.
247. There were two complaints made by Counsel for Mr Piper: the length of time taken for the investigation process; and, whether Mr Piper was notified appropriately or at all about time-frames.
248. Ms Yalcin gave evidence of being alerted to the discrepancies on the certificates on or around 25 February 2022 (the date of HR team-
member’s phone call to BFC.
249. On or by 8 March 2022, within 11 or so days, Mr Piper was notified of the allegation and about the initial assessment, Mr Walker having been appointed.
250. On or by 22 March 2022, within 14 days, the initial assessment process was finalised.
251. On or by 29 March 2022, within a week, Mr Piper was formally notified of the decision to conduct the formal investigation which was then commenced.
252. On 2 June 2022, the investigation was concluded by way of Mr Walker’s final report.
253. On 23 June 2022, after about three weeks, Mr Piper was emailed the ‘show cause’ letter of 22 June 2022 together with a copy of the
investigation report.
254. From 8 March 2022, I find that was a period of 108 days. That is of course substantially more than the indicative period of 30 days contained
in the ‘Procedures’ section of the policy.
255. However, in assessing delay relevant to the question of whether an employer engaged in management action in a reasonable manner, it is necessary for a Court to evaluate the whole of the evidence that might explain the delay[11].
[11] Victoria v Stichling [2014] VSC 62256. Certainly, it could be said that this was not a matter that was
‘complex, voluminous or logistically complicated’. There were just two
medical certificates under scrutiny which covered brief short periods (rather than say a whole bundle of certificates covering an extended time)
and that there was a ‘mismatch’ to those held by BFC seemed plain
enough.
257. However, I accept submissions of Counsel for MRPV that there were mitigating factors as regards the length of time taken. It is true that the
investigation’s duration was influenced by a number of factors including:
•
As well as being interviewed three times, Mr Piper gave two extremely lengthy written statements, another shorter statement and two brief videos. These all needed appropriately thorough consideration. Mr Piper was granted some extensions of time to provide these.
• Mr Piper gave and did not resile from his explanations for the apparent ‘mismatch’ (which involved the GP herself having made the changes
subsequently and at his request). The validity of these explanations were difficult for Mr Walker to assess one way or another without having permission to contact the GP.
• The involvement of an external third party (BFC) with overlays of privacy, confidentiality and the need for compliance with the Health Records Act in circumstances in which Mr Piper exercised his right not to give consent for Mr Walker to speak to the GP. • The need for MRPV to obtain legal advice according to Ms Yalcin’s evidence.
258. To my mind, in light of those factors, the time taken between 8 March 2022 and delivery to MRPV of the final investigation report of 2 June 2022 was, of itself, reasonable.
259. However, MRPV then took a further three weeks between receiving the final investigation report and notifying Mr Piper of the outcome by
providing the report and emailing him the ‘show cause’ letter.
260. Counsel for MRPV conceded there was a three week delay at stage, however it was submitted that Mr Piper was ‘not in the dark’. I reject that
submission given there was a lacuna of evidence of any contact made
with Mr Piper during that period.261. I find that added period (which took the whole time to over 15 weeks) was not reasonable in the context of a number of important factors or circumstances. These factors were:
• The lack of information given to Mr Piper in the first place about expected time-frames either at the outset or by way of update in the course of the investigation which I find was itself unreasonable and did not comply with clause 13. • MPRV’s lack of regular welfare checks which did not comply with clause 3 (a matter to which I will return).
• MPRV’s awareness of Mr Piper’s distressed mental state as documented in Ms Yalcin’s email of 10 May 2022 in which she noted: Mr Piper had informed MRPV on 9/3/22 of ‘mental trauma
and a poor state of mental health due to the seriousness of the
allegations’; and ,on 22/4/22, that the investigation was ’all that he could handle’. Additionally, MRPV was on notice of his compromised
mental health including: the prior disclosure to his line manager of
‘major depression’ on 9/11/21; his reference to the allegation being
‘exceptionally troubling’ (in his statement of 27/4/22); his email of
13/5/22 to the CEO and Mr Walker advising of the ‘mental distress’; the investigation having ‘destroyed his life’ (statement dated
13/5/22).
• The added unfortunate circumstance of BFC’s breach in releasing his full clinical records (not within MRPV’s control but MRPV was aware this had caused Mr Piper to feel ‘completely violated’ (as stated in his third statement)).
262. Counsel for MRPV submitted the lack of notice of time-frames issue was reasonable given a number of specific circumstances.
263. First, Mr Piper having attempted to RTW on or around 12 May 2022.
264. I reject that submission: he made a brief return saying he ‘might as well’ but never provided a medical clearance; indeed he was directed to
cease work pending such clearance.
265. Second, Mr Walker gave a sensible explanation for the lack of time- frames advice which was that investigations could be ‘short or long’ and so it would be counter-productive and unhelpful to be ‘hard and fast’
about fixing time-frames.
266. I reject that submission. Avoiding ‘hard and fast’ time-frames does not mean giving no estimate, information or detail at all. The policy specifically provides for capacity to update on delays and changed time- frames. Under cross-examination, Mr Walker accepted that neither the 8 March 2022 letter nor the letter informing Mr Piper of the investigation being instigated gave Mr Piper included any advice or information regarding time-frames.
267. On this issue, Mr Walker’s evidence was less impressive. He disagreed there had been non-compliance with clause 13 of the misconduct policy saying he had advised Mr Piper about timeframes. In the initial discussion (on 15 March 2022), when Mr Piper asked about this,
Mr Walker had replied ‘as quickly as possible’. As for why the otherwise
extremely detailed minutes did not record this exchange, under cross- examination, Mr Walker said it was because the notes were not a transcript.
268. I find that it was improbable that timeframes advice was provided to Mr Piper given it was not captured in the otherwise highly meticulous minutes of meetings on 15 and 21 March 2022 and 15 April 2022.
269. As regards welfare checks, the misconduct policy included:
Under clause 3, statements recognising that: ‘participating in a misconduct process may have an affect on employees’ health and
wellbeing’; and a DOT representative (whether a manager or HR
officer) should conduct ‘regular welfare checks’ of the employee
who is subject of the misconduct process.
270. I accept Mr Piper's unchallenged evidence there was a single call from Mr Walker enquiring as to his welfare following his contact with the CEO and Ms Yalcin. Ms Yalcin gave evidence there was further email correspondence, however this could not be produced. I find there were no other such welfare checks.
271. Additionally, Counsel submitted that when the chronology of the investigation was examined, there were frequent communications and exchanges of information between Mr Piper and Mr Walker throughout. So it could not be said Mr Piper was left for long periods not knowing what was occurring.
272. It seems to me that contact of that kind is different from a welfare check nor is it the same as enquiring into the wellbeing of an employee. That is amplified in this case where Mr Piper is making (as I have said) frequent references to distress and trauma.
273. I reject the submission that what was important was that at all times Mr Piper was in contact with Mr Walker as the person conducting the investigation. About that, under cross-examination, Mr Walker was clear that not the role of the investigator do the welfare check. He had no awareness of whether welfare checks were being conducted by MRPV. He agreed that he would expect welfare checks to be done and that was his practice as a HR practitioner.
274. Mr Walker also gave evidence that his understanding was MRPV had since implemented a strict policy of appointing a HR Officer to do that.
275. MRPV’s Counsel submitted correctly that in assessing
reasonableness, the authorities are clear that the test is reasonableness
and not perfection.
276. Counsel also referred to a decision of Treacy v Western Health[12] in
which Magistrate Garnett observed that whether management action is
reasonably taken is not reasonably ‘with benefit of hindsight’.
277. This was not such a case. From at least 9 November 2021, MRPV had awareness that Mr Piper was an employee with mental health issues. Yet there was an inexplicable delay between receiving the final investigation report and notifying him of that as well as, throughout, an equally inexplicable absence of welfare checks.
278. Accordingly, based on an objective consideration of the whole of the matters which I have referred, MRPV failed to discharge the burden of proof that that investigation was carried out in a reasonable manner.
[12] VMC (17 Oct 2020) at para [28]
(c) Expectation of termination of employment
279. Additionally, or in the alternative, MRPV, relying on s.40(1)(c) of the Act, contended that any mental injury was caused wholly or
predominantly by an ‘expectation’ on the part of Mr Piper that
‘management action would … be taken’ or a ‘decision made to take…
management action’ with respect to the certificates allegation. In other
words, it was submitted on the evidence Mr Piper held an expectation as to his employment being terminated (as indeed occurred) as a consequence of the investigation of the certificates allegation.
280. In Pulling v Yarra Ranges Shire Council,[13] Bell J held that:
[13] [2018] VSC 248.
‘management action can only be wholly the cause when it is the only
cause… [and] can be a predominant cause when other causes contribute
... but that cause is still the predominant cause. To be the predominant
cause, that cause must exceed all other causes in power and influence’.[14]
[14] Ibid, [79].
281. I now turn to the evidence.
282. After the 21 October 2021 meeting and communications, Mr Piper
advised Mr Cracknell he would be on sick leave for 'an extended period'.
On the following Tuesday (26 October 2022) Mr Piper complained to Dr
Coote of 'feeling bullied' and although 'not very forthcoming about thenature of the bullying’ he felt ‘upset’ and was seeing a psychologist. The
next week Mr Piper informed Mr Cracknell he was suffering from 'major
depression and anhedonia.283. There were further attendances at BFC and an anti-depressant was prescribed and then doubled. By January 2022, Mr Piper was reporting 'improving' mental health on the medication with work being 'stressful but manageable'. Yet, by 23 February 2022, Mr Cracknell was off work again and back at the GP (Dr Crilly) on 2 March 2022 complaining of 'anxiety at work' which was leading him taking days of work.
284. I turn now to further contemporaneous evidence to which I have
not already referred in regards to Mr Piper’s expressions about his mental
health.
285. At the time of an interview on 21 March 2022 - still relatively early on in the investigation time-frame - Mr Piper told Mr Walker: ‘this is
completely fucked for me and has completely ruined my trust in the medical profession. In saying that though I have reviewed Fair Work
cases similar to this and if I don’t plead guilty I might not lose my job and
I don’t then I will and that is fucked too’. Mr Piper’s evidence about this
record in the minutes was that he did not specifically recall saying that,
but his evidence was that was how he felt at the time.286. Mr Piper stated specifically in his third statement dated 13 May 2022. he stated: ‘Irrespective of the finding … this investigation has completely destroyed my life’; of feeling ‘extremely violated’’;
‘exhausted’; and but for the availability of EAP, he would ‘certainly have
committed suicide during the investigation’.
287. I conclude on that contemporaneous evidence that it was the management action of the investigation itself (albeit including the inadvertent BFC conduct) that was causative of mental injury. It seems to me there was no evidence to support a finding that the expectation of
dismissal nor the ‘show cause’ letter itself emailed to him on 23 June
2023 likely was the predominant cause or that exceeded all other causes
in power and influence’.
288. I conclude that the weight of evidence does not support a finding
that Mr Piper’s mental health was caused wholly or predominantly by the
expectation of his employment being terminated.
Capacity
289. At the outset of the case, Counsel for MRPV indicated to the Court it was accepted Mr Piper had no capacity for work.
290. Counsel for Mr Piper submitted in his closing address that the overwhelming weight of evidence supported the conclusion that Mr Piper was incapacitated for pre-injury duties based on opinions of Dr Epstein, Dr Sahoo and Dr Adlard.
291. I attribute little or no weight to Prof Sahoo’s opinion in June 2022 that Mr Piper would be fit within a month of his examination for modified duties in a different work place. That is at odds with all other opinions in the case.
292. I find that Mr Piper has been incapacitated for his pre-injury duties from at least 20 May 2022 to date and ongoing.
293. I find that his incapacity results from or is materially contributed to by employment for the reasons already stated.
Conclusion
294. For these reasons, the notice of decision of 8 July 2022 is set aside.
295. A summary of my conclusions are as follows:
a. Mr Piper suffered a mental injury in the nature of a major depressive disorder or, in the alternative, an adjustment disorder with mixed depression and symptoms of traumatisation arising out of or in the course of her employment with MRPV pursuant to s.39(1) of the Act.
b. MRPV has failed to discharge the burden of proof that his mental injury was a kind for which there is no entitlement under s.40(1) of the Act.
c. Mr Piper had no capacity for pre-injury employment from 12 May 2022 and such incapacity resulted from or is or was materially contributed to by the injury.
d. He does not have a current work capacity for pre-injury
employment.
e. He is entitled to reasonable medical and like expenses in
accordance with the Act.
Magistrate M A Hoare
8 March 2024
(ASOC) dated 23 October 2023 and his Further & Better Particulars dated 9 June 2023.
10 [2023] VSC 762 at [67] – [73]
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