Rennie v State of Victoria

IN THE MAGISTRATES’ COURT OF VICTORIA
AT BALLARAT
WORKCOVER Division

Case No.M11410069

PETER RENNIE	Plaintiff
v
STATE OF VICTORIA (DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY)	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	BALLARAT (Online Magistrates’ Court)
DATE OF HEARING:	22 - 24 June 2022 (Final submissions delivered: 22 July 2022)
DATE OF DECISION:	9 September 2022
CASE MAY BE CITED AS:	Rennie v State of Victoria
MEDIUM NEUTRAL CITATION:	[2022] VMC 26

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WORKERS COMPENSATION – Rejection of claims – Mental Injury – Claim by prison officer of mental injury in the course of or arising out of employment – Suspension from duty and investigation into allegations of misconduct – Subsequent claim in relation to termination of employment - 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 - Jurisdiction - Workplace Injury Rehabilitation and Compensation Act 2013, ss 39(1), 40 (1), 40(7), 266(1).

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms G Jardine	Rubicon Compensation Lawyers
For the Defendant	Mr S Scully	IDP Lawyers

HER HONOUR:

Introduction and Overview

Mr Rennie, a prison officer at the Langi Kal Kal prison, brings a proceeding for psychological injury arising out of or in the course of employment from 19 February 2020 to 24 March 2021.

The Department of Justice and Community Safety (the Department), Mr Rennie’s employer, defended the proceeding on the basis that his claimed mental injury was of a non-compensable kind having been caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner.

Mr Rennie relied upon two separate claims for compensation against the Department both for weekly payments and medical and like expenses. Each of the claims was rejected by notices of decision respectively dated 9 February 2021 (the first notice) and 23 June 2021 (the second notice).

The proceeding is governed by the Workplace Injury Compensation and Rehabilitation Act 2013 (the Act).

Mr Rennie’s evidence

Background

In January 2014, Mr Rennie, who is aged 63 years, began full-time employment with the Department as a prison officer at the Langi Kal Kal prison (the prison).

From around 2015, Mr Rennie, a union delegate, was also a health and safety representative (HSR) within the prison. As an HSR, he would identify and log health and safety issues with prison management.

February 2018 direction regarding conduct

In early February 2018, Mr Rennie attended a meeting with Ms Catherine Darbyshire, general manager of the prison. Mr Rennie was informed of a complaint about his conduct and given a letter headed ‘Direction in relation to your conduct’ (the February 2018 direction).

The complaint concerned a colleague feeling uncomfortable on a date in September 2017 due to Mr Rennie having reportedly moved into her ‘personal space’. He had also allegedly said they ‘should sit and have cocktails’, rather than return to another work area.

The February 2018 direction stated that the complaint followed incidents of ‘similar behaviour’, including:

· 26 December 2016 – an incident of being asked to submit a report after walking in on a female colleague in the toilet.

· 14 March 2017 – an incident of being spoken with about appropriate conduct after it was alleged he had slapped a female colleague’s buttocks.

10. Mr Rennie was advised the conduct was unacceptable as it breached the Respect in the Workplace Policy and obligations under the relevant Code of Conduct.

11. The formal direction was ‘to treat your colleagues with respect and conduct yourself professionally in the manner in which you communicate and behave with your colleagues’.

12. Mr Rennie was further informed that the direction did not constitute formal disciplinary action and formal misconduct proceedings would not be initiated.

13. As for the alleged misconduct referred to in the February 2018 direction, according to Mr Rennie, none of the matters were true other than entering the toilet inadvertently as he had explained at the time.

14. Mr Rennie believed he probably completed an online course on ‘Respect in the Workplace’ following the February 2018 direction.

November 2019 meetings and email regarding conduct

15. On 21 November 2019, Mr Rennie had a meeting with his direct manager, Mr Paul Bulger (the Bulger meeting). A support person, Mr Colin Block, also a union delegate and an HSR, was present. Mr Rennie was informed of further complaints against him by colleagues. He was told to be careful because, as an HSR, he could be targeted by prison management.

16. In cross-examination Mr Rennie conceded that, although the Bulger meeting was friendly and low-key, the suggestion to bring a support person indicated a meeting of a serious nature. He regarded the meeting as informal as no notes or minutes were taken.

17. Mr Rennie then received an email from Mr Bulger the same day with the subject-line ‘Points from our Meeting’ (the November 2019 email) in which the meeting was described as ‘an early intervention meeting’. The November 2019 email instructed him ‘to be mindful of his interactions with other staff’.

18. Mr Rennie felt he had been given a friendly warning and felt happy with how the meeting went.

19. A week or two weeks later, in another discussion with Mr Bulger, Mr Rennie was told he was going okay and there were no other complaints. In another chat with Mr Bulger, he was again told to be ‘very careful’ apparently because a supervisor had alleged Mr Rennie was ‘grooming’ another officer although Mr Bulger did not believe the allegation and would not be acting on it. In cross-examination, Mr Rennie agreed that was not a matter included as an allegation in the 7 April notice of investigation.

Suspension from duty

20. On 22 February 2020, Mr Rennie attended a meeting with Ms Darbyshire and another manager. Mr Rennie had a support person present (Ms Mary Wary). He was handed a notice headed ‘Suspension from duty’ and dated 19 February 2020, which was authored by Ms Melissa Westin, Deputy Commissioner, Custodial Services (the suspension notice).

21. The suspension notice informed him that he was immediately suspended from duty with full pay whilst there was an assessment of alleged misconduct.

22. The assessment, stated to be in accordance with the Victorian Public Service Enterprise Agreement 2016 (VPSEA 2016), would determine whether a formal misconduct investigation was to be authorised.

23. The alleged misconduct related to ‘failing to demonstrate respect for female colleagues within the [prison] and/or promote an environment that encourages respect and/or create an environment that is free of harassment, by invading their personal space and/or watching and staring at them causing them to feel uncomfortable’.

24. Additionally, it was alleged that Mr Rennie had failed to follow the November 2019 direction by Mr Bulger about behaving in an appropriate and respectful manner in the workplace.

25. The suspension notice nominated Ms Darbyshire as the contact person to provide support or, alternatively, he could nominate another person.

26. Mr Rennie left work after the meeting on 22 February 2020. That was his last day of work and he ultimately never returned.

27. In mid-March 2020, Mr Rennie spoke with Ms Darbyshire by phone whilst he was away in Melbourne. She told him she had not been happy with the first draft of a ‘notice of investigation’ and it was being revised.

28. Mr Rennie denied under cross-examination having any missed calls subsequently from Ms Darbyshire although at another point he referred to there being a call which he did not return because he did not think he was permitted to speak with her.

April 2020 notice of investigation into alleged misconduct

29. Mr Rennie then received a ‘Notice of Investigation into Alleged Misconduct’ dated 7 April 2020 from Mr Andrew Reaper, Assistant Commissioner, Corrections Victoria (the April 2020 notice). The April 2020 notice set out allegations of misconduct and informed Mr Rennie that an investigation of alleged misconduct had been authorised under the VPSEA 2016.

30. The first four allegations alleged that Mr Rennie had, on different dates, engaged in inappropriate behaviour and failed to demonstrate respect towards female colleagues (Allegations 1 through to 4). The further two allegations alleged that Mr Rennie had, by his conduct in the workplace, contravened the February 2018 direction and Mr Bulger’s verbal direction on 21 November 2019 (Allegations 5 and 6).

Events after April notice of investigation

31. Mr Rennie was familiar with the processes of suspension and investigation of misconduct. That was through his experience as a union delegate supporting others.

32. Mr Rennie could not recall requesting two extensions of time to respond to the April 2020 notice, but did not dispute he had done so via his union representative, Mr Rick Rendell.

33. On 1 May 2020, Mr Rennie provided a written response denying all allegations in the April 2020 notice. That was by email to the investigator, Mr Gascoyne, with the Department’s investigations unit.

34. On 4 June 2020 Mr Rennie agreed to an interview after a request on 29 May 2020 from Mr Gascoyne. However, an in person interview could not proceed because of the COVID-19 government restrictions. There were also unsuccessful efforts to arrange a video interview.

35. In cross-examination Mr Rennie denied this was because he did not have adequate internet capability at his home to support that.

36. Ultimately, Mr Rennie agreed to receiving questions in writing which were provided on 16 June 2020. He then provided his written answers by an email of 1 July 2020.

37. Around this time, Mr Rennie had concerns over variations in his fortnightly pay and there were email communications about this with the Department (the pay issue).

38. Under cross-examination Mr Rennie denied he was only raising the pay issue to bolster his claim at hearing, rather it caused him stress all along.

39. There was no communication at any stage from the person nominated in the April 2020 notice to be his contact person Ms Osborne.

40. In cross-examination Mr Rennie agreed that in around July 2020 he received either a text message or a voice mail from Ms Darbyshire checking in with him. Mr Rennie did not return the call because of being instructed not to communicate with anyone other than the nominated contact person.

41. Over this period, Mr Rendell would forward to Mr Rennie the emails received from Mr Gascoyne giving progress updates on the investigation. On 11 August 2020, Mr Gascoyne advised by email that the investigation was ‘at the end stages’. Then, on 7 September 2020, Mr Gascoyne advised that the matter was ‘with a delegate’ and that ‘hopefully [they] will have something soon’ and, on 10 September 2020, that the matter was under review.

42. As for the investigation time-frame, from his experience of supporting colleagues in the past, Mr Rennie was aware of at least one misconduct investigation taking six months or so.

43. In cross-examination, as for whether Mr Rennie considered his case to be ‘open and shut’ and would be finalised quickly, there were no ‘open and shut’ cases and all matters needed a proper and thorough investigation.

44. As for his mood, by September 2020, Mr Rennie was beginning to go downhill and he was fluctuating between two states. On the one hand, he knew the investigation needed to be thorough and, on the other, he was thinking that something was going wrong. He felt he did not know what the heck was going on.

45. In cross-examination he agreed nobody at the Department was aware that by September 2020 he was suffering from psychological stress.

46. On 21 September 2020, Mr Rennie first attended his GP, Dr Hays, about mental health and workplace issues. Mr Rennie agreed, under cross-examination, that he was then still unaware of the investigation outcome including whether the misconduct allegations were substantiated or not.

47. That was also still the situation when he attended Dr Hays about workplace mental health issues on 19 October 2020 and 2 November 2020.

Investigation outcome and show cause notice

48. Mr Rennie learned of the investigation outcome by letter dated 1 December 2020 from Ms Carly Edwards, Acting Deputy Secretary of the Department headed ‘Allegations of misconduct – findings and proposed disciplinary outcome’ (the December show cause notice). He thought he received this by mail.

49. Mr Rennie was informed that his conduct as alleged in Allegations 2 to 6 amounted to misconduct in accordance with the Management of Misconduct Policy and also constituted misconduct under the relevant clause of the VPSEA 2020. Allegations 2 through to 6 were found to be substantiated (although Allegation 1 was not substantiated).

50. The proposed disciplinary outcome was the termination of his employment with Mr Rennie having an opportunity to respond.

51. Mr Rennie’s lawyers responded on his behalf by letter dated 18 December 2020 to the Department denying all allegations and requesting reinstatement of his employment.

52. On 4 January 2021, Mr Rennie attended Dr Hays complaining of his ‘mental health worsening again’. Also, by that time, he had been referred by Dr Hays to a psychologist.

Termination of Employment

53. As of 24 March 2021, Mr Rennie’s employment was terminated by way of a notice dated 22 March 2021 (the termination notice).

54. Under cross-examination Mr Rennie denied feeling distressed by his termination, rather he was depressed by the whole process. Mr Rennie agreed he felt relief that a final outcome had been reached because it had been a long process. He conceded that he felt his condition did not worsen after the March 2021 termination and agreed that there may have been moderate improvement.

55. Mr Rennie brought a Fair Work action regarding his dismissal which was later settled at a conference.

Current Circumstances and Capacity for Work

56. Mr Rennie has continued to attend Dr Hays and his psychologist. Symptoms had persisted from September 2020 to today with ups and downs. He found it difficult to enjoy himself, had trouble sleeping and tended not to eat properly.

57. Mr Rennie had never been referred to a psychiatrist nor at any stage been prescribed psychotropic medications.

58. He had not applied for work or returned to any work because he did not think he was capable of working. That was also his doctor’s view. His inability to work was due to having poor concentration and forgetfulness. It was also related to issues of trust with people.

59. As for what Mr Rennie himself considered to be the cause of his injury, under cross-examination, Mr Rennie said it was a lack of communication about the investigation. Regarding his suspension, although disappointed, he had no issues with that as he was aware of the process and that the investigation would be thorough.

60. As for prior work experience, he had worked in IT, as a firefighter and a plant operator operating a water cart. He could not do any of these roles because of his difficulties concentrating.

61. The claim forms had been completed by his solicitor and signed electronically by him.

Other lay evidence

Ms Wood’s evidence

62. Ms Wood, a hotel owner/manager, was an officer at the prison from 2014 until February 2020. Ms Wood confirmed the truth of an unsigned witness statement taken on 7 July 2021 by Mr Rennie’s lawyers in the context of his Fair Work action. Mr Rennie was a work colleague with whom she had no social relationship.

63. Ms Wood was aware of a drive by senior management in late 2019 to get people to make complaints about Mr Rennie. She was never asked to do this herself.

64. An un-named colleague told her about a supervisor requesting that she (the colleague) make a statement against Peter (which she refused to do). Ms Wood did not name the colleague who still worked for the Department, but would have done so if compelled by the Fair Work Commission.

65. In cross-examination, she said that a supervisor (called Mr Cullinane) had been on the war-path against Peter.

Mr Block’s evidence

66. From 2014 to the present time, Mr Block was employed by the Department as an industry officer at the prison. He was also a union delegate and an HSR. Mr Block knew Mr Rennie well through their union activities. Mr Block confirmed the truth of an unsigned witness statement given to Mr Rennie’s lawyers on 7 July 2021.

67. Mr Block had been the support person for Mr Rennie at the Bulger meeting in November 2019. The meeting was fairly informal and no notes were taken. Mr Bulger had told Mr Rennie to be careful of invading people’s space without specific allegations being given. Mr Bulger also told them both that people in HSR roles tended to be targeted by management.

Ms Huffer’s evidence

68. Ms Huffer, the Department’s workplace relations manager, was the nominated contact person in the April 2020 notice. In that capacity, she would give advice if asked about the investigation process. She never met Mr Rennie and contact was via Mr Rendell.

69. Ms Huffer confirmed two extensions of time were granted for Mr Rennie’s response to the April 2020 notice. On 4 June 2020, he had agreed to an interview.

70. An out of the ordinary delay then occurred of about one month because of recently imposed COVID-19 restrictions and Departmental staff having to change to remote work. There were unsuccessful efforts to arrange a video interview but Mr Rennie did not have a device with a camera and he could not attend the prison due to his suspension. That was the reason for interview by way of exchange of written questions and answers which was completed by 1 July 2020.

71. Ms Huffer understood that at some stage after that the Department decided to seek external legal advice to ensure its findings were soundly based. That concerned ‘similar fact evidence’.

72. The investigation report was finalised by 7 October 2020 and was submitted to the Departmental delegate for authorisation and formal decision-making regarding the investigation outcome.

73. Ms Huffer agreed that all these matters regarding the time-frame were set out in an email to Mr Rendell of 10 December 2020. She had written that the need for external legal advice was considered ‘essential in terms of ensuring that the Department made appropriate findings comparable to other similar matters’.

74. That was in response to Mr Rendell’s email of 24 November 2020 in which he sought to raise a dispute under Clause 24.14(b) of the VPSEA 2020, on the grounds: (i) a misconduct investigation had not been completed with six months of being advised of the alleged misconduct; and (ii) the party considers the delay to be unreasonably caused by the other party.

75. The VPSEA 2020 had only come into force in October 2020 and the previous VPSEA had had no equivalent provision.

76. Under cross-examination Ms Huffer was asked about the delay between 7 October 2020 (when the report was finalised) and the issuing of the December show cause notice. She believed the matter had been under consideration at various levels of delegates of the Department’s Secretary. The Department was very large having over 11,000 people. Specifically, across the Department Secretary and also the Deputy Commissioner of Corrections Victoria, there were numerous people required to have input, consider and authorise the proposed outcome.

77. Following her email to Mr Rendell on 10 December 2020, Ms Huffer had no other involvement in Mr Rennie’s matter.

78. In cross-examination Ms Huffer agreed that in 2019 WorkSafe had investigated the Department’s handling of misconduct investigations. That was a trigger for the introduction of Clause 24.14(b) allowing for disputes to be raised after investigations proceeding beyond six months.

Mr Gascoyne’s evidence

79. Mr Gascoyne was a senior investigator employed in the Department’s investigations unit from December 2019. His role was to investigate employee misconduct matters. Before that he had held investigation roles in government departments or quasi-government bodies interstate for about five years.

80. From around 11 March 2020, Mr Gascoyne was the investigator on Mr Rennie’s case having taken over from Ms Lindsay Hilliard after she was promoted to be unit manager. Mr Gascoyne reviewed information already gathered including records of interview with complainants. He did not speak further to the complainants himself as the interviews had already been done.

81. As for the April 2020 notice, the final draft was prepared by Mr Gascoyne and ultimately signed off by Mr Reaper, as authorised delegate of the Department Secretary. Mr Gascoyne was aware of an earlier draft notice by Ms Hilliard which was revised to include additional allegations. Mr Gascoyne was unaware of Ms Darbyshire, the prison general manager, having input in the notice.

82. As for Mr Rennie’s response of 1 May 2020, that came after two extensions of time were granted. Mr Rennie’s response was reviewed and compared with accounts of witnesses.

83. The next step would have been ordinarily to interview Mr Rennie in person. However that was prevented by COVID-19 restrictions. It was at the start of people transitioning to working remotely and there were various difficulties. Mr Gascoyne had worked through options to overcome this. A video conference was not possible to arrange as Mr Rennie had lacked a device with a camera. Due to being suspended, Mr Rennie could not attend the prison to do a video-conference. Another option was to do the interview at the union’s office in Melbourne, but that was not permitted due to COVID-19 restrictions. Eventually, an interview by way of written questions and answers was agreed upon and that was finalised by 1 July 2020.

84. Once Mr Rennie’s response of 1 July 2020 was received and reviewed against other evidence, Mr Gascoyne would have drafted his final investigation report.

85. On 11 August 2020, Mr Gascoyne emailed Mr Rendell with an update. He advised that the investigation had ‘progressed to the end stages’ and anticipated Mr Rennie would be notified of the investigation outcome ‘in the coming weeks’. Mr Gascoyne also stated that was often out of his means of control. As for what needed to occur beyond the ‘end stages’ referred to in that email, his report had to be sent to his line manager and then to the various levels of delegates for review and authorisation.

86. Mr Gascoyne understood that what happened at a higher level was a decision was made to obtain external legal advice.

87. In examination in chief, Mr Gascoyne, was asked to explain why the final investigation report had a date of 7 August 2020. That was an error referring to an earlier draft as the report was actually finalised in early October 2020.

88. Under cross-examination Mr Gascoyne, was questioned extensively about the six allegations contained in the April 2020 notice. There had been sufficient evidence to put the allegations to Mr Rennie in the notice of investigation. Beyond that, if there was enough evidence, the allegation would be found to be substantiated ultimately and, if not enough, it would not be substantiated.

89. As for Allegation 1, Mr Gascoyne agreed the complainant decided against taking the complaint further and did not agree to speak with him or Ms Hilliard. However, he disagreed that meant there was no evidence and that ought to have been the end of the matter.

90. In his view, once a complaint was raised and even if it was withdrawn, there still needed to be an investigation. The Department had a duty of care to manage and investigate sexual harassment which did not cease because the complainant, having made the complaint, decided against taking it further. This was quite a common thing in his experience.

91. In cross-examination Mr Gascoyne conceded that complaints could at times be false or motivated by malice. He agreed that he could not determine that because he did not speak with complainants personally, rather Ms Hilliard had.

92. As for Allegation 2, in cross-examination, Mr Gascoyne agreed he was unaware Mr Rennie had provided evidence later of not even being at the prison on 21 August 2019.

93. As for part (b) of Allegation 3, Mr Gascoyne agreed he found it likely Mr Rennie had referred to colleagues as ‘girls’ and ‘ladies’, but accepted he had meant no offence. He therefore was not satisfied that aspect was misconduct.

94. In cross-examination Mr Gascoyne agreed he never gave Mr Rennie or Mr Rendell an indicative time-frame. That was because of the complexity of the matter. However, he had emailed Mr Rendell with updates as to progress.

95. As for Allegation 4 (found to be substantiated in the December show cause notice), in cross-examination Mr Gascoyne, agreed that, within the particulars of this allegation some parts were proven, but that parts (e) and (f) did not amount to misconduct.

96. As for Allegation 5 regarding non-compliance with the 5 February 2018 direction (found substantiated), in cross-examination Mr Gascoyne denied that was a baseless finding because the period of February 2018 direction overlapped with that of Allegation 1 (found not substantiated).

97. As for Allegation 6 alleging non-compliance with the direction in the Bulger meeting, he disagreed that did not constitute a direction.

98. Mr Gascoyne had no real involvement after the final investigation report was submitted to his superiors on around 7 October 2020.

Medical Evidence

99. Dr Ash Hays, treating GP, provided referral letters of 21 September 2020 and 19 October 2020 and reports of 1 March 2021 and 23 February 2022. The initial presentation in the context of workplace issues was on 21 September 2020 with mixed anxiety and depression symptoms, after a prolonged period of suspension. The diagnosis was of an adjustment disorder with depressed mood. The condition was precipitated by events during his employment including instances of exclusion and ostracization leading to suspension and subsequent termination. As for capacity, he could not resume pre-injury work as a prison officer but could regain capacity in an unrelated role with another employer. He was referred for psychological treatment which he continued to require.

Mr Alex Montgomery, treating psychologist, provided reports of 21 December 2020, 19 March 2021 and 22 March 2022. The presentation of symptoms on 30 November 2020 was consistent with a diagnosis of a major depressive disorder as well as significantly elevated anxiety. It was opined that the condition had arisen as a direct result of the circumstances of the suspension from work. As for capacity, initially it was opined that he would have capacity to undertake similar pre-injury employment as symptoms reduced and maybe other suitable employment. By March 2022, his opinion was there was no capacity to return to work as a prison officer.

Dr Leon Turnbull, psychiatrist, prepared a medico-legal report of 29 October 2021 for Mr Rennie’s solicitors. The history was of him having a sense leading up to January 2020 that things were not quite right and of feeling ostracised and unsupported. This had included some sort of tip off that management did not want him around because of being a union delegate and HSR. Mr Rennie felt disappointed but not too concerned about being suspended as he understood the process from helping others. He was unsurprised by it due to being told he was being targeted, but he was disturbed by the allegations. He described sliding into depression in 2020 as things went on and on. His mental health got worse after the termination. He ruminated on the triviality and stupidity of some of the allegations. As for diagnosis, Dr Turnbull opined that amounted to an adjustment disorder. The condition was progressively contributed to by a series of events related to his employment. There had been incapacity from at least 4 January 2021.

Prof Saddichha Sahoo, psychiatrist, prepared a medico-legal report of 29 January 2021 at the request of the Agent. A history was given of being suspended due to allegations which were completely false. Only in June 2020 did he learn that the allegations related to harassment of a sexual nature. The diagnosis was of an adjustment disorder with depressed mood. Symptoms were persistent and of moderate severity. As for causation, the work-related factors were the investigation and allegations and perceived lack of support from the employer. The effect of treatment had been minimal and Mr Rennie may benefit from an anti-depressant. There was no capacity for pre-injury duties with this or any other employer for at least the next three months.

That concludes my summary of the evidence.

Consideration

Burden and Standard of Proof

The legal and evidentiary onus of proof rested with Mr Rennie to establish, on the balance of probabilities, injury arising out of or in the course of employment pursuant to s 39(1) of the Act.

The Department had the onus of proof regarding its management action defence relied upon under s 40(1) of the Act.

Legal Principles

Both Counsel referred to the guiding principles for assessing ‘reasonableness’ of management action as set out in Krygsman-Yeates v State of Victoria (Krygsman).[1]
[1][2011] VMC 57 [35] in relation to the predecessor provision under the Accident Compensation Act 1985.
The management action is to be considered objectively having regard to all of the circumstances leading to it being taken and the manner in which it is taken in a global context. The following matters are to be taken into account:

i.That the management action and the manner in which is taken should not be irrational, absurd or ridiculous but moderate and fair; and
ii.The judgement is whether the action taken was done “reasonably“ not whether it could have been done more reasonably or in a different way more acceptable to the court; and
iii.The action and the manner in which it is taken may be reasonable even if particular steps involved are not; and
iv.The action and the manner in which is taken should be assessed at the time it is taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.[2]

[2]Ibid.

As I have observed previously in Freemantle v State of Victoria,[3] and Pilbrow v The University of Melbourne,[4] the reasonableness of management action is to be assessed by way of a subjunctive test. Both the grounds for the management action must be reasonable and the manner in which it was taken must be reasonable.
[3][2020] VMC 9.
[4][2022] VMC 8.

For the defence to succeed, ‘management action’ must be the whole or predominant cause of injury and that cause must exceed ‘all other causes combined in power and influence’ according to Justice Bell in Pulling v Yarra Ranges Shire Council (Pulling).[5]

Diagnosis and Nature of Injury

[5][2018] VSC 248 [79] (‘Pulling’).

The evidence was unchallenged that Mr Rennie had a diagnosable psychological injury.

The diagnosis of the treating GP, Dr Hays, was of an adjustment disorder with depressed mood.

Mr Montgomery, the treating psychologist, had a different view and diagnosed a major depressive disorder as well as significantly elevated anxiety.

Weighing the whole of the evidence, I prefer the opinion of the treating medical practitioner, Dr Hays. His opinion accorded with the views of both psychiatrists in the case: Dr Turnbull (for Mr Rennie’s lawyers) and Prof Sahoo (for the Department).

It seems to me that Mr Montgomery’s opinion of a major depressive disorder is less likely. I take into account the unanimity of the other opinions as well as the evidence that Mr Rennie had not required psychotropic medication nor been referred by his GP to a psychiatrist.

Prof Sahoo observed in January 2021 that Mr Rennie ‘may benefit’ from an anti-depressant. Nevertheless, at the time of Dr Hays’ most recent report of 22 March 2022, psychotropic medication had not been considered appropriate treatment by the treating doctor.

I conclude that Mr Rennie’s psychological condition was in the nature of an adjustment disorder with depressed mood.

Jurisdiction and Causation Issue

It was accepted by Counsel for the Department that the evidence supported Mr Rennie’s psychological condition having arisen out of or in the course of his employment.

Beyond that threshold, however, the parties were at odds in relation to causation. Submissions were focussed on: the onset and timing of injury; the time-frame and aspects of employment that were causative of injury; and the scope of the respective claims.

The circumstances relied upon by Mr Rennie in his initial claim form of 6 January 2021 (the first claim) were as follows:

Stress and anxiety and depression caused by employer communications / lack of communication and investigation process, including the decision to suspend as opposed to some other measure which would have enabled me to work, which commenced on 19 February 2020 and his continuing. I've been suspended during investigation process with no opportunity given to work.

Mr Rennie’s later claim set out circumstances of injury in the claim form of 28 May 2021 (the second claim) as follows:

Failure to take on board my responses to the investigation process and then taking the decision to terminate my employment for events which I say did not occur and those that did occur, were not a breach of the code of conduct reasonably should not have resulted in the termination of my employment.

As matter of law, Counsel for the Department submitted, Mr Rennie’s first and second claims gave rise to separate causes of action and causes of injury. That principle, well-established in this jurisdiction, was enunciated in Robinson v SPI Electricity Pty Ltd.[6]
[6][2012] VMC 30 [23] in respect of the predecessor provisions in the Accident Compensation Act 1985.

Pursuant to s 266(1) of the Act, the Court has jurisdiction ‘to inquire into, hear and determine any question or matter’ arising out of ‘any decision’ of the Authority.

In this case, the Court’s jurisdiction arises out of the first notice of rejection and the second notice of rejection.

I agree, therefore, with Counsel for the Department that, on the issue of causation, the causes of action arising out of each claim must be considered separately and not conflated as a ‘continuation’ of each other.

Nevertheless, I must reject the submission for the Department that, by reason of the first notice, the Court’s inquiry into causation was confined to a claimed injury arising out or in the course of employment ‘up until 21 September 2020’.

Whilst the evidence was that Mr Rennie first sought medical treatment for workplace mental health on that date, in assessing the whole of the evidence, I conclude that events and circumstances beyond 21 September 2020 were causative of injury. That is different to nominating 21 September 2020 as the date of injury given it was the initial date of complaint.

On the evidence, by the time of lodging the first claim, the following had occurred as part of the misconduct investigation process:

a. By way of the December 2020 show cause notice, Mr Rennie learned of the ‘findings and proposed disciplinary outcome’ of the investigation.

b. Mr Rennie then responded to the show cause notice via his lawyers’ letter of 18 December 2020.

c. Thereafter, by letters of 29 December 2020 and 3 February 2021, Mr Rennie was advised by the Department that the investigation was ‘still progressing’ and that his suspension from duty would ‘continue’.

d. On 4 January 2021, Mr Rennie complained to Dr Hays that his ‘mental health worsening again’. The history given on that date was: ‘Finally received report from investigation; Recommended termination; This is obviously distressing for Peter …; May end up going to unfair dismissal…’

Whilst claims and causes of action may not be conflated, it is nevertheless true that, in practical terms, as Mr Rennie’s Counsel submitted, events and time-frames relied upon in the two claims overlapped to some extent. Indeed, that overlap was acknowledged by the Agent in the second notice which stated that the decision dated 9 February 2021 (the first notice) was ‘still relevant’. Also, the second notice referred to both claims having nominated 21 September 2020 as the date on which Mr Rennie ‘first noticed’ his condition.

I observe at this point that the second notice referred, somewhat disingenuously, to Mr Rennie not having ‘returned to work since 21 September 2020’. Yet the undisputed evidence was that Mr Rennie never returned to work after being suspended from duty on 22 February 2020.

Nevertheless, the first claim did not and could not extend to events and circumstances subsequent to its lodgement on or around 6 February 2020. I find that the first claim relies upon:

i. the investigation into misconduct allegations contained in the April 2020 notice; the December 2020 show cause notice; and the still pending status of the matter in early February 2021;

ii. the suspension from duty whilst the investigation was proceeding; and

iii. communications in connection with those actions.

I find that the second claim relies upon subsequent employment-related events, specifically the termination of employment.

Having made those findings, I must at this point reject several aspects of submissions by Counsel for Mr Rennie.

It was submitted that Mr Rennie’s psychological injury occurred ‘by way of a gradual process over time’.

However, in my view, as a matter of law, that submission is a somewhat misguided one.

As I have already observed, the threshold test of causation for Mr Rennie to succeed in his claim was to establish injury ‘arising out of or in the course of employment’ under s 39(1).

In my view, it was not necessary to consider s 39(3) nor do I consider the law in relation to ‘gradual process over time’ was applicable on the facts of his case.

Section 39(3) of the Act refers to injury by ‘gradual process’ which occur ‘over time and which is due to the nature of employment…’ and provides that if a worker has suffered an injury in such circumstances, then it is as if the injury were an injury arising out of or in the course of employment.

As Counsel for the Department submitted, correctly in my opinion, the authorities are clear that s 39(3) and the predecessor provision of s 82(6) of the Accident Compensation Act 1985 involve some factor in the employment operating gradually to cause a deterioration in a worker’s health. In this regard, I refer to the cases and discussion at [s.82.27] of the current Lexis Nexis Accident Compensation Vic publication.

Counsel for Mr Rennie also made submissions referencing s 215 of the Act. That provision is contained in Division 5 of Part 5 of the Act which governs non-economic loss claims for permanent impairment for gradual process injuries. There was no such claim before the Court in this proceeding.

On causation, Mr Rennie’s Counsel submitted that onset of injury was at a later stage than the complaint of 21 September 2020. That was because, as of 18 December 2020, Mr Rennie was seeking reinstatement of employment and was not incapacitated for work. Also, Mr Rennie’s incapacity for work had not commenced until 6 January 2021 (the date of the first certificate of capacity).

However, those submissions do not assist in relation to causation and injury. As I have observed previously, such as in my decision of Nyaoch v Berry Street Victoria Incorporated, it is well-established law that injury is not the same as incapacity.[7]
[7][2021] VMC 15 [112] citing, for example, Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266 [18].

Finally, whilst not related to causation, I disregard entirely submissions by Counsel for Mr Rennie regarding the operation of s 40(5) of the Act. That provision relates to ‘serious and wilful misconduct’. At no stage was such a defence relied upon by the Department either by way of pleadings nor at hearing.

In summary, therefore, on causation, Mr Rennie must establish injury, to the requisite standard of proof, against the threshold test applicable to each, or either, of his respective claims.

I have already stated the threshold test for causation in respect of the first claim.

It followed that the further question was whether subsequent events and circumstances relied upon in the second claim were a ‘significant contributing factor’ to the recurrence, aggravation acceleration, exacerbation or deterioration of any existing psychological injury (caused by the first claim).

Having considered submissions and made findings as to the applicable causal tests, I now turn to the evidence and my factual findings.

Whether psychological injury arose out of or in the course of his employment

I now turn to the evidence on the issue of causation.

In the initial 21 September 2020 attendance on Dr Hays, the history recorded was of having been suspended from work since February 2020. The expanded history was that the investigation had apparently been completed a month ago, however Mr Rennie ‘still knew little’ of the details.

Dr Hays attributed the psychological injury to events during employment including being ostracized and excluded ‘leading to suspension and termination’.

Mr Montgomery opined that the condition arose directly as a result of the circumstances of his suspension.

Dr Turnbull’s opinion was that a ‘series of events’ had caused the psychological condition. That began with a ‘tip-off’ that management did not want him around and then him being suspended. Mr Rennie described ‘sliding into depression in 2020 as things went on and on’. That is consistent with the evidence that Mr Rennie sought no treatment when he was first suspended nor at any stage until 21 September 2020.

Prof Sahoo opined that work-related factors were the investigation and allegations and perceived lack of support through this period.

The histories given to the doctors are consistent with Mr Rennie’s evidence to the Court. For example, his evidence of ‘beginning to go downhill’ by September 2020 and thinking ‘something was going wrong’.

The initial 21 September 2020 attendance occurred about six weeks after Mr Gascoyne’s progress update on 11 August 2020 to Mr Rendell that the investigations had ‘progressed to the end stages’. Mr Gascoyne wrote of anticipating an outcome ‘in the coming weeks’.

At this point, I make some observations regarding Mr Rennie’s credit. Overall, I did not consider the plaintiff’s credit came under serious attack in the course of lengthy cross-examination. For example, Mr Rennie made appropriate concessions under cross-examination. Examples were: when asked about whether he thought the investigation would be an ‘open and shut’ case, he acknowledged such investigations were never ‘open and shut’ and all cases required a thorough investigation; he confirmed his awareness of at least one misconduct investigation taking six months; and agreed that being asked to have a support person at the Bulger meeting was an indication of its seriousness.

However, on some matters I considered Mr Rennie’s answers lacked directness or were somewhat evasive. An example was not recalling requesting extensions of time to respond to the April 2020 notice. Another example was his inconsistent evidence in relation to contact from Ms Darbyshire during the investigation period. Mr Rennie denied under cross-examination having missed calls from Ms Darbyshire (which were documented by her in a contemporaneous memo) although at another point he said there was a call which had did not return. He also somewhat implausibly explained this saying he did not think he was permitted to speak with her although she was the general manager of the prison apparently because she was not the nominated contact person.

Returning to the evidence in relation to causation, for completeness, I note that whilst Dr Hays referred to employment matters ‘including being ostracized and excluded’, that is not how Mr Rennie put his case in his pleadings[8] nor at hearing. Whilst both Mr Rennie and Mr Block referred him to ‘being targeted’ by management, that was not relied upon as being causative of injury.
[8]See for example paragraph 7 of his Statement of Claim dated 30 June 2021.

Rather, as I understand his Counsel’s submissions, those matters really went to the contention that the Department’s management action was motivated on other than on reasonable grounds.

For completeness, I do not accept that the pay issue had real bearing on Mr Rennie’s psychological condition. This was not an aspect that featured in any of the histories to doctors, nor was it relied upon in the pleadings nor in either claim form. I agree with Counsel for the Department that the pay issue was a matter raised at hearing to ‘bolster’ the claim.

Weighing the whole of the evidence, I am satisfied that that Mr Rennie’s psychological injury arose out of the matters and circumstances relied upon under the first claim.

Whether a recurrence, aggravation, acceleration exacerbation or deterioration was caused by reason of the termination of employment

The primary submission on causation by Counsel for the Department was that Mr Rennie did not suffer any injury resulting from matters relied upon in the second claim (essentially the termination of employment).

In my view, that submission is correct and is supported by Mr Rennie’s own evidence as well as the medical evidence.

Mr Rennie specifically denied in cross-examination being distressed by the termination of employment, rather he said was depressed ‘by the whole process’. Moreover, Mr Rennie also gave evidence that his condition did not worsen after his termination and indeed said there may have been moderate improvement.

That evidence accorded largely with the histories given to the doctors as I have set out previously. Dr Turnbull alone made reference to Mr Rennie’s mental health being worse after the termination. However, as I have indicated, that was inconsistent with the majority of the medical opinions and Mr Rennie’s own evidence.

Weighing the whole of the evidence, including Mr Rennie’s evidence, I find that the burden of proof has not been discharged by the plaintiff in relation to events post the first claim - the termination of employment – having been causative of an aggravation or worsening of his psychological injury.

Having made those findings in relation to causation, I now turn to assess the evidence in relation to the causal test of ‘wholly and predominantly’ and the Department’s management action defence.

Management Action

The conduct of the Department relied upon by Mr Rennie as being causative of injury undoubtedly constituted ‘management action’ within the following sub-paragraphs of s 40(7) of the Act as follows:

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

(d) disciplinary action taken in respect of the workers employment;

(g) dismissal of the worker;

(m) investigation by the worker’s employer of any alleged misconduct –

(i) of the worker;

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

Whether Wholly or Predominantly Caused by Management Action

In my view, the unchallenged evidence was that Mr Rennie’s psychological injury was wholly or predominantly caused by the Department’s management action.

Mr Rennie’s Counsel made no submissions on the causation element of the s 40(1) non-entitlement provision.

In applying the test in Pulling referred to earlier in these reasons, the Department’s management action (the misconduct investigation and suspension) did exceed ‘all other combined causes in power and influence’.[9]
[9]Pulling [2018] VSC 248 [79]-[80].

This was not a case of multi-factorial causes of psychological injury (other than to the extent I have already referred to as between the two claims) nor of non-work-related causes.

Whether Management Action Taken on Reasonable Grounds

Mr Rennie’s alleged misconduct related to’ failing to demonstrate respect for female colleagues’ and referred to ‘invading their personal space and/or watching and staring at them causing them to feel uncomfortable’. That was according to the suspension notice which also referred to an alleged failure to follow Mr Bulger’s direction of November 2019.

Ultimately, the April 2020 notice of investigation particularised six circumstances of alleged misconduct. I summarise these as follows:

a. Allegation 1 concerned conduct towards female colleague ‘A’ over a six month period in 2019 involving physical contact and staring.

b. Allegation 2 concerned conduct on 21 August 2019 also towards female colleague ‘A’, involving unwanted intrusion into her personal space and brushing against her.

c. Allegation 3 related to conduct on 29 January 2020 involving invading personal space and standing close to female colleague ‘B’; and calling female colleagues ‘B’ and ‘C’ ‘girls’ and ‘ladies’, then saying ‘or whatever is politically correct these days’.

d. Allegation 4 related to conduct on 12 February 2020 towards female work colleagues ‘B’ and ‘C’ with particulars regarding unwanted physical contact, staring and offering chocolate.

e. Allegations 5 and 6 alleged that Mr Rennie had, by his conduct in the workplace, contravened the February 2018 direction and Mr Bulger’s direction in the November 2019 meeting.

Mr Rennie gave evidence regarding his considerable familiarity with the processes of a misconduct investigation. I consider significant his evidence that he had ‘no issue’ with the management action taken by the Department of his suspension nor of authorising an investigation. In evidence, he accepted there was a need for thoroughness and also that no case of this kind was ‘open and shut’.

It seems to me that Mr Rennie accepted the management action as being in line with his own past observations as an experienced union delegate. That was consistent with him not seeking medical treatment when first suspended nor when the investigation was authorised.

The term ‘misconduct’ is defined exhaustively in the Department’s ‘FAQ’, in the VPSEA 2016 and in the 2015 Code of Conduct for Victorian Public Service Employees. According to the FAQ, the term was ‘…a broad term that covers a range of unacceptable actions and behaviours in the workplace. Generally, it involves, among other things, an employee failing to comply with legislation, a binding code of conduct, departmental policies and procedures, a lawful direction or other requirements which apply their employment’.

The suspension notice stated plainly that only after an assessment of the alleged misconduct would a decision be made regarding authorisation of a formal misconduct investigation. That was in accordance with the VPSEA 2016 and the Department’s Misconduct Policy.

The April 2020 notice of investigation relied upon sections of the Code of Conduct as well as the ‘Respect in the workplace guideline and related policy’. The ‘Statement of Policy’ encapsulates expectations of employee as follows:

Employees must show respect for employees, public officials and members of the public by treating them fairly and objectively and ensuring freedom from discrimination, sexual harassment, racial or religious vilification, victimisation, occupational violence and bullying.

It is useful at this stage be quite clear about what was, and what was not, within the scope of my task as the tribunal of fact in assessing the Department’s management action and its reasonableness.
The major focus of submissions for Mr Rennie concerned the misconduct allegations themselves. It was contended the allegations were baseless, trivial or insufficient grounds for the management actions of suspension and investigation including the ultimate findings. Counsel submitted that the Department’s actions against Mr Rennie were ‘not rational’, were ‘absurd and ridiculous’ and ‘certainly not moderate and/or fair’.
On the other hand, by way of Reply, Counsel for the Department submitted that it was ‘not for the Court to re-investigate the allegations made against Mr Rennie.’ It was submitted that evidence of the allegations themselves was ‘sufficient’.
I agree with Counsel for the Department that in assessing the reasonableness of the grounds of the management action, my task did not extend to deciding the truth or otherwise of the allegations themselves. My task was not to assess the reliability or otherwise of the co-workers’ complaints. My task was also not to weigh up the ‘primary evidence’ and assess the Department’s action with the benefit of hindsight.
For that reason, contrary to the contention of Counsel for Mr Rennie, I do not attribute weight in the sense of drawing any inference from the fact that ‘none of the people who were alleged to have made any of the original allegations’ were called to give evidence. I also agree with the submission of Counsel for the Department that it would have been wholly inappropriate given the matters in issue in the case for complainants to be subject to cross-examination.
An objective assessment of the Department’s management action and to consider its reasonableness or otherwise in a global context. That did not extend, in my view, to assessing and making findings about the truthfulness of those who complained.
It was also submitted by Counsel for Mr Rennie that ‘the decision maker in this matter was never called to provide evidence in the proceeding’. That was presumed by Mr Rennie’s Counsel to be Mr Reaper, although that was ‘not exactly clear’. Mr Reaper, as Assistant Commissioner of Corrections Victoria, authored the April 2020 notice of investigation.
I also reject the submission for Mr Rennie that a Jones v Dunkel[10] type inference ought to be drawn from the Department not calling the ultimate decision maker, whether Mr Reaper or someone else. It seems to me that there was no proper basis for drawing such an inference. Whilst true there was no explicit explanation of that absence, voluminous documentation was tendered into evidence and the Department’s head of workplace relations, Ms Huffer, gave detailed evidence. Her evidence traversed the investigation process, the procedures undertaken and the time-frames and aspects of delegations within the Department. Additionally, the investigator Mr Gascoyne gave detailed evidence.
[10](1959) 101 CLR 298.
At this point, I observe that I formed a favourable impression of Ms Huffer who gave evidence directly and dispassionately. She was a credible and an experienced bureaucrat within the Department, having been in equivalent roles for about 20 years. She had oversight of staff issues, including of Departmental employees working in prisons. I will otherwise return to Ms Huffer’s evidence later in these reasons.
Returning to the grounds for the investigation and related management action, I now turn to Mr Gascoyne’s evidence.
Mr Gascoyne described a two-step process regarding the evaluation of alleged misconduct. The first was to assess initially the evidence of complaints of misconduct and the second was to authorise an investigation into the misconduct.

As for the basis of the specific allegations of misconduct, according to Mr Gascoyne’s investigation report, they arose from complaints or reports by co-workers regarding interactions with Mr Rennie in the workplace. The investigation report set out that were contained in a memorandum of 25 September 2019, an email of 17 February 2022 and conversations recorded by Mr Gascoyne’s manager, Ms Hilliard, on 2 March 2020 and 3 March 2020.

I found Mr Gascoyne to be an impressive and credible witness. It seemed to me that his evidence generally had a degree of objectivity given his recent arrival in the Department. He had come into the Department in late 2019 with considerable relevant experience including with an interstate government department.

Under protracted and rigorous cross-examination, Mr Gascoyne answered questions directly and in a considered way. He made various and appropriate concessions against interest. Examples were: agreement that Allegation 1 was unsubstantiated ultimately due to complainant ‘A’ being unwilling to take the matter further nor speak with him or Ms Hilliard. He also conceded that, although Allegation 4 was found to be substantiated, it was apparent from his report that some particulars were not considered to amount to misconduct.

It also emerged at hearing, under cross-examination of Mr Gascoyne, that it had been first concluded that none of the allegations were substantiated. That was in his originally proposed version of the notice of findings and proposed outcome.

Both Mr Gascoyne and Ms Huffer gave evidence about the decision to obtain expert legal advice from outside the Department. Both said that had occurred after senior managers or delegates of the Secretary reviewed the conclusions in the initially proposed draft notice.

The obtaining of, and reliance upon, legal advice was one of a multiplicity of matters relied upon by Counsel for Mr Rennie in submissions. I will return to the legal advice issue later in these reasons.

It was submitted for Mr Rennie that Allegations 1, 2 and part of 3 ought never have been investigated at all. That was because: a complainant would not agree to participate further in the process; because evidence was produced that Mr Rennie was not present at the prison at the time of one date; and, because an allegation regarding standing close to a female colleague and maintaining eye contact was ‘trivial’.

I reject that submission for a number of reasons.

As I have already observed, Mr Gascoyne did make concessions regarding the allegations. However, his evidence was compelling on the Department’s obligations in matters of this kind. As Mr Gascoyne noted, it is not an uncommon experience for complainants to make reports of sexual harassment type matters, then be reluctant to participate in an ongoing process.

In my view, that of itself does not obviate an employer’s responsibility to assess, investigate and act on such complaints. I accept Mr Gascoyne’s evidence, which was borne out by the Department’s Code of Conduct and Respect in the Workplace policy, that the Department did have a clear duty of care to investigate the sorts of complaints made by Mr Rennie’s colleagues in this matter.

Moreover, just because some allegations or parts aspects of allegations were ultimately not substantiated does not lead to a finding, retrospectively, that the management action was not taken on reasonable grounds. That is wholly at odds with the principles set out in Krygsman which require a consideration of the action at the time it was taken.

As for the contention regarding allegations being trivial, the consideration is whether there were objectively reasonable grounds for the Department to take the action it did having regard to all of the circumstances leading up to it in a global context.

Part of the global context was that prior warnings or directions had been given to Mr Rennie about his interactions and conduct towards colleagues in the workplace.

First, Mr Rennie was issued with a formal direction in February 2018 regarding treating colleagues with respect based on three complaints at the time. Second, in November 2019 Mr Rennie was given what he described as a ‘friendly warning’ by Mr Bulger to be ‘mindful’ of his interactions with others.

Regarding those matters, Counsel submitted that Allegations 5 and 6 (which concerned alleged contravening of directions) were baseless. That was because neither the February 2018 direction nor the November 2019 direction were ‘lawful directions’.

I do not accept that submission.

It is true that Mr Rennie’s unchallenged evidence was that none of the complaints referenced in the February 2018 direction were investigated nor taken further. However, it seems to me that is to misconstrue the very point of the direction which was to give Mr Rennie an instruction about his future behaviour. He was specifically advised no formal disciplinary action would be taken. Also, the February 2018 notice stated in explicit terms, that there ‘may be a formal misconduct investigation under the Misconduct Policy in the event of further complaints/reports of conduct contrary to the Code’.

As for the November 2019 instruction by Mr Bulger, whilst less formal, it was nevertheless accepted by Mr Rennie as being a warning from his superior about his conduct. Mr Rennie acknowledged in evidence that it was serious enough to warrant having a support person present.

Accordingly, I am not persuaded that either direction was other than a lawful direction or instruction by management. As I have already stated, misconduct was broadly defined and not contingent upon the nature or kind of direction given in the first place.

As for Allegation 4, Counsel for Mr Rennie submitted that these complaints were also baseless or trivial as they been completely refuted by him as being untrue or unintended and inadvertent.

I have already observed that it was not my task to decide where the truth lay in terms of the complaints themselves, only to make findings as to the objective reasonableness of the grounds for the management action taken.

In a general sense, in contending the management action was other than reasonable, Counsel for Mr Rennie pointed to him having denied all allegations throughout and having and refuted them vigorously in the course of detailed examination in chief. That accorded with his response of 1 May 2020 and in his answers of 1 July 2020 to the interview questions. For example, in his 1 May response, he wrote that he did not place his hand on top of the hand of complainant ‘A’, saying he knew this ‘because I do not place my hand on a colleague’s hand’. Another example, in the same response, was that he did not stand very close to complainant B whilst making eye contact.

It is true that, at the hearing, that on the date of one of the allegations (in August 2019) Mr Rennie produced unchallenged evidence of not being at the prison because he had concert tickets in Melbourne. However, importantly, he did not refute the allegation on that basis at the time in May or July of 2020 or present that to the Department at the time of the management action.

I am certainly satisfied, based on Mr Gascoyne’s evidence, that Mr Rennie’s responses and answers were considered carefully and compared with the other primary evidence and also weighed up as part of the investigation overall. Indeed, as Counsel for Mr Rennie submitted, the allegations were initially found unsubstantiated by Mr Gascoyne in the first iteration of his findings.

The Department, having considered all of these matters, proceeded to ultimately make findings in accordance with the show cause notice of 1 December 2020. In my view, weighing the whole of the evidence including Mr Rennie’s evidence and responses, I conclude that there were reasonable grounds for the management action of concluding the investigation process by issuing the show cause notice.

I find, in weighting the evidence, that the grounds for management action were reasonably held concerns regarding instances of conduct – some substantiated although some not – that the Department regarded as being ‘a pattern of inappropriate behaviour’ on a background of two prior directions (of February 2018 and November 2019).

I accept the submission of Counsel for the Department that Mr Rennie seemed somewhat dismissive in cross-examination of the nature or characterisation of the conduct not being ‘sexual’. Similarly, he told Professor Sahoo somewhat implausibly that it was not until June 2020 that he became aware the allegations were for harassment ‘of a sexual nature’. That was in spite of it being plainly stated in the suspension notice that the concern about Mr Rennie’s conduct related to ‘failing to demonstrate respect for female colleagues … by invading their personal space and/or watching and staring at them causing them to feel uncomfortable’.

I now turn to the legal advice issue, which the evidence was, had also informed the taking of the management action of issuing the show cause notice.

Counsel for Mr Rennie submitted that what happened next was that the Department ‘contorted original allegations (not findings) to support unsubstantiated allegations’. That had occurred because the Department ‘wanted an outcome that was not consistent’ with the original investigation conclusions. That was why the Department ‘gave an unknown briefing to an unknown law firm which provided them with a VCAT case on which to base at best a rather flimsy argument’.

The evidence of both Ms Huffer and Mr Gascoyne was that the legal advice related to the similar fact evidence. This step was considered by the Department to be an ‘essential’ one according to Ms Huffer’s email of 10 December 2020 to Mr Rendell.

Of course, I do not have to be satisfied that such a step was essential, only to be persuaded that it was reasonable in the sense of being ‘moderate or fair’ within the overall course of the management action.

I conclude that in obtaining legal advice (which could be rejected or accepted) before proceeding to its final conclusions, the Department was acting properly and appropriately. I take into account that the advice was obtained from a law firm external to the Department and therefore was ‘at arm’s length’.

It was contended that the Department’s ‘rather flimsy argument’ (as Counsel for Mr Rennie described it) relied upon in the show cause notice (and in the termination notice) was actually an incorrect application of the principles of coincidence evidence as detailed in Nursing and Midwifery Board of Australia v Singh.[11]
[11][2014] VCAT 1171.

That assertion was first made by Mr Rennie’s solicitors in response to the show cause notice (via the letter of 18 December 2020). Mr Rennie’s solicitors had asserted that there were insufficient allegations of similarity. Also, that there was a lack of independent corroboration as a key element in proving coincidence evidence.

In answer to Mr Rennie’s lawyers’ objection to the application of similar fact evidence and findings in the show cause notice, the Department had this to say (in the termination notice):

Although your allegations have fewer particulars than [in the case of] Singh that does not mean the principles from that case do not apply, for as with the matter of Singh, the allegations were generally one word versus another. Independent witness evidence or direct evidence such as CCTV was not required to prove the conduct.

Your conduct demonstrated your tendency to maintain a close distance to female colleagues, under the guise of your duties, causing them to touch or brush up against you in some way and feel uncomfortable. It is my view is that the principles of similar fact evidence have been applied appropriately.

Of course, as I have observed already at number of points in these reasons, the real issue was whether the grounds of the management action were, objectively reasonable and taken in manner that was fair and moderate. I agree with Counsel for the Department that the task for this Court was not ‘to supplant its own views’ as to what management action ought to have been taken.

In my opinion, as the passage referred to in paragraph [220] demonstrated, there was a clearly articulated concern on the part of the Department to balance its obligations to be fair to Mr Rennie and also to its other employees in ensuring a safe workplace.

I am not persuaded that the approach taken by the Department was anything other than reasonable with respect to obtaining of external legal advice in a complex matter with a protracted history nor in then apparently acting on that advice in making findings and assessing the evidence.

It seems to me that Counsel for Mr Rennie in submissions was essentially contending that the Department had an unshakeable intent, almost a vendetta, against him. That was a matter that was vehemently refuted by Counsel for the Department as being spurious and without evidentiary basis.

Weighing the whole of the evidence before, and on the balance of probabilities, I am not persuaded that the Department had some ulterior motivation with respect to the management action taken against Mr Rennie.

Mr Rennie’s Counsel, in opening the case, referred to his role at the prison in logging of OHS issues as a basis for him being ‘targeted’ by prison management. Both Mr Rennie and Mr Block said in evidence that Mr Bulger told them in the November 2019 meeting that they needed to be careful because they ‘could be targeted’ by management because of the HSR function.

Yet, in assessing the rather brief evidence of Mr Block, it seems to me that his evidence lacked objectivity. Mr Block, a fellow union delegate, described knowing Mr Rennie well through their many dealings to do with union matters.

Moreover, even assuming Mr Bulger did make reference to HSR’s being in the sights of prison management, that of itself does not lead to the conclusion that management concerns about staff complaints regarding interactions with Mr Rennie were baseless.

Other than the references to being ‘ostracised’ as mentioned by Dr Hays referred to previously, there is little specific history given to any of the doctors regarding the ‘target’ contention other than the ‘tip off’ by Mr Bulger mentioned to Dr Turnbull.

I also attribute little or no weight to the hearsay evidence of Ms Wood that there was a ‘campaign’ by management to get staff to complain about Mr Rennie’s conduct. As for the assertion that management was ‘out to get’ Mr Rennie, to my mind that was a matter of speculative theory only, without any real evidence.

As for the requirement in Krygmsan that management action be assessed in all the circumstances including having regard to the ‘emotional state of the worker’, Mr Rennie agreed in cross-examination that no one in the Department was aware of his psychological condition in, or from, September 2020. He made no report of injury or incapacity until he lodged the first claim in February 2018.

For these reasons, I conclude that the management actions relied upon in the first claim were taken on reasonable grounds.

As for the termination of Mr Rennie’s employment, it is not strictly necessary for me to consider the reasonableness of that management action. That is because of my conclusion that the termination of employment was not causative nor a significant contributing factor to the production or aggravation of injury.

If, however, I am wrong about that, weighing all the matters to which I have already referred, I conclude that the termination of Mr Rennie’s employment was management action taken on reasonable grounds.

Mr Rennie was terminated on the basis that at least some parts of the Allegations 2 to 4 were substantiated demonstrating ‘a pattern of conduct that caused [his] colleagues to feel uncomfortable’ as well as non-compliance with the directions (Allegations 5 and 6). That was on the basis of a finding of misconduct under the relevant clause of the VPSEA 2020 for which termination was a possible outcome. The Department made reference to its reliance on Mr Rennie’s evidence, other witness evidence and similar fact evidence.

I do not propose to repeat my previous reasoning other than to again observe that my task was to assess objectively the reasonableness of the management action taken in a global context in all the circumstances. It is my conclusion that Department’s management action was taken on reasonable grounds given the need to balance its obligations, on the one hand, to Mr Rennie to act with procedural fairness and in compliance with the VPSEA and, on the other, to its other employees in ensuring a safe workplace.

Finally, Counsel for Mr Rennie urged in argument (although not in written submissions) that I ought to find the dismissal from employment was unreasonable because there had been a negotiated settlement of the Fair Work action.

I am unable to accept that argument. That would require me to speculate improperly as to negotiations on matters and issues pertaining to a whole other cause of action under a completely separate legislative regime.

Whether Management Action Taken in a Reasonable Manner

Having found that the management action was taken on reasonable grounds, I now to turn to consider whether the management action was taken in a reasonable manner.

On the evidence in Mr Rennie’s case, it seems to me that there were two main issues in relation to how the management action was taken: the time taken and the communication regarding it.

Although communication regarding management action is in and of itself a defined ‘management action’ under s 40(7)(n) of the Act, it is convenient to consider it here.

I conclude that the communication was appropriate and fair in both what was communicated and the frequency and method of communication. I did not really understand this aspect of the management action to be seriously challenged as unreasonable by Mr Rennie’s Counsel.

All of the formal communication from the April 2020 suspension onwards included detailed advice and information regarding: the process being undertaken; the clauses of the VPSEA; codes and policies relied upon; the availability of nominated Departmental employees for support and information; and the availability of counselling via the Employee Wellness Service.

Mr Rennie was sent frequent correspondence from the Department advising: that his suspension from duty was continuing; that the investigation was still progressing and investigations may yet take ‘a number of months’ to complete. The letters were sent approximately every four weeks between June 2020 and March 2021. Mr Rennie was reminded in each letter of the availability of counselling and that nothing prevented him from discussing the matter with a support person or family or to obtain advice.

In addition, there was evidence about missed calls and attempts to reach Mr Rennie by Ms Darbyshire although Mr Rennie denied any recollection of this.

A more significant matter for my consideration as regards reasonableness of the manner of the management action concerned time-frames and the question of delay.

The entire process between suspension from duty and termination of employment took some 13 months. Yet, within that overall time-frame, there were distinct phases and processes about which there was considerable evidence.

Importantly, in my view, based on his own experience as a union delegate and support person, Mr Rennie’s own evidence was that he was not troubled by the lapse of time until well into the seventh month of his suspension. That accorded with his expectation that such an investigation would be through and not ‘open and shut’; and could take six months.

Counsel for the Department submitted that the time taken needed to be considered against the various steps and procedures being undertaken.

That requirement was made clear in State of Victoria v Stichling (Stichling)[12] which was an appeal from a decision of this Court. There, the Court decided the Magistrate had been in error to conclude that the delay was ‘excessive and unreasonable’. That was because Rush J found there was evidence of various procedures and steps which should have been considered by the Magistrate.
[12][2014] VSC 62.

In my view, applying the guidance of Stichling, a protracted, but not excessive or unreasonable, period of time passed between Mr Rennie’s suspension and the issuing of the December 2020 show cause notice and then the termination notice.

That is because I consider that the evidence of Mr Gascoyne and Ms Huffer was compelling regarding: the procedural steps and processes taken; the impact of the COVID-19 restrictions; the obtaining of legal advice; and the weightiness and complexity of issuing of a show cause notice and then acting upon it.

Between Mr Rennie’s suspension from duty and the April 2020 notice of investigation, about six weeks elapsed whilst the complaints were assessed as to whether an investigation would be authorised. During that period, the evidence was Mr Rennie was telephoned by Ms Darbyshire in mid-March who advised him in a frank conversation that she was not happy with the notice and that it would be subject to further revision.

In the period of investigation up until Mr Gascoyne informed Mr Rendell that the process was at the ‘end stages’, I accept the unchallenged evidence regarding what occurred and the circumstances around arranging an interview with Mr Rennie. Both Ms Huffer and Mr Gascoyne gave evidence I found persuasive regarding the ‘out of the ordinary delay’ caused by COVID-19 restrictions. Mr Gascoyne described how staff were transitioning to working remotely for the first time during that period from March and then May of 2020.

I accept their evidence regarding the difficulties in these circumstances in the early stages of the COVID-19 pandemic caused by limits on travel and lack of equipment such as laptops with cameras and so on. As the interview proceeded by way of exchange of written questions and answers, it was inevitable more time was needed for the return of answers.

At the time of Mr Gascoyne’s 11 August 2020 update that the investigation was ‘progressing to the end stages’, he also referred to the matter being escalated for consideration. That was followed by further updates in September 2020 in which Mr Gascoyne referred to the need for various levels of authorisation and approvals required for sign off.

Ms Huffer had addressed the question of whether there had been unreasonable delay in the email exchange with Mr Rendell. That was because of the expiry of six months after which a dispute could be raised under a clause in the VPSEA 2020 which had come into operation in October 2020.

I have made a finding, and set out my reasons, as to the appropriateness and reasonableness of the Department obtaining legal advice which I will not repeat here. That appears to have taken place between August and October 2020.

Ms Huffer was then cross-examined rigorously and particularly regarding the seven-week period between October 2020 (when Mr Gascoyne said the report was finalised) and the issuing of the December 2020 show cause notice. I accept her evidence which I found credible regarding the complexity of decision-making in a large government Department (whose personnel were mostly working remotely during the pandemic) as well as the need for input, review and authorisation at various levels of delegates of the Department Secretary and also of the Deputy Commissioner of Corrections Victoria.

The December show cause notice issued on 1 December 2020 was apparently delivered by mail to, Mr Rennie at a regional address. The five-day time-frame for a response was extended. On 18 December 2020, Mr Rennie’s lawyers provided a very detailed response. At the time of the first claim, as I have found, the final outcome remained pending.

It is true there was limited evidence regarding the lapse of time between 18 December 2020 and the termination notice of 22 March 2021, yet I am not persuaded that was unreasonable in all the circumstances. That is, when I consider the overall lengthy history of the matter and the weightiness of the step of termination of employment.

In any event, if I am wrong about that, I have found, based on his own and the medical evidence, that Mr Rennie’s employment beyond the lodgement of the first claim was not a significant contributing factor to any aggravation or deterioration of his condition.

Whether any incapacity for work results from or is or was materially contributed to by the injury

Whilst it is not strictly necessary for me to make a finding in relation to incapacity given my previous findings, I find on the medical evidence, particularly the opinion of Dr Hays, that Mr Rennie had an incapacity for pre-injury employment resulting from his non-compensable psychological condition which remains current, such incapacity commenced on 6 February 2020.

Conclusion

For the reasons provided, I find:
a.Mr Rennie suffered psychological injury in the nature of an adjustment disorder with depressed mood.
b.Mr Rennie’s psychological injury arose out of or in the course of his employment with the Department and the events and circumstances relied upon in the first claim with a nominated date of injury of 21 September 2019.
c.Mr Rennie’s mental injury was caused wholly or predominantly by the Department’s management action as relied upon in the first claim.
d.The management action was taken on reasonable grounds; and in a reasonable manner.
e.Mr Rennie had an incapacity for pre-injury employment resulting from his non-compensable psychological injury which remains current, such incapacity commenced on 6 February 2020.
f.Accordingly, I would dismiss the proceeding and I will hear from the parties in relation to costs.

MAGISTRATE HOARE

9 SEPTEMBER 2022

[2022] VMC 26

9 September 2022