Rogers v Police Association Credit Co-Operative Limited

[2011] VCC 972

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

WORKCOVER DIVISION

Case No. CI-06-04631

MAXWELL LAWRENCE ROGERS	Plaintiff
v
POLICE ASSOCIATION CREDIT CO-OPERATIVE LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 4, 5, 6, 9, 10, 11, 12 and 13 August 2010 and 3 September 2010
DATE OF JUDGMENT:	1 July 2011
CASE MAY BE CITED AS:	Rogers v Police Association Credit Co-Operative Limited
MEDIUM NEUTRAL CITATION:	[2011] VCC 972

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.82, s.98C/98E, s.82(2A), s.82(4), s.93, s.93B, s.93C, s.91E, s.5(1) and s.39(1AA).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Ryan	Clark Toop & Taylor
For the Defendant	Mr D Podger	Thomson Playford Cutlers
HIS HONOUR:

Introduction

1          Maxwell Laurence Rogers (“the plaintiff”) claims compensation from the Police Association Credit Co-Operative Limited (“the defendant”) pursuant to the provisions of the Accident Compensation Act 1985, as amended (“the Act”), for stress-related “injuries”. The defendant denies it has any liability to pay compensation to the plaintiff.

The Proceeding

2          By way of Amended Statement of Claim, the plaintiff alleges, amongst other things, that:

(a)	He was employed by the defendant as a manager in credit control;
(b)	That arising out of or during the course of such employment, he suffered injuries consisting of “Major Depressive Disorder” and “Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood” (“Reactive Depression and Anxiety”);[1]
(c)	That he ceased work on 10 April 2006 and lodged a Claim for Compensation pursuant to the provisions of the Act on or about 18 October 2007;
(d)	That such Claim for Compensation was rejected on or about 21 November 2007;
(e)	That on or about 25 November 2009, he lodged a further Claim for Compensation pursuant to s.98C and/or s.98E of the Act seeking lump sum compensation for non-economic loss for “Adjustment Disorder with Anxiety and Depressed Mood, Reactive Depression, Anxiety and Stress sustained throughout the course of his employment to 10 April 2006”;[2]
(f)	That the claim under s.98C – 98E of the Act was rejected on or about 8 December 2009 on the basis that the claimed injuries did not arise out of or in the course of his employment and further, the claimed injuries were caused by stress of a type which did not create an entitlement to compensation;
(g)	Both rejected claims were conciliated pursuant to the provisions of the Act.

[1]             See paragraph 25 of the Amended Statement of Claim

[2]             See paragraph 35 of the Amended Statement of Claim

3          In such circumstances, the plaintiff seeks:

(a)	Weekly payments of compensation pursuant to s.93 of the Act at the appropriate rate or rates for “no current work capacity”,[3] from 10 April 2006 to date and continuing;
(b)	A declaration that he is entitled to reasonable medical and like expenses incurred by reason of his “injuries” pursuant to s.99 of the Act;
(c)	A declaration that he suffered “Adjustment Disorder with Anxiety and Depressed Mood, Reactive Depression, Anxiety and Stress” arising out of or in the course of his employment for the purposes of s.98C/98E of the Act;
(d)	Interest pursuant to s.114E of the Act, penalty interest pursuant to s.128 of the Act and costs.

[3]             See s.5(1) of the Act for the definition of such term

4          By way of its Further Amended Defence, the defendant, other than admitting that it employed the plaintiff from 1 August 1981 initially as an assistant lending manager, credit control, and later, from about 1986, as manager, credit control, denies:

(a)	that the plaintiff suffered “injury” within the meaning of the Act; and
(b)	that the plaintiff has “no current work capacity” within the meaning of the Act.

5          In particular, the defendant also asserts:

(a)

If the plaintiff has suffered an injury (which is denied), then s.82(2A)(a) of the Act is applicable in that any such injury is an injury “consisting of an illness or disorder of the mind caused by stress which arose wholly or predominantly from reasonable action taken in a reasonable manner by the defendant to discipline and dismiss the plaintiff or the expectation of the taking of such action”;[4]

(b)

The injuries suffered by the plaintiff are “attributable to his serious wilful misconduct” within the meaning of s.82(4) of the Act.[5]

In such circumstances, the defendant asserts that through the operation of s.82(2A) and/or s.82(4) of the Act, the plaintiff has no entitlement to compensation.

[4] See s.82(2A) of the Act – reprint number 15

[5] See s.82(4) of the Act – reprint number 15

6          For completeness, I should add that initially the defendant also relied on defences pursuant to s.102 and s.103 of the Act as pleaded in the Amended Further Defence. During the course of the proceeding, I was informed by counsel for the defendant that such defences were no longer relied on and abandoned.[6]

[6]             See Transcript (“T”) 179, L4-6

7          In its Defence, the defendant also asserted that if the plaintiff had “no current work capacity” (which is denied), then such incapacity is “not likely to continue indefinitely”. Such defence is relevant to the operation of s.93C of the Act.

8          The proceeding was heard over a number of days and both the plaintiff and the defendant called various witnesses who gave evidence and were cross- examined. Each party also tendered a variety of documents.[7]

[7]             See Annexure A

Relevant Legal Principles

9 Section 82(1) of the Act provides:

“ If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”

Section 5(1) of the Act defines “injury” to mean:

“…any physical or mental injury and, without limiting the generality of that

definition, includes—

(a)	…
(b)	a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);
(c)	a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”

Section 82(2C) of the Act provides:

“There is no entitlement to compensation in respect of the following injuries unless the worker's employment was a significant contributing factor to the injury—

(a) …

[8] Section 82(2C) only applies to injuries that occur on or after the commencement of s.3 of the Accident Compensation and Transport Accident (Amendment) Act 2003 – that is 3 December 2003

(b)	a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);
(c)	a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”[8]

Section 5(1B) of the Act sets out various factors which “must be taken into account” in determining whether a worker’s employment was a significant contributing factor to an injury.

10        Section 93 of the Act provides that:

“If a worker's incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.”

Sections 93 to 97 of the Act determine the extent and duration of weekly payments of compensation.

11 Section 31 of the Accident Compensation Amendment Act 2010[9] substituted new sections s.93A to s.93CA of the Act, which came into operation on 5 April 2010. Given the operation of s.4A of the Act, such provisions are applicable.

Section 93A(2) of the Act entitles a worker to weekly payments of compensation during the so-called “first entitlement period” at a certain rate if he or she has “no current work capacity”, or, if he or she does have a “current work capacity”, a rate calculated in part on his “current weekly earnings”.

Section 93B(2) of the Act entitles a worker to weekly payments of compensation during the so-called “second entitlement period”, again, based on whether or not the worker has “no current work capacity” or has a “current work capacity”.

[9]             Act number 9 of 2010

12        Section 93C(1)(a) provides:

(1)	Subject to section 93CD, a worker's entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker—
(a) is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity; … .”

13        Section 91E of the Act defines “first entitlement period” to be an aggregate period not exceeding thirteen weeks (whether or not consecutive) and also defines “second entitlement period” to be an aggregate period of one hundred and seventeen weeks (whether or not consecutive) after the expiry of the first entitlement period.

14        Section 5(1) of the Act defines “current work capacity” to mean:

“… in relation to a worker, … a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.”

Section 5(1) of the Act defines “no current work capacity” to mean:

“… a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”

Section 5(1) of the Act also defines “suitable employment”. Such definition was amended by s.74(3) and (4) of Act number 9 of 2010, and such amendments came into operation as from 1 July 2010 (see (2)(8) of Act number 9 of 2010). The definition reads, relevantly:

“… in relation to a worker, means employment in work for which the

worker is currently suited—

(a)

having regard to—

(i)	the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)	the nature of the worker's pre-injury employment; and
(iii)	the worker's age, education, skills and work experience; and
(iv)	the worker's place of residence; and
(v)	any plan or document prepared as part of the return to work planning process; and
(vi)	any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b)

regardless of whether—

(i)	the work or the employment is available; and
(ii)	the work or the employment is of a type or nature that is generally available in the employment market.”

15        For completeness, I should refer to s.39 of the Act which provides, in general, for this Court to have exclusive jurisdiction to inquire into, hear and determine any question or matter under the Act arising out of any decision of the Authority, employer or a self-insurer. In this case, the jurisdiction is attracted by the plaintiff seeking review of the decision made by the Authority (on behalf of the defendant) to reject both Claims of Compensation. In the event that the plaintiff is successful, questions may arise as to whether the plaintiff has any entitlement to compensation after the expiry of the so-called “second entitlement period”.[10] I refer to s.39(1AA) of the Act which provides:

“If the County Court is exercising the jurisdiction conferred by subsection (1) in a proceeding relating to the entitlement of a worker to weekly payments, the County Court has the jurisdiction in the proceeding to inquire into, hear and determine any question or matter under this Act relating to any termination or alteration of any entitlement to weekly payments by virtue of this Act.”

[10]           See s.93C of the Act

16 As the evidence emerged in this proceeding, s.82(2A) of the Act assumed some importance. That subsection was initially inserted in the Act in 1992 and then was further substituted as a result of s.12 of the Accident Compensation Amendment Act 2010. The recently substituted subsection applies in respect of claims first given, served or lodged on or after the commencement date of the amending provision, which is 5 April 2010,[11] and accordingly, has no application.

[11] See s.12 (setting out details of the new substituted subsection 2A); Section 304 (which directs that the newly substituted 2A will only apply to claims after the commencement date) and s.2 (which provides that s.12 will come into operation on 5 April 2010) of the Accident Compensation Amendment Act 2010 (Act number 9 of 2010).

17 Section 82(2A) as it stood prior to recent amendment, states:

“Compensation is not payable in respect of an injury consisting of an illness or disorder of the mind caused by stress unless the stress did not arise wholly or predominantly from –

(a)	reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, redeploy, retrench or dismiss the worker; or
(b)	a decision of the employer, on reasonable grounds, not to award or to provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with the employment, to the worker; or
(c)	an expectation that taking such action or making of such a decision.”

18        This subsection, which has similar counterparts in other states, is worded in such a way that its construction is sometimes difficult to comprehend. A perusal of various authorities gives some indication as to how this subsection is to be construed and applied:

(a)  In State of Victoria v John Leck,[12] the Court of Appeal stated:

[12] [2010] VSCA 76

“… accepting that s 82(1) creates the bedrock entitlement to compensation, it is inescapable that s 82(2A) intendedly delimits that entitlement. We accept that the latter provision should not be read any more broadly than its language requires. … .”[13]

[13]           State of Victoria v Leck (op cit) at paragraph 27

(b) In both Leck and Department of Education and Anor v Unsworth,[14] the Court noted that the parties had assumed that the defendant carries the onus under subsection 2A.[15]

[14] [2010] VSCA 77

[15]           in Leck (op cit) at paragraph 8 and in Unsworth (op cit) at paragraph 57

In earlier cases both in Victoria and interstate, it has been held that the employer has the onus of satisfying the Court on the balance of probabilities that it had taken reasonable action in a reasonable manner and if the Court was so satisfied, the worker then has the onus of satisfying the Court on the balance of probabilities that the stress did not arise wholly or predominantly from such action.[16] For reasons which are made clear later in this judgment, nothing turns on whether the defendant has the complete onus, or indeed, there is a shifting onus.

[16]           See O’Brien v Sacred Heart Primary School – VCC (unreported) per Judge Strong, delivered on 24 November 2000; Finn v State of Victoria and MMI Worker’s Compensation (Victoria) Limited – VCC (unreported) per Judge G D Lewis, delivered on 6 October 2000; Gaweda v Stone Container Ltd [1998] AILR 669; WorkCover Corporation of South Australia v Summers (1995) 65 SASR; Beattie v State of Victoria – VCC (unreported) per Judge Strong, delivered on 2 August 1999

(c) The words “reasonable action taken in a reasonable manner” contained in s.82(2A)(a) of the Act have been considered in a number of cases. In Finn v State of Victoria,[17] Judge G D Lewis considered the word “reasonable” both in the context of “a reasonable action” and “a reasonable manner” should be given its ordinary meaning. In particular, Judge Lewis adopted the words of the Full Court of the Federal Court of Australia in Department of Foreign Affairs and Trade v Styles,[18] wherein Bowen CJ and Gummow J stated:

[17]           Finn (op cit)

[18] (1989) 88 ALR 621

“… the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. … .”[19]

[19]           op cit at page 634

Judge Lewis determined that such a test should be viewed objectively
having regard to all the circumstances surrounding the matter.

A similar approach has been taken by the courts in New South Wales and in particular, I refer to Commissioner of Police v Minahan,[20] a decision of the New South Wales Court of Appeal wherein Foster AJA, delivering the major judgment of the Court, stated, with apparent approval, that the judge at first instance referred to the following matters:

“He considered the import of the words ‘reasonable action’ in s11A and had regard to certain judgments given in the Compensation Court in relation to the section. He specifically adopted what was said by Geraghty J in Irwin v Director-General of School Education … namely:-

‘The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness’

He also referred to what was said by Truss J in Ivanisevic v
Laudet Pty Ltd …:

‘In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.’”

[20] [2003] NSWCA 239

(d) There is New South Wales authority that a course of conduct may still be reasonable action even if the particular steps are not reasonable. The whole disciplinary process might, notwithstanding blemishes, amount to reasonable action.[21] [21]           See Department of Education and Training v Sinclair [2005] NSWCA 465

19 Section 82(4) of the Act, together with s.82(4A) of the Act were substituted as a result of s.13 of the Accident Compensation Act 2010. That Act also altered s.82(5) of the Act. The recently substituted subsections, and indeed the new s.82(5) of the Act apply in respect of claims first given, served or lodged on or after the commencement date of the amending provision, which is 5 April 2010 and, accordingly, have no application.

20 Section 82(4)(4A) and (5) of the Act as they stood prior to the recent amendment state:

(4)

“If it is proved that an injury to a worker is attributable to the worker's serious and wilful misconduct (including being under the influence of intoxicating liquor, or a drug within the meaning of the Road Safety Act 1986) compensation shall not be payable in respect of that injury.

(4A)

In subsection (4), serious and wilful misconduct includes—

(a)	committing an offence under section 318(1) of the Crimes Act 1958; and
(b)	committing an offence, in respect of driving a motor vehicle, under section 49(1)(a), (c), (d) or (e) or section 56(7) of the Road Safety Act 1986; and
(c)	committing an offence, in respect of driving a motor vehicle, under section 49(1)(b), (f) or (g) of the Road Safety Act 1986, if the relevant level of concentration of alcohol in the

person's blood was 0⋅24 grams or more per 100 millilitres of blood or in the person's breath was 0⋅24 grams or more per

210 litres of exhaled air, as the case requires.

(5) Subsection (4) shall not apply if the injury results in death or
serious and permanent disablement.”

21        The question whether or not the conduct amounts to “serious and wilful misconduct” is a question of fact[22] and the burden is on the employer to prove that the injury was attributable to the serious wilful misconduct of the worker.[23] Furthermore, the employer must prove that the injury was attributable to such misconduct and that the misconduct was “a cause” of the injury (not necessarily the sole cause).[24] However, the conduct must be such a cause that the injury would not have happened without it and was a natural result of it.[25]

[22]           See Johnson v Marshall, Sons & Co Ltd [1906] AC 409

[23]           See Hall v J & A Brown & Abermain Seaham Collieries Ltd (1953) 88 CLR 509

[24]           See Millin v Fowler [1926] NZLR 372

[25]           See Leg Trap Hotel v Williams (1981) 48 SAIR 45

22        It has been held that the word “serious” applies to the misconduct itself and not to the actual consequences of it and that the word “wilful” directs that the misconduct was deliberate and not merely a thoughtless act on the spur of the moment.[26]

[26]           See Johnson v Marshall, Sons & Co Ltd (op.cit.) at page 411

23 Section 82(5) makes clear that subsection (4) will not apply if the injury results in death or “serious and permanent disablement”. The latter words do not fit nicely with concepts of “incapacity” within the meaning of the Act and suggest concepts of “impairment”. The onus of proving that there is serious and permanent disablement, which is a matter of fact, is on the worker.

The Evidence of the Plaintiff

24        The plaintiff is a fifty-seven year old (born 10 March 1954) divorced man who has two adult sons. He repeated his “Leaving” year twice and then only passed English in his matriculation year.

25        On leaving school he worked for G J Coles from about March 1973 to July 1975 and thereafter for Adco Financial Services from about August of 1975 to 1981. He then commenced with the defendant in August 1981, initially as assistant lending manager, credit control, and from about 1986 as the manager of credit control.

26        The plaintiff described his duties as credit manager in the following terms:

“I was responsible for all indebtedness, all the loans, all the overdrawn Visa cards. I had to report to the board of directors and any problem that come across there. I was also doing budgeting, and any problems in relation to police welfare loans, things like that, that was referred to me, especially if there was money involved with husbands and wives. They used to refer pretty serious cases down to me as credit manager to interview and help out.”[27]

[27]           T 33, L3-11

27        The plaintiff gave evidence that he had been subject to psychiatric and/or psychological treatment in 1981 because of marital difficulties and again in the early 1990s for marital difficulties and other family issues. For some years prior to June 2004, he had required no ongoing treatment and required little or no time off work as a result of health issues and received “glowing reports” in respect to appraisals undertaken by his superiors over the years leading up to 2004.[28]

[28]           See generally Exhibit 1

28        Prior to June 2004, the plaintiff described his work environment in the following terms:

“I loved the place. I joined and it was guaranteed – We Care was the motto of the police co-op when I joined. I loving (sic) helping people. I dealt with the massacres, the Hoddle Street massacre, Queen Street massacre, not a problem, helped the police and personnel. I had enormous respect for police because one of my best friends is a policeman and it was just like my second family, particularly after my marriage broke down in ’96. I threw myself into my work. You’ll find by the sick leave records, I had two days off I think when that happened and the last five years – you can check my records again with the sick leave, I had I think three, four, no days off sick leave. The only time I had a long time off was with my beautiful son had – I had compassionate carer’s leave because he was extremely ill and that was, yes, to look after him.”[29]

[29]           See T 39, L30 – T 40, L14

29        In or about June 2004, Mr Graham Ashworth (“Ashworth”) commenced employment with the defendant as the company secretary and in charge of corporate governance. At that time, Mr Fred Pieterse was the immediate superior of the plaintiff, whereas Ashworth reported directly to the Chief Executive Officer of the defendant, Mr Bob Newbound. In his role of being in charge of corporate governance, Ashworth was in charge of all administration and human relations and was “much higher” than the plaintiff.

30        The plaintiff described that after initially meeting Ashworth at a seminar in Healesville in June 2004, he initially considered him quite “a nice man” but came to be aware of the sort of person he was. In particular, the plaintiff described Ashworth in these terms:

“He managed by intimidation, he bullied and I believe I’ve got more

integrity in my little finger than he’s got in his whole body”.[30]

[30]           See T 43, L16-18

31        The plaintiff gave evidence that Ashworth had a secretary working for him called Rachael Mason who was in her early thirties.

32        The plaintiff gave evidence of various episodes during the course of his employment which he found stressful. It is convenient to set them out under various headings:

(a) The “conflict of interest” incident

33        The plaintiff gave evidence that he was attempting to supplement his income through a business called “ACN” which he described as a multi-level marketing company “like Herbal Life”. The plaintiff took annual leave in November 2004 to pursue his interest in this business. Prior to his annual holidays, he had been assisting a delinquent member who owed the defendant in the order of $40,000. In his role as credit manager, he arranged for favourable terms to be negotiated with the delinquent member to avoid him being exposed to bankruptcy. Apparently the wife of the delinquent member had been involved in Herbal Life and the plaintiff suggested to the member that he should come to an ACN meeting which may help alleviate the financial situation of the delinquent member and his wife. Apparently the member attended two meetings during the plaintiff’s vacation period.

34        Apparently, during the vacation, another member of the credit department of the defendant rang the delinquent member and using the name of the plaintiff, threatened him with bankruptcy. The delinquent debtor took offence and made it known that the plaintiff had suggested the involvement in ACN. The plaintiff considered that he was assisting the defendant by negotiating with the delinquent debtor for a certain sum per month (to avoid bankruptcy and no payment) and also assisting the delinquent member, suggesting a form of additional income.

35        After his return from holidays, and in approximately late 2004, the plaintiff was called into the office of Fred Pieterse on 31 December 2004 and queried about an allegation from the delinquent debtor that the plaintiff was trying to get him involved in a “Pyramid thing”. Matters came to a head on 20 January 2005 when he again was called to the office of Mr Fred Pieterse and according to the plaintiff the following occurred:

“I was called into Mr Fred Pieterse’ office on 20 January 05, one day after Mr Ashworth announced an inaugural conflict of interest policy on the 19th, two days after the board developed this policy on conflict of interest and I was accused and intimidated. The door was shut, slammed. I was pointed at, I was yelled at in front of Mr Pieterse by Mr Ashworth, threatening and intimidating me, that I had done this all for personal gain and that could not have been further from the truth. I challenged him to interview Mr Antonidou, the member himself, which he wouldn’t do. He was not interested. … .”[31]

[31]           T 48, L12-23

36        On or about 24 January 2005, the plaintiff received a written first and final warning following the “conflict of interest” episode.[32] That letter refers to “serious concerns over your recent behaviour in the workplace”. In particular, the letter states, in part:

“In considering the appropriate response of this organisation to these matters I have had regard to your previous conduct and length of service with Police Credit. Notwithstanding these considerations, your actions are well below what is expected of a senior staff member in charge of a sensitive area of the organisation.

Given your experience and that you have received more than adequate training and resources to keep abreast of the knowledge, skills and compliance requirements for your position, I am of the view that you appear to have generally, either deliberately or recklessly, indulged in a flagrant disregard for the standards that are an integral part of your employment position and which you must understand and adhere to.”[33]

[32]           See Exhibit A at page 8 of the Supplementary Court Book of the Defendant

[33]           See Exhibit A, page 9 of the Supplementary Court Book of the Defendant

37        The plaintiff contacted his union, the Financial Services Union (“FSU”) which responded on behalf of the plaintiff to the “first and final” written warning contained in the letter of the defendant dated 24 January 2005.[34] In that letter, the FSU, although accepting that the plaintiff may have breached a recent “conflict of interest policy”, asserted that the language and tone throughout the letter was in a “harsh, threatening and intimidating manner … [causing the plaintiff] … much unnecessary hurt and distress”.[35]

[34]           See Exhibit A at page 10 of the Supplementary Court Book of the Defendant.

[35]           See Exhibit A at page 12 of the Supplementary Court Book of the Defendant

38        The Chief Executive Officer, Mr Newbound, responded to the letter of the FSU, indicating that the position of the defendant “remains unchanged”.[36] Such letter from the defendant was followed up by a letter from Ashworth supporting the position of the defendant.[37]

[36]           See Exhibit A at page 13 of the Supplementary Court Book of the Defendant

[37]           See Exhibit A at page 14 of the Supplementary Court Book of the Defendant

39        Furthermore, the plaintiff gave the following evidence:

Q:	“Was it your belief at that time that he was trying to get you sacked at the conflict of interest time?---
A:	Not until the intimidatory way of the meeting of 20 January.
Q:	No, what I’m getting at is that there was the conflict of interest issue, the first time that you thought he was trying to get you sacked, from what you tell me now, is the meeting on 20 January 2006 [sic] …?---
A:	Yes, Your Honour, but I did have feelings prior to that, along with David Lawler, another manager, who both of us didn’t have the right qualifications for our jobs and I felt that – Mr Ashworth specifically at one stage had said about getting rid of people who didn’t have the right qualifications. He didn’t say it to me personally but that was mentioned, I think at a managers meeting, and also said when he was queried about that – his comment was specifically something along the lines of, ‘Sack them and we’ll worry about the consequences later’”.[38]

[38]           T 95, L6-22

(b) The “March 2005 argument with Ashworth”

40        The plaintiff gave evidence that in or about the last week of February 2005, Rachael Mason, the secretary of Ashworth, informed the plaintiff:

“Hi, darl, how are you? I’m coming to your next credit control meeting.”[39]

[39]           T 51, L22-23

The plaintiff responded: “On whose authority?” and he was informed “Graham Ashworth”. The plaintiff responded angrily to the suggestion that she was coming to the meeting and said to her: “Bloody Graham Ashworth” and also he told Rachael that he took exception to being referred to as “darl”.

41        Shortly afterwards, on 3 March 2005, Ashworth called the plaintiff into his office and according to the plaintiff the following occurred:

“I went in and then he says ‘shut the door’. He’s just yelled at me, ‘Shut the door,’ and he’s pointing at me and I’ve gone, ‘Why? Graham, I’ve got nothing to hide. Why do you’ – he walked over and slammed the door and then he had a go at me obviously about speaking to Rachael. In his words, he accused me of harassing Rachael Mason, speaking to her and swearing about him and I didn’t deny that I swore. I said, ‘Yes, I might have sworn, ‘bloody’.”[40]

[40]           T 52, L18-26

(c) The “sexual harassment” allegations

42        After the argument with Ashworth on 3 March 2005, the plaintiff considered he was getting on well pretty much with everybody save that Rachael Mason was “extremely cold to me”. After the meeting with Ashworth on 3 March 2005, he constructed an apology to her to which she did not respond. In or about July 2005, a staff appreciation dinner was held and everyone seemed to be getting on reasonably well.

43        On 19 December 2005, the plaintiff received a letter from the defendant directing him to participate in a disciplinary process relating to three allegations made against the plaintiff.[41] That letter was signed by a Ms Tania Rocca, described as the Human Resources Manager of the defendant and states:

[41]           See Exhibit E at page 94 of the Defendant’s Court Book

“In accordance with Police Credit’s obligations under the Sex Discrimination Act 1984, we are advising you of recent allegations that have been made against you in relation to inappropriate behaviour and sexual harassment. We seek a written reply from you in regard to the incidents detailed below.

We have been advised of 2 incidents which occurred at the Police Credit

Christmas function held at the RACV Club on 10 December 2005.

First Complaint

The complainant for the first incident Rachael Mason, has stated that late in the night she was dancing on the dance floor when you came across the dance floor dancing and deliberately and purposefully used your left hand to touch Ms Mason on her left buttock and you then firmly rubbed up her back. Ms. Mason states that she responded by saying ‘fuck off Max’. You then laughed at that and asked, ‘is your husband here?’ Ms Mason advised he was and that he was sifting down and pointed to him. You then asked ‘why isn’t he up here dancing[?]’ and Ms Mason advised, ‘he doesn’t like dancing’. You then said ‘well he’s missing out’. Ms Mason then said, ‘Max’. It is alleged by Ms. Mason that this alleged body contact by you was unwelcome and conduct of a sexual nature that having regard to all the circumstances, offended and humiliated her.

Second Complaint

In regard to the second incident it is alleged by a number of people present that you were observed to run across the dance floor and appear to run down your partner to the floor and lay on top of her. You then got up, appeared to try to help her up, but let her fall back to the ground and then mounted her stopping her from getting up. Your partner then got up and left the party.

In regard to the second complaint, given the(sic) all the circumstances it is alleged your conduct was inappropriate and less than the expectations for behaviour by a manager of Police Credit at an official work function.

Previous Matter

In regard to the first incident, Ms Mason alleges that she has in the past been subject to similar behaviour from you and chose to deal with the matter herself on that occasion. The details of that occasion are as follows:

On 4 March 2005 Ms Mason was with another employee in the customer car park having a cigarette break at the entrance. You came into the car park and got in your car. You then reversed out and Ms Mason looked to see if the lane way was clear and she said to you that it was. You then continued out of the car park, and Ms Mason had her back to you. You then drove back into the drive way closer to Ms Mason, put your arm out the window and grabbed Ms Mason on the buttock quite firmly and shook her buttock several times. You then laughed and drove off.

The other employee present has been spoken to and has confirmed observing the substance of Ms Mason’s complaint on that occasion.

Ms Mason alleges that she spoke with you about the incident in your office on 16 March 2005 and advised you that this conduct was not acceptable. In response it is alleged you replied ‘all women like attention’ to which Ms Mason responded ‘well not this one’. Ms Mason also alleges she advised you that her husband was also very annoyed by the incident.

While the alleged matter of 4 March 2005 may have been dealt with previously with a warning to you from the complainant as to her view of the inappropriateness of your alleged conduct, we consider it relevant. That is on the basis that if it be shown to have taken place in the manner described it tends to show that you were in effect ‘put on notice’ by Ms Mason in regard to the conduct toward her which she deemed inappropriate, and therefore the alleged conduct on 10 December should be viewed in that light.

I request a written reply to these matters as soon as possible, but in any case before 20 January 2006.

I must also in the most strongest terms, advise you that this matter should remain confidential other than with the persons directly involved or with those whom you wish to represent you should you consider this necessary.”

44        The defendant’s Christmas function was held at the RACV Club on 10 December 2005. The plaintiff also noted that the date of the alleged first harassment of Rachael Mason on 4 March 2005 was one day after his argument with Ashworth following the argument with Ms Mason.

45        The plaintiff gave evidence that on the Thursday before receipt of the letter on 19 December 2005, he had returned from lunch and found an email advising him to come round to be interviewed by Ashworth and Ms Rocca on “harassment charges”. He assumed that the reference to harassment charges was to what is ultimately referred to as the second complaint contained in the letter dated 19 December 2005. In this respect, the plaintiff, referring to the incident with his partner at the Christmas party, stated:

“Yes, I had a bit to drink, along with everybody else there and it was very late at night. It was about 12.30 as a matter of fact or something like that. Mr Ashworth was still there. I was dancing on the dance floor with Raelene, and Rachael was on the dance floor, I believe, and so was a Ms Jill Way and there might have been one other person. That was one of the dances. The other dance, there was a lot of people on and Raelene and I were dancing round the edge, so that’s happened. I sit down and it was just before Raelene and I were going to go, I did something silly. Sometimes I do silly things. I should never have done it, but I did do it. I ran across the dance floor and I put my partner Raelene in a little bit of a rugby tackle because she is a Kiwi and she used to always be at me about, ‘Kiwis are better; rugby is better than AFL,’ blah blah blah. So I put her in a bit of a rugby tackle, all in fun. I fell on top of her and because I’ve got a crook back, I went to pick her up and I fell down again. As I fell down, I give (sic) her a kiss on the cheek. But what I read in this filth, that I’m gyrating my hips on top of her in a sexual motion? It makes me sick to my guts. … .”[42]

[42]           T 59, L1-22

46        The next day the plaintiff, on not finding Ms Rocca available, went to Ashworth’s office and queried what the email was about. The plaintiff gave evidence that this occurred:

“… so I went straight into Mr Ashworth’s office and he had a smile on his face and he said, ‘No, no, you’ve been accused of sexually harassing a staff member’. I said, ‘What?’. He turned around and said, ‘And that’s not the first time you’ve done it to her’. I said, ‘Who are you talking about?’ He said, ‘Rachael Mason’.”[43]

[43]           T 60, L10-19

47        The plaintiff told the Court that in relation to the allegation of sexual harassment on 4 March 2005, he “totally” denies the allegation, and in respect to the allegation at the Christmas function in relation to Rachael Mason, he described such allegation as a “disgraceful lie”.[44]

[44]           T 61, L12-16

48        The plaintiff gave evidence that after receipt of the letter dated 19 December 2005, he engaged a representative from the FSU to act on behalf of his interests. Thereafter, correspondence, including letters and emails were forwarded between both the FSU and the defendant.[45]

[45]           I will return to the substance of this correspondence later in this judgment

49        The plaintiff gave evidence that on or about 17 February 2005, Ashworth came into his office and demanded that he produce his 2004 diary and “intimidated and bullied me in front of Mr Pieterse”.[46] After that confrontation, the plaintiff gave evidence that he drove straight from the defendant’s premises to the FSU (the representative was not available) and then drove straight to his doctor who found his blood pressure to be high and the plaintiff to be in a stressed state, so causing the doctor to issue a certificate to be off work.

[46]           T 105, L9-11

50        On 1 March 2006, the plaintiff received a letter from the defendant signed by Ashworth[47] wherein the plaintiff was advised, amongst other things:

[47]           See Exhibit E at page 107 of the Defendant’s Court Book

(a)	that the complaint of alleged sexual harassment on 4 March 2005 was found to be after examination “more likely than not” to have occurred;
(b)	that the complaint in relation to knocking over his partner at the RACV Club, although found to have occurred, was considered not to be the subject of any further disciplinary action;
(c)	that the complaint of alleged sexual harassment at the Christmas function at the RACV Club was found to be, after examination, “more likely than not” to have occurred.

The plaintiff was also advised of other allegations made by various female employees of the defendant about alleged sexual harassment. Ashworth concluded that the plaintiff could provide him with any further comment or material by Tuesday, 14 March 2006, after which a recommendation as to an appropriate course of action would be made to the Chief Executive Officer of the defendant.

(d) The “stalking” allegation

51        On Monday, 10 April 2006, Ashworth and Fred Pieterse requested the plaintiff to attend the board room where he was advised that a complaint had been made that on Wednesday, 5 April 2006, he had followed home in his car two female employees of the defendant, one of whom was Rachael Mason. The plaintiff was advised that an independent investigator had been engaged to investigate the allegations. The plaintiff was suspended with full pay pending the investigation being concluded. The plaintiff was later interviewed by Mr Colin Brockwell. At all times the plaintiff denied that he was following the two female employees home and indeed, had no knowledge of them. He was intending to visit a real estate agent in Richmond to discuss some problems with a property occupied by a female friend.

52        The plaintiff was suspended with full pay pending the investigation being concluded. The plaintiff was later interviewed by a Mr Colin Brockwell.[48]

[48]           See copy of Question and Answer Statement undertaken by the plaintiff on 20 April 2006 at Exhibit E at page 118 of the Defendant’s Court Book

53        By letter dated 3 May 2006,[49] the defendant advised the plaintiff, amongst other things that:

“… I am satisfied that it is more likely than not, your alleged actions in following and the way in which you followed Ms Mason’s motor vehicle, occurred. I am also satisfied that those actions were more likely than not to have been undertaken to frighten or intimidate at least Ms Mason as the driver [of] the vehicle.

Action to be Taken

I am aware that you are currently suspended from the workplace on full

pay pending the outcome of the investigation.

Given the findings I have made, I have made the further determination that the appropriate course of action in all the circumstances is that your employment with Police Credit be terminated in accordance with the notice provisions of your contract and the Credit Union Award. …

However, in fairness to you before implementing that decision I invite you to show cause by 5pm Monday 8 May 2006 as to why my decision should, first on the facts of the matter and secondly on the appropriateness of the determination of action to be taken, not be implemented.

… .”

[49]           See Exhibit E at page 145 of the Defendant’s Court Book

54        By letter dated 4 May 2006,[50] the FSU responded to the letter of Mr Newbound and canvassed the various allegations made against the plaintiff over the last twelve months or so. In particular, the letter states, in relation to the “stalking” allegation, that:

“Mr Rogers strenuously denies having followed Ms Mason in her car. In the investigation interview, Mr Rogers advised that he does not know what car Ms Mason drives and that he could not be sure of the way he had traveled [sic] that afternoon. Mr Rogers also advised that he had attended to another matter on that afternoon, however the investigators did not explore this as any explanation of where Mr Rogers was at any particular time. We believe if they had, Mr Rogers could explain his movements of that afternoon. For your records, he attended the Ray White Real Estate offices in Hawthorn, and met with an estate agent, who can provide information about having met with him.

… .”[51]

[50]           See Exhibit E at page 147 of the Defendant’s Court Book

[51]           See Exhibit E at page 151-152 of the Defendant’s Court Book

55        On 18 May 2006, the Chief Executive Officer advised the plaintiff by letter that his employment was terminated. In particular, it is stated:

“I have considered your response dated 4 May 2006 in regard to my letter dated 3 May 2006 and caused further inquiries to be made. Following these inquiries I have formed the view that the issues you raise do not have sufficient cogency to materially affect my decision in this matter.

… .”[52]

[52]           See Exhibit E at page 151 of the Defendant’s Court Book

Medical Evidence

56        The plaintiff gave evidence that after receiving his “first and final warning” in relation to the conflict of interest incident, he attended his then general practitioner, Dr Lorraine Briggs, at the Guardian Medical Centre, who prescribed anti-depressants from 1 February 2005. He has remained on anti- depressant medication since that date.

57        Furthermore, he attended another doctor at the Guardian Medical Centre (Dr Briggs not being available) on or about 23 December 2005 after receiving the letter dated 19 December 2005 setting out the two complaints at the Christmas function on 10 December 2005 and the earlier alleged incident in the car park on 4 March 2005.

58        The plaintiff was unable to work for about two weeks commencing on 17 February 2006 and lodged medical certificates, after which he returned to work before his suspension of employment on 10 April 2006. Records were identified of him attending a doctor on 17 February 2006 which recorded “work bullying. Agitated and upset.” This attendance followed the demand made by Ashworth for the plaintiff to produce his last year’s diary.

59        During the trial, two medical certificates were produced by the defendant: one dated 17 February 2006 and the second dated 27 February 2006, both of which certifying on normal certificates that the plaintiff suffered “severe anxiety and depression, extremely high blood pressure and unable to attend work”.

60        I refer to the medical report of Dr Tony Zeeher dated 22 September 2009,[53] wherein that doctor notes that the plaintiff attended in February 2006 with “severe anxiety symptoms”, following being accused of sexual harassment at work. He obtained a history that the plaintiff informed him that the allegations were wrong. Furthermore, the doctor later notes that as a result of the plaintiff’s employment being terminated he has been unable to work since, both as a result of “severe clinical depression” and the allegations being a “black mark” against his name, making him unemployable in the area of expertise.

[53]           Exhibit 4 at page 23 of the Plaintiff’s Court Book

61        In a later report dated 20 July 2010,[54] Dr Zeeher notes that the plaintiff continues to see him on a regular basis for “ongoing anxiety and reactive depression”. In particular, Dr Zeeher states:

“He impresses me with his determination to get on with his life despite what he believes (and I believe him) that he has been unjustifiably treated and losing his job security, self esteem and status amongst his peers.

I would think this ongoing support and counselling will need to continue till his case is finalized and settled and Mr Rogers will be able to move forward with his life.”

[54]           See Exhibit 4 at page 24 of the Plaintiff’s Court Book

62        Dr Briggs referred the plaintiff to the consulting psychiatrist, Associate Professor Anne Hassett, who commenced to treat the plaintiff in October 2006. Professor Hassett continues to treat the plaintiff.

63        I refer to the report of Professor Hassett dated 18 August 2009,[55] wherein she obtained the following history:

“In May 2006, Mr Rogers experienced a very emotionally traumatic dismissal from his employment with the allegation that he had sexually harassed and stalked one of his female work colleagues. Mr Rogers had worked for the Victorian Police Association Credit Co-operative for 25 years and had been a manager in the organisation since 1986. He felt unjustly accused and devastated about the termination of his employment. The emotional trauma for him was compounded for him as he described his work place as being like a ‘second family’ and he felt very betrayed by the lack of support from his former work colleagues that he experienced following his dismissal. … .”[56]

[55]           See Exhibit 4 at page 19 of the Plaintiff’s Court Book

[56]           See Exhibit 4 at page 19 of the Plaintiff’s Court Book

64        Professor Hassett noted that Dr Briggs had already prescribed anti- depressant and anti-anxiety medication for the plaintiff consisting of Escitalopram, 20 milligram/day and Diazepam, 5 milligrams/day. Professor Hassett also obtained the history from the plaintiff of his earlier treatment for “depression” in or around 1992 in the context of marital problems and a family death. She noted that he was “able to return to work and resume his life and responsibilities”.

65        Professor Hassett diagnosed an “Adjustment Disorder with Depressed Mood and Anxiety” and commenced seeing him every two to three weeks.

66        In the report dated 18 August 2009, Professor Hassett notes that the anxiety and depressive symptoms of the plaintiff had “not improved” and he remains “very angry over his work dismissal and that his accusers had not been made accountable in any way”. At that time she noted that the plaintiff had “chronic sleep problems, recurrent nightmares and poor concentration”. Professor Hassett notes that as a consequence, the plaintiff has been unable to pursue further employment and although there were changes to his psychotropic medication regime, such has not resulted in any improvement. In particular, Professor Hassett states:

“At this stage, I consider that Mr Rogers’ anxiety and depression have become chronic conditions and are directly related with his dismissal from the Victorian Police Association Credit Co-operative where he had worked for 25 years. Since this event Mr Rogers has changed from being an employed and functioning person to one who is totally consumed by the injustice that he perceives has been done to him. He is unemployed, has had to sell his house for financial reasons, and now struggles with interpersonal relationships. Despite psychiatric treatment, I doubt that Mr Rogers will be able to move on with his life until he feels that he has received some validation and compensation for what he has suffered as a consequence of his work dismissal.”[57]

[57]           See Exhibit 4 at page 20 of the Plaintiff’s Court Book

67        In a later report dated 20 May 2010,[58] Professor Hassett notes that the plaintiff continues to suffer from “significant depression and anxiety” causing her to see him approximately monthly for psychological support. In particular, she states:

[58]           See Exhibit 4 at page 21 of the Plaintiff’s Court Book

“Despite continuing treatment Mr Rogers’ depressive and anxiety symptoms have been persistent since I first saw him in October 2006. He has low mood, sleep disturbance, poor concentration, high anxiety and continues to ruminate about his situation in relation to his dismissal from the Victorian Police Association Credit Co-operative and the ongoing legal process that has ensued subsequently. My sense is that Mr Rogers’ mental state is unlikely to improve until this legal process is completed and his sense of injustice about his predicament has been addressed in some manner. Given that his symptoms have become quite chronic and his financial situation is precarious, Mr Rogers may still have mental health problems even when this legal process is completed.

…

As I stated in my last report I consider that Mr Rogers’ depression and anxiety are directly related to his dismissal from the Victorian Police Association Credit Co-operative.

…

I consider that any change in Mr Rogers’ mental state, either improvement or deterioration, is likely to depend on the outcome of the current legal process in redressing the injustice that Mr Rogers perceives he has been the victim of as a consequence of his dismissal from the Victorian Police Association Credit Co-operative.

… his low mood, poor concentration and high anxiety.

…

Given that Mr Rogers has not been in fulltime work for the last four years and he has been suffering from depression and anxiety during that time, I cannot speculate as to his capacity to undertake work in the future. Mr Rogers now has a very poor tolerance for stress and I do not know if this will improve over time, and may be an ongoing issue in any employment that he attempts to undertake.”[59]

(my emphasis)

[59]           See undated report - Exhibit 4 at page 22(a) of the Plaintiff’s Court Book

68        The plaintiff has been psychiatrically examined by the following psychiatrists:

(a)	Dr Geoffrey Hogan, on or about 23 October 2006;[60]
(b)	Dr Barrie Kenny, on 15 August 2006[61] and on 5 June 2008;[62]
(c)	Dr Dush Shan, on 24 August 2007;[63]
(d)	Dr Rasanjali Ratnayake, on 13 November 2007;[64]
(e)	Dr Albert Kaplan, on 31 July 2008[65] and on 9 June 2010;[66] and
(f)	Dr Paul Kornan, on 15 July 2010.[67]

[60]           See Exhibit 4 at page 22a of the Plaintiff’s Court Book

[61]           See report dated 23 August 2006 – Exhibit 4 at page 44a of the Plaintiff’s Court Book

[62]           See report dated 10 June 2008 – Exhibit 4 at page 44j of the Plaintiff’s Court Book

[63]           See report dated 24 August 2007 – Exhibit E at page 34 of the Defendant’s Court Book

[64]           See report dated 15 November 2007 – Exhibit E at page 42 of the Defendant’s Court Book

[65]           See report dated 4 August 2008 – Exhibit 4 at page 25 of the Plaintiff’s Court Book

[66]           See report dated 21 June 2010 – Exhibit 4 at page 39 of the Plaintiff’s Court Book

[67]           See report dated 16 July 2010 – Exhibit E at page 48 of the Defendant’s Court Book

69        When Dr Hogan consulted with the plaintiff seemingly in or about October 2006, he obtained a history of the stress associated with the “conflict of interest” allegation, and “sexual harassment” allegations. He considered that the plaintiff had symptoms of major depression and noted that he had been prescribed Lexapro, 20 milligrams daily, with significant benefit but not full remission of his depression.

70        When initially seen by Dr Kenny on 15 August 2006, the plaintiff gave a history of the “sexual harassment” allegation and the “stalking” allegation. Dr Kenny considered that he suffered from a significant Adjustment Disorder with Anxiety and Depressed Mood in response to his perception of having been quite unfairly and unreasonably treated during the course of his employment with the defendant.

71        When seen again by Dr Kenny on 15 August 2006, the psychiatrist noted that the plaintiff had “deteriorated markedly” and that his Adjustment Disorder had continued and he could be described as having a “Major Depressive Disorder”.

72        When see by Dr Dush Shan on 24 August 2007, he again gave a history of the “sexual harassment” allegations and the “stalking” allegation. Dr Shan was of the opinion that the plaintiff suffered an “Adjustment Disorder with Mixed Anxiety and Depressed Mood”, the predominant cause of which was the allegation of the sexual harassment, and aggravated by being dismissed by the defendant.

73        When seen by Dr Ratnayake on 13 November 2007, a history was obtained from the plaintiff of the “conflict of interest” allegation, the “sexual harassment” allegation and the “stalking” allegation. Dr Ratnayake was of the opinion that the plaintiff suffered from an Adjustment Disorder that seemingly developed in the context of work-related stress and aggravated by a breakdown of a relationship with is partner.

74        When initially seen by Dr Kaplan on 31 July 2008, a history was obtained from the plaintiff of the “conflict of interest” allegation, the “sexual harassment” allegation and the “stalking” allegation. Dr Kaplan considered the plaintiff to be suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood (“reactive Depression and Anxiety”) caused by the stresses he experienced in the course of his employment with the defendant and specifically the allegations of sexual harassment.

75        When seen on 9 June 2010, Dr Kaplan was of the opinion that the plaintiff had not improved and in particular, states:

“Mr Rogers continues to suffer from depression and anxiety, and his condition does not appear to have improved since I last examined him 2 years ago. The condition is probably best characterized as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. His condition is related to his work stresses and specifically the allegations of sexual harassment, his employer’s failure to adequately and appropriately investigate the allegations, and his belief that he was treated unjustly and that his dismissal was engineered. He still feels betrayed by his employers and he describes intrusive thoughts and nightmares in relation to his work stresses. He experiences feelings of despair and hopelessness, and his precarious finances have added to his feelings of insecurity and to his anxiety. He describes sleep and appetite disturbance, he is socially withdrawn, he has difficulty wit his memory and concentration, and he continues to have difficulty organizing himself. He continues to experience an erectile disorder which is symptomatic of his underlying anxiety and depression and loss of self-esteem. … .”[68]

[68]           See Exhibit 4 at pages 42-43 of the Plaintiff’s Court Book

76        When examined by Dr Kornan on 15 July 2010 on behalf of the solicitors acting for the defendant, the plaintiff gave a history of the “conflict of interest” allegation, the breakdown of his marriage in 1996 and the death of his sister- in-law in 1990. Furthermore, his mother had died from Parkinson’s Disease in 2010 and his step-father had died just before that. Dr Kornan also notes that allegations were made about the plaintiff “sexually harassing staff”.

77        Dr Kornan diagnosed the plaintiff to be suffering “Major Depression” and “an Adjustment Disorder with disturbance of conduct (illness behaviour features including brooding and rumination)” and indications of a “markedly obsessive personality indicating personality weaknesses”. Dr Kornan opined that it will be up to the “Court room situation to decide as to whether the employment, and circumstances surrounding his dismissal have been an ongoing significant contributing factor to his psychiatric ill health”.

78        In terms of capacity, Dr Kornan states:

“He is ruminating, and brooding at this stage, and is probably unfit for employment. However, I consider that on conclusion of his current claim he will be fit for employment if motivated to do so. Of course he is 56 years old, and would have to initially start in a job of lesser salary than the job he had as credit manager of the Police Association. I note Professor Hassett did not want to speculate as to his future employment in her report of May 20th 2010. I consider though that at that time then he will have a full capacity to return to suitable employment if indicated to do so. I do not anticipate any restrictions or modifications upon him with the exception of finding a job. He is certainly capable of doing a wide range of employment within the financial field.

… .”[69]

[69]           See Exhibit E at page 55 of the Defendant’s Court Book

Conclusions on “Injury” and “Incapacity” if the Defences raised under s.82(2A) and s.82(4) of the Act are not applicable

79        Although it is clear that the plaintiff had reasonably significant psychiatric treatment extending as late as the mid-1990s, I find that in the years leading up to 2004, the plaintiff enjoyed reasonably good health, lost little time off work with the defendant and enjoyed his work with the defendant.

80        The evidence is overwhelming that the plaintiff has suffered a “mental injury” arising out of or in the course of his employment with the defendant over the period from late 2004 up to and including the termination of his employment in May 2005. The nature of the “mental injury” is that of Adjustment Disorder and more particularly, Depression and Anxiety. If any of these conditions are characterised as “diseases” within the meaning of the definition of “injury” contained in s.5(1) of the Act, I have formed the view that employment has been a significant contributing factor to the causation of such conditions.

81        Turning to the issue of capacity, I consider the following matters are relevant:

(a)	The demeanour and presentation of the plaintiff in court was largely someone who had a flat affect, became agitated when talking about Ashworth and the various allegations made against him and obsessive about the various dates when various events occurred during the course of his employment;
(b)	The plaintiff gave evidence that he was involved in two motor vehicle accidents. The first was in 1985 when he ran off the road and hit an electric pole and the second was a concertina-type accident in 1990 as a result of which he had injuries to his neck and back requiring chiropractic and physiotherapy treatment.[70] Furthermore, according to the history from Dr Kornan, he was due for a hip replacement and had had a Baker’s cyst removed from his knees;
(c)	I also refer to the evidence of Kenneth Herbert Lee Tett who was employed by the defendant, and recruited the plaintiff for his initial job with the defendant in 1981. Mr Tett is a qualified accountant, company secretary and company director and a Fellow of the Australian Institute of Management. He ceased work with the defendant in March 2000, at which time he was the company secretary and executive manager administration. The Court enquired of these matters:

[70]           T 151, L24 – T 152, L 6

Q:	“Are you still familiar with the finance industry?---
A:	Yes.
Q:	What do you say is the prospects of a 56-year-old without formal training obtaining work in anything like the finance sector?---
A:	Very limited, because people will want, and they have been wanting, people who have done a Certificate III, Certificate IV in Finance that deals specifically with the collections activity. It’s basically something that gives evidence, the fact that they know what they’re doing. It’s a recognition of prior learning in most cases.”[71]

[71]           T 204, L25 – T 205, L3

(d) I also refer to the evidence of the plaintiff in terms of what he considered his capacity for work was:

Q:	“In relation to your symptomology, what is the situation with your sleep, getting off to sleep and staying asleep?---
A:	Extremely difficult, sir. I have nightmares, I have recurring nightmares, even now.

Q: Is there any theme to those nightmares, recurring

nightmares?---

A:	There has been, although amazingly enough Ms Mason has hardly ever been in them at all, it’s always been Mr Ashworth or Mr Newbound or even Mr Pickering, he was a father figure to me, I felt, at the Police Credit co-op, he was a an ex-chairman.
Q:	Anyway, there are nightmares and they involve Ashworth and others?---
A:	Yes sir.
Q:	What about the question of your general wellbeing in terms of your state of happiness or otherwise?—
A:	I enjoy seeing my two boys, but they’re grown up now young men and I used to love going to the football a lot and I still like going to the football, but my biggest joy is going to see my son play football. But other than that, your friends drop off when things like this happen and you don’t have the contact. I am forgetful, I repeat myself, I lose my concentration. This part-time job I had, I could only work a few hours, I’d have to go home and lie down on the bed and take a Valium and if I had to go to Centrelink to try and beg for my money at Centrelink it would be a different person every time who would see you and pretend to be a doctor and think they know what they’re talking about and I’d have to take a Valium before I’d go to see Centrelink to get my money.

HIS HONOUR:

Q:	Do you think you could work in an office environment now?---
A:	Not at the moment.
Q:	Sorry?---
A:	No sir.
Q:	As you’ve said, you’ve done some work holding stop/go and also I think I’ve read somewhere in the medical reports you’ve turned your mind to perhaps doing some physical type of work. Is that right?---
A:	I can’t do any physical work because I’ve got a hip replacement coming up. My back and neck pains from accidents I’ve had on the job before in 85 and 90 in the car when I was out doing field calls with the Police Credit co-op and I’ve found doing that stop/go job, it was just too much pain involved there, I left that. Well, I was still available to actually do it because I needed some money coming in, but they just didn’t ring me back at some stage and I think that’s after they got a reference from the Police co-op.
Q:	What do you say about your ability to do any type of work?---
A:	At the moment, I’d struggle, severely struggle at the moment. I mean, even making phone calls at the moment for my Datamini job, just updating the database, and they’ve got no further work for me, I was just updating their database because they took over from another firm, so it wasn’t sort of selling, it was just sort of saying, ‘Max Rogers from Datamini. We’ve taken over from Spy Communications and
we’d just like to update our database’.”[72]

[72]           See T 146, L25 – T 148, L16

(e) The plaintiff gave evidence that he continues to see his treating psychiatrist once every three to four weeks and he presently takes 20 milligrams of Lexapro once a day and 20 milligrams of Valium once a day.

82        The plaintiff gave evidence that since his employment was terminated with the defendant he has had the following “employment”:

(a)	He did a traffic control course for a firm in Dandenong which trained in how to work stop/go signs but because of his ongoing symptoms from his back and neck injuries he just could not perform that work;
(b)	In or about August 2010, a close friend of his provided a job doing some telemarketing. The plaintiff gave evidence:

“I hated it, it took me so long to even pick up the phone and speak
into the phone.”[73]

[73]           T 41, L5-6

That job continued from 28 August 1989 until about mid-July 2010. The plaintiff gave further evidence in relation to this job in the following terms:

Q:	“How many days a week were you doing that?---
A:	I was working a maximum of eight or nine hours a week and sometimes I couldn’t do that. I’d come home, have to lie down on the bed and did look after an alcoholic who boards with me and an epileptic, but he’s doing more of the looking after now than I am. He does all the cooking.
Q:	The eight to nine hours a week, was that spread over a number of days?---
A:	Depending. They left it to me to come in.
Q:	How did it work out in practice?---
A:	What I tried to do was to work on the Tuesday, Wednesday and Thursday morning while my mind was fresh and I didn’t get too tired.
Q:	That is a couple of days, two to three hours?---
A:	It was two hours on some occasions, three on others, but it was no more than eight or nine hours a week. … .”[74]

[74]           T 148, L20 – T 149, L2

83 After consideration of all of the evidence (other than the s.82(2A) and s.82(4) defences), I consider that the plaintiff had no current work capacity during the first and second entitlement periods. Furthermore, I also find that as at the date of the cessation of the second entitlement period (27 August 2009 according to counsel for the defendant), the plaintiff had no current work capacity and was likely to continue indefinitely to have no current work capacity within the meaning of s.93C(1)(a) of the Act.

84        Although it has been opined that the condition of the plaintiff may well improve after the resolution of legal proceedings, I adopt the opinion of Professor Hassett. Although recognising that there may be improvement or deterioration depending on the outcome of the current legal process, ultimately she stated that given that the plaintiff had not been in full-time work for the last four years and had been suffering from Depression and Anxiety during that time, she “cannot speculate as to his capacity to undertake work in the future”.

85        It is to be noted that the word “indefinite” used in the phrase “likely to continue indefinitely” has been held to mean “not clearly expressed or defined, vague; lasting for an unknown or unstated length of time”.[75] Furthermore, the work that the plaintiff has performed as a telemarketer seemingly is neither particularly realistic given that it was arranged by a friend, he works short atypical hours, and has difficulty performing such work. In all the circumstances, I have formed the view that it is not work “suited” for him.[76]

[75]           See Woolworths (Vic) Pty Ltd v Jeffreys [2007] VSC 45

[76]           See generally, Sodexho Australia Pty Ltd v Rowe [2009] VSC 298

86 Accordingly, absent the application of the defences relied on by the defendant pursuant to s.82(2A) and s.82(4) of the Act, I consider that the plaintiff has established a compensable injury which has resulted or materially contributed to incapacity for employment for the first and second entitlement periods and since the cessation of the second entitlement period, the plaintiff has had no current capacity for work and this is likely to extend indefinitely into the future.

Whether the Defences have Application

87 It is convenient to deal initially with the defence relied on by the defendant pursuant to s.82(4) of the Act. Initially, counsel for the defendant suggested that such defence related to the “sexual harassment” allegations and the “stalking” allegation.[77] It was made clear by counsel for the defendant in his final written submissions and oral argument before the Court that the defence of serious and wilful misconduct was only relied on in relation to the “stalking” allegation.[78]

[77]           See T 28, L12-27

[78]           See generally, T 881, L22 – T 883, L15

88        Given the gravity of the “stalking” allegation, both counsel accepted that the defendant, in discharging its onus to the balance of probabilities, was subject to the standard set out in Briginshaw v Briginshaw.[79]

[79] (1938) 60 CLR 336

89        Counsel for the defendant tendered Exhibits C and D to the effect that Rachael Mason was unfit to give evidence due to the advanced state of her pregnancy. Accordingly, no sworn evidence was given by the protagonist alleging that the plaintiff had “stalked” her.

90        Evidence was given by Leonie Margaret Kirk who gave evidence that she was then employed as a customer service office with the Bendigo Bank. She further gave evidence that she was employed by the defendant from November 2004 until October 2006 (when she resigned because she was pregnant) during which time she was a training and human relations consultant.

91        She gave evidence that she knew the plaintiff, Rachael Mason, with whom she enjoyed a good working relationship. In particular, she described Rachael Mason as working as PA or secretary to Ashworth but also performing work for the general manager of the defendant, the directors of the defendant and also she did some general receptionist work for the upstairs administration team.[80]

[80]           See T 517, L29 – T 518, L7

92        In particular, she gave evidence that she drove home with Rachael Mason on 5 April 2006. She gave the following evidence, in part:

Q:	“Is there any particular reason that April 2006 date sticks in your mind?---
A:	Yes, it would have been the time that I would have been in the car with Rachael, but there was an incident when we were travelling to her house.
Q:	Can you tell the Court what happened?---
A:	Yes, we were driving along, just chatting away quite readily, and suddenly Rachael’s demeanour changed and she said that she thought Max was following us in the car behind. She became quite anxious in her attitude and we basically turned off fairly quickly and then the car wasn’t following us any more.”[81]

[81]           T 520, L15-25

93        Ms Kirk gave evidence that at no time did she sight the driver of the vehicle or the plaintiff. She did identify a white sedan which she believed was a Mazda and that there was a “police little ribbon tied to the aerial, the little blue-and- white check ribbons”.[82] She estimated that from the time when Rachael Mason became upset until her car turned off “may have been a couple of minutes”. The car following them did not turn into the street and she could not recall which street her vehicle was travelling in at the time of the car being behind her.

[82]           T 521, L21-23

94        Ms Kirk also gave evidence that although she thought the vehicle behind was “a bit close”, she did not think it was “tailgating”.[83]

[83]           See generally T 523, L7-28

95        I have already noted that the plaintiff denies any suggestion of either “tailgating” or “stalking” Rachael Mason on her way home. Although he accepted that he was in the general area, it was his intention, which he carried out, to attend a real estate office in Richmond.

96        After a consideration of all of the evidence, I am not satisfied that the defendant has discharged its onus in establishing that the plaintiff engaged in serious and wilful misconduct in respect to the “stalking” allegation. It is of some significance that Rachael Mason could not give evidence before the Court to substantiate such allegation. The evidence of Ms Kirk falls, in my view, well short of establishing tailgating or stalking on the part of the plaintiff.

97        I also make reference to the submissions of counsel for the defendant that I can give weight to a summons issued on behalf of Rachael Mason wherein she purportedly makes assertions about the alleged “stalking” and the question and answers obtained by an investigator appointed on behalf of the defendant. I do not consider such evidence is admissible for that purpose and in any event, if it was so admissible, that the Court is still at a disadvantage not having Rachael Mason cross-examined about her allegations.

98 I am also concerned that even if I was satisfied that the plaintiff committed serious and wilful misconduct, can it be said that the “injury” is attributable to such conduct. Furthermore, bearing in mind my findings as to capacity for employment, I tend to the view that the saving provisions set out in s.82(5) may be apposite, in that a finding of “no current work capacity … likely to continue indefinitely” may satisfy the words “serious and permanent disablement”.

99 Accordingly, I consider that s.82(4) of the Act affords the defendant no defence in this proceeding. I should also point out that even if the defendant was successful on that issue, the medical evidence would establish that the circumstances surrounding the “sexual harassment” allegations and to a lesser extent the “conflict of interest” allegation have also given rise to a “mental injury” which, of course, pre-dated the “stalking” allegation.

100 Turning now to the application of s.82(2A) of the Act, and after a consideration of all of the evidence, I have formed the view that the mental injury suffered by the plaintiff is an illness of the mind arising from stress which was wholly or predominantly from actions on behalf of the defendant to either discipline (the “conflict of interest” allegation, and the “sexual harassment” allegations) and/or the dismissal of the plaintiff (“the stalking” allegation) within paragraph (a) of that sub-section.

101       As stated earlier, although it is not clear on the authorities as to whether an employer or indeed the worker has the relevant onus in relation to this aspect of the matter, I am of the view that whoever would have had the onus, the evidence clearly establishes the aforesaid finding. Even accepting there may well have been dislike on the part of the plaintiff of Ashworth, the whole tenor of the evidence was that the specific episodes involving disciplinary processes gave rise to the relevant stress rather than an allegation of generally stressful circumstances throughout the employment.

102       In my view, the issue becomes whether or not the defendant has discharged its clear onus of satisfying the Court on the balance of probabilities that it has taken reasonable action in a reasonable manner.

The Evidence of Graham John Ashworth

103       Ashworth gave evidence that his occupation was that of “barrister and solicitor” and that he had been employed by the defendant since May 2004 in the role of executive manager, corporate governance and general counsel.

104       His work experience on leaving school at the age of seventeen has included the following:

(a)	Working in a soft-furnishings company for about eighteen months to two years;
(b)	Working in a retail company for about four years and store manager of that company “fairly quickly”;
(c)	He joined the Police Force at the age of twenty-four in or about 1980 and served in the Uniform Branch for about five years, after which he became a detective in the CIB, initially at Fitzroy for three years and then for about twelve months at Parkdale. He was seconded to the Walsh Street killings task force as a detective and after a period of eighteen months on the task force he was recruited to the Homicide Squad where he remained for about three or four years. He undertook a sergeant’s role with the Police Media Liaison Bureau and was the officer in charge of the Bureau;
(d)	During his time at the Media Liaison Bureau, he completed a law degree and in 1996, he completed his “Articles” with the Victorian Government Solicitor, after which he worked for about twelve months with the Victorian Government Solicitor;
(e)	In or about 1997, he came to the Bar and practised as a barrister for about twelve months;
(f)	In or about 1998, he commenced employment with the Australian Securities and Investments Commission initially as an investigator in the corporate investigations and market investigations area. Following that, he was in charge of all the infrastructure of the Victorian office which included about 250 employees. Later, he was one of three people running the banking, finance and consumer affairs area for the organisation;
(g)	He joined the defendant from the Australian Securities and Investments Commission as further promotion would involve him moving to Sydney;

[107]          T 587, L24-25

129       In response to a letter from Ashworth to the plaintiff dated 1 March 2006, the FSU wrote to Ashworth by way of letter dated 23 March 2006,[108] wherein it is asserted that the investigation carried on by the defendant was “flawed” in a number of respects, including:

[108]          See Exhibit E at page 114 of the Defendant’s Court Book

• the reliance on the March 1985 episode of alleged sexual harassment in the garage which was not raised with the plaintiff at that time;

• the interviewing of past employees in respect to that incident;

• the absence of any actual complaint in respect to the allegation that the plaintiff knocked over his partner at the Christmas party on 10 December 2005;

• the absence of any evidence to substantiate the allegation made by Rachael Mason at the Christmas function;

• the complete “disregard” by the defendant to the plaintiff’s “right to fairness and privacy”.

Again, the FSU stressed that the defendant had failed “to afford Mr Rogers both procedure and substantive fairness”.

130       Ashworth gave evidence that he was in the process of formulating a recommendation for Mr Newbound when “the events of the stalking incident overtook it substantially”.

(d) The “stalking” allegation

131       Ashworth gave evidence that he was telephoned by Rachael Mason on either 5 or 6 April 2006 complaining that the plaintiff had followed her in his car. Ashworth took a detailed note of the telephone conversation, which he produced to the Court.[109] After the complaint was made, Ashworth consulted Mr Newbound of the defendant and he accepted the recommendation that the investigation should be run by an independent investigator and accordingly, a company called AusAssess was engaged and in particular, an investigator, Mr Colin Brockwell.

[109]          See Exhibit E at page 43 of the Supplementary Court Book of the Defendant

132       On 10 April 2006, Ashworth and Pieterse met with the plaintiff, who had initially refused to come to the boardroom meeting and only did so after being requested by Fred Pieterse. At that meeting, the plaintiff was advised that there had been a complaint made by Rachael Mason that he had followed her and another employee in their car home on Wednesday, 5 April 2006. The plaintiff was advised that he would be suspended with full pay pending the investigation being concluded. The plaintiff made, according to Ashworth, a number of protestations of innocence and wanted to ask questions, as did Ms Brewer, who attended with the plaintiff as a representative in lieu of an FSU delegate. After the meeting the plaintiff left work and went home.

133       Brockwell from AusAssess interviewed Rachael Mason, Leonie Kirk (the passenger in Mason’s car) and the plaintiff, all of which was contained in a report dated 25 April 2006[110] which was ultimately conveyed to the Chief Executive Officer of the defendant. Ashworth gave evidence that there was discussion between him and the Chief Executive Officer, and the Chairman of the defendant was also briefed.

[110]          See Exhibit E at page 125 of the Defendant’s Court Book

134       Ashworth accepted in his evidence-in-chief that the initial report from Brockwell, although containing the allegation by the plaintiff that he intended to contact someone at a real estate agent, Brockwell had been unable to contact that person in his investigation. Ashworth gave evidence that he considered they needed “some more inquiries at the real estate agent”,[111] but Mr Newbound was of the opinion that the stalking had occurred.

[111]          T 605, L8

135       By letter dated 3 May 2006, Mr Newbound, the Chief Executive Officer of the defendant, wrote to the plaintiff and advised the plaintiff that it was “more likely than not that the plaintiff’s vehicle had followed Ms Mason’s motor vehicle” and that it was “more likely than not” to have been undertaken “to frighten or intimidate at least Ms Mason as the driver of the vehicle”. Mr Newbound also advised the plaintiff that the appropriate course was to terminate his employment, but invited the plaintiff to show cause by 5.00 pm, Monday, 8 May 2006 why the determination should not be implemented.[112]

[112]          See Exhibit E at page 145 of the Defendant’s Court Book

136       As pointed out earlier in this judgment (see paragraph 54), Mr John Wilson, the Branch Secretary of the FSU, wrote to Mr Newbound on 4 May 2006, responding to his letter dated 3 May 2006.[113]

[113]          See Exhibit E at page 147 and in particular, at page 149 of the Defendant’s Court Book

137       On Friday, 5 May 2006, Ashworth sent an email to AusAssess and in particular, to Colin Brockwell,[114] wherein he states:

“We are moving to terminate Mr Rogers. In reply to our letter, and giving

them a chance to provide comment, we received the reply below.

The only query I have is on [the] first paragraph of the third page where it states: ‘For your records, he attended the Ray White Real Estate offices in Hawthorn, and met with an estate agent, who can provide information about having met with him’.

As I understand it from your inquiries, he didn’t actually meet with anyone as the agent was overseas. Could you please telephone Ms Mahmoud and follow this up as soon as possible to see if there was an actual meeting and if there was obtain the details? We would like to finalise this matter by Monday if possible.”

[114]          See Exhibit E at page 75 of the Supplementary Court Book of the Defendant

138       By email dated Thursday, 18 May 2006, Colin Brockwell advised Ashworth of the following:

“I have spoke[sic] to Amanda Devery who advised that he did come into their reception on 5 April, 2006, she stated it was quite late, around 6pm and she attended to him as there was no one else around. He asked to see John Shore who was overseas and no longer the CEO. Mr Rogers had some documentation regarding a complaint and she advised him that she would pass it on to the appropriate person.

Mr Rogers did not have an appointment and she had not dealt with him previously.

She confirmed that they usually lock there[sic] doors at around 5.30pm however this is often later dependent on who is at the premises. … .”[115]

[115]          See Exhibit E at page 76 of the Supplementary Court Book of the Defendant

Seemingly, the delay between the request from Ashworth and Brockwell reporting back to Ashworth was due to difficulties with Brockwell contacting Nadia Mahmoud.

139       As pointed out earlier in this judgment, the plaintiff was terminated by way of letter dated 18 May 2006 which states, in part:

“I have considered your response dated 4 May 2006 in regard to my letter dated 3 May 2006 and caused further inquiries to be made. Following these inquiries I have formed the view that the issues you raise do not have sufficient cogency to materially affect my decision in this matter. … .”[116]

[116]          See Exhibit E at page 151 of the Defendant’s Court Book

140       In his evidence, Ashworth expanded on this process in relation to the stalking allegation:

“The issues that really, I guess, were dealt with were was it likely that the car had been in that position. When you looked at the evidence there was a strong likelihood of that. So if you say accept that then the issue then becomes well, was that accidental or not accidental. Then you look at the quote ‘alibi evidence’ that I would say of taking the letter to the real estate agent. The issues that came out and were conveyed to us – not just in that email but in later either telephone calls or discussions with Brockwell, I can’t recall which – was that Mr Rogers hadn’t seen this chap at the real estate office for many years, that the real estate office would normally be closed at that time of night or be closed, that there was no email sent seeking when they would be open or not open, there was no telephone call made to the real estate office or the fellow he was going to see to see that he was going to be in. My understanding that he was actually out – he was overseas. The circumstances in assessing whether that was a legitimate explanation for his presence behind that car at the time with those two people – Mr Newbound viewed it as a convenient excuse to cover that action of following them in the car for the purpose of intimidating.”[117]

[117]          T 610, L18 – T 611, L10

141       Evidence was given by Raelene Merle Daniel, who gave evidence that she attended the Christmas function with the plaintiff on 10 December 2005. She confirmed the contents of her Statutory Declaration and in particular, confirmed that she at no time saw the plaintiff place a hand on another woman’s buttock.[118] She also gave evidence that she had a problem with her rental property and that prior to the “stalking” incident, the plaintiff intended to attend the real estate agent to “fix some of the problems that I’d been experiencing”.[119]

[118]          T 480, L11-14

[119]          See generally T 481-482

142       When queried as to what things should have been done in dealing with the “sexual harassment” allegations, the plaintiff indicated that he considered that when the allegations were made in December 2005, they should have been dealt with in a more urgent and timely way, that a complaint should not have been allowed to have been made in respect of an event nine months earlier (the garage episode), the failure to interview Ms Jill Way, who was present on the dance floor at the RACV function, that the evidence from his partner was “totally disregarded” and the severity of the reaction was too great for someone who had been with the defendant for a large number of years.[120]

[120]          See generally T 360, L25 – T 365, L11

143       In particular, I have formed the view that the words “deliberately or recklessly indulged in a flagrant disregard for the standards” are unreasonable in all the circumstances. Furthermore, the reference to “first and final” warning is wide in the context of the letter and although the FSU raised such issue, the defendant indicated that its position remained “unchanged”.

Conclusions on the Applicability of the Section 82(2A) Defence

144       After a consideration of all of the evidence, I make the following findings:

(a)	At all material times the defendant had in place appropriate policies for the resolution of complaints made by its employees. In particular, these policies consisted of the “Human Resources and Training Policy” which contained the “Equal Employment Opportunity (EEO) Policy” which dealt with, amongst other things, harassment in the workplace. In particular, at all material times, the defendant had a policy referred to as “EEO Complaint Procedure” which was appropriate. Indeed, as I understand the position of the plaintiff, there was no attack per se on the nature of the policies in place at the relevant time;
(b)	I find that no officer of the defendant acted in a mala fides way in its dealings with the plaintiff. I accept that Ashworth in particular, and other officers of the defendant in general, applied the relevant policies as they considered appropriate. In particular, I reject the suggestion of the plaintiff that Ashworth “had it in” for him because of his lack of formal qualifications. Indeed, I heard evidence from David John Lawler who continues to be employed by the defendant as the Finance and Operations Manager. Mr Lawler gave evidence that he had no tertiary qualifications or qualifications in the financial sector and had “just experience”;[121]
(c)	I also reject the suggestion by the plaintiff that Ashworth was not the appropriate person to investigate the various complaints. Given his position in the defendant, and his background, I consider that Ashworth was the appropriate person to conduct the investigations and indeed, made an appropriate decision that the stalking allegation should be investigated by an outside investigator. In particular, I also reject any suggestion that Ashworth should not have conducted any of the investigations given his “close proximity” to Rachael Mason. The evidence establishes that although Ms Mason did work on occasion for Ashworth, she also worked for various other people and performed receptionist duties. On the evidence there was no special relationship between Ashworth and Ms Mason.

[121]          T 453, L18-20

145       The Court also accepts that the “EEO Complaint Procedure” both by its terms and application does require, as Ashworth stated on several occasions, a balancing of the interests of the employer, the person making the complaint and the person against whom the complaint is made. Furthermore, the Court accepts that when a complaint is made of sexual harassment, one could well understand the delicacy of the situation from the viewpoint of both the complainant and the subject of the complaint.

146       After a consideration of all of the evidence, I find that the defendant has not discharged its onus of satisfying the Court on the balance of probabilities that it has taken reasonable action in a reasonable manner in its processes to discipline and dismiss the plaintiff. In particular, I refer to the following matters:

The “Stalking” Incident

147       Although appreciating that the activity undertaken by the plaintiff in promoting a scheme to a delinquent member of the defendant could have had serious consequences for the defendant, it must be remembered that such activity was undertaken when there was no conflict of interest policy in place, the plaintiff had been employed for some twenty-three years with a good record and at least one of his intentions was to alleviate the financial strain of the delinquent member and his wife. In such circumstances, I consider that the first and final warning letter sent to the plaintiff was unreasonable in its terms.

148       I also refer to the meeting between the plaintiff, Ashworth and Mr Fred Pieterse on 20 January 2005, at which time the plaintiff, according to his evidence, was yelled at in a threatening and intimidating manner. It is to be noted that after such meeting, the plaintiff did attend his doctor and was prescribed medication. Consistent with the plaintiff, I formed the view that Mr Pieterse is in the camp of the defendant and the evidence establishes that he was still employed by the defendant. Consistent with the principles of Jones v Dunkel,[122] I infer that his evidence would not have assisted the defendant in relation to the meeting on 20 January 2005.

[122] (1959) 101 CLR 298

The Sexual Harassment Allegation

149       Considering the terms of the EEO Complaint Procedure Policy that all complaints are to be resolved as close as possible to when they occurred, I consider it unreasonable that the plaintiff was called upon to face a complaint of sexual harassment alleged to have occurred in March 2005 but not notified to him, as a complaint, until December 2005. Furthermore, I consider it unreasonable that the defendant found that it was more probable than not that the plaintiff inappropriately touched Rachael Mason at the RACV function, considering no other witness saw such action and indeed, the assertion of the partner of the plaintiff that no such action occurred. Although appreciating other matters (such as the photograph produced and the sobriety of the plaintiff) were taken into account, there was ample evidence that such an event did not occur.

150       I also consider unreasonable the circumstances surrounding the request for the diary by Ashworth on 17 February 2005. In this respect, I refer not so much to the request per se but indeed, the way the request was undertaken. It is to be noted that the plaintiff alleged that he was “intimidated and bullied” by Ashworth. Again, Mr Pieterse was apparently present at such time and again, he was not called on behalf of the defendant. It is to be noted that the plaintiff went off on sick leave immediately following this event and indeed immediately after such event, the FSU emailed Ashworth complaining of his actions. Although Ashworth denied that he either intimidated or bullied the plaintiff, he spoke of talking with some resolve. On balance, I do not accept that the defendant has discharged its onus in establishing that it acted in a reasonable manner.

151       Furthermore, I consider that the letter from the defendant to the plaintiff dated 1 March 2006, wherein the plaintiff was advised that each of the allegations was found to be “more likely than not” to have occurred, inappropriately also contained reference to other allegations made by various female employees of the defendant about alleged sexual harassment. In that letter, Ashworth advises the plaintiff that he has “formed the view that these are examples of what is more likely than not a pattern of behaviour by you consisting of uninvited and unwanted physical conduct with female staff members … .” This was the first time the plaintiff was confronted with any further allegation of inappropriate sexual harassment and seemingly, on the face of the letter at least, Ashworth had formed a view about such allegations. I find this to be an inappropriate course of action on the part of the defendant.

The “Stalking” Episode

152       After a consideration of all of the evidence, I am not satisfied that the defendant has discharged its onus of establishing reasonable action in a reasonable manner. After it received the initial report from Brockwell, the defendant, and seemingly, in particular, the Chief Executive Officer, formed the view that the plaintiff did follow Mason’s motor vehicle with a view to “frightening or intimidating” Ms Mason. At that stage, although the plaintiff had stated that it was his intention to visit a real estate agent, Brockwell had not made contact with the real estate agent. Ultimately Brockwell did make contact with the real estate agent and ascertained that the plaintiff did attend on her on that day as alleged by him. That information was obtained by the defendant on 18 May 2006 and the defendant forwarded to the plaintiff his termination letter on the same date. I gained the impression that the decision to terminate the plaintiff was set in place well prior to this further information being obtained from Brockwell. Furthermore, I gained the impression that the stalking incident was effectively seen as a continuation of the sexual harassment allegations arising in December 2005.

153       In any event, I consider that it was unreasonable to make such a finding against the plaintiff in relation to the stalking incident in the face of the available material. Although the plaintiff accepted that he may well have been in the area when travelling to the Richmond real estate agent, he denied emphatically, even appreciating Mason’s vehicle was near him or indeed, stalking her in any way. His version of why he was travelling in this area is corroborated to a large degree by the real estate agent who he ultimately saw on that evening. His then partner also confirmed that she had an ongoing problem with the rental of her property which required assistance from the real estate agency.

154       Given the enormity of the allegation, the competing versions of what occurred, and the material obtained from the real estate agent, I am of the opinion that the defendant has not discharged its onus of establishing that it took reasonable action in a reasonable manner.

155       For completeness, I should also add that I do not make any findings as to the reasonableness or otherwise of the time over which the sexual harassment allegations were considered by the defendant. The evidence would suggest that at least a major part of the delay was brought about by the FSU responding to various allegations.

156 Accordingly, I consider that s.82(2A) of the Act affords the defendant no defence in this proceeding.

157       Bearing in mind my earlier findings, I am satisfied that the plaintiff has suffered a compensable injury which entitles him to weekly payments of compensation for incapacity to date and continuing, medical and like expenses pursuant to s.99 of the Act, interest pursuant to s.114E of the Act and a declaration pursuant to s.98C of the Act.

158       I call on the parties to formulate the appropriate orders.

- - -
Annexure A

1          The following documents were tendered on behalf of the plaintiff:

• Exhibit 1 – Management appraisals of the plaintiff from 2001 – 2005;

• Exhibit 2 – Statutory declaration of Raelene Daniel declared 6 February 2006;

• Exhibit 3 – Statutory declaration of Stephen Howell declared on 5 July 2006;

• Exhibit 4 – Pages 16-169 (except pages 73-86) of the Amended Plaintiff’s Court Book plus a document headed ‘Suspension Interview’ at pages 51-61 of the Supplementary Defendant’s Court Book.

2          The following documents were tendered on behalf of the defendant:

• Exhibit A – Letter dated 24 March 2004 from the defendant to the plaintiff (warning);

• Exhibit B – Letter from FSU to defendant dated 16 March 2005;

• Exhibit C – Letter from medical centre regarding Rachael Mason;

• Exhibit D – Medical certificate regarding Rachael Mason;

• Exhibit E – pages 34-56 and pages 90-152 of the Defendant’s Court Book, together with pages 1-50 and 62-127 of the Supplementary Defendant’s Court Book.