Rogers v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rogers v Woolworths Group Limited [2021] NSWPIC 361
APPLICANT:	Steven Roy Rogers
RESPONDENT:	Woolworths Group Limited
MEMBER:	John Wynyard
DATE OF DECISION:	21 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments for psychological injury; section 11A defence; applicant invited to join respondent; claimed that terms of employment contract ignored by management, one of which was to be relocated closer to his home within months; respondent refused on basis that applicant to remain store manager for two years; applicant maintained terms of agreement reached with area manager; area manager denied such a conversation; medico-legal opinions on both sides favoured applicant’s version; Held – applying Fox v Percy, contemporary materials (the employment contract), objectively established facts and the apparent logic of events militated in favour of the applicant’s version of the contract; accordingly the history accepted by both medico-legal experts was proven and the respondent failed to establish that the applicant’s injury had been wholly or predominantly caused by its actions with regard to discipline or transfer, Hamad v Q Catering applied; award in favour of applicant; in the alternative, actions of the respondent not shown to be reasonable.
DETERMINATIONS MADE:	1. The applicant suffered a psychological injury caused by his employment with the respondent. 2. The respondent has not satisfied its onus to establish that the injury was wholly or predominantly caused by reasonable action taken by the respondent with regard to discipline and transfer. 3. The applicant has had no current work capacity since 12 June 2019.
ORDERS MADE:	4. The parties will bring in Short Minutes of Order as to the weekly benefits payable as a result of these findings by 24 September 2021.

STATEMENT OF REASONS

BACKGROUND

Steven Roy Rogers, the applicant brings an action for weekly payments of compensation and medical expenses against Woolworths Group Limited, the respondent, with regard to a psychological injury sustained on a deemed date of 16 June 2019.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) Has the respondent satisfied its onus to establish that Mr Rogers’s psychological condition was wholly or predominantly caused by reasonable action taken with regard to discipline and transfer.

PROCEDURE BEFORE THE COMMISSION

This matter was heard by way of telephone conciliation/arbitration conference on 29 June 2021 at 3:30 pm to accommodate the time zone difference as Mr Rogers now lives in the UK. Mr Phillip Perry of counsel appeared for the applicant, instructed by Ms Amanda Knock from MCW Lawyers. Ms Sarah Warren of counsel appeared for the respondent, instructed by Mr Robert Passas from BBW Lawyers. Ms Amara Copping appeared from the insurer, EML. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) and attached documents from the applicant;
(c)    Reply and attached documents, and
(d)    Amended Reply and attached documents.

Written submissions were received from the applicant and the respondent.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

The evidence

The background to Mr Rogers’ appointment

The applicant made three statements dated 23 August 2019, 3 September 2019 and 19 January 2021. He was born in 1975, and is a married man with two children. Mr Rogers emigrated to Australia from the UK in 2010. He worked at Kmart until 2017 as an Area Manager with responsibility for 12 stores. He wanted a new opportunity and left Kmart to join Woolworths between April and July 2018 in a project management role, at Norwest, near Rouse Hill. He found his expectations were not lived up to in project management and he decided he wanted to be more involved with a store based/operational role, as he missed the interactions with people.
A colleague in the same building where he was working arranged an informal meeting with the NSW State Manager of the respondent, Mr Steve James, and the respondent’s HR State Manager, Ms Danielle Bailey-Byford. He was told that they were looking to bring in outside Area Managers to replace some non-performers, but had no current opportunities available. He was told he would be contacted if an opening arose.
In the meantime Mr Rogers had resigned and began to apply for other roles. A mutual friend contacted him in September 2018 and advised that the respondent “were looking for Store Managers,” and that it represented an opportunity to become involved with the company and to “show interest pending Area Manager opportunities.” [1]
[1] Applicant’s statement 23 August 2019 ARD page 31.
In his supplementary statement Mr Rogers said:[2]
“Even though I wanted to work for Big W as an Area Manager, I knew that to get my foot in the door with working with this company and to secure such a role, I had to initially work as a Store Manager.”
[2] Applicant's supplementary statement dated 19 January 2021: ARD page 10 at [16].
Mr Rogers was eventually telephoned by Ms Bailey-Byford with an opportunity to be a Store Manager. He was interviewed by Alex Bell, a fellow countryman, and was successful in obtaining a Store Manager role. He met with Mr Bell on or about 7 September 2018, and a discussion ensued at a nearby coffee shop. Mr Rogers said at [17]:[3]
“… The conversation was a bit unusual. Alex knew of my background and experience in the industry. Alex said, ‘they have obviously taken you on for a reason, you won’t be Store Manager for long.’ I felt that Alex felt pressure from [Mr James] and [Ms Bailey-Byford] and essentially I was another Area Manager coming into his area. Alex kept referring to my experience and that I had more experience than him and that I would probably be teaching him things and he would be learning from me. I was aware Alex was fairly new to the role as he told me this. He didn’t seem too confident and he seemed a bit bemused by the meeting which I felt had been dropped on him. We discussed management styles. We are both from the UK so we had a few things in common. Alex said he would be organising my training program or onboarding. He repeated that I would not be in the Store Manager role for long. I remember at one point saying ‘Well, you can’t possibly know that.’ I believe Alex went back to [Ms Bailey-Byford] and reported on our meeting.”
[3] Applicant’s statement 23 August 2019 page 31/32.
Mr Rogers said that he was sent a link for Store Manager on 11 September 2018, and he applied for a position as Store Manager, although no specific locations were given. Mr Rogers said that “not long after” he was telephoned by Ms Bailey-Byford saying his application had been successful and that he would be reporting to Mr Bell for his training, which would take up till January 2019. She said that he would not be allocated the store until the training period was over. Also at [19 ] Ms Bailey-Byford “very clearly explained that I needed to understand the in-store processes as my history as Area Manager would likely mean that I needed a fair amount of time on the floor…. to understand all of the Big W processes.”
Mr Rogers was emailed his employment contract on 12 September 2018. He noted that it stated that the position was Store Manager in training and would be located in Sydney. Based on his previous experience Mr Rogers said that he knew that a future store location would be subject to negotiation and agreement. He was aware that in Sydney the travel aspect was significant because of the heavy traffic. Mr Rogers filled in some details in ‘Right To Work’ and ‘Code of Conduct’ documents and returned them electronically. He gave the following chronology:
·        1 – 8 October 2018: with Mr Bell, who was his Area Manager, visiting stores and attending the State Meeting at Chullora.
·        8 – 12 October 2018: at Winston Hills, where Mr Rogers was disappointed with the training offered by the Store Manager.
·        15 – 19 October 2018: at Macquarie Park, where the Store Manager was ill. Mr Rogers was sent an on-boarding document which was for the position of 2 IC.

On 16 October 2018, Mr Rogers said at [28] he was driven by Mr Bell from Winston Hills to Rouse Hill, Penrith, Plumpton, Blacktown and back to Winston Hills. Mr Rogers said that he felt uncomfortable when Mr Bell told him that one of the Store Managers was going to be dismissed, as Mr Rogers thought it inappropriate at a time before the dismissal had occurred. Mr Rogers then said:
“… When we got back to Winston, Alex said, ‘you’ve got a white Fiesta. You know who else has a white Fiesta? Your friend Emma.’ I found that Alex liked to joke around a lot. He called me Captain America which I tired of quite quickly and I asked him to call me Steve. He also got me a name badge with the name ‘Emma’ on it. I just did not really find this funny and I refused to wear the name badge.”
Mr Rogers said at [30] that he had a conversation with Mr Bell in which the unsatisfactory nature of Mr Rogers’ training was discussed. Mr Rogers advised Mr Bell that whilst he was comfortable with the operational aspects of the store, he was lacking in knowledge about the administration side such as payroll and cash office procedures, audit procedures, Kronos and HR policies and procedures. At [31] Mr Rogers reported that Mr Bell said:
“Well if you’re not getting a lot out of your training, can you come out of your training early. You have a lot of experience. I would really appreciate if you could care take the Rouse Hill store over the Christmas period.”
Mr Rogers responded that his training was agreed only until January, and that the two weeks training he had undertaken thus far had not been adequate. Mr Bell replied:
“As you can appreciate Steve, people are busy and we are coming up to Christmas. It will be ok as there are two 2 IC’s with Aaron Pharo who has years of experience can help to support you and Sharon Krieg who is still training and who potentially will be leaving to go to the Richmond store in January but will be there for Christmas to support you.”

Mr Rogers said that Mr Bell indicated there were some concerns about the current Rouse Hill Store Manager, Aaron Thomas, and his inability to deal with the amount of people and management issues. In response to a comment about the failings of the training processes, Mr Bell said at one point: “that is why we have brought you in for.” Mr Rogers set out concerns he had, particularly about the travel time involved, and the unsatisfactory training he had received, regardless of it being a caretaker position. His inexperience and concerns about staffing were discussed with Mr Bell who, Mr Rogers said at [36], responded:
“I really need someone in the store and I need them in store for Christmas. I am getting a lot of pressure about this.”
Mr Rogers described his further training schedule from [33]:

·        22 October 2018 with the Soft Goods Manager at Rouse Hill.
·        23 October 2018 at Hoxton Park Distribution Centre.
·        24 October 2018 with the Hard Goods Manager at Rouse Hill.
·        25 October 2018 where his trainer did not attend at Winston Hills for Safety Training.
·        29 October – 19 November 2018 Training at Winston Hills with 2IC, as the Store Manager was on sick leave.
·        31 October 2018 Asset Prevention Training cancelled.

At [45] Mr Rogers related that he had a further conversation with Mr Bell on 2 November 2018. Mr Bell asked him if he had had any more thoughts about caretaking Rouse Hill as he needed to move Mr Thomas to Top Ryde. Mr Bell had been receiving complaints about Mr Thomas’s management. Mr Rogers said:
“[Mr Bell] said with my experience I would be able to do it and he’d appreciate the support.”
At [46] Mr Rogers reiterated his concerns about the long travel time involved, as it was taking him 1 hour and 30 minutes each way. He also said that he discussed it with his wife, who was due to have their second child in April 2019. Mr Rogers said that he could not take the Rouse Hill store permanently, but that he could help up until the beginning of April at the latest whilst Mr Bell found a permanent Store Manager. Mr Rogers said that he needed a store nearer to home.
At [48] Mr Rogers advised that he was told by Mr Bell that he would be paid out of the Sydney Central Region cost centre and not out of Rouse Hill, as he was not appointed and was caretaking only. He said:
“I was aware of the Rouse Hill store budget and [knew] that if my salary came out of the Rouse Hill Store it would impact potentially on the Team Member position. From my history in retail, having my cost centre in the Region as a caretaker made sense.”
In his supplementary statement of 19 January 2021[4], Mr Rogers said from [36]:
“I specifically recall that during a telephone conversation I had with Alex Bell on about 2 November 2018, Alex Bell was desperate to get a Store Manager in at the Big W store at Rouse Hill.
37.    As I could hear that Alex Bell was desperate and I wanted to show him that I am a dedicated team player, I agreed to be the caretaker of the Big W store at Rouse Hill over the Christmas period.
38.    At the time I agreed to take on this position, I made it very clear to Alex Bell that I was not taking on the role of Store Manager at the Big W store at Rouse Hill on a permanent basis, however, I could continue to work in the capacity of caretaker until April 2019 at the latest. By doing this, it would give Alex Bell time to find a permanent Store Manager for the Big W store at Rouse Hill.
39.    It was also agreed that upon Alex Bell finding a Store Manager to manage the Big W store at Rouse Hill on a permanent basis, he would find me a Big W store closer to home to manage on a permanent basis.
40.    When I had this conversation with Alex Bell, I do not recall Alex Bell disputing the terms of our verbal agreement.
41.    In fact, Alex Bell confirmed that I would only be acting as a caretaker of the Big W store at Rouse Hill as he informed me that my wage would not be paid from the Rouse Hill store budget but from the Sydney central regional costs budget.”
[4] ARD page 10.
In his statement of 3 September 2019, Mr Rogers addressed the electronic systems under which the Big W were organised. He said:[5]
“16. Success Factors is a Big W computerized organisational chart. It controls contracts if I was appointed to Rouse Hill it would have allow me to have Kronos, have sent me an updated contract and would have updated my cost centre to reflect Rouse Hill. I recall when I had sick leave prior to going on leave in June 2019, I emailed Kath my sick certificate as I couldn't put it on Kronos nor could Sharon. Kath said not to worry as she would administer this centrally on Kronos. Sharon said to Kath that Steve wasn't on Kronos. Kath said, ‘What do you mean7’ Sharon said, ‘He has been telling you that.’ There is a dotted line between me and Kath on Success Factors which means for administration processes I report to her…..
17. I couldn't sign off the wages as I didn't have the Store Manager Rouse Hill code or password on Kronos. I rang IT about it and they said I can't have access as I was not allocated to the Rouse Hill store. This meant that Sharon had to do this. Sharon was present for one of the few conversations I had with IT over these issues. I also did not have a systems Identification for the computer system which meant I didn't have a sign in for stocktake. I did have a Big W email which was allocated to me when I started training. This email was not linked to the Rouse Hill store.
18. Kronos is a thumb print system in store that is used for 'punching' on and off. It records the time you arrive at store and leave. I did not have this ability. Success Factors controls this. This reflected that I was not appointed to the Rouse Hill store. I was told my hours were flexible ·and I wasn't required to formally account for my hours.

[5] ARD page 158.

Mr Rogers indicated also that he was aware that there was a new Acting State Manager, Mr Kris Mooney, who had replaced Mr James. Mr Rogers was not clear as to the exact date he commenced as State Manager at Rouse Hill. He spoke of a meeting on 15 November 2018 when he met the Rouse Hill management team, at [51]. He described in some detail the dissatisfaction amongst the staff with the manager and the numerous issues at Rouse Hill.

In his statement of 20 August 2019[6] from [54] Mr Rogers said:
[6] ARD page 40.
“Over the next few weeks I established there were some significantly broken relationships between some staff at Rouse Hill as well as, concerningly, some staff who were managing other staff who were family members, During discussions with Alex, he also gave me the names of about 6 staff who I should be careful of when talking to. He told me that some staff were contacting him out of hours with concerns. It was disclosed to me by other staff of staff who were difficult to manage. The two 21C's didn't get on and openly criticized each other. Concerns were also raised to me in confidence in relation to some staff not being paid properly by Liz Smith due to relationship issues or who she didn't like or other staff member inappropriately using another staff members computer password. This concerned me as I didn't have the financial knowledge and other training to investigate these matters.
55.…The people issues in-store [at Rouse Hill] meant that I needed to spend considerable time in store and I couldn't just leave. In particular, I had a lot of problems with Kate Suter who was extremely disruptive and problematic. The travel started to cause me severe distress, anxiety and worry. …..
56.    Dealing with these issues, managing the store, as well as dealing with on the shop floor issues on a daily basis, meant that I would have to stay back at work on a regular basis and I would have to make a large number of phone calls to team members when I was not at work. I normally made these phone calls on the way to work or on the way home from work or at home.
57.    This was in addition to the 3 to 4 hours (in total) I had to travel by car to get to and from work from home each day.
58.    By December 2018, I was starting to show signs of exhaustion both mentally and physically as well as anxiety.
59.    I started to suffer from sleep disturbance. I was having difficulty going to sleep and/or getting back to sleep if I woke up through the night due to thinking about work and the issues that I was dealing with at the time.
60.    I started to sleep through most of the day on the days I had off work.
61.    At the end of January 2019, I saw Dr Chowdhury to get the results of a sleep study that I had undergone as my wife was concerned that I had sleep apnoea. The results came back that I had mild sleep apnoea.
62.    I recall asking Dr Chowdhury if the mild sleep apnoea would be causing me. to feel both mentally and physically exhausted and anxious all the time. Dr Chowdhury said no.”

Mr Rogers found that he was regularly leaving home at 7.00 am and not returning until 8.00 pm, which concerned him because his wife, having suffered severe postnatal depression following the birth of their first child, needed support as her pregnancy developed. There was a strain on their relationship as a result, which “deeply upset” Mr Rogers.

On 28 February 2019 he applied for the position of Area Manager of South Area 2 and 3. He said at [66]:

“…I applied for the role given my previous experience as an Area Manager and to progress my career In Big W. As a previous Area Manager, travel is usually incorporated into the day. South Area 3 was a position which covered as far away as Canberra but this was only an overnight stay about once a fortnight. The remaining stores were in southern Sydney and within 40 minutes of my home. South Area 2 was for central Sydney.”

On 1 March 2019 Mr Rogers asked Ms Bailey-Byford if it was possible to spend the day with Mr Mooney visiting stores, as he had applied for the Area Manager role. At [67] he said that Ms Bailey-Byford told him she was “just managing your expectations” in advising him that he would not be successful at this early stage in his career. Mr Rogers pointed to his previous experience as Area Manager and asked whether Ms Bailey-Byford thought he would be entitled to an interview. She made no reply, Mr Rogers said.
Mr Rogers explained earlier in his statement that the respondent utilises a cultural survey entitled Voice of the Team (VOT). He said at [62] that he was not familiar with it and he did not understand the enormity of the survey in its use as a measurement of leadership. The survey included a comment section, and an overall score was attributed to the Store.
Mr Rogers said that Mr Bell phoned him when the VOT results were known in March 2019. Mr Bell said that it was the worst result in the business and asked if Mr Rogers had read any of the comments, which Mr Rogers had not. Mr Rogers said at [68]:

“…Alex told me to be prepared for what had been said. He also said it was a reflection of my leadership. I read through the comments which contained a lot of false detrimental comments attributed to me and the management team . An example of these alleged that I walked around with my hands down my pants. There appeared to be multiple entries reflecting a corroborated (sic) response designed to bully the management of the store. There were many conflicts of interest or lack of impartiality due to family members also employed at the store.”

Mr Rogers told Mr Bell that in all his years in retail it never experienced such issues in a store. He told Mr Bell that the survey was not a fair reflection on his leadership as he had only been there for two months. He did not receive any response to his application to become Area Manager.
At this stage Mr Mooney had only been State Manager for a short time, and whilst he was conducting a store inspection at Rouse Hill Mr Mooney raised the survey results with Mr Rogers. Mr Rogers explained that there were significant problems within the store. Mr Bell, who was apparently present, told Mr Mooney that the results were not a true reflection of Mr Rogers’ leadership. Mr Mooney then broke away from the store tour to question one of the employees, Simone Causer. Ms Causer later advised Mr Rogers that she had said to Mr Mooney that Mr Rogers’ leadership style was good, that he was firm but fair and had started to tackle some of the cultural issues in the store.
Mr Rogers said that he then applied for the position of Area Manager of South Area 3 on 6 March 2019 and again received no response. Mr Rogers said that he was aware that the role was left open until August 2019 with a Ms Vicki Anderson caretaking. Mr Rogers said that around the beginning of March 2018 Mr Bell was replaced by a new Area Manager, Ms Kath Toner.

Mr Rogers related that on 10 and 11 March 2019 he attended a conference in Adelaide. At a formal dinner on 10 March 2019 there was an awards ceremony at which Mr Mooney called Mr Rogers up onto the stage and announced that he had been appointed Store Manager of Rouse Hill. Mr Rogers said at [75]:
“I asked Alex Bell after what was happening as I couldn’t say anything in front of 200 people. I said I hadn’t agreed, I hadn’t been appointed that I wasn’t being paid from the store and I couldn’t do that store long term due to the travel as it wasn’t sustainable.”
Mr Bell replied to leave it with him and he would talk to Mr Mooney and Ms Bailey-Byford at the next succession planning meeting, as they were the only people that could make the decision. Mr Rogers said at that stage he was:
“…really anxious and stressed as I felt that Alex hadn’t informed [Mr Mooney] about my situation with my wife. I only had a few weeks left before the due date of my second child and nothing had been arranged or discussed with me.”
Mr Rogers then related an incident towards the end of March 2019 at Rouse Hill. A team member, XY (Mr Rogers gave the full name, which it is not necessary to reproduce), approached him, appearing to be terrified. At [76] Mr Rogers said:

“[The person] said to me, ‘I'm coming to you in confidence. I need to raise with you about VOT. I don't want to put anything in writing as I'm worried about the repercussions from the team. I've got to bring to your attention that people here submitted multiple false entries and were encouraging casual team members to also submit false entries about you and the management team to VOT.’ [XY] named those responsible ….[XY] understood the purpose was to get rid of the management team. I was aware that these entries had been submitted anonymously. I immediately provided this Information to Alex and I told Alex that while [XY] provided this information, we needed to be very careful to protect [XY]. Alex told me that this explained why the response rate was so high. He said he would speak to [Ms Bailey-Byford].”

Mr Rogers said that Ms Bailey-Byford attended the store on 28 March 2019 and did a “listening session with store members.” Rogers believed that XY’s allegations were supported at this session.
On 11 April 2019 Mr Rogers said there was an “investigation meeting” with Ms Toner, Ms Bailey-Byford and Ms Sharon Krieg, the Rouse Hill Store 2 IC. This concerned an allegation against Mr Rogers by another team member, which was not substantiated.
Mr Rogers spoke to Ms Toner and Ms Bailey-Byford at the end of the meeting whilst Ms Krieg was still present, saying that he had not been appointed to the store and enquiring as to what was happening with regards to moving to a store closer to home and that the amount of travel could not be sustained. Mr Rogers said that he clearly mentioned that he was only at Rouse Hill on a caretaking capacity, it was close to the due date of the birth of his child, and he had concerns regarding his wife’s postnatal depression.
At [80] Mr Rogers related that Ms Krieg was asked to leave by Ms Bailey-Byford and when she had left, Ms Bailey-Byford said that he was needed to train Ms Krieg as 2 IC at the store. Ms Bailey-Byford told him that there were no stores available but that Miranda was a possibility because Ms Anderson was caretaking as Area Manager. Mr Rogers responded by mentioning possible upcoming vacancies at Hurstville and Pagewood as he had been told about them by Mr Bell. Mr Rogers said that he reminded Ms Bailey-Byford and Ms Toner of the arrangements is made with Mr Bell that he would be caretaking Rouse Hill and he was concerned that Mr Mooney thought that he had been appointed. Ms Byford-Bailey said she would speak to Mr Mooney and get back to Mr Rogers, but she never did.
On 16 April 2019, Mr Rogers recounted his telephone conversation with Mr Bell seeking any further information following his discussion of 11 April 2019 with Ms Bailey-Byford and Ms Toner. Mr Bell said that he was trying his best and suggested applying for Hurstville. Mr Bell also asked in this conversation whether Mr Rogers had contacted Ms Anderson regarding store availability in Area 3. Mr Rogers replied that he had not, as Ms Anderson was not an Area Manager and was still appointed to Miranda. Mr Rogers also said to Mr Bell that Ms Bailey-Byford was supposed to be looking at that for him, and Mr Bell said that he had not heard anything.
On the same day Mr Rogers, at [82], said that he spoke to Ms Toner about the travel involved and that he could not continue travelling three to four hours a day any longer. He told her that it was now April, his wife was due within the next two weeks, and the lack of outcome was causing his wife unnecessary strain and anxiety. He was told that there were no vacancies at the moment, to which he replied that he was applying for Hurstville which he knew was vacant and that neither she nor Ms Bailey-Byford had responded regarding a possible move to Miranda which they mentioned at the meeting of 11 April 2019.
At [85] Mr Rogers said that he applied for the position of Store Manager at Hurstville, but received no response to the application and no interview.
Then, at [86], sometime between 17 and 25 April 2019 Mr Rogers was contacted by Ms Toner, who told him that an allegation had been raised against him, and that he would need representation. Mr Rogers said that he had never had an allegation presented to him in his career but Ms Toner did not explain her comment nor did she give a date for the meeting.
On 26 April 2019 Ms Toner and Ms Bailey-Byford attended the Rouse Hill store, which was a surprise for Mr Rogers. He was asked again if he had any representation, and when he replied “what for?” Ms Bailey-Byford asked whether he had received any notification. On being told that he had not, she proposed telling Mr Rogers what the allegation was so that he could make a decision as to whether he needed representation. Mr Rogers said at [87]:

“… I am not happy to not have representation."

Nonetheless, Mr Rogers was taken to an office by the two managers, where a conversation ensued between the two managers as to what Mr Rogers had been told by either of them, from which it was apparent that he had neither been advised of the meeting, nor of the allegation. Notwithstanding, the allegation was put, which was concerned with whether the TVs in the store had been tagged. Mr Rogers gave the two managers the names of two witnesses, who were present at the store, to corroborate the answers he gave.
Mr Rogers was then asked to leave the room and when he returned 30 minutes later he asked the two managers whether either of them had spoken to those witnesses. They replied that they had not, but they were about to give him what they described as “a letter of direction.” This letter was not explained to him, and Mr Rogers refused to accept it. He said at [93]:

"’…I feel this was unsubstantiated and you have ignored my request to speak to the witnesses.’ I further said to [Ms Toner] and [Ms Bailey-Byford], ‘I find it disappointing that you can find the time to investigate this minor issue but neither of you can follow up with my request to move closer to home and my request to support my family. You are both fully aware of my situation and it is now the end of April at my wife's due date’."

Mr Rogers, in answer to a query about his wife, reminded them of the distress and anxiety the travelling was causing both he and his wife. He said that they had both told him that they would look into his request and neither had come back to him. He said that his wife had been hoping that this would be resolved long before the second child was born. Neither manager made any response, and they left.
After the meeting Mr Rogers described himself as being very confused, upset and angry at the conduct of the two managers. Why an Area Manager and a Senior Manager had been sent to investigate such a minor issue when neither of them had responded to his request to be moved was particularly disappointing, and Mr Rogers wondered if there was an ulterior motive to their behaviour. He said at [96] that he had supported Mr Bell by caretaking Rouse Hill and that by then, at the end of April 2019, he had received no response to an excessive number of verbal requests.
Mr Rogers then emailed both managers on 27 April 2019. He said:[7]
“I am writing to explain my request to move to a store that is closer to my home. When I started working at Rouse Hill store in November 2018 it was presented to me as a caretaking role. Initially, I raised concerns to Alex about the long distance travel. I did say that I would be happy to help in the short-term as they had no store manager. I also explained to Alex that my wife & I were expecting our second child in April 2019 and requested a store nearer to home before then… .”
[7] ARD page 295.
Mr Rogers then set out over a number of paragraphs the difficulties he was encountering with the excessive travel, the impending birth of his second child, and his wife’s earlier postnatal depression. He said:
“I appreciate that Kath has signed off my holiday for June and that helps, but she did indicate in a recent conversation that there isn't a store currently available closer to my home. I'm not sure when any stores will become available but would consider Hurstville, Pagewood, Miranda, which are all within 30mln drive of my home.
Whilst I understand the difficulties with succession planning within the state it would be helpful to know if my request is being considered and to be given a date for moving stores that would help support my family.”
As at the date of his statement, 23 August 2019, Mr Rogers had received no response. Mr Rogers obtained unpaid maternity leave between 1 and 16 May 2019. He said at [101] that on 29 May 2019 Ms Toner called him to advise that he had not been successful with his Hurstville application. Mr Rogers knew that both Hurstville and Pagewood were available but Ms Toner advised him:
“… ‘[Mr Mooney] hasn’t approved the move as he would like to see more from you in relation to your leadership. He won’t be moved to Pagewood as the Voice of the Team result was high and [Mr Mooney] won’t risk you going there because of your Voice of the Team result.’…”
Mr Rogers responded that the enquiries by Ms Bailey-Byford on 4 April 2019 demonstrated that people had been pressured to make false statements in that survey. Mr Rogers advised Ms Toner that he was stuck with what he was now supposed to do, as he had to be closer to home. He asked why Ms Toner was not supporting him when he was only at Rouse Hill on a caretaker role, as agreed. He said to Ms Toner that he had mentioned this on numerous occasions since October 2018, and it still had not been addressed. Ms Toner said they would discuss it when she was next in store.
Mr Rogers then described a meeting on 6 June 2019 at Rouse Hill. It was a scheduled store visit with Mr Mooney and Ms Toner, but when they arrived Mr Rogers saw Ms Bailey-Byford also with them. She had never attended any other scheduled store visit and he had no notice that she would be there. Ms Toner said that Ms Bailey-Byford was just tagging along.
Mr Rogers described Mr Mooney’s attitude during the visit as unwelcoming, uneasy and designed to deliberately find issues during the visit. Mr Rogers said at [104] that he had received some text messages warning him that two earlier store visits had not gone well and she did not want a third. Mr Rogers gave some examples of Mr Mooney’s aggressive demeanour and said that he did not feel comfortable. He related an interchange with Ms Causer which Mr Rogers found shocking as Mr Mooney was very sarcastic, rude and cut her off.
Eventually Mr Mooney said “let’s go to the office,” which Mr Rogers found confusing as the store visit had not completed (at [113]). Ms Toner and Ms Bailey-Byford were present in the office where Mr Mooney opened the conversation by advising Mr Rogers that he would not be moved to Pagewood because of his performance. Mr Rogers replied that he was not aware of any performance issues to which Mr Mooney said “our Voice of the Team.” Mr Rogers said:
“My Voice of the Team is not correct and [Ms Bailey-Byford] was meant to be investigating it. It was that serious, I haven’t been investigated and nothing has been discussed with my performance [nor] have I been asked about my results since February. [Ms Bailey-Byford] and [Ms Toner] know that people were pressured to make false and derogatory comments in the survey, they have interviewed numerous team members that have verified this.”
Mr Rogers then asked Ms Bailey-Byford why she hadn’t followed up, and said that he had not received any feedback from her. Ms Bailey-Byford said nothing. Mr Rogers told Mr Mooney that Ms Bailey-Byford had agreed to come to the store and do focus sessions with the team, reissue the code of conduct and reissue training, but this had not taken place.
Mr Mooney then advised Mr Rogers that he was not going to get a job at Pagewood, which made Mr Rogers realise that he was not going to get the Hurstville job either. He asked Mr Mooney why he had not got an interview, to which Mr Mooney replied that Ms Toner had told him why. Mr Rogers said:
“[Ms Toner] said I wasn’t getting the role at Hurstville because of what you think about my performance. It seems a bit personal and from what you said I won’t get the role at Pagewood either. Both of which are 30 minutes away from home.”
Mr Rogers told Mr Mooney about the excessive travel involving 3.5 - 4 hours per day and the concern he had about his wife. He said that Mr Mooney had a duty of care involving travel and that he had written a formal letter in that regard as it had not been addressed through the numerous conversations he had had with Ms Toner, Ms Bailey-Byford or Mr Bell.
At [119] Mr Rogers said that Mr Mooney became very angry at this, and shouted:
“Don’t tell me what my duty of care is or tell me about travel and being away from family.”
An argument then developed about whether the respondent had a travel policy, which Mr Mooney and Ms Bailey-Byford denied, but Mr Rogers referred to an incident with another employee where Ms Bailey-Byford had said that they did not expect managers to travel more than an hour. Ms Bailey-Byford made no response to that reference. Mr Rogers then said that he had not been appointed to the store because he was listed as “Regional Overhead Count.” Mr Rogers said that both Mr Mooney and Ms Bailey-Byford looks surprised at that, and Mr Rogers said that he had not been paid out of Rouse Hill and he had never been spoken to about the role by Mr Bell “other than caretaking for Christmas.”
Ms Bailey-Byford responded, “You were taken on as a Store Manager in Sydney.”
Mr Rogers said, “But that doesn’t mean you can put me anywhere.”
At this point in the meeting, Mr Rogers said that Mr Mooney became even angrier, and when Mr Rogers said that Mr Bell had not appointed him, Mr Mooney responded that he would speak to Alex but that it was a mere technicality as Mr Rogers had signed a contract, which made him Store Manager at Rouse Hill. Mr Rogers demurred, saying that he was not given a position change and he was only caretaking without a venue being nominated.
Mr Rogers said that Mr Mooney then shouted at him saying “[Ms Toner] has told you about your performance.”
Mr Rogers responded, “No. [Ms Toner] told me you had an issue with it.” Mr Mooney then invited Ms Toner to speak but Mr Rogers forestalled her, saying that if the conversation were a performance conversation then he should have someone with him. When Ms Toner tried to speak to Mr Rogers he said, at [122]:
“You aren’t discussing my performance without it being arranged and I have someone with me. This is harassment.”
Mr Rogers said at [123]:
“Kris was so angry. I asked, ‘What would make you happy? Would you like me to say I don't have a 3 week old baby at home, I don't have to travel 3-4 hours per day?’ Kris said, ‘This Is just going around in circles’."
Mr Rogers reported the detail of the meeting further, saying that he became visibly upset as he described his position. He said that his request was reasonable and valid and that he was just being ignored.
Mr Rogers said that Ms Toner and Ms Bailey-Byford were silent and did nothing to stop Mr Mooney’s behaviour, which he described as unprofessional and rude. Mr Mooney’s voice was raised and threatening. Mr Rogers felt bullied and spoken down to. He had been ambushed and outnumbered.

Mr Rogers described their reaction in the following terms:[8]
“I recall looking at them both during the meeting and they looked visibly shocked.
[8] ARD page 156.
[Ms Toner] looked frozen and [Ms Bailey-Byford] kept looking at [Mr Mooney] and waving her hand up and down to motion him to quieten down.”
Mr Rogers said that after the meeting Ms Krieg stopped him to ask if he was alright. Mr Rogers said at [128]:
"Sharon Kreig said, ‘I heard Kris shouting at you and I think Sandra Truran also heard Kris from the layby department.’ Sharon said she came to the door as she heard Kris shouting at me. She further explained that she backed away from the door and on her way past layby Sandra had said to Sharon ‘What's happening in there with the shouting, I didn't think store was that bad and I can hear shouting all the way from down in layby’."
On 7 June 2019 Mr Rogers reported that the Chief Executive, Mr David Walker visited the store with the new Finance Officer. Mr Rogers was told by Mr Walker that Rouse Hill was the best store they had seen out of the three they had visited. This information was communicated to Ms Toner later that day and although Ms Toner said she might “pop in” on the Saturday, but did not appear, nor contact Mr Rogers to say she could not come. Mr Rogers said at [136]:

“… I thought she was coming to check I was okay after the meeting. I had not been subjected to such behaviour as I had experienced in the meeting with [Mr Mooney]. I wanted to talk to [Ms Toner] about it. I felt unsupported and stressed. I was having trouble sleeping. I just didn’t know what to do. I was confused.”

On 12 June 2018 Mr Rogers was certified as having no capacity for work by Dr Chowdhury at the Kareela Village Medical Centre.[9] Dr Chowdhury referred Mr Rogers to Psychologist Anna Kljajic who saw him that same day.

Other witnesses

[9] ARD page 586.

Ms Bailey-Byford

Danielle Bailey-Byford gave two statements dated 15 August 2019 and 12 September 2019 respectively.[10] Ms Bailey-Byford said that she was the Senior State Culture & People Partner NSW/ACT for Big W, and had held that position for about 14 months at the date of her first statement.
[10] ARD pages 198 and 170 respectively.
In her statement of 15 August 2019, Ms Bailey-Byford confirmed that she had first contacted Mr Rogers after his CV had been passed to her. She confirmed further that she knew Mr Rogers had been working between 18 June 2018 and 10 August 2018 for Woolworths Supermarkets as a project manager and at [11] she thought when she first spoke to Mr Rogers that he might be suitable for employment at the Area Manager level.
She met with the applicant on 9 August 2018 and later in the month advised him that there were no opportunities available as Area Manager. She enquired as to whether Mr Rogers will consider the position of a Store Manager as there was then an upcoming opportunity at the Blacktown Store. In the meantime he would be “on the bench” awaiting a vacancy opportunity.
Mr Rogers agreed to that proposition and to commence the company’s in-house training as a Store Manager. There were further conversations around that time in which Mr Rogers was advised that there were two other Store Managers that would be going through the training as, whilst they had experienced in the role of Store Manager, that had been in external companies so that they needed to be “on boarded” with the Big W policies and procedures.
Ms Bailey-Byford said from [12]:
“... I also advised Steve of the Big W expectation that Store Managers would spend approximately 2 years in the role in the Store they were allocated. At this stage Steve was still earmarked for Blacktown. I also had the other two Store Managers earmarked for stores but many variables occur with these plans such as unexpected resignations.
13. Store Managers remaining in one store for 2 years is not a set rule or policy. It is a framework that has been put in place as part of our workforce planning approach to get more stability in this key leadership role. Any application by a Store Manager to move before 2 years at one location is reviewed on a case by case basis. The intent behind this is to create a more consistent leadership experience for our team and customers. It enables us to better develop and train Store Managers, improve team engagement, customer engagement and ultimately business performance.”
In her statement of 12 September 2019, Ms Bailey-Byford said at [7] that when the company was initially recruiting for Rouse Hill, Mr Rogers was being interviewed at Area Manager level, so that he was not then considered.
At [8] Ms Bailey-Byford said:
“Steve Roger’s onboarding and training, along with the two other store managers on the bench awaiting a store vacancy was not planned with any fixed time frame in mind.”
She said that the three appointees were advised that vacancies could not be guaranteed at any time so the onboarding/training times would vary. She said:
“We had funding for a three month period with the salaries of all three….. who sit under the Central Costs Centre but this is something they would not have been aware of.”
She acknowledged that when the applicant accepted the Rouse Hill store, the applicant had completed about four out of the six weeks of his training. She said that historically “externals” were directed into Store Manager positions where they would have onboarding and training from within their shop.
Ms Bailey-Byford confirmed that she had arranged for Mr Rogers to meet with Mr Bell, who was at that time the Area Manager for Area 1. Ms Bailey-Byford said that Area 1 incorporates the company’s biggest and highest profile stores. This was another reason that she wanted to consider Mr Rogers for that area:
“…as he came to us with a background of having completed large projects and operated at a senior level which was what we wanted in these types of more challenging stores.”
The meeting with Mr Bell occurred on 7 September 2019 and following that meeting Mr Bell recommended that “we progress with taking [Mr Rogers] on as a Store Manager.” A system generated letter of offer was sent to Mr Rogers on 12 September 2019, which confirmed his salary and conditions of employment (at [15]).
Mr Rogers joined Big W on 1 October 2018, Ms Bailey-Byford said, as a Store Manager. Between 1 October 2018 and 4 November 2018 Mr Rogers was in training and onboarding across a number of Sydney stores. She confirmed Mr Rogers’ evidence as to the places visited, if not the quality of the training itself. Ms Bailey-Byford said she was in touch with Mr Rogers and specifically mentioned to him his suitability for an Area 1 Store.
Ms Bailey-Byford reported that Mr Bell advised her that Mr Rogers had accepted the Store Manager position at Rouse Hill. She said that she “was aware” that Mr Bell had offered Mr Rogers flexibility with relation to hours worked, in view of Mr Rogers having young family responsibilities. Ms Bailey-Byford endorsed that approach and reiterated to Mr Rogers “on the proviso that his store was meeting a required level of expectations.”
Ms Bailey-Byford became aware that Mr Rogers had applied Area Manager vacancy in Area 3 in February 2019. In March 2019 she advised Mr Rogers that he would not be considered as it was too soon to move him and “(we) needed to see more consistent performance from him in respect of measures and targets at Rouse Hill.”
Ms Bailey-Byford continued that Mr Bell was moved to a new area and Ms Kath Toner was appointed as Area Manager in his place in March 2019. She said that on 5 March 2019 “an anonymous Speak Up complaint” was made alleging inappropriate behaviour by Mr Rogers. Ms Bailey-Byford explained that Speak Up is the Woolworths Group national whistleblowing external confidential service whereby staff who are uncomfortable in using the company’s normal channel of reporting can make a complaint.
A further complaint on the same platform was made on 14 March 2019 and a formal meeting was held with Mr Rogers, Ms Toner and Ms Bailey-Byford as the “support person or witness.” Mr Rogers also brought Ms Krieg to the meeting. He had been given 24 hours notice of it “as per company policy.” Ms Bailey-Byford stated that the allegations were unable to be substantiated because the witness was anonymous. She said that Mr Rogers denied the allegations and said that there were cultural challenges in the store, which Ms Bailey-Byford believed was justified. She did not say why she accepted Mr Rogers’ view.
On 28 March 2019 Ms Bailey-Byford said that Mr Rogers again raised the issue of moving, advising that he was struggling with the commute and he was worried about his wife and their expected new child. Ms Bailey-Byford said that she told Mr Rogers that there were no vacancies, that “we” would consider his request and get back to him in a few weeks (at [25]).
Ms Bailey-Byford then discussed the survey employed by the company, Voice of Team (VOT). She said that the survey provided staff with an opportunity to provide feedback, and that the results of the survey in March/April 2019 showed “a decline in a measurement of sustainable engagement.” She said that she instigated the visit to the Rouse Hill store for some “listening sessions” and that on 4 April 2019 she met with 15 to 20 team members at Rouse Hill. She said that there were a number of general negative comments about Mr Rogers’s behaviour on his commencement, but that there had been a positive change in his behaviour. No formal complaints had been received.
Ms Bailey-Byford said that she and Ms Toner met with Mr Rogers to give him feedback of the session and to reinforce advice on “performance managing a small but core group of staff who were negatively influencing other staff.” She mentioned that there was also an issue about the TVs.
Mr Rogers then applied for a Store Manager vacancy at Hurstville and Ms Bailey-Byford and Ms Toner attended a meeting on 26 April 2019 about the TV problem and “[Mr Rogers] potentially being dishonest to [Ms Toner].” Ms Bailey-Byford said that “the meeting resolved” by a letter of Direction “later issued to [Mr Rogers].” She did not indicate that Mr Rogers had refused to accept it at the meeting. Ms Bailey-Byford acknowledged receipt of the email sent by Mr Rogers on 27 April 2019, but said she was unable to respond because she was going on leave. She forwarded the email to Ms Toner and to Mr Mooney and asked that Ms Toner address it. She recalled being frustrated with Mr Rogers.
Ms Bailey-Byford said she was aware that Ms Toner spoke to Mr Rogers a few times following the email and confirming that the company would not consider moving him because it needed to see a more consistent performance at Rouse Hill. The decision not to move Mr Rogers was, she said at [33] due to performance. She said that she enquired when she returned to work on 20 May 2019 whether anyone had responded to Mr Rogers email of 27 April 2019 and discovered that nothing had been done. She was assured by “our Employee services” that the company’s response had been reasonable, which was conveyed to Ms Toner.
At [35] Ms Bailey-Byford said that she had been told that Ms Toner had advised Mr Rogers that he would not be considered for moving from Rouse Hill. “Steve at that time demanded that he speak with the State Manager and me.”
Ms Bailey-Byford then gave her account of the meeting on 6 June 2019. She stated again that “Steve had been made aware that this was occurring.” The purpose of the meeting, Ms Bailey-Byford said, was twofold. Mr Rogers had requested to speak to herself and Ms Toner about his not leaving Rouse Hill, and Ms Toner and she wanted to “make sure that a consistent message was being presented” to Mr Rogers. She said at [36] that there was a walk-through the store and that at some stage Mr Mooney questioned Mr Rogers about the survey result about which Mr Rogers appeared defensive.
Ms Bailey-Byford said at [37] that “[Mr Mooney] then suggested we move to an office.”
Ms Bailey-Byford then gave an account of what occurred during that meeting that was broadly consistent with that of Mr Rogers. She observed that Mr Rogers was quite emotional, his eyes were welling up and he was shaky. He was raising his voice. During the meeting the discussion covered the question of the terms of Mr Rogers’ engagement. Ms Bailey-Byford said:[11]
“39. At this time Steve advised that he had never been appointed to Rouse Hill as he still sat under the Regional Cost Centre. I advised this must be a Success Factors error and that he should have been moved across in New Year. I was aware that Steve and the other two Store Managers in training were originally placed under the Regional Cost Centre for their salaries pending a Store appointment, however, at that time I was unaware why Steve was still receiving his salary from the Region. Since then I have discovered that a fault by Alex Bell and, later, by Kath Toner in inadvertently not accepting Steve under the Rouse Hill cost centre as initiated by Kris Mooney in January 2019 via the Success Factor system was the reason that he had remained under the Region cost centre. This had nothing to do with a temporary or caretaker position at Rouse Hill.”
[11] ARD page 176.

Ms Toner

Ms Kathleen Maureen Toner made a statement dated 18 September 2019.[12] As indicated, Ms Toner became Area Manager on 28 March 2019. She said that from 18 to 22 March 2019 she had a handover from Mr Bell. She reported to Mr Mooney whom she said was based on South Australia.
[12] ARD page 220.
Ms Toner did not meet Mr Rogers until 7 March 2019 and was aware that he had only been appointed to the Rouse Hill position on 5 November 2018. In their introductory conversation Ms Toner said that Mr Rogers indicated that the Store Manager role was a steppingstone for him ideally to become an Area Manager. He told Ms Toner that he actually wanted her job, which she found awkward.
She next saw Mr Rogers at the Adelaide conference. She described Mr Rogers as coming across as “cocky and confident “and she thought that he spoke over the top of her a lot. She said that she spoke with Mr Bell about her perception of Mr Rogers demeanour, and Mr Bell said that Mr Rogers was intense but probably unaware that he offended her.

Ms Toner explained the electronic systems within the company, and how code numbers indicated an employee’s position. She said:
“14. When I commenced in my role Steve Rogers was allocated as the Rouse Hill Store Manager in that position code number, however, his pay was corning out of the Central Region Support cost centre. I did not realise that Steve was connected to this cost centre at that time. A cost centre is where a team member's salary is being paid from, This had no impact on Steve's Rouse Hill line managers sitting under him on Success Factors. I recall Steve's later application to go to England came through to me through Success Factors which reflects that he was correctly allocated into the Rouse Hill Store Manager position code number.”

Ms Toner described the meeting of 6 June 2019. She described Mr Mooney’s mood as “quite motivational.” At [43] she said that following the store inspection:
“[Mr Mooney] suggested we move [to] the office for a private discussion.”

Ms Toner gave an account of the meeting that was broadly consistent with that of Mr Rogers and Ms Bailey-Byford. She said at [47] that she felt Mr Rogers was upset and frustrated in not getting the answers he wanted and that he and Mr Mooney appeared to be repeating themselves and going round in circles. She described Mr Mooney’s demeanour as “professional but there was tension in the room.” She denied that Mr Mooney was shouting, but said that he was “very direct.” Throughout her evidence as she was unable to recall the various conversations that others said she was involved in.

At [55], having described her version of the 6 June 2019 meeting, she said:

“55. Following the meeting, I did check the Success Factors system and found that Steve's pay was coming out of the Central Region cost centre. I also saw that Christine Pisth's pay was also coming out of the Central Region cost centre. Christine had been appointed to Top Ryde within a couple of weeks of me coming into the Area Manager 1 position in March or April. The cost centre should automatically change over when a person is allocated their position number in Success Factors. l don't know why this didn't happen for Christine. I was able to adjust this manually. I also changed Steve's cost centre.”

Ms Toner also stated at [57] that “some staff at the Rouse Hill Big W” reported serious misconduct by other staff, including Mr Rogers and other managers. A number of customer complaints were also received, she said, with the result that she and Ms Bailey-Byford caused an investigation process to begin.
Ms Toner made some notes of a conversation she had with Mr Rogers following the 6 June 2019 meeting. These included the following:

“’Won’t talk to Alex. I’m not lying’ and ‘told Alex that my wife prg. Only to April.’ This was about the conversation [Mr Mooney] and [Mr Rogers] had in store about the VOC results…”

Ms Toner said that she telephoned Mr Rogers on 9 June 2019 in order to advise him that he was required to take part in a formal interview on 11 June 2019 to respond to “allegations.” Mr Rogers was told that these were in relation to issues of cash handling, performance concerns and his behaviour. On 11 June 2019 she contacted Mr Rogers again to confirm the meeting arrangements and was told that Mr Rogers had not been able to secure a support person due to that person being on annual leave, that he would be taking the following day off as he was going to see his Doctor, that he was exhausted and had become physically ill following the way he’d been treated the week before. Mr Rogers said he would be writing a grievance letter with regard to the meeting of the previous week, the treatment he had received from Alex and his entire onboarding experience. He repeated that he had been “upfront and honest from the start” with Mr Bell about caretaking Rouse Hill.

Ms Toner said that Mr Rogers returned to the UK on prearranged leave after he produced a medical certificate saying he was unfit until 14 June 2019. He left on 15 June 2019.
On 12 July 2019 Ms Toner, on being unable to phone Mr Rogers sent an email advising of a meeting on 15 July 2019. The letter had been drafted by “the Employee Services team”. Mr Rogers was also advised that he was now suspended from all duties while the investigation was being conducted. Mr Rogers did not appear but Ms Toner received an email that indicated he was still in the UK. A doctor’s certificate was duly forwarded that said he was unable to respond to the letter. At [85] Ms Toner said that performing Store Managers would be considered for transfer to a store closer to home rather than under-performing Store Managers which, in context, was clearly a reference to Mr Rogers.
Ms Toner spoke of “KPIs,” “targets,” and “management style” in explaining that underperforming allegation in April and May 2019.

Mr Mooney

Kris Lee Mooney made a statement dated 11 September 2019.[13] At [7] he said he was the State Manager for the Central Region for Big W, which incorporated the states of NSW, ACT and South Australia. It would seem that this Region was created as part of a restructure in February 2019, as Mr Mooney said that he took over as caretaker the “old Central Region” which incorporated NSW in November 2018. His predecessor was Mr Steve James, who had departed when Mr Mooney took over, so there was no handover.
[13] ARD page 215.
Mr Mooney said that when he took over, the Rouse Hill Store Manager position was being performed by Mr Rogers. Mr Mooney was unaware of the history of the Rouse Hill store, nor for how long Mr Rogers had been performing the Store Manager role.
At [9] Mr Mooney said that he recalled Mr Rogers appeared under him in Success Factors in November 2018, but that “back then, the whole Success Factors was very murky.” At [10] he said:
“My understanding of Steve appearing under me In Success Factors at the time related to issues with the system of IT issue or glitch of moving him across from reporting to me from his original position as Store Manager In training on Success Factors, and changing Steve over to Rouse Hill.”

Mr Mooney gave his recall of what occurred in the events thus far described. As to the circumstances of Mr Rogers employment contract, Mr Mooney said that they were not his priority at the time. He recalled speaking to Ms Bailey-Byford.
He recalled meeting Mr Rogers at Rouse Hill in December 2018, and asking Mr Bell about him, as he thought Mr Rogers “could be very direct and had a dominant personality.” Mr Bell, Mr Mooney advised, had been Area 1 Manager for 12 months or so. At [12], Mr Mooney spoke about an organisational restructure in February 2019, when Mr Bell had been moved “to a less challenging area to give him the best opportunity to succeed.”

At the time when Mr Bell was Area 1 Manager, Mr Mooney said he had no recollection of the Rouse Hill rating, but he remembered speaking to Mr Bell about Mr Rogers. There were concerns about his performance. Mr Rogers could not follow direction, or follow plans in store, and he worked to his own agenda and not that of Big W., he said at [13]. Mr Mooney said at [14] that he did not include Mr Rogers in his email to the Regional Team and Regional Support Team to announce new appointments in February 2019, as Mr Rogers was already operating as Store Manager at Rouse Hill. He said that there was a conference in Adelaide attended by all Store Managers and Area Managers.

Mr Mooney said that the first he heard about Mr Rogers’ claim that he had only been appointed as a caretaker was when he read Mr Rogers’ email of 27 April 2019. Both Ms Bailey-Byford and Mr Bell denied that any such offer had been made, Mr Mooney said. Mr Bell was alleged to have advised that Mr Rogers did not in fact drive as long as he had claimed. Mr Mooney said [at 16] that he told Ms Bailey-Byford and Ms Toner that Mr Rogers would not be considered for transfer while he was having performance issues.
Mr Mooney acknowledged that Mr Rogers’ application for transfer to Hurstville was rejected. He said at [19] that whilst there was no policy that there should be a tenure of 2 years, it was the “desire and need” of the company for longevity and consistency. Ms Bailey-Byford and Mr Mooney agreed this was so in Mr Rogers’ case.

Mr Mooney was advised by Ms Toner that Mr Rogers disagreed, at [20]:
“[Mr Rogers] requested to hear this information from me and [Ms Bailey-Byford].”
Mr Mooney then described the events of 6 June 2019 at [23]. He had gone to the Rouse Hill Store “for the purpose of talking to [Mr Rogers],” but with a store visit incorporated. At [24] he said:
“It would not be unusual for a State Manager, a HR Partner and an Area Manager to be in a room with a Store Manager. This meeting was requested by Steve. Out of respect for Steve we did not want to have this conversation on the store floor. It was not a performance management conversation. There was no way I would have allowed a performance conversation with any employee without support for them. I recall Steve trying to guide the conversation toward performance issues but Danielle, ln particular, would not allow this to occur.”

On 27 July 2019 Mr Mooney sent an email to Mr Mark Fong Peng about the meeting.[14]
[14] ARD page 486.

The email

Mr Mooney confirmed that he had wished to speak to Mr Rogers to reinforce Ms Toner, that the company was not open to him moving stores as they wanted to build consistency at Rouse Hill and have Mr Rogers as Store Manager for two years.
Mr Mooney gave a consistent history of there being an initial walk-through the store, during which Mr Mooney questioned Mr Rogers on why during his period of leave the relief Store Manager managed to “grow VOC in the store each week.” This was a reference to an electronic survey entitled “Voice of Customer” similar I assume to that of the “Voice of Team” survey mentioned earlier in these reasons. An argument ensued and Mr Mooney suggested that they move into the office “for a chat”.
Mr Mooney said that when he started to explain the situation Mr Rogers started to talk over, interrupt and raise his voice. He said that on numerous occasions he and Ms Bailey-Byford asked Mr Rogers to stop. The interchange with Mr Rogers about his invitation to Mr Mooney to drive the distance to his home was confirmed, and Mr Mooney again told Mr Rogers not to raise his voice. Mr Mooney confirmed that he was told that he had a legal obligation regarding Mr Roger’s safety, and after a further discussion Mr Rogers apologised. Mr Mooney did concede that at times during the meeting “it did get loud and confrontational.”

The statement

Returning to Mr Mooney’s statement, he denied that he bullied Mr Rogers and stated that by his conduct during that meeting, Mr Rogers was trying to bully and intimidate him.

Mr Mooney said at [28]:

“An employee travelling 1.5 to 2 hours is a concern and would be taken into consideration with an application for transfer……my understanding from [Mr Bell] was that [Mr Rogers] had accepted [the need for the travelling involved] as a condition, I was led to believe that this wasn’t the amount of travel time from [Mr Bell]…”

Mr Mooney acknowledged that he was aware of Mr Rogers’ claim that he had no contract for the position of Store Manager at Rouse Hill. At [29] Mr Mooney said:

“I was not across that issue. I believe [Ms Bailey-Byford] took that issue on board.”

Mr Alex Bell

Alexander Richard Bell made a statement dated 27 August 2019.[15] He was then the Area Manager for Area 2, having been Area Manager for Area 1, which included the Rouse Hill store, until March 2019. Mr Bell had been Area Manager for Area 1 for 18 months and had held a regional health and safety role with a drinks company owned by the Woolworths Group prior to that.
[15] ARD page 198.
He said that in late August or September 2018 he was advised by Ms Bailey-Byford and Mr James that he needed to have a cup of coffee with Mr Rogers, as he was joining Mr Bell’s team in a Store Manager position. Mr Bell understood that Mr Rogers would be part of the “on boarding” which two other future Store Managers were then undertaking. Sometime in September 2018 Mr Bell met Mr Rogers at a coffee shop in Winston Hills. Mr Bell said at [9]:

“…We discussed his career and mine. We spoke about leadership style. Steve was great to talk to, he Is a very intelligent man. Steve was open, positive, friendly and very confident. We discussed that Steve would work In my area and would be onboarding in my area. My recollection Is that Steve coming on board was a done deal but he potentially wanted to meet with me to see If we could work well together, I recall thinking that Steve was more suitable for succession planning In an Area Manager role given his background. The meeting was very positive. Steve Indicated he was Interesting In career progression with Big W but I can't recall the specifics.”

Mr Bell then advised Ms Bailey-Byford and Mr James that Mr Rogers was “great” and his involvement at that time ceased.
In September 2018 Mr Bell said there were Store Manager movements which left Rouse Hill vacant. Mr Bell said that a number of “externals” were interviewed and Mr Bell mentioned Emma Cameron as one of the interviewees, and noted that she knew Mr Rogers. He said that Rouse Hill was geographically problematic for Ms Cameron, as she lived in the Eastern Suburbs.

Mr Bell described Rouse Hill as a “high profile store.” It was close to head office and needed to be run well. Mr Bell said that he did not have a lot of “people issues” at the store. He mentioned one issue with a member of staff stealing and another of a team member with a long-term absence due to mental health.
He said that Mr Rogers’ onboarding commenced on 8 October 2018. He described how he took Mr Rogers to various stores as part of the training. He said that on 12 October 2018, when Mr Rogers was walking around the Rouse Hill store Mr Rogers appeared very impressed with Rouse Hill and expressed a desire to work there. Mr Bell quoted Mr Rogers as saying (at [19]):
“The travel will be a pain.”
Mr Bell said that Mr Rogers spoke about wanting more money for toll costs. Mr Bell said:

“[Mr Rogers] was supremely confident. I was learning things from him.”

Mr Bell, I infer, had available to him Mr Rogers’s statement of 15 August 2019, as he said that “I don’t recall” the dates or set timeframes for Mr Rogers’ training or that he asked Mr Rogers to come out of training early. He said at [24]:

“I would not have had a conversation with Steve about caretaking or temporarily Store Managing the Rouse Hill Big W over the Christmas period, I wanted Steve there permanently.”

Mr Bell recalled telling Mr Rogers that there were 2 ICs at Rouse Hill. He was not told by Mr Rogers of the 3 to 4 hours per day travel involved, although Mr Bell remembered that Mr Rogers needed some flexibility in order to pick up and drop off his son. Mr Bell said:

“31. I could have said to Steve, ‘I really need someone In this store and I need them in store for Christmas. I am getting a lot of pressure about this,’ I do recall saying to Steve that I needed to get a good Store Manager In store before Christmas. I was under pressure to get this done by Steve James. Around that time the store standards were starting to slip. This was measured by general merchandising, ticketing standards, Voice of the Customer and store processes. Steve James was monitoring these issues. My role was to get the right team in there.
32. In October 2018, I was relatively unsupported by my peers in terms of people movement.”

Mr Bell referred to a conversation he had with Mr Rogers on 15 October 2018, in which he told Mr Rogers that he was unable to get more money for tolls because he was already on “top dollar.” He recalled Mr Rogers saying (at [34]):
“That’s okay, I’ll have to make it work.”
The start date for Mr Rogers at Rouse Hill was 12 November 2018.
Mr Bell said that he spoke to Mr Rogers in November 2018 warning him that some team members at Rouse Hill, and some members of the management team there were making complaints about the previous manager’s management style.
Mr Bell remembered that in mid-November 2018 he was advised that Mr Rogers’s wife was pregnant and that Mr Rogers was concerned about the time away from home, as she had previously suffered postnatal depression. Mr Bell said at [40] that Mr Rogers had said the child was due in April 2019:

“…. And he would have to have the situation of being at Rouse Hill reviewed by then.”

As to the payment arrangements, Mr Bell said at [43] that whilst he was being onboarded, Mr Rogers would be paid out of the Regional Cost Centre. He said:
“Once [Mr Rogers] was allocated to Rouse Hill is cost centre should have been changed to Rouse Hill…. This is really [Ms Bailey-Byford’s] area of expertise. I believe in hindsight there was an administrative glitch in not moving [Mr Rogers] into the Rouse Hill cost centre which should have been instigated by the Regional Manager….. If Steve James had initiated transferring Steve Rogers to the Rouse Hill cost centre then I would then be able to see him in the Success Factors system as a line manager. I was aware that I could not see him in the Success Factor system but I was benefiting from this as it meant that my Area budget was benefiting for the three month period. I did not follow this up after this period. I believe it must have slipped my mind.”
At [45] Mr Bell said:

“Given that [Mr Rogers] was under the Region Cost Centre, I was unable to appoint him on the system as Store Manager at Rouse Hill. Either [Ms Bailey-Byford] or Steve James / Kris Mooney would have the access to do this and I believe this was their responsibility…..[Mr Rogers] not being moved meant that an auto-generated amended Contract would not have been sent to him reflecting his role as Store Manager at Rouse Hill.”

As to the VOT results at Rouse Hill on 5 March 2019 Mr Bell noted that the results were for February and that the store had gone backwards. He noted there was a lot of commentary about Mr Rogers and how he led the team. Mr Bell was very surprised by that but “I was aware that he had been holding a lot of people to account.” Mr Bell was aware that Mr Rogers had identified those people and highlighted the problems that they were causing, which was more about infighting than misconduct. It was Mr Bell’s suggestion that Ms Bailey-Byford conduct in store listening sessions, as Mr Rogers did not wish to escalate the problems up to People Services.
Mr Bell said that Mr Rogers had told him that he believed some staff members had submitted multiple entries into the VOT to make him look bad. The VOT entries are anonymous so it is impossible to determine who submitted them. Mr Bell named a team member who had been approached by another member of staff to make multiple detrimental entries about Mr Rogers. Mr Bell said he advised Mr Rogers to escalate that report to People Services, which Mr Rogers did not do.

Mr Bell said that at a store visit with Mr Mooney and Ms Toner at Rouse Hill on 7 March 2019 Mr Bell explained to Mr Mooney that there were significant people and process issues in the store which Mr Rogers was holding the team to account for. Mr Bell said that he told Mr Mooney that he did not think the VOT results were a true result because of the suspicion that there had been multiple submissions.

Mr Bell said “I do not recall” the episode at the Adelaide conference when Mr Rogers spoke with him after having been called up in front of 200 people to acknowledge the position that he had not agreed to. Mr Bell believed that Mr Rogers had applied for Store Manager positions at Hurstville and Pagewood without success. He also referred to the expectation described by Ms Bailey-Byford and Mr Mooney that an appointee stay in the position for two years, which he described as “an unwritten rule.” Mr Bell said he had checked on Google Maps and that the travel time involved was in fact one hour each way, which was perfectly reasonable.
Mr Bell said at [63] “I reiterate” that he did not offer the position of Store Manager at Rouse Hill to Mr Rogers as a “caretaker” or temporary position. Mr Bell also denied that he made any assurances about relocating Mr Rogers closer to home.

Ms Sharon Krieg

Sharon Krieg was 2 IC at Rouse Hill. She made a statement on 5 November 2019.[16] She described a meeting on 28 March 2019 which she attended as a support person for Mr Rogers. Also present were Ms Toner and Ms Bailey-Byford.
[16] ARD page 245.
The meeting concerned two allegations made against Mr Rogers. One was that he had described to a fellow worker that a Mr Haycroft was a “retard.” Ms Krieg said that Mr Rogers was shocked, and denied that he ever used that expression. He second allegation was that Mr Rogers had been heard to say “Shit. That’s a lot of toilet paper” when he was surveying a delivery in the dock. This comment was said to have been made some months before, on 22 November 2018. This too was denied by Mr Rogers.

Ms Krieg then reported that there was a general conversation about the negative culture within the store which, she said, had been present well before Mr Rogers joined. Both Ms Krieg and Mr Rogers asked for help regarding:
“.. How certain team members were going out of [their] way to make life extremely difficult and hard to get through daily processes; from morning huddles, rosters, service deck, dock and the list goes on.”
On being told to report that behaviour to People Services, Mr Rogers pointed out that to do so would mean that he would be on the phone all day. Ms Krieg then discussed the VOT survey which had been conducted on 6 January 2019. She said that certain team members had gone out of their way to make damaging comments against the management team repeatedly. She said that the survey showed Rouse Hill as the worst store but with the highest entries over staff, which meant that the score for the survey had been “tainted.” She said:

“At the time we had many changes in management, from three 2 IC’s running the store, Mr Alex Bell (AM) [who] was very much involved with all the changes inside of our store, was also aware of the results from the VOT survey, yet didn’t take further action to help with the culture in the store. Managers leaving a rotating around for the stores benefit only caused chaos and uncertainty amongst the associates.”

Ms Krieg said that the conversation turned to Mr Rogers’ need to be closer to home “as he had previously requested upon joining Big W.” Mr Rogers said that he was not appointed to Rouse Hill and the travel was beginning to take its toll.
Ms Krieg described in some detail the pressure that she observed Mr Rogers to be under, and the steps that he was taking to improve the conditions in the store, including holding people accountable.
She then described the visit of 6 June 2019. She thought it odd that Ms Bailey-Byford was present. She described the walk through the first half of the store in the soft goods leader but when the hard goods side the store was reached Mr Mooney walked off for a bit and then:
“came back asking Mr Rogers to join them in the office. I was walking towards the office when I heard a loud voice, not (Mr Rogers voice) not sure what was said the door was closed, I quickly turned around and walked out towards layby, an associate (Sandra Truran) asked me ‘what was going on, as she thought the store looked fine, she could hear someone yelling’.”
(As written).
Ms Krieg said a few minutes later she saw Mr Rogers “completely shaken up, shocked and upset, not himself.” She asked him if everything was okay and how they went, but Mr Rogers was unable to answer. It was clear to Ms Krieg that “something happened.”
Mr Rogers came back and then told his management team what had happened. He was overwhelmed:
“..as he was not expecting this from [his visitors] and should have been given notice to have someone present with him not three on one, as this visit, was only a store visit.”

The last occasion Mr Rogers was at the store was on 13 June 2019, Ms Krieg said. She said that Ms Toner was also present and was “completely surprised” to learn that Mr Rogers was not on the store’s Kronos when she was speaking about approving Mr Rogers’ leave.

Ms Emma Cameron

Ms Emma Cameron made a statement dated 23 August 2019.[17] She worked as a Store Manager at Kmart Pagewood and had known the applicant for the six years that she had been working for Kmart. Mr Rogers had been her Area Manager and she stated that his area was the best performing area for Kmart. She said at [8]:
“He was very well liked by his Store Managers and he was very involved in their professional development….”
[17] ARD page 191.
Ms Cameron said that following an invitation from Mr Rogers she investigated the possibility of moving to big W, as she found the prospect appealing. It involved better pay and her continuing to work with Mr Rogers, whose leadership and management style she enjoyed. On 18 July 2018 she was contacted through LinkedIn by Ms Bailey-Byford, at Mr Rogers’ suggestion.

Ms Cameron eventually contacted Ms Bailey-Byford on 24 September 2018 and it was agreed that Ms Cameron would be interviewed. Ms Cameron attended an interview in late September or early October 2018 with Mr Bell and Ms Bailey-Byford at Winston Hills. Ms Cameron said:
“After my interview finished, Alex walked me to the front of the store. He stopped me and said words to the effect of, ‘Oh so Steve is starting with us next week. Do you have any tips or anything I can do? Is there any fun things I can do or does anyone call him Captain America.’ I thought the conversation was odd. I said, ‘No, we just call him by his name.’ I said, ‘He is really knowledgeable and his operational knowledge Is really good.’ I felt awkward talking about Steve, I didn't know if Alex was just trying to make conversation but I found the content of the conversation odd.”

Documentary evidence

Email 11 November 2019 from Ms Truran

Ms Sandra Truran supplied an email dated 11 November 2019 to Mr Rogers.[18]

“This incident occurred early June 2019 when Chris Mooney was visiting the store.

What actions were wholly or predominantly causative?

Mr Perry’s submission that the respondent had failed to show that Mr Rogers’ injury had been wholly or predominantly caused by any of the actions mentioned in the respondent’s s 11A defence had some force. His argument in this respect was based on the proposition that the respondent had failed to prove that Mr Rogers had in fact been appointed as Store Manager at Rouse Hill, but that a temporary position had been given, pending an appointment in a Big W store closer to home, in conformance with the terms of his engagement agreed with Mr Bell.

It followed that the cause of Mr Rogers’ injury was the failure by the respondent’s managers to comply with the terms of the employment contract. Whilst the respondent assumed that the cause of Mr Rogers’ injury was his disappointment at its action in refusing his application for a transfer to be closer to his home, that action, or more accurately, inaction, was minor, and not of itself wholly or predominantly causative his psychiatric condition. It is the question of the cause of Mr Rogers’ injury that I propose to consider first.

The respondent’s actions prior to the offer of employment

The applicant’s employment with the respondent came about after he had been approached by Ms Bailey-Byford in August 2018. Her description of her meeting on 9 August 2018 and “at the end of August” was not challenged by Mr Rogers, who agreed that the conversation he had with Ms Bailey-Byford concerned a Store Manager role. Ms Bailey-Byford thought he might be suitable for a position of Area Manager, but there were no positions available at that time.[38] I accept that Ms Bailey-Byford was enthusiastic in her approach to Mr Rogers, and that she described the various steps Mr Rogers would need to take in order to become a Store Manager.

[38] At [76 -77] above.

Ms Bailey-Byford said that she advised Mr Rogers of the unwritten rule within the company that there was a two year expectation of service in the store that a manager was appointed to. In his statement of 19 January 2021, Mr Rogers said that no one told him of that condition, and had he been aware he would have asked Mr Bell more questions when he was asked to work at Rouse Hill.[39]

[39] ARD page 11 at [23].

However, the context of these discussions was that they were preliminary, during which no contract of employment was formed. In the final analysis, the terms of that contract are at the centre of this dispute.

Mr Rogers was sent a link for the position of Store Manager on 11 September 2018. He said that and was telephoned shortly after by Ms Bailey-Byford to say his application had been successful, and that he should report to Mr Bell for training, which would last until January 2019, with no store being allocated until his training was complete.[40]
[40] At [31] above.
Ms Bailey-Byford did not mention that conversation, although she stated that funds were made available for three months under the Central Costs Centre. Mr Bell said that did not recall any dates or set time frames given for training.[41]

[41] ARD page 201 at [23].

The letter of offer and contract of employment was emailed to Mr Rogers on 12 September 2018.

The respondent’s actions prior to the appointment to Rouse Hill

Mr Rogers commenced on 1 October 2018, and it is common ground that he engaged in training, as he outlined in his statement. Mr Bell said that whilst at Rouse Hill on 12 October 2018 Mr Rogers expressed an interest, saying “I could do this.”

It is also common ground that Mr Rogers commenced at Rouse Hill in the position of Store Manager on 12 November 2018.

Whilst there are some minor inconsistencies within the evidence that might be expected in a case such as this, which covered the viewpoint of many witnesses at different times over an extended time frame, there is a more significant divergence in the evidence between Mr Rogers and Mr Bell as to the basis on which Mr Rogers accepted that position, and indeed, the nature of the position itself.

The actions of the respondent witnesses make it clear that Mr Rogers was not believed, notwithstanding that he asserted that he had only been appointed as caretaker, and the question arises as to why that was so. The answer lies in the evidence of Mr Bell. Although he alleged that he “re-iterated” that he did not offer the position as a caretaker role[42] his denial was expressed as “I would not have had” such a conversation.[43]

[42] See above at [145].

[43] At [133] above.

The resolution of this issue accordingly depends on which account of the discussions I can accept.

The evaluation of conflicting evidence requires the reasoning to be, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.[44]

Contemporary materials
The employment contract
[44] Fox v Percy [2003] HCA 22 at [33].

I have already referred to the contract of employment itself. It based Mr Rogers’ employment at “BIG W Sydney,” and noted that he might be required to work at other locations “from time to time.” Mr Rogers’ account that he was asked to act as caretaker at Rouse Hill is consistent with that term.

Objectively established facts

The following objectively established facts are relevant:

·        Mr Rogers’ salary was paid from the Sydney Central Regional Costs budget. This was admitted by Ms Bailey-Byford,[45] Ms Toner,[46] Mr Bell[47] and asserted by Mr Rogers.[48]

[45] At [82] above.
[46] At [103] and [106] above.
[47] At [143-144] above.
[48] At [22-23] above.
·        Mr Rogers did not appear on the Success Factors computerised organisational chart for Rouse Hill. See Ms Bailey-Byford,[49] Ms Toner,[50] Mr Mooney,[51] Mr Bell[52] and Mr Rogers.[53]

[49] At [99] above.
[50] At [103] and [106] above.
[51] At [115] above.
[52] At [143] above.
[53] At [24] above.
·        Mr Rogers was unable to access Kronos, a thumbprint system in store.

·        He was unable to sign off the wages as he was not given the Store Manager Rouse Hill code or password on Kronos.

·        He was accordingly unable to sign off the wages at Rouse Hill.

·        He was unable to record his arrival and departure time from the Rouse Hill store.

·        He did not have a systems identification for the computer system and was unable to sign in for stock-take.

·        His Big W email was not linked to the Rouse Hill store.[54]
[54] At [24] by Mr Rogers, not contradicted.

A further objective fact is that during the time Mr Rogers commenced at Rouse Hill, the respondent was in the throes of a restructure. Mr Mooney stated that Mr James, his immediate predecessor as State Manager, left in November 2018 when Mr Mooney took over as caretaker until the restructure took place in February 2019,[55] so there was no handover. Mr Mooney did not know when Mr Rogers started at Rouse Hill, and did not know the circumstances of his employment contract.
[55] At [113] above.
Mr Bell, too was re-assigned as a result of the restructure, in March 2019.

Thus, from mid-March 2019, when Mr Rogers was insisting that the terms of his contract were to act as a caretaker manager at Rouse Hill, only Ms Bailey-Byford, of those investigating his claim, had been involved in his enrolment with the company. Ms Toner had taken over from Mr Bell, Mr Mooney had taken over from Mr James, and Ms Bailey-Byford had no knowledge of the agreement Mr Bell had reached with Mr Rogers regarding Rouse Hill.

Accordingly, they were dependant on Mr Bell’s account.

The apparent logic of events

Firstly, it is clear that Mr Rogers was sought out by the employer because of his impressive record. He had obtained a university degree at Derby University, he had worked at Lloyd’s Bank for 12 months. He had worked with Marks and Spencer and Asda in the UK before coming to Australia in 2010. He had been given a sponsored visa and employment with Kmart.

He had spent seven years as a Store and Area Manager with responsibility for 12 stores with Kmart, and the offer of employment was made by Big W after he had worked as Project Manager for Woolworths over a few months in 2018.

Accordingly he presents as a person of good repute and standing. There is no apparent reason why he would fabricate his evidence, and there is nothing in his background that would suggest he was likely to misperceive events. Moreover, his allegations are consistent with both the terms of his contract, and the bulleted objective matters I have above referred to.

Secondly, the evidence from Mr Bell raises some issues. When he made his statement on 27 August 2019 he had before him the account given by Mr Rogers. Mr Bell agreed that at the first meeting over a cup of coffee at Winston Hills that he was indeed impressed with Mr Rogers. He confirmed Mr Rogers’ impression that he knew a lot about Mr Rogers and he said that he found Mr Rogers to be a “very intelligent man… open, positive, friendly and very confident.”[56]

[56] At [131] above.

There was, however, a lack of professionalism that was also noted by Mr Rogers. Mr Bell expressed how “supremely confident” he found Mr Rogers, and how he was “learning things from him.” Mr Rogers thought that Mr Bell did not seem to be too confident and a bit bemused by the meeting, and he thought Mr Bell’s conversation was “a bit unusual.”[57]

[57] Mr Bell at [128] above; Mr Rogers at [12 and 15] above.

Mr Rogers also referred to Mr Bell’s decision to call him “Captain America,” which Mr Rogers asked him to stop, and that he gave Mr Rogers a name badge with the name “Emma” on it. This jocular approach was also remembered by Ms Cameron, who found her conversation with Mr Bell awkward and his comments about “looking for fun things” to do with Mr Rogers as being somewhat odd.[58]
[58] At [162] above.
Mr Bell gave some background to Mr Rogers agreement to go to Rouse Hill. It is not inconsistent with Mr Rogers’ account that the Rouse Hill store was described as a “high-profile store,” neither is there any contradiction in the comments ascribed to Mr Rogers about the potential difficulty with travel in his reported response regarding additional toll monies: “That’s okay, I’ll have to make it work.” Similarly, the remark attributed to Mr Rogers that the travel would be “a pain” was consistent in the context that Mr Rogers was talking about looking after the store only on a caretaker basis.[59]

[59] At [135] above.

Whilst Mr Bell thought that he “would not have” invited Mr Rogers to take the role on a caretaker basis, he did agree that he “could have” told him that he really needed someone in the store, and in the store by Christmas. He agreed that he might have said that he was getting a lot of pressure about that. Mr Bell admitted that the pressure came from Mr James and that around that time the standards at Rouse Hill were starting to slip. This was demonstrated by a number of indicia. Mr James was monitoring the issues, Mr Bell’s role being “to get the right team in there.”[60]

[60] At [134] above.

Mr Rogers’ evidence was that he could hear Mr Bell’s desperation in the telephone conversation he had around 2 November 2018. It was then that Mr Rogers agreed to be the caretaker with the clear proviso that he was not taking the managerial position on a permanent basis but that he could manage to work up until April 2019 at the latest full-time.[61]

[61] At [23] above.

It was at this time, prior to his accepting the Rouse Hill managers position, that he was told by Mr Bell that his salary will would not be paid from Rouse Hill, but from the Sydney central budget.[62]

[62] At [22-23] above.

This was confirmed by Mr Bell in his statement. Like Ms Bailey-Byford, Ms Toner and Mr Mooney, Mr Bell blamed inadvertent error for that situation.[63] He accepted “in hindsight” that there was an administrative glitch and that it was really Ms Bailey-Byford’s area of expertise, and that if Mr James had initiated the transfer, all would have been well. I found that explanation to be somewhat wanting, and his statement “I believe it must have slipped my mind” I have strong reservations about.

[63] At [99], [102],[115], and [143] above.

Similarly, Mr Bell’s explanation as to why he was unable to appoint Mr Rogers on the system as Store Manager at Rouse Hill I found difficult to accept, bearing in mind Mr Rogers’ evidence. He said:[64]

“Given that [Mr Rogers] was under the Region Cost Centre, I was unable to appoint him on the system as Store Manager at Rouse Hill. Either Danielle or Steve James / Kris Mooney would have the access to do this and I believe this was their responsibility. Alternatively, If I had remembered to do so, I could have contacted them to advise to have Steve changed on Success Factors. Steve not being moved meant that an auto-generated amended Contract would not have been sent to him reflecting his role as Store Manager at Rouse Hill.”

[64] ARD page 204 at [45].

I found the evidence of the respondent witnesses regarding Mr Rogers’ continuing presence on the Sydney central cost region to be unedifying. I am asked to believe that one or more of five employees in managerial positions made an inadvertent error, in an attempt to explain cogent evidence that supported Mr Rogers’ claim that he had never been appointed Store Manager at Rouse Hill, other than in a temporary, caretaking position. Mr Bell was quite right. Mr Roger was never contracted as Store Manager, but I am unpersuaded that it was as a result of inadvertent error.
I infer from Mr Mooney’s description of the respondent’s motive in moving Mr Bell to another area that the respondent itself was not satisfied with his performance. To say that Mr Bell had been moved to a less challenging area to give him the best opportunity to succeed seemed to be damning him with faint praise.[65]

[65] At [117] above.

I have no doubt that Mr Bell was an expressive type of character who was eager to get along with people, and it may be that he found himself in an awkward situation when in February 2019 Mr Rogers was caught in the intrigues at Rouse Hill.
Until he took up his new post in February 2019, Mr Bell was reporting to Mr Mooney, Ms Bailey-Byford and Ms Toner (his replacement) as to the deteriorating situation at Rouse Hill. The evidence shows that Mr Bell attempted to assist Mr Rogers following the VOT results, by explaining to Mr Mooney on 7 March 2019 that in effect Mr Rogers’ management style had been confronted by troublemakers.[66] However, Mr Bell did not support Mr Rogers’ consistent and repeated protestations that he had not been contracted to manage the Rouse Hill store on any basis other than the caretaking role that he kept insisting he had agreed to do. That role was consistent with the terms of his employment contract, that is to say, to be a Store Manager based at Big W Sydney, although required to work at other locations from time to time. The evidence from the respondent witnesses indicates that, if Mr Rogers had been appointed as Store Manager at Rouse Hill, an auto-generated amended contract would have been sent to him confirming his appointment. It was not.

[66] At [147] above.

It may be that Mr Bell does not recall making his agreement with Mr Rogers, but his statement that he “would not have” done so does not give me confidence that he had any particular conviction of that fact.

The respondent bears the onus of showing that the applicant’s injury was wholly or predominantly caused by its actions regarding transfer or discipline. I am not persuaded that Mr Rogers’ injury was wholly or predominantly caused by either. Having had a highly successful career, Mr Rogers was faced with an employer that did not respond to his quite justified claim that it was breaching very terms of the contract which it had agreed with him. His applications for transfer were made on his understanding that he would be allocated a more convenient store once he had assisted the employer by managing a difficult store over the Christmas period. The concern and alarm that he expressed because he found himself required to stay at a store for two years, a period which I am satisfied he was not aware of when he agreed with Mr Bell to assist the company, and which I am also satisfied he would never have taken had he been told, contributed to his condition. However, I have a grave doubt as to whether the aspect of transfer was a predominant, let alone the whole cause of his injury.

It follows that I am not persuaded by Ms Warren’s submission that I should prefer the respondent’s witnesses. Accordingly the assumptions of fact on which both Dr Allan and Dr George based their opinions may be relied on.

The histories taken by both specialists were consistent with that given by Mr Rogers, and were accepted by them. I agree with Dr Allan’s summary that transfer was an issue in the sense that the failure by the respondent to honour the terms of the employment contract meant that Mr Rogers was obliged to travel between 1.5 and 2 hours each way to work (an obligation that Mr Mooney himself agreed would be of concern) beyond the agreed period of up to April 2019.

However, it was the insistence by the respondent that his contract meant that he had to work for two years at that venue that caused “the significant health impacts and disruption” to his life. I accept Dr Allan’s analysis, to repeat: [67]

“The actions of his employer, through their bullying, intimidating and harassing actions, have been the predominant cause of his condition. This does not, in my opinion, relate to transfer, demotion, promotion, performance appraisal, discipline or retrenchment. It does not relate to dismissal. Put simply, he was treated poorly from the start, with a lack of training, a lack of support, a lack of clarification, and exceptionally poor communication. He was employed to be an area manager and told explicitly that temporarily, for at most a period of a few months, he would work at the Rouse Hill store. Later, it seemed, his employers had changed their minds, and he was told that he would be working there permanently, despite this clearly being a position he had no interest in taking, given that it required him to make 90-minute commutes in each direction to and from his workplace, which caused significant health impacts on himself and significant disruption to his personal life.”

[67] At [187] above.

Where the respondent’s case also fails is that it did not provide the expert medical opinion in conformance with the passage from Hamad that I cited at the outset of these reasons. The respondent, as indicated, relied on the reports of Dr George.

As I have indicated, Dr George took a consistent history, including Mr Rogers’ belief that he had been contracted to Rouse Hill in a caretaking capacity, and that he had never received any response from management on the number of occasions that he had approached it about his belief. Dr George had a history of the meeting of 6 June 2019, including Mr Mooney’s observation that Mr Rogers should resign if he was unable to fulfil his role, and the subsequent advice Mr Rogers received that there was to be a meeting about his performance and that he should bring a support person.

Dr George noted that Mr Rogers had been “devastated by what has happened,” and that he was suffering from a psychological condition. Dr George declined to offer an opinion on whether the employer’s actions with respect to discipline and transfer were the predominant or whole cause, saying that it was beyond his area of expertise.

As the facts and circumstances of this case have raised a number of potentially causative factors, I would observe that such an opinion does not assist the respondent. The case is within the category discussed in Hamad, where expert evidence is required.
In his second report of 24 March 2021, as indicated, Dr George was referred to Hamad and asked the question again. He said that the question as to whether the actions regarding discipline and transfer were causative did not apply. This opinion, too, does not assist the respondent.

Accordingly, the respondent’s solicitors tried for a third time, and Dr George wrote a third report dated 14 April 2021. He was advised that it was not necessary for him to take into account whether the actions were reasonable or not, and the solicitors accepted that he had said that actions taken regarding transfer and discipline were not the predominant cause of injury. They enquired as to what the predominant cause was.
Dr George responded that he thought he had answered this question in his first two reports. There was an evolving story and Dr George observed that the lack of transfer was “dominant” amongst the reasons why he left work. Dr George was at pains however to point out that it was the manner in which Mr Rogers was treated that was an “important element.” Dr George also said that the poor training afforded to Mr Rogers had also been “an important element” and he concluded by saying that Mr Rogers had never been made an area manager which had been the basis upon which he understood he had been employed.

This opinion also did not satisfy the requirement that expert evidence identify the whole or predominant cause of the injury. To the contrary, it demonstrated that there were a number of potentially causative factors.
I am satisfied that it was the failure by the respondent to comply with the terms of its own contract with Mr Rogers that was the predominant cause of his injury. That is not a matter that is amenable to the defence under s 11A.

Ms Warren made submissions regarding whether Mr Rogers suffers any current work capacity. She referred to clinical notes in both Sydney and Hadnall in constructing an argument that an inference was available that Mr Rogers’ condition had improved. There is
a danger in ascribing weight to the contents of clinical notes, although there is no actual prohibition from using them to draw conclusions of fact.[68] I decline to do so in this case. There was no suggestion in any of the notes that Mr Rogers’ improvement is due to any more than the effects of treatment, and there is no support that he has recovered sufficiently to enable him to work on suitable duties.

[68] See e.g. Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50.

Ms Warren also had the singular problem that her own medico-legal specialist, Dr George certified Mr Rogers as having no current work capacity as recently as 14 April this year. Dr Allan did the same in February 2019.
Accordingly, I am satisfied that Mr Rogers has suffered a psychiatric illness whilst in the employ of the respondent in circumstances that did not afford the respondent the protection provided in s 11A of the 1987 Act.

The respondent will accordingly pay Mr Rogers weekly compensation on the basis that he has had no capacity for work since 12 June 2019. I am aware that this matter has taken considerable time due to its complexity and length, and I accordingly direct the parties to bring in an agreed schedule of his entitlement.
I would add that if I am wrong in my finding, I would have no hesitation in finding that the respondent’s actions were unreasonable. I have set out in some detail the conduct of Mr Bell, Mr Mooney, Ms Bailey-Byford and Ms Toner. I found their lack of support for Mr Rogers in the difficulties he was encountering when managing the Rouse Hill store to be motivated by a desire to threaten him with performance issues in the face of compelling evidence that some of the staff were deliberately sabotaging his efforts to manage the store effectively. I accept Mr Rogers evidence about his encounter with XY[69] and the evidence of Ms Kreig[70] and I am satisfied that, from the transfer of the earlier Manager, Mr Thomas, that the problems at Rouse Hill were well-known. I would infer that the reason Mr Bell was so anxious to get a competent Manager into Rouse Hill by Christmas 2018 was in part at least because he was aware that there were staff difficulties in that store.
[69] At [37] above.
[70] At [153] above.
The actions of these managers in overriding Mr Rogers’ protests and refusing to comply with the terms of his engagement, which included removing him from the Rouse Hill store after April 2019, and which included the refusal to consider any of his applications for appointment closer to his home, were unreasonable. It was also unreasonable of Ms Bailey-Byford, Ms Toner and Mr Mooney not to respond to his email of 27 April 2019, which set out the basis on which he took the Rouse Hill position. I accept Mr Rogers’ account of the meeting of 6 June 2019. I accept that he had no formal notice that it was to involve a performance appraisal, and I accept that he was correct when he described the behaviour of Ms Toner, and indeed Ms Bailey-Byford and Mr Mooney as “harassment”. I do not accept Mr Mooney’s evidence that he did not shout at that meeting, as the evidence of Ms Kreig and Ms Truran, which I have no reason not to believe, indicates the contrary.

DECISION

The applicant suffered a psychological injury caused by his employment with the respondent.
The respondent has not satisfied its onus to establish that the injury was wholly or predominantly caused by reasonable action taken by the respondent with regard to discipline and transfer.

The applicant has had no current work capacity since 12 June 2019.

The parties will bring in Short Minutes of Order as to the weekly benefits payable as a result of these findings by 24 September 2021.

[2021] NSWPIC 361

21 September 2021