Shearer v iSelect Services Pty Ltd (ABN 87 088 749 955)
[2021] VCC 458
•5 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-04190
| GARY RAYMOND SHEARER | Plaintiff |
| v | |
| iSELECT SERVICES PTY LTD (ABN 87 088 749 955) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2, 3, 4, 5, 8, 9 and 11 February 2021 | |
DATE OF JUDGMENT: | 5 May 2021 | |
CASE MAY BE CITED AS: | Shearer v iSelect Services Pty Ltd (ABN 87 088 749 955) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 458 | |
REASONS FOR JUDGMENT
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Subject: WORKPLACE INJURY – CAUSE
Catchwords: The plaintiff was employed by the defendant, an online insurance brokerage, as a call centre salesperson, earning a base salary and commissions – he was required to reach certain ‘targets’ as to completed insurance and later energy contracts – he claims to have developed a stress-related psychological condition as a result of work pressures and targets – eventually was required to leave work suffering Major Depressive Disorder, alternatively Anxiety and Depression – whether and to what extent defendant on notice of stress and related symptoms plaintiff was suffering at various times of his employment – steps taken or failed to be taken by defendant as a response to those symptoms – whether risk of psychological injury foreseeable – nature and content of the duty of care – whether breach of that duty and whether breach causative of injury
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Goldman Sachs J B Were Services Pty Limited v Nikolich (2007) FCAFC 120; Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Taylor v Haileybury [2013] VSC 58; Wearne v State of Victoria [2017] VSC 25; Hegarty v Queensland Ambulance Service [2007] QCA 366; The Age Co Ltd v YZ (a Pseudonym) (2019) 60 VR 189
Judgment:Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Ms G B Jardine | Andropoulos & Associates |
| For the Defendant | Mr S A O’Meara QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 Mr Gary Shearer has had a wide and varied working life. He has managed various businesses, run his own catering companies, and worked in call centres and phone sales.[1]
[1]Plaintiff’s résumé – Exhibit 7 – Defendant’s Court Book (“DCB”) 305
2 Mr Shearer started work with the defendant, iSelect Services Pty Ltd (“iSelect”), in May 2010. He was off work for a year or so before that. He remained working with iSelect until June 2013, when he says he was told by management he was not meeting sales targets and protocols and to leave work on “income protection”. He claims he was unable to meet targets because of a psychological condition which arose in the course of his employment. His employment was formally terminated in 2017.[2]
[2]Exhibit H
3 Along the way, Mr Shearer has had various other issues in his life, many of them medical. In 1998, when cycling, he was struck by a car, suffering a head injury and lacerations. He was diagnosed with Post-Traumatic Stress Disorder and was off work for a number of years. He says he recovered from this incident, was able to resume a normal life and return to work.
4 In July 2010, he had a heart attack and was taken to hospital. He was off work for a week. He had no real treatment, although consulted his general practitioner. Despite him having a history of chest pain for over fifteen years, there has not been any intervention with stents or bypass surgery. He has suffered high blood pressure, requiring medication for twenty-five years. He currently suffers coronary artery disease and, at times, atrial fibrillation.
5 In April 2011, Mr Shearer’s mother died. He was close to her and grieved her passing. He was again off work for about a week but says there were no long-term significant psychological consequences. There has been conflict with his siblings.
6 Mr Shearer has had a problem with alcohol for a long time, although now abstains. He has had a number of cancer scares and was diagnosed as suffering bowel cancer in 2013. He had surgery to remove the cancer and has had six-monthly check-ups.
7 Mr Shearer suffers hoarseness of his voice with no diagnosed cause. He admits this has been a major contributor to his current mental health issues.
8 According to Mr Shearer, absent the psychological injury the subject of this claim, these issues would not have stopped him working.
9 iSelect is an insurance brokerage business. It operates online. iSelect arranges health and motor vehicle insurance, and later in Mr Shearer’s employment, the provision of or transfer to energy utilities. It employs salespeople at its Moorabbin office who take and make telephone calls to try to secure insurance and energy contracts.
10 There was considerable evidence in the trial about “outbound” and “inbound” calls. Potential customers may go to the iSelect website to research insurance and energy products. They are required to provide contact details. A databank is established, and phone operators call back in response to the online enquiry, to try to secure insurance or energy contracts. These were called outbound calls.
11 Also, potential customers may telephone the iSelect call centre enquiring about insurance or energy contracts and are connected by an operator to the relevant department to try to secure their custom. These were called inbound calls. Mr Shearer said business was more easily sourced from inbound calls with the potential for greater commissions.
12 Mr Shearer signed a Contract of Employment.[3] He was employed as a “Sales Consultant – Outbound”. The starting salary was $40,000 per year, including superannuation. This represented a significant increase in the salary he had earned in previous years. The Contract provided that he was to work a minimum of 38 hours, plus any additional hours necessary to complete his work tasks. There was no payment for overtime. The Contract further provided for the payment of performance bonuses, at the absolute discretion of iSelect, upon satisfaction of key performance criteria. Mr Shearer said he was never told what those key performance criteria were.
[3]Exhibit A
13 At the outset, his duties were to make outbound calls. He would normally get to the office by 8.00am and leave after 5.30pm. He often worked after hours and regularly on Saturdays.
14 Each month he was given a sales target. He was expected to make three-and-a-half “sales” or completed contracts per day.[4] If he achieved the target, he received bonuses (or commissions). There was little detail provided as to how those bonuses were calculated. If he failed to reach the target, no bonuses were paid.
[4]Transcript (“T”) 40 Line (“L”) 15
15 Those who worked at the iSelect call centre were divided into “bands” (or “bandings”), numbered one to five. The lowest banding, level one, had lower targets. If an employee was successful in meeting those lower targets over time, the employee was moved up a band. That meant an increase in base salary of about $5,000, and a higher commission level.
16 Mr Shearer said he loved the work and had a good relationship with his work colleagues, including his managers. He said the money was good, but he had to work hard for it.
17 When he commenced, he achieved his targets. He met with his team leaders from time to time, and sales targets and protocols were discussed.[5] He was moved to band two on 1 July 2010.[6] In early 2011, he was moved to inbound calls in respect of health insurance, which was deemed a promotion. In April 2011, he advanced to band three.[7] He said he was comfortable on band three as he was able to achieve the targets and get paid what he considered a reasonable salary and commissions. It was put to him he was demoted to band two around July 2012 before he moved to the Energy area. He denied this.[8]
[5]Known as Performance Improvement Plans
[6]Exhibit B – amendment to Employment Contract effective 1 July 2010
[7]Exhibit D – amendment to Employment Contract effective 1 April 2011
[8]A call was made for the defendant to produce any letter to the plaintiff confirming his movement from one band to another. No such letter could be produced.
18 Mr Shearer considered himself a capable and productive employee. Up to mid 2011, he had achieved all his monthly goals, save for one month. He had only one customer complaint.
19 There were a significant number of email and text communications passing between Mr Shearer and various employees of iSelect and within iSelect. They cover the period from July 2012 until the time Mr Shearer left employment in June 2013.
20 Those emails and texts refer to a number of complaints made about Mr Shearer’s interaction with customers, his deteriorating work performance including his inability to meet targets, and, most significantly, the stress he was experiencing, the symptoms he was suffering and the time he took off work as a result.
21 By June 2012, Mr Shearer said that he was very rundown and burnt out. He complained to Mr Rob Pintar, his then manager, of chest pain and undertook a stress test. He was working long hours to achieve his allocated targets. He was suffering anxiety and having panic attacks.
22 After a discussion with Mr Brett Kubik and Mr Pintar, Mr Shearer applied for a transfer into the Energy Division of iSelect around June 2012. It involved a $10,000 drop in pay but he thought it would reduce his stress levels. The incoming calls were shorter, there was less stress and there was the prospect of good commissions. Over the first few weeks the work was good and he felt “fantastic”.[9]
[9]T73, L27-29
23 The change to Energy was confirmed by an Offer of Employment dated 1 November 2012, with a commencement date of 16 July 2012.[10]
[10]Exhibit G ꟷ DCB 261
24 Mr Shearer remained on inbound calls in the Energy Division until about September 2012, when he says he was required to also make outbound calls. He said he was mainly in outbound calls. This made the work more difficult. He was not happy about this. As well, group targets and cross-referrals to other areas were introduced. Mr Shearer said his health started to deteriorate again.
25 There was a “Live Answer” department in which worked operators who answered telephone calls, like receptionists, and directed prospective customers to other areas. “Compliance” was another division which monitored phone calls to ensure the operators met iSelect protocols and sales criteria. He thought he would like to work in this area. Live Answer was not his preferred option as the work was boring and the pay poor. He says he was told by two managers there were vacancies in those areas. He applied for a position in Compliance as he had been advised to do so and because, by this time, he decided work in sales was too stressful. His application was unsuccessful. He heard “on the grape vine” there was no work in Compliance.
26 By November 2012, things were back to where they had been with stress and failure to meet work targets. He was frustrated at not being able to get out of sales. He was allocated to take calls in the health insurance area as well as Energy. He was not performing well.[11]
[11]See email, Exhibit F ꟷ pages 44-46
27 Mr Shearer was given time off work from November 2012 until 7 January 2013.
28 He applied for a job with another company, Red Energy, in December 2012. Many ex-iSelect employees worked there. He was offered the job but changed his mind and did not proceed. Instead he decided to re-commit to iSelect.
29 Mr Shearer consulted Dr Urie in December 2012. At the time he was not prescribed medication for his psychological issues nor had there been a diagnosis of a particular psychiatric illness.
30 Over the Christmas period in 2012, he said he felt confused and insecure with his job, although he felt better without the work stress. When he returned on 7 January 2013, he made a fresh start. He worked hard, including significant overtime, trying to re-establish himself in sales. However, by March 2013, his performance was “at rock bottom”. He was having panic attacks and suffering anxiety. He took some time off until after Easter.
31 After Easter, in April 2013, he was summoned to a meeting with Mr Ashley Salter and Ms Sarah Ryding. He was given no warning of the meeting. Mr Shearer was told there were concerns about his performance and they requested he see a psychiatrist, Dr Paul Kornan, for assessment. He was given further time off work until June 2013.
32 Dr Kornan diagnosed a Major Depressive Disorder but said it was related to his mother’s death. Mr Shearer disagreed with that opinion. He thought Dr Kornan was not attentive and did not discuss the work issues, but rather focused on his personal life and background. He said he had recovered from his mother’s death and had only a week off work.
33 Mr Shearer consulted Dr Urie, was prescribed Aropax and Valium and was sent to a psychologist, Ms Evelyne Dubois, whom he had seen previously with the Transport Accident Commission claim.
34 Upon his return to work in June 2013, Mr Shearer was reduced to banding one, and new sales expectations were set.[12] These included seventeen sales per day with 40 per cent outbound conversion. He said those expectations were impossible to meet and were never achievable. He disagreed with an email that said he was comfortable with those expectations.[13] Mr Shearer said he was not eased back slowly into the sales work. His work hours were restricted to two days the first week, three the second and four days per week thereafter.[14]
[12]Exhibit F at page 61 – the date of the email is said to be “6/4/2013” – however, it is clear it is 4 June 2013
[13]Exhibit F at page 63
[14]Exhibit F at page 63
35 Mr Shearer was summoned to a meeting with Mr Salter and a representative of the HR Department. He was only just back at work. They told him that they had listened to his recent calls with customers and that his performance was not up to standard. They suggested he leave work on “income protection”. He was devastated and left the premises. They did not ask him how he felt, given he had been off work. On the way home he stopped at the beach and considered suicide. He did not return to iSelect.
36 Mr Shearer made a WorkCover claim, which was accepted. He made a claim on an income protection insurance policy, which was also accepted.
37 In March 2016, he obtained another job with a similar online company, Members Own Health Fund. He knew people who worked there and was employed to set up its compliance department. On medical advice, he only worked twelve hours a week. There were no sales, and no targets. He was able to cope with the work. He worked on as a casual until 2018. By that time, the volume of the work had increased, and a full-time person was needed. He did not have medical clearance to work full time.
38 Mr Shearer was treated by Dr Urie and the psychologist, Ms Dubois. He continued treatment with her until 2019, when insurance funding was cut.
39 Mr Shearer ceased drinking in June 2019. He still smokes. His doctors suggest he should only work eight to twelve hours a week.
40 Mr Shearer described his memory and concentration as “shot”. He suffers a lot of anxiety and finds it difficult to go to places where there are a lot of people. He does not leave his apartment very much.
41 Mr Shearer sees only four or five friends and does not feel comfortable at social gatherings. He is embarrassed about losing his job. His self-esteem and confidence are low. He used to be outgoing and the life of a party.
42 His sleep is poor and his mood variable. He does not get much happiness nor enjoyment from life. He has taken up painting, which helps.
43 Mr Shearer has looked for jobs on LinkedIn and Seek. He wants to work but it is hard to find a job at his age, with his disabilities and on reduced hours. He thinks things will improve when this Court case is over.
44 If his mental health had been okay, he anticipates he would have worked to about seventy years of age.
45 The hoarseness of his voice, for which the doctors have not been able to find a cause, is a major contributor to his mental health. He previously had a deep resonant voice. The hoarseness is getting worse.
The issues to be determined
46 Having consulted with counsel, the issues to be considered and determined in this trial are:
(a) The reliability and credibility of the plaintiff’s evidence;
(b) To what extent was the defendant on notice of the plaintiff’s stress and stress-related symptoms in the periods:
(i) June to October 2012;
(ii) November 2012; and
(iii) 2013?
(c) What were the steps taken by the defendant, in each period, in response to the plaintiff’s complaints/symptoms, and what additional or better steps does the plaintiff say should have been taken to reduce the risk of psychological injury in each period?
(d) What was the scope of the duty owed by iSelect to Mr Shearer and was it reasonably foreseeable to the defendant that the plaintiff was at risk of recognised psychiatric injury in the periods referred to?
(e) If the risk of psychological injury was reasonably foreseeable, what did reasonable care require the defendant to do (if anything) in each of the periods, and was there a breach by the defendant of the duty of care?
(f) Was any such breach a cause of any and, if so, what injury to the plaintiff?
(g) If there was a breach of duty, was there contributory negligence on the part of the plaintiff, which was also a cause of his injury and, if so, to what extent?
(h) If there was a breach of the duty, what was the state of the plaintiff’s mental and physical health:
(i) prior to employment with the defendant in 2010; and
(ii) in the course of and since such employment?
(i) Was the plaintiff vulnerable or susceptible to psychiatric ill-health and what was the extent of such contribution or that susceptibility (if any) to the plaintiff’s psychological symptoms and incapacity?
(j) If there was a breach of duty that was a cause of injury to the plaintiff, in what sum is it appropriate to assess:
(i) general damages; and
(ii) economic loss damages?
47 To the extent relevant, this Judgment will address these issues.
Reliability and credibility of the Plaintiff’s evidence
48 Mr O’Meara, for the defendant, said I should have reservations about the reliability of the plaintiff’s evidence as there was a “strong self-narrative” involved. It was not suggested that the plaintiff was being intentionally dishonest, but rather, with the effluxion of time, the gaps in his memory were filled by a narrative which he honestly believed and which fitted his view of his treatment by those at iSelect. Mr O’Meara submitted more reliance should be placed on contemporaneous documents, including the emails and SMS messages, which more accurately reflected the work situation at various times.
49 Mr O’Meara noted examples of the unreliability of the plaintiff’s evidence.[15]
[15]Defendant’s Submissions, paragraph 9
50 Mr Brett, for the plaintiff, submitted I should accept Mr Shearer as a truthful and credible witness. He noted Mr Shearer made many admissions against his interest in cross-examination and was regularly complimentary about the defendant, its employees and particularly his managers.
51 Generally, I found Mr Shearer a credible witness giving a reasonable account of his employment with iSelect and the psychological symptoms he has suffered. There were no major credit issues such as to cause me to reject his evidence. Those issues referred to by the defendant were relatively minor and can be explained by the effect of time upon memory, rather than any intention to give false or exaggerated evidence.
52 However, there is some merit in Mr O’Meara’s submission of Mr Shearer’s self-narrative. His evidence as to the events which occurred in the course of his employment was more a reflection of his view that the psychological injury suffered was due to the failure by iSelect to take reasonable steps for his welfare, rather than an accurate recollection of what occurred. He was loquacious and expansive at times.
53 In any event, the emails and SMS messages which passed, and other relevant documentation, including medical clinical notes, give a picture of the duties Mr Shearer undertook, the stress he was under and the steps taken by iSelect in that regard. While Mr Shearer’s evidence is significant, it is not crucial to the determination of all issues.
54 The defendant called no viva voce evidence in response to Mr Shearer’s contentions. It relied upon that documentary evidence.
Was the Defendant on notice?
(a) Before mid 2012
55 There is reference in the emails to Mr Shearer suffering some health issues, including flu-like symptoms, and in August 2011, to some time away from work. Further, some emails refer to concerns on the part of iSelect to Mr Shearer’s conversion rate.
56 However, there is no reference to any stress or psychological-type symptoms and no complaint by Mr Shearer of any inability to make conversions or meet targets as a result.
57 Mr Brett does not suggest iSelect was on notice of stress or stress-like symptoms until mid 2012.
(b) Mid 2012
58 On 18 June 2012, Mr Shearer notified Mr Pintar that, as a result of chest pains, he was sent by his doctor for scans. He had a few days off work. There was nothing to suggest at the time this was stress related.
59 It was clear from an email from Mr Kubik to Ms Michelle Cooper dated 10 July 2012[16] that Mr Shearer had informed iSelect that he was suffering from stress which was said to be “getting too much for him”. There was further reference to stress attacks and shingles. In an email of 10 July 2012, Ms Tasman Broekman-Dattner advised Ms Cooper that Mr Shearer had said:
“‘… the stress build up and up and then it feels like you’re just going to break (or explode) …’”.[17]
[16]Said to be sent 7 October 2012, although it is clear by reference of “TUE” that the send date was 10 July 2012, exhibit F at page 20
[17]Exhibit F at page 20
60 On the same day, Ms Broekman-Dattner emailed Mr Shearer:
“… Take whatever time you need … We don’t want you under so much pressure … We really don’t want you pushing yourself for sales targets when you’re feeling this way.
So take it easy, have a rest and when you’re ready come back get a doctors certificate to say your health is ok and let us know … .”[18]
[18]Exhibit F at page 21
61 A further email from Ms Broekman-Dattner to Mr Kubik and Ms Cooper of 10 July 2012[19] confirmed knowledge as to Mr Shearer’s stress levels. That email included an SMS sent by Mr Shearer.
[19]Exhibit F at page 22
62 In response, Ms Broekman-Dattner suggested Mr Shearer “Rest up, take it easy”.[20] In an email of 11 July 2012,[21] Mr Shearer said he wanted a change in environment and expressed an interest in “utilities”.
[20]Exhibit F at page 23
[21]Exhibit F at page 23
63 Mr Shearer had a meeting with Mr Kubik before returning to work.[22] He said he appreciated Mr Pintar’s support in the move to the Energy Division, which took place on 18 July 2012. While in Energy, he described his manager as supportive,[23] he felt “fantastic” with the move,[24] and his stress levels dropped immediately.[25] He found the work easier.[26]
[22]T72, L5 and L8
[23]T72, L27
[24]T73, L27
[25]T74, L13
[26]T75, L11
(c) November 2012
64 Mr Shearer worked on inbound calls in Energy until around September 2012.[27] At about that time, because there was a lot more incoming work, he was directed to undertake outbound calls as well as inbound calls.[28] He says he was mostly handling outbound calls, and was not happy.[29] Further, he claims a new target system and commission structure was brought in.
[27]T75, L13
[28]T75 L28
[29]T76, L8 and 19
65 In an SMS dated 7 November 2012 to Mr Marc Jaffe, Mr Shearer said that he was not great, “in fact probably a bit worse”,[30] with high blood pressure and chest pain. In an email dated 7 November 2012,[31] Mr Ashley-Mathieu Frenken advised Mr Nathan Kelly and Mr Steve Tassone that Mr Shearer had converted only three sales from fifty-one “leads”. It noted it would be preferable for other employees to get access to the leads. The email asked “do we persist with Gary making health sales?”[32] Mr Shearer accepted he was not performing well and that his conversion rate was “ludicrously low”.[33]
[30]Exhibit F at page 40
[31]Exhibit F at page 39
[32]Exhibit F at page 39
[33]T87, L14
66 In November 2012, Mr Shearer was granted extended leave. He was off work until January the next year. In an email dated 28 November 2012,[34] Mr Bates advised Ms Ryding that Mr Shearer had “health issues in the past (heart problems)” and that his doctor had suggested he get away from the stress which comes with a sales role. Mr Bates noted he had suggested Mr Shearer apply for a role in Compliance, but that there were no positions available. Mr Bates suggested Mr Shearer be moved out of sales if possible. Mr Bates sought advice as to whether there was anything in “the legislation”[35] which meant iSelect needed to be careful about a consultant who had advised he had medical advice that he was not suited to a role in sales. Further, Mr Bates enquired whether there were any other roles available. Mr Shearer confirmed that he had had discussions with Mr Bates about a role in Compliance.[36] He said he discussed this also with Mr Salter. Mr Shearer gave evidence that he had a conversation with Mr Salter in November 2012 before he took leave.[37] He conceded it may have been later, in February 2013.[38]
[34]Exhibit F at page 44
[35]Exhibit F at page 44
[36]T88, L26
[37]T224, L2
[38]T234, L24
67 In an email of 29 November 2012, Ms Ryding advised Ms Elise Morris that, because of his heart condition, Mr Shearer’s doctor had recommended a change of roles. It was noted there were no vacancies in iSelect in a non-sales role.
68 There is a detailed email from Mr Shearer to Mr Bates and Mr Tassone of 30 November 2012, where Mr Shearer stipulates “this is confirmed by my Doctor who also has concerns that the stress it s (sic) causing me not only medically but also mentally is placing me borderline depressive”.[39] Mr Shearer referred to his poor performance. He thought sales were no longer appropriate because of the pressure he felt he was under, which caused him a great deal of stress. He said he was suffering from burnout, as had others in iSelect, and sought a less stressful role. He said he wanted to remain at iSelect.
[39]Plaintiff’s Court Book (“PCB”) 115
69 In an SMS to Ms Tenille Petrini, Mr Shearer said that the job had “pushed me to my limit”.[40] In an email to Mr Pintar of 14 December 2012, he asked whether he could return to “team Pintar”.[41]
[40]Exhibit F at pages 50-51
[41]Exhibit F at page 52
(d) 2013
70 Mr Shearer returned to work in the Energy Division on 7 January 2013. He said he spoke to Mr Bates and explained he was not coping well and apologised for his underperformance.[42]
[42]T96, L2
71 In January 2013, he did not meet his targets.[43] In February 2013, he worked a lot of overtime.[44] In March 2013, Mr Shearer’s conversion rate was not as good as others.[45] By March 2013, his performance was “rock bottom”.[46] He was having panic attacks at work and had to go outside.[47]
[43]T236, L26
[44]Exhibit 6 at page 17
[45]Exhibit F at page 58
[46]T98, L5
[47]T98, L11
72 By an email of 22 March 2013, Mr Tassone told Mr Luke Speers that he “flew off the handle” with Mr Shearer. He said:
“I have serious concerns around his health, and had I have come down too hard – I am worried as to how he would have dealt with it.”[48]
[48]Exhibit F at page 59
73 This email related to a complaint made by a customer against Mr Shearer. In a meeting with Mr Tassone where Mr Shearer said he was stressed and burnt out,[49] it was suggested he take the rest of the week off. He stayed off work until after Easter.
[49]T99, L22
74 In a text message dated 22 April 2013, Mr Shearer told Mr Salter he was looking forward to seeing his doctor and psychologist to get everything “sorted out”.[50] A week after returning to work after Easter, Mr Shearer had a meeting with Mr Salter and Ms Ryding, where they suggested he see Dr Kornan, a psychiatrist, for an assessment. He said they were concerned about his performance. He was again granted leave off work from April until June 2013. He returned after consulting his own doctor.
[50]Exhibit 21
75 Shortly before returning to work, Mr Shearer had a meeting with Mr Salter, and told him he was feeling fine. “It was mainly about expectations.”[51] By email sent by Mr Jaffe to Mr Salter, headed “expectations for Gary”, there were various sales targets set out.[52] Mr Shearer said these targets were the worst he could have imagined and the highest he had ever seen.[53]
[51]T105, L21
[52]Exhibit F at page 61
[53]T106-107
76 According to an email from Mr Salter to Mr Jaffe dated 5 June 2013,[54] it was said that Mr Shearer was comfortable with these expectations. Mr Shearer denied this to be the case.
[54]Exhibit F at page 63
Steps taken or that should have been taken
77 No issue arises in relation to the period before August 2012.[55]
[55]Plaintiff’s written submissions – paragraph 3(a), (b)
78 Further, Mr Brett accepted the defendant was under no obligation to take any steps in relation to Mr Shearer’s complaints of stress, or stress-like symptoms around mid 2012. Although there were stress-related complaints from July 2012, Mr Brett accepted that the transfer to Energy, handling inbound calls, was reasonable in the circumstances.[56]
[56]Plaintiff’s written submissions – paragraph 3(d)
79 On a number of occasions, the defendant readily gave the plaintiff significant time away from work. This included from late November 2012 until 7 January 2013,[57] for a period before and including Easter 2013, and then from April to June 2013. Various emails refer to his managers suggesting Mr Shearer take as much time off as was necessary and that he return when he and his doctors deemed it appropriate.
[57]The plaintiff accepts this was reasonable – written submissions paragraph 4
80 In April 2013, and as a result of symptoms Mr Shearer was suffering, the defendant arranged for him to be examined by Dr Kornan for psychological assessment[58] and sought the opinion of Dr Urie.
[58]Exhibit 19
81 Mr Shearer consulted with his various managers, in particular Mr Pintar and Mr Salter, from time to time. In November 2012, Mr Shearer was actively seeking a transfer to Compliance, and possibly Live Answer, and discussed this with Mr Salter and Mr Bates. Mr Bates suggested he apply for Compliance, which he did. As things transpired, there were no positions available.
82 The plaintiff contends that around November 2012, having made it clear to those at iSelect that the transfer to Energy was as a result of the psychological symptoms, including the stress he was under, the defendant imposed or reimposed sales targets, including daily targets and group targets, which were difficult to attain and placed him under considerable additional pressure. Further, there was introduced a requirement for “cross-referrals” which required all sales people, regardless of department, upon successful completion of a sale, to offer to refer a customer to another area.[59] Mr Brett said given the plaintiff’s history of complaints to that point, the introduction of those targets was inappropriate.
[59]T80-81
83 Upon his return to work in January 2013, Mr Shearer resumed the same duties he had undertaken in the latter part of 2012; that is, in Energy, handling inbound and outbound calls with the targets referred to. His performance continued to deteriorate. He was given less inbound calls.[60] The report of Dr Kornan, psychiatrist, of May 2013 diagnosed Mr Shearer as suffering a Major Depressive Disorder, although determined the major contributing factor as being the death of his mother some years earlier.
[60]Exhibit F at page 58
84 In May 2013, Dr Urie diagnosed Mr Shearer as suffering from Depression and Anxiety. She said his long hours of work, lack of downtime, deadlines and stress of achieving targets were the causes. By May 2013, she noted Mr Shearer was improving and that he could return to work in a graduated manner, two days for the first week, three days the following week and four days the third week, depending upon how he managed the return to work. She thought he would benefit from reduced hours. She thought the only modification to his duties was to limit his work time.
85 Subsequent to this, on 4 June 2013, new targets were imposed.[61]
[61]Exhibit F at page 61
86 In summary, Mr Brett contends the defendant ought:
(a) to have allowed Mr Shearer to remain in Energy on inbound calls without sales targets;
(b) to have facilitated a transfer to Compliance or Live Answer;
(c) to have consulted with Mr Shearer and given him sales targets which were reasonable and achievable in September 2012 through to June 2013 and which did not include daily sales and group targets and cross-referrals;
(d) to have followed the advice of Dr Urie in June 2013 and reduced the hours Mr Shearer worked.
(a) Remain on inbound calls in Energy
87 When transferred to Energy on inbound calls, Mr Shearer said he felt his stress “dropped immensely”.[62] Had he remained there, he says his mental health would have improved[63] and he said it was a lot easier to cope.[64] Mr Brett claims he should have remained in that role.
[62]T74, L13
[63]T74, L17
[64]T75, L12
(b) Transfer to Compliance or Live Answer
88 By email dated 28 November 2012, Mr Bates told Ms Ryding that he had been advised Compliance positions had “been put on hold at this stage”.[65] Further, by email from Ms Ryding to Ms Morris dated 29 November 2012, it was noted there had been no medical certificates received from Mr Shearer’s doctors and “currently there aren’t any vacancies within iSelect for a non-sales role that would be suitable”.[66]
[65]Exhibit F at page 44
[66]PCB 114
89 Mr Shearer said he was advised twice by Mr Bates, the sales manager of General Insurance and Energy, and by Mr Salter, that there was a vacancy in Compliance.[67] However, by email of 28 November 2012,[68] Mr Bates advised Ms Ryding that he had been told “that the compliance positions had been put on hold at this stage”. This is confirmed by another email dated 29 November 2012 from Ms Ryding to Ms Morris.[69]
[67]T83, L25
[68]Exhibit F at page 44
[69]Exhibit F at page 45
90 By email dated 30 November 2012, Mr Shearer advised Mr Bates (copying in Mr Tassone, the general manager) that sales were no longer his “forte” as the pressure he felt he was under was causing him stress.[70] He said his doctor considered him “borderline depressive”. He said he was looking for a less stressful role but remained loyal to the company.
(c)Consultation on, and provision of, reasonable targets in September 2012 through to June 2013
[70]Exhibit F at page 46-7; T90, L6
91 In the various Contracts of Employment signed by the parties, there was reference to “performance bonus” and “performance pay”. In the initial Contract of Employment,[71] it was said:
“6. PERFORMANCE BONUS
In addition to your remuneration set out above, iSelect Health may, in its sole and absolute discretion, pay you an agreed performance bonus upon satisfaction of key performance criteria agreed between you and iSelect.”[72]
[71]Exhibit E
[72]DCB 225
92 In a further “Offer of Employment” dated 30 June 2011,[73] the following appeared:
“Performance Pay
In addition, you will be eligible to participate in iSelect’s performance-based commission scheme as varied from time to time. Any scheme operated by iSelect from time to time pursuant to this clause or otherwise is a discretionary benefit and is not (and not intended to be) a guaranteed contractual term of this agreement. Payment of any commission to you under any such scheme therefore is always at the sole discretion of iSelect, and subject to the achievement by you of agreed KPIs which will be determined in consultation with you after the commencement of your employment, at the discretion of iSelect. Full details of the commission plan will be made available to you upon commencement.”[74]
[73]Exhibit A
[74]DCB 254
93 In Mr Shearer’s final “Offer of Employment” dated 1 November 2012[75] contained a “Performance Pay” clause in the same terms[76]
[75]Exhibit G
[76]DCB 262
94 The plaintiff contends that the reference in these clauses to “agreed KPIs” indicates there ought to have been consultation with Mr Shearer in respect of his KPIs, commissions and targets.
95 The clauses referred to are unclear as to what is to be consulted upon. The “scheme” as to performance-based commission entitlement is said to be a “discretionary benefit” and not a “contractual term”. Payment of commission is “always at the sole discretion of iSelect” as well as being subject to achievement of the KPIs. The agreement as to KPIs is said to be “at the discretion of iSelect”. There is nothing to indicate what the KPIs are or how they give rise to a commission. The clause is difficult to interpret at best and meaningless at worst. If anything, the consultation to be undertaken as to KPIs is a statement of aspiration rather than as one that could be said to be contractually binding.[77] I am not satisfied this clause required iSelect, either as a term of its Contract of Employment with Mr Shearer, or required, as a component of the duty of care it owed him, to consult him as to the targets he was to achieve or the commission he was to be paid.
[77]Goldman Sachs J B Were Services Pty Limited v Nikolich (2007) FCAFC 120
96 It was, and had been since the commencement of Mr Shearer’s employment, a matter for iSelect as employer to set the targets and commissions it saw as appropriate for the tasks at hand. If Mr Shearer was not satisfied with the remuneration, commissions, or targets, he could not be forced to continue with the work. He could look elsewhere for employment, as indeed he did in December 2012.
97 Around September 2012, there was an increase in business, as a result of which there were more outbound calls.[78] It was deemed appropriate to allow the best salespeople at iSelect to take the inbound calls. Mr Shearer found himself doing mostly outbound calls. In addition, around this time, the new “target system and commission structure” was imposed.[79]
[78]T75, L20
[79]T75, L25
98 There were daily targets introduced which Mr Shearer said were difficult to achieve. Monthly targets were easier to control. Further, group targets were introduced. A group of employees had to meet a certain target. It was not within his control but depended on other members of the group. Further, “cross-referrals” were brought in around September 2012. This required salespeople, upon the completion of a successful sale, to suggest the customer be referred to another area such as health insurance. While most salespeople would have made that cross-referral in any event, this also involved targets. There was no evidence to suggest these measures were targeted at Mr Shearer alone.
99 Nor was there evidence as to what these daily, group or cross-reference targets were, and what difference that made to Mr Shearer achieving sales and to his health. The defendant disputes daily targets were imposed.[80]
[80]Defendant’s submissions – paragraphs 86-89
100 As a result of the imposition of these changes, Mr Shearer said his health began to deteriorate again.[81] By November 2012, his health was back to where it had been earlier in July.[82]
[81]T79, L21
[82]T85, L12
(d) Follow medical advice
101 iSelect arranged for Mr Shearer to be examined by Dr Kornan, psychiatrist, who examined him on 10 May 2013. The letter to Mr Shearer confirming the appointment[83] noted iSelect required a psychological assessment from his general practitioner and an independent psychological assessment, from Dr Kornan. The letter said iSelect was “concerned about your welfare”.
[83]Exhibit 19 – the letter from iSelect to the plaintiff dated 11 April 2013 confirms an appointment with Dr Kornan on 3 May 2013; however, Dr Kornan did not examine the plaintiff until 10 May 2013
102 In the history provided to Dr Kornan, Mr Shearer said that he felt his performance with iSelect had suffered over the previous twelve months. He was short with the customers and had trouble focusing.
103 Dr Kornan diagnosed a Major Depressive Disorder of moderate intensity. He said there were symptoms of irritability, anxiety, lack of concentration and insomnia. Mr Shearer said he felt in a “black hole situation”. He was distancing himself from friends. Dr Kornan considered it was the death of Mr Shearer’s mother two years before which was the major contributing factor to the depressive illness. He recommended treatment from his general practitioner, including antidepressant medication. He thought it would take four to six weeks for the medication to work effectively.
104 Dr Kornan noted there were other emotional losses in Mr Shearer’s life, including the death of a colleague and friends. When asked whether Mr Shearer should return to work, Dr Kornan said a decision in that regard should be made over the next few weeks, depending upon the outcome of treatment with antidepressants. He thought Mr Shearer should be able to return to work full time within a short period. He suggested a joint discussion between himself and iSelect in that regard. He said, perhaps, a return to work four days with Wednesdays off, with a return to full-time work when the depression lifted. He noted most people with a major depressive illness made a full recovery.
105 There is no reference in Dr Kornan’s report, other than as above, to any restriction as to areas of employment, sales targets or non-sales roles.
106 Dr Kornan’s report would presumably have been received by iSelect some time in mid May, only a relatively short time before Mr Shearer’s work ended.
107 Dr Urie provided a number of reports.[84] The earlier reports were concerned with the Post-Traumatic Stress Disorder suffered by Mr Shearer after the 1998 transport accident.
[84]Exhibit 2
108 Dr Urie provided a further report to iSelect dated 21 May 2013.[85] The report was sent in response to a request from iSelect. She said she had delayed writing for several weeks to determine how Mr Shearer would respond to treatment. She said:
“He is now improving and will soon be fit to return to work, although I have advised him that it would be best if he returned in a graduated manner - 2 days the first week, 3 days the following week and 4 days the 3rd week, depending on how he manages.”[86]
[85]Exhibit K
[86]DCB 272
109 Dr Urie diagnosed Mr Shearer as suffering Depression and Anxiety, the cause of which was working long hours, “lack of down time, deadlines and the stress of achieving the goals and benchmarks which have been set by his employer”.[87] She noted he was recovering and should return to full-time work in the foreseeable future. She noted Mr Shearer had been taking antidepressant medication over a number of weeks which was reducing his anxiety and depressive symptoms. She said he should be ready to return to work within two weeks on a graduated basis. She concluded that Mr Shearer was unlikely to suffer any permanent disability as a result of his work-related condition.
[87]DCB 272
110 After receiving this report, Ms Ryding, iSelect’s HR manager, wrote to Mr Shearer on 28 May 2013.[88] The letter said:
[88]Exhibit 20
“As outlined in the medical report received from your treating doctor, Ms Cathie Urie, you are currently unfit to return to work. Your Doctor provided a timeframe of approximately 2 weeks, from 21 May 2013, until you will be fit to return to work. Given this, we wish to advise you of the following:
·As of today, you will commence personal leave
·A certificate of clearance from your doctor will be required when you are fit to work
·iSelect will support your doctor’s recommendation to return gradually, from 2 days per week, increasing to a maximum of 4 days per week, working four pre-illness duties.
… .” [89]
[89]DCB 275
111 Some time later, in a later letter of 7 July 2015, Dr Urie noted Mr Shearer’s anxiety and depressive illness had been severe and prolonged. However, Dr Urie thought Mr Shearer was ready to return to work but should not return to the pressure of a sale consultant’s position. She suggested a return to work on a graduated basis.
112 In the course of her viva voce evidence, Dr Urie said other practitioners at the clinic at which she worked saw Mr Shearer on a number of occasions.[90] There was an episode of July 2012 when Mr Shearer was said to be stressed at work. However, he got over that episode. He was off work for a short time around July 2012, but it was for a skin disorder and not work related.[91]
[90]T353, L2
[91]T328
113 Dr Urie saw Mr Shearer around September 2012 for referral to a dermatologist. She could not recall any conversation with Mr Shearer about his inability to manage his workload.[92] According to Dr Urie’s clinical notes, it was not until 30 April 2013 that there was a consultation solely related to problems he was having at work, although she thought she had seen him for other issues in the previous four months and had spoken about work.[93] It was not until 30 April 2013 that there was a consultation about him being depressed for the previous twelve months. That was the first time Dr Urie had made any formal diagnosis in relation to Mr Shearer’s psychological condition, the first time a mental health treatment plan was formed and medication prescribed.[94] She referred him to a psychologist and provided a certificate for five weeks off work, to coincide with him being suspended from work on full pay.
[92]T328
[93]T329, L21
[94]T330
114 Dr Urie approved a return to work program to commence from 5 June 2013.[95] She then consulted Mr Shearer on 17 June 2013, where she noted the return to work plan had been unsuccessful.
[95]T335, L8
115 The evidence of Dr Urie is significant in my view. Despite she, and other doctors in her practice seeing Mr Shearer over the period from July 2012 until April 2013, it was not until that later date that any formal diagnosis as to his psychological condition was made, a mental health treatment plan prepared and medication prescribed. Even then, it was not until the report of 21 May 2013, sent at the request of iSelect, that there was any medical advice provided by her to iSelect about Mr Shearer’s stress and stress-related symptoms, and how they should be managed. She had delayed sending the report, she said, as she was waiting for his response to treatment. She said he was improving and would soon be fit to return to work on a graduated basis. It is clear iSelect complied with Dr Urie’s advice.
Scope of the duty and foreseeability
116 It is convenient to consider the scope of the duty of care owed by iSelect as Mr Shearer’s employer with the question of whether the risk of psychological injury was foreseeable in the circumstances that existed.
117 In this context, the High Court in Koehler v Cerebos (Australia) Limited,[96] said:
“… The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions … .
… At least the following questions are raised by the contention that an employer’s duty may require the employer to modify the employee’s work. Is an employer bound to engage additional workers to help a distressed employee? If a contract of employment stipulates the work which an employee is to be paid to do, may the employee’s pay be reduced if the employee’s work is reduced in order to avoid the risk of psychiatric injury? What is the employer to do if the employee does not wish to vary the contract of employment? Do different questions arise in cases where an employee’s duties are fixed in a contract of employment from those that arise where an employee’s duties can be varied by mutual agreement or at the will of the employer? If an employee is known to be at risk of psychiatric injury, may the employer dismiss the employee rather than continue to run that risk? Would dismissing the employee contravene general anti-discrimination legislation?
No doubt other questions may arise. It is, however, neither necessary nor appropriate to attempt to identify all of the questions that could arise or to attempt to provide universal answers to them. What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.”[97]
[96](2005) 222 CLR 44 (“Koehler”)
[97]Koehler at paragraphs [221]-[222]
118 To these questions posed by the High Court, I would add, relevant to this case, the following – if there were no suitable positions available outside sales, should iSelect terminate Mr Shearer as a response to a risk that complaints of stress may lead to a psychological illness? Or reduce his duties and hours, construct an artificial position or grant him special favours which may affect his ability to earn and affect the regard in which he was held by managers or other employees? And what of the employee, like Mr Shearer, who wants to keep working in a job he enjoys and has committed to the role?
119 Further in Koehler:
“It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner’s conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.”[98]
[98]Koehler at paragraph [34]
120 Other Victorian decisions since Koehler have emphasised that reasonable foreseeability of psychological injury to the particular employee alone is not sufficient to enliven the duty of care. While notice in the employer of the signs that an employee cannot carry out work activities is important, the vagaries and risks of psychological injury make it uncertain that any steps taken are likely to avoid that risk. Further, the private nature of psychological illness and the complexities involved in knowing how and when to intervene may make it difficult for an employer to take effective steps to discharge its duty.[99]
[99]Johnson v Box Hill Institute of TAFE [2014] VSC 626 at paragraph [406]; Taylor v Haileybury [2013] VSC 58 at paragraph [116]; The Age Co Ltd v YZ (a pseudonym) 2019 60 VR 189; Wearne v State of Victoria [2017] VSC 25
121 Keane JA, in Hegarty v Queensland Ambulance Service,[100] noted that litigious hindsight ought not be used to prescribe an “absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations”.[101]
[100][2007] QCA 366 at paragraph [47]
[101](Supra) at paragraph [47]
122 The authorities make it clear it is important to consider the complaints made by Mr Shearer to various employees at iSelect about the stress and stress-like symptoms he was suffering. It is also important to consider the steps taken by iSelect in response to those complaints. However, it is one thing to be aware of stress-related complaints and symptoms by an employee, and another to foresee that if that employee continues to undertake the same duties, even those which might be said to give rise to stress, such as achieving sales targets, they would be likely to lead to a diagnoseable psychological illness. That is particularly so when steps are taken to assist that employee, including the provision of extended leave and support from managers.
123 Although Mr Shearer had consulted with Dr Urie in April, May and June 2012 about long hours, and stress of work in July 2012, including difficulties meeting targets, there were no further consultations until December 2012, when Mr Shearer was off work as a result of being stressed and burnt out.[102] There were no medical restrictions suggested or imposed by Dr Urie or others at her practice in 2012, and no communication by her or other medical practitioners to iSelect.
[102]Exhibit K – DCB 441
124 In July 2012, Mr Shearer complained to his managers of the build-up of stress in meeting his work obligations, including sales targets. It was noted he was working long hours; however, iSelect’s response was to give him some short time off work and then to transfer him to Energy. According to Ms Broekman-Dattner’s email of 10 July 2012, it was made clear it was not expected Mr Shearer be placed under stress or pressure and that he should come back to work when his health was okay. He was told to rest up, take it easy and obtain medical clearance to work again. Mr Shearer thanked Ms Broekman-Dattner for her support.
125 Mr Shearer was undoubtedly pleased about the move to Energy and enjoyed the work there.
126 Mr Shearer, from an early time, was well aware of the sales targets which were expected of him. Throughout his work in the various divisions of iSelect, it was clear his salary was on a base level, with commissions upon achievement of sales targets. It was part of his job to meet sales targets in whichever of the ingoing or outgoing call areas iSelect determined.
127 Around the middle of 2012, I am not satisfied it was foreseeable to iSelect that, with the duties Mr Shearer was undertaking, and the complaints of stress he made, that he was at risk of psychiatric injury.
128 The fact that around July 2012, Mr Shearer complained of stress and pressure as a result of his work duties, does not, of itself, mean it was reasonably foreseeable later that year, around September or November 2012, he was at risk of suffering psychiatric injury or illness. He was back at work in Energy and was meeting his targets up until October 2012.[103] Around September 2012, he and other sales employees were assigned outbound calls as well as inbound calls. The reason for this was because of an increase in the work coming into iSelect. The targets changed, including daily targets, group targets and cross-referrals, but there is no evidence to suggest particular targets were directed at Mr Shearer alone. The targets he was expected to meet would appear to be similar to those expected of others working in sales.[104]
[103]T212-3
[104]Exhibit 6 at pages 8-10, 18 and 24
129 By 6 November 2012, Mr Shearer’s sales figures were poor. It was considered that others, presumably with a better conversion rate, gain access to the leads. Mr Shearer notified iSelect that he was having chest problems and blood pressure. Mr Bates noted that in discussion with Mr Shearer, his doctor had suggested he get away from the stress that came with the sales role. That was sufficient to prompt Mr Bates to enquire about a role for Mr Shearer outside Sales, including in Compliance.
130 Emails passed between Mr Bates, Ms Ryding and Ms Morris in late November 2012. It was noted Mr Shearer’s performance in Energy at that time was average and it would be preferred he be moved out of the role. Emails noted Mr Shearer was on leave, that no medical certificates nor correspondence had been received from his doctor and that there were no vacancies for a non-sales role within iSelect, including in Compliance.
131 iSelect’s response to these complaints was to grant Mr Shearer further leave. He remained off work until 7 January 2013.
132 By email of 30 November 2012, Mr Shearer, in response to communication about his poor performance, concluded that he should not return to work in Sales because of the pressure and the stress it caused. He said he was suffering from burnout and wanted to find a less stressful role. Notwithstanding, he said he was a loyal employee and expressed a desire to remain working for iSelect. Interestingly, in December 2012, he applied for work at another similar company, was accepted as an employee, but determined to recommit to iSelect.
133 I am of the view that by approximately November 2012, it was reasonably foreseeable to an employer in the position of iSelect that Mr Shearer was at risk of suffering a psychological illness. He had made complaints about stress and stress-like symptoms around July 2012, although those matters had been addressed by his transfer to Energy. By 7 November 2012, his sales or “conversion rate” was very low and Mr Bates had been informed by Mr Shearer that his doctor had suggested he should move away from the stress that a sales role entailed. As a result, it was suggested he should look for a role in Compliance. Mr Bates said that “we need to be careful regarding a consultant that has voluntarily told us that he has had medical advice suggesting he is unsuited to the role”.[105] All of this was confirmed in an email by Mr Shearer to Mr Bates and Mr Tassone on 30 November 2012.[106]
[105]Exhibit F at page 44
[106]Exhibit F at page 46
134 At this point, those at iSelect were being told not only of Mr Shearer’s poor sales achievements, but also of the pressure he felt from attempting to achieve sales targets, the stress that led to, and that he consulted his doctor, who had suggested he was “borderline depressive” and was suffering burnout.
135 In all of these circumstances, it must have been apparent that there was a risk that was not farfetched nor fanciful that his work duties could lead to a diagnosable psychological injury.
136 Mr Shearer returned to work on 7 January 2013. He said it was great to be back at work and to make a fresh start. He said he would “give it everything you’ve got”.[107]
[107]T97, L10
137 However, by March 2013, concerns were again expressed about Mr Shearer’s work performance. Mr Shearer accepted that his performance was rock bottom. He was feeling as bad as he had in November 2012, with panic attacks, anxiety and feelings of insecurity. By 22 March 2013, Mr Tassone, having discussed matters with Mr Shearer, had serious concerns about his health. It was suggested Mr Shearer had adopted a negative approach towards customers.
138 The defendant accepts, quite properly, that it was on notice from about 25 March 2013 that it was foreseeable there was a risk of psychiatric injury. Mr Shearer was given a week or so off work, including the Easter break, around this time. Such were the concerns of those at iSelect, that they recommended he be assessed by psychiatrist, Dr Kornan, and a report sought from his general practitioner.
Breach and Causation
139 Given my finding as to the foreseeability of psychological injury around November 2012, it is necessary to examine what steps iSelect took, or failed to take, and whether there was breach of the employer’s duty of care.
140 From late November until April 2013, the plaintiff says iSelect should have taken the following steps:
(a) to have allowed Mr Shearer to remain in Energy on inbound calls and without sales targets;
(b) to have facilitated the transfer to Compliance or Live Answer;
(c) not to have imposed additional targets, including daily sales and group targets and cross-referrals.
141 These steps raise questions not dissimilar to those referred to in Koehler:[108] What are the steps a reasonable employer should be expected to take to accommodate the mental health of its employee when it is a commercial operation managing a staff of sales people who are expected to achieve sales results in a prescribed manner?
[108](Supra) at paragraphs [221]-[222]
142 The reason Mr Shearer was required to take outbound calls was, according to the evidence, a result of increased business coming to iSelect around September 2012. To that point he took inbound calls which he said provided better scope for meeting his targets. Thereafter he said he took both inbound and outbound calls although before he went on leave, it was mostly outbound calls. In addition, he and others were to meet additional targets, including daily and group targets and cross referrals.
143 The contentions of the plaintiff as to the defendant’s breach should be examined in the light of the following:
(a) iSelect had granted considerable time away from work for Mr Shearer to deal with his stress issues;
(b) It had not been provided until May 2013 with any medical opinion that Mr Shearer’s psychological state required any work restrictions or limitations;
(c) It was a commercial operation which employed salespersons to sell its products in the manner it determined;
(d) In his employment contract effective July 2012, Mr Shearer’s position was as an “Energy Sales Consultant”;[109]
[109]Exhibit G
(e) Despite his stress symptoms, he had decided to recommit to iSelect In December 2012, and again in January 2013, and stay with iSelect in the long term. He described it as being like a family to him;
(f) When it became apparent there were difficulties with Mr Shearer being able to meet his targets in April 2013, it referred him to a psychiatrist as “we are concerned about your welfare”;[110]
(g) Absent any medical advice from his treating doctors, iSelect did not have the medical expertise to expect a failure to take the steps contended could lead to a psychological illness. When that advice eventually came, it was to reduce his hours, with the prospect of a full recovery in the short term, and without any restrictions as to his sales duties or targets.
[110]Exhibit 19
144 In my view, the failure by iSelect to take the steps the plaintiff contends does not indicate a breach of the duty it, as employer, owed Mr Shearer, over the period in late 2012, and then upon his return to work on 7 January 2013, until April 2013.
145 It was not reasonable to expect iSelect to create a special position for Mr Shearer outside its Sales Department. I am satisfied there were no positions available in either Compliance or Live Answer.
146 Presumably, it could have restricted Mr Shearer’s work to inbound calls, and not require him to meet daily, group or cross referral targets. However, this would be putting him in a special position, different from other employees and which may affect his ability to earn an appropriate income. It was not in accordance with the terms of his contract of employment to “fulfill the roles, duties and responsibilities as set out in the attached Position Description which may be reasonably varied from time to time by iSelect having regard to business and operational needs ...”.[111]
[111]Exhibit G
147 Mr Shearer was employed as a salesman, to sell and achieve targets in a manner directed by his employer. As was said in Koehler, questions of content of the duty of care and breach should be considered in the light of the obligations which each party owed to the other.
148 Even if I were to accept iSelect’s failure to allow Mr Shearer to remain on inbound calls and without the other targets referred to, then I am not satisfied from the medical evidence or from the reports which were tendered, that those steps, themselves, if taken, would have prevented or significantly reduced the risk of Mr Shearer suffering psychological injury. The medical opinions speak of Mr Shearer being overworked and stressed as a result of a range of employment duties. Dr Urie said his depression and anxiety condition was multifactorial but was exacerbated by “his long hours, lack of downtime, deadlines and the stress of achieving the goals and benchmarks which have been set by his employer”.[112] According to the treating psychologist, Ms Dubois, his anxiety and depressive symptoms in April 2013 arose “when they allegedly put increasing pressure on him to achieve higher and higher sales targets”.[113]
[112]Exhibit K
[113]Exhibit 3
149 No treating or consultant practitioner was asked to determine whether Mr Shearer remaining on inbound calls, and without other introduced targets, would have prevented or reduced the risk of his psychological condition. Absent such evidence, I am not satisfied as to the causative relationship between any breach, and the onset of his injuries.
150 What remains of the allegations of breach is the failure to follow the medical advice of Dr Urie and Dr Kornan, and the imposition of new targets in June 2013.
151 In relation to the medical opinions of Dr Urie and Dr Kornan, those reports would have been available to iSelect around late May 2013. The plaintiff alleges that the breach by iSelect in failing to follow the medical advice was a failure to provide the plaintiff with tasks which did not place pressure upon him. It is said, had that occurred, his mental health would have improved, and he would have been able to remain working.
152 At the outset, it should be noted that both Dr Kornan and Dr Urie took the view that there was every prospect Mr Shearer would be able to return to work within a relatively short period of time.
153 Dr Kornan recommended the use of antidepressant medication, and subject to waiting for a period for that medication to take effect, he thought a return to work four days a week and then to full-time hours. He expected a full recovery.
154 Dr Urie waited some time to provide a report as she wanted to monitor Mr Shearer’s response to medication. She noted he was improving and that he would soon be fit to return to work, albeit in a graduated manner, two days the first week, three days the second and four days the third week, depending upon how he managed. iSelect followed that advice.[114]
[114]Exhibit F at page 63
155 Dr Urie concluded Mr Shearer was unlikely to suffer any permanent disability. This, unfortunately, turned out not to be the case, but, around June 2013, it was expected Mr Shearer would be able to return to work, initially on reduced hours, in the expectation he would be able to resume full duties and hours relatively shortly. It was not until her next consultation on 17 June 2013 that it was determined that the return to work plan had been unsuccessful.
156 Although Dr Urie’s diagnosis of Depression and Anxiety was due to deadlines and stress of achieving goals with long work hours, in her report of 21 May 2013, specifically sought by iSelect, under the heading “Impact on Work”, aside from the graduated return to work, and reduced hours to between 9.00am and 5.00pm, Dr Urie said:
“There is no need to modify his duties other than to limit his work to his job description. I do not want him to take on additional tasks during his shifts. He should take regular rest breaks as per his current job description.”[115]
[115]Exhibit K at page 2 – DCB 273
157 All in all, aside from the return to work on reduced hours, the expectation was for a recovery and a return to work without restriction.
158 I am of the view there was no breach of the duty by iSelect failing to follow medical advice. To the contrary, iSelect followed the medical advice.
159 Upon his return to work in June 2013, Mr Shearer returned to Energy sales. Prior to this, he had a meeting with Mr Salter and told Mr Salter he was feeling fine. Various “expectations” were set.[116] Those expectations included that Mr Shearer was to convert 40 per cent of outbound calls as sales. There was to be 70 per cent legal compliance on calls, meaning the company’s protocols had to be followed. Mr Shearer said these were the highest targets that he had ever seen expected of sales staff. He said they were not achievable.
[116]Exhibit F at page 63
160 After these expectations were established, Mr Shearer returned to work in Sales and said he felt good as he had achieved a number of sales.
161 Within a day or two of returning, however, he was called into a meeting with Mr Salter, and a representative from HR. He was told that the calls he had made had been listened to and that they were “not the standard”. It was suggested he go off on income protection. He did not return to work with iSelect after this.
162 There are some contradictions in Mr Shearer’s evidence as to the imposition of these targets. He said that when he worked in the Health Division, the conversion rate for inbound calls was 80 per cent, and for outbound calls, 60 per cent.[117]
[117]T34, L18-20
163 In March 2013, he had attained seventeen sales per day. There were other sales staff who attained more, and some less.
164 Even accepting that the imposition of these targets were unreasonably high (noting neither Dr Kornan nor Dr Urie imposed any particular restriction as to targets), then I am not satisfied that even if that imposition involved a breach of the duty of care, that that breach was a cause of the plaintiff’s psychological injury. Again, the imposition of targets in June 2013, was not, of itself, the subject of comment or opinion in the medical evidence.
165 In any event, the targets were imposed only a day or two before Mr Shearer resumed work. Apart from being “shocked” by those targets, there was little, if any, time for him to seek to achieve them, with the stress that would involve.
Conclusion
166 It is clear iSelect was on notice of Mr Shearer’s stress-related symptoms from July 2012. Notwithstanding, I am of the view it was not foreseeable that he was at risk of diagnosable psychiatric injury until around November 2012. It could not be reasonably expected that the scope of the duty of care was such as to require iSelect to reduce his sales targets, remove him from the sales area where he had worked for a number of years or change the type of calls he responded to. Any failure by the defendant to do so did not constitute a breach of the duty it owed.
167 By March or April 2013, in particular after the receipt of reports from Dr Kornan and Dr Urie in May 2013, I am of the view the defendant was not in breach of the duty it owed by allowing Mr Shearer to return to work, undertaking the tasks referred to. Indeed, I am of the view iSelect followed the advice of the medical practitioners by reducing his work hours.
168 Even if it could be said the defendant was in breach for not taking the steps suggested, I am not satisfied that breach was causatively related to injury.
169 In these circumstances, the plaintiff’s case fails. There should be judgment for the defendant.
170 I shall hear from the parties as to appropriate orders.
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