Tewoldeberhan v Woolworths Limited
[2010] VCC 799
•7 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
GENERAL DIVISION
Case No. CI-09-00502
| SIOUM TEWOLDEBERHAN | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17, 18, 19, 20, 21, 24 and 25 May 2010 |
| DATE OF JUDGMENT: | 7 June 2010 |
| CASE MAY BE CITED AS: | Tewoldeberhan v Woolworths Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0799 |
REASONS FOR JUDGMENT
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Catchwords: Psychological disorder suffered as a result of harassment, discrimination and various workplace practices by employer – breach of contract of employment and breach of duty to take reasonable care for safety of the plaintiff – claim for pain and suffering damages and pecuniary loss – litigant in person.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | - |
| For the Defendant | Mr R H Gillies QC with | Gadens Lawyers |
| Mr R W Dyer |
| COUNTY COURT OF VICTORIA | !Undefined Bookmark, I |
| 250 William Street, Melbourne | |
| HIS HONOUR: |
Preliminary
1 The plaintiff alleges he suffered significant psychological injury, in the nature of a Post-Traumatic Stress Disorder, Depressive Disorder and anxiety condition as a result of treatment at the hands of the defendant, his employer, over the period from December 1999 until January 2004.
2 As a result of the claimed injury, the plaintiff says he has been rendered unemployable and suffered a range of consequences in relation to his recreational and domestic activities. In the circumstances, it is alleged the defendant breached its contract of employment with the plaintiff, alternatively, was negligent in failing to provide a safe place and system of work and exposed him to the unnecessary risk of injury.
3 The plaintiff seeks damages both as to pain and suffering and economic loss and the proceeding is governed by Division 5A of Part IV of the Accident Compensation Act 1985 (“the Act”).
4 In accordance with that Part, the plaintiff obtained leave to bring proceedings pursuant to the Orders of Her Honour Judge Bourke of 26 November 2008.[1]
[1] Case No. CI-07-02693, [2008] VCC 1480 (“the serious injury application”) – note s.57(2) Accident Compensation (Amendment) Act 2010 provides that no finding on a serious injury application gives rise to an issue estoppel in the principal proceeding.
5 Although represented in the serious injury application, the plaintiff was unrepresented at the trial, his former solicitors, Messrs. Nowicki Carbone having been granted leave to withdraw.[2]
[2] See Order of his Honour Judge Misso dated 4 May 2010.
6 Given the plaintiff was self-represented, I had regard to the obligations upon a trial judge to give due assistance to the plaintiff to enable him to conduct his case and to place before the Court evidence in support. I bear in mind the principles espoused by Bell, J in Tomasevic v Travaglini & Anor.[3]
[3] (2007) 14 VR 100
The Proceeding
7 By his Statement of Claim, the plaintiff pleads, relevantly, that he was employed by the defendant pursuant to a contract of employment, which contained terms:
• that the defendant would provide a safe place and system of work; • that it would take reasonable care for his safety. 8 Further, the defendant owed the plaintiff a duty, as employer, to take reasonable care for his safety and not to expose him to any unnecessary risk of injury.
9 In breach of the terms of the contract of employment, alternatively, in breach of the duty of care, the plaintiff alleges the defendant was negligent in:
• failing to provide a safe place and system of work; • failing to supervise the plaintiff and co-employees and supervisors; • failing to adequately discipline the co-employees; • failing to keep the plaintiff safe from harassment, bullying and intimidation; •
requiring the plaintiff to work in an atmosphere of ongoing harassment and intimidation;
• failing to heed the plaintiff’s complaints; •
failing to comply with the relevant provisions of the Occupational Health & Safety Act 2004;
•
failing to pay the plaintiff an appropriate “cold allowance” (“the cold allowance”) while working in refrigerated areas;
•
subjecting the plaintiff to excessive numbers of transfers, both between stores, and within departments in the stores;
• changing shift and rosters without consent; • failing to provide appropriate rostered days off and hours of work; •
permitting false accusations against the plaintiff by employees of the defendant.
10 As a result of the breach of contract, alternatively as a result of negligence, the plaintiff claimed he has suffered and continues to suffer a severe psychiatric condition, including:
• Adjustment Disorder with Mixed Anxiety and Depressive Mood; • Depressive Disorder; • Severe Anxiety condition;
• Major depression and chronic pain; • Post-Traumatic Stress Disorder.
11 As a consequence, it was alleged the plaintiff was totally incapacitated from employment from January 2004 and will remain incapacitated for the foreseeable future.
12 By is Amended Defence, the defendant:
•
“denies that there existed any duty of care between itself and the plaintiff as the risk of the plaintiff sustaining a recognisable psychiatric injury was not reasonably foreseeable to the defendant in the circumstances as
alleged or at all”;
• denied any breach of contract of employment or breach of duty of care; •
denied the plaintiff had any entitlement to compensation for injuries sustained prior to 20 October 1999 by reason of the operation of s.134AB(1) of the Act.
Evidence on Behalf of the Plaintiff
13 I permitted the tender of two affidavits, sworn 27 February 2007 and 11 September 2008[4] (respectively “the first and second affidavits”) which had been filed in support of the serious injury application. Those documents generally set forth the allegations the plaintiff makes against the defendant, and the consequences of the psychological injury said to have been sustained.
[4] Exhibit A
14 In addition, the plaintiff gave evidence that from the time he started work with the defendant in 1996, he was a good worker and did the best he could at all the tasks he was given. His relationship with management was good until
Deleted: .
1999. Thereafter commenced a series of harassing and discriminatory incidents and pattern of behaviour on the part of the defendant’s employees which the plaintiff alleges resulted in psychological injury
15 From the material contained in the first and second affidavits, and the plaintiff’s examination and cross-examination, I gleaned that his accusations against the defendant comprised the following:
•
The deputy manager of the St Kilda Store, Mr Andrew Coman, made unwanted sexual advances. These commenced in 1998, with Mr Coman inviting the plaintiff for meals and making conversation which had sexual overtones. Mr Coman touched the plaintiff from time to time and on one occasion touched him on the buttocks while they were in the toilets. On another occasion he alleged Mr Coman touched him on the penis. These advances continued until Mr Coman left the St Kilda store. As a result of these advances, the plaintiff reported the matter to the union.
•
On or about 15 February 1999, the plaintiff was mopping the floor in the St Kilda store. He alleges Mr Coman struck him on the right knee with a loaded trolley, causing an injury to that knee. When he complained, Mr Coman called him a “dumb black c---“. A Claim for Compensation was lodged[5] and the plaintiff had several weeks away from work.
•
In September 2009, the plaintiff claims his employment was terminated while he was on annual leave and without explanation. When he raised the matter with Mr Coman, he was told that “the company does not like you”. He made an application for unfair dismissal to the Australian Industrial Relations Commission (“AIRC”).[6]
•
After reinstatement of the plaintiff’s employment in December 1999, the defendant refused to pay the cold allowance, given that he worked in various refrigerated areas of the store. Again, after intervention by the union, the cold allowance, backdated, was paid in 2002.
•
There was a dispute in relation to the plaintiff’s entitlement to rostered days off (“RDOs”). This occurred in October 2001 when the defendant changed the plaintiff’s shifts from night to day. This was resolved after union intervention.
•
While stationed at St Kilda, he was transferred to a number of stores, including Toorak and Carlton. He was unfamiliar with these stores, and given duties and required to work hours which were inappropriate.
•
With the help of the union, the plaintiff transferred to the Fitzroy, and then the Camberwell store, and worked in the latter from May 2002 until he left employment in January 2004. In September 2003, he was ten minutes late for work because his wife was ill. He was requested to sign a counselling form, and when he refused, was sent home.
•
In September 2003, the manager of the Camberwell store, Mr Marshall, threw a milk crate at him. He later apologised.
•
While at the Camberwell store, he was regularly transferred between the various departments of the store. This, he claims, was done purposefully in order to push him to resignation.
•
Mr Marshall discriminated against the plaintiff in various ways, including requiring him to take his meal breaks away from other workers and making his five-year service award without the ceremony and celebration which was afforded other workers.
•
In November 2003, Mr Marshall falsely accused the plaintiff of brandishing a carton cutter at him. He was stood down for several weeks while the matter was investigated and then reinstated after the investigation did not find the allegations proven. As a result, his reputation amongst co-workers suffered significantly and he was looked upon as a criminal. No apology was forthcoming.
•
Generally, he was the subject of harassment, discrimination and was targeted as a troublemaker.
[5] Exhibit C
[6] See Exhibit D – various AIRC documents.
16 The plaintiff’s employment with the defendant was formally terminated on 24 May 2005.
17 In relation to the alleged termination of his employment in October 1999 (later reinstated), the plaintiff said that he was going to Italy to be married. He was given approximately ten weeks’ leave by cash payment from Mr Coman shortly before he departed. At that time he asked Mr Coman to provide a letter which stated that he was in full-time employment with the defendant, to assist in his application for his wife’s visa into Australia. Mr Coman refused. After he was reinstated, the problems became more severe. The allegations, and the involvement of the Shop, Distributive and Allied Employees’ Association (“the union”) are set forth in various correspondence between the defendant and the union.[7] Amongst that correspondence is a response by the defendant to the plaintiff’s allegations in relation to RDOs.[8] The letter from the union of 16 June 2003 confirms the resolution of the RDO dispute. From this correspondence, it would appear that, through union intervention, the dispute in respect of the:
[7] Exhibit E
[8] See letter defendant to union, 26 November 2003, and its response in relation to the allegation of discrimination in the presentation of service awards.
ƒ RDOs
ƒ the cold allowance
ƒ transfer to the Camberwell store ƒ duties to be undertaken as nightfill work at the Camberwell store were all resolved.
18 In relation to the incident of November 2003 in which it was alleged that the plaintiff confronted Mr Marshall with a box cutter, various correspondence were tendered,[9] including a statement of David Morse, an employee of the defendant and a union delegate. The statement indicates ill feeling between Mr Marshall and the plaintiff at the time.
[9] Exhibit F
19 In his second affidavit,[10] the plaintiff claimed that despite the various incidents, including the allegations of inappropriate sexual conduct by Mr Coman, he was able to continue at work but the “real issues” commenced when he was forced to engage the union after his return from overseas in December 1999. From that time there was a gradual build up of anxiety, tension and depression such that he left that employment, and sought treatment from his general practitioner, Dr Monica Cooper, in early 2004. She treated him with a range of medication and has continued to treat him through to the present time. She referred him to Dr Katz, psychiatrist, in August 2005, and he saw Dr Katz regularly, on a monthly basis,
[10] Court Book (“CB”) 8
20 As a result of his treatment at the hands of the defendant, the plaintiff alleges he has been significantly debilitated by a psychological disorder. He claims difficulties with memory and concentration. This has resulted in a number of traffic infringement notices which has led to the loss of his licence. In May 2000, his car collided with a wall. In March 2004, his car struck a tram. These, he claims, were as a result of his psychological difficulties. He further alleges that his behaviour became aggressive towards friends and family. This led to the breakdown of his marriage in November 2002. He claims significant difficulties with the activities of daily living. The prescription of anti- depressant medication has led to various side-effects, including tiredness and weakness. He suffers stress and anxiety on a regular basis. His appetite is affected. He cannot concentrate as before, and he has lost confidence in himself. He enjoyed social interaction within the Eritrean community and this has now ceased. His interest and involvement in social and recreational activities has been severely reduced. He claims to be easily distracted, sensitive to noise and avoids leaving his home. He has become lonely and isolated and lost contact with many of his friends. He has lost interest in his appearance, and his hygiene is affected. Some of his friends have remained and assist him with cooking, cleaning and shopping. His sleep has been disturbed and he feels tired most of the time.
21 He is currently in receipt of Centrelink benefits. His earnings over the period 1995 to 2006 are set forth in Exhibit S. His earnings prior the termination of his employment were in the order of $700 gross per week. He claims to have been sent to a number of job assessments by Centrelink, but feels that with the various difficulties he suffers, particularly concentration, loss of memory and lethargy, he has been and will continue to be unable to resume any form of employment.
22 In addition to treatment by Dr Cooper and Dr Katz, the plaintiff has undergone extensive counselling through the North Yarra Community Health Centre.[11] This commenced in March 2004. In a letter of 27 October 2004,[12] Mr Ben Ilsley, case worker, commented:
“Sioum’s work history since arriving in Australia has almost entirely been in the employment of Safeway. It is likely that his perceptions of injustice, discrimination and confusion about social/legal processes have been both affected by and, in turn, affected Sioum’s migration experience with all the losses and cultural adjustments associated with that. It is plausible that these difficulties have been compounded by Sioum’s perception that processes aimed at resolving conflict with his employer have been unclear and insufficient. My attempts to distract Sioum from his pre-occupations of past injustices have been largely unsuccessful and have been met with some suspicion.”
[11] See Exhibit M
[12] Exhibit M
23 As a result of the loss of his employment, and the financial stress which followed, the plaintiff incurred various credit card and other debts which he claims are a source of stress.[13]
[13] See Exhibit Q
24 Details of the plaintiff’s treatment appointments with various practitioners are set forth in Exhibit T. Details of his purchases of prescription medication from 2004 until 2009 are set forth in Exhibit U.
25 Various commendations of the plaintiff by employees of the defendant, including in the years 1999 and 2001 are set forth in Exhibit AB.
26 In the years 1996 to 1999, the plaintiff claims that he was a respected and hardworking employee. He was an active member in the Eritrean community, and in particular, was involved in assisting newly arrived refugees to settle in Australia. His general health, and in particular, his psychological health was good.
27 The plaintiff was extensively cross-examined by Mr Gillies. It was put that he had a far more comprehensive understanding of English than he made out to the Court. During the course of his evidence and cross-examination, he spoke through an interpreter. It was said that he had been able to speak English and communicate well with employees and customers throughout his employment with the defendant. It was suggested that he had suffered distress as a result of the breakdown of each of his marriages and various financial problems arose as a result.
28 The plaintiff was convicted of injuring a person by striking him with a wheel brace, in November 1997, and ordered to undertake a Community Based Order for twelve months. That Order was breached and the plaintiff was again before the Magistrates’ Court in January 2000. It was put that this incident was a measure of the plaintiff’s underlying aggression and ill-temper. The plaintiff responded that this was an alcohol-related incident, and he had since repaired the relationship with the victim, who at the time was a friend.
29 The plaintiff accepted that from 2007 he has suffered from diabetes. This affected him in various ways, including that his legs became swollen and painful and restricted how long he could stand or sit. He denied this caused any emotional distress.
30 The plaintiff was questioned about the injuries he sustained in two motor vehicle accidents, in May 2000 and March 2004. According to his first affidavit, he sustained a minor neck injury which resolved. He claimed that this accident arose because of the stress and pressure of his work at the time. In his second affidavit, he acknowledged that the injury to his neck had not resolved.[14] He stated that the Transport Accident Commission (“TAC”) had recently[15] commenced to fund physiotherapy. It was suggested to the plaintiff that he had attempted to hide significant neck and back injuries in these two incidents. According to the report of Mr Greg Bourke, physiotherapist with the Upper Yarra Community Health Centre,[16] he had treated the plaintiff for twelve months before July 2007 for chronic back pain. Accordingly, when the plaintiff swore his first affidavit in February 2007, it was suggested he knew clearly of ongoing significant back pain, but made no reference to it in his affidavit, and told a number of doctors whom he consulted that his general health was good.
[14] CB 9
[15] the affidavit was sworn September 2008
[16] CB 247
31 The plaintiff was cross-examined extensively in relation to an application for a taxi licence, which he completed in May 2003.[17] Although he contended that he attended the Taxi Directorate with his friend, Mr Dawit Yohannies, only to accompany him, and only as an afterthought, completed an application at Dawit’s suggestion, it is clear that the application required medical certification from the plaintiff’s doctor. This was completed by Dr Vera Vrbica on 7 May 2003. That doctor certified the plaintiff as not suffering any nervous, mental nor psychiatric disorder, nor any muscular defect. It was suggested that Dr Vrbica was not the plaintiff’s usual treating general practitioner, rather it was Dr Tsagaratos of the Lygon Street Clinic in Carlton. Dr Vrbica worked at the Elgin Street Clinic in Carlton. In fact, the plaintiff had attended Dr Tsagaratos on 6 and 26 May 2003. It was suggested to the plaintiff that he purposely selected Dr Vrbica so as not to have to disclose his chronic back and neck problems. Further, it was suggested that the certification by Dr Vrbica was accurate in that, despite the various claimed confrontations with his employers in 2003, he did not suffer any psychological problem. According to the records of the Lygon Street Clinic,[18] the plaintiff did attend Dr Tsagaratos. Despite attending Dr Tsagaratos, the plaintiff was certified as unfit for work on
Deleted: and unable
5 and 26 May 2003. He explained this was as a result of his wife being ill and
Deleted: .
[17] Exhibit 1
[18] Exhibit 8
unable to look after the children.[19] By way of explanation, the plaintiff stated that given his cultural background, he did not understand the meaning of stress, depression or psychological injury. Further, he said that while he did have problems in 2003, they came to a head in early 2004 when he was forced to leave work. The application for a taxi licence failed to disclose approximately six traffic offences which he had committed prior to that time.[20]
[19] Confirmed by medical certificates – exhibit 2
[20] See Exhibit H
32 It was further put to the plaintiff that he had continued physiotherapy to his back and neck in 2006 and 2008.[21] In 2008, he accepted that his neck pain was chronic and that resulted in poor neck movement. It was suggested that this physical restriction was significant, and that the plaintiff had denied any physical illnesses to a range of doctors.[22] To Dr Epstein,[23] he described two minor transport accidents but that no physical injury had arisen from them. The plaintiff accepted that he is on pain-relieving medication to the present time.
[21] See reports Exhibits 3, 4 and 5
[22] See reports of Dr Rose – CB 264; Dr Shan – CB 268 and Dr Epstein – CB 292
[23] CB 292
33 In relation to the sexual allegations made against the deputy manager of the St Kilda store, Mr Coman, it was put to the plaintiff that he had deliberately concocted these allegations with a view to assisting his case. It was put to him that he had made no complaint of such matters to:
ƒ his general practitioner, Dr Cooper, when he first consulted her; ƒ to his treating psychiatrist, Dr Katz in the early consultations; ƒ to the various counsellors he saw at the North Yarra Community Health
Centre when he first consulted them in February 2004;[24]ƒ to Mr Ross Anderson, psychologist, to whom he was sent by the union.[25] [24] See, however, report of 1 October 2007 – CB 186 – although there is no reference to any sexual allegations in the source material – see CB 256
[25] CB 294
34 It was suggested that given the serious impropriety of Coman’s conduct, particularly given the plaintiff’s cultural background, it was extraordinary indeed if those allegations had been true, that the plaintiff had not raised them at the outset with these various treating practitioners. It was further suggested to the plaintiff that he retreated significantly from the allegations of incidents before October 1999 in his second affidavit when he became aware that those incidents could not be the subject of a claim for compensation as they fell within the “black hole” period.[26]
[26] See s.134AB(2)
35 The plaintiff responded that he had told the various practitioners of the allegations.
36 It was suggested to the plaintiff that many of the problems at work were as a result of his anger and aggression, directed particularly at a number of women working for the defendant, including Michelle Neylon, Kerry Alsop, Joan Stallworthy and Amanda Lewis. The plaintiff refuted these allegations.
37 It was also suggested to the plaintiff that he had been aggressive and abusive to Mr Coman, losing his temper and calling Mr Coman an “idiot”.
38 It was put by Mr Gillies that when the plaintiff sought a letter from Mr Coman in September 1999, the letter was a form of guarantee that the defendant would provide a job for his future wife when she came to Australia. The plaintiff admitted that he asked for a letter but denied it was in respect of his wife. He said that the letter was sought to confirm his employment with the defendant and that he was able to support his future wife. At that time, he received a final warning from Mr Coman that any other infractions in the workplace would result in termination. Such was the extent of the plaintiff’s behaviour, it was suggested, that the police were called, although he had
Deleted: .
removed himself from the St Kilda store by the time they arrived. The plaintiff denied this and stated that Mr Coman gave him a large amount of cash before he went overseas, and was dismissed while overseas.
39 A measure of the plaintiff’s aggression and lack of capacity to peaceably get on with people in the workplace was that he had fallen out of favour with the two firms of solicitors that he had previously retained. He responded that in relation to Messrs. Maurice Blackburn, they had settled his claim without permission, and Messrs. Nowicki Carbone had abandoned him shortly before this trial. The plaintiff admitted that he was rejected by the union, after they had interceded on his behalf on a number of occasions with the defendant. It came to the point where the police were called and he was pushed from the office.[27]
[27] T 44
40 The plaintiff rejected the assertion that he had been counselled and consulted from time to time by management of the defendant and that in fact they went out of their way to assist in him in respect of his various complaints and disagreements. It was suggested that he had moved to the Fitzroy store and then Camberwell at his behest, originally as Fitzroy was close to where he lived, and then Camberwell was a larger store where he could undertake the nightfill work which he had requested. It was said that Ms Michelle Edwards, of the Human Relations Department of the defendant, had interceded and attempted to resolve the plaintiff’s various complaints. It was said that the plaintiff had become accusatory and threatening towards her.
41 In relation to the incident involving the box cutter, it was put that the plaintiff had been suspended pending an inquiry into the incident which was undertaken at the earliest practicable time. Once the inquiry had been completed, the plaintiff, with the assistance of the union, had his employment reinstated. He agreed that from that time he remained working with Mr Marshall and on good terms.
42 It was put to the plaintiff that he had made no efforts to return to work after 14 January 2004 despite having a capacity for a range of alternative employments. The plaintiff stated that he was, by reason of his psychological condition, unable to work then and remains unable to work. He received disability payments from a private insurance policy.
43 It was put that on one occasion on 28 January 2004 he saw Dr Robert Briese of the same clinic as Dr Cooper and because of his behaviour he was asked to leave and not return. The plaintiff stated he could not remember such an event.
44 Despite the plaintiff’s various allegations against the defendant, he did not mention that he was in any way stressed, anxious or depressed until after he left work in January 2004. The only reference in the general practitioner’s clinical notes was in September 2003, when he gave a history:
“Very stressed ... Feels harassed at work … Will take it up with the
union … Unable to work today because of lethargy.”[28][28] Exhibit 8
45 It was suggested that if the plaintiff was as affected by these various incidents as claimed, it was unthinkable that he would have made no complaint whatsoever to his doctors until 21 January 2004 when he gave a history to Dr Cooper:
“Depressed … cert. [certificate] 3 weeks … star[t] anti-depressants m
[management] problem at work.”46 He attended the practice on two previous occasions after leaving work without any reference to work problems. The plaintiff explained that he was unaware of the labels given to these various psychological conditions and could not describe them to his doctor. The first claim by the plaintiff for any form of stress was a claim form dated 4 February 2004.[29]
[29] Part of Exhibit C
47 It was put to the plaintiff that:
ƒ In 2000, he did not attend his general practitioner; ƒ Likewise, in 2001, there were no visits; ƒ In 2002, there were three visits, none stress related; ƒ In 2003, there were fifteen visits, but only one related to stress, on 23
September 2003;ƒ In 2004, there were twenty seven visits relating to stress or psychological
problems.48 In relation to the trolley incident in 1999, it was suggested that the plaintiff had been struck, but that it was an accidental strike, of very low impact.
49 Generally, it was suggested that the plaintiff had been treated well both at the St Kilda and Camberwell stores and that the employer had attempted to meet all his various demands, often in consultation with the union. Those disputes he had with the defendant were minor, and resolved, usually in his favour. It was suggested that he was not targeted, bullied nor discriminated against in any way and that he was treated like other employees. The plaintiff denied these suggestions.
50 He accepted that he did receive a payment for the cold allowance which had been outstanding for two years and that further, the RDO dispute and his claim to a penalty rate were also resolved. He accepted that he was transferred to the Camberwell office in order to satisfy his requirements.
51 The plaintiff called various witnesses who gave evidence as to his background, the state of his health before the alleged incidents, and the effect upon him of his psychological injury.
52 Mr Dawit Yohannies stated that he came to Australia from Eritrea in 1992 and came to know the plaintiff when the plaintiff arrived in 1994. He described the plaintiff as, at that time, a positive person involved in the Eritrean community. He was a hard and committed worker.
53 Mr Yohannies was aware that the plaintiff was having difficulties at work in 2000 when the union became involved. In 2003, he attended a meeting with Safeway, the plaintiff and a union representative concerning allegations of use of a box cutter. After the meeting, the plaintiff was directed to return to work, but without proper counselling nor any apology. Mr Yohannies noticed the plaintiff had become frustrated, angry and depressed as a result of this incident. In 2004, his condition became worse. He attempted to encourage the plaintiff to deal with these problems and return to his former life, but without success. His depression and stress was ongoing. The plaintiff presently struggles with daily tasks and needs assistance from himself and other members of the community.
54 Evidence was given by Mr Tesfahun Wubneh, a friend of the plaintiff, and who had arrived in Australia in 1994. He described the plaintiff as honest, reliable and committed to his employment. At the outset he was very happy with his job at Safeway and worked hard. He was sociable, brought happiness to other people, and assisted newly arrived refugees.
55 In early 2004, the plaintiff had changed and become very lonely and withdrawn. He disclosed to Mr Wubneh his problems at work. These matters caused the plaintiff a great deal of emotional stress and depression. He considered the plaintiff was living in a “black hole” without any lights. He was concerned that the plaintiff took the view there was no point in living.
56 Evidence was given by Mr Tesfamarim Haile Ghebremichael. He had met the plaintiff in late 2005 and came to know him as the plaintiff attended Mr Ghebremichael’s restaurant. He noticed the plaintiff was distracted and distressed as a result of his allegations of what had occurred at work. He attempted to provide support to the plaintiff.
57 Finally, evidence was given by Mr Mohemednur Shagarai. He came to know the plaintiff in approximately 2000. He was a committee member of the Eritrean Society which provided aide and support to new arrivals. The plaintiff involved himself in the Eritrean community, in festivals which were held, and was very social. From 2000, the plaintiff gradually changed. He described friction at work and problems with harassment and discrimination. Mr Shagarai encouraged him to stand up for his rights through legal channels. He helped the plaintiff, in latter years cleaning his home, and encouraged him to undertake better hygiene. He said that the plaintiff was overseas in 2009 and that he paid for a return ticket given that the ticket had expired after three months.
Evidence on Behalf of the Defendant
58 On behalf of the defendant, Ms Michelle Edwards gave evidence. She is currently a Regional Resources Manager employed by the defendant. She has been employed by the defendant for twenty years. In 2001, she worked in the Human Relations department. She met the plaintiff at the St Kilda store in 2000-2001.
59 She knew of the plaintiff’s claim for the cold allowance. That was dealt with by her manager. That matter was resolved. After the plaintiff worked at the St Kilda store, he worked at the Fitzroy store for a period. A position was found for him at Camberwell to enable him to undertake work on nightshift, which he preferred. These matters were documented in a memorandum.[30]
[30] Exhibit 6
60 Her next involvement was in late 2003 when she was the Human Relations Manager for the Camberwell area. She received notice that there had been a conflict between the plaintiff and Mr Hugh Marshall, an employee of the Camberwell store. She was told that the plaintiff had allegedly raised a box cutter to the face of Mr Marshall and threatened him while on nightshift. She was informed of the incident the day after it was said to have occurred. She suspended the plaintiff given the seriousness of the allegation, pending conclusion of an investigation. This was recorded.[31] There was various correspondence with the union and with the plaintiff regarding the incident.[32] She interviewed Mr Marshall, and another employee, Mr Morse, who was also present. There was no CCTV footage of the event. The plaintiff attended the meetings, with an interpreter and a union representative. There were several meetings.
[31] See Exhibit F
[32] See further correspondence – Exhibit F
61 The plaintiff raised an allegation that Mr Marshall had threatened him. As a result, Mr Marshall also was stood down.
62 After consultation with the union, the charges against the plaintiff were dropped as there was insufficient evidence to justify the allegation. The plaintiff was then returned to work with Mr Marshall.
63 On another occasion, later in 2003, there were allegations that the plaintiff had behaved threateningly to another employee, Ms Kerry Allsop. The plaintiff was counselled about appropriate workplace behaviour but did not want to participate. He had union representation.
64 The plaintiff left work in January 2004. Ms Edwards met with representatives of the union who requested the defendant make a redundancy payment to the plaintiff upon termination. This request was refused.
65 Finally, evidence was given by Mr Andrew Coman. He commenced work with the defendant in 1988, and rose through the ranks to become a store manager, currently in New South Wales. He was the assistant manager at St Kilda from 1999. From an early time, he had counselled the plaintiff in relation to his behaviour towards female employees. The complaints against the plaintiff were quite regular.
66 He denied flatly all of the allegations of any sexual overtures towards the plaintiff. He first heard of such allegations two to three months before this trial. Such matters were considered serious by the defendant and had those allegations been made, they would have been the subject of investigation and written report. Senior management would have been alerted.
67 He further denied any form of hostility, discrimination or that he made any derogatory remarks to or about the plaintiff. He described all of these allegations as outrageous and untrue. He was able to communicate well with the plaintiff in English, and saw that the plaintiff was able to communicate with customers likewise.
68 In relation to the “trolley incident”, he accepted that he accidentally bumped the plaintiff on the knee while he was squatted down in an aisle of the store. He immediately apologised. The impact was minor. He denied totally that he had called the plaintiff a “dumb black c---“.
69 In August 1999, he counselled and disciplined the plaintiff in relation to allegations that he had harassed Ms Amanda Lewis, a register operator. He made notes at the time and told the plaintiff this was his “final warning”. He stated that if the plaintiff was to raise his voice in a threatening manner, swear at an employee, or become aggressive, his employment would be terminated. It was emphasized that this was a serious issue.
70 In September 1999, the plaintiff was terminated. Again, Mr Coman was involved and made a concurrent record of what occurred. The plaintiff requested Mr Coman provide a letter for his future wife to the Australian and African Embassies, saying that his wife was guaranteed a job with Safeway. He explained to the plaintiff that he was unable to do this and as a result the plaintiff became aggressive and yelled at him. Mr Coman alleged the plaintiff called him “stupid” in a threatening manner, and disrupted customers at the store. Mr Coman then informed him that, given his earlier “final warning”, his employment was terminated. He asked him to leave the store and he refused. The police were called, but by the time they had arrived, the plaintiff had left. The plaintiff’s employment was subsequently reinstated after meetings with the union.
71 A further issue was in relation to the plaintiff’s entitlement to the cold allowance. Such an allowance was available if an employee worked in a freezer area. The plaintiff did not do this, but did enter a cool room from time to time. It was agreed to pay the plaintiff this allowance to maintain a good relationship with the union.
The Plaintiff’s Credibility and Conclusions from the Evidence
72 In assessing the credibility of the plaintiff’s evidence, I should bear in mind the following:
ƒ He is self-represented;
ƒ He has a relatively low level of education and a distinctly different cultural
background to persons born in Australia;ƒ Although the defendant contended his command of the English language was far greater than he would have it, English is certainly his second language, and he used an interpreter throughout the trial. 73 The defendant made a significant attack upon the plaintiff’s credit. It was suggested that in the plaintiff’s first affidavit, he portrayed the various incidents which occurred before October 1999, including the sexual advances he alleged were made by Mr Coman, the trolley incident and his termination from employment in September 1999, as matters of significance. In his second affidavit, he sought to downplay the effect of these incidents given that they occurred in the “black hole” period. I do not regard this change of emphasis (if indeed that was the case) as a matter of any significance. If at all, in my view it is more as a result of the drafting by the solicitors the plaintiff had acting for him at the time.
74 The plaintiff was further criticised for failing to be frank about the nature and extent of the musculoskeletal injuries suffered to his neck and back, as a result of which he required substantial physiotherapy treatment from 2006 until at least 2008. However, I accept the plaintiff’s explanation that his focus was more in relation to his psychological difficulties when he denied or failed to give a comprehensive history of these physical problems in the histories provided to various doctors. Further, his disclosure of this problem, as a result of the various motor vehicle accidents in which he was involved, as being minor and of little significance in his affidavits is, again, in my view, more as a result of the perception of the solicitors who drafted the affidavits.
75 Likewise, I do not consider the plaintiff’s failure to disclose an overseas trip for a period of at least three months in 2009 as a matter of significance.
76 In the course of cross-examination however, the plaintiff regularly refused to answer questions, or answered questions in a non-responsive manner, directing his answer to the claim that he was seriously injured as a result of the fault of the defendant. In making an assessment of his credibility in this regard, I bear in mind that giving evidence through an interpreter is never easy. The plaintiff had very little experience of court protocols, and was cross-examined by a very experienced counsel. Nonetheless, I formed the view that his failure to respond to questions put to him did indicate an element of evasion and lack of frankness.
77 The plaintiff’s evidence in relation to his application for a taxi licence,[33] I found less than frank. Despite his claim that he only filed the application on a whim at the behest of his friend, it is clear that he had to undertake the preparatory step of having his doctor provide medical certification. I am uncertain, from the evidence, whether he deliberately selected a doctor who did not know of his various physical injuries, but do find that his answer to various of the questions posed in the application was untrue. He failed to provide details of traffic offences. He claimed he had no physical problems, despite, at the time, receiving treatment for a back problem for a significant period. Despite his claim in this proceeding that he was significantly affected by the various incidents which occurred in 2003, he stated that he had no nervous, mental nor psychiatric disorder.
[33] Exhibit 1
78 It was put to the plaintiff that he was an aggressive person, easily led to anger and threatening behaviour if he did not get his way at work. It was said that he had abused various employees, particularly female employees, and this was conduct which brought warnings and discipline from the defendant. While I accept that it is alleged that the plaintiff was aggressive towards various employees, none of these employees gave evidence, save for Mr Coman. I am not thus in a position to determine whether this accusation is made out. Undoubtedly the plaintiff was convicted of a significant criminal offence of causing injury in 1997, but this, of itself, is not sufficient to lead me to the conclusion that he had a particularly aggressive and threatening demeanour. The fact that he fell out with his solicitors, and possibly the union which had interceded on his behalf on a number of occasions does not, in my view, enable me to form an adverse view of his credibility.
79 A significant issue is whether or not Mr Coman made the unwanted sexual advances as alleged. It is put by the defendant that these advances never occurred, but were concocted by the plaintiff so as to fuel his claim for compensation. In support of this, it is said that he made no complaints to his treating doctors in 2004. Given particularly his cultural background, it was said to be incredulous that no such complaints were made. In determining this issue, I have had regard to the evidence given by Mr Coman, and that of the plaintiff. Mr Coman was, in my view, an impressive witness. He gave evidence in a straightforward manner, denied unhesitatingly the sexual allegations, and denied various other complaints of the plaintiff, particularly in relation to his termination in September 1999.
80 Having regard to the reservations as to the plaintiff’s credibility to which I have referred above, and bearing in mind that the plaintiff made no complaints of the sexual advances at any time until well after he first sought medical treatment, I prefer the evidence of Mr Coman. I accept that there were no sexual advances by him upon the plaintiff. It follows that these allegations were raised falsely to support his claim for compensation. That matter, of itself, is a significant credit issue.
81 A final matter which reflects upon the plaintiff’s evidence is that the first mention of any stress arising from his workplace was not until 23 September 2003.[34] That allegation was very general and not specific to the allegations made by the plaintiff in his Statement of Claim. That instance aside, the first complaint of any psychological symptom was not until 21 January 2004, to Dr Cooper. I accept that the plaintiff would not be able to give any medical label to the symptoms he claimed to be suffering. Nonetheless, if the defendant was treating him in the manner he now suggests, and that his distress was building up over the period from 2000 to 2003, it is difficult to understand how, despite attending his general practitioner from time to time over those years, there was no complaint of any sort until after he left work.
[34] Exhibit 8
82 I further found Ms Edwards, the Human Relations Manager who intervened in 2003, to be a witness of truth, and prefer her evidence of the events which occurred in that year over those of the plaintiff. I accept that she was concerned about the seriousness of the allegations involving the box cutter and Mr Marshall, and accept that she acted promptly and appropriately in the circumstances.
83 I further prefer the evidence of Mr Coman to that of the plaintiff in relation to the trolley incident, the cold allowance, and the circumstances surrounding the plaintiff’s termination in September 1999.
84 Without any reasonable explanation, the defendant failed to call Mr Hugh Marshall and it is open to infer that the version of events given by the plaintiff as to whether the incident occurred at all, is to be preferred. However, whether or not the incident occurred, in my view, the steps taken by the defendant to deal with the allegation were appropriate.
The Incidents which occurred before October 1999 – the “black hole” period
85 Section 134AB(2) of the Act provides that a worker may recover damages in respect of an injury arising out of or in the course of employment if the injury arose after 20 October 1999. Pursuant to s.134A of the Act, a worker has no entitlement to recover damages in respect of injury arising out of the course of employment between 12 November 1997 and 20 October 1999. Thus, to the extent it is alleged the plaintiff suffered injury as a result of any of the incidents which occurred while the plaintiff was working at the St Kilda store before October 1999, he is precluded from recovering damages.
86 The following incidents occurred prior to October 1999:
ƒ The allegations in relation to sexual overtones made by Mr Coman; ƒ The trolley incident of 15 February 1999 and the abuse which was said to
follow;ƒ The circumstances relating to the termination of the plaintiff’s employment
in September 1999;ƒ In part at least, his claim to be entitled to the “cold allowance” to the extent
that that entitlement existed before October 1999.87 The two affidavits appear to concede that these pre October 1999 incidents cannot, of themselves, be the subject of a claim for damages. The plaintiff’s case, as I understand it, is that he was able to deal with these incidents and maintain employment. However, over time, particularly after December 1999, the stress and anxiety he suffered as a result of continued discrimination and harassment by the defendant and its employees built up to the point where by January 2004 his psychological health was such that he was unable to maintain employment.
88 Nonetheless, to the extent that the pre October 1999 incidents did contribute to any injury the plaintiff claims to have suffered, they ought, by reason of the relevant provisions of the Act, be excluded from consideration. If am wrong in that assessment and it is argued that the injury which the plaintiff suffered, being the psychological reaction, did not of itself occur until after October 1999, notwithstanding that the incidents giving rise to injury occurred within the black hole,[35] then I prefer the version of events given by Mr Coman and accept his denial that the sexual advances were not made. I further accept his description of the trolley incident and the circumstances surrounding the termination of the plaintiff’s employment in September 1999. As I shall shortly state, in my view, the conduct of the defendant in respect of those incidents was appropriate, and not in breach of its duty as an employer to take reasonable steps for the plaintiff’s safety.
[35] See Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, per Ashley JA
Was there a Breach of Duty of Care or Contract of Employment in respect of the post October 1999 Incidents?
89 According to the plaintiff’s Statement of Claim, he asserts the conduct of the defendant was both a breach of the implied terms of a contract of employment, and, the defendant was in breach of its duty to take reasonable care to ensure the plaintiff was not exposed to the unnecessary risk of injury. The test as to whether there is breach of contract, or breach of duty of care, is essentially the same.
90 I shall first consider the allegations of the plaintiff that:
ƒ while at the St Kilda store, he was transferred to other stores
inappropriately;
ƒ while working within the Camberwell store, he was transferred amongst
various departments.
91 There is little if any evidence that there was anything inappropriate about the transfer of the plaintiff from St Kilda to the Toorak and Carlton stores, even if this did occur. I accept the evidence that the transfer from St Kilda first to Fitzroy and then Camberwell was at the behest of the plaintiff and organised firstly, to enable him to work at a store closer to where he lived in Carlton, and then transferred to the Camberwell Store as it was a larger store and able to offer the nightshift which the plaintiff desired.
92 The duties that the plaintiff was to undertake both at St Kilda and Camberwell are set forth in Exhibit AC. Aside from the bland assertion in the plaintiff’s first affidavit[36] that he was transferred between departments of the Camberwell and Fitzroy stores which was done “purposefully in order to frustrate me and cause me to resign”, the plaintiff gave no further evidence on the point. Likewise, a broad allegation was made in the plaintiff’s second affidavit[37] that he was transferred to the Toorak and Carlton stores for short periods of time and found it difficult to work. Aside again from that bare statement, there was no evidence from the plaintiff in relation to the matter. Further, there was not a complaint to the plaintiff’s treating doctors that these transfers, either between stores, or within stores, caused the plaintiff any psychological distress.
[36] paragraph 15 – CB 4
[37] paragraph 8 – CB 10
93 I am not satisfied there was any breach of duty on the part of the defendant in relation to those incidents.
94 The plaintiff further alleges that the defendant failed to pay in a timely manner:
ƒ the cold allowance
ƒ his entitlement to appropriate RDOs ƒ an appropriate penalty rate. 95 I prefer the evidence of Mr Coman that while the plaintiff did undertake some work in the dairy area, he was not entitled to the “cold allowance”. I further accept his evidence that this allowance was paid, after the intervention of the union, so as to promote a good workplace relationship. Likewise, again after union intervention, the plaintiff’s entitlement to RDOs was resolved. The situation was the same in relation to the vague allegations of not being paid the appropriate penalty rate.
96 The plaintiff’s real claim in respect of these allegations is that he was unfairly targeted and that it was not a situation simply of appropriate workplace bargaining, but rather he was discriminated against in a particular sense. I do not accept these allegations. I prefer the evidence of Mr Coman and Ms Edwards that the defendant took reasonable steps when the plaintiff raised these complaints and that the matters were resolved, often after discussion with the union.
97 Even if that were not the case, and the conduct of the defendant in failing to pay in a timely manner these various allowances, the defendant asserts that if it was in breach of its duty in that regard, the injury alleged to have been suffered by the plaintiff,[38] was not foreseeable in the circumstances.
[38] although the defendant denies the plaintiff suffered any psychological injury
98 The foreseeability of psychological injury arising out of a workplace was considered by the High Court in Koehler v Cerebos (Australia) Ltd.[39] In that case, the worker worked as a merchandising representative and fell psychologically ill after undertaking a workload which was said to be excessive. Referring to the decision of the Court below which found against the plaintiff, the High Court said:[40]
“The Full Court was right to conclude that a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the appellant. Because the appellant did not prove that the employer ought reasonably to have foreseen that she was at risk of suffering psychiatric injury as a result of performing her duties at work, her claim in negligence should have failed at trial. …
. . .
There are two reasons why the Full Court was right to reach the conclusion it did. First, the appellant agreed to perform the duties which were a cause of her injury. Secondly, the employer had no reason to suspect that the appellant was at risk of psychiatric injury.”
[39] [2005] HCA 15
[40] at paragraphs 26 and 27
99 Absent any specific intent on the part of the defendant to discriminate against the plaintiff, then, in my view, it was not foreseeable that any failure to pay these various allowances would result in psychiatric injury to the plaintiff. To the contrary, the steps taken by management were reasonable and without
Deleted: .
any malintent. The plaintiff’s cause of action in respect of these incidents
fails.100 While at the Camberwell store, the plaintiff alleges:
ƒ He was discriminated against when he arrived for work ten minutes late; ƒ He was required to take meal breaks away from other workers; ƒ His work milestones, including a five-year achievement award, were not
celebrated as occurred with other workers.101 Again, the plaintiff alleges that these incidents were part of a discriminatory campaign against him. As with the previous series of incidents, I reject the plaintiff’s contention. I prefer the evidence of Mr Coman and Ms Edwards that the defendant, even notwithstanding the plaintiff’s various demands, did not treat him in a manner different from other employees. I accept the evidence of the defendant’s witnesses that he was not singled out for special treatment but rather he could take his lunch with whomever he pleased. These matters were the subject of correspondence passing between the defendant and the union.[41] In my view, these issues were handled appropriately by the defendant.
[41] Exhibit E
102 Even if that were not the case, and it could be said that the defendant was in breach of its duty, I am not satisfied that the psychiatric injury which the plaintiff claims resulted could reasonably have been foreseen by the defendant. At best, all of these incidents were common workplace issues which arise regularly and were resolved after appropriate discussion.
103 Finally, the plaintiff alleges:
• Mr Marshall threw a milk crate at him in 2000; • He was treated inappropriately after the allegation that he had brandished a box cutter at Mr Marshall; • Mr Marshall was not called to give evidence. I may thus more readily accept the version of events given by the plaintiff.[42] An explanation of the incident was given in correspondence passing between the defendant and the union:[43] [42] Jones v Dunkel (1959) 101 CLR 298
[43] Exhibit E
“Regarding the incident relating to the empty milk crate being thrown at Sioum, the company was only aware of the incident at a much later date than when it occurred, but previous investigation into this matter gave evidence that the milk crate was kicked away from Sioum not thrown at him. In investigating this matter further it was discovered that this incident occurred due to the frustration of the manager when Sioum refused a reasonable request during his shift. We refute the allegation that this incident was due to racial discrimination.”
Further:
“This arose as the result of store instruction for nightfillers not to use milk crates to stand on to fill shelves. Marshall stated that he had seen Sioum, standing on a milk crate on previous occasions. On this occasion he saw a milk crate in Sioum’s aisles and he turned around and kicked the milk crate. The employer refutes the worker’s allegation that this incident was due to racial discrimination.”
104 Even accepting the plaintiff’s version of events, this incident is, in my view, trivial and if it could be said that there was any inappropriate conduct on behalf of the defendant in relation to it, such conduct again was not reasonably foreseeable as likely to produce psychological injury.
105 In relation to the box cutter incident, the plaintiff firstly denies that he brandished a box cutter in a threatening manner towards Mr Marshall. Accepting his evidence in this regard, the question is whether the steps taken by the defendant in investigating the incident were appropriate, as the defendant would have it, or on the other hand discriminatory, as the plaintiff would have it. Ms Edwards gave evidence that once notified of the situation, she immediately stood the plaintiff down to investigate the incident. In my view, this was entirely appropriate given the seriousness of the allegation. Once the plaintiff alleged that Mr Marshall had also threatened him, she took the even-handed step of standing Mr Marshall down. After conciliation with the union, and an acceptance by the defendant that there was insufficient evidence to support the allegation, the plaintiff was reinstated. Even the union regarded the matter as minor and not sufficient to warrant formal counselling.[44]
[44] see letter of 28 November 2003, part of Exhibit E
106 I am satisfied the defendant acted appropriately in the circumstances in its investigation and treatment of the plaintiff following the incident.
107 In a general sense, the plaintiff states that he was the subject of aggressive and isolating conduct, was singled out from other employees and was discriminated against. I do not find there is any evidence to sustain these allegations. In my view, the defendant treated the plaintiff appropriately. It is curious that he made no complaints to his treating practitioners of any psychological symptoms until after he left employment and his claim for a termination payment was rejected. It is possible the plaintiff perceived that he was being inappropriately treated and discriminated against, but the reality of the situation did not bear out such a perception.
108 For the reasons set forth, I am not satisfied the defendant was in breach of its duty of care towards the plaintiff, nor in breach of any implied condition of a contract of employment.
Conclusions
109 Given that I have found there is no breach of duty, the plaintiff’s case fails. It is not necessary for me to examine the psychological injury the plaintiff claims to have suffered, and the reports of the various doctors related thereto. It is clear the opinion of particularly the treating general practitioner, Dr Cooper, and the treating psychiatrist, Dr Katz, are to the effect that the plaintiff has suffered a significant psychological disorder, in the nature of a Post-Traumatic Stress Disorder and/or a depressive or anxiety condition as a result of the treatment at the hands of the defendant. However, each doctor is reliant upon the accuracy of the history provided by the plaintiff. As stated, I have reservations about the plaintiff’s credibility and his capacity to give an accurate history to these doctors. I prefer the opinions of:
•
Dr Rose,[45] who considered the plaintiff was more disgruntled than suffering from any psychiatric illness.
•
Dr Shan,[46] who saw the plaintiff on a number of occasions between November 2004 and July 2009. Initially he considered the plaintiff was upset rather than suffering any psychological illness. In 2009, he considered the plaintiff was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood but had the capacity to work in various occupations.
•
The opinion of Dr Epstein,[47] who saw the plaintiff at the request of his former solicitors and concluded that although the plaintiff appeared to suffer harassment, discrimination and racial vilification, he was entirely reliant upon the plaintiff’s version of events. While he considered the plaintiff had some symptoms suggestive of a Chronic Adjustment Disorder, he could not see any restriction for the plaintiff resuming employment with another employer.
[45] CB 264
[46] CB 268
[47] CB 292
110 Accepting that the plaintiff does have some form of psychological disorder, there are a range of issues in the plaintiff’s life which could account for it. According to the opinion of Dr Katz:
“Clearly Mr Tewoldeberhan fulfilled a criteria for a Mixed Anxiety Disorder and Depression which had been present for well over a year and possibly several years in relation to his employment difficulties, social isolation, disenfranchisement from his family of origin, the impact of divorce, financial difficulties and most probably broader marginalisation given his ethnic background and fragmented English … .”[48]
[48] CB 197
111 To the extent that the condition is a product of perceived employment
difficulties, they are, in my view, a perception in the plaintiff’s mind, rather than Deleted: treatment by any truly discriminatory treatment by his employer.
112 As a result, the plaintiff’s case fails.
113 I shall make further orders after consultation with counsel and the plaintiff.
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