Tom v BAE

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT

Case No. K13287971

Carmel Tom	Plaintiff
v
BAE SYSTEMS AUSTRALIA LTD.	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne
DATE OF HEARING:	16 – 23 February 2021, 25 February 2021
DATE OF DECISION:	7 May 2021
CASE MAY BE CITED AS:	Tom v BAE
MEDIUM NEUTRAL CITATION:	[2021] VMC 006

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CATCHWORDS - Workers Compensation – Rejection of claim – Mental Injury – Claim by a security officer of mental injury as a consequence of management action and in the course of employment - Whether mental injury was of a non-compensable type arising wholly or predominantly as a result of management action on reasonable grounds in a reasonable manner - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss. 39(1), 40 (1).

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms G. Jardine	Rubicon Lawyers
For the Defendant	Mr D. Churilov	IDP Lawyers

HER HONOUR:

Introduction and Overview

On 4 May 2018, during a missiles trial program at the RAAF Woomera Range in South Australia, an employee of BAE Systems Australia Ltd was observed taking photographs, apparently covertly, by an RAAF police officer. There flowed from that incident (‘the Woomera incident’) a series of events and consequences that ultimately led to this proceeding.

At the time of the Woomera incident, the plaintiff, Ms Carmel Tom, was employed by BAE Systems Australia Ltd (‘BAE’) as the contractor programs security officer. BAE, a multi-national defence and security company, was engaged by the Commonwealth Government, a major ‘customer’ of BAE in relation to the program at Woomera.

Ms Tom brings her proceeding claiming for mental injury against BAE under the Workplace Injury Compensation and Rehabilitation Act 2013 (Vic) ‘the Act’. Two claims were lodged for mental injury, both rejected by the Agent, which are the subject of this proceeding. The initial claim dated 15 May 2019 had a nominated date of injury of 15 March 2019 (when Ms Tom was informed at a meeting of the suspension of her employment) (‘the first claim’). The second claim dated 28 March 2020, lodged a year after she ceased work, was an ‘over the course of employment’ claim related to her employer’s conduct (‘the second claim’).

In its further amended defence dated 16 February 2021, BAE admitted that Ms Tom had suffered a mental injury on 15 March 2019 that arose out of or in the course of employment as a result of BAE’s management action. The claim was defended on the grounds the mental injury was non-compensable as it arose wholly or predominantly as a result of management action taken on reasonable grounds and in a reasonable manner: s 40(1).

Throughout the proceeding, there was contention as to the scope and nature of the plaintiff’s case. This was a case involving relatively complicated facts and circumstances. Counsel for the defendant objected to an apparent ‘discordance’ between the plaintiff’s pleadings and what was covered in the plaintiff’s opening address. The manner in which a plaintiff’s case is shaped, by way of pleadings and when the case is brought to Court, is always a matter of significance. As the defendant observed, quite correctly, in written submissions, this issue is ‘particularly apt in the plaintiff’s case which alleges a psychiatric injury suffered throughout the course of more than 3 years of employment, as well a psychiatric injury suffered on the specific date of 15 March 2019’.[1] I will return to the ambit the plaintiff’s case prior to setting out my findings.
[1] Defendant’s Submissions (‘DS’) at [25]

Conducted over seven hearing days via WebEx, for the plaintiff, oral evidence was given by the plaintiff and by lay witnesses, Mr Jim Phillips (a former Commonwealth employee), Mr Justin Fisher and Mr John Freeman (both employees of BAE). For the defendant, four lay witnesses (all BAE employees) gave evidence: Mr Tony Antoniades, Mr James Keating, Ms Jane Franzi-Ford and Mr Daniel Godsall. All medical evidence was tendered into evidence by consent.

At the conclusion of the case, a transcript of the proceeding was authorised. Written submissions were subsequently filed and served by both parties in accordance with an agreed time-table that was completed by 20 April 2021.

For the reasons that follow, I find that the plaintiff is entitled to the relief that she seeks.

Background Circumstances

It is useful to set out some background matters which are either agreed or not in dispute. To the extent there is a dispute, that is noted.

In May 2018, BAE was engaged with the Commonwealth in the missiles trial program at Woomera known as the Nulka project. Security for the Nulka project, as far as BAE’s involvement was concerned, lay within Ms Tom’s responsibility.

Personnel working on Commonwealth programs needed security clearance which had various levels from ‘basic’ to ‘top secret’. Security clearance for individuals rested with Australian Government Security Vetting Agency (‘AGSVA’). It was necessary to notify AGSVA of any changes to an individual’s personal or financial circumstances such as change of address or marital status or receiving a bequest. This would be done by the person’s sponsor (usually the employer) by submitting to AGSVA an SVA004 ‘Change in Circumstances’ form. The SVA004 form, utilising ‘review for cause’ section, also notified AGSVA of changes of circumstances that flagged concerns as to the suitability of the person holding the clearance. A person could self-report to AGSVA using an SVA003 form regarding changed of circumstances.

Notifications as to security clearance could also be logged via an online portal known as DOSD (an acronym for Defence Online Services Domain). There was some dispute as to whether, if the DOSD portal was used, an SVA004 form also had to be submitted to AGSVA.

It was not in dispute that Ms Tom, at all material times (until her suspension on 15 March 2020) had the highest possible level of security clearance which was ‘positive vetted’.

Ms Tom’s usual place of work was BAE’s Richmond premises in Victoria. It was also not disputed that Ms Tom operated in a ‘stand-alone environment’ due to the highly sensitive nature of the Nulka project. This was both in a physical sense within the Richmond premises and from an IT perspective.

From around 2015, Ms Tom’s line manager with BAE was Mr Keating. Regarding the Nulka project, Ms Tom also had a reporting line or point of contact into the security officer within the Defence department. In 2018 that person was Mr Tom Allanson. There was some dispute as to whether this was a formal reporting line (as Ms Tom asserted) or ‘a point of contact’ (as Mr Antoniades and Keating said).

After the Woomera incident, the RAAF officer who had observed the BAE employee (Mr Matt Wierenga) taking photographs considered this incident to be a security breach. He lodged an ‘XP188 security incident report’ (the ‘Woomera XP188 report’).

Subsequently, BAE undertook an investigation into the Woomera incident which was the subject of a report (‘the May 2018 report’). The Woomera XP188 report was reviewed as part of that investigation. The May 2018 contained a number of recommendations which included:

· BAE Security Plan to be approved by both [Woomera] Range and Commonwealth Security in advance of arrivals for trials’. …

· The BAE Project Security officer is acting alone in provision of security outcomes for the Nulka project and represents a single point of failure. An additional independent security resource to work with the Nulka project to provide an assurance oversight and review recommendation is recommended. The single point of failure represents a security compliance risk to [BAE]’.

· Consideration that CARMEL TOM be referred to HR for potential disciplinary action, to include:

o Failure to strictly control the Trial camera.

o Failure to Secure trails [sic] camera at the end of each working day

o Failure to adequately complete the BAE Security Plan and communicate to BAE staff security requirements consistent with the BAE Security Plan

o Behaviour concerns in verbal communication and mannerisms to BAE staff concerning [the Woomera] incident’

o Lack of confidence by the Security Function in the Project Security Officer’s ability to perform and discharge security responsibilities.

· BAE Security Plan to be written/reviewed in conjunction with BAE Project staff.

During 2018, Ms Tom submitted two different SVA004 ‘Change of Circumstances’ forms in relation to Mr Wierenga, the first was submitted in July 2018 and the second in December 2018 (‘the July and the December SVA004 forms’).

In December 2018, BAE decided to do a review of the May 2018 investigation into the Woomera incident. The ‘trigger’ for this was said to be BAE being informed by AGSVA of a downgrade to Mr Wierenga’s security clearance. The review, which was begun in January 2019, was finalised in early March (‘the March 2019 report’).

On 7 January 2019, Ms Tom was appointed to a new position in a different BAE division based in Adelaide (‘the Adelaide role’). Ms Tom agreed to Mr Keating’s request to remain in her role at the Richmond premises to do a handover.

On 15 March 2019, in a meeting and by way of a letter of the same date, Ms Tom was informed of the suspension of her employment and associated matters. She ceased work on that date and has not returned to work since that time.

Plaintiff’s Evidence

Employment Background and Personal History

Ms Tom, who is aged 64 years, joined the Women’s Royal Australian Naval Service (‘WRANS’) at the age of 19. After discharge, she joined the Royal Australian Naval Reserve of which she remained an ongoing serving member. In around 1989, she began working for the Naval Police in administration. She was then employed with the Defence Forces (in an administrative role) which included time in East Timor. After that, she worked as a security officer for Tenex for some years. At one stage, there was some psychological counselling in the context of her second marriage ending.

BAE Employment

On 15 June 2004, Ms Tom began working for BAE as a deputy security officer. Later, she was appointed to the contractor programs security officer role and operated in the ‘stand-alone environment’. Ms Tom was wholly and solely responsible this area which had vault doors and its own alarm system. In re-examination, she said it was ‘literally a business within a business’. She said she had ‘a very, very close reporting line’ to the Commonwealth in Canberra.

Ms Tom said there were difficulties with her line manager from 2015, Mr Keating, whom she found to be very critical, frequently rude and aggressive. He was abusive and would swear at her a lot, for example he would say to her, ‘why do you have to fucking complicate everything all the time’. He would call her into a sound-proof meeting room and rant and rave. If they were not in that room, he would stop if he heard someone approaching. Mr Keating denied all these matters.

Mr Keating wanted to micro-manage her communications by being copied into all emails and being sent notes of phone conversations. She did this for a while but found it too time-consuming. Mr Keating denied wanting to be copied into all emails and said it was only on certain aspects of the project and with the customer. One time, Mr Keating insisted that she draft an email to the Commonwealth as though it were from her. When she showed him the draft, he said; ‘what the fuck are you doing? You’re trying to fucking set me up’.

Ms Tom felt stressed and threatened by Mr Keating’s conduct. She had trouble sleeping, stomach problems and shingles and his aggression was such that she felt worried for her personal safety.

On 16 January 2016 Ms Tom saw her GP complaining of being very stressed at work. The history recorded was of a ‘verbally abusive’ and ‘very condescending’ boss who ‘swears and [was] critical of normal activity who reportedly micro-manages e.g. details of any phone call has be emailed’. Ms Tom said this referred to Mr Keating. In cross-examination, Ms Tom agreed there were no other specific complaints to her GP (nor time lost from work) for work-related stress between January 2016 and the middle of 2018.

As for the Woomera incident, Ms Tom said the incident was categorised as a ‘minor security breach’ until Mr Wierenga had apparently lied about it to the RAAF police officer after which it became a ‘major security breach’.

Ms Tom said she had no reporting line to BAE’s head of security, Mr Antoniades. He lacked the necessary clearance to be briefed into her work in the stand-alone environment. At one point, this was becoming a problem and so she arranged for the Commonwealth to give him a high-level briefing.

May 2018 Meeting

In late May 2018, Ms Tom was asked by Mr Keating to attend a meeting about the Woomera incident (‘the May 2018 meeting’). Ms Tom asked a colleague, Mr Fisher, to attend as a support person. A HR officer was also present. Ms Tom was told in the meeting by Mr Keating that a report had been completed on the Woomera incident and that the matter was now closed. Ms Tom said she was shocked that a report had been completed and the matter closed without her feedback. However, in cross-examination, she agreed that about a week before the May 2018 meeting, she had been asked questions about the Woomera incident by a BAE IT security officer, Mr Sam Williams and also emailed him some documents.

In the May 2018 meeting, Ms Tom asked Mr Keating for a copy of the report for her stand-alone environment. This was so she could comply with her mandated reporting obligations to the Commonwealth. Mr Keating told her: ‘not gonna happen.’ Ms Tom was told the reason was that her name was mentioned in the report. In cross-examination, Ms Tom disagreed Mr Keating told her it was a ‘lesson learned’ meeting. She also disagreed that Mr Keating told her the report could not be shared with her because BAE was waiting for the Commonwealth’s response to the report. Ms Tom said, given her level of clearance, there could be no security matters in the report that couldn’t have been shared with her.

Events following May 2018 Meeting

After that, Ms Tom heard nothing more about the May 2018 report nor its recommendations from either Mr Keating or from HR.

Ms Tom felt a change in attitude from some colleagues. People who had been friendly seemed to be avoiding her. At one point, she overheard a colleague saying, ‘Poor Matt’ (meaning Mr Wierenga), however she still had no information about what was contained in the May 2018 report.

Mr Keating’s behaviour towards her deteriorated with more swearing and abusive language. At one point, Ms Tom told him he had a vulgar mouth and she wouldn’t allow her children to speak to her in such a way. Mr Keating denied all these matters.

Even before mid-2018, Mr Keating wanted her to keep him informed, but also objected to her taking up his time. He was hard to catch and would frequently say, ‘I don’t have fucking time’. At one stage, she put recurring weekly meetings in their calendars, but he turned up at only two of these meetings. Mr Keating denied not making time for her.

In mid-2018 Ms Tom saw her GP three times about workplace stress. On 29 June 2018, she saw Dr Nader Abou-Seif who diagnosed an adjustment disorder with depressed and anxious mood. The history recorded was: ‘Significant work-related stress after security breach at Woomera where someone breached restrictions’ and of BAE being ‘supportive of other employee’ and ‘gunning for me’. On 3 July 2018 she saw Dr Russell Searle who recorded: ‘Still stressed ++ by incident regarding work last week.’ Dr Searle recorded the same diagnosis and stress-related dermatitis issues. On 21 July 2018, she again saw Dr Abou-Seif who recorded: ‘Still upset – report by BAE apparently critical of her and supportive of engineer involved with security breach. Commonwealth supportive of her. Looking for alternative employment’.

When asked in cross-examination what she had meant by BAE ‘gunning for her’, Ms Tom said it was a ‘gut feel that something was wrong’. She had the feeling something was wrong because of the refusal to share the May 2018 investigation report and because some people were treating her differently.

In late 2018, Mr Keating learned Ms Tom been appointed to the Adelaide role. When he asked why she hadn’t told him, she had replied: ‘Why would I tell you? You are nothing but abusive to me and I hate working for you’. Mr Keating had slammed the table and literally jumped up over it, screaming, ‘Let me tell you about fucking military people’. Ms Tom told him she had worn a uniform for 42 years and knew how the military worked whereas he had never worn a uniform. Ms Tom said she was crying and shaking afterwards. Mr Keating denied this incident occurred.

The July SVA004 Form

In cross-examination, Ms Tom agreed she had submitted the July SVA004 form about Mr Wierenga’s security clearance. Initially she didn’t recall doing so, but later conceded she had submitted it making reference to the Woomera XP188 report lodged by the RAAF police officer. Her reason for submitting the July SVA004 form was to comply with her mandated reporting obligations to the Commonwealth in her stand-alone environment.

Ms Tom also said it was a daily practice for her to be submitting SVA004 forms for personnel on her program as a wide range of circumstances such as changing address and so on. This was because staff as engineers were often too busy to do this paperwork themselves.

As for whether she considered the impact on Mr Wierenga in submitting the SVA004 form, she said the Woomera XP188 report as to the security breach had already been filed. Once she was provided with a copy of Woomera XP188 report, she was mandated to do an SVA004 form into AGSVA from BAE’s side and for her stand-alone environment and given Mr Wierenga was a BAE employee on her program. She agreed she ticked ‘yes’ to the ‘review for cause’ section. She said the fact of Mr Wierenga causing a major security incident meant there was a change of circumstance and the person’s integrity was severely in question.

Ms Tom agreed she took this step without informing Mr Keating or Mr Antoniades or anybody within BAE. She had held off until July after unsuccessfully, and often, trying to discuss the matter with Mr Keating. Anyway, Mr Keating knew of her mandated requirements. Ms Tom disagreed that internal BAE approvals needed to be obtained before lodging an SVA004 form. She said seeking internal approval could be pose a potential security risk if, for example, concerns arose about a more senior person in the organisation. Under pressure of cross-examination, Ms Tom conceded that the ‘review for cause’ section should only be ticked ‘yes’ after there had been a full internal review to determine the person’s suitability to hold a security clearance.

As for how any conflict between Commonwealth and BAE procedures was to be managed, Ms Tom said her mandated requirements in her stand-alone environment over-rode what was happening ‘outside with Tony Antoniades’. She also said that BAE program procedures were always subordinate to the Commonwealth procedures.

The December SVA004 Form

On 17 December 2018, Ms Tom submitted the December SVA004 form regarding Mr Wierenga’s clearance. She said this was to comply with a request made by Mr Allanson. There was a meeting with him in about November or early December of 2018 attended by Ms Tom and Mr Keating. Mr Fisher was also present. Mr Allanson asked whether Ms Tom had downgraded Mr Wierenga’s security clearance. Ms Tom said she hadn’t. Mr Allanson said he no longer had a requirement for Mr Wierenga to have clearance at his current level. Mr Allanson requested that be done and Mr Keating had said, ‘I’ll make sure Carm has it done by Monday’.

In cross-examination, Ms Tom agreed it was a standard process to remove a registered interest in a person’s authorisation or clearance on a project once that person’s work was complete. However, she denied that was the request made by Mr Allanson. Rather, the request was for her to have Mr Wierenga downgraded from one level to a lower level. Ms Tom agreed that notifications as to security clearance could also be logged via the online portal known as DOSD. Ms Tom denied having submitted the December SVA004 form erroneously rather than simply logging the removal of Mr Wierenga’s authorisation via the DOSD portal. She had logged onto DOSD, but said that a ‘change of circumstances’ form to AGSVA was also required. When asked whether Mr Allanson or Mr Keating had told her to use the SVA004 form, Ms Tom said they had, then later she said did not need to mention particular forms as she knew the process.

Other events of late 2018 and early 2019

Ms Tom was attending her usual GP clinic for various medical issues over the second half of 2018 and twice in January 2019. She agreed, in cross-examination, that there was no complaint made of workplace stress. This was because she could de-brief with two trusted colleagues at work. Things were still ‘bad’ at work and she would come home and cry. By January 2019, Ms Tom was aware she would be changing roles (having obtained the Adelaide position). She was ‘thrilled to bits’ to be getting away from James Keating and Tony Antoniades.

On 4 February 2019, Ms Tom’s appointment to the Adelaide position commenced but she stayed on at the Richmond premises for hand-over purposes. She was then overseas for four weeks on a work trip returning to work at Richmond on 14 March 2019.

March 2019 Meeting

48 On 15 March 2019, at around 6:30 am, Ms Tom received an email ‘invite’ from Mr Antoniades requesting she attend a meeting that morning at 9:00 am. She was informed in the email she could bring a support person. She accepted the invite electronically and asked a colleague, Mr John Freeman, to come along as her support person. Ms Tom agreed that 6:00 am was her typical start time and it was common for her to receive emails that early. She had ‘put it together’ in her mind that the meeting must be about the Woomera incident.

Ms Tom walked into the meeting with Mr Antoniades and immediately saw on the table a letter to her headed ‘Suspension of Employment’. When she saw the letter, she said: ‘I can’t cope, I can’t cope, I need to leave’. She then left the room for a short time with Mr Freeman to compose herself. In cross-examination, she agreed she was shocked and traumatised at seeing the words ‘suspension of employment’. She said she knew it was the end of her employment and it was a catastrophic thing in her mind.

The letter (which was dated 15 March 2019 and was from a HR officer Mr Godsall) was read aloud verbatim by Mr Antoniades. Mr Godsall was also present. In cross-examination, Ms Tom denied there were explanations as well as the letter being read aloud. Ms Tom tried objecting to matters in the letter, but Mr Antoniades continued reading aloud over the top of her. She disagreed that it was explained to her the meeting was not a performance review meeting. Mr Antoniades and Mr Godsall both denied the meeting involved a verbatim reading of the letter in this way.

The letter’s first two paragraphs stated:

I refer to our meeting on 15/03/2019. The purpose of the letter is to confirm that, as discussed during that meeting, you have been suspended from work until further notice.

As we discussed during our meeting, the suspension has arisen out of the security incident related to photography on site that took place on 4 May 2018. As you are aware, this incident was investigated and the initial findings highlighted concern with your involvement in that incident. Unfortunately, the findings from that investigation have not been formally released as Ashley Searl, [BAE’s] General Manager for Weapons Systems, is still awaiting formal feedback from the customer – which is the Project Systems Project Office.

The letter then stated that ‘subsequently’ Mr Antoniades had been notified of an employee’s clearance being downgraded based on ‘an initial’ SVA004 form submitted by Ms Tom. It went on: ‘As a result of this, Tony requested that the initial investigation conducted be reviewed…” The letter then set out findings of the March 2019 review as to Ms Tom’s responsibility for meeting BAE’s security obligations at Woomera and for ensuring policies were met by project team members who had use of the camera. The letter went on:

Despite the above, you failed to identify that the person taking the photos was authorised to do so in a dry run day, in an unclassified environment as such, based on the available evidence, no incident had occurred.

The review’s findings were of ‘multiple security incidents’ being breaches related to the use of the camera and the digital SD card in the Woomera incident.

A further finding related to Ms Tom’s submitting of ‘a second adverse Change in Circumstances (SVA004) on 17 December 2018 which resulted in the relevant employee’s security clearance being downgraded as a result of the unsubstantiated security incident on 4 May 2018’. In relation to that, the letter then stated:

You did not follow [BAE’s] procedures … by submitting the SVA004 to the AGSVA without notifying either the relevant employee’s manager or the employee’s security officer, or seeking approval from [BAE’s] Head of Security.

The letter went on to say that, ‘As a result of these findings’, BAE was obliged take to steps including:

a. To submit a XP188 security incident report with the Security Incident Control Centre in Canberra;

b. To notify AGSVA and request a review of Ms Tom’s security clearance level;

c. To ‘implement control measures to reduce the risk of further incidents and/or patterns of behaviour which puts [BAE] – and protected national security information – at risk.’ The measures were BAE lodging a SVA004 form requesting downgrade of Ms Tom’s clearance to basic clearance’ and her suspension.

d. To convene a further meeting with Ms Tom on 19 March 2019 at the BAE’s Williamstown premises. This was to allow her ‘the opportunity to respond the review’s conclusions’. She was invited ‘to provide any documents, witnesses or other information that you think will be relevant to this matter’.

e. To suspend her on full salary.

f. To limit her ‘systems access’ during her suspension.

Ms Tom said she had absolutely no knowledge of the ‘initial findings’ of the May 2018 investigation nor of how such findings had ‘highlighted concern’ with her involvement in the Woomera incident. She asked to see the review report, however Mr Antoniades had ignored her and kept reading the letter aloud. Ms Tom denied that it was specifically explained to her that Ms Franzi-Ford, a recently appointed BAE employee, had conducted the review.

Ms Tom was told that she had the opportunity to give her point of view either before or at the next planned meeting on 19 March 2018. Mr Godsall told her she was not to discuss the meeting with anyone. Ms Tom was asked not to contact the customer (meaning the Commonwealth) as Mr Searl would do that. Ms Tom said she had a mandated reporting obligation to also inform the Commonwealth of any adverse matters against her as she was the security officer of the program. In cross-examination, Ms Tom conceded that had BAE made findings of security breaches having occurred, then it was obliged to submit an XP188, to notify AGSVA and ‘to implement control measures’. She also conceded that, in such circumstances. it would be reasonable to suspend her employment to protect itself and the Commonwealth.

The letter concluded by stating that the ‘suspension is not a disciplinary process and in no way implies that any assumptions have been [made]’. The letter acknowledged this may be ‘an unsettling time’ for her and reminded her of the availability of the employee assistance program (EAP).

At the end of the meeting, Ms Tom was crying and shaking violently and had to be helped from the room by Mr Freeman.

Events after 15 March 2019 Meeting

Ms Tom said after this meeting she felt bewildered, shocked and flabbergasted. She had ‘a bit of a meltdown’. She called her GP from the car on the way home, but could not get an appointment till the next day. She was crying and in shock. She had to read the letter several times when she got home. She let her program security officer in Canberra know what had occurred and also notified AGSVA that her security clearance had been downgraded. The downgrade from ‘top secret’ to ‘basic’ meant there was no way she could do her job at the Richmond site nor do the Adelaide role.

The next day she saw her GP who certified her unfit for work for the week. The history recorded was: ‘very upset re employment issues & impending termination related to a perceived personal vendetta by a work colleague. Issues relating to last May 2018 have not been resolved relating to a security issue’.

Ms Tom said once she got home on 15 March 2019, she saw her contacts on her work mobile phone had been ‘wiped clean’ as had her laptop. This meant she could not contact any witnesses nor pull up documents that may have supported her regarding the allegations. Mr Antoniades denied any instruction were given to wipe the phone.

On 18 March 2019, Mr Godsall phoned to check on her welfare and about her responding to the matters raised in the 15 March meeting. She asked how she would do that when BAE had wiped her phone and wiped all her emails. Mr Godsall seemed quite shocked with that.

On 19 March 2019, Mr Godsall phoned Ms Tom to see whether she was coming to the meeting that day. She said she was on sick leave. Mr Godsall asked her about her response to the allegations and proposed she attend the Williamstown premises to have computer access under strict supervision. Ms Tom said this was useless and no help as she needed to access her stand-alone environment. Ms Tom received a letter of the same date from Mr Godsall confirming she was now on sick leave. The letter advised the next meeting would be on 25 March 2019. This would give her time to access her emails ‘in a controlled environment’. The letter stated that once BAE had her input, Mr Antoniades would make a decision about the downgrade to her clearance to basic and ‘any implications of this for [her] employment’. The letter said BAE was ‘obviously keen to provide her with the opportunity to recover’, but there were concerns ‘about the Company’s security obligations and the need to manage the current situation with our customer [the Commonwealth]’. Whilst ‘not wishing to ‘place [her] under any pressure’, the letter stated that if she didn’t attend the 25 March 2019 meeting, she would have 48 hours (until close of business on 27 March 2019) to provide any material. Mr Antoniades would then make his decision. BAE would then, when she was sufficiently recovered, discuss with her ‘the implications of Tony’s decision for your employment’. Ms Tom was reminded about the availability of EAP and invited her to refer any questions to Mr Antoniades or to Mr Godsall.

Over this time, Ms Tom continued to be very distressed. On 21 March 2019 she told her GP ‘basically I have been sacked.’

Current Circumstances and Work Capacity

Ms Tom has been certified as having no work capacity from 15 March 2019 onwards. She has continued to see a psychologist, Dr Ricketts, fortnightly as well as a psychiatrist, Dr Schreuder. She has been disinclined to take anti-depressant or anti-anxiety medications as these were ‘mind-altering’. As a younger woman, she had been impacted negatively by her father’s mental illness.

Evidence of Lay Witnesses

Mr James (‘Jim’) Phillips was a security officer with the Commonwealth in Canberra for ten years till December 2017. (This was the role held by Mr Allanson in 2018.) For most of his time in the role, Ms Tom had reported to him regarding security matters. They had kept up a social friendship since then. Mr Phillips said Ms Tom effectively had two reporting lines: one, within BAE, to Mr Keating, and the other, to the Commonwealth, on security matters. Ms Tom was a long-standing BAE employee who had worked successfully under several managers. However, under Mr Keating, her experience had deteriorated and she became unhappy. Her demeanour improved markedly when appointed to the Adelaide role. His observations were based on phone-calls with Ms Tom and visits to BAE’s Richmond premises.

Mr Justin Fisher, senior technical support officer, had worked for BAE for 20 year. He had known Ms Tom for ten years and part of his role was IT support for Ms Tom’s program. Mr Fisher said Ms Tom had ‘two masters’, one with BAE and one with Commonwealth. Mr Fisher said that, at the May 2018 meeting (which he attended as Ms Tom’s support person), Mr Keating had said an investigation report had been done on the Woomera incident and that it was now closed. Mr Keating refused to give Ms Tom a copy of the report because people had spoken about Carmel in it. In cross-examination, Mr Fisher disagreed the meeting was called a ‘lessons learned’ meeting, instead it was that a report had been done and the matter was closed. After the May 2018 meeting, Ms Tom had seemed withdrawn. Whereas she was usually quite joyful in her interactions with others, she became timid and quiet.

Mr Fisher was also at the meeting in November or December 2018 with the Commonwealth. Mr Allanson had said Mr Wierenga was not required in the program and he wanted his clearance downgraded. Mr Keating had said that Ms Tom would do it by Monday. In cross-examination, Mr Fisher agreed no one mentioned an SVA004 form specifically.

In March 2019, Ms Tom contacted him about telephone and computer issues and it appeared these may have been remotely wiped. However, in cross-examination, he conceded had not verified that himself as the phone was off-site.

Mr John Freeman, quality manager, had worked for BAE for 21 years and had known Ms Tom over her whole time at BAE. They were work colleagues only. In January 2019, Ms Tom was looking forward to being in the Adelaide role with other team members with whom she may have a better relationship. By this he meant Ms Tom had found difficulty with her line manager, Mr Keating, and also Mr Antoniades.

Like Ms Tom, he tended to get to work at around 6:00 am. He agreed to be a support person at the 15 March meeting. Ms Tom seemed dismayed by the sight of the letter when they entered the room. She was in a state of shock and had to leave the room. She told him, ‘This is all a set up. They just want to get me out’. Mr Freeman’s impression was the meeting seemed to be going down a certain course and that was it. He didn’t get the impression any part of the meeting was a two-way discussion. The letter was read aloud by Mr Antoniades who would not elaborate on anything, saying ‘it’s in the letter’. It was explained that the March 2019 review had been done by someone unconnected with the May 2018 investigation. It was also explained that Ms Tom’s employment was not terminated.

Mr Antonis (‘Tony’) Antoniades, director of security, had worked for BAE since 2011 and in his current role since 2014. His interactions with Ms Tom, whom he had known since 2013, were extremely infrequent and might include just passing her in a corridor. When asked about his dealings with Ms Tom, he said he found her uncooperative, outside her own sphere, with the business as a whole and with BAE’s broader security function. He thought she had a bit of an ‘us and them’ mentality. He said it was not accurate to say she had effectively two masters (meaning BAE and the Commonwealth), however she did have reporting obligations to the Commonwealth, initially to Mr Phillips, then to Mr Allanson. In cross-examination, Mr Antoniades conceded that whilst he had responsibility for all security outcomes within BAE, he did not have any idea of the security issues for projects within Ms Tom’s stand-alone environment. He also conceded that he had a lower level of clearance than Ms Tom so far as the stand-alone environment was concerned.

As for the May 2018 report, until feedback was received from the customer (meaning the Commonwealth), the report would not be shared further. In cross-examination, Mr Antoniades could not say why Ms Tom had remained in her role in spite of the May 2018 recommendation that she be referred to HR for potential disciplinary action nor was he aware of any outcome from a HR perspective.

As for the other May 2018 report recommendations, Mr Antoniades was not aware there being any new process for advance approvals by Woomera Range and Commonwealth security of the BAE Security Plan for trials. As for the May 2018 finding that the BAE project security officer acting alone in providing security outcomes for [the program] represented ‘a single point of failure’, Mr Antoniades agreed that was very serious and could compromise the business. He conceded it would be something requiring immediate action and that ‘the single point of failure’ represented ‘a security compliance risk’ to the Company. However, he also said the ‘single point of failure’ was a failure confined within the stand-alone environment and not across the broader business. When asked what he, as the head of security, did about ‘the single point of failure’, he said he would have highlighted it to the general manager, Mr Searl, in late May or early June and to his manager, the chief counsel.

As for BAE personnel submitting SVA004 forms to AGSVA about other personnel, the procedure was that would only be done at the end of an internal process. There should be approval of the line manager who would turn escalate it ‘up through the chain’ to the head of security. This was to ensure both visibility for the company and a just, fair and accurate process before a judgement was made on another individual which could impact adversely a person’s livelihood. In cross-examination, Mr Antoniades conceded that whilst the decision-maker as to an SVA004 notification was AGSVA, nevertheless AGSVA was ‘complicated’ and ‘a right outcome every time’ was not assured. He had no awareness that Ms Tom lodged SVA004 forms on behalf of personnel on a daily basis. In cross-examination, Mr Antoniades disagreed with the proposition that, in the event of an XP188 report being filed as to a security breach, that would be a basis for notifying AGSVA of a ‘review for cause’ in a SVA004 form. Mr Antoniades said the July SVA004 form (even though based on the Woomera XP188 security incident report) ought not have been submitted before an internal BAE process to determine that a ‘review for case’ was appropriate.

In late December 2018, Mr Antoniades was informed that AGSVA had downgraded Mr Wierenga’s clearance. Mr Antoniades said BAE had no idea why this downgrade had occurred. His first thought was to wonder whether the May 2018 investigation had missed something, so he decided to arrange a review. He allocated the task of the review to a new BAE employee due to start on 8 January 2019, Ms Franzi-Ford, who was suitably qualified. She could take a ‘fresh eyes look’ at the May 2018 investigation after she had been through induction.

In cross-examination, Mr Antoniades was questioned about the delay between the May 2018 report’s findings of ‘a single point of failure’ and a ‘security compliance risk’ and arranging the March 2019 review. Mr Antoniades said it was nowhere ‘in my thought process regarding the previous investigation’ other than the downgrade of Mr Wierenga’s clearance may be related to the Woomera incident.

On 5 March 2019, the March 2019 review report was delivered to Mr Antoniades. He then became aware, for the first time, of the July SVA004 submitted by Ms Tom. He formed the view that Ms Tom, an experienced security officer, had shown a ‘pattern of behaviour’ of failures, non-compliances and an inability to follow process. All this added up to very poor security behaviour and the implications were severe. The Nulka project for which Ms Tom had security responsibility was extremely sensitive to the national security interests. Additionally, there were potentially dire reputational issues for BAE that could cost millions in the event of loss of contract. In terms of next steps, there was an urgency in implementing control measures around what had been found and to separate the security officer (Ms Tom) from that environment. This necessitated standing her down whilst she had a right of reply to the allegations raised by the review report.

Before the 15 March meeting, Mr Antoniades had ‘socialised’ the report with HR to ensure the review had been done in a fair manner. Input was sought from senior management (meaning Mr Searl) but he could not say whether Mr Searl had seen the 15 March letter before the meeting on that date. When pressed on that, he said the letter and ‘a lot of the process to this point’ was all triggered by HR rather than himself. He said the review report was not provided to the Commonwealth until after Ms Tom’s resignation.

Mr Antoniades agreed that the BAE findings in the March 2019 review were inconsistent with the Commonwealth’s findings in the Woomera XP188 report.

As for sending the email invite at 6:00 am, Ms Tom was known to be a very early starter. The meeting’s purpose was to present to Ms Tom the findings and recommendations of the March 2019 review report, so she could have a right of reply. He said they had slowly read through the letter elaborating with further explanation as they went on all points. The letter set out ‘a suite of steps’ for Ms Tom to have a right of reply. Ms Tom was told that for risk mitigation her access to the corporate network would be limited and she was told not to contact the customer directly. She was not given a copy of the March 2019 review report because it contained findings and recommendations that did not pertain to her.

Ms Jane Franzi-Ford was the national security governance and insurance manager for BAE and reported to Mr Antoniades. She started in the role on 7 January 2019, having previously worked for the Commonwealth Department of Defence including a period with AGSVA as manager of the ‘review for cause’ team. She began the March 2019 review in mid-January 2019 at Mr Antoniades’ request. She reviewed all materials made available including: the Woomera XP188 report, the July and December SVA004 forms and all the materials made available to Mr Williams for the May 2018 investigation. She spoke to personnel who had been at the Range at the time of the Woomera incident. She had a long conversation with Mr Keating to get a sense of the overall picture. When asked why she did not speak with Ms Tom in the course of the review, she said that was because Ms Tom had provided responses to all the previous queries as to policy and evidence during the May 2018 investigation.

The review findings, in essence were that: the Woomera incident was not a security incident; Ms Tom had not secured the camera in accordance with defence policy and the BAE security plan and also had given the wrong response when questioned about Mr Wierenga’s use of the camera. Ms Franzi-Ford said these matters represented a security risk pertaining to Ms Tom because she had been involved in developing the security plan. Also, regarding the SVA004 forms, these had been submitted by Ms Tom without BAE approval. Ms Franzi-Ford said the July SVA004 related to behaviour (meaning what occurred in the Woomera XP188 incident report) and was not a request for a downgrade. The July SVA004 form was, she understood, still in progress as at the time of the March 2019 review. She said that the December SVA004 form was to do with a downgrade of security clearance and would have gone through an online portal and been automatic. That would have generated an automated email from AGSVA to Mr Wierenga.

Ms Franzi-Ford recalled seeing that Ms Tom had made a statement to the effect that she was advised by the Commonwealth to downgrade Mr Wierenga’s clearance. Ms Franzi-Ford thought this was referred to in an email from a senior member of the security team at the Richmond premises and was included in the materials provided to her for the review. In cross-examination, she said there was a statement of facts (prepared by the RAAF police officer) attached to the Woomera XP188 report. This was to the effect that the BAE camera was taken on an ‘non-live’ day of the trial; Mr Wierenga was approved to use the camera on ‘non-live’ days; and the photos did not contain any classified information.

Mr Daniel Godsall, HR business partner, had worked for BAE since 2011. He said Ms Tom (whom he had not met before the 15 March meeting) had a long, unblemished personnel record with BAE. About a week prior to the 15 March meeting, he was briefed with an executive summary of the March 2019 review by Mr Antoniades and also spoke with Ms Franzi-Ford. Mr Godsall’s role was HR guidance to Mr Antoniades. He was unaware of the Woomera incident or the May 2018 report until that briefing. In cross-examination, Mr Godsall agreed the recommendations from the May 2018 report looked very similar to those in the executive summary he had seen of the March 2019 review. Mr Godsall conceded that if an employee had been identified as ‘a single point of failure’, it was a management activity to address. He agreed he was surprised Ms Tom was never told of the May 2018 recommendation that she be referred to HR for potential disciplinary action.

During the 15 March meeting, in addition to reading aloud the letter, they had, with each section, clarified what was meant, checked for understanding and offered to explain anything. It was an emotionally charged meeting and when Ms Tom saw the letter headed ‘suspension of employment’, she was really shocked and had to leave the room. She stood up and paced the room at a point. There was a number of breaks. Mr Godsall could not explain why the letter was written in the past tense as in, ‘as discussed in the meeting’ even though it was plainly written beforehand.

Regarding the Adelaide role, Mr Godsall agreed it was at a higher ‘grade’ for Ms Tom.

Mr Godsall said that suspending Ms Tom’s employment and controlling IT access were risk mitigation strategies. The offer of allowing Ms Tom controlled access to the network at the Williamstown site was out of respect so she could be away from the main Richmond premises and because as it was nearer to her home.

Regarding time-frames for managing the risk, Mr Godsall’s understanding was that the time pressures were significant and driven by an obligation to the customer. As for the notice period of three hours between the email invite and the start time, that was appropriate to put control measures in place without delay. In cross-examination, Mr Godsall conceded that the issues raised in the 15 March 2019 letter had been around since May 2018. However, the ‘trigger event’ was Mr Wierenga being notified on 18 December 2018 of his clearance downgrade.

Mr James Keating, had worked for BAE since 2008 and been program manager since 2015. His role had financial and technical responsibility for project outcomes including for Ms Tom’s program. He had inherited the program of which Ms Tom was ‘definitely sort of a fixture of it’. She was an engaging character who was very dedicated and very focused. She was self-directed and didn’t like taking or receiving directions which meant they might run into loggerheads. It could be a challenge trying to get an understanding of what Ms Tom was up to in her project so that he could fulfil his role.

Mr Keating conceded using swear words in the workplace including when interacting with Ms Tom. However, he never swore at her, called her names or threatened her. He denied not making time for Ms Tom and said he spent considerable time daily and/or weekly with her every day he was at the Richmond premises. He asked to be included on emails regarding the project including correspondence with the customer and for notes of work phone calls. This was to stay abreast of costs and technical outcomes and also as to the reputational dimensions with the customer. Another reason was that he was overseas frequently.

As for the May 2018 meeting, Ms Tom was told at the time that it was the initial engagement of a ‘lessons learned’ process. That process was about looking at personnel behaviours or actions for better outcomes. Ms Tom was not given the May 2018 report because BAE had not extracted the elements as to her involvement in the management of the trial. Mr Keating did not talk to Ms Tom again regarding the content of the May 2018 report. In cross-examination, he said the report was being reviewed with the Commonwealth and the report was not something that BAE could unilaterally enact. That was the case even with regards to the recommendation about Ms Tom being referred to HR for potential disciplinary action. The Commonwealth’s feedback was needed to ascertain whether there were other facts pertinent to the Woomera incident. The Commonwealth had given assurances of being ‘quite adamant’ as to an intention to respond, but no response was forthcoming. That remained the situation in March 2019.

Mr Keating said the March 2019 review concluded that Mr Wierenga was acting within what he had thought was the authorised security plan. However, the implication of the XP188 security incident report was that Mr Wierenga had knowingly breached a rule. There was a disconnect because BAE’s security plan accorded with Canberra’s security plan, but not with the Woomera Range’s local security plan. Mr Keating conceded that Ms Tom was, to an extent, ‘caught in the middle’ but when the Woomera incident occurred, the BAE plan should have been put forward to the Woomera Range security personnel. The respective security officers should have ensured all personnel were acting in accordance with a consistent set of security plans. When it was it put to Mr Keating that this ‘disconnect’ could not be solely attributed to Ms Carmel Tom, he said he couldn’t comment as to whose feet it solely lay. He said it was true an investigation needed to consider the actions of each of the three security officers, however the May 2018 report’s recommendations lay within what was within BAE’s control. He also said, at another point, the Commonwealth hadn’t actually coordinated that approval with the local Woomera Range.

There was an internal BAE process for approvals via the line manager in relation to submitting of SVA004 forms on other personnel. That was to ensure veracity and for risk mitigation. Mr Keating was unaware that Ms Tom submitted SVA004 forms on a daily basis and had never approved her doing so.

As for the meeting with Mr Allanson in November or December 2018, Mr Allanson was making a pointed reminder for Ms Tom to enact the process to remove her interest in Mr Wierenga’s level of clearance related to the Nulka project. This was done via logging to the DOSD portal and did not involve an SVA004. Nothing was said during the meeting about an SVA004 form.

In January 2019, Ms Franzi-Ford had contacted him in the course of the March 2019 review and they spoke multiple times over the next few weeks. He didn’t believe he spoke with Ms Franzi-Ford about the conflict between the Range rules and the Canberra rules as ‘that would be for her to discover’. He was unaware of the email which referred to Ms Tom having stated she was directed by the Commonwealth to take action regarding the downgrade of Mr Wierenga’s security clearance.

Medical Evidence

Dr Nader Abou-Seif, treating GP at Hogans Road Medical Centre, provided reports dated 7 October 2020 and 4 February 2021. The diagnosis was of major depression with anxious features. She had felt ‘set up’ after a period of harassment and victimisation at work and of being targeted her co-workers which culminated in her dismissal. He opined that her symptoms were due to a series of events leading to a culminating event rather than a single event. There was no work capacity.

Dr Russell Searle, also a treating GP at Hogans Road Medical Centre wrote to Dr Schreuder on 18 February 2020 noting that whilst there were flashbacks to events in East Timor, there had never been a formal diagnosis of post-traumatic stress disorder (‘PTSD’). He also noted that in his view if she did have PTSD, it was minor as it was undiagnosed but the issues with her BAE employment has aggravated any pre-existing symptoms.

Dr Jenny Ricketts, treating psychologist with a PhD qualification, provided reports dated 11 July 2019, 3 February 2020 and 21 January 2020 and a ‘permanent incapacity statement’ of 16 April 2020. Ms Tom was first seen on 27 March 2019 and fortnightly thereafter. There was extreme distress from the employer’s actions and her perception of the consequences in terms of catastrophe. She had been placed under investigation and felt she was the victim of a vindictive, false accusations of another employee. She felt shock that management had not followed procedures, clashing with her own strict adherence to professional standards. She felt concern for her reputation given the misinformation or lack of information given to colleagues and associates. There was intense shock at her known world of loyalty and commitment being shattered. The diagnosis was PTSD, generalised anxiety disorder and major depressive disorder. The precipitating event was her suspension and the contributing events were bullying behaviours by senior staff. Ms Tom has no capacity for work as a consequence of the workplace events.

Dr Cas Schreuder, treating psychiatrist, provided a letter to her GP dated 31 January 2020 and reports to Ms Tom’s lawyers dated 9 October 2020 and 15 October 2020. Ms Tom was first seen on 29 January 2020. In the initial letter to the referring GP (Dr Searle), she said she would clarify the diagnosis, but that Ms Tom had been experienced depression for years now. There was a bullying episode in 2009 and some trauma whilst in East Timor. The diagnosis was of a major depressive disorder with anxiety and traumatisation features which contributed to her incapacity. The prognosis was guarded and more uncertain because of Ms Tom’s wish to avoid anti-depressant medication. There was no capacity for employment. Her military experiences increased her vulnerability and predisposed her to an adjustment disorder. In a later report, the opinion was that her incapacity occurred as a result of the bullying and harassment at BAE.

Dr Leon Turnbull, psychiatrist, provided a report dated 28 April 2020 at the request of Ms Tom’s solicitors. The diagnosis was of an adjustment disorder with anxious mood caused by the culmination of events leading to the unanticipated termination. There was not complete incapacity for employment from 15 March 2019.

Dr Nicole Phillips, psychiatrist, provided reports for the defendant dated 5 June 2019 and 3 June 2020. Ms Tom reported stress at work under Mr Keating, however the significant issue was her suspension which involved Mr Antoniades. She was appointed to the Adelaide role and a BAE senior leader told her she would be ‘brilliant’ in the role. When she saw the letter in the 15 March meeting she started shaking and felt unable to cope. Before 15 March 2019, she felt happy, had no mental health issues and was coping well in all aspects of her life. She had no past psychiatric history. She saw herself as a strong person. The diagnosis progressed from an adjustment disorder to a major depressive disorder with significant features of traumatisation. This was a new condition. She ruminated constantly. The suspension was a ‘set up’ and they had been destroyed her mentally, financially and emotionally. She had always been a ‘stickler for the law’. The condition required ongoing treatment. There was no current work capacity at any level. There were no non-work-related factors impacting on her condition and the extent of her symptoms were extremely disabling.

Analysis

Burden and Standard of Proof

The legal and evidentiary onus of proof rested with Ms Tom to establish, on the balance of probabilities, an entitlement to compensation for injury in accordance with the Act. The defendant had the onus of proof in relation to its management action defence.

Pleadings, Jurisdiction and Legal Principles

Before turning to the relevant legal principles, it is necessary to deal with the contentious issues relating to the plaintiff’s case, its nature and scope. The defendant’s submissions on this issue extended to the first nine pages of its written submissions (which were total 29 pages in all).

The plaintiff’s further amended statement of claim dated 7 October 2020 was filed, with the Court’s leave, at the commencement of the hearing. The plaintiff’s pleadings were lengthy and somewhat prolix, even with strike-outs of multiple paragraphs from the original pleadings. I agree with the defendant that many matters set out in the ‘Particulars of Fact’ of the plaintiff’s pleadings were ‘a mix of background/narrative events prior to 15 March 2019 which led to the meeting on that date’ and events alleged to have been causative of the psychiatric injuries ‘which occurred on 15 March 2019’.[2]
[2] DS at [9]

It is useful set out the details of Ms Tom’s two WorkCover claims for psychiatric injury which were the subject of the Agent’s decisions. These were:

(a) In the first claim (with the injury date of 15 March 2019), Ms Tom’s description of how she was injured referred to BAE ‘conducting an investigation into my conduct in an unreasonable manner, suspending and then terminating my employment without reasonable and proper basis … notifying me of the meeting on 15.3.19 without proper notice’.

(b) In the second (course of employment) claim, the description of how she was injured referred to ‘being spoken to in an aggressive manner; sworn at; publicly humiliated; treated differently to others; unreasonable process; termination of employment’.

he defendant submitted that the plaintiff’s case placed causation of her psychiatric injury on ‘two separate, alternative and non-overlapping bases’.[3] Either her psychiatric injury happened on 15 March 2019 (in the context of the meeting) or happened over the course of her employment with BAE in the period from January 2016 to 15 March 2019 solely as a result of Mr Keating’s alleged conduct towards her.[4]
[3] DS at [34]
[4] DS at [34]

The plaintiff, however, contended that was incorrect. The plaintiff pointed to the first claim having referred to ‘conducting an investigation in an unreasonable manner’ and to the second claim referring, also, to the ‘unreasonable process of investigation, termination of employment’. The plaintiff submitted that there was ‘a continuum of conduct by the defendant towards the plaintiff’ from May 2018 leading to the events on 15 March 2019. According to the plaintiff there ‘are not two discrete claims’. [5]
[5] Plaintiff’s Submissions (‘PS’) at [3]-[5]

I reject that submission of the plaintiff as wrong as a matter of law. Certainly, in terms of factual background, there was an overlap of events and circumstances between the defendant’s conduct and matters leading to the 15 March 2019. However, it does not follow that there is a proper basis to meld together a case based on a ‘continuum of conduct’ by merging two distinct claims. It is not sufficient, in my view, to point to each claim making reference to an ‘investigation’ by the employer or the employment being terminated.

It is well-established that the Court’s jurisdiction is to inquire into, hear and determine any question or matter arising under the Act relating to any decision of an Agent or an employer: ss.264(1), 266(1)[6]. I agree with the defendant’s submission that the Court’s jurisdiction was to determine whether Ms Tom’s psychiatric injury was causally related to the events of 15 March 2019 (in respect of the Agent’s decision of 7 June 2019) or that it was causally related to the conduct of Mr Keating towards her between January 2016 and 15 March 2019 (in respect of the Agent’s decision of 22 April 2020). I have arrived at this decision by considering the ambit of the claim forms that were the subject of the decisions as well as the plaintiff’s pleadings and particulars of fact.
[6] Robinson v SPI Electricity VMC (3 October 2012) which referred to the predecessor provisions in the Accident Compensation Act 1985

Regarding the second claim, it is plain based on the pleadings including the plaintiff’s Particulars of Fact that this claim related to psychiatric injury ‘as a consequence of the conduct of the defendant’s line manager, James Keating towards her[7]. The matters particularised at sub-paragraphs (a) to (j) included frequently swearing and verbally abusing her, unnecessarily criticising and micro-managing her and not allowing her to perform her ordinary duties. Whilst there was a ‘particular of fact’ relating to ‘excessive hours’[8], there was no evidence of that led at the hearing other than Ms Tom being an early starter by choice. For the sake of completeness, I note there was a rather vague ‘particular of fact’ pleaded as to ‘failing to support the plaintiff in security incident situation’. However, on an examination of the entirety of the matters pleaded in the further amended statement of claim, I am of the view that the course of employment claim relates to the alleged conduct of James Keating set out in paragraphs (a) to (j) in terms of abusive language and being critical and so on.
[7] Further Amended Statement of Claim at [18]
[8] Further Amended Statement of Claim at [18](b)

As for the May 2018 investigation into of the Woomera incident and the May 2018 meeting between Mr Keating and Ms Tom, again, on an examination of the ambit of the claim forms as well as the plaintiff’s particulars of fact, I agree with the defendant’s submission that those matters were could not be relied by the plaintiff as causative of her injury. There is, however, no question of the relevance of the May 2018 investigation report in so far as it was the subject of the March 2019 review report and in regards to assessing the reasonableness of both the grounds and manner of the defendant’s management action in March 2019.

As regards the first claim, I agree with the Defendant’s submissions, that the matters relied upon were:

a. Being notified of the meeting on 15 March 2019, the meeting itself and the 15 March 2019 letter advising Ms Tom of the suspension of her employment and related outcomes including the reduction of her security clearance and other control measures;

b. The findings of the March 2019 review, commissioned by Mr Antoniades, and conducted without informing Ms Tom of the investigation or of any allegations and without giving her the opportunity to respond to any allegations against her;

c. Arriving at findings from the March 2019 review without informing her at all prior to the meeting on 15 March 2019.[9]

[9] DS at[15],

In terms of causation, the plaintiff had to establish either that her injury arose out of or in the course of employment in accordance with s39(1) or that employment was a ‘significant contributing factor’: s40(3)(c), Sched 1, clause 25. The alternative tests were subject to a finding as to whether Ms Tom’s injury was a ‘new injury’ or an aggravation, recurrence or exacerbation of a pre-existing or underlying condition.

Ms Tom credit was, of course, central to my determination of this ‘essentially factual enquiry’. The critical importance of the plaintiff’s credit in cases of this kind has been noted by the Court of Appeal on numerous occasions including recently in Johns v Oaktech Pty Ltd[10] Ms Tom needed to establish the reliability of the histories she gave to the medical witnesses, whose opinions were premised on the accuracy of her accounts to them. All medical opinions were in large part based on Ms Tom’s account of events.
[10] [2020] VSCA 10 at [76].
In my examination of the medical evidence, I am guided by the well-known principles enunciated by Justice Bell in Pulling v Yarra Shire Council including the requirement to consider the whole of the evidence, including the medical evidence[11]. Furthermore, whilst the histories are of course dependent upon what the doctors have been told, ‘such considerations do not absolve the court from the obligation to properly engage in that evaluation’. [12]

[11] Ibid at [50] – [55]

[12] Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [51] in which Pulling J cites authorities including Allamanti Pty Ltd v Ernikiolis [2007] VSCA 17

Diagnosis and Nature of Injury

Before considering causation, I turn first to the question of injury which was, as I have said, a matter admitted by the defendant (at least in so far as Ms Tom having suffered a mental injury on 15 March 2019 that arose out of or in the course of her employment as a result of BAE’s management action).

Ms Tom’s psychiatrist Dr Schreuder diagnosed a major depressive disorder with anxiety and traumatisation features. That was also the view of the treating psychologist and was consistent with Dr Phillips’ opinion. I found Dr Phillips’s opinion persuasive as she was the first psychiatrist to see her and saw her twice about 10 months apart. I prefer the opinions of Dr Schreuder and Dr Phillips to that of Dr Turnbull who saw her once for medico-legal purposes and diagnosed an adjustment disorder.

I find, therefore, that the nature of the injury was a major depressive disorder with anxiety and traumatisation features.

The next question is whether Ms Tom’s mental injury was a new condition or, alternatively an aggravation or recurrence or exacerbation of an underlying or pre-existing condition. Dr Phillips’ opinion, which as I have said I found persuasive, was that this was a new injury. Of course, Dr Phillips’ opinion was based on Ms Tom’s own history that she had no past psychiatric history and no mental health issues prior to 15 March 2019. When cross-examined on this history, Ms Tom agreed that she had felt happy and was coping well in all aspects of her life before 15 March 2019 ‘apart from normal day to day stress’. She said she had not been diagnosed with anything in the past. It is true this was at odds with the initial impression of Dr Schreuder that Ms Tom had been experienced ‘depression for years now’ with references to an episode of bullying in 2009 and some trauma whilst in East Timor in 1999.

Ms Tom had attended the Hogans Road Medical Clinic over a period of many years. On that basis, I attach considerable weight to Dr Searle’s response to Dr Schreuder’s initial opinion which was consistent with Ms Tom’s evidence that there had been no previous diagnosis and no treatment for mental illness. Dr Searle noted some flashbacks to events in East Timor, but also that there had been no formal diagnosis of post-traumatic stress disorder (‘PTSD’). He also stated that in his view if she did have PTSD, it was minor as it was undiagnosed, but the issues with her BAE employment have aggravated any pre-existing symptoms.

On balance, given the lack of any previous formal diagnosis, I prefer the opinion of Dr Phillips that this was a new injury. In my view, the totality of the evidence does not support Dr Schreuder’s impression that Ms Tom had suffered from depression for years.

I formed a favourable opinion of Ms Tom whom I found to be a witness of truth. In the course of her evidence over almost three days including lengthy cross-examination, she gave the impression she was cooperating and attempting to answer questions accurately and to the best of her recollection. At times she gave answers that were against interests such as agreeing that, in the event that BAE had made adverse findings against her, then the appropriate course was to put in the place ‘control measures’ such suspending her employment and/or reducing her security clearance. As Dr Ricketts and Dr Phillips observed, she was someone who valued strict adherence to professional standards and protocols and had always been a ‘stickler for the law’.

The defendant submitted that Ms Tom was evasive in cross-examination and her evidence was unreliable.[13] An example was when she was asked whether Mr Allanson asked her to submit an SVA004 form in respect of Mr Wierenga. Under pressure of sustained cross-examination, I agree there was some inconsistency, however weighing the totality of her evidence, I accept as plausible her explanation that if Mr Allanson did not refer to a particular form it was because she knew the processes. Additionally, and more seriously, the defendant submitted that Ms Tom had attempted to improperly influence Dr Schreuder regarding her initial impression of a past history of depression and PTSD.[14] In my view, weighing the totality of the evidence, in particular Ms Tom’s evidence which was consistent with Dr Searl’s correspondence with Dr Schreuder, she did have a strong wish to ‘set the record straight’ with Dr Schreuder. This compelled her to emphasise to Dr Schreuder her strong sense of the ‘catastrophe’ that was 15 March 2019 relative to long past events for which she had had no formal diagnosis and no treatment.
[13] DS at [51], [103] onwards
[14] DS at [105]

Under cross-examination, Ms Tom described herself as ‘a stoic person who does try to cope’. I accept that is an accurate description. She did impress me as a stoic person.

Causation

I turn now to the question of causation. On the basis of my finding that Ms Tom has suffered a new injury, the causation test is that her injury arose out of or in the course of her employment.

I turn first to consider whether the plaintiff has discharged the onus of proof in regard to the ‘course of employment’ claim from January 2016 to 15 March 2019 related to Mr Keating’s conduct. Somewhat ironically, given the tensions between them, matters came to a head in late 2018 when Ms Tom informed him that she was departing her role to take up the Adelaide role. That was the context of the interaction in which he had slammed the table and jumped over it, shouting at her.

Having found Ms Tom to be a witness of truth, I accept her evidence that Mr Keating was frequently aggressive and verbally abusive towards Ms Tom and that he was frequently critical and wanted to micro-manage her. At the same time, he was dismissive and did not make time for her, such as only attending two of the recurring weekly meetings she arranged. Ms Tom’s evidence in relation to Mr Keating’s conduct and its negative impact upon her was corroborated by Mr Phillips and Mr Freeman. Weighing the totality of the evidence, in particular Ms Tom’s evidence, I find, on the balance of probabilities, that Mr Keating’s conduct towards her was over-bearing, critical and verbally abusive.

found Mr Phillips to be an honest witness whose evidence I accepted. Whilst there was an acknowledged social friendship with Ms Tom, Mr Phillips had spent ten years in the role that Mr Allanson held in 2018. I found persuasive his evidence that, prior to working under Mr Keating, Ms Tom had operated successfully under several managers at BAE. Mr Phillips said Ms Tom was quite unhappy under Mr Keating but also said her demeanour improved markedly once she had obtained the Adelaide role. Mr Freeman I also found to be a witness of truth whose evidence was of considerable weight given his ongoing and longstanding employment with BAE and the fact that he had no social connection with Ms Tom. He referred to one of the advantages of the Adelaide role for Ms Tom was that she may have ‘better relationships’ than she had had in Richmond with Mr Keating and Mr Antoniades.

I did not find Mr Keating’s evidence to credible or reliable on a number of matters. To the extent that there was inconsistency with the evidence of Ms Tom’s evidence, I preferred her evidence. For example, he said he spent considerable time daily and/or weekly with her every day he was at the Richmond premises which I found unlikely given the tension between them and the difficulties expressed by Ms Tom in this regard. He was not a particularly cooperative witness. His answers were long-winded and, at times evasive. An example of that was when asked why there was no action on the May 2018 recommendations, he said ‘additional facts and details were needed to be brought to the table in terms of developing what occurred and what the outcomes were’. Later, in cross-examination, he said it was because the Commonwealth’s response was outstanding. I do not accept his evidence, for example that the May 2018 meeting was presented as an ‘initial engagement’ and a ‘lessons learned’ meeting, which was contradicted by the evidence of Ms Tom (and also Mr Fisher).

I find it likely that there was a tension for Mr Keating in Ms Tom being, as he termed it, ‘a fixture’ of the Nulka project which he ‘inherited’ and that it ‘could be a challenge’ trying to get an understanding of what she was up to in her project. Her strong adherence and repeated reference to her ‘mandated reporting obligations’ and to Commonwealth protocols probably contributed to frustration and to them being ‘at loggerheads’ (as he put it). His irritation was evident from him saying to her, ‘Why do you have to make everything so fucking complicated’. The reality is that it was a complicated environment given Ms Tom’s responsibility for a ‘stand-alone environment’ within BAE and her obligations to the Commonwealth in relation to the work within that environment. There were inevitably conflicts and tensions in Ms Tom have responsibility for a ‘stand-alone environment’ with a higher security clearance than either Mr Keating or Mr Antoniades. Whilst BAE was the employer, I find that, in practical terms, Ms Tom had two sets of obligations which Mr Phillips described as ‘two reporting lines’ and Mr Fisher said she had ‘two masters’. I find that Ms Tom was a person who took her obligations to the Commonwealth extremely seriously and gave those obligations precedence over BAE as she said she was mandated to do.

I found Mr Fisher to be credible and honest witness particularly as he was, like Mr Freeman, a long-standing and current employee of the defendant.

As for whether Ms Tom suffered injury caused by Mr Tom’s conduct, the evidence of treatment was of a single attendance in January 2016 complaining of workplace stress related to Mr Keating’s conduct. Some 18 months later, she attended her GP regarding workplace stress on three occasions in between 29 June and 21 July 2018. All three of these attendances related to the Woomera incident and to her sense that BAE was supportive of the other employee (meaning Mr Wierenga) and ‘gunning for her’. They did not record particular stresses arising out of her relationship with Mr Keating (such as in January of 2016), rather, as she said in cross-examination, from a ‘gut feel that something was wrong’. There was also no complaint to a GP of the occasion in late 2018 (which she said was distressing) when she told Mr Keating about the Adelaide role. On 21 July 2018 (the last of these three attendances), she said she was looking for alternative employment. She said she was able to de-brief successfully with trusted colleagues at work. Ultimately, she did obtain alternative employment, being the Adelaide role, which was at a ‘higher grade’ role (as Mr Godsall confirmed) in Adelaide. She said she was ‘thrilled to bits’ about this.

Weighing the totality of the evidence, I am not satisfied, on the balance of probabilities, that Ms Tom suffered a mental injury arising out of or in the course of her employment as a consequence of Mr Keating’s conduct. As I have observed, she made no complaint nor sought treatment about this aspect of her workplace circumstances other than the once in January 2016. I find that the three attendances in mid-2018 related to a more generalised sense of something being wrong. Whilst it is true that she said things were still bad and Mr Freeman said she was less joyful, Ms Tom was, as I have said, a stoic person. Her own view of things (as expressed to Dr Phillips) was that she was happy and was coping well in all aspects of her life prior to 15 March 2019. Her outlook was undoubtedly enhanced by the prospect of her new role interstate.

Even if I am wrong about that about her having suffered injury arising out of Mr Keating’s conduct, I note that injury is different to incapacity. I find that if there was an injury suffered as a consequence, it had either resolved over the latter half of 2018 or it did not materially contribute to her incapacity from 15 March 2019.

Whether Mentally Injury Wholly or Predominantly Caused by Management Action

In my view, the overwhelming weight of the evidence is that Ms Tom’s mental injury arose out of the events of 15 March 2019 (as referred to previously). I further find that her mental injury arose wholly or predominantly out of what happened in the workplace on 15 March 2019. I will return to the question of ‘management action’ later in these reasons.

In Pulling v Yarra Ranges Shire Council[15]l, Bell J held that: ‘management action can only be wholly the cause when it is the only cause… [and] can be a predominant cause when other causes contribute ... but that cause is still the predominant cause. To be the predominant cause, that cause must exceed all other causes in power and influence’.
[15] [2018] VSC 248

In support of my finding that the events of 15 March 2019 exceeded all other causes in power and influence, I am persuaded by the following matters of evidence:

a. Ms Tom’s evidence that she was shocked and traumatised at when she saw the 15 March letter’s subject line of ‘suspension of employment’. She said she immediately knew it was the end of her employment and a catastrophic thing in her mind. She said at that point ‘I can’t cope, I can’t cope’ and had to leave the meeting.

b. Her evidence that she had a ‘bit of a meltdown’ and left the building crying and shocked and that she called GP on way home.

c. Her history to the doctors of the catastrophic nature of that event for her including to Dr Ricketts of ‘intense shock’ at her world being shattered, to Dr Phillips of having been ‘destroyed mentally, financially, emotionally’ as a consequence of the suspension.

d. Her first claim lodged within 7 weeks of 15 March 2019 was almost entirely focussed on that event whereas the claim regarding Mr Keating was lodged a year or so later.

e. This history given to Dr Phillips, which was also her evidence, that she felt she was coping with all aspects of her life before 15 March 2019.

Management Action

Having found that Ms Tom’s mental injury arose wholly or predominantly out of the events of 15 March 2019, there is no real dispute that these events constituted ‘management action’ within the meaning of s.40(7) of the Act. I find that the following matters constituted ‘management action’ as defined by the fourteen sub-paragraphs of that provision:

a. Notifying her of the meeting on 15 March 2019 (by way of the 6:00 am email);

b. The suspension of her employment and, what I will call, the associated actions to her being stood down including the control measures of limiting access to the network and excluding her from her stand-alone environment plus the impact on her security clearance;

c. The appraisal of Ms Tom’s performance based on the findings of the March 2019 review report regarding: (a) her responsibility for various security breaches pertaining to the Woomera incident; and (b) her failure to follow BAE procedures in submitting the SVA004 without prior notice or approval.

d. The communication to her in the meeting on 15 March 2019, and by letter of 15 March 2019, in connection with:

1. The performance appraisal (as noted previously); and

2. the suspension of her employment and, what I have called the associated actions.

e the decisions taken (or not taken) as to these management actions including in arriving at the findings in the March 2019 letter and including how she was to be given an opportunity to respond to the allegations against her.

Accordingly, given these findings, the question arises as to whether the defendant, as it submitted, is ‘immunised from compensability under the Act’ on the basis of s.40(1).[16] For the sake of completeness, and given the contentiousness throughout this proceeding as to the scope of the pleadings, I make some additional remarks in relation to the management action defence.
[16] DS at [35] and following

I have previously set out my findings, earlier in these reasons, that the May 2018 investigation and the May 2018 meeting were not matters that the plaintiff could properly rely upon as causative of her injury. However, as the defendant observed in written submissions, in the course of the proceeding, I ruled that, as a matter evidence, that the May 2018 investigation report (including the recommendations) was relevant to assessing the reasonableness of the defendant’s management action of 15 March 2019[17].
[17] DS at [27]

I agree, for the most part, with the defendant’s submission that the plaintiff’s claim did not extend to any management action beyond 15 March 2019 such as to the subsequent letters and the end of her employment. This was because she claimed to be injured either on that date or a consequence of Mr Keating’s conduct up to that date. In any event, little turns on that given my finding that Ms Tom’s mental injury arose wholly or predominantly out of the events of 15 March 2019.

However, as part of its defence of being ‘immunised from compensability under the Act’, the defendant also relied upon s.40(1)(c) of the Act. In other words, the defendant submitted, in the alternative, that Ms Tom’s ‘expectation’ of management action (the termination of her employment) was ‘wholly and predominantly’ causative of her mental injury[18]. I agree with the defendant that such an expectation by a worker (whether that was reasonably or unreasonably founded) could indeed be a basis for being ‘immunised from compensability’. However, I do not accept that Ms Tom’s mental illness was caused by an expectation of something yet to occur (as in her ultimate termination). Rather, as I have already found, the overwhelming weight of evidence was that her mental injury arose wholly or predominantly from the management action actually occurring on 15 March 2019. For example, as I have noted, she expressed feeling ‘shocked and traumatised’ at seeing the words ‘suspension of employment’ as it was ‘a catastrophic thing in her mind’ with a downgrade in clearance and the impact on the Adelaide role. She also said to the GP on 21 March 2019, regarding an event that had already occurred, ‘basically I have been sacked’.

[18] DS at [35] – [36]

Having made findings as to the management action, I turn now to the question of the reasonableness. The requirement of s.40(1)(a) as to reasonableness is a subjunctive test, both the grounds for the management action must be reasonable and the manner in which it was taken must be reasonable. In this regard, I did not find the plaintiff’s submissions particularly helpful on this issue as, in my view, they conflate the concept of reasonableness as to grounds and manner[19].
[19] PS at [77] – [78]

The well-established principles in relation to ‘reasonableness’ of management action were considered in detail in Krygsman-Yeates v State of Victoria[20] and remain relevant to considering the operation of s40(1) of the present Act. The management action is to be considered objectively having regard to all of the circumstances leading to it being taken and the manner in which it is taken in a global context. The following matters are to be taken into account:
(i)That the management action and the manner in which is taken should not be irrational, absurd or ridiculous but moderate and fair; and
(ii)The judgement is whether the action taken was done “reasonably“ not whether it could have been done more reasonably or in a different way more acceptable to the court; and
(iii)The action and the manner in which it is taken maybe reasonable even if particular steps involved are not; and
(iv)The action and the manner in which is taken should be assessed at the time it is taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker[21].

Whether Management Action Taken on Reasonable Grounds and in a Reasonable Manner

[20] [2011] VMC 57 at [35]

[21] Ibid

Essentially, on a careful reading of the letter of 15 March 2019, I find that the grounds for taking the management action were really two-fold. I will consider each of these grounds.

The first ground relates to the findings as to Ms Tom’s responsibility for ‘multiple security incidents’ related to the use of the camera in the Woomera incident. In this regard, the 15 March letter stated (in the second paragraph) that ‘the suspension has arisen out of the [Woomera] security incident’ and the findings as to ‘ [Ms Tom’s] involvement in that incident’.

The second ground relates to the findings about Ms Tom’s submitting of the SVA004 forms in relation to Mr Wierenga. The 15 March 2019 letter refers to Ms Tom having, after the Woomera incident, proceeded to submit an SVA004 form on 12 July 2018 and to have then submitted a second adverse SVA004 form on 17 December 2018.

It is important to note (as both parties agreed) that this case never turned on whether Mr Wierenga had been, or had not been, in the wrong in relation to the Woomera incident. The real issue was the ‘disconnect’, as Mr Keating described it in his evidence, between BAE’s Security Plan and the Woomera local Security Plan. It became apparent that the BAE Security Plan was consistent with Canberra’s Security Plan and had been approved by the Commonwealth on that basis. However, as Mr Keating also said, the Commonwealth hadn’t actually coordinated that approval of the BAE Security Plan with the Woomera Security Officer. It was, apparently, this lack of consistency between the security plans that led to the RAAF police officer forming the view there had been a security breach by Mr Wierenga and as to his authorisation for use of the camera. This issue was identified as a finding of BAE in the May 2018 recommendations. This was the ‘single point of failure’ referred to twice in that document and which represented ‘a security compliance risk’ to BAE.

As Mr Antoniades’ conceded in cross-examination, this was a ‘very serious’ matter which had the potential to compromise the business both reputationally and financially to the extent of millions of dollars (in terms of the contract with the Commonwealth). As was also identified by the investigation in May 2018, Ms Tom, as the BAE Project Security Officer acting alone, had at least some degree of responsibility for the failure. Indeed, one of the May 2018 recommendations was that Ms Tom be referred to HR for ‘potential disciplinary action’ in respect of these breaches. Mr Keating said in cross-examination that he ‘couldn’t comment as to whose feet it solely lay’ when asked about whether it was fair for this ‘disconnect’ to be solely attributed to Ms Tom.

As for Mr Antoniades, I did not find him to be a credible witness. It was difficult to accept his opinion of Ms Tom as being ‘uncooperative’ when his interactions involved extremely infrequent dealings with her (which might include just passing her in a corridor). Mr Antoniades’ view of Ms Tom was difficult to reconcile with other evidence: the concession of Mr Godsall (as the HR manager) that Ms Tom’s personnel record was unblemished; the observation of Mr Phillips that she had worked successfully under several BAE managers, before Mr Keating; and Ms Tom’s evidence that she was appointed to a new role in a division at a higher grade (a matter also conceded by Mr Godsall). Mr Antoniades also told the Court that, on reading the March 2019 review, he concluded that there had been a ‘pattern of behaviour’ of failures, non-compliances and of an inability to follow process. Again, this seems entirely inconsistent with the totality of the evidence. There was an important contradiction in his evidence when at one point, in cross-examination, he insisted ‘the single point of failure’ was something confined only to the ‘stand-alone environment’ and then at another point agreed it was a security risk for the broader company. I find it completely implausible his evidence that the letter and ‘a lot of the process to this point’ was all triggered by HR rather than himself as the head of security who had instigated the March 2019 review.

Notwithstanding the apparent seriousness of the ‘failure’ identified in May 2018 and Ms Tom’s apparent role in that failure as the Security Officer, no action was taken in relation to these ‘multiple security incidents’ between May 2018 and the management action of 15 March 2019. Both Mr Antoniades and Mr Keating justified this based on awaiting input from the Commonwealth. According to Mr Keating, the recommendations were ‘not something BAE could unilaterally enact’ and that the Commonwealth was ‘quite adamant’ it would respond. Yet, the Commonwealth did not and, indeed, still had not by 15 March 2019. The letter of 15 March confirmed that BAE was ‘still awaiting formal feedback from the customer’ in relation to the May 2018 investigation. Leaving aside (for the moment) the ‘trigger’ of Mr Wierenga’s clearance downgrade in December 2019, there was no explanation as to why BAE decided to take action after ten months against Ms Tom in March 2019 on the grounds of the ‘multiple security incidents’. Action was taken even though it remained the situation that there was still no response from the Commonwealth. Mr Godsall said that the findings of the March 2019 appeared very similar to those of the May 2018 investigation and Ms Franzi-Ford said she had ‘concurred with them’. Also, on failures of the Woomera incident, Mr Keating said he chose not to explain to Ms Franzi-Ford what he called the ‘disconnect’ between the respective security plans - saying that he left this for her discover. Certainly, it is true the March 2019 review was intended to be a ‘fresh eyes’ look at the May 2018 investigation. However, the lack of apparent accord between the Security Plans and Mr Keating’s assessment that the Commonwealth hadn’t actually coordinated that approval with the local Woomera Range were important matters that were, at least partly, an explanation of some significance as to Ms Tom’s role in the Woomera incident.

Weighing the totality of the evidence, therefore, I am not satisfied that the ‘multiple security incidents’ grounds referred to in the 15 March 2019 letter were reasonable grounds for the management action of March 2019 when the Commonwealth’s feedback was still outstanding and, according to Mr Keating, it was the Commonwealth who ought to have coordinated the approval of the BAE Security Plan with the local Woomera Range Security Plan.

Both Mr Antoniades and Mr Godsall said the ‘trigger’ for the management action on 15 March 2019 was BAE being informed on 17 December 2018 of the downgrade of Mr Wierenga’s security clearance because of the December SVA004 form. Hence, the defendant submitted, it acted in a timely way in conducting the March 2019 once it had inducted an appropriately qualified and new, independent employee (Ms Franzi-Ford).

I found Ms Franzi-Ford to be largely a credible witness with considerable subject-matter expertise on security clearance. As for the weight of her evidence, I note that, as at January 2019 when she commenced the review, she was a new employee undertaking her first task in the business for her new boss, Mr Antoniades. She was briefed by him and also spoke with Mr Keating, but at no time with Ms Tom (a matter to which I will return).

I turn now to the grounds for management action related to the submitting of the SVA004 forms. Ms Tom was cross-examined rigorously and at length regarding the action she took in submitting each of the SVA004 forms (the July SVA004 and the December SVA004). She was challenged both as to the basis for doing so at all and for doing so apparently in breach of BAE procedure requiring internal approval. Ms Tom disagreed that she was not authorised to submit an SVA004 without obtaining BAE internal approvals. That was because she was in a stand-alone environment with mandated requirements to the Commonwealth (of which Mr Keating was fully aware as her line manager) which over-rode any BAE procedure. Her further explanation was that having such an approval process internally would pose a risk and compromise the process if, say, a senior person at BAE objected to a person’s clearance being changed for some nefarious purpose.

Ms Franzi-Ford in her evidence referred to an email, that was included in the material given for her review, from a senior BAE security person to the effect that Ms Tom had made a statement that she was advised by Mr Allanson of the Commonwealth to downgrade Mr Wierenga’s clearance. There was a lack of clarity as to why that statement or explanation by Ms Tom was not followed up nor why Ms Tom was not questioned by Ms Franzi-Ford about this in the course of the March 2019 review and prior to arriving at findings. Mr Keating was in the meeting with Mr Allanson. Both Ms Tom and Mr Fisher said Mr Keating told Mr Allanson he would ‘make sure’ Ms Tom attended to the matter promptly. Even allowing for some confusion as to what Mr Allanson was in fact requesting (a SVA004 clearance downgrade or something to do with ceasing to have registered interest in Mr Wierenga or a DOSD online log-in only), the evidence was that Mr Keating, as Ms Tom’s own line manager, knew some such request had been made in November or December of 2018. Yet, he apparently did not flag that with Ms Franzi-Ford nor did not ensure there was at least an inquiry or clarification made in that regard.

Further, in relation to the grounds for management action based on of the submitting of SVA004 forms, I find there is a lack of clarity or completeness in the communication of 15 March 2019 as follows:

· The letter stated that Mr Antoniades had been ‘notified’ that Mr Wierenga’s clearance had been downgraded ‘based on an initial change of circumstances (SVA004) report’ (meaning the July SVA004). Yet Ms Franzi-Ford’s evidence was that the July SVA004 had not been processed by AGSVA as at March 2019. The letter also did not state or clarify that the July SVA004 was based on the Commonwealth’s own XP188 Woomera report.

· The letter also stated that ‘the second adverse change in circumstances SVA004’ (the December 2018 SVA004) resulted in Mr Wierenga’s clearance downgrade. There was no reference to the statement of Ms Tom that it had been requested by the Commonwealth.

· The letter states that Ms Tom had ‘failed to identify’ that ‘no incident had occurred’ in respect of the Woomera incident, but does not make clear or include reference to the fact that the reason for the Woomera incident not being considered a breach was because of the ‘disconnect’ between the local Woomera security plan and the BAE security plan.

It is true that, on an examination of the 15 March 2019 letter, the stated ground for management action in relation to the submitting of the SVA004 forms related to the apparent failure to follow internal BAE approvals process first.

However, weighing the totality of the evidence, in particular Ms Tom’s and Ms Franzi-Ford’s evidence, I am not satisfied that, when considering the whole of the circumstances, Ms Tom’s submitting of the December and/or July SVA004 forms was reasonable grounds for the management action of 15 March 2019. In summary, the July SVA004 still had not been processed by AGSVA and it was plainly based on a Commonwealth XP188 incident report and the December SVA004 form had been stated to be to request a clearance downgrade of Mr Wierenga at the request of Mr Allanson (at a meeting that Mr Keating attended).

If I am wrong about the grounds not being reasonable, for the defence to succeed, the management action must also have been taken in a reasonable manner.

I turn therefore to the question of the whether the management action was taken in a reasonable manner.

I find that, considered objectively, there were multiple aspects of the management action that was not taken in a reasonable manner. As I have already observed, it was unreasonable for the March 2019 review to be undertaken without obtaining a statement or any input from Ms Tom. It might have different, say, if the review was based wholly or only on documentary materials already in existence. However, Ms Franzi-Ford spoke with Mr Keating at length and she also said that she spoke with personnel who were at Woomera Range at the time of the Woomera incident. On that basis, it was unreasonable to not to speak to Ms Tom apparently on the basis that she had already had input into the May 2018 investigation, in particular to seek further clarification or explanation of her statement that the SVA004 form had been submitted at the request of the Commonwealth.

In relation to the 15 March 2019 meeting, I consider Mr Freeman’s evidence to be credible and reliable. I formed the impression that he was a truthful witness particularly as he was giving evidence for the plaintiff even though he was a current and also long-standing employee of BAE. I also consider Mr Godsall’s evidence to be largely credible noting that he made several concessions such as to Ms Tom’s unblemished record, the Adelaide role being of a higher grade and that it was surprising that BAE had not acted on the May 2018 recommendations at the time.

Additionally, there were other aspects of the management action that I find to have been taken in an unreasonable manner as follows:

a. The manner of the communication of the management action contained in the letter of 15 March 2019. I have already referred to the lack of clarity on the ground related to the submitting of the SVA004 forms. Other matters in which I consider the letter not to have been communication in a reasonable manner were: the erroneous impression given that the letter was written following the meeting (something Mr Godsall could not explain); the reference to Ms Tom being ‘aware’ of the May 2018 investigation and to ‘the initial findings [having] highlighted concern’ with her involvement even though she had never, at any stage, been informed of those findings not or the ‘concern’ as to her involvement; and the lack of clarity as to not following company procedure by submitting ‘the SVA004 to the AGSVA’ without specifying with real clarity which SVA004 was being referenced.

b. The manner in which the written communication (being the letter with the subject line of ‘suspension from employment’) was displayed visibly on the table when Ms Tom walked into the room prior to the meeting having commenced and without any context.

c. The manner of communication in the meeting being one-sided and mainly relying upon the letter being read aloud with limited other commentary or explanation. This was according to both Ms Tom and also Mr Freeman who said that Mr Antoniadis read the letter aloud and would not elaborate saying ‘it’s in the letter’. I accept Mr Godsall’s that there may have been some explanations such as to who conducted the March 2019 review, but it was mainly an exercise in reading out the letter. I find on the weight of the evidence that no part of the overall meeting was, as Mr Freeman said, ‘a two-way discussion’ and that it seemed to be going down a certain course and that was it.

d. The manner in which the control measures related to the suspension were to operate meant Ms Tom was precluded from any real, meaningful or genuine opportunity to respond to the allegations. This was due to removal of access to the corporate network including her contacts data on her phone as well as only offering access to the Williamstown site when it would have been well known to BAE that all her information and files were in the stand-alone environment at Richmond. I accept Ms Tom’s evidence that Mr Godsall was ‘shocked’ when he was made aware by her of that. In relation to the data, I accept Mr Fisher’s evidence that the most likely explanation for this was the phone had been wiped remotely.

e. The manner in which the extremely tight time-frames were applied to the management action including giving just three hours’ hours’ notice for the meeting and the time-frames for responding to the allegations. This contrasted to the ten months that had elapsed since the occurrence of the ‘multiple security incidents’ for which Ms Tom apparently was responsible relating to the Woomera incident.

f. Even allowing for the ‘trigger’ event being the downgrade of Mr Wierenga’s clearance on or about 17 December 2018 (which as I have said I do not accept completely given that related only to the ground of submitting the SVA004 form), a period of some twelve weeks then had elapsed before the meeting on 15 March 2019 which was due the on-boarding of an appropriately qualified employee. I do not find that delay of 12 weeks in or of itself unreasonable given the complexity of the matters being reviewed. However, it contrasts markedly with the tight time-frames applied to the convening of the meeting and to Ms Tom’s response.

g. Finally, in my view, it is implausible to refer to the security risk for the Company as a basis for urgency given. I say this, firstly, given the background of ten months elapsing between the May 2018 investigation and the March 2019 review; and secondly, given the entirety of the circumstances related to Ms Tom’s submitting of the SVA004 forms which I have already outlined.

In my view, taking into account the totality of these matters, the management action on 15 March 2019 was not taken in a reasonable manner. It is important to be clear that I make this finding not on the basis that certain things could have been done in a more acceptable way (such as wording the letter differently or not displaying it on the table and so on). Rather, in arriving at this finding, I am guided the principles stated at the outset of my analysis of the management action. In other words, I have objectively considered the whole of the course of conduct of the management action of 15 March 2019.

CONCLUSION

180 For the grounds set out in these reasons, I find:

a.Ms Tom suffered a mental injury in the nature of a major depressive disorder with anxiety and features of traumatisation with a nominated date of injury of 15 March 2019.

b.Ms Tom’s mental injury was caused wholly or predominantly by the defendant’s management action of 15 March 2019 (as identified in these reasons).
c.The management action was not taken on reasonable grounds; nor was it taken in a reasonable manner;
d.Accordingly, the defendant’s reliance on the defence of management action in accordance with s.40(1) of the Act is unsuccessful.
e.Ms Tom had no current work capacity from 15 March 2019 and such incapacity resulted from or is or was materially contributed to by the injury referred to in paragraph (a).
f.She continues to have no current work capacity.
g.She is entitled to reasonable medical and like expenses in accordance with the Act.

[2021] VMC 6

7 May 2021