Barlow v St Vincent de Paul Society Queensland

1. Paragraphs 161 - 166 of his Honour's judgment make clear the reasoning of his Honour in finding that there had been a contravention of s. 340(1)(a) of the FW Act. His Honour found that Ms Doherty played no part in the decision to terminate the applicant.
2. His Honour went through the authorities as to how a Court determines the state of mind of a corporation and applied those principles to the current case. His Honour found that the decision-maker, Mr Mercer, relied entirely upon what Ms Hinchliffe had told him.
3. At paragraph 165, his Honour said:

The Court finds that the adverse action admitted as having been taken against Barlow was so taken based upon the state of mind of Hinchliffe, and that it was taken for a prohibited reason. The prohibited reason for the taking of adverse action was because notwithstanding that Hinchliffe had spent considerable time and energy in endeavouring to the de-escalate tensions between Barlow and Doherty by arranging for an external consultant to engage with both of them on an ongoing basis, Barlow had nonetheless exercised a workplace right by making further complaints against Doherty in the 14 June 2021 meeting/interview. It was because Barlow made those complaints that Hinchliffe recommended that the adverse action be taken...

1. On a clear reading of what his Honour has said, the contravention of s. 340(1)(a) is the termination of the applicant's employment because the applicant had exercised a workplace right which was the ability to make complaints about her employment, specifically complaints as to the behaviour of Ms Doherty.
2. This is also made clear by Counsel for the applicant at the liability trial before his Honour Judge Egan. At T 20 (reproduced at CB 1805), Counsel said at line 29, "the adverse action is the termination... That's from which all of the loss flows".

1. The basic premise of the FW Act is that it is a framework for the industrial relations regime of this country. The Act spells out the responsibilities of employers. The legislature resorted to the use of civil penalty provisions to ensure that the responsibilities of employers were enforced. A civil penalty provision is extremely serious, and the consequences are quite onus upon a contravener of such provisions.
2. The Act also enshrines the protection of "workplace rights". There are other provisions for employers who act unfairly, but those who actually contravene provisions that guarantee the workplace rights of an employee are met with a civil penalty provision - such is the legislatures intent that such provisions be enforced.
3. A declaration that an employer has contravened a general protections provision is a sombre punishment indeed. If such a declaration is also coupled with the imposition of a pecuniary penalty, then it is an illustration that an employer has breached the fundamental rights of an employee.
4. Pursuant to s. 545 of the FW Act, a Court may make any order the Court considers appropriate if the Court is satisfied that a person has contravened a civil remedy provision. Such orders can include the granting of injunctions to prevent or remedy the effects of a contravention, reinstatement and an order requiring a person to comply with a notice given by the Fair Work Ombudsman.
5. Also listed in the orders, allowed to be made by a Court, is the provision in s. 545(2)(b) which empowers a court to make:

an order awarding compensation for loss that a person has suffered because of the contravention

1. This power has to be seen within the context of the whole of the FW Act.
2. Similar observations were made by Shariff J in Han (supra) where his Honour, at paragraphs 41 to 54, discussed the power of the Court to award compensation. I agree with the approach of his Honour who emphasised that power is a discretionary one predicated upon the order being "appropriate" and be exercised for loss "suffered because of that contravention". His Honour's analysis at paragraphs 60, 69, 71 and 72 are also apposite to this present matter.
3. Therefore, the task of the Court, in the present case, is to ascertain the loss that the applicant suffered because the applicant was terminated for a prohibited reason, which was because the applicant made complaints; that is for the exercise of a workplace right. It must be remembered that the establishment of a contravention is not predicated upon whether any complaint was justified or proper. In other words, it did not matter whether Ms Doherty actually behaved in the manner of which the applicant complained; what mattered was whether the applicant complained about the manner of the behaviour of Ms Doherty.

1. The applicant made submissions to the Court that she had "paid a heavy price for the respondent's unlawful conduct which commenced on 12 July 2021 fell letter making numerous allegations of serious misconduct against her and standing her down for the (purported) purpose of conducting an investigation and culminated in her termination on 28 July 2021".
2. As earlier explained, this is an improper premise for determining the loss of the applicant because anything that flowed from incidents that happened on 12 July 2021 are not part of the contravention. The applicant talks of the termination as the "culmination" of a series of bad behaviours on the part of the respondent, and there may be some force in such a statement if it were that the Court were looking at common law damages for a tortious action of nervous shock. But as has been made clear in the authorities, especially in the discussion by Shariff J in Han (supra), the Court does not approach compensation under s. 545(2)(b) in this way.
3. The applicant has looked at the termination as the "endpoint" of what the respondent has done, however, the Court must look at the termination as the "beginning".

1. The loss suffered by the applicant is the loss of good mental health. The applicant is not in a good state of mental health. However, the applicant was not in a good state of mental health at the time of the contravention.
2. During the course of her evidence before me, the applicant agreed that she had vomiting and headaches very often during her employment. She, in effect, said that the cause of this was workplace stress caused by the actions of Ms Doherty. She said that Ms Doherty was the cause of her not being able to enjoy her job.
3. The applicant described, while driving, having phone conversations with Ms Doherty in March 2021, that caused her to pull off to the side of the road as she was shaking and unable to drive. The applicant described that, on 13 March 2021, she had been unwell for most of the week and that she felt anxious and unsettled by the phone call from Ms Doherty.
4. The applicant described being unwell because of Ms Doherty during the whole of her personal, or recreational, leave from 24 March until 11 April 2021. The applicant said that when she returned from leave, the behaviour of Ms Doherty caused her to again have headaches and vomiting. She obtained a medical certificate for the period 19 April to 27 April 2021.
5. The applicant did not say that her health improved at all leading into the meeting of 14 June 2021.
6. As earlier noted, the email of 12 July 2021, in which she was stood down pending investigation, caused the applicant great stress and anxiety. The applicant was seen by the Acute Mental Health team at the Yeppoon Hospital and was prescribed Lexapro and Valium. As earlier noted, the applicant was diagnosed as suffering depression and severe anxiety on 26 July 2021. She was assessed as having no capacity for any type of work from 26 July 2021 to 26 August 2021 and that she would require treatment for the whole of that period.
7. This is a very significant injury.

1. It has been submitted that the Court cannot extract the termination from all that happened before it, so that one can actually discern the effect that the termination has had. When Dr Ashwani Garg gave evidence before me, he testified that the termination was the dominant factor in her presentation to him. He agreed with the proposition that there were many aspects to the cause of her presentation (which were the workplace relationships the applicant had endured). Having regard to this, the description that the termination was "the straw that broke the camel's back" met the approval of Dr Garg.
2. In many ways it is the job of the Court to discern the effect of that one particular straw from the many other straws that contributed to the condition of the applicant.
3. However, that is not to discount the effect of this straw because it could be seen as a particularly heavy one.
4. The applicant submits that the effect of the termination correlates to the effect of all of the other "bad behaviour" committed by the respondent.
5. Both parties have referred to Han (supra). (The applicant did so in his further submissions filed on 20 February 2026. I note that the respondent filed submissions on 24 February 2026, but I had not authorised the respondent to do this. I have had no regard to those latter submissions.) The applicant has pointed to the conclusions made by Shariff J at paragraph 99 where his Honour noted:

Each of the experts expressed the opinion that the cause of Ms Han's condition was the combination of events that occurred in the workplace at the Lakemba Facility. Relevantly, each of the experts considered there was no single cause and all agreed that it included the instances of alleged bullying and harassment as well as the ultimate termination of Ms Han's employment. This evidence was consistent with Ms Han's evidence that she commenced experiencing various adverse symptoms from about June 2019. Based on the totality of the evidence, I accept that Ms Han's condition of "Adjustment Disorder with Mixed Anxiety and Depressed Mood" was caused by a combination of workplace stressors including the ultimate termination of her employment.

1. It is instructive to look at this particular reasoning. Whilst Ms Han had developed symptoms, her diagnosis was based on her symptomology before the termination and the effects of the termination itself. The injury was caused partly by the termination.
2. In contrast, the evidence in the present matter is that the applicant had suffered an injury of "depression and severe anxiety" before the termination.
3. The diagnosis given by Dr Garg (after his examination by video link on 14 December 2022 (CB 290)) is "major depressive episode, severe and other specified trauma and stressors related disorder" which is, in effect, the same diagnosis made two days before the termination.
4. The diagnosis given by Dr Garg in his updated report (and after another video link examination which occurred on 12 March 2025 (CB 312)) was that the applicant suffered from "Other specified trauma and stress-related disorder" and "major depressive episode, severe". This effectively means that the diagnosis has not changed.
5. The only conclusion that can be reached is that the termination did not cause the injury. The injury was in existence at the time of termination, and that same injury is still in existence today. The question is whether the termination aggravated the injury.

1. As previously noted, Dr Garg saw the applicant on two occasions; 14 December 2022 and 12 March 2025. Both examinations were by video link only. Dr Garg has never seen the applicant in person. Dr Garg said that she had an impairment in her attention and concentration, an impairment in her ability to travel outside of home and an impairment in the ability to interact with others.
2. Dr Garg said that the psychiatric symptoms culminated in February 2021 after an increasing conflict with Ms Doherty. He said that her psychiatric symptoms aggravated markedly after the termination of her employment. He said that the content of her psychiatric symptoms suggest they are caused by her workplace problems and her psychiatric symptoms exacerbate with any reminders of workplace problems which suggest that those symptoms are caused by her workplace incidents and the termination of her employment.
3. Dr Garg said that the applicant's symptoms have not subsided notwithstanding that she has been treated appropriately. He said that the prognosis "appears to be poor". In his updated report, Dr Garg listed the following incapacities of the applicant (CB 313):
   • [The applicant] has developed significant impairment in her attention, concentration and short-term memory which would hinder her ability to complete her work tasks within expected times. She will also have difficulty with remembering the tasks she is required to do.
   • [The applicant] also has a psychiatric condition that causes her to have anxiety attacks with reminders of her former workplace. Her anxiety is likely to exacerbate if she were to return to work and perform the workplace duties she had been engaged to perform by her former employer.
   • [The applicant] has also developed some irritability and will have difficulty interacting with others. She was working as a retail operational manager with her former employer. This job requires a high level of interpersonal and communication skills. It is unlikely she will be able to perform the duties of this job due to her irritability.
   • [The applicant] also experiences poor sleep and is often tired when she wakes up in the morning. She often sleeps long hours after having poor sleep for a few nights. This will affect her attendance at work.
   • [The applicant] has also lost her confidence. She doubts her judgement. She will not be able to make executive decisions in time due to the loss of her self‑esteem.
   • [The applicant] has also developed some adverse effects from her psychiatric medications, which are also affecting her ability to drive long distances. She will have difficulty travelling to work as she does not feel confident in driving.
4. When Dr Garg gave evidence before me, Dr Garg said that, on the information provided to him by the applicant, Ms Doherty played the main role in the onset of the psychiatric symptomology. In re-examination, Dr Garg said that the dominant cause of the injury was the termination.
5. Dr Garg was of the opinion that the applicant could not return to work. He cited her report that she needs to prepare for two days before she goes to the shop to purchase groceries and that she needs to have already selected her groceries online before venturing to the shop.

1. It was odd to hear a professional witness change their mind when giving evidence. The clear import of the evidence of Dr Garg was that the main reason, that the applicant had her present injury, was the actions of Ms Doherty. However, in re-examination, Dr Garg said that the dominant cause of the injury was the termination. The reason for the change in opinion was not obvious to me.
2. Upon examination of the report of Dr Garg, specifically in the "dot points" found on CB 283, Dr Garg reports what the applicant told him. The dot point read as follows:

[The applicant] said just before she stopped working for the organisation, Miss Doherty had told her that she had received a complaint from Mr Horsward saying that he could not work with [the applicant] anymore. [The applicant] said that her performance review with Miss Doherty to help her resolve organisational issues had not taken place. In July 2021, Miss Doherty told [the applicant] that she was terminating her contract of employment. [The applicant] was physically unwell on the day that Miss Doherty told her this information...

1. It was not Ms Doherty who terminated the employment of the applicant, but Mr Mercer who was acting on information given to him by Ms Hinchliffe. However, it seems that the clear impression given to Dr Garg is that the same person who had been responsible for the vast majority of the problems of the applicant leading up to the termination, was also the person who was responsible for the termination.
2. Given that this was the factual framework from which Dr Garg was working, it is understandable why it is that he said what he did. If the main role in causing the injury to the applicant was played by the same person who terminated the applicant's employment (as if it were the final dagger in her heart) it is not surprising that Dr Garg has equated the termination with the actions of Ms Doherty.
3. The evidence of Dr Garg also has shortcomings in that there has been no meaningful collateral material given to him. The purpose of a forensic psychiatric examination is for there to be an independent eye that is run over all of the aspects of the patient.
4. For his first report, Dr Garg was given a letter of instruction, the affidavit of Mr Esser (the solicitor for the applicant), dated 16 September 2022, a notice of filing, the resume of the applicant and the instruction for experts issued by this Court. For his updated report, Dr Garg was given a referral letter, a copy of the judgment of his Honour Judge Egan and a transcript of the evidence that he (Dr Garg) gave at the trial before Judge Egan.
5. The affidavit of the solicitor contained a short note from the treating psychologist, a "fill in the blanks" medical certificate from Dr Menon who was the treating psychiatrist for the applicant and the draft further amended statement of claim.
6. Because the examinations had to take place by video link, the only tests that could be administered were a mental state examination (MSE).
7. This paucity of collateral material does mean that there are some severe limitations on the report of Dr Garg. Dr Garg had to rely almost totally on accepting the honesty and reliability of what was being told to him by the applicant.
8. Dr Garg said that he believed that the applicant was telling him the truth and there was nothing in his "checklist" which would have made him doubt the veracity of what she was telling him. Of course, an honest witness may not always be a reliable witness, and that is why resort to collateral information is essential for a proper forensic report. Dr Garg accepted this proposition.

1. In the affidavit of Leanne Michelle Dearlove of 13 October 2025 (which is reproduced at CB 394-1367), a plethora of collateral material was produced. None of this was given to Dr Garg to use in his report.
2. I do note that objection was taken to this material on the basis that they were hearsay documents. They are business records and are, therefore, admissible. But, to ensure that the applicant does not think that these documents have assumed any greater importance, I reiterate that I am looking at them as evidence of what they say, rather than the truth of what they say.
3. At CB 1167, there is a report from Dr Menon, who was the initial treating psychiatrist for the applicant. This report is dated 11 August 2021 which is after the date of termination. The history given by the applicant does not mention her termination but does say that the applicant "has since been stood down from work citing appropriate code of conduct". That report mentions the medication that has been given to the applicant.
4. At CB 1174 and 1175, there is a report from Dr Callaghan who is the psychiatry registrar at the WeCare clinic, dated 20 August 2021. The applicant complained about the bullying and harassment and the guilt she felt because she let that behaviour go on for so long. Dr Callaghan diagnosed her also with a major depressive episode with anxiety. There was no mention about the termination being at the centre of her troubles, but rather the bullying and harassment.
5. From CB 1176 to CB 1211, there are many summaries of visits that the applicant has made to the mental health team. These give a clear picture of what has been occurring.
6. At CB 1212, there is a report from Dr John Chalk dated 20 March 2022. Dr Chalk is one of the leading forensic psychiatrists in Queensland. He was engaged by WorkCover to assess the applicant. He also assessed the applicant via a video link. The applicant gave a history to Dr Chalk of bullying and harassment. Dr Chalk wrote that the applicant was "ultimately stood down and her employment was terminated".
7. Dr Chalk noted that the applicant had increasing symptomatology over a period of time, but she was being treated appropriately and medicated. Dr Chalk wrote "Ms Barlow reported some significant improvement since earlier this year". Dr Chalk noted:

Ms Barlow described mixed anxiety and depressive symptoms. She is angry. She told me, "I blame myself I should have resigned earlier"... Her motivation is diminished... Her concentration is poor. She finds it difficult to focus to read. Her thinking is "foggy". She reported some difficulties with her short-term memory. She is more irritable... She described being tearful, sad and angry. She is easily frustrated. She used to multitask without difficulty, but she is struggling to do this...

1. Dr Chalk wrote that the applicant was "having appropriate treatment and she has improved". He said that "She is clearly not able to return to her previous role, and she is involved in litigation with respect to that".
2. Dr Chalk said that "I think she is likely to improve with further treatment. I do not think any other factors are of relevance".
3. Dr Chalk said, "I believe Ms Barlow will be able to return to some form of alternative employment, but I suspect that her capacity to do that is probably some three months away".
4. At CB 1223, there is a report from Dr Menon dated 31 May 2022. Dr Menon wrote that the applicant had symptoms of depression and anxiety and that they were persisting. He wrote that "her mental state follows a tumultuous course and there appears to be a lack of consistency. Clearly the court case is having a profound impact on her mental health".
5. Dr Menon wrote that the applicant was currently not in a fit state to work. He said that he was unable to opine further about her long-term capacity but that "I hope that she will improve over the next 3-6 months' time".

1. Because there was a lack of collateral material, the premise of the opinion of Dr Garg relied upon the honesty and reliability of the applicant. One can only speculate what the opinion of Dr Garg would have been if he had had all this collateral material available before he made any examination of the applicant.
2. It is clear that the applicant has given a fairly consistent history of the bullying and harassment, but there has not been any mention of the effect that the termination had on the applicant, as opposed to the bullying and harassment to which she was subjected.

1. It would have been helpful if Dr Garg had been called to give evidence before me, after the applicant had given evidence. The reason for this is that the applicant did not impress me as a witness at all. There was a belligerence in her tone and an extremely aggressive streak when she was answering questions from the Counsel for the respondent.
2. After she had been non-responsive to a question from that Counsel, I warned the applicant that her role in the proceeding was to listen to the question posed to her and to answer that question honestly. I told her that I was watching how she responded to the questions as much as what she was saying in response to the questions.
3. Despite that warning, she continued to not answer questions but instead respond with speeches upon issues that she wished to speak about. She continued to be argumentative and seemed almost obsessed with having the last say and "winning her battle against the counsel for the respondent". She did not, in any way, meet the picture that Dr Garg had painted of a woman who was too incapacitated to do the simplest things and who would never be able to work again.
4. But those matters were not the most instructive aspect of her evidence.
5. The applicant was asked whether she had refused a request of the respondent to be examined by another psychiatrist. She said that she had never been asked to undergo another psychiatric evaluation. She was asked what her answer would have been if she had been asked. She replied that she would have agreed but she would have asked that the psychiatrist travel to Rockhampton to interview her in person. She said she would have been anxious leading up to any such examination.
6. She was then shown a letter that had been sent to her solicitors. This letter appears at CB 908 and is dated 23 September 2025. The applicant said that she had never seen that letter. The letter asked for dates upon which the applicant would be available to attend an assessment.
7. The solicitors reply, at CB 906 on the same day, states that "We seriously doubt we will get instructions to agree to a third medical examination".
8. Nevertheless, because the solicitors for the respondent made a request for another medical examination, it behoved the solicitor for the applicant to actually ask for, and receive, instructions and to then answer the request.
9. The applicant was shown a letter sent to the solicitors for the respondent from her solicitor. It was dated 29 September 2025 (and appears at CB 891). The final paragraph of that correspondence reads as follows:

Absent some further satisfactory explanation from you as to the purpose and/or utility of subjecting our client to a further independent medical examination, we are instructed to respectfully refuse your request and hereby do so.

1. The applicant said that she had never seen that letter and denied giving those instructions.
2. It is a cardinal sin for a solicitor to claim that they are acting on instructions when they do not actually carry those instructions. It is the basis of our legal system that when legal representatives say that they are acting on instructions, it means that they have explained the matters to their client and have been told by their clients to act, or answer, accordingly.
3. Any solicitor who informed solicitors for "the other side", or informed the Court, that they held, and were acting, on instructions when they did not have those instructions, should be struck off.
4. During the course of the trial, especially when Counsel for the applicant was making submissions, I invited the solicitor for the applicant to give a mea culpa, if, in fact, that was what had occurred. That offer was not taken up. As I explained to the Counsel for the applicant, such a situation left me with no other inference to draw but one against the applicant herself. Counsel said that they could not be heard any further on that particular aspect.
5. I draw the inference that the applicant was asked whether she would submit to a further medical examination by her solicitor. I draw the inference that the applicant said that she would not do so and gave her solicitor instructions to convey her refusal to the solicitors for the respondent. I draw the inference that the applicant gave false evidence to this Court when asked whether she had refused to undertake another medical examination.
6. It is quite understandable why the applicant would not have wanted to undergo another medical examination. But it is not understandable why she would deliberately mislead the Court as to whether she had, in fact, refused that request.

1. Given that the basis of the opinion of Dr Garg is almost totally premised upon the honesty and reliability of the information given to him by the applicant, it is very difficult then to put much store in that opinion. His opinion was that the applicant would suffer with the injury, in effect, for the rest of her life. The consequence was that she would never be able to work again. As noted earlier, the performance of the applicant in the witness box was not consistent with someone who would have trouble performing everyday tasks such as grocery shopping.
2. For this reason, I have grave doubt as to the severity of the injury. I cannot accept the opinion of both Dr Garg and Mr Johan Schoeman, the psychologist who has seen her on 23 occasions, that the prognosis for the applicant is poor or that there is simply no hope for the applicant.
3. However, I am still of the opinion that the applicant did suffer a loss because of the termination. It seems to me that she felt as if she was being harassed and bullied whilst working for the respondent. It is that subjective feeling of being bullied and harassed that has led to the injury that she has.
4. At the heart of her feeling bullied and harassed, was a feeling that she was being dealt an injustice because the persons responsible were seemingly getting away with abhorrent behaviour and no one was bringing them to heel.
5. Those suppositions are consistent, not only with the history given by the applicant, but also the medical evidence as to the injury from which the applicant was suffering as of 26 July 2021. To be then terminated would exacerbate that feeling of injustice. For the applicant, she would have felt as if "the bad guys had won". She would have felt utterly devastated and defeated.
6. In this way, she did suffer a loss "because of the contravention".
7. That loss, however, was an aggravation of the injury, but it is only a limited aggravation. It is certainly not the reason why the injury still persists.
8. I do not accept the evidence of Dr Garg that the termination is the dominant cause of the injury. That is because the injury was already a serious one at the time of the termination. It is also because Dr Garg (having not understood the role of Ms Doherty) mistakenly treated the termination as part and parcel of the actions of Ms Doherty as if it were the coup de grace of the campaign waged by Ms Doherty.
9. There is nothing written in any medical record or report, from the time of termination until the engagement of Dr Garg that suggests that the termination, or even ruminating on the termination, is the cause of the persistence of the injury.
10. As earlier noted, the credibility of the applicant is such that I cannot accept that the injury that she has is so pervasive that she will never be able to work again. I do not accept that the applicant will continue to feel the way that she does until after she has reached retirement age.
11. Whilst it may be somewhat arbitrary, I am of the view that the injury will not last for any more than the next three years. I have come to this view because the emphasis of Dr Garg (which is consistent with the reports annexed to the affidavit of Ms Dearlove) is on the inability of the applicant to stop ruminating on what occurred while she worked for the respondent. But, as one of the reports made clear these issues remain front of mind for the applicant because of the litigation that is still occurring. When this litigation finally concludes, the injury will soon follow suit.
12. I am not of the view that the injury is as severe as the applicant has contended. The opinions of Dr Garg (and Mr Schoeman) are premised on the honesty and reliability of what the applicant has told them. Given her performance in the witness box and the deliberate untruth she told the Court, I cannot accept that this injury is anywhere near as severe as has been reported.
13. I have picked the time frame of three years to err on the side of generosity and because I am of the view that it is the bullying and harassment that the applicant suffered (and her ruminating on those matters) that is the ongoing cause as to why the injury remains.
14. Consistent with that, given my thoughts on the aggravating effect of the termination, I am of the view that any aggravation that has been caused by the termination will have run its course well and truly by then. It may be that the effect of the termination has already run its course, but I am prepared to accept that there may still be vestiges of this aggravation still there until the injury has ceased.
15. I have concluded that the aggravation was acute and not chronic. This means that the effects of the aggravation will gradually dissipate as the injury comes to an end. I am of the view that, by the time the injury has ended, the effect of the aggravation would be less than 10% of the injury.

THE EFFECT OF THESE CONCLUSIONS ON THE CALCULATION OF COMPENSATION

1. As for how I should then determine economic loss, I am of the view that the best course would be to accept the figures that the applicant has put before me. There has been no challenge to those calculations other than the inclusion of the motor vehicle allowance.
2. Using those calculations as a base, I will look at the figures that were calculated up to 30 June 2029. Because the contravention only contributed to an aggravation of the injury, I will look at a figure that represents a portion of that figure which would be "appropriate" to allow having regard to the actual loss caused by the contravention (which, of course, is not the same as the actual loss that the applicant will suffer because of the injury).
3. The compensation for non-economic loss will be calculated given what I have said about the effect of the termination.

1. The applicant has provided a revised table of loss which calculates past economic loss as being worth $601,678.31. The table calculates future economic loss, to 30 June 2029, as being $480,961.97.
2. The applicant claims that she has incurred out-of-pocket expenses in relation to prescribed medication in the sum of $3,029.85 and should be compensated a further $2,678.01 in relation to costs that will be incurred by her in relation to her prescribed medication.
3. The applicant claims that she will incur costs relating to consulting with her treating psychiatrist to the end of 2029 in the sum of $2,930.20.
4. I am of the view that the applicant was very unlikely to have remained working with the respondent if she had not been terminated. This is because Ms Doherty would still be working with the respondent and it is clear that "this town ain't big enough for the both of them". For this reason, the respondent submits that I should not include the motor vehicle allowance in the calculations.
5. However, it seems to me that the applicant has lost the opportunity to work as a regional manager where she would have enjoyed such an allowance. I am of the view that it is proper for me to include that allowance and therefore the figures that I have quoted from the applicant will be the basis upon my determination as to the proper award for compensation.
6. It would be easy to begin from the premise that if the applicant had not been terminated, she would not have suffered any past, or future, economic loss. But she would have been able to find another job. It is the applicant's case that this would have been relatively easy for the applicant to do given her past exemplary record as an employee. The reason she has not been able to find another job is that the injury that she has precludes her from working.
7. Consistent with my conclusions, I am of the view that the termination had an acute effect on the injury, but that effect has waned over time, such that the effect would have dissipated by 2029.
8. For this reason, I am of the view that it is appropriate to award 100% of the past economic loss until 30 June 2023. I am of the view that it is appropriate to award 88% of the past economic loss for the year ending 30 June 2024, 68% of the year ending 30 June 2025, 50% for the year ending 30 June 2026, 34% for the year ending 30 June 2027, 20% for the year ending 30 June 2028 and 10% for the year ending 30 June 2029.
9. I have combined the totals for past and future economic loss for convenience. I have utilised the calculation made by the applicant for the period 1 July 2025 to 31 March 2026, notwithstanding that I have delivered this judgment on 5 March 2026 because, once I have delivered this judgment, the parties will need to give me submissions regarding taxation. That means the final amount of compensation will not be able to be given until I have those submissions. In those circumstances, it was easier to simply use the calculations given to me by the applicant.
10. These totals (including superannuation) are:

27 August 2021 to 30 June 2022 = $104,172.90

1 July 2022 to 30 June 2023 = $126,681.95

1 July 2023 to 30 June 2024 = $114,322.30

1 July 2024 to 30 June 2025 = $92,098.54

1 July 2025 to 31 March 2026 = $52,736.37

1 April 2026 to 30 June 2026 = $17,280.64

1 July 2026 to 30 June 2027 = $49,041.59

1 July 2027 to 30 June 2028 = $29,715.32

1 July 2028 to 30 June 2029 = $13,304.45

1. This gives a total of economic toss of $599,354.06. I have not made any allowance for long service leave because, having set an end date of 30 June 2029, the applicant would not have achieved 10 years employment until August 2029. Therefore, long service leave would not yet have accrued.
2. As to the past incidental costs, using the same form of calculation, but rounding up, I will award $2,300 under this heading. As to the future incidental costs, using the same form of calculation and rounding up, I will award $1,400 under this heading.
3. As far as the costs of consulting with her treating psychiatrist, I will award a sum of $1,500 under this heading.
4. The applicant has submitted that "it would be unfair to assess compensation without making an allowance for additional taxation payable in the light of the receipt of a substantial lump sum by way of compensation". I agree that this is so. Having laid out what I consider to be the compensation that should be made for economic loss in particular financial years, I will allow the parties to absorb what I have ruled and allow them to make submissions on this aspect.

1. This form of compensation is given to compensate for aspects such as emotional harm, humiliation and distress. The principles are well-settled. Whilst the applicant has cited authorities such as Richardson v Oracle Corporation Australia [2014] FCFAFC 82 and Hughes v Hill [2020] FCAFC 1309, those matters were not looking at compensation to be awarded pursuant to s. 545(2)(b) of the FW Act. Those matters were actions for damages and aspects such as "hurt, humiliation and loss of enjoyment of life" is a head of damages, rather than an award of compensation.
2. Nevertheless, I accept that the actions of the respondent did cause genuine distress to the applicant. As I described earlier, the termination would have felt like a grave injustice had been perpetrated and that "the bad guys had won" to the applicant.
3. For those reasons, I am of the view that the "appropriate" award of compensation for general damages is a sum of $50,000.

1. The law in relation to assessment of pecuniary penalties has been laid down quite comprehensively. The High Court, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, said, at paragraph 116 of that judgment:

As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.

1. The High Court reaffirmed that principle in the matter of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13. The High Court said, at paragraph 46 to 48:

[46] ...It is important to recall that an "appropriate" penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. ...

[47] The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors ... where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.

[48] It is not necessary to multiply examples further. It is sufficient to say that a court empowered by s 546 to impose an "appropriate" penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.

1. In Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7, which is known as the Pangea case (Supra), the Court went through, in effect, a number of factors the Court should be mindful of when imposing pecuniary penalties. One must be careful, though, in looking at the Pangaea case (Supra), that one does not simply look at those matters as some form of checklist to see whether or not the facts of the case with the particular factors either aggravate or mitigate the penalty. As such, the list compiled in the Pangaea case (Supra) is extremely useful, but it should not be a formula used by the Court to slavishly come up with some sort of almost mathematical guide for the imposition of penalties.
2. Notwithstanding what has been said in Pattinson, the principles in the Pangea case are still apposite when looking at the circumstances of the contravention as well as the circumstances of the contravener.
3. The applicant has submitted that the respondent ought to pay the maximum penalty of $63,000 by way of pecuniary penalty. It is difficult to justify such a submission, and even more difficult for this Court to accept such a submission.
4. The applicant bases this submission on the erroneous assumption that the contravention was more than just the termination. The applicant presumes that the whole of the conduct of Ms Doherty and other employees of the respondent is part and parcel of the contravention. This is not legally, or factually, correct and it flies in the face of the basis of the litigation as announced by Counsel for the applicant in the original trial before Judge Egan.
5. The respondent relies upon the affidavit of Stephen Bosse, who is the general manager (people and culture) at St Vincent de Paul Society. Mr Bosse deposed to the systems that the respondent now has in place to ensure that proper processes now occur.
6. Mr Bosse apologised to the applicant and did not shy away from the responsibility of the respondent for the contravention. He stated that this was the first contravention of the FW Act that the respondent had ever committed.
7. Having regard to the principles enunciated previously and noting that the purpose of a pecuniary penalty is deterrence, I am of the view that a penalty that "strikes a reasonable balance between oppressive severity and the need for deterrence" is a penalty of $25,000.
8. This penalty is to be paid to the respondent.

I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.