Hingst v Construction Engineering

1 The plaintiff, Mr David Hingst, was employed by the defendant, Construction Engineering (Aust) Pty Ltd ('Construction Engineering'), as a contract administrator from 13 May 2008 to 8 April 2009.

2 The plaintiff claims he was bullied in the workplace during this period and, as a result, has developed psychiatric and physical injuries, including fibromyalgia and irritable bowel syndrome, for which he is entitled to damages in the sum of $1,805,138 ('the bullying claim').[1] He further complains that the defendant unlawfully terminated his employment and that the Deed of Release and Settlement ('the Deed') he signed in settlement of his unfair dismissal proceeding was executed under duress ('the unfair dismissal claim').[2] It is important to record that the plaintiff prepared his own case and was self-represented at trial.

3 The defendant denies every aspect of the plaintiff's claim. It denies the plaintiff was bullied at work and says that, even if he was, his injury was not a reasonably foreseeable consequence of its act or omission. The defendant relies, in particular, on the fact that the plaintiff never complained of being bullied nor gave notice (directly or indirectly) of his failing mental state. And, as to the plaintiff's unfair dismissal claim, it says he cannot now reagitate this issue by reason of the Deed.

4 For the reasons that follow, based on the evidence given at trial, I am not persuaded that the plaintiff was bullied in the workplace. Nor am I persuaded that the defendant should have known that he was suffering from a depressive or stress-related condition and negligently failed to intervene. The plaintiff's unfair dismissal claim is also without merit for the simple reason that it was a genuine redundancy and the deed of release was lawfully executed.

6 The law imposes on an employer a duty to take reasonable care to avoid causing its employees a recognisable psychiatric injury.[3] This duty is vested at common law and finds expression (and modification) in contractual and statutory instruments.[4]

7 The content of an employer's duty will ordinarily involve providing safe tools and equipment, a safe workplace and a safe system of work.[5] In relation to the last of these, as the High Court (Mason, Wilson, Brennan and Dawson JJ) observed in McLean v Tedman, an employer is obliged to 'provide a safe system of work' and to 'establish, maintain and enforce' it.[6] It is well settled - and not in dispute for present purposes - that a safe system of work extends to the provision of competent employees.[7] One of the things the law requires of such employees is that they do not bully, harass, demean, abuse, intimidate or humiliate their co-workers.[8]

8 An employer will be prima facie liable if it knew, or ought to have known, that an employee was at risk of being bullied and did not take steps to ameliorate that risk. An employer will also be vicariously liable for the negligent acts or omissions of its employees in the scope of their employment. Self-evidently, this may include bullying another employee, where it gives rise to a reasonably foreseeable and recognisable psychiatric injury.

9 There is no statutory definition of what constitutes bullying in the workplace. A useful working definition, however, can be found in the reasons for judgment of Osborn JA (with whom Harper JA and Macaulay JA agreed) in Brown v Maurice Blackburn Cashman.[9] His Honour quoted WorkSafe Victoria's guidance note on Prevention of Bullying and Violence dated February 2003 as follows:

Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.

Within this definition:

Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.

Behaviour includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.

Risk to health and safety includes a risk to the mental or physical health of the employee.[10]

10 Osborn JA went on to observe that this definition raises two threshold questions:

(i) was there unreasonable behaviour directed towards [the plaintiff], ie behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten a person; and

(ii) if there was, did it occur repeatedly?[11]

11 This definition has been cited with approval in several recent decisions of this Court, including Swan v Monash Law Book Co-operative,[12] Johnston v Holland[13] and Johnson v Box Hill Institute of TAFE.[14] Swan, in particular, contains useful obiter on the elements that are established by this definition. It is convenient to quote the remarks of John Dixon J in full:

In Mount Isa Mines Ltd v Pusey, Windeyer J observed that, 'It is however today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had'.[15] As Sheller JA observed in O'Leary v Oolong Aboriginal Corporation Inc, cases in the ensuing four decades since Mount Isa Mines Ltd v Pusey 'demonstrate judicial recognition that the medical profession's view of the aetiology of such disorders has been accepted by the lay world'.[16]

The definition provided in the guidance note emphasises relevant features of that aetiology. An established pattern of behaviour is significant, as its persistent nature creates the foreseeable risk to health. The subject behaviours, under the rubric of bullying, have the characteristic of victimising, humiliating, undermining or threatening the victim and the definition requires that a reasonable person would expect the relevant behaviour in all of the circumstances to have that effect. The essential characteristics of behaviour that may create a risk to the mental or physical health of an employee are that it is both repeated and unreasonable.[17]

As the emphasised words in the above passage indicate, to make out a bullying claim at common law, a plaintiff must show on the balance of probabilities that there was an established pattern of behaviour in the workplace, which was repeated and unreasonable, and which a reasonable person in all the circumstances of the case would expect to give rise to a recognisable psychiatric illness.

12 Such analysis proceeds by way of the ordinary and time-honoured principles that govern negligence proceedings. A central feature of this analysis is that the impugned behaviour (ie of the employer or its employees) and the causative injury must satisfy the test of reasonable foreseeability. As Gleeson CJ said in Tame v New South Wales:

A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed ... Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage.[18]

13 The classic restatement of the test in the context of an employer who is said to have caused its employee a recognisable psychiatric injury is to be found in the reasoning of the plurality of the High Court in Koehler v Cerebos (Aust) Ltd:

The central inquiry remains whether, in all the circumstances, the risk of a plaintiff ... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.

It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work.

...

The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable ... that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.[19]

Of course, Koehler involved an employee who alleged that the stress of her job caused her psychiatric injury, whereas the plaintiff in the present case alleges that workplace bullying has caused his psychiatric injury. Nevertheless, the legal principles outlined in Koehler are applicable, as the Court of Appeal acknowledged in Brown and as this Court has acknowledged in Swan, Holland and Johnson.[20]

14 The relevant principles to be drawn from Koehler have been usefully summarised by J Forrest J in Johnson.[21] Most significant, for present purposes, is the requirement - to use the language of the High Court in Koehler - that there be 'evident signs' of an employee's inability to carry out work activities associated with the risk of psychiatric injury. This will be an important consideration in the context of a bullying or harassment claim in which psychiatric injury is pleaded. As the High Court has said, again in Koehler, absent those evident signs 'warning of the possibility of psychiatric injury' an employer is entitled to assume that its employee is capable of performing his or her job. It should be said, however, that 'evident signs' have no role to play in circumstances where it has been established on the balance of probabilities that one employee bullied another employee and so gives rise to vicarious liability on the part of the employer.[22]

15 The trial commenced on 27 November 2017 and ran for a total of 18 sitting days. This was a difficult and demanding task that the plaintiff undertook.

16 It is appropriate to observe that the defendant's legal representatives, including counsel and instructing solicitors, provided assistance throughout the running of the trial. This benefited the plaintiff and ensured that the Court's time was used efficiently and unnecessary delay avoided.

17 For example, on 19 December 2017, the defendant's IT expert, Mr Graeme Conn, gave evidence. Senior counsel for the defendant did not object to the plaintiff's IT expert, Mr Dean Attard, being in Court to hear Mr Conn's evidence and even allowed Mr Attard to sit at the Bar table with the plaintiff so as to assist him in cross-examining Mr Conn.

18 The plaintiff's case essentially turned on his own viva voce evidence. The following witnesses also gave evidence on his behalf:

• Mr Noel Broadie, Chief Executive Officer of Think Solutions;
• Mr Dean Attard, an IT expert, Crash Technology Pty Ltd;
• Mr David Shand, a former employee of the defendant;
• Ms Marina Sinnappu, an employee of the defendant;
• Mr John Shalit, the defendant's managing director;
• Mr Luke Pepperell, a former employee of the defendant;
• Mr Philip Hamilton, a former employee of the defendant;
• Dr Erin Redmond, the plaintiff's former treating psychiatrist;
• Ms Melissa Noonan, the plaintiff's treating psychologist; and
• Dr Gregory Belkin, the plaintiff's treating general practitioner.

19 The following witnesses gave viva voce evidence on behalf of the defendant:

• Mr Greg Short, a former employee of the defendant;
• Mr Simon Barker, a former director of the defendant;
• Mr Daryl Hodgson, the plaintiff's former treating psychologist;
• Dr Timothy Entwistle, a psychiatrist who provided a medico-legal opinion in relation to the plaintiff;
• Mr Graeme Conn, an IT expert, Deloitte Risk Advisory Pty Ltd.

20 It is important that I state upfront that I found the plaintiff to be an unreliable and unsatisfactory witness.

21 As I have said, the plaintiff was employed as a contract administrator, which was an entry level position in the defendant company. The plaintiff's case centred on his relationship with three of his fellow employees. The first, Mr Pepperell, was his supervisor on the Doncaster Village Project from approximately March or April 2008 to October 2008.[23] The second, Mr Short, was his supervisor on the Melbourne Clinic Project from January 2009 until 8 April 2009. Third, Mr Barker, was his senior manager for the entirety of the time that he worked for the defendant. Messrs Pepperell and Short both held the position of project manager on their respective projects; Mr Barker was a director of the defendant company.

22 At the heart of the plaintiff's case was an alleged 'conspiracy' between these three men to marginalise him and terminate his employment.[24] The plaintiff alleged, in particular, that in the five to six weeks before his redundancy Mr Short repeatedly abused him over the telephone. The plaintiff claimed that Mr Short spoke to him in a loud, aggressive, threatening and inappropriate manner about his work performance. Mr Short allegedly told the plaintiff that he had 'fucked up', that 'it can't happen again', that he was 'not worth [his salary]', that he was 'not worth shit', and that he 'kept fucking up'.[25] In the background, according to the plaintiff, he could hear 'not a party but some sort of loud laughter' as though people were listening to the conversation and finding it humorous.[26] He alleged that he received five such phone calls throughout this period.[27]

23 The plaintiff also claimed that, prior to March 2009, a number of discrete or peripheral incidents occurred at the workplace that caused him concern. He did not submit that these incidents necessarily amounted to bullying but that they shed light on the inappropriate working culture at the defendant company. For convenience, I will group these incidents as follows:

• the coffee incident;
• the exclusion from meetings;
• the allocation of office space;
• the flatulence incident(s);
• the 'horseplay' around the office and on the worksite; and
• the Christmas luncheon at the Olive Tree hotel.

Whether the peripheral incidents amounted to bullying or harassment must be assessed objectively. It is not a question of what the plaintiff perceived. In any event, for the reasons set out at [115] below, I do not consider that they amounted to bullying or harassment.

24 In addition to his bullying claim and unfair dismissal claim, the plaintiff alleged that either Mr Short or Mr Barker, the two of them in concert, or someone else employed by or associated with the defendant deliberately changed the date of an email dated 26 March 2009 ('the email') that was sent from Mr Short to Mr Barker concerning the plaintiff. The contents of the email were as follows:

From: Greg Short

Sent: Thursday, 26 March 2009 3:31 PM

To: Simon Barker

Subject: Colonel Hingst

Another example of my magnificent Administrator:

He sent out a carpentry package for pricing & part of the scope I gave him was for the install of doors, frames & hardware. Do you think he sent a door schedule with the drawings???

I think you know the answer.

Greg Short[28]

The plaintiff alleged that the email was not in fact created on 26 March 2009 but rather at a later date, somewhere between 19 August 2011 and 19 September 2011, following orders made by Magistrate Brian Wright for further discovery in the plaintiff's unfair dismissal claim.[29]

25 The plaintiff believed that if he could prove the email was fabricated it would invalidate and render unreliable the entirety of the evidence adduced by the defendant (including all affidavits produced for the purposes of his unfair dismissal claim and in this current proceeding).[30] Presumably for this reason, the plaintiff contended that the email issue should be dealt with at the outset, which would demonstrate, as he put it, that he could not possibly receive a 'fair trial'.[31]

26 I do not consider that the email was fabricated or that the defendant in any way engaged in fraudulent conduct or withheld discovery from the plaintiff. The plaintiff's obsession with the email was indicative of his frequent attempts to reconstruct and explain events by way of elaborate conspiracy theories. He attributed a great deal of deceptive behaviour, in particular, to Messrs Short and Barker.[32] I agree with the defendant that the 'wholesale email scandal' that the plaintiff alleged was not supported by any cogent evidence.[33]

27 As I have said, to a large extent, the plaintiff's bullying claim turned upon acceptance of his account of his telephone exchanges with Mr Short in the five to six weeks before his redundancy. The alleged peripheral incidents added context rather than substance to his claim. A positive finding of credit was therefore essential if the plaintiff's case was to succeed.

28 For the reasons that follow, I found the plaintiff to be an unreliable witness, whose evidence did not substantiate any of the alleged incidents at the defendant company. This was not a case where the plaintiff presented as a poor historian; rather, he lacked objectivity, which coloured his evidence. The plaintiff's conviction that he was the subject of a complex conspiracy dominated his evidence-in-chief, his cross-examination of the liability witnesses and, ultimately, became the central focus of his claim.

29 The plaintiff was a man profoundly hurt by the loss of his employment.[34] It was clear that his position with the defendant company was of the utmost importance to him. In my view, the plaintiff reacted in an extreme and unreasonable way to the termination of his employment, which led him to seek revenge against those whom he blames for his loss. It was evident throughout the trial that the plaintiff was extremely proud of his position as a contract administrator and hoped that it would lead to career advancement and a secure future.[35]

30 Although the plaintiff was not objective about many issues, he conceded from the outset that what I have called the peripheral incidents did not bother him when they occurred,[36] and in closing submissions he did not allege that they constituted bullying.[37] The core of the plaintiff's claim, as he put it in evidence-in-chief, was as follows:

[T]he very two people that were my boss and my utmost boss, the director, so Greg Short and Simon Barker were the actual people who were bullying me. Well Greg Short was actively bullying me and Simon Barker was just holding back and not doing anything.[38]

As this passage indicates, according to the plaintiff, Mr Short was the person who actively bullied him and Mr Barker the person who turned a blind eye to it. It follows that, for the plaintiff's claim to succeed, he must adduce evidence raising a real possibility that Messrs Short and Barker behaved as alleged. In this sense, although the evidence of Mr Barker was highly relevant, the true contest as to the bullying claim was between the plaintiff and Mr Short.

31 Even making allowances for the fact that the plaintiff was self-represented, his evidence was often confusing and he was unable to focus on the issue at hand, wanting constantly to refer to themes of conspiracy and deception. As the trial progressed, he became more concerned, trying to show that Messrs Short, Barker and Pepperell had taken a dislike to him and that there was a concerted campaign to end his employment at the defendant company. By way of contrast, Messrs Short and Barker gave their evidence in a straightforward fashion, attempting to give an honest and accurate account of events as they recalled them.

32 The following examples demonstrate why I found the plaintiff to be an unreliable witness.

33 Each of Messrs Short, Barker and Pepperell provided statements at various times in relation to the plaintiff's employment with the defendant company and, in particular, his unfair dismissal claim. They also gave statements in relation to his WorkCover claim.[39] I consider that, on the whole, the statements were consistent with their viva voce evidence in this trial and any inconsistencies were of little or no consequence.

34 The plaintiff's evidence, on the other hand, was to a significant extent a reconstruction of events. He cross-examined each of the abovementioned witnesses for approximately one day. He sought to show that Mr Barker had deliberately assigned him to Mr Short, who was in charge of the Melbourne Clinic project, so as to expose him to a bully and hasten the termination of his employment.[40] I agree with the defendant that there is no logic to this. In any event, the allegations were flatly denied by Mr Barker,[41] whose evidence I found to be credible.

35 Most telling and disturbing was the plaintiff's attempt to reconstruct a scenario whereby Messrs Pepperell, Short and Barker were in cahoots to ensure that his employment with the defendant company would be terminated. He contended that the three men conspired against him for 'personal reasons'.[42] This was evident in the questions that he put to Mr Short in cross-examination. The plaintiff sought to show that Messrs Short and Pepperell had each underperformed on their respective projects and had tried to blame him for their own deficiencies. As the plaintiff put it, in response to a question I asked him about the relevance of Mr Short's performance:

Well, it's similar to Luke Pepperell, Your Honour, where the person's own deficiencies are now purported to be mine. Somebody else has been given the blame for that ... This has been conveyed to others in upper management behind my back, and there might be well a reason why that person has done it is because they're trying to dispose their own deficiencies. I'm trying to bring facts to the table that actually purport to that and give no objective evidence, as to say, well, if you're accusing me of being sub-average, what does this reflect? And it does. And now it's reflected as I'm the incompetent one, but this here speaks for itself.[43]

36 The plaintiff then explained that he wished to cross-examine Mr Short on this point because it was consistent with the allegation (which he put to Mr Pepperell) that Mr Pepperell had started the conspiracy and Mr Short had taken it much further. This led to the following exchange between the plaintiff and senior counsel for the defendant:

THE PLAINTIFF: Your Honour, I am suggesting that. [Mr Pepperell] started this off.

COUNSEL: Is the plaintiff's case now that Mr Short and Mr Barker thought that he was very good at his job and that they're lying in this court case?

...

If that's the case, we might consider embracing that proposition because it's so contrary to the suggestion that he was bullied about being bad at his job.

THE PLAINTIFF: Your Honour, in my further amended statement of claim ... [and] in Dr Rose's report ... [I] talked about a conspiracy that was made against me to the time. Now, that conspiracy consists of saying how you were sub-average and that is part of the reason why we're not actually letting you go. Now, I am saying ... that there are interpersonal reasons for disliking.[44]

37 The plaintiff cross-examined Mr Short at length as to whether, while supervising him on the Melbourne Clinic project, Mr Short deliberately withheld a 'Job Pac' report from him.[45] He alleged that Mr Short did this to demonstrate that he was a below-average worker so that Mr Barker could more easily terminate his employment. This, the plaintiff submitted, was consistent with his claim that he was unfairly dismissed.[46] The difficulty, however, was that there was no evidence to suggest that Mr Short had withheld information of any kind.

38 The plaintiff also accused Mr Short of engaging in fraudulent conduct by submitting inflated claims to clients. The plaintiff asked Mr Short about this in cross-examination; Mr Short denied the allegations.[47] The plaintiff then asked Mr Short whether he had inflated any tenders. Mr Short replied as follows:

Well I'm trying to think back now ... We've got to provide documentation which would be the rock reports from the quarry of how many cubic metres. We have a rate per cubic metre. Maybe the contractor we engaged wrote per cubic metre was half of what we had an allowance. So we're not going to say to the contractor, well, he only actually charged us $2 per cubic metre. We've got eight, so we'll only - we'll only charge you two. We've got a claim in our - in our - we've got - in a - what do you call it, rates in your tender of what different things cost. And we've got a higher rate than Mr Plumber who's removing the rock. We're not going to give the discounted price to the client. We're going to give him what rate we've got in our - you'd be mad not to, because you'd just be out of business. So it was an opportunity to, even if we get an invoice for $40,000, we've got a rate per cubic metre. We've got rock reports. They're not going to approve a $100,000 variation without substantiated information.[48]

There was nothing untoward or improper in the evidence Mr Short gave as to the pricing structures and claims processes of the defendant company.

Mr Barker gave clear and credible evidence. He denied having known of a conflict between the plaintiff and Mr Short at the time that he assigned the former to the Melbourne Clinic project. He explained, however, that he soon became aware that the plaintiff had personal issues:

COUNSEL: Before assigning the plaintiff to that role, were you aware of any conflict or issues between the plaintiff and Mr Short?

WITNESS: No, there wasn't. If I had have, I wouldn't have done it because from a business point of view, why would you send two people in when they're running a project and your reputation is at stake, where there's potential issues.

COUNSEL: Whilst working on that project, did the plaintiff make you aware that he was having any problems in his relationship or dealing with Mr Short?

WITNESS: No, he didn't.

COUNSEL: Did you become aware, or did you receive any feedback from Mr Short regarding the plaintiff's performance on that job?

WITNESS: Yes I did, [Mr Short] was becoming more and more frustrated and again - I think [the plaintiff] made a few errors on some things and either kept saying to [Mr Short] that he had some issues and that's - in his personal life, and that we needed to just be patient and get through this early stage of the project where he was assisting, and then move on.[49]

39 The plaintiff's unreasonable and relentless attempts to prove a conspiracy against him were a significant feature of his cross-examinations of Messrs Short and Barker. In closing submissions, the plaintiff repeated the allegation that Mr Barker had deliberately avoided consulting him, thereby denying him the opportunity to explain his poor performance. He said: '[Mr Barker] intentionally did not seek to consult and provide me with any fair opportunity and remained in the background, receiving information from others ([Mr Pepperell] and [Mr Short]), though not clarifying these issues with me.'[50] The plaintiff further submitted that:

The word conspiracy that I claim may appear somewhat 'exaggerated', though this was as simple as two, three persons taking a collective dislike towards me for a number of reasons, and effectively allowing [Mr Short] to[wards] the end of my employment to bully me.[51]

40 The plaintiff's conspiracy theory is premised upon the idea that the defendant unlawfully terminated his employment rather than it being a genuine redundancy. For the reasons set out below (at [149]) I am satisfied that the plaintiff's redundancy was genuine. It follows that I must reject his submission that there was a conspiracy against him involving several employees of the defendant company.

41 I agree with the defendant that the plaintiff has not been able to accept that his redundancy was due to a downturn in work brought about by the Global Financial Crisis ('GFC').[52] The plaintiff's own evidence showed that many employees, including several contract administrators, were hanging around head office without work to do.[53] He did not challenge the proposition that the GFC resulted in a downturn of work. Nor did he challenge Mr Barker's evidence about the impact of the GFC on the defendant company. Mr Barker described the redundancy process in April 2009 and explained how he met with the plaintiff, on or around 8 April 2009, and broke the news of his redundancy.[54]

42 It is telling that, after his redundancy, the plaintiff stalked his former colleagues, swore at Mr Pepperell and threatened Mr Short.[55]

43 The plaintiff refused to accept that other employees were made redundant at the same time. He submitted that Mr Barker allocated him to the Melbourne Clinic project knowing that he was underperforming (which Mr Barker denied) and having already made the decision to terminate his employment.[56] In this way, the 'short-term' decision to put him on the Melbourne Clinic project proved the level of deception, since he was led to believe the position was long-term.[57]

44 The plaintiff's submissions and cross-examinations of Messrs Short and Barker demonstrated his flawed logic and desire to reconstruct events so as to fit his conspiracy theory. There was no cogent objective evidence of any conspiracy against the plaintiff by Messrs Short, Barker and Pepperell. What is perplexing is the plaintiff's conjecture that these three men had 'interpersonal reasons' for disliking him and that this was the basis for their conspiracy against him.[58] It is fanciful to suggest that Messrs Short, Barker and Pepperell each decided to use him as a scapegoat, to mask their own deficiencies, mistakes and errors, and ultimately engaged in a concerted plan to ensure that his employment was terminated. The plaintiff did not adduce any evidence to support his theory.

45 As I have said, a core part of the plaintiff's case concerned the allegation that either Mr Short, Mr Barker, or the two of them in concert (along with a more technically-minded third party employed by or associated with the defendant) deliberately changed the date of an email dated 26 March 2009 that was sent from Mr Short to Mr Barker concerning the plaintiff.[59]

46 The plaintiff expanded on this aspect of his case in his written submissions:

I believe that the email dated 26 March 2009 with the subject of me being 'Colonel Hingst', was an initial email composed to satisfy the court order received at Melbourne Magistrates Court. Cleverly purporting to a somewhat derogatory content, the email was created and was never anticipated to receive the attention which I gave this.

Also I believe that the level of effort made to conceal the true identity had received much attention over the years and help from a competent IT professional was engaged, to provide--[60]

47 It should be said that Mr Short's reference to the plaintiff as 'Colonel Hingst' was inappropriate and unprofessional. Yet the idea that employees or agents of the defendant - whether Mr Short, Mr Barker or others - composed an email at some time in August or September 2011 and backdated it 26 March 2009 so as to satisfy a court order is far-fetched in the extreme. Such an account not only requires Mr Short and/or Mr Barker to have engaged in fraudulent conduct, an allegation that would need to be met with strict proof, but to have garnered the assistance of an unknown but technically savvy third party.

48 The two experts who gave evidence in this case, Messrs Attard and Conn, opined that the creation of such an email would require considerable IT knowledge. In their view, the most likely person to possess such knowledge was Mr Damien Ng, an IT consultant in the employ of the defendant. The plaintiff did not call Mr Ng, despite calling many other witnesses in this case, and provided no explanation for not calling him.

49 I will not go into the technical detail of the expert evidence in relation to the email as ultimately I do not think it assists the plaintiff's case. Nevertheless, as the plaintiff placed so much emphasis on this issue, I will briefly summarise the conclusions of Messrs Attard and Conn.

50 Mr Attard, of Crash Technology Pty Ltd, provided an expert opinion and gave evidence on the first day of the trial. In his written report dated 23 November 2017 he opined:

In my opinion and with what has been presented to me I can say with a 95% probability that the email shown in Q1 [ie the email dated 26 March 2009] was not created on that day, but at a later stage after the Microsoft Exchange server had been put in place.[61]

51 In response to Mr Attard's report, the defendant obtained an expert opinion from Mr Conn of Deloitte Risk Advisory Pty Ltd, which was dated 11 December 2017. Mr Conn was unable to agree with the proposition that the email 'could only have been created, or has been deliberately modified, after the migration in late 2010.'[62] He therefore was unable to agree with Mr Attard's assessment that it was 95% probable that the email had been backdated.

52 Given the seriousness of the allegations made by the plaintiff, and the discrepancy between the two expert opinions, I invited Messrs Attard and Conn to give concluding remarks concurrently. Mr Attard subsequently conceded that, in order to determine whether the email had been backdated, he would need to conduct further tests.[63] He modified his position as follows:

So, having said that, I actually don't know how any of us can formulate an opinion on what has happened when there's no-one in the country qualified enough to answer that question.

...

[A]fter having read Mr Conn's report it obviously threw me down a different path that I started to look at to see if the ingestion of the email could potentially bring that information across. And I do believe that that theory is plausible. Again that's why I wanted to run the test or why I'm running the test, even to satisfy my own curiosity, just to make sure that okay that could be the case.[64]

Mr Attard remained confident that his earlier opinion was 'still very plausible.'[65] However, when asked whether the opinion given by Mr Conn was equally plausible, he said 'absolutely'.[66]

53 Mr Attard was also cross-examined as to whether the original email, which he was allowed to inspect on the defendant company's archive server, appeared genuine. The relevant exchange was as follows:

COUNSEL: Mr Attard, when you went out to [the defendant's premises] you were given access to the Lotus Notes server, correct?

...

WITNESS: Yes. Yes. Correct.

...

COUNSEL: So do you agree that the Lotus Notes server still has on it a copy of the 'Colonel Hingst' email sent from Mr Short to Mr Barker on the day it appears to have been sent.

WITNESS : Yes. Yes.

...

COUNSEL: So the suspicion is maybe somebody's gone back into the Lotus Notes server and forged a whole bundle of emails?

WITNESS: I didn't look at all the other emails as yet, but the one that - the one that I looked at, yes, that would be the assumption.

COUNSEL: Yes. And so from what you could tell having a look at the Lotus Notes server and file, everything was absolutely hunky-dory as you'd expect?

...

WITNESS: [I]t looks - it looks exactly the way it should look.

COUNSEL: Which is exactly the way it would look if indeed it was created and sent on that day?

WITNESS: Correct.[67]

I also asked Mr Attard what level of IT experience would be necessary to perform the operation implicit in the plaintiff's allegation. He said that this could 'only be done by somebody with ... IT technical experience.'[68]

54 The above summary does not reflect the level of detail and assistance that the expert witnesses gave the Court in relation to the email issue. Nevertheless, having carefully considered the evidence, I consider that the plaintiff has not established on the balance of probabilities that the email was falsified. Neither Mr Short nor Mr Barker had any reason to undertake such a process. They each denied changing the date on the email server and did not have the skill to create the email from scratch.[69] Nor was there any evidence from Mr Ng.

55 The plaintiff refused to accept that the legitimacy of the email, even after the original Lotus Notes server was found with the email still on it, and even after it was established that such a forgery would have required altering the information on hundreds, if not thousands, of archived emails.[70] I agree with the defendant that the reference to the Exchange server in the email header information can be explained by virtue of the fact that the email was 'migrated' and 'ingested' into an Exchange server in 2010.[71] Finally, I agree with the defendant that the plaintiff's persistent and irrational belief that the email was forged indicated the unreliability of his evidence in many respects, especially in light of Messrs Short and Barker's credible denials.[72]

56 I agree with the defendant that the plaintiff treated this proceeding as if it were a 'judicial commission of inquiry' into the way the defendant company operated rather than a bullying claim at common law.[73]

57 As the trial progressed it became evident that the plaintiff was more focused on his grievance about the loss of his employment than any bullying that took place during his time at the defendant company. His sense of having been betrayed by the defendant, and his former colleagues, was palpable. The plaintiff referred several times to feeling 'hurt' at being made redundant.[74] He also stated that, in bringing his unfair dismissal claim, he had wanted the defendant to reinstate his employment rather than any amount of compensation.[75]

58 There was a sense in how the plaintiff conducted himself, and in his line of questioning of several witnesses, that he was endeavouring to exact revenge on those whom he blames for his redundancy. His cross-examination traversed all aspects of the defendant company's operations in what seemed to be an ill-conceived attempt to blacken the defendant generally. The plaintiff asked irrelevant questions such as whether Mr Pepperell was aware that Mr Short or Mr Barker had ever smoked marijuana.[76] And whether pornographic emails were circulated between employees of the defendant company during the years of the plaintiff's employment and even prior to his employment.[77] These questions were clearly asked for no purpose other than to damage the witnesses' reputations.

59 In a similar manner, the plaintiff sought to investigate the amount of alcohol consumed at the defendant company in an attempt to show that it had violated its drug and alcohol policy, when there was no allegation in relation to alcohol consumption and it was irrelevant to his bullying claim.[78]

60 The plaintiff also tried to suggest that his fellow employees were homophobic.[79] Mr Short denied this.[80] The plaintiff asked Mr Pepperell whether he knew that the plaintiff was gay. Mr Pepperell replied that had not known at the time. The plaintiff even went so far as to ask Mr Hodgson, his former treating psychologist, whether the latter was a 'closet gay'.[81] The plaintiff appears to have asked this question because he was frustrated at Mr Hodgson for not giving him the answers he wanted. The question demonstrated his lack of focus and insight into the issues in this case as well as his preparedness to intimidate witnesses.

61 It was clear from the way the plaintiff ran this trial that he was not intimidated or cowed by any of the witnesses who gave evidence. He was forthright, aggressive and, on occasion, asked inappropriate and demeaning questions of those whom he felt were not helping his case. There is force in the defendant's submission that the plaintiff's conduct during the trial, and his management of the trial, 'sits comfortably' with the thesis that he was not bullied at work.

62 What was concerning, however, was the way that the plaintiff deliberately omitted relevant materials. For example, it emerged in the cross-examination of Ms Noonan, the plaintiff's treating psychologist, that she had only recently seen the plaintiff after a gap of almost four years.[82] This had not been volunteered by the plaintiff. These recent attendances had a flavour of being for the purpose of this proceeding.[83] This impression was underscored by comments made by Ms Noonan in evidence-in-chief. The plaintiff asked her whether he had provided her with two written statements, one by Mr Short and the other by Mr Barker, and whether he had expressed to her his view that the statements were untruthful. Ms Noonan agreed. I then asked Ms Noonan to confirm whether she had been taken to these statements in recent consultations. She said that that was correct.[84]

63 The plaintiff then asked Ms Noonan in re-examination:

Did I express to you in our sessions that I believed that I was subject to a conspiracy?---Yes.

Were within these names of conspiracy the names of Greg Short and Simon Barker?---Yes.[85]

64 I also consider that the following exchange from Ms Noonan's cross-examination shed light on her credibility and, in turn, on the way that the plaintiff ran his case. Senior counsel for the defendant asked Ms Noonan when she had first heard about the allegedly bullying phone calls made by Mr Short to the plaintiff:

COUNSEL: When were you told this?

WITNESS: Um - - -

COUNSEL: Just recently?

WITNESS: Not only just recently.

COUNSEL: All right. You were told this recently?

WITNESS: Yes.

COUNSEL: Yes. Have you got your notes with you - - -?

WITNESS: No.

COUNSEL: - - - for your recent attendances?

WITNESS: No.

COUNSEL: You make no reference of this at all in your written material?

WITNESS: When? Which written material?

COUNSEL: In this written material. The reports?

WITNESS: Yeah. No, because that was in 2012.

...

COUNSEL: All right. Just explain to me why the fact that these reports were in 2010 and 2012 didn't refer to the swearing phone calls from Mr Short?

WITNESS: Um, I'm imagining that because I don't recall, um, some of the things that we talked about in the 38 sessions over three years times between 2010 and 2012, um, that there was - like, the file, if you saw it, was probably that thick. So, I can't recall every single thing that is said in those. But, when I saw him in more - in this more recent times, you know, I was reminded of certain things that I recalled from what he talked about to me previously. So, it refreshed my memory of some of those things he'd spoken about earlier.

COUNSEL: And so, he came to you this year - - -?

WITNESS: Yes.

COUNSEL: - - - and said, "I was sworn at by Greg Short?"

...

WITNESS: Yes.

COUNSEL: Yes. And you agree that that is not something that's referred to in your reports, 21 October 2010, or 21 November 2012?

WITNESS. Although I did refer to bullying and harassment in those reports.

...

COUNSEL: So, the answer to my question is correct, yes. That you did not set this out in your reports?

WITNESS: Not specifically.[86]

65 The course of Ms Noonan's cross-examination revealed a witness who was not completely candid with the Court. It was troubling that the plaintiff did not refer to his recent consultations with Ms Noonan when questioning her in evidence-in-chief. Nor did he refer to the fact that he had provided her with written statements and outlined, in some detail, the allegations he had made against Messrs Short and Barker and the defendant company more broadly.

66 The plaintiff also tendered a bundle of documents relating to his unfair dismissal claim.[87] This did not include several emails that the plaintiff sent to Mr Barker, Mr Shalit or Mr Robert French (a solicitor acting for the defendant), between 14 and 19 August 2009.[88] The emails showed that the plaintiff was prepared to pursue his unfair dismissal claim and that he thought he had a strong case. They showed that he was prepared to negotiate and compromise the claim for $10,000 on the basis that it would be classified as a 'retrenchment - lump sum payment'. And they showed that he agreed not to institute any further civil proceedings against the defendant. Needless to say, for reasons given at [149] below, these emails did not assist the plaintiff's duress claim.

67 The plaintiff in closing submitted that Mr Barker's evidence-in-chief appeared rehearsed and that his answers to questions were too quick and well-documented. He submitted that, in cross-examination, Mr Barker 'displayed a character of enjoyment and smiling when answering questions'.[89]

68 I consider that Mr Barker gave his evidence in a measured and thoughtful way. Mr Barker is no longer employed by the defendant. He made appropriate concessions and did not deny or make excuses for matters that reflected badly on the defendant. For example, he readily accepted that pornographic emails were distributed by a former employee, conceding that in this respect the defendant failed in its duty to adequately monitor such matters.[90]

69 Equally, in my opinion, Mr Short gave his evidence in a straightforward and frank manner. Mr Short currently lives in Dubai, United Arab Emirates, and travelled to Australia to give evidence in this case. He too is no longer employed by the defendant.

70 Mr Short was prepared to make concessions about matters that he could not recall.[91] On the whole, I found Mr Short's evidence compelling and believable, including in relation to the following matters:

• his denial that he yelled, screamed and swore at the plaintiff over the telephone in the five to six weeks prior to his redundancy;
• his denial of any fraudulent costings as alleged by the plaintiff; and
• his denial that he deliberately and repeatedly passed wind close to the plaintiff in order to cause him distress or discomfort.[92]

71 I note, in particular, Mr Short's evidence in relation to what was referred to as 'the Olive Tree incident'. The plaintiff alleged that, following a work lunch at the Olive Tree hotel, Mr Short called him an 'idiot poofter'. When asked about this by senior counsel for the defendant, in evidence-in-chief, Mr Short replied:

No. That is - that is not in my vocab. That is not in my vocab, I'm sorry. To say - to call someone a dickhead or something like that and I'd say, yes, but that is not something that I would say, and I don't think I've ever said in my life. I said - I called him an idiot, yes, but not the P word afterwards, no.[93]

He was then asked whether he could remember walking back to the defendant company's office with the plaintiff. Mr Short said:

No, I can't remember walking back. No. No. I can actually - somethings in my memory I can remember, I can picture myself sitting - I know exactly - if I went into the restaurant now I could picture where we actually sat. But in terms of getting to and from there and conversations had in that - in that restaurant, no.[94]

72 Mr Short did not deny or shrink from allegations that must have caused him some embarrassment. For example, in relation to whether he attempted to humiliate the plaintiff by passing wind or near him, or threatening to do so, his evidence was as follows:

COUNSEL: What do you say to the suggestion that you were in the practice of thrusting your bum at the plaintiff and pretending to fart at him?

WITNESS: Look, I don't recall doing it, but ... I may have done it once or twice, maybe. But I can't recall. I don't recall doing so, so I'm not flat out saying I didn't or I did. I just can't remember doing it. But if he alleges I did it.

COUNSEL: Well, what do you say to the suggestion that you were doing this in a repeated way with the intention of distressing or harassing him?

WITNESS: No. No, no, no, no. No, not at all. No.[95]

73 Finally, in relation to Mr Pepperell, I found him to be a reliable witness who, by his own admission, only had a fair recollection of events in 2008 when he worked with the plaintiff on the Doncaster Village project.[96] The plaintiff submitted that Mr Pepperell's evidence was inconsistent and, in particular, that his 'written statements made in December 2009 were in stark contradiction to what he had earlier stated [in his viva voce evidence]'.[97] These inconsistent statements concerned the nature and frequency of Mr Barker's attendances at the Doncaster Village site. The discrepancies or inconsistencies were minor. Nothing turns on them and, in any event, I consider that they were satisfactorily explained by Mr Pepperell.

74 On the whole, where there was a dispute about what was said in conversations or at meetings between Messrs Short and Barker and the plaintiff, I consider that the evidence of Messrs Short and Barker should be preferred.

75 The plaintiff's evidence was that Mr Short abused him over telephone while he was working on the Melbourne Clinic project.

76 He said that, prior to the phone calls, there had been several work-related issues that altered his relationship with Mr Short.[98] These included a dispute over rock excavation costs on the Melbourne Clinic project. The plaintiff alleged that Mr Short told him that the work actually cost $48,000 but that the defendant company was going to make a claim of $98,000.[99] Another issue concerned a disagreement over the retainer of a subcontractor referred to as 'Liftronics'. Mr Short did not want to use Liftronics; the plaintiff was aware of this, but went over his head and approached Mr Barker. In the event, Mr Barker agreed with the plaintiff, and Liftronics was retained. The plaintiff's evidence was that Mr Short 'wasn't happy about it'.[100] Lastly, there was a dispute over an error the plaintiff made when he failed to send all relevant materials to a contractor, after which Mr Short took him to task.[101]

77 The plaintiff's evidence about the phone calls was as follows:

Greg Short, when he called me the first time, and said - he said, 'Hey, David. You fucked up. You get it? You fucked up on the sending these drawings and this transmittal out to the contractor. You didn't respond to an email.' And there was another - some complex variation. I can't tell you the exact detail of it. But, I got off the phone. Veronica [Noonan] looked at me. Asked me, "What's the matter with you?"

And I'm like, 'Oh, shit. I fucked up and Greg just blasted me.' And I took my Spirax [notepad]. I turned it around. I wrote the three issues on there, and then I tried to focus on my job. And I continue with the work that I had, because I had plenty on. Anyway, I took that home over the weekend and I looked, and I saw that that transmittal and the accusation that I hadn't forwarded the tender in a complete form wasn't due to my fault.[102]

78 The plaintiff expanded on the significance of the phone calls in cross-examination:

I sincerely believe that particularly the last five weeks of really harsh derogatory abusive language telling me that I'm a - yeah, I'm worthless, I'm useless, has had that effect on me that I believe that.

...

The hard core ... bullying started approximately to the beginning of March, that first phone call of Greg Short shouting at me on the phone, telling me I, '"Keeping fucking up. This can't happen again." He didn't say in the first one that I wasn't worth my money. He told me three issues. Told me I keep fucking up. He's told me there's three issues that I've gone into before. And then, in the subsequent calls he's then saying about, you know, '"Keep fucking up. It can't happen again. You're on a good salary. You're earning really well, but you're not flat out, but you keep fucking up and this can't happen again."[103]

79 The plaintiff's evidence was that he told two of his fellow employees at the defendant company about his difficulties with Mr Short and the phone calls - Mr Phillip Hamilton and Ms Veronica Noonan.[104] Ms Noonan (not to be confused with his treating psychologist Ms Melissa Noonan) was not called to give evidence.

80 Mr Hamilton gave his evidence in a measured and straightforward manner. The plaintiff asked him about Mr Short's conduct in the workplace from mid-2008 to 2009. Mr Hamilton described Mr Short as a 'very intimidating character'.[105] Mr Hamilton was asked if he recalled any bullying incidents involving Mr Short and the plaintiff. He said:

Well I do recall obviously times when [the plaintiff] got quite offended by some of the stuff that went on. Obviously there were incidences where [Mr Short] had a propensity to walk over to the printer, which was next to me and I think [the plaintiff] sat behind where the printer was and [Mr Short] would flatulate [sic], he would fart you know and that would happen quite frequently. Now I - I mean I would laugh it off or you know walk out or whatever. But I knew that [the plaintiff] took quite offence to it and I - to be honest at the time I didn't understand, but then obviously realising it was [the plaintiff] being [of] German descent, whereas us Australians are sort of brought up you sort of accept it or think oh it's just - that's what happens. But [the plaintiff] was always quite often offended when that happened.[106]

What is striking in this passage is the emphasis Mr Hamilton placed on the plaintiff's offence at Mr Short's flatulence - an offence that has its origins in cultural difference - rather than the sort of fear, distress, humiliation or victimisation that one would ordinarily expect in a bullying scenario.

81 The plaintiff asked Mr Hamilton whether he recalled any conversations between them during the period of the Melbourne Clinic project. Mr Hamilton replied that they had talked about mutual interests, including Mr Hamilton's wife (who is German) and the plaintiff's son, and that the plaintiff had relayed some of his concerns about Mr Short.[107] The plaintiff asked Mr Hamilton whether he recalled any particulars of these conversations. Mr Hamilton said: '[t]o be honest, not specifically. Well, obviously the farting issue and things like that, but not - not specifics. Not specifics about work and that.'[108] He added:

[T]o be honest I can't remember specifics, but I can only comment on obviously things that were spoken about, like nicknames; they called you Colonel Hingst or something, obviously in reference to Colonel Klink. Um, but to be honest, from so long ago I can't remember specific items of conversation.[109]

82 Mr Short, for his part, did not disagree that he was displeased with the plaintiff's performance during the Melbourne Clinic project. He formed the view that the plaintiff was not suited to the role of contract administrator.[110] Mr Short said that, in or around March 2009, he communicated with the plaintiff via telephone because they were in different locations. He agreed that emails would also have been exchanged.[111]

83 Mr Short was asked about the allegation that he had, on a weekly basis for five to six weeks, screamed at the plaintiff that he had 'fucked up' and that it 'can't happen again'. His evidence was as follows:

[N]o that's not - that's not me. I don't - I don't yell and scream at people. Subcontractors sometimes can push you to the edge, but in terms of working with a colleague, it doesn't matter if they're good, bad or indifferent, that's [not] me to yell and say, "you fucked up", and all that sort of nonsense of yelling. I could have said "David, you might have fucked this up", I could have said that. But there's no way I would have yelled at him and said "you fucked it". No it's not - not in my character, no.[112]

84 Mr Short denied having any sense of antipathy towards the plaintiff or yelling at him when he was angry with him. As he put it:

I might have been angry with [the plaintiff] from time to time, but there's no way I'd convey in a verbal yelling over the phone sense, no. I don't recall ever yelling at [the plaintiff] on the phone. ... Or yelling at anyone over the phone other than subcontractors.[113]

Mr Short did not shrink from the fact that he reprimanded the plaintiff about a mistake that the latter had made. But he denied that he was aggressive or in any way disrespectful in doing so.[114] He agreed that he could be more forceful with subcontractors but denied ever using an aggressive or menacing tone towards the plaintiff.[115] He also denied that the plaintiff's behaviour became noticeably different, or that the plaintiff was noticeably stressed, in the five to six weeks before his redundancy.[116]

85 The plaintiff provided medical histories prior to and after the termination of his employment with the defendant. He also provided his own written statement and relevant correspondence with Fair Work Australia (relating to his unfair dismissal claim). I now turn to the relevance of the medical evidence.

86 The defendant tendered the plaintiff's clinical notes from the Melbourne Sexual Health Clinic ('MSHC') dated 18 September 2008 through 8 September 2009.[117] There is no reference to the plaintiff complaining of bullying or work stresses in the notes. There are, however, references to stresses in the plaintiff's personal life including: 'psycho-social issues with son' (10 February 2009); depression related to stress associated with his son who was living at home with him and would not talk to him (23 June 2009); and difficulties with his son (14 July 2009).[118] The plaintiff made contact with MSHC on 8 September 2009 and asked if his medical file contained any references to bullying in the workplace. The notes record:

Under considerable stress as has just completed an unfair dismissal work claim. Now realises that there may be a personal injury claim available from alleged workplace bullying.

Asked did he mention abuse during my previous consultations - review of notes indicates record of stress from R/S [relationship] with teenage son only.

No mention of work stress in [previous] notes either. Is seeking legal advice.[119]

87 Nor was there any mention of bullying in the clinical notes of the plaintiff's treating general practitioner, Dr Belkin, from the relevant period.[120] There is a note that refers to 'problems' in the two to three months prior to dated 6 July 2009. Dr Belkin recorded symptoms relating to work and the plaintiff's relationship with his son but nothing specifically about bullying. Dr Belkin's viva voce evidence was consistent with this.[121]

88 The clinical psychologist Mr Hodgson saw the plaintiff on five occasions from 27 July 2008 to 23 September 2009. Mr Hodgson's file relating to the plaintiff was tendered as an exhibit at trial.[122] On 23 July 2008, at the first consultation, the plaintiff gave Mr Hodgson a handwritten note.[123] The notes refer to 'presenting issues' as follows: '16 year old son; loss of a job...finances; little social contact, friends and relatives; parents separated at age of 4 years and subconscious impact'. There is no mention of bullying elsewhere in the clinical notes. Mr Hodgson's viva voce evidence was the plaintiff had complained of being discriminated against but not of being bullied.[124] Mr Hodgson's evidence was that, if such a complaint had been made, he would have made a note of it in his clinical file.[125] Mr Hodgson was of the view that the plaintiff was fixated on the loss of his job.[126]

89 The plaintiff saw Dr Rose, a psychiatrist engaged by the WorkCover Authority, on 30 November 2009, 19 July 2010 and 18 June 2012. Dr Rose confirmed that the plaintiff had mentioned the phone calls, that they had occurred four weeks before his dismissal, and that they had upset him. Dr Rose said that if the plaintiff had mentioned that Mr Short was abusing him over the telephone he would have made a note of it.[127] In his report dated 30 November 2009, under the heading 'History of Complaint', Dr Rose recorded:

[The plaintiff] told me that he had been very upset by the way in which he was dismissed from work. He did acknowledge that because of private problems he was not functioning at work as well as he might have otherwise done. He said that his claim for unfair dismissal was to go to arbitration but he claims that his lawyers pressured him to sign a deed of release. He appears to have been devastated both by his dismissal and by the alleged pressure from his lawyers to sign the deed.

[The plaintiff] alleged that his project manager battered him with emails and phone calls alleging that he was making too many mistakes and that he was not coping with the job. At the time [the plaintiff] was under massive psychosocial stressors at home.

At the same time [the plaintiff] alleged that his project manager called him an 'idiot poofter' and that he was prone to micromanage him. [The plaintiff] developed the belief that there was a conspiracy against him.[128]

90 In his statement of 1 December 2009 (prepared for Fair Work Australia) the plaintiff refers to receiving telephone calls from Mr Short in late February or early March 2009.[129] He said that this occurred at or around the time that his son was visiting from Germany. The plaintiff's son apparently decided to stay in Australia rather then returning to Germany. The plaintiff states that his relationship with his son was very stressful at this time. His son insulted him and, on one occasion, locked him out of the house. The plaintiff's statement records that his son's behaviour impacted his ability to discharge his work duties and responsibilities.

91 The plaintiff's statement records that he initially believed he had made the mistakes that Mr Short took him to task for. However, upon reflection, he realised that they were not mistakes but rather sound decisions. (He admitted that he did make some minor mistakes.) The plaintiff states that he then pushed back against Mr Short in their subsequent telephone conversations:

In one phone call [Mr Short] told me that I am earning a great salary, that I was not overloaded with work, but I was not doing my job. He made similar comments on another two occasions. I started arguing with [him] over issues that he flagged as incorrect and explained why and how I handled different issues. He kept telling me that I was incompetent.[130]

I recall several occasions where I confided in [a colleague] from accounts who sat close by, about my anxiety in regards to [Mr Short's] comments about my competency. I did not tell anyone other than Phil Hamilton, senior contract administrator, regarding my issues with [Mr Short].[131]

Crucially, the plaintiff's statement contains no reference to the fact that Mr Short bullied him, nor even that Mr Short used abusive language or spoke to him in an aggressive, menacing or distressing manner that might be considered tantamount to bullying.

93 The plaintiff was cross-examined on this point. He was asked by senior counsel for the defendant why he did not refer to the abusive phone calls in his statement. The exchange was as follows:

COUNSEL: Why would you include something as - you might not agree with it, why would you include something as relatively trivial as farting in office and not exclude the main part of your case now which is that you were abused time after time and sworn at?

THE PLAINTIFF: I wanted my job back right. And I mean if I'm now saying an allegation of complete bullying and - someone passing wind and instances like that, they still be able to be overcome. ... I said I wanted to be reinstated. Now if I came back and made some comments about the conduct of this person to a degree that doesn't actually say you know what you've made allegations here officially that don't allow you. I did actually in the beginning and then I was told don't because this is a dismissal claim and keep it to an argument that may allow you to go back.

...

COUNSEL: So you were afraid that if you told [the defendant] that [Mr] Short had yelled at you over the phone they wouldn't take you back. But if you just complained to them that he'd been farting the whole time and that had upset you, they would take you back?

THE PLAINTIFF: It was a much lesser - it wasn't bullying the farting. The bullying - the farting was something that was inappropriate. It was humiliating, it was disgusting, but it wasn't bullying.

COUNSEL: All right, so you referred to the stuff that wasn't bullying and didn't refer to the stuff that was bullying?

THE PLAINTIFF: Well, with due respect Mr Gorton, you know this is in September 2009. I mean I'm arguing with the Fair Work [sic] there. My son has gone. I'm in depression. I'm trying to put something together. And I agree and I do not deny that I've written things that sound contradictory. That I've written things where today if I am under pressure to put in a piece of paper and I write it and I look at it the next day, I really scratch my head and ask myself hang on who's going to understand this? It doesn't have the proper sequences, it's jumping back and forth. It's got stuff in there that's not relevant and then I need a week to sort it out.

...

COUNSEL: You don't say [Mr Short] was yelling and abusing and bullying me. You say he was flagging issues regarding my performance?

THE PLAINTIFF: Yes.

COUNSEL: Then you said you admit that because of your son you were stressed and you had made mishaps?

THE PLAINTIFF: Yes.[132]

94 The plaintiff attended on Ms Melissa Noonan from 22 June 2010 to sometime in May 2013.[133] (As I have said, Ms Noonan recently recommenced seeing the plaintiff, in circumstances that I find questionable.)[134] Ms Noonan prepared two reports dated 21 October 2010 and 21 November 2012.[135]

95 In her reports Ms Noonan describes a number of incidents that the plaintiff reported had occurred during the relevant period. They do not contain any reference to abusive phone calls from Mr Short. The following relevant exchange occurred during cross-examination:

WITNESS: [The plaintiff] also talked about how he was excluded. He was initially sitting, um, in an office, um, on the site, I believe, with the other people on the project. And then, he was, um, later - he was asked to go and sit in head office, um, where the receptionists and other people were, which was very unusual. And he interpreted that as being - seeing that as being excluded. He was also not invited to meetings that he previously was expected to attend, um, in his capacity in his job, and um, he also was abused on the phone several times by Greg Short, I believe.

COUNSEL: All right. That's what I was wondering. Tell me about that. What were you told about that?

WITNESS: Well, he stated that, um, there were times when Greg Short would ring him up often, like, late in the week. So, like, before the weekend and um, basically, you know, use a lot of swearing and say, you know, you're "f - ing up" and those sorts of things.

COUNSEL: When were you told this? Just recently?

WITNESS: Not only just recently.

COUNSEL: All right. You were told this recently?

WITNESS: Yes.

COUNSEL: Yes. Have you got your notes with you?

WITNESS: No.

COUNSEL: For your recent attendances?

WITNESS: No.

COUNSEL: You make no reference of this at all in your written material?

WITNESS: When? Which written material?

COUNSEL: In this written material. The reports?

WITNESS: Yeah. No, because that was in 2012.

COUNSEL: All right. Well when was he sworn at?

WITNESS: Huh?

COUNSEL: All right. Just explain to me why the fact that these reports were in 2010 and 2012 didn't refer to the swearing phone calls from Mr Short?

WITNESS: I'm imagining because I don't recall, um, some of the things that we talked about in the 38 sessions over 3 years' time between 2010 and 2012, um, that there was - like, the file, if you saw it was probably that thick. So, I can't recall every single thing that he said in those. But, when I saw him in more - in this more recent times [sic], you know, I was reminded of certain things that I recalled from what he talked about to me previously. So, it refreshed my memory of some of those things he'd spoken about earlier.

COUNSEL: And so, he came to you this year?

WITNESS: Yes.

COUNSEL: And said, "I was sworn at by Greg Short?" You were told by [the plaintiff] this year that Greg Short had sworn to him over the phone?

WITNESS: Yes.

COUNSEL: Yes. And you agreed that that is not something that's referred to in your reports, 21 October 2010 or 21 November 2012.

WINTESS: Not directly. Although I did refer to bullying and harassment in those reports.

COUNSEL: All right. So, the answer is - my question is - - - ?

WITNESS: And I also, in my reports, I did refer to animosity between him and Greg Short. ...

COUNSEL: So, the answer to my question is correct, yes. That you did not set this out in your reports?

WITNESS: Not specifically.

COUNSEL: And you prepared your reports, you said before, with the benefit of your notes?

WITNESS: Yes.[136]

96 I do not accept that the plaintiff was subjected to bullying behaviour by Mr Short over the telephone in the five to six weeks prior to his redundancy in April 2008.

97 There are no witnesses to the conversations. The plaintiff and Mr Short both gave evidence about their telephone and email conversations in the relevant period. They agreed that there was some tension between them based on the plaintiff's work performance. The plaintiff admitted that he had made mistakes; Mr Short explained that he was frustrated at the plaintiff's poor performance.

98 The real issue is not so much the language used over the telephone but the manner in which the conversations were conducted. There is a stark difference between Mr Short's account and the plaintiff's account of the tone and intention of each exchange. Mr Short admitted that he may have used 'the F word' but said that it was always directed to the plaintiff's performance and not at him personally. He further said that it was used in an ordinary, everyday manner, as might be used in the construction industry. Mr Short denied that it was in his nature to treat people in the manner alleged by the plaintiff.[137]

99 As mentioned earlier, Mr Hamilton's evidence was that Mr Short could be 'intimidating', not that he had a tendency to be abusive or to speak in a threatening or menacing tone.[138]

100 The plaintiff tendered several email conversations he had with Mr Short during the relevant period.[139] The emails show that Mr Short dealt with the plaintiff in an appropriate manner. I am not satisfied that Mr Short ever spoke to the plaintiff in a threatening, abusive or overbearing manner. This is supported by the medical history tendered by the plaintiff. The records from MSHC contain no reference to bullying or work stresses. The notes do, however, contain reference to domestic stressors and to physical problems that he was experiencing.

101 The first reference to work-related issues is in Dr Belkin's notes and is dated 6 July 2009.[140] Dr Belkin's notes, which are in the form of a questionnaire, record that the plaintiff was having problems at work in the last two to three months of his employment. This, of course, is consistent with the idea that the plaintiff's redundancy greatly upset him. The overall thrust of the plaintiff's evidence was that it was his redundancy - and the loss of his identity - which caused his psychological issues. The plaintiff was unable to accept that he was made redundant due to a downturn in work.[141]

102 As I have said, the handwritten note that the plaintiff gave to Mr Hodgson listed several 'presenting issues', none which related to bullying at work. If the plaintiff had been suffering from bullying at work, in the form of abusive phone calls from Mr Short, I consider it likely that this would have been referred to in his handwritten note. This was not a document prepared for the purpose of litigation but rather for his own treatment. It is reasonable to expect that he would be in the best position to identify the matters or events that were causing him concern.

103 Turning to Dr Rose's evidence,[142] although the phone calls were mentioned during the consultation on 30 November 2009, there is no suggestion that Mr Short swore at the plaintiff in a loud and abusive manner. This is consistent with the plaintiff's statement dated 1 December 2009 in which he describes Mr Short flagging his competency over the telephone.[143]

104 Mr Hamilton could not corroborate the plaintiff's account of the abusive phone calls. If the plaintiff had told Mr Hamilton about them, or the manner in which Mr Short allegedly spoke to him, I consider it likely that Mr Hamilton would have recalled it. He was able to recall other events in detail. For example, he recalled the plaintiff being called 'Colonel Hingst', and an episode in which Mr Short passed wind near to the plaintiff.

105 The plaintiff's evidence was that he told Ms Veronica Noonan, a colleague, about his difficulties with Mr Short. Ms Noonan was not called to give evidence, as mentioned previously, and there was no explanation given by the plaintiff as to why he did not call her. This is in circumstances where the plaintiff issued subpoenas on many witnesses and organised for them to attend court and give evidence.

106 The plaintiff's version of the abusive phone calls does not sit comfortably with the fact that he wanted to return to work after his redundancy. This was a man who, after being made redundant, stalked his former employer. This led to Mr Short making a complaint to police and Mr Pepperell making a complaint to his supervisor at the defendant company (he was threatened by the plaintiff at a local Bunnings store).[144]

107 There was some support for the plaintiff in the evidence of his treating psychologist. Ms Noonan said that she had recently remembered that the plaintiff had complained about abusive phone calls when she saw him in 2010.[145] Yet her initial reports make no reference to any phone calls or abusive conversations with Mr Short. Once again, it only emerged in Ms Noonan's cross-examination that she recently had resumed seeing the plaintiff, during which consultations he had shown her statements and talked to her about his court case. The plaintiff did not mention this in his evidence. He merely said, in cross-examination, that he had seen Ms Noonan on approximately 34 occasions.[146] In this sense, I do not consider that the plaintiff has been candid with the Court, and it appears to me that he has reattended Ms Noonan for the purpose of preparing himself, and her, to give evidence in the case. Further, I do not accept that Ms Noonan's memory recently has been 'refreshed ... [as to] those things he'd spoken about earlier.'[147]

Was the plaintiff's injury reasonably foreseeable?

108 Finally, even if Mr Short did abuse the plaintiff over the telephone, I do not consider that the plaintiff has suffered a reasonably foreseeable psychiatric injury as a result. The plaintiff had been working with Mr Short for approximately three months and there is no evidence that they had any issues during that period. Prior to that, there was the flatulence incident, which led the plaintiff to spray deodorant on Mr Short and call him 'Mr Stinky'.[148]

109 As I have said, in the five weeks prior to the plaintiff's redundancy, Mr Short directed his criticisms at the plaintiff's work performance rather than at him personally. The plaintiff appreciated the distinction.

110 There was no evidence that the plaintiff behaved in such a way as to put Mr Short, or anyone else for that matter, on notice that he was at risk of suffering psychiatric injury. Any difficulties the two men had at work were ventilated. This was illustrated by the flatulence incident, in which the plaintiff pushed back against Mr Short by calling him 'Mr Stinky', and by the plaintiff's actions in approaching Mr Barker when he considered that a different subcontractor should be engaged.[149]

111 The exhibited emails between Mr Short and the plaintiff demonstrate that Mr Short asked the plaintiff to call him to sort things out.[150] There is no evidence to suggest the plaintiff was at risk of developing a recognisable psychiatric illness in the relevant period.

112 There is no evidence that the plaintiff made Mr Barker, or anybody else for that matter, aware that he was at risk of developing a psychiatric injury because of Mr Short's conduct. The plaintiff continued to work; he never complained to Mr Barker. Mr Barker was therefore unaware of any distress arising from the plaintiff's relationship with Mr Short. Mr Barker was aware of the plaintiff's personal issues, but it would not have been reasonable for him not to intervene in the circumstances, since that would be tantamount to interfering in an employee's private life. Mr Barker's evidence was that, when Mr Short raised the plaintiff's poor performance with him, he told Mr Short to be patient as the plaintiff had problems at home.[151]

113 The evidence suggests that the plaintiff's fellow employees, particularly Messrs Short, Barker and Pepperell, were understanding of the issues with his son and allowed him take time off work where necessary. It is likely that the real cause of the plaintiff's mental state today was a combination of domestic stressors and, most significantly, the stress of losing his job. Dr Redmond's evidence was telling in this regard. Dr Redmond opined that, assuming Mr Short did not abuse the plaintiff over the telephone, the combined effect of the plaintiff's temperament, domestic stress and the loss of his job would, on the balance of probabilities, have led to anxiety and a depressive condition.[152]

114 It is in a sense tragic that the plaintiff's redundancy appears to lie at the heart of his problems. It seems, regrettably, to have generated a misplaced sense of unfairness at the loss of his job. As the plaintiff put it in his opening submissions:

My expectations, my hopes, my everything that I was expecting with this company ... my world fell apart and, um, subsequently I was crying in the morning. I was crying in my sleep. I was crying at night ... I just couldn't get over this.[153]

115 As I have said, the plaintiff's evidence traversed a number of incidents which did not amount to bullying, but which painted a picture of the working culture at the defendant company. Significantly, the plaintiff returned obsessively to some of these issues, most notably the flatulence incident involving Mr Short.

116 For completeness, I will briefly deal with the peripheral incidents, although I should be said that I do not accept the plaintiff's version of events and, even if I did, I fail to see how any of them could have given rise to a reasonably foreseeable and recognisable psychiatric injury. There was, in particular, no medical evidence establishing that the plaintiff suffered such an injury, either prior to or after the loss of his job, flowing from any of the peripheral incidents.

117 The plaintiff alleged that Mr Barker came into his office approximately three months after he commenced working for the defendant and said that the plaintiff's brewed coffee was 'shit'.[154] He also complained that, while Mr Barker would routinely take employees out for lunch after site meetings, he was never invited.[155]

118 Mr Barker's evidence was that he invited everyone, including the plaintiff, to join him at the café for coffee.[156]

119 The plaintiff alleged that, at the same time Mr Barker denigrated his coffee, Mr Pepperell, his project manager at the time, advised him that he would not be required to attend site meetings. He submitted that this was done deliberately to exclude him.[157]

120 Mr Pepperell denied that he wanted to exclude the plaintiff, explaining that this was a client whom he had previously worked with, who preferred a one-on-one site meeting.[158]

121 The plaintiff stated that he relocated himself from the communal office to an area occupied by administrative staff due to Mr Short's flatulence. He alleged, in effect, that he had been bullied into changing his physical location.

122 Several witnesses gave evidence, however, that staff were returning to head office because of the decrease in projects (as a result of the GFC) and that the area outside the communal office was used as an overflow.[159]

123 Mr Barker maintained that it was not bullying to allocate a permanent seat in the communal space to Mr Short instead of the plaintiff.[160]

124 The plaintiff alleged that, within a week of returning to head office and taking a desk in the communal office space, Mr Short 'start[ed] farting'.[161] The plaintiff said that he became increasingly unhappy about Mr Short's flatulence and would protest by saying things like 'you're not serious?'[162]

125 On one occasion, the plaintiff said he went down the street and purchased a can of deodorant and came back and sprayed it over Mr Short, at which point the 'guys all laugh[ed]'.[163] The plaintiff alleged that Mr Short would regularly 'lift his bum and fart' on him or at him and that Mr Short thought this was funny.[164] According to the plaintiff, this happened on his first day back at head office, progressing to the point where Mr Short would do it every day.[165] This went on for some time. The plaintiff complained that he found Mr Short's behaviour insulting.[166] The plaintiff said that, at one point, he refused to get into a lift with Mr Short and, when asked why, called him 'Mr Stinky'. He said that Mr Short then called him an 'idiot'.[167]

126 The plaintiff said that, on another occasion, Mr Short passed wind when they were at the printer and apologised.[168] The plaintiff complained that Mr Short's behaviour was demeaning.[169] He did not submit, however, that the flatulence was bullying but rather that it was humiliating and disgusting.

127 Mr Short denied regularly passing wind in the communal office or around the plaintiff.[170] He admitted that, once or twice, he had accidentally passed wind and was embarrassed about it. He said that, on one occasion, the plaintiff sprayed him with deodorant. He also conceded that, after the plaintiff branded him 'Mr Stinky', he may have thrust his backside towards the plaintiff and pretended to pass wind. He could not recall doing it but nor could he say that it did not happen.

128 Mr Hamilton's evidence was that there was some inappropriate behaviour in the office, including passing wind, but that it was 'typical banter or mucking around'.[171] He said that the plaintiff appeared offended by people passing wind.

129 I do not accept the plaintiff's evidence about the frequency of Mr Short's flatulence in the office or that it was targeted at the plaintiff. I prefer Messrs Short and Hamilton's account of this peripheral incident.

130 Even if Mr Short did do what the plaintiff alleged, it would not necessarily amount to bullying. The plaintiff and Mr Short were only in the communal area together for a short period of time. It is difficult to see how Mr Short's conduct could have intimidated or caused distress to the plaintiff. The plaintiff was able to spray Mr Short with deodorant and give him the nickname 'Mr Stinky'. Indeed, on the plaintiff's own evidence, had he not lost his job and been abused over the telephone the flatulence would 'never have been a big issue'.[172]

The horseplay around the office and on the worksite

131 The plaintiff alleged that his fellow employees engaged in inappropriate horseplay. He alleged, in particular, that on the Doncaster Village project they would mimic sexual gestures.[173] However, even if it occurred as alleged, the plaintiff did not submit that it was personally directed at him.[174] For example, when describing how he was told to stand back-to-back with Mr Pepperell so as to compare who was taller, he did not state that this was bullying or that it caused him any concern.[175] Once again, he seemed to want to catalogue inappropriate behaviour so as to embarrass his former colleagues, whom he blames for the loss of his job.

132 The plaintiff alleged that, during a 2008 luncheon at the Olive Tree hotel, Mr Short asked him if he was 'gay'. He also alleged that, on the walk back to head office, Mr Short called him an 'idiot poofter'.[176] For the same reasons already given, namely that I prefer the evidence of Mr Short, I reject the plaintiff's allegations outright.

133 In addition to the above findings, I note that when the plaintiff was asked about the peripheral incidents and how they affected him, he said:

[T]hey did not affect me in any way as [compared to] the beginning of that first phone call. Up to that point, I felt that yes, I had some reservations; I was now assigned to Greg Short. But when the phone call[s] started, this is where I then started to live with this every day from that day on.[177]

Thus, on the plaintiff's own evidence, the only thing that amounted to bullying were the conversations that he had with Mr Short over the telephone.

134 For completeness I should state that, while I have rejected the plaintiff's evidence of the peripheral incidents, I do not consider that they could have caused him a psychiatric injury in any event. This is because the medical evidence from the relevant period does not establish the onset of a recognisable psychiatric injury.

Did the plaintiff's supervisor fail to intervene?

135 The plaintiff alleged that Mr Barker, his senior supervisor, had the mindset of 'consciously, voluntarily and deliberately neglecting his duty of care'.[178] He alleged, in particular, Mr Barker was aware of the plaintiff's vulnerable and deteriorating mental capacity and turned a blind eye to it. The plaintiff submitted that Mr Barker's omissions allowed the injury to develop and progress to the point where suicide was a very real possibility.[179]

136 As I have said, based on the way the plaintiff ran his case, he appears to believe that Mr Barker intentionally avoided consulting with him so as to ensure that his employment would be terminated.[180] This was in circumstances where Mr Barker had been briefed by Messrs Pepperell and Short about the plaintiff's shortcomings.

137 Significantly, the plaintiff never complained to Mr Barker about his problems at work or his failing mental state, while Mr Barker's evidence was that he did not notice any change in the plaintiff's demeanour prior to April 2009.[181] Further, when he assigned the plaintiff to the Melbourne Clinic project, Mr Barker was unaware of any conflict between the plaintiff and Mr Short.

138 Finally, I agree with the defendant that it would have been unreasonable of Mr Barker to intervene in the plaintiff's private life, when the appropriate course - which Mr Barker adopted - was to give the plaintiff time to deal with his issues. This was apparent from the following exchange between senior counsel for the defendant and Mr Barker during evidence-in-chief:

COUNSEL: And whilst [the plaintiff] was on that project, did you receive any feedback from Mr Pepperell regarding [the plaintiff]?

WITNESS: Well, the feedback that I got was that there was obviously some issues - [the plaintiff] had some issues at the time with his wife and his son. [The plaintiff] had told me that so I was aware of it, and on a few occasions [Mr Pepperell] mentioned that [the plaintiff] was distracted and I just kept saying to [Mr Pepperell] that, you know, [the plaintiff] did have some issues that he was dealing with as well and we needed to be patient.

COUNSEL: Did Mr Pepperell [relay] anything to you regarding [the plaintiff's] performance?

WITNESS: Not specifically, but I think [he] was of the view that [the plaintiff's] performance was average.[182]

139 There was no evidence from which it might have been inferred that the plaintiff was during the relevant period at risk of developing a reasonably foreseeable and recognisable psychiatric illness. As Osborn JA (with whom Harper JA and Macaulay AJA agreed) put it in Brown v Maurice Blackburn Cashman:

[A] finding that a particular risk of injury is reasonably foreseeable involves a judgment of 'fact and value' and it is a matter of fact for the decision-maker to determine whether a defendant ought to have reasonably foreseen his or her conduct might cause psychiatric injury.[183]

In other words, a finding of reasonable foreseeability is to be objectively determined from all the circumstances of the case, bearing in mind the subjective position of the defendant at the relevant time.

140 Further, as Keane JA observed in Hegarty v Queensland Ambulance Service, 'litigious hindsight' is especially to be avoided.[184] It is worth quoting his Honour's remarks in full as they are highly relevant to the present proceeding:

The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff's problems.

...

It is not self-evidently necessary or desirable that employees' private lives should be subject to an employer's scrutiny. To some extent in this case, the plaintiff's case, as it was developed in the course of evidence and in argument in this Court, depended on an assertion of a culpable failure by the plaintiff's superiors to scrutinise aspects of the plaintiff's private life away from work.

...

In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work.[185]

141 The plaintiff had major stressors in his personal life, including those related to his son, which were appropriately handled by his colleagues and superiors. To scrutinise and pry into his private affairs was not the prerogative of a reasonable employer. If anything Mr Pepperell's evidence indicated the level of support that was given to the plaintiff.[186] And, as Mr Barker explained, other employees were asked to be patient in light of the plaintiff's difficulties.[187] Even on the plaintiff's own evidence, since he loved his job and wanted to be reinstated after his redundancy, he would not have wanted the defendant to know about any mental health issues that he was experiencing.[188]

142 The plaintiff pleaded that the defendant breached the Occupational Health and Safety Act 2004 ('OHS Act') and its Regulations.[189]

143 While a breach of the OHS Act can be evidence of negligence in a broad sense, the claim is unsustainable in light of s 34 of the OHS Act, which operates to prevent a breach of the OHS Act from giving rise to a private right of action.[190] This is necessary, among other reasons, because it would otherwise be possible to plead a breach of the OHS Act and a breach of the Regulations (which, of course, mirror the OHS Act save for their much greater granularity). There are clear public policy reasons for avoiding this: it will ordinarily be preferable for pleadings to be stated with a greater degree of particularity and hence at the level of the Regulations rather than the more general level of the OHS Act.

144 The leading authority on the operation of s 34 of the OHS Act and its interrelation with the Regulations is Govic v Boral Australian Gypsum Ltd.[191] As the Court of Appeal (Redlich, Osborn and Kyrou JJA) explained in that case, while it is not possible to breach the OHS Act so as to give rise to a private cause of action, it is possible to breach the Regulations in such a way. As their Honours observed:

Section 34 of the [OHS Act] draws a clear distinction between the consequences of a contravention of a provision of the Act as distinct from a breach of a duty or obligation imposed by the regulations made under that Act. While conduct which constitutes a breach of the Act cannot give rise to a private right of action, conduct which constitutes a breach of a duty or obligation imposed by a regulation may do so depending on the application of the [relevant] principles.[192]

145 In any event, even if the plaintiff had properly pleaded breaches of the Regulations rather than the Act, there is no evidence before the Court that such breaches gave rise to a reasonably foreseeable and recognisable psychiatric injury. The plaintiff makes a general claim of breaches of the OHS Act and cites 17 sections that the defendant has allegedly breached. It is not pleaded, however, how those breaches are said to be in any way causative.

146 The defendant had appropriate policies in place. While it did not have a fully comprehensive scheme of policies, it did have a Workplace Behaviour policy, which addressed bullying and harassment in the workplace and set out a process for dealing with it.[193] It also had a Safety Policy and Management Plan.[194]

147 The plaintiff was in possession of a booklet dealing with occupational health and safety on site.[195] He spent a considerable amount of time at trial focusing on the defendant's induction process. Yet there is no basis on which to conclude that he suffered injury because of an inadequate induction.

148 The defendant clearly breached its email policy by allowing pornographic material to be exchanged on its network. Yet the plaintiff never complained about receiving such material. He seems to have been trying to show that the defendant had an inappropriate and disrespectful work culture. He did not, however, link this proposition to his bullying claim in any meaningful way.

149 The plaintiff submitted that his termination was not for genuine operational reasons.[196] As I have said, he alleged that his redundancy was the result of a conspiracy to terminate his employment, which at the very least involved Messrs Short, Barker and Pepperell. He pointed to the fact that, after he was made redundant, the defendant used another contract administrator on the Melbourne Clinic project. This, he claimed, proved that his redundancy was not genuine. He further submitted that the defendant failed to comply with mandatory procedures insofar as it did not warn him or give him an opportunity to reply to his dismissal. And he complained that Mr Barker did not consult him prior to the termination.[197]

150 The plaintiff also claimed that the defendant failed to include a dispute settlement procedure in his contract of employment as is required by ss 353(1) and (2) of the Workplace Relations Act 1996 ('WR Act'). He claimed that this omission in some way contributed to him being bullied and harassed.[198]

151 It is sufficient to observe that, as the defendant submitted, s 353 does not apply because the plaintiff's contract of employment[199] was not a Workplace Agreement as is defined by the WR Act.[200] In any event, the plaintiff's contract included an 'appropriate workplace behaviour policy',[201] which included a formal complaints procedure. Thus, even if the WR did apply, the contract would have been compliant.

152 In relation to whether it was a genuine redundancy, as discussed at [41] above, the plaintiff did not challenge the evidence that, due to the GFC, there was insufficient work for the number of contract administrators at the defendant company. Mr Barker's evidence was telling in this regard:

COUNSEL: Were you aware at that time [end of 2008] or did you become aware of the impact that the Global Financial Crisis was having on your business and the industry in general?

WITNESS: Yeah. Well, I mean, we generally ran between 12 and 16 projects at once at that time. Basically by the end of that year we were down to two. We had people on long service leave. We had people taking forced leave. We had projects ending and it was an extremely difficult time for us and we were trying to work out No. 1 where the next job was going to come from, and we also had a lot of people who were very, very long term employees that we were very conscious of trying to find a way of keeping them going.[202]

The plaintiff did not dispute the fact that, by the second half of 2008, there were many employees hanging around head office. He even referred to an employee who had been stationed at head office for months because there was no work.[203]

153 The plaintiff maintained that his position never became redundant and that another contract administrator, Ms Allison Munce, took over his work on the Melbourne Clinic project.[204]

154 Mr Short's evidence was that there was a downturn in 2009, while he was on the Melbourne Clinic project, which led to several redundancies.[205] Mr Short said that he did the majority of the contract administration work on the Melbourne Clinic project after the plaintiff was made redundant.[206] He agreed that Ms Munce had a 'small involvement' but denied that she or anyone 'replaced' the plaintiff on the Melbourne Clinic project.[207]

155 Mr Barker's evidence was that, in April 2009, he, Mr Brian Conwell and Mr David Wehl were on the Labour Subcommittee at the defendant company. This subcommittee made recommendations to the directors about hiring and firing staff. In April 2009 the subcommittee decided to let go of several contract administrators as they were abundant and there were project managers who could do the work.[208] It was decided that the plaintiff and another employee were to be made redundant. There is no evidence to support the plaintiff's claim that the redundancy was not genuine.

156 The plaintiff also claimed that the termination was unfair in that it breached s 634(1)(a) of the WR Act. Section 643(8) of the WR Act prohibits any claim being made under s 643(1)(a) if the termination was for 'reasons that include genuine operational reasons'. Section 431(1)(a) of the WR Act states that a claim under s 643 may only be brought in the Australian Industrial Relations Commission ('AIRC'). In any event, I consider that the plaintiff's termination was for genuine operational reasons, in which case the jurisdictional question with respect to s 643 does not arise.

157 At paragraph 5(t)(2) of his further amended statement of claim, the plaintiff pleaded that the defendant failed to comply with the Equal Opportunity Act 2010, listing approximately 17 sections which it allegedly breached. The plaintiff did not pursue any of these matters at trial. In any event, for the same reasons given in relation to the substantive claim, I consider that this proposition is without merit.

158 Finally, as the defendant submitted, the plaintiff has not argued that the termination of his employment was a breach of contract. Accordingly, any claim that the plaintiff might have must arise under the WR Act 1996, later replaced by the Fair Work Act 2009. As I have said, any claim for unfair termination on the basis that it was not for genuine operational reasons can only be brought in the AIRC, which is the exact forum in which the plaintiff brought his unfair dismissal claim and settled it for the sum of $10,000.[209]

159 In its further amended defence, dated 29 November 2017, the defendant pleaded that the plaintiff, having signed the Deed dated 31 August 2009, was barred from bringing any claim, demand or proceeding arising out of the termination of his employment. The plaintiff did not file a reply to the further amended defence; however, it was made clear the defendant at trial that the plaintiff he was alleging the Deed had been executed under duress.

160 The plaintiff submitting in closing that he had understood the Deed to be no more than a request that he would acknowledge the $10,000 settlement sum.[210] He submitted that receiving the Deed from the defendant's solicitors led him to suffer distress.[211] He complained, in particular, that he did not have enough time to contemplate the terms of settlement and sign the Deed.

161 On 29 April 2009, pursuant to s 643 of the WR Act, the plaintiff made an application to the AIRC for relief in relation to the termination of his employment.[212] The application was based on the allegation that the plaintiff's redundancy was not for genuine operational reasons.

162 On 14 August 2009 the plaintiff sent an email to Mr Shalit, the defendant's managing director, and copied in Mr Barker. The plaintiff offered to settle his claim in return for four months' pay.[213] Ultimately, the plaintiff agreed in writing (under cover of an email dated 19 August 2009) to accept $10,000 on terms that it be classified as a 'redundancy lump sum', that he sign a release, and that he refrain from visiting the defendant company's head office or building sites.[214]

163 On 20 August 2009 the plaintiff communicated with the defendant's solicitors about the Deed. On 26 August 2009 the defendant sent a Calderbank letter to the plaintiff offering to settle his claim for $10,000 after tax, in full and final settlement, and enclosing the Deed. The Calderbank letter advised the plaintiff that, in the absence of agreement to the offer by midday on 31 August 2009, the defendant would make an application for the claim to be dismissed and for costs. The Calderbank letter strongly advised the plaintiff to get legal representation.

164 The plaintiff's evidence was that he saw a solicitor, Mr Phillip Brewin, on 31 August 2009. He stated that some of the pages were missing from the Deed when he received it. However, the pages received enabled him to understand the settlement as they contained the important elements, namely the terms and the fact that the Deed would act as a bar upon any future claims he might have in relation to the termination of his employment. The plaintiff did not provide Mr Brewin with a full copy of the Deed. He was advised, however, to sign the Deed and settle the claim.[215] The plaintiff agreed that Mr Brewin was an expert in workplace relations and that he had reviewed the four pages of the Deed. He also agreed that Mr Brewin had suggested that he request some amendments to the Deed.[216] The plaintiff's evidence was that he then received the full eight pages of the Deed at 11:45pm on 31 August 2009.

165 The plaintiff sought an extension of time for the signing of the Deed until 5:00pm on 31 August 2009. By email the defendant's solicitors agreed to extend the offer of settlement to 5:00pm that afternoon in order for the plaintiff to obtain advice about the indemnity clause.[217] The plaintiff personally delivered the executed Deed to the defendant's solicitors on 31 August 2009 at approximately 4:00pm. He received the settlement cheque by letter dated 4 September 2009.[218]

166 The plaintiff subsequently saw another solicitor, Ivan Andolfatto, on 3 September 2009. That same day Mr Andolfatto wrote to the defendant's solicitors by email indicating that the plaintiff had sought legal advice from him concerning the Deed. Mr Andolfatto wrote that the plaintiff was confused and unclear about his rights and obligations and required time to consider the offer of settlement. Mr Andolfatto sought an indulgence from the defendant's solicitors so as to allow him time to peruse the material and to advise the plaintiff. He stated that the plaintiff was suffering from stress and depression and that this might have been brought on by his work at the defendant company and, in particular, his relationship with his supervisor.[219]

167 The next day the defendant's solicitors wrote to Mr Andolfatto indicating that the plaintiff had executed the Deed and that the matter had settled. They stated:

it is our view that [the plaintiff] has had ample opportunity during this matter to seek legal advice, and we believe that he indeed received such advice from a community legal centre before signing the Deed. Further, in an e-mail from Mr French to [the plaintiff] at 11:16am on 31 August 2009, Mr French wrote "we agree to extend the deadline for our client's offer to 5:00pm this afternoon in order for you to get advice about the revised indemnity clause."

We note that under clause 2(c) of the Deed that [the plaintiff] must formally discontinue proceedings within 24 hours of receiving the Settlement sum.[220]

168 On 7 September 2009 Mr Andolfatto wrote to the defendant's solicitors by email:

I have instructions from my client in relation to this matter following your email. My client disputes the contention that he has been able to seek proper legal advice in this matter.

He understands that he has executed the Deed, but felt unfairly compelled to do so in the circumstances. He advises me that he has now received the cheque accompanied with a letter which has been delivered to his residence.

Once the Settlement Sum has been banked and clears, my client will discontinue his Claim in accordance with clause 2 of the Deed.[221]

169 The plaintiff gave evidence that, when he signed the Deed, he was very stressed. He said he only received the eight page version and read it at approximately 12:15pm on 31 August 2009. He recalled 'freaking out'.[222] He felt that he was under time pressure but agreed that he had been given an extension of time until 5:00pm that day.

170 In my view, the plaintiff was clearly prepared to sign the incomplete Deed, which contained the release to any further claims.[223] He received legal advice from Mr Brewin and requested some changes to the Deed. The plaintiff is educated and speaks and reads English fluently. He was able to pay Mr Andolfatto for legal advice after he signed the Deed.[224] There was no evidence that the plaintiff was not capable of acting in his own best interests. The emails demonstrate that he knew and understood the terms of the Deed and received legal advice before signing it. I agree with the defendant that the plaintiff was not under a special disability evident to the defendant. Nor did the defendant take unconscionable advantage of him.[225]

171 There was clearly a time limit in which the plaintiff had to respond to and accept the terms of the offer. He had sufficient information in the four pages of the Deed that he received, and reviewed with Mr Brewin, to fully appreciate the terms of the offer and, in particular, the bar on bringing any further claim in relation to the termination of his employment. The plaintiff's complaint that he felt pressured to sign is not a basis upon which the Deed can be set aside or rendered void. The plaintiff's email dated 14 August 2009 clearly states that he believed he had a strong case and, if the defendant did not pay him four months' salary, he would continue with his application at the AIRC. The defendant's conduct via its solicitors, in relation to the matters raised in the Calderbank letter dated 31 August 2009, was in no way inappropriate or illegitimate.

172 In short compass, in order for the plaintiff to make good his duress claim, he would need to establish that the defendant:

(i) used a form of illegitimate pressure, physical, economic or psychological in order to compel him to enter into the Deed;

(ii) the pressure left him with no reasonable alternative but to enter into the Deed; and

(iii) the pressure in fact caused him to assent to the Deed or was a cause of him assenting to it.[226]

The general rule is that contracts procured by threat to sue for a civil wrong have been held not to be voidable.[227]

173 As Kiefel J, in Westpac Corporation v Cockerill[228] (with the concurrence of Northrop and Lindgren JJ) said:

The point of distinction which is relevant for present purposes is that duress, like undue influence, f_ocuses upon the effect of pressure, upon the quality of the consent or assent of the pressured party_, rather than the quality of the conduct of the party against which relief is sought.

...

In most instances where duress is established the party coerced has had little choice. It is not, however, that inequality of bargaining position, or the reason for its creation, which is the essence of the action - it is the pressure brought to bear and its wrongfulness: 'There must be pressure the practical effect of which is compulsion or the absence of choice'.[229]

174 I do not consider that the effect of the pressure that was brought to bear on the plaintiff to sign the Deed was in any way wrongful or obviated his ability to assent. The plaintiff had a choice; he could have pursued his application. He had legal advice, which has a bearing on the quality of his assent, in that it was informed. The pressure by way of a time line, while tight, was not unreasonable.

175 The plaintiff has not established any negligence on the part of the defendant. He has failed to show that the defendant breached its duty to take reasonable care to avoid causing its employees a reasonably foreseeable and recognisable psychiatric injury. There was no evidence that the defendant knew, or should have known, that the plaintiff was at risk of mental harm.

176 Mr Short did not bully or harass the plaintiff. Nor did any other employee at the defendant company. It follows that the plaintiff's bullying claim must fail. The plaintiff's unfair dismissal claim must also fail as his redundancy was genuine. Nor was the Deed signed under duress.

177 The proceeding must therefore be dismissed. I will hear the parties as to costs.

[1] Further amended statement of claim dated 17 November 2017. The plaintiff claims $388,000 for pain and suffering and $1,417,138 for past and future economic loss.

[2] The plaintiff did not plead any relief in relation to the second part of his claim. The Deed of Release and Settlement was dated 31 August 2009.

[3] See, eg, Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44.

[4] Ibid 53 [21] (McHugh, Gummow, Hayne and Haydon JJ). See also Des Butler, 'Psychiatric Injury in the Workplace: Directions for Cases involving Stress and Bullying' (2006) 14 Torts Law Journal 124.

[5] See, eg, Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 687-8 (Mason J); Govic v Boral Australian Gypsum Pty Ltd [2015] VSCA 130; (2015) 47 VR 430, 436.

[6] [1984] HCA 60; (1984) 155 CLR 306, 313. Gibbs CJ dissented on the contributory negligence point: at [4].

[7] Wilsons & Clyde Coal Co Ltd v English [1937] UKHL 2; [1938] AC 57, 78 (Lord Wright).

[8] New South Wales v Mannall [2005] NSWCA 367; Brown v Maurice Blackburn Cashman [2013] VSCA 122; (2013) 45 VR 22; Swan v Monash Law Book Co-operative [2013] VSC 326; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Roussety v Castricum Brothers Pty Ltd [2016] VSC 466; Wearne v State of Victoria [2017] VSC 25.

[9] [2013] VSCA 122; (2013) 45 VR 22 ('Brown').

[10] Worksafe Victoria, 'Prevention of Bullying and Violence at Work: Guidance Note' (February 2003) [32] quoted in Brown [2013] VSCA 122; (2013) 45 VR 22, 26 [13]. This definition reappears, lightly revised, in WorkSafe Victoria's guidance note of October 2012: 'Workplace bullying is characterised by persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety': at 2.

[11] Brown [2013] VSCA 122; (2013) 45 VR 22, 26 [15].

[12] [2013] VSC 326 [150] ('Swan').

[13] [2016] VSC 422 [25] ('Holland').

[14] [2014] VSC 626 [211]-[212] ('Johnson').

[15] [1970] HCA 60; (1970) 125 CLR 383, 394-5.

[16] [2004] NSWCA 7 [124].

[17] Swan [2013] VSC 326 [151]-[152] (emphasis added).

[18] [2002] HCA 35; (2002) 211 CLR 317 [12] ('Tame').

[19] [2005] HCA 15; (2005) 222 CLR 44, 57 [33]-[35] (citations omitted) (emphasis in original) ('Koehler').

[20] See especially Swan [2013] VSC 326 [162]-[163].

[21] [2014] VSC 626 [406].

[22] See [8] above.

[23] Exhibit P10 [2]; Exhibit P11 [1].

[24] Transcript of Proceedings, Hingst v Construction Engineering (Aust) Pty Ltd (Supreme Court of Victoria, Zammit J, 27 November 2017-19 December 2017, 22 December 2017) ('T') 2032.10-2032.13.

[25] T175.01-175.11; T242.10-242.26; T246.15-246.17; T247.24-247.28; T288.15-288.20; T297.29-298.01; T434.14-434.16; T439.09-439.27.

[28] Exhibit P2: Appendix Q1 & Q2 to Report of Dean Attard dated 23 November 2017.

[32] T1522-1523 (Short); T2063-2065 (Barker).

[34] T174.25-174.29; T175.31-176.10; T383.19-384.04; T502.25-502.29; T503.30-504.04; T505.29-506.05; T718.26-718.27.

[35] T162.27-163.11; T174.29-175.04; T351.13-351.17; T383.21-383.31; T505.30-506.01.

[36] T364.22-365.01; T471.15-471.25; T472.17-473.28; T487.30-488.01.

[40] T729.26-729.29; T789.29-790.01; T1485.09-1485.12; T2032.10-2032.13.

[43] T1483.04-1483.18 (emphasis added).

[45] Job Pac is a software tool, as I understand, that was in use at the defendant company.

[46] T1486.03-1486.15; T1487.15-1487.16.

[50] Plaintiff's closing submissions, undated, 1 [2].

[52] Defendant's closing submissions, dated 22 December 2017, 12 [29].

[55] T506.28-507.12 and T1808.17-1809.10 (stalking); T842.5-843.19 (Pepperell); T1362.26-1364.10 (Short).

[57] T2010.27-2010.31; T2011.11-2014.06.

[59] See above at [24].

[60] Plaintiff's closing submissions, undated, 10.

[61] Exhibit P2, dated 23 November 2017, 2.

[62] Exhibit D17, dated 11 December 2017, 7 [2.19].

[67] T2166.30-2167.31; T2168.01-2168.17.

[69] T1356.03-1356.11; T1812.10-1812.15.

[70] Exhibit D17, dated 11 December 2017, 5.25(e)-(g), 5.26(e).

[71] Ibid 2.2; T2164.27-2164.31 (Mr Attard).

[72] T1356.03-1356.11; T1812.10-1812.15.

[74] T174.25-174.29; T175.31-176.10; T383.19-384.04; T502.25-502.29; T503.30-504.04; T505.29-506.05; T718.266-718.27.

[75] T398.28-399.01; T399.09-399.24; T431.13-431.29; T1996.15-1996.16; T1997.21-1997.30.

[77] T1324.04-1324.19; T1642.10-1643.03; T1863.06-1863.19.

[88] Exhibit D9. The plaintiff was unable to provide any explanation as to why they were not included and tendered into evidence: T1012.23-1012.30.

[89] Plaintiff's closing submissions, undated, 6.

[97] Plaintiff's closing submissions, undated, 4.

[121] T638.06-638.09; T640.04-640.24; T655.24-656.04.

[124] T1052.27-1053.01; T1078.05-1078.09.

[125] T1053.07-1053.11; T1053.15-1053.18.

[128] Exhibit D12, 2 (emphasis added).

[134] See [62] above.

[136] T765.05-767.02 (emphasis added).

[140] Exhibit D15 dated 3 November 2009.

[141] T729.15-729.25; T617.14-617.17 (Dr Redman); T729.15.

[142] See [89] above.

[148] I discuss this incident at [129] below.

[149] See [76] above.

[159] T239.20-239.22; T836.17-836.26; T1983.19-1983.21.

[167] T168.05-T168.18; T223.03-233.08.

[170] T1346.07-1346.18; T1345.20-1346.18.

[176] T262.10-264.19; T482.04-483.23; T484.29-485.22.

[178] Plaintiff's further amended statement of claim dated 17 November 2017 [7.6].

[180] T286.22-286.25; T857.11-857.21; T905.27-905.30; T999.06-999.08; T1941.16-1941.28; T2010.01-2010.06.

[183] [2013] VSCA 122; (2013) 45 VR 22 [169] (citations omitted).

[184] [2007] QCA 366 [47] (Jerrard JA and Douglas J agreeing).

[186] T875.31-877.23; T895.29-896.05; T896.21-897.13; T898.18-898.29; T899.17-900.17.

[187] See [138] above.

[189] Plaintiff's further amended statement of claim, dated 17 November 2017, [5(t)(1)].

[190] The law regarding the tandem pursuit of a breach of statutory duty and a breach of the common law duty of care - causes of action that overlap in many respects - is 'widely acknowledged to be in a most confused and unsatisfactory state': Breen Creighton and Peter Rozen, Health and Safety Law in Victoria (The Federation Press, 4th ed, 2017) 111 [5.64].

[191] [2015] VSCA 130; (2015) 47 VR 430.

[196] Plaintiff's further amended statement of claim, dated 17 November 2017, [7.2].

[200] See WR Act ss 4 and 326; T1799.21-1799.26.

[206] T1361.17-1361.18; T1362.25; T1377.16-1377.17.

[207] T1361.23; T1377.09; T1378.28-1379.12.

[225] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447; Thorne v Kennedy [2017] HCA 49 [26], [38].

[226] N Seddon, R Bigwood and M Ellinghaus, Cheshire and Fifoot's Law of Contract (LexisNexis Butterworths, 10th ed., 2012) 743 [13.1].

[227] Powell v Hoyland [1851] EngR 124; (1851) 155 ER 456. See also Wardley Australia Ltd v McPharlin (1984) 3 BPR 97214.

[228] (1998) 152 ALR 267.

[229] Ibid 289, 292 (citations omitted) (emphasis added).