Holliday v Unisure Pty Ltd

4 There is no dispute that prior to the events alleged to have caused or contributed to a compensable incapacity, the worker was suffering from an illness or disorder of the mind being a bipolar disorder.[2] It is not alleged that the onset of this condition was caused by the worker's employment, or that employment aggravated it before 14 November 2003. What the worker alleges is that on 14 November 2003 her employment caused an aggravation of the depressive aspect of her bipolar disorder or a further unrelated depression.

5 The question as to whether the worker suffered illness or disorder of the mind in June 2004 is a non-issue. The worker had incorrectly inserted that date on the notice of work related injury. She ceased work on account of her alleged injury on 8 January 2004. Issue one above is thus confined to the question as to what illness or disorder of the mind the worker suffered from 14 November 2003 to 7 January 2004 inclusive.

Evidence before the Tribunal and witness credibility

6 Documentary material was presented by consent in a Trial Book[3] and a supplementary Trial Book[4] (part only of the latter being admitted).[5] In addition to claim documentation, witness statements, medical reports and notes, the books contain extensive material relating to work performance reviews relating to the worker. These were primarily conducted on behalf of the employer by the worker's direct supervisor, Mr Michael Choularton, the Manager of Faculty Academic Administration in the Faculty of Science and Engineering of the employer. Both the worker and Mr Choularton made detailed written statements, gave evidence and were subjected to extensive cross-examination. The treating psychiatrist Dr Werner also gave evidence. Apart from that all other relevant evidence was presented by consent in documentary form.

7 Although for the most part the occurrence of relevant events is well documented and not in dispute, there was a significant conflict between the worker and Mr Choularton as to the manner in which Mr Choularton conducted himself in his dealings with the worker between 14 November 2003 and 7 January 2004 inclusive. It is convenient to comment at this stage on my impression of the evidence of these two witnesses.

8 I consider that the applicant presented as an honest and credible witness who was in general a reliable historian. However, some aspects of her evidence must be treated with caution given her medical condition at the time of the alleged causative events. The fluctuation in the control of her ongoing bipolar disorder had the potential to result in some instability of mood such that her perception and recall of certain events may be unreliable. This comment is not an adverse reflection on the worker who I believe endeavoured to give a truthful account of the events in question. Her basic credibility in this regard was not challenged by the respondent.[6] Nevertheless, it means that her evidence as to certain matters, and in particular, as to what the worker perceived to be bullying, confrontational, aggressive and intimidatory conduct towards her by Mr Choularton, cannot be accepted at face value.

9 With some greater reservations I accept that Mr Choularton was, on the whole, endeavouring to present an accurate record of events as he recalled and noted them. However, I consider that in one respect his evidence was evasive, and that his conduct before and at the critical meeting between he and the worker on 14 November 2003 was not as calm and professional as he maintains. I will expand upon these matters below.

Narrative of events and findings of fact

10 For the most part the facts are not contentious. The matters set out below should be taken to be findings of fact. Where there is conflict in the evidence I set out the competing versions and make my findings as the narrative proceeds.

Developments in the worker's employment and medical condition up to June 2003

11 The worker is now 39 years of age. She commenced employment with the employer in 1985 in an administrative role. In 1999 she was diagnosed to be suffering from chronic fatigue syndrome. She was unable to work for a period of approximately 18 months during which time she was in receipt of a total incapacity and disablement benefit from UniSuper. In March 2000 she was diagnosed to be suffering from a major depressive disorder. The worker began consulting a psychiatrist, Dr Barbara Werner. Since that time the worker has been taking anti-depressant medication, mostly Efexor XR (varying from 75mg to 300mg per day).

12 In July 2001 the worker moved to Sydney due to a change in her then husband's employment. She obtained employment at the University of Sydney in an administrative capacity. She remained there until February 2002 when she returned to Adelaide as a result of the breakdown of her marriage.

13 On 14 August 2002 the worker again obtained employment with the employer as a Higher Eduction Officer (HEO7 Level) with the Faculty of Science and Engineering. The worker had responsibility for overseeing the numerous different degrees run by the Faculty, and for enrolling students undertaking those degrees in their correct programs. She was required to prepare agendas and take and record minutes of meetings of faculty committees as well as duties involved marketing, writing booklets, editing course information, managing higher degree research students and student counselling.

14 The worker conducted her duties in the Faculty with another Higher Education Officer at the same level, a Ms Vanessa Gicasvili. Both the worker and Ms Gicasvili were responsible to their supervisor, Mr Choularton, who was employed as a Higher Education Officer (HEO8 level). As part of the ongoing supervision and management of staff for which he was responsible, Mr Choularton engaged in fortnightly meetings with each individual where discussions would take place about current projects, and, if necessary, ways of improving work performance.

15 In about March 2003 it came to the attention of Mr Choularton that there were some issues in relation to the performance of the worker. He initially raised his concerns at regular fortnightly meetings until late in June 2003. By then Mr Choularton had formed the view that the worker's performance had deteriorated to the extent that it was necessary for him to initiate the first stage of the unsatisfactory work performance procedures provided for in the employer's disciplinary procedures ("the Disciplinary Provisions").[7]

16 The worker did not dispute that her performance had been unsatisfactory during the period from March 2003 to June 2003. The explanation for her behaviour was revealed in about mid June 2003, when Dr Werner diagnosed her to be suffering from an illness of the mind namely bipolar disorder type 1.

17 The development of this condition over the preceding months had caused the worker to suffer a hypomanic episode over some six to eight weeks which resulted in uncharacteristic behaviour. Such behaviour included engaging in long personal telephone conversations whilst at work, surfing the internet whilst at work for excessive periods of time, taking long periods of time off work, falsely recording work hours on time sheets, spending excessive amounts of money and engaging in sexually indiscriminate behaviour. Once Dr Werner diagnosed the condition she prescribed mood stabilizing medication named Epilim (initially 800mg per day).

18 The consequence of these problems, from Mr Choularton's point of view, was that the worker was perceived to be repeatedly late attending for work, uncooperative in the office, abrupt and dismissive with staff and students, absent from work without good reason for extended periods, producing substandard written work, and spending excessive time on personal matters whilst at work.

19 Mr Choularton met with the worker on 24 June 2003 and had a long discussion with her about her work performance. The worker informed him of the recent diagnosis and that it was proposed she undergo treatment for it. The worker was distressed by the implications of the diagnosis and the effect of her condition on her work performance. The next day she decided to take time off work to consider her work future and assess her treatment options. Having done so she returned to work on Monday 4 July 2003, at which time Mr Choularton confirmed his previous advice to the worker that a performance review process would be put in place.

Counselling and performance review July/August 2003

20 A "structured counselling" process was implemented in accordance with the Disciplinary Provisions. Discussion sessions of two hours each took place between the worker and Mr Choularton on 8 and 9 July 2003. The worker was mortified by her behaviour and wanted to make amends. The concerns of Mr Choularton were made clear to her. The worker agreed to adopt various strategies to improve her work performance. A timeframe was fixed within which she was expected to demonstrate an appropriately improved level of performance. The time was to expire on 8 August 2003.

21 At the close of the meeting on 9 July 2003, the worker was advised that if she met all of the documented requirements outlined in the discussions, "the matter would be considered rectified". In the alternative, she was advised that if she did not meet the documented requirements, "then further action as outlined in the University's Disciplinary Provisions for General Staff would be taken".[8]

22 The worker then put strategies in place to improve her performance as well as taking medication to control the disorder. She underwent psychotherapy and a self-improvement course, and enlisted the support of family and friends who were to alert her to any signs of a relapse into manic behaviour. She saw Dr Werner on five occasions between 10 July 2003 and 19 August 2003 to monitor her general progress, and to treat an episode of severe depression, a not uncommon aftermath of a manic episode.

23 A number of meetings took place between the worker and Mr Choularton after 9 July 2003 during the review period. Although the worker had not warmed to Mr Choularton's management style, finding him to be brusque and intimidating and not given to praising performance where she thought it warranted, she found that during this review process he expressed pleasure with her efforts and was complimentary about her positive response to counselling. Mr Choularton confirmed that the worker had dealt with the review process in a positive way, that she responded well and was keen to improve. He found it to have been a satisfying and constructive experience and a positive worker/supervisor relationship.[9]

24 The worker made progress despite her severe depression, although there were periods before completion of the review process when the worker displayed significant anxiety about her progress and her ability to deal with performance problems.[10]

25 On 21 August 2003 the worker and Mr Choularton met to discuss whether the worker had met her improved performance targets. Mr Choularton accepted that there had been an improvement in the worker's performance, and notwithstanding certain continuing deficiencies, he deemed the performance to have met the requirements of the review. His notes of the meeting record:-

"She is deemed to have met the requirements of the review, with the proviso that she must continue to improve in this area [the writing skills] (and in other areas too)...agreed to confirm this in writing with KH and to inform HR (Jill)".[11]

Although Mr Choularton omitted to provide the worker with the promised written confirmation, the structured counselling process was taken to have come to an end. The absence of written confirmation was not of concern to the worker.

26 The worker felt greatly relieved. Her understanding of the "structured counselling" process was that despite its apparent formality, it was considered to be an "informal process", such that if the review period ended successfully her personnel file would contain no adverse entry.[12] The opportunity to redeem herself through an informal process was important to her. The worker did not feel the need to see Dr Werner for some time after 19 August 2003, as she was "feeling quite good".[13]

Alleged deterioration in work performance September - November 2003

27 Given the fact that one of the contentions of the respondent is that the causes of the worker's disability are not connected with her employment, I digress to briefly address the worker's personal circumstances. As noted, she had returned from Sydney in February 2002. She then took up residence with her parents pending the outcome of property settlement negotiations with her former husband. She continued to live with her parents until about July 2003. They provided her with significant support during and following her manic episode, both in terms of financial assistance and help with the imposition of a budget to control her spending.

28 In July 2003 the worker moved into a girlfriend's house temporarily. She was having a townhouse built on some land she owned and intended to move into it by the expected completion date in November 2003. These events were seen by the worker to be positive, and a confirmation that she was getting things "back on track".

29 Dr Werner said that the relationship between she and the worker was such that the worker would arrange to see her when she chose, usually when there was some crisis or other relating to either general life issues or the workplace.[14] It was not uncommon for the worker not to see Dr Werner for lengthy periods of time. Dr Werner's notes show that after the attendance of the worker on 19 August 2003, two days before the review period ended, there was no further contact at all until the consultation of 12 November 2003, two days before the disciplinary meeting of which the worker complains.

30 Returning to work performance issues, it happened that during September 2003 Ms Gicasvili took leave, resulting in the worker taking over a number of her duties as well as continuing with her own. The worker considered that she carried out her own duties and the extra work appropriately. She said no indication was given to her that there were any problems with her work performance.

31 However, there were problems as far as Mr Choularton was concerned. In his statement he said:-

"Within a very short period of ceasing the counselling process it became obvious that Karen's attitude and performance of her work were again deteriorating, resulting in me advising her that she would again be placed on the formal review process as of November 2003."[15]

32 The shorthand form in which this assertion is made does not accurately reflect the events between 21 August 2003 and 14 November 2003. Normal fortnightly review meetings took place between Mr Choularton and the worker on 4 September 2003, 18 September 2003 and 1 October 2003. The notes made by Mr Choularton at these meetings do not record that any performance issues were raised with the worker. In his cross-examination Mr Choularton agreed that no such issues had been raised in these meetings and that between cessation of counselling and 14 November 2003, no complaint had been made to the worker about deteriorating work performance.[16]

33 The cross-examination on this topic resulted in some evidence which I consider was somewhat evasive. Mr Choularton was asked whether he would have made a note of the asserted deterioration in the worker's attitude and performance. He said it was something he would have noted if he had intended to discuss it with the worker. When pressed as to whether he would have noted deteriorating performance in any event, he said he may well have raised such matters at other times, then indicated that he did not make notes about every discussion he had with his staff.[17]

34 Mr Choularton appeared to be suggesting that performance issues may have been discussed informally with the worker without notes being made. Given that past unsatisfactory performance issues had been raised in regular meetings with the worker, and noted in detail, and that the structured counselling process had so recently finished with continuing improvement being required, I do not accept that Mr Choularton raised further performance concerns with the worker informally outside regular meetings without making any notes. His evidence on this topic causes me to have some doubt as to whether what he said about his interaction with the worker on 14 November 2003 is entirely reliable.

35 At the commencement of October 2003 Mr Choularton took leave, Ms Gicasvili having returned. There was a distribution of Mr Choularton's duties such that Ms Gicasvili performed most of them, with the worker continuing to perform a significant amount of Ms Gicasvili's duties as well as her own. There were no review meetings during this month given Mr Choularton's absence, and the worker received no advice from any other source as to dissatisfaction with her work performance.

36 Mr Choularton returned from leave on about 4 November 2003. From the time of his return until 14 November 2003, he did not meet with the worker, or otherwise communicate with her about her work performance. Nor was the worker advised by any other means of work performance issues. At the time the worker said she was "doing reasonably well" at work and felt she was "on the improve". She felt happier with herself and more stable.

37 At the same time, unknown to the worker, there had been discussions about her performance between Mr Choularton and members of the Human Resources Department. Mr Choularton had made an assessment of the worker's performance on the basis of his observations and of feedback from other staff in the Faculty Office. Having concluded that the worker's performance was again unsatisfactory, and having presented details to the Human Resources Department, Mr Choularton received advice that it was appropriate to issue a formal written warning to the worker in accordance with the Disciplinary Provisions. It was determined however, following his suggestion, that he should first speak to the worker to advise her of the proposed warning.

38 Issues as to the appropriateness of this procedure lie at the heart of the worker's complaint that the employer's action to discipline her was not reasonable. These will be addressed later. First it is convenient to say more about the worker's mental health and other non-work related events at the time.

The worker's state of mind immediately prior to 14 November 2003

39 Certain events in the worker's personal life were playing a part at this time. The worker had taken the Monday and Tuesday off work (10 and 11 November 2003) to move into her newly built townhouse. There were the usual stresses and problems involved in such an exercise, some of which kept her occupied upon her return to work when she made a number of telephone calls relating to electricity and water heating connections and the like. Time spent on this was one of the complaints later raised by Mr Choularton.

40 As it happened, the worker saw Dr Werner on 12 November 2003. The doctor's notes recorded that the worker was "doing reasonably well" notwithstanding the various problems associated with the move to her new home. Having discussed such matters, Dr Werner then specifically asked about the work situation, given that it had been the main source of stress over recent times. She recorded that the worker advised that work was "OK". Despite this, Dr Werner noted after a discussion in relation to general life issues that the worker complained of a residual unhappiness.

41 Dr Werner then noted and underlined a matter of some importance, namely that the worker had stopped taking Epilim.[18] The worker had done so as she felt the Epilim was bringing her mood down too far. She was hoping that she would recognise any signs of a resultant reversion to manic behaviour. Dr Werner was concerned about this, and recommended that she start taking Epilim again. She reminded the worker about her previously demonstrated lack of insight as to whether she was in a manic phase. Dr Werner considered the worker then demonstrated appropriate insight by readily accepting her advice that she should resume taking Epilim as prescribed.

42 Dr Werner concluded that the worker presented with a "mixed picture" common with bipolar disorder. That is, the worker was in the middle of either going up or down, had mild depressive symptoms but was coping, although she was not completely well and was demonstrating some instability of mood. She did not agree with the proposition put by counsel for the respondent that the worker's mental state was of "concern" to her on 12 November 2003. She considered her mental state to be reasonable, and that although the worker had been off Epilim for some seven weeks, no significant adverse effect had resulted. If anything, cessation of the medication was more likely to result in a state of depression rather than hypomania. Dr Werner considered that the sooner the worker resumed taking Epilim the more likely it was that her mental state would remain reasonable.

43 The effect of Dr Werner's evidence was that to the extent that the worker displayed any lack of insight or perception as a result of discontinuing or reducing her medication, the main potential difficulty was in the worker assessing whether she was becoming depressed or going into a manic episode, rather than a deterioration in her perception or understanding of outside events, although there was a possibility of some adverse effect in this area.

The events of 14 November 2003

44 The worker said that on the morning of 14 November 2003 Mr Choularton unexpectedly entered her office and stated that he wished to meet with her later that day. The worker's observation of Mr Choularton was that he "seemed very angry and short with me", and that as a result she felt "frightened and anxious", particularly as she had not been told what the meeting would be about.[19] Given his manner however, she thought he might be intending to discuss performance issues.[20]

45 The worker telephoned a Ms Benvenuto in the Human Resources Department to express her anxiety about the proposed meeting. A note was made (presumably by Ms Benvenuto) of a conversation with the worker at 10.56 am that day.[21] It records that upon the worker indicating that she was "stressed out" about the meeting, and upon her enquiring whether she needed to attend, she was advised that it was reasonable for her supervisor to request a meeting and that she ought to attend at least for the purpose of listening to anything which might be raised.

46 The author of the note then recorded that at 11.30 am she telephoned Mr Choularton to advise him (confidentially) of her discussion with the worker and of the fact that the worker was "extremely anxious". Mr Choularton agreed that he was so advised. The worker was not made aware at any time of this exchange.

47 The worker attended the meeting in the early afternoon of 14 November 2003. Only she and Mr Choularton were present. She observed Mr Choularton to be "angry, aggressive, frustrated and impatient", and said he "yelled" at her.[22] She said that she was advised that she was about to be given a formal written warning and that Mr Choularton told her he would do everything in his power to make sure she received three warnings in a row so he could dismiss her by the end of February 2004. She said Mr Choularton was angry about time she had spent on the telephone the day before regarding her townhouse. She said he complained of her not going to a training session a day or so before, and of other matters including deficient minute taking, rudeness to administration assistants, keeping students waiting when counselling and other behavioural issues, including contributing to stress leave taken by Ms Gicasvili.[23]

48 The worker said she felt "completely overwhelmed and intimidated" by Mr Choularton's manner, and that she was "frightened for (her) personal safety" during the meeting.[24] She made little comment on the matters raised by Mr Choularton due to her shock at being told that she was to be given a written warning.

49 In her evidence before me the worker said:-

"...my recollection of that meeting was one of the most awful things I've had to experience...I was just absolutely overwhelmed by this anger and barrage. I was frightened and frustrated, and just completely stunned by what seemed to be the unfairness of it all. You know, right at that time I felt, 'This seems to be really unfair. This seems to be a really unfair attack on me,' you know. Three months down the track of that whole structured counselling process being over and this comes completely out of the blue, and I don't know what I've done to deserve this barrage. I mean, as far as I could see, I had been bending over backwards and doing absolutely everything, and more, that had been asked of me."[25]

50 The worker was not concerned so much by a breach of any specific terms of the disciplinary procedures, given that she did not then know her rights in that regard in detail. Rather, her concern arose from her perception of unfairness in relation to Mr Choularton's conduct and the proposed disciplinary process, and from the fact that she did not consider most of the complaints to have any validity.[26] She was also concerned at the implications of moving to a formal warning stage. She perceived it to be a serious threat to her job security, and a blot on her character in that a record of the formal disciplinary process would be placed on her personnel file and possibly would prejudice her chances of obtaining other positions in the University. She found the experience very distressing.[27]

51 The worker was strongly challenged in cross-examination on her evidence as to Mr Choularton's conduct, it being put to her that he dealt with her in a calm and professional manner, and that he did not engage in any behaviours which could have given rise to the perceptions and fears she described. The worker maintained her evidence.

52 Mr Choularton said that after he outlined the various performance issues of concern to him, he advised the worker that he was putting her under "formal work performance review again" and that he would arrange a time to convey formally to her the areas where her performance was not satisfactory and what remedial procedures would apply. He noted that the worker, apart from acknowledging that there were continuing problems with analysing information, did not accept that her performance had been deteriorating, and said little in response. Mr Choularton noted that the worker became progressively upset during the meeting which he considered to be understandable.[28]

53 Mr Choularton denied that he acted inappropriately either when requesting the worker to meet with him or at the subsequent meeting with the worker. He said that he acted in a professional and supportive manner and focused on the issue of unsatisfactory work performance and the need to assist the worker to improve her performance to an appropriate level. He denied raising his voice, or acting in an angry or aggressive manner, or threatening further warnings or dismissal, and said there was no basis upon which the worker could possibly have been frightened for her personal safety.

54 I doubt that the picture Mr Choularton presents of the meeting is entirely accurate. I consider it unlikely that his demeanour was as measured, calm and professional as he suggests either in the brief discussion with the worker in the morning or at the meeting itself. There are two reasons for this.

55 This was the first occasion upon which Mr Choularton had conducted a meeting under the Disciplinary Provisions that involved a proposed formal written warning. He conceded that it was a stressful situation for him, and that due to his inexperience he had sought advice and guidance from the Human Resources Department as to the procedure he should adopt.[29] He accepted that it was a serious issue for the worker.

56 Given the history of the dealings between Mr Choularton and the worker, it is reasonable to infer that in addition to the stress he was under, Mr Choularton would have been somewhat frustrated and exasperated with the worker given that from his perspective she had reverted to the same type of conduct about which she had previously been counselled at some length. In the circumstances of the meeting as described, I think it likely that he presented in a somewhat brusque and overbearing manner, and that his frustration and exasperation may well have caused the anxious worker to perceive him to be angry and upset.

57 The other reason is that I consider that Mr Choularton may have sought to downplay the confrontational tone of the meeting. I have referred to what I consider to be a somewhat evasive segment of his evidence when he was being pressed in cross-examination with respect to a suggestion that further work performance issues may have been discussed with the worker despite there being no note of such a discussion. As a result I am not confident that his evidence as to the course of the meeting is entirely reliable.

58 On the other hand, the worker's recollection of the meeting is also flawed. Counsel for the respondent drew my attention to inconsistencies between what the worker said in her most recent statement and her oral evidence, and what she had said in earlier statements or interviews, or in histories given to various professionals upon whom she attended. He suggested the worker had embellished or reconstructed her evidence in relation to the meeting.

59 It is true that earlier accounts of the meeting given by the worker complain merely of Mr Choularton being angry, or rude, or cross, with no reference to yelling or conduct causing the worker to fear for her safety. However it should be remembered that the consultations the worker underwent up to April 2004 were solely directed at treatment or investigation of her mental or physical condition, or to assessment of her UniSuper claim. There was no compensation focus at that stage with its attendant emphasis on a precise history of events at work. It is not surprising that notes made at this time may have been incomplete as far as the events of 14 November 2003 were concerned.

60 After the worker lodged her WorkCover claim a greater emphasis was given to the conduct of Mr Choularton at the meeting, as can be seen in the histories given to Drs Blakemore and Loukas.[30] I consider that these later accounts, and the evidence given by the worker, exaggerate the extent of Mr Choularton's behaviour. I do not accept that he "yelled" at the worker, or that he conducted himself in a manner which could reasonably have caused her to fear for her safety. I consider that he did his best to conduct the meeting appropriately, but that in the circumstances for the reasons explained, his stress, frustration and exasperation created a confrontational environment which caused the worker to perceive his behaviour to be aggressive, intimidating and overbearing. Further, whilst I doubt that he specifically indicated that he intended to pursue the warning process to bring about the worker's dismissal, I find that something was said by him alluding to the worker's future employment prospects which caused her to fear that termination of her employment was a possible consequence of the disciplinary process about to be invoked.

61 I do not consider that the worker consciously embellished the nature of the encounter. Nor do I consider the lack of detail in the worker's initial statement suggests a recent invention of her perception of Mr Choularton's alleged aggression. The deficiency in that regard appears rather to lie with those assisting the worker in the preparation of the statement. It is to be recalled that the worker was extremely anxious even before the meeting started. That anxiety increased during the meeting, as did the worker's sense of unfairness, particularly given that further issues of a nature thought to have been rectified in August 2003 were raised again unexpectedly in circumstances where a decision had been made to move to a formal disciplinary process without any input from the worker.

62 I accept that the worker was "devastated", "distressed" and "extremely depressed" as a result of the meeting. Her lengthy rumination over the perceived unfairness of Mr Choularton's conduct after the meeting leads me to conclude that whilst her evidence involves an element of reconstruction which considerably exaggerates the intensity of the exchange, the meeting was nevertheless a most distressing experience for her.

Events between 14 November 2003 and 7 January 2004

63 The worker contacted Dr Werner's rooms to make an appointment but was unable to obtain a time before 25 November 2003. Although she said she fell into a "heap" and felt extremely depressed, she continued to attend work, fearing further adverse consequences if she did not. She felt continually under pressure, and increasingly agitated over the perceived unfairness of the procedure and Mr Choularton's actions. As a result of these concerns the worker contacted a representative from the National Tertiary Education Union for advice.

64 The fact of the worker's ongoing concern is corroborated by a note made by Ms Fox to the effect that on 19 November 2003 the worker telephoned her to advise, among other things, that she believed the proposal to issue a written warning was "totally unjustified" and that she had not been "fairly treated".[31]

65 The worker next saw Dr Werner on 25 November 2003. At the outset she recounted to Dr Werner her experience of 14 November 2003, describing Mr Choularton as having "dragged" her into his office, and then advising her of various concerns as to her performance and of his intention to send her a warning letter. Dr Werner noted that Mr Choularton got "cross" at the worker. She did not record that he had yelled at the worker or caused her to fear for her safety. She noted that the worker expressed concern about the "real mark" on her record as a result of the warning, and that the threat of a "final letter" was provoking a lot of anxiety. She advised the worker against going off on "WorkCover" because she saw it as having negative consequences and to be of no help in the treatment of the worker. Dr Werner noted the worker to say that she felt threatened by the prospect of losing her job and house. Dr Werner considered these fears would have been major stressors. She said that at the time the worker was not ill, but had been "high again and inappropriate, but was now mostly stressed and obviously still lacking in insight".

66 At the conclusion of a review meeting with the worker on 27 November 2003, Mr Choularton gave a letter of that date to the worker which contained a formal warning.[32]

67 The first two paragraphs of the letter read:-

"I am writing, further to our recent discussion, to confirm that following a period of Structured Counselling and a period of regular meetings between us, I have found the standard of your work in your position as an Administrative Officer (Academic) (Higher Education Officer Level 7) to be, on balance, unsatisfactory. Therefore, it is now appropriate to issue you with a formal written warning in accordance with the University's Disciplinary Procedures for General Staff.

The following assessment of your performance has been made on the basis of my observations as your supervisor and on feedback I have received from other staff in the Faculty Office, including the Executive Dean and the Faculty Registrar."

68 The letter then detailed eight areas in which the worker's performance was considered to be unsatisfactory, and set out the requirements to be met during the period of review in order to demonstrate that there had been a satisfactory improvement in performance. The letter then went on:-

"The period of review will commence from the date of this letter and conclude on Thursday 15 January 2004, at which time a further meeting will be held to assess your performance against the requirements set out above. You should be aware that if your performance is unsatisfactory following this period of review, further disciplinary action will be taken. This may include termination of your employment."

69 The receipt of written confirmation of the warning in these terms, and the fact that it was now "on file", heightened the worker's distress and feeling that the process was unjustified. Although she carried on as best she could she had feelings of hopelessness, increasing depression, and suffered increasing insomnia.

70 Dr Werner saw the worker again on 3 December 2003 and was told of the warning letter and the forthcoming meeting to address the matters raised. She recorded many complaints made by the worker about the review process since 14 November 2003 and the perceived lack of support from Mr Choularton. Dr Werner thought it appropriate that the worker persist with the process and try and work through it.

71 A meeting took place on 5 December 2003 between the worker, her union representative, Mr Choularton and Ms Fox to clarify the expected outcomes of the review process. Although a complaint was made on her behalf that the correct process had not been followed in accordance with the disciplinary provisions, the union advised her that she had no option but to participate in the process and she agreed to do so, still being anxious to address the two areas where she conceded her performance was lacking. She vehemently disputed the other six issues which had been raised.

72 The worker expressed concern as to whether the problems which impacted upon her ability to perform to the level expected may be due to an organic cognitive impairment. She authorised the employer to obtain reports from appropriate specialists on this issue. The review proceeded upon the basis that such reports would be obtained and taken into account in due course.

73 The worker said that during the ongoing review period following the meeting of 5 December 2003, both when doing her work generally and when meeting with Mr Choularton, she felt "stressed and on edge", and that everything she did was being unreasonably scrutinised and found wanting. She said this caused her to become more stressed and anxious. She felt that no concessions were made in light of her medical condition and that a cooperative and supportive approach was not taken in the circumstances. These concerns heightened her levels of anxiety and had a deleterious effect on her belief in her abilities to discharge her work satisfactorily.

74 Mr Choularton rejected the complaints the worker made with respect to his conduct during the review process up to January 2004, and stated that she was being supported appropriately just as she had been during the structured counselling process.

Meeting of 7 January 2004

75 On 7 January 2004, Mr Choularton met the worker for a further review. The review period was scheduled for completion on 15 January 2004. Certain mistakes made by the worker in the course of her work in November 2003 had only just come to Mr Choularton's attention, and he advised the worker of them. The worker accepted that two mistakes relating to advice given to students as to enrolment procedures could have had extremely serious repercussions for the students had they not been detected at an early stage.

76 The worker was distressed on learning of these mistakes. They heightened her concern that she may be suffering from a cognitive defect. She was further taken aback when Mr Choularton advised her that he intended to extend the current review period beyond 15 January 2004, as she had been pinning her hopes on the process ending by then. The worker said that her confidence was dashed as a result of this meeting and that she became severely distressed, feeling that she would never be able to meet what she considered were unrealistic standards expected by Mr Choularton.

77 The worker felt unable to continue with her work on the following day due to stress, anxiety, depression and loss of self-esteem and self-confidence. She considered that her inability to work resulted from the cumulative effect of the meeting of 14 November 2004, the subsequent meetings, her perception of a continued unwarranted scrutiny and lack of support, and the revelation of the mistakes and the extension of the review period.

78 Mr Choularton at the time of making his statement was unable to recall the mistakes which were discussed at the meeting of 7 January 2004. However he said that the review process was extended only because a number of work performance issues which were being reviewed were still on hold awaiting receipt of medical information concerning the worker's condition. He considered it appropriate in the circumstances to extend the review period.

Cessation of work and subsequent claim

79 On 8 January 2004 the worker told Mr Choularton of her decision to cease work. She applied for total incapacity disability benefits from UniSuper. She sought and received Centrelink benefits whilst waiting for the UniSuper claim to be assessed. That claim was accepted.

80 The focus of the worker's concern at this stage was whether there was some organic impairment of her cognitive abilities. She sought a further appointment with her psychiatrist. As it happened Dr Werner was on leave, and the worker saw her colleague, Dr Edith Miller, on 13 January 2004, and on two occasions subsequently. She sought support from Dr Miller with respect to her applications for Centrelink benefits and temporary incapacity payments. Through Dr Miller she explored the issue as to whether she had an organic deficit. She was referred to a psychologist Ms Kate Dowling for a cognitive function assessment. A report from Ms Dowling dated 4 March 2004 excluded an organic explanation for her difficulties and recommended treatment by way of cognitive behaviour therapy.

81 The worker then turned her mind to pursuit of a workers compensation claim. An issue as to the cost of proposed hospital treatment for her condition prompted to formally make a claim. She completed a claim form on 25 March 2004, and contacted Dr Werner, who by this time had returned to work, and obtained a certificate supporting her claim.[33]

82 The worker remained off work during the rest of 2004, but was able to obtain employment in a part time contract position (0.5) as a Higher Education Officer (HEO5) with the employer in the Faculty of Health, Sciences, Medical Education Unit on 9 February 2005. That contract continued until 17 October 2005.

Medical Evidence

83 Apart from the evidence of Dr Werner, reports of psychiatrists Dr Warwick Blakemore and Dr Arthur Loukas were tendered.

84 Dr Blakemore saw the worker at the request of the respondent on two occasions and provided reports dated 14 May 2004 and 13 April 2005. The history he obtained was generally consistent with the evidence of the worker. He noted that the worker told him that at the meeting of 14 November 2003 Mr Choularton absolutely "blew (her) head off" before advising her that she was to receive a written warning. He concluded that she was suffering from a bipolar disorder. He stated that in addition, the worker appeared to be suffering from further depression, particularly as a result of the way she felt she had been unreasonably treated by her superiors. He considered the further depression to be separate from the bipolar disorder. On review in April 2005, he considered she was still suffering from a partly resolved depressive illness which resulted from her work experiences.

85 In his report to the solicitors for the worker dated 14 September 2004, Dr Loukas also recorded a history generally consistent with the evidence of the worker. In relation to the meeting of 14 November 2003, he recorded a history that in the morning Mr Choularton had approached Ms Holliday "angrily" saying he wanted to have a meeting in the afternoon, that in the meeting he was said to have gone "berserk" as he talked about the worker's poor work performance, that he was "furious" and said to the worker "you're gone", and that he would do everything in his power to get rid of her. Dr Loukas assessed her to be suffering from bipolar disorder with depressive episodes. He expressed the view that work related issues aggravated her psychiatric illness, particularly the interpersonal stressors with Mr Choularton, including the way the worker was treated at the time of the meeting on 14 November 2003, and the increased scrutiny to which she was subjected at work until January 2004. He considered that these matters substantially aggravated the worker's illness.

86 Dr Werner prepared two reports. The first was dated 16 March 2004 and was sent to the consultant handling the claim for total and permanent disablement. The report focused mainly on the development of the bipolar disorder and its subsequent effects rather than on the impact of incidents at work on her condition.

87 Dr Werner noted the underlying factors causing the bipolar disorder to be both genetic and a result of "outside stressors precipitating emergence and episodes", and said:-

"In Ms Holliday's situation the stresses of marriage breakup, moving interstate and back, financial difficulties, the length of time before securing suitable employment and what she felt was lack of information and support once at this employment, together with difficult management/employee relationship all contributed to Ms Holliday's emergence of hypomanic and further depressive episodes."[34]

88 In a report dated 5 May 2004 sent to the respondent, Dr Werner reported in generally similar terms.

89 In her evidence she expanded upon the causes of the worker's condition, and to some extent qualified the broad statements made in her written reports. In retrospect, Dr Werner considered that the symptoms of depression exhibited by the worker since the year 2000 were associated with a latent bipolar disorder, with a hypomanic episode not manifesting itself until May/June 2003. This was appropriately treated by mood stabilisation medication, but the condition was rendered unstable in about November 2003 as a result of the worker having discontinued the Epilim some seven weeks before. The potential effects of this have been referred to above.

90 Dr Werner said that the various "outside stressors" to which she had referred in her report included work with the employer, which was "the final precipitant". It was "the work situation that got her to the point of not being able to cope".[35] Whilst noting that numerous aspects of work were stressful, including the counselling process in July/August 2003, it was the incident on 14 November 2003 which was significant. This is the reason Dr Werner specified that date on the medical certificate she provided to the worker on 6 April 2004. It was not the meeting of 7 January 2004 which was the important incident. Rather the worker ceased work because her coping abilities had diminished since 14 November 2003 due to the stress of the situation resulting from that meeting.[36] It was a build up from that time. Dr Werner said:-

"This period, the time before Christmas, she was in there trying hard, attempting to rectify, get things off the ground, felt she was going okay and then got told, once she's back at work that, well, you know, it's not over yet...it was a chapter of continuing incidents."[37]

Issues arising under s 30A of the Act

Did the worker suffer an illness or disorder of the mind in November 2003, January 2004, or at some other time?

91 I consider that Dr Werner is best placed to diagnose the worker's condition having treated her for depression since 2000 and having seen the development of the bipolar disorder. I accept her opinion that as from 14 November 2003 the worker suffered an aggravation of the condition of depression associated with her bipolar disorder, and that the aggravation caused her to cease work on 7 January 2004. I note that Dr Loukas expressed an opinion that was broadly in the same terms.

Was the employment with the employer a substantial cause of the illness or disorder of the mind suffered by the worker as from 14 November 2003?

92 Counsel for the respondent put forward a number of hypotheses as to what may have led to the condition of depression which caused the worker to cease work on 8 January 2004. One was that the worker's decision to cease or reduce her intake of Epilim such that it no longer had any beneficial effect some seven weeks before she saw Dr Werner on 12 November 2003 contributed to a deterioration of the worker's condition, and a consequent increase in depression, which was not influenced in any way by the events at work on or after 14 November 2003. I do not accept this proposition. I consider in light of the evidence of Dr Werner that at most the cessation or reduction in the level of medication resulted in an instability of mood and perhaps low level hypomania. This may have had some effect on the worker's degree of cognition or insight, but it did not cause an aggravation of her depression. To the extent that the reduction or cessation of medication played any part I consider it was only minor.

93 Further, I reject the suggestion that the worker's depression may have coincidentally increased due to a cyclical deterioration of the bipolar related depression, or that its aggravation was due to any non-work related personal factors.

94 On the basis of my acceptance of the opinion of Dr Werner, I find that on 14 November 2003 and subsequently, the worker was exposed to significant work related stress as a result of the decision to invoke the second stage of the disciplinary process, and the manner of the communication of that decision on 14 November 2003. This caused an aggravation of the depressive aspect of her bipolar disorder which was compounded by the written confirmation of the decision dated 27 November 2003. The fact that the worker did not immediately cease work following these incidents does not mean that the aggravation did not have a significant effect. I accept that notwithstanding her increased distress and depression, the worker continued to try and deal with the further work performance review process. However, her continuing perception of unjustified conduct by the employer, of a lack of ongoing support and of continual criticism, caused her to become unable to cope further with work once she became aware on 7 January 2004 that the review period would be extended. The substantial cause of her inability to work from that time was the meeting of 14 November 2003. Even if the meeting on 7 January 2004 had not taken place, I find that she would have ceased work at or shortly after that time in any event.

Has the worker proven that the preclusionary provisions of s 30A do not apply?

95 The question remains whether the worker has proven that the aggravation of the depression associated with the bipolar disorder did not wholly or predominantly arise from one of the two relevant disqualifying factors set out in s 30A(b) of the Act, namely:-

•

Reasonable action taken in a reasonable manner by the employer to discipline or counsel the worker; or

•

Reasonable action taken in a reasonable manner by the employer in connection with the worker's employment.

96 The actions taken by the employer with respect to the worker over the period from 14 November 2003 to 7 January 2004 fall only into the first of these categories given that all relevant events were related to and occurred in the context of the invocation of the Stage Two warning process under the Disciplinary Provisions and the associated performance review.

97 In consideration of this issue, I bear in mind the approach taken by Justice Lander in Keen v Workers Rehabilitation and Compensation Corporation.[38] Although he there addressed the approach to be taken to s 30A of the Act in the context of reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment, I consider his approach is equally applicable to action taken to discipline or counsel a worker.

98 Given that the action the employer took which caused the aggravation of the worker's depression was action to discipline or counsel the worker, and that the worker's disability at least predominantly arose from that action, the worker cannot succeed in her claim unless she proves that the action taken was not reasonable, or was not taken in a reasonable manner.

99 It is appropriate at this stage to set out the relevant extracts of the Disciplinary Provisions which are as follows:-[39]

3.4 A matter of unsatisfactory work performance or unsatisfactory conduct will usually proceed through the following stages:

3.4.3 review and action by the Manager, Human Resources

3.5

If, after all reasonable efforts have been made by the University and, in its opinion, the staff member has not met the required standards, the University reserves the right to take disciplinary action as defined.

3.7 All matters will be resolved as expeditiously as possible and in accordance with the principles of natural justice.

4. Applications of the Principles of Natural Justice:

4.1

all parties will have the right to be heard;

4.5

either party has the right to be accompanied by a representative at discussions or interviews taking place under the provisions of the formal disciplinary procedures;

This stage is the formal stage of discipline procedures. It provides an opportunity by way of structured counselling for a supervisor and staff member to address an unsatisfactory work performance or unsatisfactory conduct matter in an attempt to avoid further problems. It should be noted that the steps described below will usually have taken place as part of the normal supervisor-staff member relationship.

5.1

During this stage, the supervisor and the staff member will attempt to resolve the matter likely to lead to disciplinary action through a process including co-operation, regular feedback, regular meetings to review progress and, where appropriate, assistance with specific training and development programs. A timeframe for the resolution of the matter will be agreed.

5.2

Although the process may be informal and verbal in nature during this stage, the supervisor will record relevant events and dates and make a copy of these available to the staff member.

5.3

If the matters dealt with pursuant to clause 5.1 are resolved to the satisfaction of the supervisor in the timeframe agreed, the matter will be considered rectified and the staff member will be advised accordingly in writing.

5.4

Where the structured counselling process does not resolve the matter to the satisfaction of the supervisor, the staff member will be advised of this in writing. The supervisor may then proceed to institute the formal stage of these procedures.

5.5

The supervisor will inform the Manager, Human Resources before serving a written warning on the staff member.

7.

Stage 2: Written Warnings

7.1

First Warning

7.1.1 The supervisor will serve a first warning, in writing, on the staff member. The first warning will take the form of a statement of all the reasons for the dissatisfaction, propose a period usually not exceeding one month unless otherwise agreed between the parties for monitoring the progress of the performance or standard of conduct required of the staff member and, where appropriate, specify training activities or support which could assist the staff member.

7.1.2

The first warning will normally be served at an interview that will be conducted between the supervisor and the staff member.

7.1.3

At the conclusion of the interview, a record will be prepared by the supervisor which specifies any agreed outcomes reached at the interview, any additional training or support which the staff member believes useful and, if desired, any additional comment/statement from the staff member. This record, together with a copy of the written warning, will be placed on the staff member's confidential staff file.

7.1.4

If the staff member meets the specified outcomes set, during the period agreed, the matter will be deemed to be resolved and a statement to that effect, signed by both the supervisor and the staff member, will be placed on the staff member's confidential staff file."

100 The disciplinary process undertaken in July/August 2003 was structured counselling of the nature referred to in cl 3.4.1 and cl 5 of the above provisions. It was conducted as permitted by cl 5.2 on an informal basis with relevant events being recorded. In contrast to the Stage Two written warning process detailed in cl 7, a record of the outcome did not have to be placed on the staff member's confidential staff file. The matter was resolved in the course of the normal supervisor/staff member relationship.

101 Mr Choularton agreed that the unsatisfactory work performance matters raised by him with the worker in July 2003 were resolved to his satisfaction, and were rectified in accordance with cl 5.3.[40] The process was clearly at an end at that stage, notwithstanding the omission to forward a confirming letter to this effect.

102 During the period from 21 August 2003 to 13 November 2003, nothing was said to the worker which did or should have put her on notice that her attitude and performance of the work was deteriorating again. The worker had no reason to believe that she was not doing "reasonably well" at work as at 14 November 2003.

103 The employer's action to revive the disciplinary process in November 2003 must be seen in the above context. The worker's contention is that the employer's action in deciding, upon the basis of a further assessment of her performance drawn from information not disclosed to her, to move to the formal Stage Two written warning, was not reasonable. Counsel for the worker drew attention to cl 5.4, which contemplates the supervisor proceeding to the written warning stage only in the event that the structured counselling process does not result in the work performance matter being rectified to the satisfaction of the supervisor. Here the matter had been so rectified. Thus, it was contended, it was not open to the supervisor to proceed to Stage Two; rather, if further matters arose, the employer had to revert back to the Stage One structured counselling process to address the new work performance matters which had arisen. To proceed straight to Stage Two was said to be a breach of the process, and thus not reasonable.

104 The respondent contended that it was entitled to depart from the procedures in certain circumstances subject to the worker not being prejudiced. It pointed to cl 3.4, which provides that a matter of unsatisfactory work performance will "usually proceed" through the stages then specified. Here, as there were continuing mistakes, further intervention was said to be justified, and given the recent unsuccessful counselling process over similar complaints, it was submitted that it was not unreasonable to move straight to the formal warning stage. It was contended that the manner in which the process was invoked was to the benefit of the worker, in that rather than immediately serving the first warning letter on the worker as contemplated by cl 7.1.1, Mr Choularton arranged the meeting of 14 November 2003 to give the worker the benefit and courtesy of advance notice of the impending letter of warning. The fact that the worker had not had an opportunity to respond to these further performance issues was said not to matter in that firstly, it would have made no difference to the decision of the employer to move to the formal warning stage, and secondly, she would subsequently have an adequate opportunity to respond to the allegations and rectify the performance issues during the following review period.

105 I acknowledge that there may be circumstances in which it is not unreasonable to depart from the procedures set out in the Disciplinary Provisions. The fact that the employer through Mr Choularton arranged to meet with the worker before she was handed the warning letter does not make its actions unreasonable. I accept indeed that Mr Choularton may have been well motivated in this regard. However, the respondent's contention is misconceived, as there were in fact two departures from the procedures in the Disciplinary Provisions. The departure from the process envisaged in cl 7.1.1, as a result of which there was a meeting with the worker before she was handed the warning letter, was of no great moment. However, the departure from the process envisaged by cl 5 was, and did not accord with ordinary standards of industrial fairness, and was in breach of the principles of natural justice enshrined in cl 4.

106 Under cl 5.4 of the Disciplinary Provisions, a progression to the cl 7 formal warning stage is premised upon the worker being fully appraised during a structured counselling process of the performance issues the subject of the proposed warning, and upon a failure to rectify the matter to the satisfaction of the supervisor through that informal process. The formal warning is intended to be directed to the same performance issues which were the subject of the unsuccessful structured counselling process.

107 There was no basis in the circumstances of this case for a departure from the requirement of progression through cl 5 before the implementation of cl 7 with respect to the new complaints of unsatisfactory work performance. I find it was not a reasonable action by the employer in its application of the Disciplinary Provisions to move straight to the formal warning process with respect to the new allegations when no opportunity had been given to rectify them through the structured counselling process. The fact that the allegations appeared to involve complaints similar to those raised previously makes no difference. The worker should have been given an opportunity to respond to them and to rectify them before the Stage Two warning process was invoked. The decision to hold a preliminary meeting with the worker to appraise her of the impending warning in no way mitigated the unfairness of this procedural departure. Overall, the process adopted benefited the employer rather than the worker as it enabled the employer to avoid going though a further structured counselling process, which is what it should have done in the circumstances.

108 The letter of 27 November 2003 highlights the employer's misunderstanding of the procedure. The introductory paragraph[41] states that "...following a period of Structured Counselling and a period of regular meetings between us...I have found the standard of your work...to be...unsatisfactory." This statement overlooks the fact that following the structured counselling process the unsatisfactory work performance matters of May - June 2003 were accepted by Mr Choularton to have been rectified. The letter incorrectly implies that such performance issues were ongoing.

109 Quite apart from the non-compliance with the Disciplinary Provisions, the action of the employer was unreasonable when considered in terms of accepted standards of industrial fairness. It is not appropriate to issue a warning to an employee and foreshadow possible dismissal[42] on the basis of allegations of unsatisfactory work performance not previously disclosed to the worker. Before a decision was made to issue a warning, the worker should have been given an opportunity to respond to the fresh allegations.[43]

110 I find also that the action to discipline the worker was not taken in a reasonable manner. The worker was not told of the subject of the meeting, despite Mr Choularton knowing beforehand that a decision had been made to warn the worker, and despite his having been informed by the Human Resources Department that the worker was very anxious.

111 Further, the worker should have been given the opportunity to be accompanied by a representative consistent with the natural justice provision in cl 4.5. I consider that if the worker had been given an opportunity to have a representative with her at the meeting, it is likely that the presence of that person would have tempered Mr Choularton's approach. It was important that the meeting be conducted in such a way that despite the sensitive subject matter, Mr Choularton and the worker would be able to continue to work together productively to attempt to rectify the ongoing problems. As with the structured counselling process, the Disciplinary Provisions contemplated that after a first warning was given, the employee and the supervisor would work together to reach a satisfactory resolution. However, the circumstances in which the meeting was held and the manner in which it was conducted so damaged the relationship between the worker and Mr Choularton that it was not possible for them to work together to resolve the matter. Had the worker been given an opportunity to bring a representative with her to the meeting, such an outcome may have been avoided.

112 The subsequent actions of Mr Choularton and members of the Human Resources Department in holding further meetings and engaging in ongoing supervision, including the meeting of 7 January 2004, were part of the continuing review process in place up to 15 January 2004. Although the worker considered that the conduct of Mr Choularton was non-supportive and such as to cause her further stress, I do not find that the actions taken in the course of the ongoing review were in themselves unreasonable or taken in an unreasonable manner. In particular, given the need to await medical evidence which the worker had authorised the employer to obtain, and given the incomplete state of the information generally to hand as at 7 January 2004, it was not unreasonable for Mr Choularton to extend the review period. However, the problem for the employer is that the action taken in the first instance on 14 November 2003 to invoke the warning procedure and to impose a further review period was unreasonable, and the entire process subsequent to that date was infected with this unreasonableness.

113 The worker has established that the action taken by the employer to discipline or counsel her was not reasonable action, and further that it was not taken in a reasonable manner. To the extent that any of the actions taken by the employer could be considered to be other than action taken in a reasonable manner to discipline or counsel the worker, but in the alternative to be administrative action taken in a reasonable manner by the employer in connection with the worker's employment, the worker has established that her disability did not arise from such action.

Conclusion

114 The worker has established on the balance of probabilities that:-

She suffered an illness or disorder of the mind comprising an aggravation of the depressive aspect of her condition of bipolar disorder on and from 14 November 2003.

The employment of the employer was a substantial cause of the disability consisting of the illness or disorder of the mind described above.

Although the disability arose wholly or predominantly from action taken by the employer to discipline or counsel the worker, such action was not reasonable, and was not taken in a reasonable manner.

The disability did not arise from administrative action taken by the employer in connection with her employment.

In the end result, the disability is compensable.

115 I will hear the parties further as to the orders which should be made following these findings, or in the alternative, as to what further issues must be determined before any orders can be made.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

[1] Transcript (Tr) 13 July 2005 pg 11; 2 November 2005 pg 36, 37 - note that par 3 above omits the

word "reasonable" before "administrative action" but it was understood the intent was to raise the

preclusionary provisions of s 30A(b)(i) and (iii) of the Act.

[5] Pgs 1-6, those notes of Dr Werner between pgs 223-328 inclusive referred to in evidence, and other

[7] These were the "Disciplinary Provisions for General Staff" applicable under the Enterprise

Bargaining Agreement 2000-2003 - it was accepted that they had application to the worker. Relevant

[8] Record of outcome of discussion held by Mr Choularton and the worker under the "University's

Disciplinary Provisions for General Staff" A1/134-142

[10] Refer to her phone call to Dr Werner on 18 August 2003 about her distress over an adverse report at

work and her discussions with Dr Werner the next day - Tr 243, 244

[11] Handwritten notes A1/66 - "Jill" is Jill Fox of the employer's Human Resources Department

[12] Cl 5 of the Disciplinary Provisions (below) confirms her understanding in this regard.

[16] Tr 215-216; Tr 230 - There was a reference in the notes of 4 September 2003 of some discussion

about a problem with an agenda for a committee meeting but no reference in any notes to renewed

discussions about a deterioration in the worker's attitude and work performance.

[18] Dr Werner recorded that she had stopped taking it, whereas the worker said only that she had

reduced her intake albeit to a level at which it was of no therapeutic benefit. It is not necessary to

resolve this difference. The important point is that the absence of a beneficial dose of Epilim may

have had an adverse effect on the stability of the worker's mood.

[30] A more dramatic account was then given - refer to summary of medical evidence below

[38] [1998] SASC 7056; (1998) 71 SASR 42

[42] As was done by the letter of 27 November 2003.

[43] Such industrial fairness principles are also enshrined in unfair dismissal legislation - see Schedule 8